VPF v. Karen Gaudiosi et al. (2012)

MEMORANDUM OF DECISION AFTER COURT TRIAL

I. Nature of the Proceedings

This dispute arises out of a new home construction contract dated June 19, 2002, pursuant to which the plaintiff agreed to construct a fully completed four-bedroom, 2380–square–foot, single-family ranch dwelling on a newly purchased lot # 14 on Overvale Avenue in Wolcott, Connecticut.   Plaintiff's # 1.   The agreed price for the construction project was $257,380.00 with subsequent adjustments for extras, credits and allowances.

After reading the agreement, the court noted several paragraphs thereof which the court deems to be relevant to the issues raised by the parties:

# 6a-which obligates the plaintiff to perform the work in a skillful and workmanlike manner.

# 8–which requires the construction of a fully completed dwelling within eight months of the issuance of a certificate of occupancy (CO).

# 15–which required all extra work to be agreed to in writing.

# 20–in which the plaintiff committed that the cellar would be dry and that it would correct any significant leakage therein which may develop within one year, after receipt of written notice from the defendants.

# 27–which contained cautionary language indicating that the discovery of unanticipated ledge might require an additional payment from the defendants, and

# 28–which obligated the defendants to pay the balance due to the plaintiff upon receipt of an unconditional CO.

There was conflicting testimony as to the reasons why the plaintiff did not meet the eight-month completion date, which would have been some time during April 2003.   In this regard the unconditional CO was issued some six months later, on October 9, 2003.   Plaintiff's # 5.   The plaintiff asserts that the delay was due to unanticipated ledge, the inability of the defendants to secure immediate financing and the additional delay occasioned by the kitchen cabinet-maker.   The defendants deny that they caused any delay and point out that, while their home was under construction, several others in the same subdivision were started and completed by the same subcontractors working on their home.   In a letter to the plaintiff dated June 29, 2003, they complained that the plaintiff's subcontractors and employees worked on their home a mere six days in all of June 2003.   See Defendants' P.

The dispute, however, over the untimely completion is not relevant or determinative of the critical issues in this case, which are grounded in the plaintiff's desire to receive the balance due under the contract and the defendants' desire to deduct, or more appropriately, “set off substantial sums in order to repair major deficiencies in the dwelling.   Among the alleged major deficiencies claimed by the defendants are numerous cracks in the basement and foundation walls, causing water to flood the basement and an “out of plumb,” i.e., leaning, outside wall in the kitchen.   Other, so-called “punch items” will be addressed herein.

II. Claims of the Parties Via The Pleadings

In its one-count complaint filed September 15, 2009, which is based upon a claim that the defendants breached the construction contract by their failure to pay the balance, the plaintiff makes reference to the contract price of $257,380.00 and the obligation imposed upon the defendants by paragraph # 28 to pay the full balance at the time the unconditional CO was issued.   The plaintiff claims that the parties agreed to an extra/credit adjustment, the net to be credited to the defendants, in the amount of $12,510.49 and that, once all previous payments by the defendants are applied, the balance currently due to the plaintiff is $31,511.82.

It is noteworthy that on August 14, 2009, Judge Brunetti, after hearing, granted the plaintiff's application for a prejudgment remedy on the subject real property in the amount of $32,000.00.   Apparently, the defendant Karen Gaudiosi, as a then self-represented litigant, participated in that hearing while her former husband, the defendant Michael Angurio, failed to attend.   In fact, Angurio continued to ignore these proceedings (he was defaulted for failure to appear on November 5, 2009) until he appeared at the trial on January 5, 2012, and accepted the court-offered option to participate as an appearing party by filing his pro se appearance.

On November 13, 2009, the defendant Gaudiosi filed an Answer (# 106) and her two remaining Special Defenses (the defense of laches was stricken by Judge Sheedy on December 21, 2009):(1) the plaintiff had been paid in full for all work completed and (2) the plaintiff failed to complete the dwelling in a timely and workmanlike fashion.   In addition, she filed a Setoff, asserting that the plaintiff failed to comply with seven paragraphs of the construction contract (# 2, 6, 7, 8, 14, 17 and 20), the latter of which required the plaintiff to construct a dwelling with a dry basement and to correct any significant leakage, “which may develop within one year of completion.”   Other deficiencies alleged by the defendants to be included in the set off is the encasement of protruding ledge in the cellar and the defects resulting from poor construction of the “out of plumb” outside wall.   The defendant asserts that the cost to repair will “far exceed” the balance claimed by the plaintiff.

With regard to the setoff claim, at the close of the evidence, the parties agreed with the court's assessment that, due to the nature of this pleading, which is not a counterclaim, the defendants, at the end of the case, would owe either some amount to the plaintiff or would owe nothing to the plaintiff, but would not be entitled to recover any money damages from the plaintiff that would be in addition to that sum, if any, that would be “set off” by the court.

On January 6, 2010, the plaintiff filed a Reply (# 109) to the special defenses and a Reply (# 110) to the setoff in addition to a Special Defense (# 111) to the setoff, claiming that the plaintiff was not notified of any basement leakage within the one-year period provided in the contract and that the defendant, Angurio, agreed to the basement ledge encasement before that work was performed.   The plaintiff blamed the defendants for the untimely completion, referring to the ledge, financing and cabinet issues.   On January 6, 2012, at the request of the court, the defendant Gaudiosi filed her reply to the plaintiff's special defense, thus finally closing the pleadings.

III. The Trial

The trial was held over a five-day period, commencing January 5, 2012, and ending with final arguments on January 27, 2012.   The court heard from eight witnesses, three called by the plaintiff and five called by the defendant Gaudiosi.   The defendant Angurio did not call any witnesses or offer any exhibits, although he was afforded an opportunity by the court to do both.   He declined the court's offer to question any witnesses.   The court heard from the following witnesses:

1. Paul Flotte, Jr., the sole member of the plaintiff, VPF Construction, and the person completely in charge of the construction of the defendants' house.

2. Roman Pawelkzyk, who was the subcontractor who did the framing, roofing and some interior work on the house.

3. James Moore, the principal of Moore Associates, LLC and a licensed structural engineer, who was retained by the plaintiff to inspect the house and who issued a report (Plaintiff's # 18) detailing his findings.

4. The defendant, Karen Gaudiosi, who still resides in the house, which is the subject of this action.

5. The defendant, Michael Angurio, who is the former husband of Gaudiosi.   Their marriage was dissolved in 2007, four years after the completion of the subject dwelling.

6. Anthony Diaz, the principal of Anthony's Masonry and Construction, LLC, who was retained by the defendants to estimate the cost of de-watering the basement.   See Defendant's G.

7. Drew Reid, the principal of Advantage Inspection Services, Inc., and a licensed home inspector, who was retained by the defendants to inspect the house and to report on the defects and deficiencies claimed by the defendants.   His detailed report is Defendant's I.

8. Paul Macary, a remodeling contractor who was retained by the defendants to prepare an estimate of the cost to repair the non-basement deficiencies.

The court received a total of thirty-seven exhibits into evidence, seventeen from the plaintiff and twenty from the defendants (Defendant's K consists of 21 photographs).   Although the court reviewed each and every exhibit, particular attention was paid to all of the photos submitted by each party and to the following exhibits:  Plaintiff's # 1, 2, 3, 4 and 18.   Defendant's G, I, J, K, L, N, P, Q and W.

As expressed to counsel after hearing their closing arguments, the court is well aware of its responsibilities and limitations as a trier of fact and assessor of credibility.   It is also well aware of Connecticut law applicable to a trier's approach to expert testimony and consideration of damages and is aware of the limitations governing an award of damages.¹

The court, after reading the pleadings, reviewing all of the exhibits, considering the testimony of all the witnesses and assessing the credibility of each, and, after considering the arguments of counsel, makes the following findings.

IV. Discussion

The court finds that the plaintiff has proven by a fair preponderance of the evidence that, absent any consideration of the defendant's claim of set off, it is entitled to the agreed-upon contract price less those credits, allowances and adjustments set forth in Plaintiff's # 2, 3 and 4, which evidences an adjusted balance due to the plaintiff in the amount of $31,511.82.   There was insufficient evidence offered by the defendants to negate the plaintiff's claim in this regard.

Before addressing the setoff issue, which is the issue essential to the court's resolution of this dispute, the court will briefly address a question posed by the plaintiff to the defendants:  Why was no further payment of the balance due under the contract offered to the plaintiff prior to the institution of this action?   The evidence presented by both sides compels the court to pose to Mr. Flotte the same question that the defendants have asked:  Why didn't your company offer to complete its obligations under the contract by performing in a workmanlike manner the substantial repairs to the basement, kitchen, and roof and the less important so-called “punch list” repairs that were so obviously required?

The evidence establishes that the leakages in the basement and the out-of-plumb kitchen outside wall were well-known to Flotte prior to his leaving the job in November 2003.   The evidence tends to confirm the defendants' concern that their legitimate complaints were largely ignored by Flotte, the general contractor, whose primary concern was payment and not the quality of construction.   The court can certainly understand the defendants' explanation in answering the plaintiff's question by expressing their fear that if they paid the plaintiff the balance due, they would not hear from Flotte again and their specially designed home would remain, as it has, in a state of significant disrepair.   The court agrees with Mr. Reid's testimony that, given the substantial problems with the basement, kitchen wall and roof, the defendants' house was “not quality built.”   The court agrees with the defendants that, as counsel put it:  “They didn't get the house they contracted for!”

V. The Setoff:  Analysis Re Necessary Repairs

As to the defendants' claim of setoff, the court finds that the defendants have met their burden and have shown by a preponderance of the evidence that they are entitled to a setoff in the amount of $25,200.00 as follows.

(1) The Basement Floor

In this category, the court finds that the expenditure of $11,500.00 is not unreasonable given the plaintiff's credible testimony that the basement cracks measure three hundred and sixty (360) linear feet and consist of forty-five cracks throughout the basement.   In this court's view, based upon the testimony of Mr. Diaz, the defendant's basement expert, there are too many cracks to fix the problem by chiseling, sealing and installing control joints as recommended by Mr. Moore, the plaintiff's expert who referred to this appalling condition as a “nuisance.”   See Plaintiff's # 18.   The defendants should have the option of breaking up the existing floor and installing a new basement floor, perhaps, with the use of control joints.

(2) The Basement Walls

There are several cracks in the basement walls, however, drilling into the cracks and sealing them via epoxy injections, as recommended by the plaintiff's expert, at a cost of $6,000.00, appears to be the appropriate approach.

(3) The Out–Of–Plumb Kitchen Outside Wall

There was much testimony concerning this issue, however, there was no disagreement that, in fact, the kitchen wall is leaning outward and there appeared to be a consensus that the solution is to strengthen the roof rafters.   The dispute centered around the cost of this repair.   The court accepts the testimony of Mr. Moore, the plaintiff's engineer, that the house is “safe” in this regard, however, even he recommends strengthening the roof in order to avoid any further separation, which, apparently, has not occurred in the past eight years, a fact which appears to buttress the engineer's conclusion that there is no safety hazard due to the out-of-plumb wall.   The court finds as unacceptable and unnecessary the draconian approach suggested by Mr. Macary to, in effect, tear down and rebuild the kitchen.   The court finds, as to this category, that an award to the defendants in the amount of $4,500.00 will provide them with sufficient funds to strengthen the roof, repair the kitchen cracks and repaint the kitchen.

(4) The Lally Columns

As to the loose lally columns the power fastener procedure at an estimated cost of $200.00 appears to be a reasonable approach to the problem.

(5) The Mud Room Door

The court will make no award to the plaintiff's for a repair of the out-of-line mud room door as, during cross examination, Mr. Reid, the defendant's expert, conceded that problem may be due to settlement of the house over the past eight years.

(6) The So–Called “Punch List” items

Among these items, the court would include the stone facade repair, the proper venting in the hall bathroom, the crown molding repair, the return duct in the living room, the attic stairway, the junction box, electrical panel and the double wiring, the latter of which will require the services of electrician.   Based on the expert testimony and a review of the relevant and material exhibits, an award of $3,000.00 appears to be appropriate for this category.

VI. Conclusion and Award

In summary, the court will find that as to the plaintiff's complaint, the plaintiff is entitled to recover the amount that is sought by it, i.e., $31,511.82.   As to the defendant's claim of setoff, based upon the above analysis, the court finds that a setoff in the amount of $25,200.00 is justified by the evidence.   The net award due to the plaintiff, therefore, is $6,311.82 ($31,511.02 minus $25,200.00).

Judgment may therefore enter in the plaintiff's favor as against the defendants in the amount of $6,311.82, without costs to either party.

Wilson J. Trombley, Judge

FOOTNOTES

FN1. See the following Civil Jury Instructions:  2.5–1:  Credibility of Witnesses;  2.5–3:  Expert Witnesses;  and 4.5–4:  Damages..  FN1. See the following Civil Jury Instructions:  2.5–1:  Credibility of Witnesses;  2.5–3:  Expert Witnesses;  and 4.5–4:  Damages.

Trombley, Wilson J., J.