Peter Featherston v. Tautel & Sons Consulting (2012)

MEMORANDUM OF DECISION

This action that was tried to the court arises from the plaintiff's venture into real estate development after a successful career in a family-owned events planning publishing company.   The plaintiff embarked on the building of a large luxury home for sale on the open market.   Unfortunately, the plaintiff was unable to sell the property before he agreed to deed it back to the lender in a foreclosure action.   He now seeks to recoup all of his substantial losses relating to the property from the excavator, Katchko Construction Services, Inc., one of the first subcontractors on the site, from Tautel & Sons Consulting, LLC dba UBuildIt, a residential construction consulting company, and from CTX–Concrete Foundations, LLC, the concrete subcontractor.¹

The plaintiff claims that he has proven by a preponderance of the evidence that Katchko Construction is liable to him for damages based on claims of negligence, breach of contract, breach of the covenant of good faith and fair dealing and violation of the Connecticut Unfair Trade Practices Act (CUTPA).   Additionally, the plaintiff claims to have proven that Tautel is liable to him for CUTPA violations.   For the reasons hereinafter discussed, the court finds in favor of the plaintiff against Katchko Construction only on the breach of contract count.

The court finds the following facts credibly proven.   In 1998, the plaintiff purchased an approximately five-acre parcel of undeveloped land located at 2575 North Street in Fairfield, Connecticut.   The plaintiff acquired the property intending to construct a home for his personal residence, but he ultimately decided to build an approximately 9000–square–foot Colonial style home for speculation.

Nancy Lovas Architect, LLC was employed by the plaintiff to provide architectural services to the project, including the drafting of foundation and building plans.   The plaintiff entered into an agreement with the architectural firm on December 13, 2004 that provided that the firm was to be compensated on an hourly basis.   The architectural work was substantially completed when the building permit for the property was issued in early January 2005.²  Lovas was only involved in the actual construction on an “as needed” basis.

The plaintiff employed Huntington Company, LLC, a civil engineers and land surveyors company.   As shown by their work ledger, the surveying company performed field work at the site.   Among other services, the field group set elevation benchmark pins on which the construction of the home was to be based.³  One pin was set in a few feet up a Maple tree towards the rear of the property, and another was set approximately one foot up an oak tree located in the front of the property near the driveway and a stonewall.   The architect prepared her plans before the benchmarks were established by the surveyors.

Although he utilized the services of an architect and land surveyors, the plaintiff decided to construct the home without hiring a general contractor to be on site daily.   Rather, on November 23, 2004 the plaintiff entered into a written agreement with UBuildIt, which company focused on new home construction.   The “Disclaimers” provision describes the agreement's scope:  “Consultant performs CONSULTING SERVICES ONLY. Consultant will give Owner options.   Owner will make all decisions and accepts full responsibility for all decisions made.”   The plaintiff hired UBuildIt to assist him in, among other things, developing a building plan, preparing project specifications and employing subcontractors.   One of the services provided by UBuildIt to the plaintiff was a “[l]ist of UBuildIt approved and recommended subcontractors and suppliers.”   Notwithstanding the supplying of the list, the plaintiff was responsible for making “the final decision regarding which subcontractor” he hired.   UBuildIt was contractually obligated to make “[u]p to 30 site visits” to review workmanship, have site meetings to discuss with the plaintiff “upcoming details that need[ed] to be addressed before the plaintiff met with subcontractors, review checklists, and “[p]rovide options to [the plaintiff] to help [him] make a better decision.”   For its consulting services, UBuildIt was to be paid a fee of 7.5% of the total estimate project value of $1,134,400, or an $85,080 fee for services.   UbuildIt's coordinator for the project was Mark Mantione.⁴

Katchko Construction submitted to the plaintiff a written excavation proposal relating to the property dated January 1, 2005.   In preparing and submitting his bid, Katchko was provided with various documents for his review, including the foundation plans.   The proposal, which was accepted by the plaintiff, provided that Katchko Construction would excavate the foundation area, prepare footing drains, leader drains and the slab, backfill the foundation area, excavate the area for the septic system ⁵ and prepare yard drains.   The plaintiff agreed to pay to Katchko Construction a fee of $69,750 for its services.

Robert Katchko is a principal in Katchko Construction.⁶  He has more than thirty years experience in the residential and commercial construction business.   Katchko did not contact the surveyor prior to commencing excavation to discuss the proper benchmark.   Rather, his company used as the operative benchmark a stick with a ribbon attached that was stuck in the ground in close proximity to the back of the house.⁷

Katchko, himself, did not show up at the property first day of excavation, although he stated that he was at the site a few times before it began.   The plaintiff was also not present for the start of the digging.⁸  Katchko Construction's machine operator, Mark Casolo, was the only person on site for the first day of work in January 2005.⁹  Casolo was employed by Katchko Construction for approximately two years.¹⁰  He performed stump removal work at the site prior to excavating the foundation.   Casolo stated that he normally reviewed foundation plans prior to starting excavation, but he did not do so on this project.   Casolo did not independently ascertain prior to commencing his excavation work the depth of the foundation, that the foundation was to be two levels, and that there was to be a front porch supported by a frost wall.¹¹  When Casolo began the foundation work, he said that Mantione pointed out to him the elevation benchmark from which his excavation work would proceed.   In this regard, Mantione informed Casolo that the benchmark was on a particular tree, but Casolo told Mantione that he could not use the purported mark because it did not have any numbers on it that would provide the basis for determining the depth of the dig.   In response, Mantione essentially transferred the benchmark from the tree to a stake near the foundation by placing a mark on the stake and told Casolo to excavate based on that mark.   Mantione set the depth of the foundation excavation by using a laser in relation to the mark that he made on the stick.¹²  Casolo dug until the laser beeped, indicating that the appropriate foundation depth below grade had been achieved.   At one point on the first day, Casolo told Mantione that he was concerned that the dig was too deep, but Mantione assured him that the benchmark was correct.

In late March or early April 2005, Mantione called Lovas to discuss what he perceived to be discrepancies between her architectural drawings and the excavator's work.   Lovas went to the property and observed a single-level foundation, and that there were no footing or form trenches dug.   The plans provided for a two-level foundation and for those trenches.   Lovas also learned that the excavator used the stake near the foundation as its benchmark.¹³

It is undisputed that the foundation was not excavated according to the plans prepared by Lovas.   It was dug too deep and as one level instead of two, and the front porch was supported by a full foundation instead of just a frost wall.   Also, the excavated basement floor had water issues.

Featherston first became generally aware of these problems in April 2005.   He was primarily concerned at that time with moving forward with the project.   Consequently, he took the advice of Mantione to proceed with a single-level basement,¹⁴ have higher foundation walls (and associated higher ceilings), keep the full foundation under the front porch and pump out the water from the basement area by way of sump and other pumps.¹⁵

A meeting at the site was held on August 22, 2005.   Present at the meeting were the plaintiff, Lovas, Mantione, Katchko, a representative of Spath Construction and a local builder named John Welner.   The discussions centered on the issues pertaining to the foundation, and particularly that the foundation was improperly excavated.   At the meeting, Lovas was troubled by Katchko's questioning her as to where a two-level foundation was shown on the drawings when the drawings clearly showed a “step dig.” ¹⁶  A cursory review of the Foundation Plan dated November 15, 2004 specifically denotes an “upper level footing.”   It also shows a three-feet below grade footing for the frost wall.   Nevertheless, Katchko proposed that he could resolve the problems within a few days.   As a result of the meeting and his concern over the issues, the plaintiff decided to hire a third party to help him properly complete the job and terminated Katchko Construction's services.

Peter Spath, Jr., a land estimator for Lane Construction, testified for the plaintiff.¹⁷  By agreement dated August 22, 2005, the plaintiff hired Peter Spath and Spath Construction Co. to perform independent contractor work to assist him in completing the construction.   The plaintiff agreed to pay to Spath Construction the sum of $75,000 at the rate of $6,250 a month.¹⁸

The foundation was already formed and poured when Spath first came to the property.   His initial impressions were that the foundation was over excavated, the footings were not complete and the bowl-shaped contour of the land surrounding the foundation was causing water to run, or sheet, into the foundation.   Spath had the water pumped from the basement, reinstalled the footing drains to “run to daylight,” ¹⁹ installed curtain drains, and lessened the over excavation of the foundation.   Concerning the remedial foundation work, Spath used the benchmark set by the surveyor to establish the new floor slab heights and poured new slabs at those marks.²⁰  The marks were consistent with the architectural plans.   Additionally, Spath had the property graded away from the foundation and installed catch basins on the property to collect surface and ground water.

The project was eventually completed.   The plaintiff listed the house for sale with a realtor for sale prior to completing it.²¹  The house was on the market for a few years.   Prior to being able to sell the home, the plaintiff deeded the property to the lender, Hudson City Bank, in consideration of a forgiveness of his mortgage obligation in the amount of $2,630,000 and a $58,000 lump sum payment to the lender.   The property was sold in March 2009.

The plaintiff's core claim is that Katchko Construction improperly performed the excavation of the foundation;  that is, it was dug too deep and to a single level as opposed to a multi-level foundation, and the surrounding land was improperly contoured.   The plaintiff essentially makes the same allegations against Katchko Construction in his counts asserting claims for negligence, breach of contract and breach of the implied covenant of good faith and fair dealing.²²  Concerning a claimed CUTPA violation, the plaintiff contends that Katchko Construction “engaged in deceptive practices in [its] dealings with the plaintiff regarding [its] excavation work and project oversight work” resulting in loss to him.

I

The court will first address Katchko Construction's claim, pursuant to the economic loss doctrine, that the plaintiff can only pursue a breach of contract claim, and cannot maintain his remaining claims for negligence, breach of the implied covenant of good faith and fair dealing and a CUTPA violation.   Katchko Construction maintains that the plaintiff's damages are solely economic losses that preclude recovery based on tort claims.

“[T]he economic loss doctrine ․ is a judicially created doctrine which prohibits recovery in tort where the basis for the tort claim arises from violation of a contract and damages are limited to purely economic losses as opposed to personal injury or property damages.”   Heibeck v. Chrysler, LLC, Superior Court, judicial district of Waterbury, Docket No. CV 07–5006908 (September 24, 2008, Upson, J.) (46 Conn. L. Rptr. 451, 456).   The rationale for this rule is that “[a]lmost any contract breach can be conceived of in terms of a negligent or intentional tort claim.   If left unchecked, the incessant tide of tort law would erode and eventually swallow contract law ․ [I]f tort law and contract law are to fulfill their distinctive purposes, they must be distinguished where it is possible to do so.   The economic loss doctrine serves as a basis for such a distinction ․” Diversified Technology Consultants, Inc. v. Sentinel Equities Corp., Superior Court, judicial district of New Haven, Docket No. CV 05 4012681 (August 11, 2006, Jonathan, J.) (41 Conn. L. Rptr. 813, 814).   Furthermore, “to permit a party to a broken contract to proceed in tort where only economic losses are alleged would eviscerate the most cherished virtue of contract law, the power of the parties to allocate the risks of their own transactions.”   American Progressive Life and Health Ins. Co. v. Better Benefits, LLC, Superior Court, complex litigation docket at Waterbury, Docket No. X10 CV 02401221 (January 4, 2007, Munro, J.) (42 Conn. L. Rptr. 618).

“There is an issue [as to] whether ․ the doctrine has been adopted in Connecticut.   Without labeling the concept as the economic loss doctrine, [our] Supreme Court has twice declined to apply the concept to claims of negligent misrepresentation arising out of breach of contract claims.  D'Ulisse–Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 218–19, [520 A.2d 217] (1977), and William Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, [657 A.2d 212] (1995).   But in Flagg Energy Development Corp. v. General Motors Corp., [244 Conn. 126, 153, 709 A.2d 1075 (1998) ], without mentioning either D'Ulisse–Cupo or Williams Ford, Inc., the court, with reference to the economic loss rule, affirmed the striking of negligent misrepresentation and CUPTA counts in the context of a claim for breach of contract and breach of warranty damages relating to allegedly defective gas turbine [units] manufactured by the defendant.”  (Emphasis in original;  internal quotation marks omitted.)  Heibeck v. Chrysler, LLC, supra, Superior Court, Docket No. CV 07 5006908.

Specifically, our Supreme Court held that it agreed “with the holdings of cases in other jurisdictions that commercial losses arising out of the defective performance of contracts for the sale of goods cannot be combined with negligent misrepresentation ․ These authorities are particularly persuasive in the circumstances of this case, in which the misrepresentations and CUTPA claims depend upon allegations of fact that are identical to those asserted in their claims [for breach of contract].”  (Citations omitted.)   Flagg Energy Development Corp. v. General Motors Corp., supra, 244 Conn 153–54.

“Since the decision in Flagg, no appellate authority has addressed whether the economic loss doctrine is recognized in Connecticut ․ Consequently, a split of authority has emerged [in the Superior Court] as to whether the ruling in Flagg bars tort claims for economic loss in non-product liability cases ․ [In several cases, the court has found] that the holding in Flagg amounts to a recognition of the doctrine and warrants an extension of the doctrine well beyond product liability cases ․ There is also a line of case [which is the majority] that refuses to adopt the economic loss doctrine or adopts the doctrine in limited circumstances ․ The latter line of cases relies on the following reasoning ․ Upon close examination, [the decision in Flagg ] cannot be reasonably read to create a general rule barring all tort claims based in whole or in part upon alleged breaches of contract ․ Instead, it can only be read to bar such claims in the particular circumstances there at issue, it wit:  where both the plaintiff and the defendant are sophisticated commercial parties, and their dispute arises from the defendant's allegedly defective performance under a contract for the sale of goods.”  (Emphasis in original.)  Heibeck v. Chrysler, LLC, supra, Superior Court, Docket No. CV 07 5006908.  “Pursuant to this reasoning, judges have refused to extend the economic loss doctrine in cases in which the plaintiff ․ is not a sophisticated party and is not seeking to recover for commercial damages ․ Additionally, other judges have held that the doctrine does not bar claims that are distinct from [the] plaintiff's breach of contract claims.”  Heibeck v. Chrysler, LLC, supra, Superior Court, Docket No. CV 07 5006908 (economic loss doctrine did not bar the plaintiff's claim because “at least some of the plaintiff's allegations of misrepresentations are distinct from her breach of contract allegations”).

Katchko Construction claims that the economic loss doctrine bars the plaintiff's tort claims against him.²³  The court disagrees under the circumstances of this case.

The court need not decide whether the doctrine applies in Connecticut beyond the decision in Flagg.   The evidence here establishes that the plaintiff is not a sophisticated party in terms of new home construction to the extent that he knew or reasonably should have known his risks and how to try and allocate them, including those associated with excavation, in an agreement.   See Flagg Energy Development Corporation v. General Motors Corp., supra, 244 Conn. 153–54, citing Princess Cruises, Inc. v. General Electric Co., 950 F.Sup. 151, 155 (E.D.Va.1996) (“The parties are sophisticated corporations familiar with the type of services rendered, and the consequences of a mechanical failure likely to result from a failure to perform the contract as promised.   The parties were free to allocate the risks, insure against potential losses, and adjust the contract price as they deemed most wise.   This Court sees no reason to extricate the parties from their bargain”);  see also General Statutes § 52–572n(c);  1 Restatement (Third), Torts, Products Liability (proposed final draft) § 6, p. 303 (1996).   The evidence in the present case manifests the plaintiff's extreme naiveté relating to the project and his almost complete lack of knowledge and understanding of new residential home construction.

II

A

In view of its conclusion that the economic loss doctrine does not apply, the court will next decide whether the plaintiff has proven that Katchko Construction breached its agreement concerning the excavation work performed on the property.

The plaintiff generally claims that Katchko Construction failed to perform in a workmanlike manner, “particularly its failure to properly excavate the foundation hole and its failure to maintain the natural contours of the property.”   Katchko Construction does not contest the plaintiff's factual contention, but counters that the plaintiff has failed to establish his breach of contract count because he did not permit the company to cure any defects relating to the excavation and he waived any claims concerning the excavation.

The evidence clearly establishes that Katchko Construction breached its agreement with the plaintiff.   The written Agreement for Consulting Services executed between the plaintiff and UBuildIt provides that the plaintiff was responsible for employing subcontractors such as Katchko Construction.   Katchko Construction reviewed foundation plans and submitted a proposal to the plaintiff.   The proposal provided that Katchko Construction was to dig the foundation and backfill, and excavate the septic system area.   The plaintiff and Mantione met with the subcontractor prior to the commencement of work, and the plaintiff ultimately agreed to hire Katchko Construction.

Katchko admitted that he agreed to perform the foundation work according to the plans that he reviewed in preparation for submitting his bid, and that he knew the plans provided for a two-level foundation and a frost wall.   He also acknowledged that it was “critical” to know the benchmark elevation number prior to beginning any excavation, and that he was aware that construction sites have benchmark elevations containing numerical information that is integral to the dig.   Katchko claims, consistent with his machine operator's testimony, that his company was shown the physical benchmark at the site by Mantione, which mark did not contain the expected numerical information, and that Mantione supplied the requisite information.   The machine operator began to immediately excavate the foundation after obtaining that information.   The operator dug until the preset laser indicated that he was at the purported proper depth, which was much deeper than the depth shown on the plans.   Also, the foundation was improperly excavated to a single level, and the front porch was dug to a full foundation rather than a frost wall as noted in the plans.

Katchko does not dispute that the foundation was improperly excavated when compared to the plans on which his proposal was based.   Where Katchko diverges from the plaintiff is that he insists that his company is not responsible for the foundation problems because he properly followed the benchmark elevation information provided to him and his machine operator by Mantione, and he followed the direction of the plaintiff to excavate a single-level foundation as opposed to the step dig set forth in the plans.²⁴  The court finds both claims to be implausible and unsupported by the evidence.

In developing his bid and subsequently starting the job, Katchko reviewed architectural plans that showed a spot elevation for the interior of the residence.²⁵  As a contractor for more than thirty years, Katchko knew that the elevation benchmark is the single most important piece of information that an excavator must know before digging.   Yet, neither he nor his operator independently determined the proper benchmark despite the fact that the surveying company set the pin before his company put a shovel into the ground.   Rather, they merely accepted the representation of Mantione, who Katchko knew was only a consultant to the project and not a traditional general contractor, as to what object represented the benchmark and what was the numerical elevation they should use to excavate the foundation.   The object, a stick with a ribbon around it, admittedly did not contain the markings expected to be found on a benchmark, which is why Mantione had to orally relate that information to them.

The benchmark information proved incorrect.   Consequently, the foundation supporting this large luxury home was significantly deeper than called for in the plans and only excavated to a single level.

Additionally, the court finds credible the testimony of Peter Spath, Jr. that Katchko Construction improperly dug the area around the foundation causing the resulting contour of the land to have water runoff into the foundation area.   The solutions to the problems, at additional costs to the plaintiff, were to grade the property away from the foundation and place catch basins around the property to gather the surface and ground waters.

There is an abundance of evidence that Katchko Construction breached its agreement with the plaintiff to excavate the foundation according to the plans that the company reviewed and that formed the basis of its agreement with the plaintiff, and that the breach caused the plaintiff to suffer damages.   Further, the court finds that Katchko Construction has failed to prove its defenses of waiver and failure to allow it to cure any defects, and the claims merit little discussion.   There is no credible evidence that the plaintiff, either by his conduct or otherwise, intentionally and knowingly waived his claims against Katchko Construction.   See State v. Kitchens, 299 Conn. 447, 503–04, 10 A.3d 942 (2011).²⁶  Katchko Construction's claim that the plaintiff's contract claimed is barred because he failed to allow the company to cure the defects has absolutely no basis in the evidence.²⁷

The plaintiff requests damages for the amounts that it paid to (1) Spath to remedy the problems caused by Katchko Construction's improper excavation;  (2) CTX for the necessary additional concrete and associate rebar;  (3) the architect for her additional services;  (4) to the steel company for added reinforcement related to the front porch being supported by a full foundation instead of a frost wall, and (5) an individual for his work in installing drainage systems around the property to remedy the improper contour of the land.   Also, the plaintiff sought delay and stigma damages relating to the property.²⁸

The court will first address the plaintiff's claims for damages relating to the repair of Katchko Construction's improper work.  “As a general rule, in awarding damages upon a breach of contract, the prevailing party is entitled to compensation which will place [it] in the same position [it] would have been in had the contract been properly performed ․ Such damages are measured as of the date of the breach ․ For a breach of a construction contract involving defective or unfinished construction, damages are measured by computing either (i) the reasonable cost of construction and completion in accordance with the contract, if this is possible and does not involve unreasonable economic waste;  or (ii) the difference between the value that the product contracted for would have had and the value of the performance that has been received by the plaintiff, if construction and completion in accordance with the contract would involve unreasonable economic waste ․ The court may consider evidence demonstrating that the repairs undertaken by the plaintiff were necessary to restore the facility to the condition that it would have been in had it been constructed as warranted ․ The repairs, however, may not result in improvements to the property, in the sense that they may not be of a different and superior type than they would have been had they been constructed as warranted.

“The plaintiff has the burden of proving the extent of the damages suffered ․ Although the plaintiff need not provide such proof with [m]athematical exactitude ․ the plaintiff must nevertheless provide sufficient evidence for the trier to make a fair and reasonable estimate.”   (Citations omitted;  internal quotation marks omitted.)  Naples v. Keystone Building & Development Corp., 295 Conn. 214, 224, 990 A.2d 326 (2010).

“The general rule of damages in a breach of contract action is that the award should place the injured party in the same position as he would have been in had the contract been performed ․ Damages for breach of contract are to be determined as of the time of the occurrence of the breach.”  O'Hara v. State, 218 Conn. 628, 642, 590 A.2d 948 (1991).

The plaintiff has proven by a preponderance of the evidence that the expenses that he incurred for the construction and completion of the foundation by Spath were reasonable, computable, did not involve economic waste and were necessary to place him in the position he would have been in on the project had Katchko Construction performed in accordance with its agreement.   In view of the foregoing, the court awards the following damages to the plaintiff.²⁹  Item numbers 100,³⁰ 110, 120, 130, 150, 160, 200, 210, 230, 240, 250, 260, 270, 300, 320, 330, 350, 410, 440, 450, 460, 470, 480, 500 and 520.   Those damages are in the total amount of $173,330.³¹

The plaintiff has proven by a preponderance of the evidence that the following additional expenses that he incurred for the construction and completion of the foundation by Spath were reasonable and were necessary to place him in the position he would have been in on the project had Katchko Construction performed in accordance with its agreement:  (1) $28,500 paid to CTX–Concrete Foundations, LLC;  (2) $13,750 paid to Rosanna Steel;  (3) $10,304 paid to Jose Ceja;  and (4) $1,392.83 paid to Nancy Lovas.

In view of the foregoing, judgment is rendered in favor of the plaintiff and against Katchko Construction on the fifth count claiming a breach of contract in the total amount of $216,972.83.³²  Given the court's conclusion, the court need not consider the plaintiff's claims against Katchko Construction for negligence and breach of the covenant of good faith.   As discussed, the thrust of the plaintiff's claims in each of those counts is that Katchko Construction negligently performed its agreement.   Consequently, the allegations of liability are nearly identical in the negligence, breach of contract and breach of the covenant of good faith and fair dealing counts.³³  Moreover, the plaintiff seeks the same damages in each of those counts, which are essentially contract in nature.   While the plaintiff may set forth various legal claims, he cannot recover the same damages two or more times.  Bonan v. Goldring Home Inspections, Inc., 68 Conn.App. 862, 869, 794 A.2d 997 (2002).   As a result, it would be improper for the court to render judgment on the negligence and breach of covenant of good faith counts when, under the circumstances of this case, the plaintiff seeks to recover more than once for the same damages.  Id., 870.³⁴

B

The plaintiff claims in the seventh count that Katchko Construction is liable to him for violations of the Connecticut Unfair Trade Practices Act (CUTPA) as embodied in General Statutes § 42–110a et seq.   This contention merits little discussion because it is wholly unsupported by the evidence.

The defendant posits in its trial memorandum that “[t]he evidence ․ establishes that Katchko and Tautel & Sons both engaged in deceptive practices in their dealings with the plaintiff regarding their excavation and project oversight work, and those deceptive practices resulted in harm to the plaintiff.”   More specifically, the plaintiff claims that those defendants withheld information from him, “mislead him into accepting a solution,” failed to provide him with proper advice on how to remediate the construction problems and blamed others for the issues.

“Our jurisprudence regarding CUTPA is well settled.   It is remedial in character ․ and must be liberally construed in favor of those whom the legislature intended to benefit ․ CUTPA was designed to provide protection to businesses as well as to consumers.   CUTPA is not limited to conduct involving consumer injury ․ [A] competitor or other business person can maintain a CUTPA cause of action without showing consumer injury ․ CUTPA, by its own terms, applies to a broad spectrum of commercial activity ․ The purpose of CUTPA is to protect the public from unfair practices in the conduct of any trade or commerce, and whether a practice is unfair depends upon the finding of a violation of an identifiable public policy.”  (Citations omitted;  internal quotation marks omitted.)  Eder Bros, Inc. v. Wine Merchants of Connecticut, Inc., 275 Conn. 363, 379–80, 880 A.2d 138 (2005).

“It is well settled that in determining whether a practice violates CUTPA we have adopted the criteria set out in the cigarette rule by the federal trade commission for determining when a practice is unfair:  (1)[W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise—whether, in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness;  (2) whether it is immoral, unethical, oppressive, or unscrupulous;  (3) whether it causes substantial injury to consumers [competitors or other businesspersons] ․ All three criteria do not need to be satisfied to support a finding of unfairness.   A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three.”  (Internal quotation marks omitted.)  Updike, Kelly, & Spellacy, P.C. v. Beckett, supra, 269 Conn. 613, 655–56.  “Thus a violation of CUTPA may be established by showing either an actual deceptive practice ․ or a practice amounting to a violation of public policy.”  (Internal quotation marks omitted.)  Glazer v. Dress Barn, Inc., 274 Conn. 33, 82–83, 873 A.2d 929 (2005).  “Furthermore, a party need not prove an intent to deceive to prevail under CUTPA.”  (Internal quotation marks omitted.)  Journal Publishing Co. v. Hartford Courant Co., 261 Conn. 673, 696, 804 A.2d 823 (2002).  “[The Supreme Court] has set forth a three part test for satisfying the substantial injury criterion:  [1] [the injury] must be substantial;  [2] it must not be outweighed by any countervailing benefits to consumers or competition that the practice produces;  and [3] it must be an injury that consumers themselves could not reasonably have avoided.”  (Internal quotation marks omitted.)   Hartford Electric Supply Co. v. Allen–Bradley Co., 250 Conn. 334, 368, 736 A.2d 824 (1999).

“Whether a practice is unfair and thus violates CUTPA is an issue of fact ․ The facts found must be viewed within the context of the totality of circumstances which are uniquely available to the trial court.”  (Internal quotation marks omitted.)  De La Concha of Hartford, Inc. v. Aetna Life Ins. Co., 269 Conn. 424, 434, 849 A.2d 382 (2004).

“[T]he ascertainable loss requirement is a threshold barrier which limits the class of persons who may bring a CUTPA action seeking either actual damages or equitable relief ․ An ascertainable loss is a deprivation, detriment [or] injury that is capable of being discovered, observed or established ․ [A] loss is ascertainable if it is measurable even though the precise amount of the loss is not known ․ Under CUTPA, there is no need to allege or prove the amount of the ascertainable loss ․ A plaintiff need not prove a specific amount of actual damages in order to make out a prima facie case [under CUTPA].”  (Citations omitted;  internal quotation marks omitted.)  Service Road Corp. v. Quinn, 241 Conn. 630, 638–39, 698 A.2d 258 (1997).

“A court may exercise its discretion to award punitive damages to a party who has suffered any ascertainable loss pursuant to CUTPA ․ In order to award punitive or exemplary damages, evidence must reveal a reckless indifference to the rights of others or an intentional and wanton violation of those rights ․ Accordingly, when the trial court finds that the defendant has acted recklessly, [a]warding punitive damages and attorneys fees under CUTPA is discretionary ․ and the exercise of such discretion will not ordinarily be interfered with on appeal unless the abuse is manifest or injustice appears to have been done ․ Further, [i]t is not an abuse of discretion to award punitive damages based on a multiple of actual damages.”  (Citations omitted;  internal quotation marks omitted.)  Votto v. American Car Rental, Inc., 273 Conn. 478, 485–86, 871 A.2d 981 (2005).  “[O]ur precedents are insufficient to establish a clear, well-defined and dominant public policy against excessive punitive damages ․ This does not mean, [however,] ․ that any arbitral award of punitive damages, no matter how grossly excessive, is insulated from judicial review.”  (Emphasis in original.)  MedValUSA Health Programs, Inc. v. Member Works, Inc., 273 Conn. 634, 662 n.15, 872 A.2d 423, cert. denied, 546 U.S. 960, 126 S.Ct. 479, 163 L.Ed.2d 363 (2005).

“When liability under CUTPA is established, attorneys fees and costs may be awarded at the discretion of the court and the successful litigant must be given the opportunity at trial to provide evidence to establish a basis for the award.”   Ven Nguyen v. DaSilva, 10 Conn.App. 527, 530, 523 A.2d 1369, cert. denied, 204 Conn. 803, 528 A.2d 1151 (1987).   This remains subject to the general “requirement that the reasonableness of attorneys fees and costs must be proven by an appropriate evidentiary showing.”  (Emphasis in original.)   Smith v. Snyder, 267 Conn. 456, 471, 839 A.2d 589 (2004).

The evidence is insufficient to support the plaintiff's claim for CUTPA violation based on the seventh count against Katchko Construction.   As previously discussed, the totality of the evidence establishes that Katchko Construction is liable to the plaintiff for failing to perform its agreement in a workmanlike manner and negligently performing its agreement, but the evidence of Katchko Construction's conduct falls far short of establishing by a preponderance of the evidence any unfair or deceptive acts or practices within the meaning of the Act. Contrarily, the evidence proves this case to be a garden variety construction case, and not the type of case that allows for consideration of the imposition of the punitive damages and attorneys fees based on a CUTPA violation.³⁵

III

In view of the foregoing, judgment is rendered in favor of the plaintiff as follows:

a. on the first count against Tautel in the amount of $216,972.83;

b. on the fifth count against Katchko Construction in the amount of $216,972.83:  and

c. on the ninth count against CTX in the nominal amount of one dollar ($1.00).

TYMA, J.

FOOTNOTES

FN1. Tautel and CTX failed to appear at trial and were defaulted by the court.   Counts one through four of the complaint are brought against Tautel and counts nine through twelve apply to CTX. Each set of counts allege breach of contract, negligence, violation of the Connecticut Unfair Trade Practices Act and breach of the covenant of good faith and fair dealing.   The court held a consolidated trial with a hearing on liability and damages as to Katchko, a hearing in damages as to Tautel and CTX..  FN1. Tautel and CTX failed to appear at trial and were defaulted by the court.   Counts one through four of the complaint are brought against Tautel and counts nine through twelve apply to CTX. Each set of counts allege breach of contract, negligence, violation of the Connecticut Unfair Trade Practices Act and breach of the covenant of good faith and fair dealing.   The court held a consolidated trial with a hearing on liability and damages as to Katchko, a hearing in damages as to Tautel and CTX.

FN2. The plaintiff bought the original plans for the home on the internet.   Lovas revised them and produced additional plans..  FN2. The plaintiff bought the original plans for the home on the internet.   Lovas revised them and produced additional plans.

FN3. An excavator determines the depth to dig a foundation based on a specific elevation benchmark that has been set.   Other tradesman also rely on benchmarks in performing their work..  FN3. An excavator determines the depth to dig a foundation based on a specific elevation benchmark that has been set.   Other tradesman also rely on benchmarks in performing their work.

FN4. The evidence shows, despite UBuildIt only being a consultant that was not on site daily, that the plaintiff dealt with Mantione as if he was a general contractor in the common understanding of the term.   The plaintiff relied on Mantione to obtain subcontractors, direct their work, deal with site issue and generally “run the job.”   As further evidence of this, the plaintiff did not come to the site often during the work day and was on vacation for a few weeks in February when the construction was just beginning and Katchko was performing excavation work..  FN4. The evidence shows, despite UBuildIt only being a consultant that was not on site daily, that the plaintiff dealt with Mantione as if he was a general contractor in the common understanding of the term.   The plaintiff relied on Mantione to obtain subcontractors, direct their work, deal with site issue and generally “run the job.”   As further evidence of this, the plaintiff did not come to the site often during the work day and was on vacation for a few weeks in February when the construction was just beginning and Katchko was performing excavation work.

FN5. Katchko Construction hired a subcontractor to perform the septic system work, and was fully paid for it..  FN5. Katchko Construction hired a subcontractor to perform the septic system work, and was fully paid for it.

FN6. Apparently, the business is presently named Katchko & Sons Construction Services, Inc..  FN6. Apparently, the business is presently named Katchko & Sons Construction Services, Inc.

FN7. Katchko claims that he took all of his direction from Mantione, and that it was Mantione who told him that the stick was the proper benchmark and that the excavation was to be for a single-level basement.   The court does not credit that testimony..  FN7. Katchko claims that he took all of his direction from Mantione, and that it was Mantione who told him that the stick was the proper benchmark and that the excavation was to be for a single-level basement.   The court does not credit that testimony.

FN8. In a letter to Lovas dated April 22, 2005, the plaintiff stated that “the excavation was started without [his] consultation ․”.  FN8. In a letter to Lovas dated April 22, 2005, the plaintiff stated that “the excavation was started without [his] consultation ․”

FN9. Katchko Construction last worked at the site in late February or early March 2005.   A memo dated February 28, 2005 from Eric at UBuildIt to the plaintiff references that based on a discussion with Katchko and CTX the foundation form work would begin at the very end of February or early March 2005..  FN9. Katchko Construction last worked at the site in late February or early March 2005.   A memo dated February 28, 2005 from Eric at UBuildIt to the plaintiff references that based on a discussion with Katchko and CTX the foundation form work would begin at the very end of February or early March 2005.

FN10. He was no longer working for the company at the time of trial..  FN10. He was no longer working for the company at the time of trial.

FN11. The frost wall in this case was to be approximately three feet deep for the length of the front porch..  FN11. The frost wall in this case was to be approximately three feet deep for the length of the front porch.

FN12. Although it was Casolo's “standard practice” to review plans prior to performing excavation, he neither asked for nor received the plans relating to the project.   Also, Robert Katchko did not give Casolo any instructions concerning the excavation.   Casolo relied solely on the information given to him by Mantione.   Casolo said that he himself could not have used the laser because he “had no numbers to go by,” meaning that the alleged benchmark did not have any marking on it..  FN12. Although it was Casolo's “standard practice” to review plans prior to performing excavation, he neither asked for nor received the plans relating to the project.   Also, Robert Katchko did not give Casolo any instructions concerning the excavation.   Casolo relied solely on the information given to him by Mantione.   Casolo said that he himself could not have used the laser because he “had no numbers to go by,” meaning that the alleged benchmark did not have any marking on it.

FN13. Lovas was not aware of the benchmarks set by the surveyors when she was at the property in April 2005 in response to Mantione's call to her..  FN13. Lovas was not aware of the benchmarks set by the surveyors when she was at the property in April 2005 in response to Mantione's call to her.

FN14. Lovas references this in a memo to Featherston dated August 30, 2005 wherein she states that “[t]he basement height can be changed to a single level as ․ requested.”.  FN14. Lovas references this in a memo to Featherston dated August 30, 2005 wherein she states that “[t]he basement height can be changed to a single level as ․ requested.”

FN15. Featherston incurred extra costs for the additional work..  FN15. Featherston incurred extra costs for the additional work.

FN16. Katchko steadfastly and incredulously maintains that his excavation was proper and that “no one has shown [him] that what [he] did was wrong.”.  FN16. Katchko steadfastly and incredulously maintains that his excavation was proper and that “no one has shown [him] that what [he] did was wrong.”

FN17. The defendant agreed that Spath was a qualified expert in site excavation.   The court, however, rejects his expert opinions finding that they are not supported by a sufficient foundation.   The court credits his factual testimony as discussed in its opinion..  FN17. The defendant agreed that Spath was a qualified expert in site excavation.   The court, however, rejects his expert opinions finding that they are not supported by a sufficient foundation.   The court credits his factual testimony as discussed in its opinion.

FN18. Spath Construction was originally hired by the plaintiff to facilitate the completion of the house, but it failed to do so.   The plaintiff paid them only $37,600 for their services..  FN18. Spath Construction was originally hired by the plaintiff to facilitate the completion of the house, but it failed to do so.   The plaintiff paid them only $37,600 for their services.

FN19. A term used in the construction business to refer to the need to have the footings installed so that gravity could carry water through the drain pipes and out of the basement area into an area where the open air end of the footing pipe drains..  FN19. A term used in the construction business to refer to the need to have the footings installed so that gravity could carry water through the drain pipes and out of the basement area into an area where the open air end of the footing pipe drains.

FN20. The basement floor slab was raised to a grade several feet higher that that excavated by Katchko by, among other things, using compacted crushed stone..  FN20. The basement floor slab was raised to a grade several feet higher that that excavated by Katchko by, among other things, using compacted crushed stone.

FN21. The real estate market was in a downturn and there was less of a market for a luxury home built on speculation.   Consequently, the plaintiff determined that he would market the house as one where a buyer could have custom work performed in order to complete the construction..  FN21. The real estate market was in a downturn and there was less of a market for a luxury home built on speculation.   Consequently, the plaintiff determined that he would market the house as one where a buyer could have custom work performed in order to complete the construction.

FN22. The plaintiff acknowledges this in his memorandum in stating that “the facts establishing negligence against Katchko [Construction] also established a breach of contract and a breach of the covenant of good faith and fair dealing.   It is undisputed that the plaintiff and Katchko entered into a written contract requiring Katchko to perform excavation services including digging a foundation hole.   It is an implied condition of every service contract that the service will be performed in a workmanlike manner ․ In this case the evidence clearly shows that Katchko negligently failed to perform its obligations under the contract in a workmanlike manner ․”.  FN22. The plaintiff acknowledges this in his memorandum in stating that “the facts establishing negligence against Katchko [Construction] also established a breach of contract and a breach of the covenant of good faith and fair dealing.   It is undisputed that the plaintiff and Katchko entered into a written contract requiring Katchko to perform excavation services including digging a foundation hole.   It is an implied condition of every service contract that the service will be performed in a workmanlike manner ․ In this case the evidence clearly shows that Katchko negligently failed to perform its obligations under the contract in a workmanlike manner ․”

FN23. Although counsel for Katchko Construction devotes a section of his post-trial memorandum to a discussion of this doctrine, he merely cites cases supportive of his decision and does not provide any independent analysis of the cases, their application to this case or application of the doctrine in general..  FN23. Although counsel for Katchko Construction devotes a section of his post-trial memorandum to a discussion of this doctrine, he merely cites cases supportive of his decision and does not provide any independent analysis of the cases, their application to this case or application of the doctrine in general.

FN24. In a telling response to a question as to why his company only excavated a single-level foundation, Katchko answered “[w]ell, very simple.   When we had looked at the plan and had talked to Mr. Featherston and Mark Mantione—I mean, I remember having the conversation myself with Mr. Featherston that it was a two level basement and he didn't—had no idea it was two levels and he wanted it one level.”   The court finds his testimony to be against the weight of the better evidence and not credible.   The foundation was one level because Katchko Construction failed to properly perform their work..  FN24. In a telling response to a question as to why his company only excavated a single-level foundation, Katchko answered “[w]ell, very simple.   When we had looked at the plan and had talked to Mr. Featherston and Mark Mantione—I mean, I remember having the conversation myself with Mr. Featherston that it was a two level basement and he didn't—had no idea it was two levels and he wanted it one level.”   The court finds his testimony to be against the weight of the better evidence and not credible.   The foundation was one level because Katchko Construction failed to properly perform their work.

FN25. The numerical elevation was 294.5 feet, which was the elevation that related to the second benchmark set by the surveyors in an oak tree near the driveway in the front of the house..  FN25. The numerical elevation was 294.5 feet, which was the elevation that related to the second benchmark set by the surveyors in an oak tree near the driveway in the front of the house.

FN26. The court finds it was reasonable for the plaintiff to proceed with the project once he learned there were excavation problems.   It was also reasonable for the plaintiff to begin to address the issue a few months later once he fully understood the nature and extent of the excavation problems, and his remediation options.   Specifically, the first time that the plaintiff was informed that the foundation floor could be raised to conform to the original plans was when Chick Spath informed him at the August meeting..  FN26. The court finds it was reasonable for the plaintiff to proceed with the project once he learned there were excavation problems.   It was also reasonable for the plaintiff to begin to address the issue a few months later once he fully understood the nature and extent of the excavation problems, and his remediation options.   Specifically, the first time that the plaintiff was informed that the foundation floor could be raised to conform to the original plans was when Chick Spath informed him at the August meeting.

FN27. Katchko Construction does not reference any contractual provision, and cites only to a section in a construction law treatise, in support of its cure claim..  FN27. Katchko Construction does not reference any contractual provision, and cites only to a section in a construction law treatise, in support of its cure claim.

FN28. The court denied on the record, with stated reasons, the plaintiff's claims for delay and stigma damages at a hearing on March 20, 2012..  FN28. The court denied on the record, with stated reasons, the plaintiff's claims for delay and stigma damages at a hearing on March 20, 2012.

FN29. Plaintiff's Exhibit 33 is an industry standard form Payment Application.   For purposes of simplicity and the ease of discussion, the court will refer to the numerical item numbers on that exhibit that correspond a work description in awarding damages.   Also, at trial the plaintiff agreed that certain of the items were wholly unrelated to this action and the court will not address those items..  FN29. Plaintiff's Exhibit 33 is an industry standard form Payment Application.   For purposes of simplicity and the ease of discussion, the court will refer to the numerical item numbers on that exhibit that correspond a work description in awarding damages.   Also, at trial the plaintiff agreed that certain of the items were wholly unrelated to this action and the court will not address those items.

FN30. In accordance with the evidence, the court awards to the plaintiff damages for construction management fee paid to Spath in the total amount of $37,500..  FN30. In accordance with the evidence, the court awards to the plaintiff damages for construction management fee paid to Spath in the total amount of $37,500.

FN31. The court does not award the following damages to the extent that the plaintiff failed to prove them by a preponderance of the evidence because the work is generally described and there were no backup documents or other information to more specifically describe the work:  Items 140, 280, 310, 290, 370, 430..  FN31. The court does not award the following damages to the extent that the plaintiff failed to prove them by a preponderance of the evidence because the work is generally described and there were no backup documents or other information to more specifically describe the work:  Items 140, 280, 310, 290, 370, 430.

FN32. In reaching its decision on the breach of contract count, the court wholly disagrees with the defendant's self-serving and legally incorrect damage analysis that was submitted as a schedule in its trial brief..  FN32. In reaching its decision on the breach of contract count, the court wholly disagrees with the defendant's self-serving and legally incorrect damage analysis that was submitted as a schedule in its trial brief.

FN33. The plaintiff acknowledges this in his brief when he states that “[i]n this case, the facts establishing negligence against Katchko also establish a breach of contract and a breach of the covenant of fair dealing.”.  FN33. The plaintiff acknowledges this in his brief when he states that “[i]n this case, the facts establishing negligence against Katchko also establish a breach of contract and a breach of the covenant of fair dealing.”

FN34. Judgment is also rendered in favor of the plaintiff and against UBuildIt on the first count in the amount of $216,972.83.   For the same reasons discussed concerning Katchko Construction's claims, it would be improper for the court to render judgment on the plaintiff's claims against UBuildIt for negligence and breach of covenant of good faith when, under the circumstances of this case, the plaintiff seeks to recover more than once for the same damages.   Finally, judgment is rendered in favor of the plaintiff and against CTX on the ninth count of the complaint and the court awards nominal damages in the amount of one dollar.  Richey v. Stafford, 110 Conn.App. 209, 220, 954 A.2d 889 (2008) (“[C]ase law makes clear that after default by the defendants, the plaintiffs were entitled to at least nominal damages for each adequately pleaded cause of action, not every item of claimed damage”).   See also Goss v. Bella Notte of West Hartford, Inc., 99 Conn.App. 449, 452, 915 A.2d 881 (2007) (“Although the plaintiff must still prove the damages he seeks, ordinary he is entitled to at least nominal damages following an entry of default”).   The court finds that the plaintiff failed to prove his damages against CTX. For the same reasons discussed concerning Katchko Construction's claims, it would be improper for the court to render judgment on the plaintiff's claims against CTX for negligence and breach of covenant of good faith when, under the circumstances of this case, the plaintiff seeks to recover more than once for the same damages..  FN34. Judgment is also rendered in favor of the plaintiff and against UBuildIt on the first count in the amount of $216,972.83.   For the same reasons discussed concerning Katchko Construction's claims, it would be improper for the court to render judgment on the plaintiff's claims against UBuildIt for negligence and breach of covenant of good faith when, under the circumstances of this case, the plaintiff seeks to recover more than once for the same damages.   Finally, judgment is rendered in favor of the plaintiff and against CTX on the ninth count of the complaint and the court awards nominal damages in the amount of one dollar.  Richey v. Stafford, 110 Conn.App. 209, 220, 954 A.2d 889 (2008) (“[C]ase law makes clear that after default by the defendants, the plaintiffs were entitled to at least nominal damages for each adequately pleaded cause of action, not every item of claimed damage”).   See also Goss v. Bella Notte of West Hartford, Inc., 99 Conn.App. 449, 452, 915 A.2d 881 (2007) (“Although the plaintiff must still prove the damages he seeks, ordinary he is entitled to at least nominal damages following an entry of default”).   The court finds that the plaintiff failed to prove his damages against CTX. For the same reasons discussed concerning Katchko Construction's claims, it would be improper for the court to render judgment on the plaintiff's claims against CTX for negligence and breach of covenant of good faith when, under the circumstances of this case, the plaintiff seeks to recover more than once for the same damages.

FN35. In the third and eleventh counts of his complaint, the plaintiff alleges CUTPA violations against UBuildIt and CTX, respectively.   The allegations on their face are insufficient to support such a claim.   The court finds that the count does not set forth an adequately pleaded cause of action or allegations that demonstrate reckless and wanton behavior to entitle the plaintiff to at least a nominal damages award.   Notwithstanding the entry of default, the court does not award damages, nominal or otherwise, to the plaintiff on that count.  Richey v. Stafford, supra, 110 Conn.App. 220..  FN35. In the third and eleventh counts of his complaint, the plaintiff alleges CUTPA violations against UBuildIt and CTX, respectively.   The allegations on their face are insufficient to support such a claim.   The court finds that the count does not set forth an adequately pleaded cause of action or allegations that demonstrate reckless and wanton behavior to entitle the plaintiff to at least a nominal damages award.   Notwithstanding the entry of default, the court does not award damages, nominal or otherwise, to the plaintiff on that count.  Richey v. Stafford, supra, 110 Conn.App. 220.

Tyma, Theodore R., J.