Charles G. Lacombe, Sr. v. LLC (2013)

MEMORANDUM OF DECISION AFTER COURT TRIAL

I. Nature of the Proceedings

This breach of contract action arises out of the dispute between the owner of a lake house and a building contractor retained by the owner to demolish and rebuild the entire interior of the dwelling.   In order to resolve the dispute, this court, in effect, must determine, who owes how much to whom as a result of the alleged breach of the parties' agreement, each claiming that the other did not fulfill his or its contractual obligations.

The plaintiff, Charles Lacombe, Sr., is the owner of a summer and weekend house on Highland Lake, located at 166 East Wakefield Blvd., Winchester (Winsted), Connecticut.   The defendant, Closson Building, LLC, is a Connecticut limited liability corporation, the sole member of which is Matthew Closson, having its principal place of business at 609 East Wakefield Blvd. in the same community.¹  Pursuant to a detailed (thirteen pages) agreement negotiated between the parties over a period of several days and executed on March 10, 2011, the defendant agreed to, in effect, “gut” the entire interior of the plaintiff's lake house, reconstruct the interior, including the basement, and add an outside deck to the existing one-floor dwelling.   The estimated cost of the entire project was $110,000, to be paid in installments, based upon the completion of specified phases of the project.   See Plaintiff's Exhibit # 1.

Shortly after the agreement was signed, the defendant commenced the demolition/reconstruction work, however, the completion of the project was substantially delayed, resulting in a dispute between the parties that reached an impasse in September 2011, when the defendant abandoned the project after having been paid $84,500 by the plaintiff and after completing a substantial portion of the work.   The plaintiff subsequently retained his own subcontractors in order to complete the reconstruction project.   The parties ultimately sought the assistance of the court in order to resolve their dispute.

As will hereinafter be described in detail, each party has offered an explanation as to the manner in which the other breached their contract.   The plaintiff insists that the work progressed too slowly, prompting him to withhold or delay the installment payments provided in the contract.   The defendant insists that the plaintiff's refusal to make the requisite installment payments when due, was the cause of the delay as it became increasingly difficult for him to pay the subcontractors and to purchase those construction materials necessary to complete the job.   Additionally, the defendant asserts that several significant changes to the project that were requested by the plaintiff's son, while the plaintiff was vacationing in Florida, resulted in substantial delays in the progress made by the defendant.

II. History of the Proceedings

Formal action was first initiated by the defendant, when, on December 1, 2011, he filed a mechanic's lien on the subject real property which he recorded at Vol. 403, Page 904 of the Winchester Land Records.   On December 20, 2011, the plaintiff responded by serving the defendant with a four-count complaint dated December 16, 2011, returnable to this court on January 24, 2012.   As noted, the fourth count, the sole count brought against the individual defendant, was withdrawn by the plaintiff at the commencement of trial.   The first count alleged that the defendant LLC breached the parties' demolition/reconstruction contract in several respects, not the least of which was the alleged failure to complete the project within the ninety-day completion date provided in the contract, despite the plaintiff having paid the defendant $84,500.   In addition, the plaintiff alleged that the defendant failed to complete portions of the project paid for by him;  ceased paying subcontractors who then stopped their work;  failed to purchase the proper supplies and materials and failed to perform portions of the project in a workmanlike manner.   The plaintiff claimed that in order to complete the project in a manner required by the parties' agreement, he was compelled to hire subcontractors, some of whom were previously retained by the defendant, and to pay them money for items previously paid to the defendant.   The plaintiff seeks damages in the amount of $16,660.55, representing the net amount allegedly paid by the plaintiff for the labor and materials necessary to complete the project.

In the second count of his complaint, the plaintiff alleged that the defendant violated Connecticut's Home Improvement Act (General Statutes Section 20–429 et. seq.) in that the contract did not contain the requisite cancellation clause and lacked a completion date.   In the third count, the plaintiff asserted that the defendant violated Connecticut's Unfair Trade Practices Act (General Statutes Section 42–110a et seq.), commonly known as CUTPA, due, not only to the alleged violations of the home improvement act, but due also to the defendant's alleged misrepresentation that he, i.e., his LLC, was an experienced builder.²

On April 26, 2012, the defendant, as a self-represented litigant, filed an Answer (# 103) that addressed each of the plaintiff's claims in a narrative form.³  To summarize and paraphrase, the defendants' response, Closson asserted that he was “the sole owner” of the LLC and was duly licensed as a home improvement contractor by the department of consumer protection, having completed “countless home renovation projects.”   The defendant further claimed that it was the plaintiff who breached the contract by failing to make “timely” and/or by making “incomplete” payments.   The defendant inserted a table depicting the due dates and payment dates of each installment.   The defendant alleged “on multiple occasions, “I” was compelled to stop the work due to the late payments.   He claimed that the LLC was owed money for, inter alia, the kitchen cabinets and decking materials and that the project was also delayed by many extras requested by the plaintiff and the plaintiff's untimely selection of materials.   Further, the defendant insisted that all of the work performed by the LLC was completed in a skillful and workmanlike manner and that, while Closson was on the job, he did not receive one complaint from the plaintiff that the work was unsatisfactory.   The defendant denied the plaintiff's claim that plaintiff paid the electrical and plumbing subcontractors retained by the defendant to work on the project.   Although the defendant's answer contained responses to the second, third and fourth counts of the plaintiff's complaint, as noted, the court is concerned with the first count only.

On December 11, 2012, the defendant filed an Amended Counterclaim (# 120) consisting of three counts.   In the first count the defendant sought a judgment of foreclosure relative to the mechanic's lien filed against the real property that is the subject of this action.⁴  In the second count, the defendant alleged that the plaintiff breached the demolition/reconstruction contract by failing to make timely payments, which hampered the defendant's ability to buy materials and to pay the subcontractors.   The defendant claims that there is a balance due to him from the plaintiff for labor and materials in the amount of $19,689.   The third count is essentially part of the defendant's prayers for relief in that the defendant asks the court, pursuant to General Statutes Section 37–3a, to award postjudgment interest.⁵

On March 20, 2013, the plaintiff filed his Answer and Special Defense To Defendant's Amended Counterclaim (# 126), however, the special defense relates only to the claimed violations of the Home Improvement Act and CUTPA which, as noted, are no longer issues the court needs to consider.   In order to close of pleadings, on July 17, 2013, the defendant filed its Reply (# 127) to the plaintiff's now irrelevant special defense.

The trial was held over portions of five days, commencing May 8, 2013, and ending with oral argument on July 22, 2013.   In addition to the plaintiff and Closson, the court heard from three witnesses:  Charles G. Lacombe, Jr., who supervised the project while the plaintiff spent six weeks in Florida;  Nicholas Seiser, who was the plumbing subcontractor initially retained by the defendant and later by the plaintiff;  and William Freer, who was the carpenter who completed the project for the plaintiff.   The court received into evidence seventy exhibits, sixty-four of which were offered by the plaintiff and six tendered by the defendant.   In addition to a multitude of photographs, the exhibits included building contracts, canceled checks, municipal permits, invoices and receipts for materials and supplies, correspondence, spreadsheets and subpoenas.   Personal notes taken by the court during the trial comprised forty-four written pages.

The court, after reviewing the file, thoroughly examining the exhibits, considering the testimony of each of the witnesses and assessing their credibility, and giving due consideration to the arguments of counsel, for reasons hereinafter set forth, finds in favor of the defendant on the plaintiff's complaint and finds in favor of the plaintiff on the defendant's counterclaim because neither party sustained his or its burden of proof.   Simply put, the court finds that the evidence is equally balanced or in equipoise.

III. The Parties' Agreement

As noted, the parties negotiated the “Agreement Between Owner and Contractor” during several sessions, affixing their signatures thereto on March 10, 2011.   The agreement (Plaintiff's # 1) is comprised of five parts.   The portion apparently prepared by the defendant consists of the basic eighteen-paragraph remodeling agreement, a description of what is included in the proposal (Schedule A), a payment schedule (Schedule B) and a provision for plumbing and electrical allowances.   The plaintiff, his son and his daughter added a three-page document entitled, “RENOVATIONS HIGHLAND LAKE Rev. # 3,” that provides for, in intricate detail, the specific room by room description of the work that the defendant was required to perform and the fixtures and materials the LLC was required to obtain and install.   Included therein is a provision mandating that the defendant credit the plaintiff with “any and all” rebates made available to the contractor by product suppliers.   A sketch of the project was also included as part of the contract.

The court will address certain provisions of the agreement that are relevant and were therefore helpful to the court in arriving at its decision.   It was anticipated that the defendant would commence the work “on or about” March 15, 2011, and finish the job “approximately 90 days [there] after” (Par # 2), at “the contract sum of $110,000 ESTIMATE ․” (Par # 3.)   The plaintiff represented that he had the financial resources in place with which to finance the project, i.e., to make the timely installment payments required by the agreement, and that the plaintiff's choices and options would not delay the defendant in the performance of its work.  (Par # 4.) ⁶  Paragraph # 7 excused the defendant from any delays due to “unforeseen causes” and any delay occasioned by extra work requested by the plaintiff.   Moreover, all such extra work was to be agreed to by the parties “in writing” before said work was to commence.  (Par # 10.)   As to any so-called “allowances,” if the cost of any item or items exceeded that anticipated by the agreement, the plaintiff was to reimburse the defendant for the additional cost.  (Par # 11.)

Paragraph # 13 entitled, “Completion:” provides:  Owner shall have the right to inspect the property during the construction, but shall, in no way, delay or interfere with the Contractor's performance of its work.   Upon completion and notification by Contractor to Owner that the house is completed and ready for occupancy, Owner and Contractor shall have a walk-through inspection to ensure that the Contractor has complied with this agreement.   If there are substantial defects or items incomplete identified at such inspection, the last payment and occupancy will be postponed until such items are completed or remedied.   If there are minor items to be completed, which are identified at the inspection, occupancy shall be granted, the last payment shall be made, and the contractor will attempt with all due diligence to complete said items.   Failure to complete said items prior to the occupancy and final payment will not be considered a cause for delay, nor a basis for holding back monies in the form of an escrow.”   Emphasis added.

Paragraph # 14 provides for alternative remedies available to the plaintiff in the event of a default by the defendant while Paragraph # 15 provides for alternative remedies available to the defendant if the plaintiff fails to fulfill his contractual obligations.   Each provision gives the other the option to terminate the agreement if he or it “shall fail to perform any of the obligations and duties” provided therein.   Emphasis added.   It is noteworthy that the defendant, after the impasse was reached, inserted onto Schedule B, payment dates, check numbers and amounts reflecting the undisputed total sum of $84,500 paid by the plaintiff to the defendant before the defendant abandoned the project in September 2011.

IV. Applicable Law

Although the court's decision in resolving the parties' dispute is largely based upon the testimonial, photographic and documentary evidence submitted during the trial and the credibility of each of the witnesses who testified, it is useful to mention some basic principles of contract law in light of each party's claim that the other breached the demolition/reconstruction contract.   In order to form a binding contract, there must be a meeting of the minds at the time the contract was entered into.   That is, the parties must agree that they have, in fact, entered into a contract and must have similar understanding as to the essential terms thereof.  Bridgeport Pipe Engineering Co. v. DeMatteo Construction Co., 159 Conn. 242, 249 (1970).  “A contract must be construed to effectuate the intent of the parties, which is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction.   The intent of the parties is to be ascertained by a fair and reasonable construction of the written words and the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the writing.   Where the language of the writing is clear and unambiguous, the writing is to be given effect according to its terms.   A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity.   Similarly, any ambiguity in a written instrument must emanate from the language used in the writing rather than from one party's subjective perception of the terms.   If a contract is unambiguous within its four corners, the determination of what the parties intended by their contractual commitments is a question of law.   When the language of a contract is ambiguous, however, the determination of the parties' intent is a question of fact.”  (Citations omitted;  internal quotation marks and brackets omitted).  Murtha v. City of Hartford, 303 Conn. 1, 7–8 (2011).   When a portion of the parties' contract is in standardized form and a portion is specifically negotiated by the parties, such as in the instant case, the negotiated or added terms are generally favored over terms that are part of the standard form.   Restatement (Second) of Contracts, Section 203(d).

In this case, the court is unaware of any dispute as to the meaning of any specific terms in the contract, with the possible exception of the parties' disagreement as to whether the defendant was obligated to insulate the basement.   That disagreement, however, stems more from the omission of certain terms from the contract rather than the interpretation of the terms provided therein.⁷  Under contract law, it is axiomatic that unless and until the court finds that a contract has been breached by a party against whom a claim of breach of contract is asserted, the court cannot award damages to the claimant.   Simply put, in order to be successful in a cause of action based upon a breach of contract, a claimant must prove, by a fair preponderance of the credible evidence, that (1) a contract existed between the parties, (2) the claimant performed his/her/its obligations under the contract, (3) the contract was breached by the other party, (4) resulting in the claimant suffering measurable damages as a consequence of said breach.   It goes without saying that these basic principles of contract law are just as applicable to the defendant's counterclaim as they are to the plaintiff's complaint.

V. The Plaintiff's Claim

The plaintiff's goal, as evidenced by his testimony and that of his son, as well as the provisions of the parties' contract, was to demolish and gut the entire interior of the dwelling, reconstruct that interior and have the job completed by July 4, 2011, within 90 days of the execution of the contract.   The house consisted of a ground-level floor with three bedrooms and two baths and a basement.   The demolition portion of the project required, in addition to gutting the interior, the removal of the existing chimneys, oil tank and side porch.   The reconstruction phase included a complete remaking of the interior of the dwelling, including ceilings and walls;  insulating and sheet-rocking the walls;  painting the ceilings and walls;  installing new bathroom fixtures;  and upgrading all of the wiring and plumbing in preparation for the installation of, inter alia, a 200–amp service, a brand-new kitchen, and a bath and shower upstairs and a shower downstairs.   The side porch was to be reconstructed and a deck, facing the lake, was to be built in the so-called “front” of the dwelling.

The defendant was to be paid the estimated contract price of $110,000 in nine installments, each payment being due after a specified phase of the project was completed.

Specifically, the phases or what the parties referred to as the “Steps” are provided in Schedule B as follows:

1. Upon contract signing $12,500

2. Upon completion of demo, start of framing $12,000 ⁸

3. Upon start of electrical, heating and plumbing $12,000

4. Upon all rough in inspections $12,000

5. Upon completion of installation, start of sheet rock $12,000

6. Upon start of painting, completion of sheet rock $12,000

7. Upon completion of painting, start of flooring $12,000

8. Upon completion of kitchen and flooring $12,000

9. On completion of deck, project and C.O. $13,500

$110,000

It should be noted that none of the steps was accompanied by a targeted completion date.

The plaintiff claims that the defendant fell behind at each and every step in that Closson failed to complete the portion of the work required for each step, but, nevertheless, demanded the payment that was due upon said completion.   The plaintiff's response, after full payment was made for Steps # 1 thru # 3, was to delay one-half of the payment due and demand that the defendant complete certain portions of the project prior to receiving the rest.   Although the plaintiff testified, in general, that the defendant failed to fully complete every step from Step # 2 thru Step # 7, the plaintiff's son was more specific.   According to Lacombe, Jr., the removal of the chimney and oil tank, required to complete Step # 2, remained to be done at the time that the defendant abandoned the project in September 2011.   Although Step # 4 required rough inspections (electrical and plumbing), the plaintiff and his son testified that by the time the defendant demanded payment for Step # 5, the new furnace, the electrical wiring for it and the gas line had not been installed.   As to Step # 5, the plaintiff claimed that the basement was not insulated and sheet rocked, although, those portions of the project were apparently completed on the ground floor.   The plaintiff made the payments, although staggered and belated, for Step # 3 thru # 7, the final payment having been made on July 20, 2011, however, there were significant portions of the project that were not completed despite the plaintiff having paid the defendant a total of $84,500.

By letter dated June 13, 2011, prior to paying the first half of the payment due for Step # 7, the plaintiff provided the defendant with a punch list and a completion deadline, threatening to charge the defendant $200 for each day beyond the unilaterally imposed deadline.   The plaintiff demanded that the defendant complete all the finished plumbing and electrical wiring, install a gas line, remove the oil tank, finish the deck and stairway and complete the basement, and to do so on or before June 28, 2011.   See Plaintiff's Exhibit # 121.   The plaintiff claims that despite having paid the defendant the payment due for the completion of step seven (Plaintiff's # 12), many items remained to be done.   The plaintiff introduced sixteen photographs, each depicting the work remaining when the defendant abandoned the job after the parties met in early September in an unsuccessful attempt to resolve their differences.   According to the plaintiff, neither the deck nor the side porch were built;  the gas line to the new furnace was not installed;  the basement was not insulated or sheet rocked;  and there was no shower installed or tile laid in the master bathroom.   The plaintiff contends that the job was only 65% completed, yet, the defendant was paid 77% of the contract price.   At the September meeting, the plaintiff refused to make any further payments until the project was fully completed.   Moreover, the plaintiff refused Closson's request that the plaintiff, at the very least, pay the sums due to the subcontractors, so that they can be encouraged to come back to the site.   Having failed to resolve their dispute at the September meeting, Closson never returned to the project, leaving the plaintiff to make other arrangements in order to complete it.

The plaintiff's son, who then assumed the task of completing the job, prepared an accounting of the costs incurred for labor and materials (Plaintiff's Exhibits # 92–113) and a spreadsheet (Plaintiff's Exhibit # 119) of the plaintiff's out of pocket expenses both before and after the defendant abandoned the project.   The plaintiff claims an expenditure of $9,380 for supplies and $32,772 for labor, a total of $42,160.55.   When that total is added to the $84,500 paid to the defendant, it brings the total cost of the project to $126,660, or $16,660.55 in excess of the estimated contract price.   As noted, that is the amount that the plaintiff seeks to recover from the defendant as a result of the defendant's alleged breach of the demolition/reconstruction contract.

VI. The Defendant's Counterclaim

Closson asserts that the reason he started to fall behind in his progress in accomplishing the various steps was largely due to the daily visits to the site by the plaintiff's son, and the many changes in the project demanded by his son while the plaintiff was vacationing in Florida.   There is no disagreement between the parties that those project changes included the construction of the cathedral ceiling and a re-framing of the walls in the master bedroom, a change in the size of the windows facing the lake, a re-framing of the fireplace and the addition of a so-called “micro lam beam” in the basement.   According to Closson, those changes, coupled with the daily demands made by the plaintiff's son significantly impeded the defendant's progress even though Closson insists that he was working at the lake house daily.   The defendant points out that the problem only escalated once the plaintiff and his son started to delay and to stagger the payments, as the defendant relied on timely payments to pay the subcontractors and to purchase the required materials.

During his testimony, Closson addressed each step in the project, asserting that the payment for Step # 3 was two weeks late, the payment for Step # 4 was three weeks overdue and the payment for Step # 5 was not received until one month after the due date.   As to Step # 6, that payment was two weeks late while the second installment of Step # 7 was five weeks late.   The defendant claims that the withholding the payments was unjustified and not permitted by the parties' contract.   Closson pointed out that, despite the interference and demands of the plaintiff son, the job was progressing and he was substantially compliant with each step of the project.   Furthermore, neither the plaintiff nor his son voiced any complaints as to the quality of the work performed by Closson or the subcontractors.

As to Step # 7, the defendant asserts that as of June 13, 2011, the painting had been done and the flooring was started as required by Step # 7 of the contract, yet, on June 21, 2011, the defendant received only one-half of the payment that was due.   Despite not receiving the full $12,000 that was due at that time, Closson asserts that he continued to work on the project by framing the deck and installing the flooring, doors and window trim.   The defendant claims that, as to the basement, which required the installation of new wiring and a gas line, he was, as noted, instructed by the plaintiff's son to concentrate on the deck (Step # 9), and to defer the completion of the basement work until the end of the project.

As to the failed meeting in September 2011, that caused the defendant to leave the job, Closson insists that, without receipt of the payment due for Step # 8, he was unable to pay the subcontractors, including the plumber, who was owed $6,000 for the work already done, and lacked the funds with which to purchase the materials and supplies necessary for completion.   The defendant claims that, as of the September meeting, in addition to the $12,000 to for Step # 8, he was owed $7,689 for materials by the defendant that were necessitated by the changes to the project that the plaintiff son had ordered.   The defendant, therefore, seeks to recover $19,689 from the plaintiff, which is the amount of the mechanic's lien his LLC lodged against the subject real property.   See Defendant's Exhibit D.

VII. Discussion

The burden of proof is on the plaintiff to prove all of the essential allegations of his complaint.  Lukas v. New Haven, 184 Conn. 205, 211 (1981).   Naturally, the defendant has the same burden of proof with respect to its counterclaim.   In an ordinary civil case such as this one, a party satisfies his/her/its burden of proof if the evidence, considered fairly and impartially, induces in the mind of the trier a reasonable belief that it is more probable than not that the fact or the particular issue under consideration is true.  Busker v. United Illuminating Company, 156 Conn. 456, 458 (1968).   It is not necessary that the proof negate all other possibilities or that it reach that degree of certainty such as to exclude every other reasonable conclusion.  Terminal Taxi Co. v. Flynn, 156 Conn. 313, 318 (1968).   When the evidence is equally balanced, or in equipoise, then the proponent has not met his/her/its burden of proof.  Brodie v. Connecticut Co., 87 Conn. 363, 364 (1913).   Also see Oviatt v. Wassong, LLI–CV–09–5006991, judicial district of Litchfield at Litchfield, (June 12, 2012, Pickard, J.) “The only fact-finding efforts that actually turn on the allocation of the burden of proof are those in which the fact finder, after weighing the evidence, finds its mind in perfect equipoise ․ In such a rare case, the allocation of the burden of persuasion to the party asserting the truth of the proposition at issue means that that party cannot prevail.”   (Internal quotation marks and citations omitted;  emphasis added.)  Braffman v. Bank of America Corp., 297 Conn. 501, 522 (2010).

After hearing the testimony of each of the witnesses, the court commenced its deliberations by reviewing and then outlining those portions of each witness's testimony thought to be relevant and material to the allegations in the complaint and in the counterclaim.   Next, the court reviewed all of the documents and photographs submitted as full exhibits during the trial.   The court then copied, highlighted and took notes of those exhibits that appeared to support each party's claim.⁹  The final step in this deliberative process was to painstakingly study the salient portions of the testimonial evidence and those exhibits that the court identified as being most supportive of each party's position.   After studying the testimonial, documentary and photographic evidence, and considering the oral arguments of counsel, the court came to the admittedly rare conclusion that neither party had satisfied his or its burden of proof because the evidence was in perfect equipoise.

In the court's view, the most important exhibit in this case was the meticulously negotiated “Agreement Between Owner and Contractor” (Plaintiff's # 1), dated March 10, 2011.   Earlier in this memorandum the court addressed several provisions of the parties' contract that it deemed to be significant and helpful in reaching its decision.   The court notes that the agreement was entered into between two parties.   The plaintiff, Charles Lacombe, Sr., was identified as the “Owner.”   The defendant, Closson Building, LLC, was referred to as the “Contractor.”   Lacombe, Sr. affixed his signature to the document while Matthew Closson signed the document as the sole member of the LLC. Paragraph # 18 of the document, provided that the contract, including its various attachments, constituted the “entire and only agreement between the parties.”   Lacombe, Jr. is neither mentioned in the agreement, nor is there any authority granted to him therein to act on behalf of the owner.   Although the plaintiff's son believed he was the “eyes and ears” of his father while the latter was vacationing in Florida, the agreement gave the son no authority to alter any portion of the demolition/reconstruction project.   The court does not recall any testimony that the son was given the authority by the plaintiff to demand the changes to the project as depicted in the contract.   Despite the lack of such authority, the defendant apparently complied with all of the son's directives and now claims that the extra work demanded by Lacombe, Jr. impeded the defendant's ability to timely complete the various steps.   The contract, however, provided the solution.   Paragraph # 10 mandated that “any changes or extras must be agreed to in writing by both parties.”   The provision also envisioned that the price of any extras or changes would be agreed to prior to the commencement of any work that was not contemplated by the contract.   Neither party adhered to this provision, which resulted in the defendant consistently falling behind, which prompted the plaintiff to withhold or defer the required payments, thereby causing the defendant to fall even further behind, etc., etc., etc.   This scenario clearly led to the impasse reached in September 2011, and, ultimately, to the present action.

The contract did not permit the plaintiff to withhold or stagger the payments due for each step, a fact that was conceded by the plaintiff during his testimony.   The contract did, however, provide the plaintiff with a pathway to ensure that the defendant conform to the terms and the schedule agreed to.   Paragraph # 14 gave the plaintiff the right to send a written demand to the defendant that the defendant bring the job, i.e., the schedule, into compliance within twenty days.   The defendant's failure to do so gave the plaintiff the right to stop the work.   The plaintiff had no right under the contract to unilaterally threaten or to impose a penalty of $200 per day.   The plaintiff did not follow that procedure and instead chose to withhold and stagger the payments, an option not provided for in the agreement.   Moreover, Paragraph # 13 of the contract did permit the plaintiff to withhold the final payment in the event of “substantial defects” or, in the alternative, create an escrow account to ensure full compliance.

The court finds that each party was equally responsible for his or its failure to fulfill the contractual obligations owed to the other.   The plaintiff, despite having the financial capability of doing so, did not live up to his written commitment to make timely payments and permitted his son to make significant changes to the project during his daily visits, which further hampered the defendant's progress.   During his testimony, the plaintiff opined that the changes to the project made by his son would extend it, “at the most by two days.”   The court cannot recall Closson challenging that assertion, however, if the project was extended for four days or even six days by the son's changes, double or triple the plaintiff's estimate, such an extension does not provide a sufficient explanation for the defendant's consistent failure to complete the tasks required for each step.   Although Closson insists that he was working at the site each and every day, that claim is negated by the credible testimony of Seiser, the plumber chosen by the defendant as a subcontractor on the job.   Seiser testified that although he was in and out of the lake house during June 2011, “half the time, no one was there!”

Whether the defendant's lack of daily commitment to the project was prompted by the plaintiff's failure to make timely payments or whether the plaintiff's failure to make the required payments was due to the defendant's failure to diligently complete each of the required steps or phases of the project, is the core issue in the parties' dispute.   In this court's view, neither party has proven by a fair preponderance of the credible evidence that the other was more culpable in his or its failure to live up to the contractual obligations.   As noted, had the parties followed the contractual provisions that they so meticulously negotiated, the dispute over the defendant's slow progress and the plaintiff's refusal to make timely payments could have been resolved at the earlier stages of the project when a meeting of the minds on the issues could have and should have been achieved.   Instead, the parties allowed the problems to fester and to escalate until the impasse was reached in September 2011, that resulted in the end of their relationship.   The court finds each of the parties equally to blame for the circumstances that caused the defendant to file its mechanic's lien that, in turn, generated the plaintiff's complaint and the defendant's counterclaim.

VIII. Conclusion and Order

For the foregoing reasons, the evidence having been found to be in perfect equipoise, the court finds in favor of the defendant on the plaintiff's complaint and in favor of the plaintiff on the defendant's counterclaim.   In light of that finding, the defendant is ORDERED to, on or before November 15, 2013, provide the plaintiff with a release of its mechanic's lien that is recorded at Volume 403, Page 904 of the Winchester land records.

Judgment may enter accordingly, without costs to either party.

Wilson J. Trombley, Judge

FOOTNOTES

FN1. It appears that there was an attempt made by the defendant to compel the plaintiff's spouse, Carolyn Lacombe, a co-owner of the lake house, to become a party to this action, however, apparently, service was not affected.   The court will, therefore, refer to Charles G. Lacombe, Sr. as the sole plaintiff in this case.   Matthew Closson was named an additional defendant in the fourth count (breach of contract) of the plaintiff's complaint.   That count, however, was withdrawn by the plaintiff at the commencement of the trial.   The court will, therefore, refer to the LLC as the sole defendant..  FN1. It appears that there was an attempt made by the defendant to compel the plaintiff's spouse, Carolyn Lacombe, a co-owner of the lake house, to become a party to this action, however, apparently, service was not affected.   The court will, therefore, refer to Charles G. Lacombe, Sr. as the sole plaintiff in this case.   Matthew Closson was named an additional defendant in the fourth count (breach of contract) of the plaintiff's complaint.   That count, however, was withdrawn by the plaintiff at the commencement of the trial.   The court will, therefore, refer to the LLC as the sole defendant.

FN2. On July 22, 2013, after the completion of oral argument, the court reminded counsel that it would require briefs on the second and third counts of the plaintiff's complaint that would address, in particular, the testimonial and/or documentary evidence that supports the elements of each of the causes of action alleged in the second and third counts.   One week after the court established a briefing schedule, the plaintiff's counsel, not unexpectedly, sent an E-mail to the court informing the court and defense counsel that the plaintiff was “not intending to pursue” his home improvement or CUTPA claims.   As a result, neither party submitted a brief on any issue in the case.   Thus, the only remaining count in the plaintiff's complaint that the court must consider and resolve is the first count that alleges that the defendant LLC breached the demolition/reconstruction contract entered into by the parties..  FN2. On July 22, 2013, after the completion of oral argument, the court reminded counsel that it would require briefs on the second and third counts of the plaintiff's complaint that would address, in particular, the testimonial and/or documentary evidence that supports the elements of each of the causes of action alleged in the second and third counts.   One week after the court established a briefing schedule, the plaintiff's counsel, not unexpectedly, sent an E-mail to the court informing the court and defense counsel that the plaintiff was “not intending to pursue” his home improvement or CUTPA claims.   As a result, neither party submitted a brief on any issue in the case.   Thus, the only remaining count in the plaintiff's complaint that the court must consider and resolve is the first count that alleges that the defendant LLC breached the demolition/reconstruction contract entered into by the parties.

FN3. On October 9, 2012, counsel filed an appearance for the LLC and Matthew Closson.   Counsel did not, however, seek an amendment to the answer filed by his clients while they were unrepresented..  FN3. On October 9, 2012, counsel filed an appearance for the LLC and Matthew Closson.   Counsel did not, however, seek an amendment to the answer filed by his clients while they were unrepresented.

FN4. At the commencement of the trial, the parties agreed to defer any action on this count until after the court resolves the core dispute:  Who owes how much to whom?   This cause of action would become moot in the event the court ruled in favor of the plaintiff, a ruling which would be accompanied by an order that the defendant release the mechanic's lien forthwith..  FN4. At the commencement of the trial, the parties agreed to defer any action on this count until after the court resolves the core dispute:  Who owes how much to whom?   This cause of action would become moot in the event the court ruled in favor of the plaintiff, a ruling which would be accompanied by an order that the defendant release the mechanic's lien forthwith.

FN5. Subparagraph (a) of the statute, in pertinent part, provides:  Except as provided in sections 37–3b, 37–3c and 52–192a, interest at the rate of ten per cent a year, and no more, may be recovered and allowed in civil actions ․ as damages for the detention of money after it becomes payable.  “Although the determination as to whether prejudgment interest under § 37–3a should be awarded may depend on whether the detention of money is wrongful, the allowance of interest as an element of damages is ․ primarily an equitable determination and a matter lying within the discretion of the trial court.”  Town of Stratford v. A. Secondino and Son, Inc., 133 Conn.App. 737, 750, cert. denied, 304 Conn. 918 (2012).  (Emphasis included;  internal quotation marks omitted.)   See also DiLieto v. County Obstetrics and Gynecology Group, PC, 110 Conn. 38, 52, n.13 (2013)..  FN5. Subparagraph (a) of the statute, in pertinent part, provides:  Except as provided in sections 37–3b, 37–3c and 52–192a, interest at the rate of ten per cent a year, and no more, may be recovered and allowed in civil actions ․ as damages for the detention of money after it becomes payable.  “Although the determination as to whether prejudgment interest under § 37–3a should be awarded may depend on whether the detention of money is wrongful, the allowance of interest as an element of damages is ․ primarily an equitable determination and a matter lying within the discretion of the trial court.”  Town of Stratford v. A. Secondino and Son, Inc., 133 Conn.App. 737, 750, cert. denied, 304 Conn. 918 (2012).  (Emphasis included;  internal quotation marks omitted.)   See also DiLieto v. County Obstetrics and Gynecology Group, PC, 110 Conn. 38, 52, n.13 (2013).

FN6. In this regard, the plaintiff testified that he owned a local manufacturing company for the past twenty-five years and had purchased the three-bedroom lake house in February 2011 for $383,000 via $300,000 cash and an $83,000 mortgage..  FN6. In this regard, the plaintiff testified that he owned a local manufacturing company for the past twenty-five years and had purchased the three-bedroom lake house in February 2011 for $383,000 via $300,000 cash and an $83,000 mortgage.

FN7. With regard to the scope of the defendant's responsibility in completing the basement, the plaintiff insisted that the parties' contract required that the defendant replace the existing insulation with new installation.   The plaintiff conceded that there is no specific language in the contract imposing such a requirement upon the defendant, however, the plaintiff asserts that those portions of the contract, requiring two zones of heating, i.e., one on the ground floor and the other in the basement, and a requirement that all construction be in accordance with state and local building codes, clearly mandate that the basement portion of the project required insulation.   The defendant's explanation was that at the time they entered into their contract both of the parties presumed that the existing basement insulation would suffice.   When, however, it was determined, presumably, by local authorities, that new insulation would be required, the parties were unable to resolve the issue.   The defendant, therefore, as directed by the plaintiff's son, proceeded to address other portions of the project..  FN7. With regard to the scope of the defendant's responsibility in completing the basement, the plaintiff insisted that the parties' contract required that the defendant replace the existing insulation with new installation.   The plaintiff conceded that there is no specific language in the contract imposing such a requirement upon the defendant, however, the plaintiff asserts that those portions of the contract, requiring two zones of heating, i.e., one on the ground floor and the other in the basement, and a requirement that all construction be in accordance with state and local building codes, clearly mandate that the basement portion of the project required insulation.   The defendant's explanation was that at the time they entered into their contract both of the parties presumed that the existing basement insulation would suffice.   When, however, it was determined, presumably, by local authorities, that new insulation would be required, the parties were unable to resolve the issue.   The defendant, therefore, as directed by the plaintiff's son, proceeded to address other portions of the project.

FN8. The plaintiff testified that on March 21, 2011, he “mistakenly” paid the defendant $500 more than the $12,000 that was then due.   See Plaintiff's Exhibit # 3..  FN8. The plaintiff testified that on March 21, 2011, he “mistakenly” paid the defendant $500 more than the $12,000 that was then due.   See Plaintiff's Exhibit # 3.

FN9. With regard to the plaintiff's claim, in addition to the contract and payment schedule, the court paid particular attention to Plaintiff's # 19 (a portion of Defendant's C, the Winsted building inspector's file), Plaintiff's # 21 (letter from the plaintiff to the defendant), the photographs (16), and Plaintiff's # 119 (the spreadsheet accounting).In analyzing the evidence from the defendant's perspective, the court was particularly interested in Defendant's C (the entire file from the building office) and Defendant's D (the damage calculation).As noted, in arriving at its decision, the court carefully reviewed all seventy exhibits presented during the trial..  FN9. With regard to the plaintiff's claim, in addition to the contract and payment schedule, the court paid particular attention to Plaintiff's # 19 (a portion of Defendant's C, the Winsted building inspector's file), Plaintiff's # 21 (letter from the plaintiff to the defendant), the photographs (16), and Plaintiff's # 119 (the spreadsheet accounting).In analyzing the evidence from the defendant's perspective, the court was particularly interested in Defendant's C (the entire file from the building office) and Defendant's D (the damage calculation).As noted, in arriving at its decision, the court carefully reviewed all seventy exhibits presented during the trial.

Trombley, Wilson J., J.