68 LLC v. David Boutry (2013)

MEMORANDUM OF DECISION re PREJUDGMENT REMEDY (# 100.32)

Nature of the Proceeding

This is one of two informally-consolidated cases, arising from a common set of facts, having an origin in a contract for sale of a new home.  (The other matter is 68 Birch Lane Associates, LLC v. Boutry, FST–CV–135014060–S), and a duplicate of this memorandum of decision, with applicable docket number, will be filed in that case, as well.) ¹  Plaintiffs purchased a partially-constructed home from the named defendant, with defendant being contractually obligated to complete the construction.   Disputes arose concerning the quality of the work done and whether certain changes/modifications were properly within the scope of the original contract between the parties.   Each side is seeking a prejudgment remedy against the other.²

Both applications for prejudgment remedies appeared on the special proceedings calendar for June 10, 2013, and hearings continued on June 11, June 20, July 9, July 11 and July 30, 2013.   The parties filed post-hearing briefs on August 30, and reply briefs on September 13, 2013.

Legal Standards

General Statutes § 52–278d authorizes the court to grant a prejudgment remedy application when the court finds that the plaintiff has shown probable cause that a judgment will be rendered in favor of plaintiff in the amount of the prejudgment remedy sought (or in an amount that the court concludes is appropriate), and finds that a prejudgment remedy securing the judgment should be granted.   The court is obligated to take into consideration counterclaims or set-offs asserted by the defendant.

In this context, “probable cause” has been defined as a “bona fide belief in the existence of the facts essential under the law for the action, in as such as would warrant a man of ordinary caution, prudence and judgment under the circumstances in entertaining it.”  TES Franchising, LLC v. Feldman, 286 Conn. 132, 137 (2000).  “Proof of probable cause as a condition of obtaining a prejudgment remedy is not as demanding as proof by a fair preponderance of the evidence.”  CC Cromwell LTD. Partnership v. Adames, 124 Conn.App. 191, 194 (2010) (internal quotation marks, omitted).  “[P]robable cause must be established both as to the merits of the cause of action and the amount of the requested attachment,” CC Cromwell, 124 Conn.App. 196.  “The hearing in probable cause ․ is not contemplated to be a full-scale trial on the merits of the plaintiff's claim.”  Three S. Development Company v. Santore, 193 Conn. 174, 175 (1984).

Discussion

Notwithstanding the last sentence quoted immediately above, the hearing on the prejudgment remedies sought by the parties came close to being a full-scale trial on the merits.   Perhaps out of an excess of caution and fear that they might “miss something,” highly-detailed information concerning construction of the subject house and all claimed problems thereafter was provided.

Before getting to specifics of the case, some broad-brush observations seem appropriate.   Each side is seeking a prejudgment remedy against the other, and since a probable cause determination does not require a preponderance of the evidence, it is at least theoretically possible that both sides could prove probable cause given a less-than-preponderance standard.   However, the general rule is that in evaluating an application for prejudgment remedy, a determination of the probabilities of outcome is supposed to take into account any possible counterclaims and setoffs.   Although these are two separate cases, the court believes that the proper approach is to “net” probable cause determinations such that the ultimate result will be, at most, a prejudgment remedy in favor of one side against the other side.  (In light of the nature of the claims involved, claims relating to JAA Advisors will be treated separately.)

The court recognizes that the positions taken by litigants sometimes can be oversimplified to the extent that they become caricatures of reality.   Despite each side's efforts to demonize the other, the court believes that, based on the evidence presented, neither side acted particularly egregiously while the project was underway.   Plaintiffs cannot be faulted for trying to take advantage of the fact that market conditions had changed, creating a situation heavily skewed in favor of prospective buyers, as long as they did not abuse their advantageous position.   Defendant, on the other hand, found itself in an untenable economic situation, resulting from the economic downturn that started around 2007, and while it may generally have tried to act reasonably, its general lack of leverage probably made it more likely to perceive plaintiffs' conduct as exploitative than might have been the case were its circumstances not so dire.³

Once the litigation process got underway, it appears that both sides adopted extreme positions, to the extent that the court is tempted to take an “a pox on both your houses” approach and deny all requests for prejudgment remedies.   The apparent irrationality of positions taken is perhaps best exemplified by the fact that under the contract between the parties, there was a per diem charge relating to delayed closing on the sale.   Despite an agreement at the closing roughly halving the penalty chargeable to defendants, both sides now are claiming that that seemingly-resolved item should be revisited, with plaintiffs claiming entitlement to the full penalty and defendant claiming that there should have been no penalty (and perhaps that it should be receiving an award based on delay caused by plaintiffs).   No one has articulated a valid reason why that agreement should be undone yet both sides seem to be acting as if the court were dealing with a blank slate on the issue.

The parties have identified metaphorically countless issues, and the court believes that the best approach is to address, initially, some of the issues that are clearer or need minimal analysis, before going into those that are a bit more complicated.

Defendants contest Mr. Aiello's personal liability as a guarantor of warranties under paragraph 40 of the contract.   The court believes it likely that defendants will not prevail on that contention, as a necessary consequence of their argument is that a portion of the contract is effectively meaningless.   If Mr. Aiello were not assuming a personal liability when he signed the agreement as guarantor, then the focus of paragraph 40 must have been on his corporate principal.   It makes no sense, however, for a corporate entity to guarantee that which it already is obligated to do under the warranties sought to be guaranteed.   Conversely, why would plaintiffs (or anyone) ask for such a provision if it in fact provided no additional assurances of performance?   In a colloquial sense, the purpose of a guarantee is to have a third party providing assurances, as a backup, to the obligations of a party to the agreement;  a party guaranteeing its own performance is and can be of no practical value, precisely because it provides no “backup” to the contractual obligation being guaranteed.   Accordingly, the court believes there is probable cause that Mr. Aiello will be found to have guaranteed, in a personal sense, the warranties set forth in the contract between the Boutrys and 68 Birch Lane Associates.

The court does not find there to be probable cause that the plaintiffs will prevail on their CUTPA claims.

“With the exception of [a case being overruled], we never have suggested that such CUTPA claims are barred if the plaintiff suffered only an economic loss and the loss arose solely from the breach of the contract.   Rather, our focus in such cases has been on whether the defendant's breach of contract was merely negligent or incompetent, in which case the CUTPA claim was barred, or whether the defendant's actions would support a finding of intentional, reckless, unethical or unscrupulous conduct, in which case the contractual breach will support a CUTPA claim under the second prong of the cigarette rule ․ As we have indicated, this court repeatedly has recognized that CUTPA was intended to provide a remedy that is separate and distinct from the remedies provided by contract law when the defendant's contractual breach was accompanied by aggravating circumstances.”

Ulbrich v. Groth, 310 Conn. 375, 410–11 (2013) (citations and footnotes, omitted).⁴

The court does not find that plaintiffs have established probable cause that they will be able to prove sufficiently aggravating conduct on the part of defendant, to justify a claim under CUTPA—that defendant's conduct was “intentional, reckless, unethical or unscrupulous.”  (Uncertainty as to the proper standard, and whether the threshold may be made more difficult if the cigarette rule is abandoned, only adds to the difficulty in establishing probable cause.   See footnote 4.)

On at least two occasions (pp. 13–14 of initial memorandum), plaintiffs state that the breach of warranties at issue constitute “per se” violations of CUTPA.   The court could find nothing in the authorities cited by plaintiffs (or elsewhere) that support such a “per se” characterization.   In some instances, a statute may provide that a failure to comply with the requirements of the statute is a per se violation of CUTPA—typically, a vendor of services or products who does not have the required license, or a vendor's contract for goods or services that does not contain statutorily-required provisions (e.g. notice of cancellation).   Here, however, the issue is performance of warranties that are present—it is not a question of whether statutorily-required warranties were provided but rather whether they reasonably were honored.   Authorities stating that breaches of warranty could constitute violations of CUTPA (under appropriate circumstances) do not address the premise of “per se” violations, and in the absence of a “per se” characterization, the court does not perceive probable cause to exist as to CUTPA violations.

Plaintiffs claim that a chimney servicing fireplaces on one side of the house needs to be replaced.   Defendant disputes that there is adequate proof of a malfunction.   Given the modest threshold for establishing probable cause, the court finds that plaintiffs have established probable cause that “liability” for that claim exists—that there is a problem.   More troubling is the claimed cost of remediation.

The court does not recall any claimed definitive diagnosis as to the nature of the problem with the chimney, despite the fact that the hearing on plaintiffs' application for a prejudgment remedy took place years after the problem first was identified.   Absent a plausible rationale for the need to tear down the entire chimney and rebuild it from scratch—no specific cause for the problem has yet been identified—the court cannot find probable cause to exist that such a major undertaking satisfies even a probable cause standard.   To frame it differently:  assuming that defendant probably has a warranty or other obligation to correct the problem, there is an inadequate basis for the court to determine that probable cause exists that the proper remedy is removal and replacement of the entire chimney.

Plaintiffs claim that the court should “pierce the corporate veil” so as to hold Mr. Aiello legally responsible for the conduct of the corporate defendant(s).

Courts will ․ disregard the fiction of a separate legal entity to pierce the shield of immunity afforded by the corporate structure in a situation in which the corporate entity has been so controlled and dominated that justice requires liability to be imposed on the real actor ․ We have affirmed judgments disregarding the corporate entity and imposing individual stockholder liability when a corporation is a mere instrumentality or agent of another corporation or individual owning all or most of its stock ․

The concept of piercing the corporate veil is equitable in nature ․ No hard and fast rule, however, as to the conditions under which the entity may be disregarded can be stated as they vary according to the circumstances of each case ․ Ordinarily the corporate veil is pierced only under exceptional circumstances, for example, where the corporation is a mere shell, serving no legitimate purpose, and used primarily as an intermediary to perpetuate fraud or promote injustice ․ The improper use of the corporate form is the key to the inquiry, as [i]t is true that courts will disregard legal fictions, including that of a separate corporate entity, when they are used for fraudulent or illegal purposes.   Unless something of the kind is proven, however, to do so is to act in opposition to the public policy of the state as expressed in legislation concerning the formation and regulation of corporations.

Our courts have concluded that the corporate veil may be pierced if either the instrumentality rule or the identity rule is satisfied ․ The instrumentality rule requires, in any case but an express agency, proof of three elements:  (1) Control, not mere majority or complete stock control, but complete domination, not only of finances but of policy and business practice in respect to the transaction attacked so that the corporate entity as to this transaction had at the time no separate mind, will or existence of its own;  (2) that such control must have been used by the defendant to commit fraud or wrong, to perpetrate the violation of a statutory or other positive legal duty, or a dishonest or unjust act in contravention of [the] plaintiff's legal rights;  and (3) that the aforesaid control and breach of duty must proximately cause the injury or unjust loss complained of ․

The identity rule has been stated as follows:  If [the] plaintiff can show that there was such a unity of interest and ownership that the independence of the corporations had in effect ceased or had never begun, an adherence to the fiction of separate identity would serve only to defeat justice and equity by permitting the economic entity to escape liability arising out of an operation conducted by one corporation for the benefit of the whole enterprise.   Atelier Constantin Popescu v. JC Corporation, 134 Conn.App. 731, 759–60 (2012).

(Citations and internal quotation marks omitted.)

Piercing the corporate veil is not intended to be a “gotcha” with respect to any and every possible departure from adherence to the formalities of a separate corporate existence.   The record, as presented to the court, indicates a general adherence to corporate formalities, with perhaps occasional slips.   Mr. Aiello made it clear that while he had a management role with respect to the LLC, and essentially was the only member who did have an active management role, he was accountable to the other members and regularly consulted with them.   The court does not give any weight, for purposes of this issue, to the fact that Mr. Aiello was involved with a number of entities that all operated out of common facilities/offices.   The closest there was to a “flagrant” failure to adhere to separate corporate existences was when JAA Advisors became involved, in a formal sense, with respect to certain work on the project—especially, the wine cellar.   Although the wine cellar is not a trivial aspect of the dispute in absolute terms, it is relatively trivial in terms of percentages—the overall contract was in excess of $6 million and the work relating to the wine cellar at issue is but a few tens of thousands of dollars.   The court does not find there to be probable cause for this claim.⁵

Plaintiffs are claiming that the cost of services rendered by Mr. Pecora should be included as part of their recoverable damages.   Mr. Pecora was hired by plaintiffs to assist them, and the court has been unable to find anything in any agreement between the parties that did or might make the defendant responsible for plaintiffs' decision to obtain the services of someone to act as their representative with respect to completion of construction.⁶  There was testimony indicating that at the very end of the construction project, immediately before the closing, Mr. Pecora actually did some work to expedite the final stages of construction, and to that limited extent, there is a claim that the court is prepared to entertain.   The court's recollection is that defendant's position was that it had paid Mr. Pecora for those services, and there was inadequate proof to the contrary.   To parse the matter appropriately:  plaintiffs have not established probable cause as to the likelihood of their recovery in connection with services rendered by Mr. Pecora prior to the last week or so preceding the closing;  acknowledging that it is hotly disputed, there is sufficient evidence to constitute probable cause with respect to the existence of work done for defendant in the last week or two prior to the closing, but inadequate proof as to whether any amount attributable to that limited claim is outstanding.

As noted earlier, plaintiffs also seek, as damages, the portion of the “penalty” for late completion of the house, which by agreement had been waived or excused or deemed unwarranted.  (The manner in which it is characterized is less important than the fact that there was an agreement that such money was not due plaintiffs.)   Plaintiffs have not articulated a basis on which that would be a proper element of damages.   Unlike their other claims where they assert that defendants failed to perform obligations under the contract (or failed to perform them properly), this is a claim asking the court to undo mutual compliance with a negotiated settlement of a disputed amount due.   It appears that in making the claim, plaintiffs (perhaps unintentionally) are asking the court to reform the agreement between the parties, or rescind part of the agreement between the parties, without explicitly making such a request (or justifying such a request).   Absent a possibly valid basis on which the court might order such a payment, the court cannot find there to be probable cause that plaintiffs will recover in this respect.  (See, also, footnote 6.)

As to the balance of plaintiff's claims, although hotly disputed by defendant, there is probable cause with respect to deficiencies in performance as identified by plaintiffs.   The court will not and need not go through each claimed deficiency (e.g. whether installation of an additional, or relocation of an expected, light switch or outlet was encompassed by contractual obligations or was properly considered an extra charge), but instead will consider claims in the aggregate and with the low “probable cause” threshold in mind.   Items two through six on the list of claims reproduced on page 3 of their initial memorandum total approximately $84,600.   Although the court has rejected the amount associated with item number seven (complete reconstruction of the chimney), there is probable cause that there is a problem in need of remediation and the court will attempt to strike a balance between the likelihood that some work will be required and the lack of evidence of a reasonable cost to repair that the court believes it can accept.

To the extent that the court recognizes that it cannot just pull numbers out of the air, the court will adopt a modified game theory “expectancy” approach.   There is a low (but not a priori trivial) possibility/probability that a thorough evaluation might disclose that the chimney does, in fact, need to be replaced.   If one assigns a 10% likelihood of that outcome, then the expectancy with respect to cost would be approximately $15,000.   There is, of course, a higher probability that a lower cost solution would be sufficient, but the court's figure allows for that, as well.

Rounding off the sum of these two figures ($99,600), the court believes that plaintiffs are entitled to security in the amount of $100,000, less any offsets for claims being asserted by defendant.

The court also has reviewed the claims asserted by defendants, both from the perspective of affirmative claims that might warrant an attachment and from the perspective of potential offsets to any remedy that might be afforded to plaintiffs.   The court rejects the claim, at least for purposes of this proceeding, that duress is involved, in that defendants have not established probable cause to believe that they will prevail on such a contention.   Defendants rely on the Appellate Court decision in Traystman, Coric & Keremidas v. Daigle, 84 Conn.App. 843, 846–48 (2004), but the distinctions between that case and the situation at hand are sufficiently material to make that case of little value.

While the general concept of duress is generally discussed in Traystman, defendants fail to note an important distinction between that case and the more general universe of cases involving claims of duress.

In effect, the court articulated what is close to being (if not actually constituting) a presumption in cases involving attorneys that a threat of withdrawal is inherently voidable.   There are no facts in the case at bar that would invoke such a heavy thumb on the scale, in favor of voidability.   In addition, as part of its general statement of law, the court stated that “where a party insists on a contractual provision ․ that he honestly believes he is entitled to receive, unless that belief is without any reasonable basis, his conduct is not wrongful and does not constitute duress or coercion under Connecticut law ․” Parties with unequal bargaining positions often enter into contracts, and the insistence by the party with greater leverage that there be strict compliance with the terms of the contract, in and of itself does not constitute duress.   In extreme cases, duress—or more likely, unconscionability (DDS Wireless International, Inc. v. Nutmeg Leasing, Inc., 145 Conn.App. 520, 525 (2013))—might come into play, but the court does not find that to be probable, here.

The court also is not satisfied that there is any materiality associated with the claimed breach by plaintiffs of the provisions relating to frequency of on-site meetings during construction, at this stage of the proceedings.   The court can appreciate the desire of defendants not to have Mr. or Mrs. Boutry on-site with greater frequency than set forth in the agreement, due to the fear of (and in practice, perception of) interference.   Upon full trial on the merits, defendants may be able to establish damages flowing from that alleged breach, but for the purpose of prejudgment remedy proceedings, the court believes that the alleged breaches of this requirement provide a context for more specific claims being asserted by defendants, e.g. the reason some subcontractors allegedly did more work than was required under the contract was because of directions received from Mrs. Boutry, rather than constituting the basis for an independent claim.

The court does not believe that that can or does translate into probable cause of a recovery or greater recovery than otherwise would be the case.   In a sense, this is related to the discussion in the last paragraph discussing duress—defendants were not in a position to insist on strict compliance with this provision, an unavoidable consequence of a transaction occurring in a “buyer's market.”

As mentioned earlier in connection with the claims by plaintiffs, the court is not inclined to accept the invitation to go through every detailed claim of defendants, including claims relating to additional or moved light switches and outlets.

The parties established a punch list—not simply a punchlist at the end of the project, but one that essentially was a running list of problems and claimed problems during the project.   At the closing, a presumed final punchlist was established as was a punchlist escrow, to provide money for correction of punchlist items (Pl.Ex. 2).   Approximately $3,500 was indicated as remaining in that punchlist escrow which has not been released to defendant.   There is probable cause that defendant will recover $3,500 in that regard.

Defendant has submitted a summary of its claims (Def.Ex. U), reflecting cost overruns defendant claims are attributable to plaintiffs.   Much earlier in this memorandum, the court addressed the efforts by both sides retroactively to change agreements reached (with specific focus on the delay penalty), and that is a flaw that permeates the claims set forth in exhibit U. The court already has rejected defendants' claim of duress, yet much/most of the claims set forth in that exhibit implicitly are premised on duress as vitiating tacit or explicit agreements to do the work or absorb the cost.   The court also rejects, for purposes of the prejudgment remedy proceeding, the premise that the amounts originally budgeted for various line items are appropriate benchmarks, with actual cost overruns, adjusted by a subjectively-determined percentage, reflecting amounts “chargeable” to plaintiffs.

The court accepts that a small percentage of the actual finishing detail work required is likely to exceed costs that properly were the responsibility of defendant.   Defendant claims that approximately $225,000 of costs, attributable to finish carpentry, interior trim, and painting, are attributable to plaintiffs.   The court concludes that, based on evidence presented, there is a likelihood that defendant will be able to prove a small percentage of that claim and to that extent, the court will allow $10,000 as an offset.   The court concludes that the remainder of Def. Ex. U either is not established or is inadequately established to such an extent as to preclude any prejudgment remedy award or credit.

There is one claim being asserted by defendant JAA, and that relates to the contract for the wine cellar (Pl.Ex. 17).   Approximately half of the $34,500 price has been paid and $17,500 has not been paid.   Allowing for the existence of some claimed deficiencies in the wine cellar, as asserted by the plaintiffs, JAA is entitled to an attachment in the amount of $12,500.⁷

Summary

Plaintiffs are entitled to a prejudgment remedy in the amount of $100,000, against defendants 68 Birch Lane Associates and Aiello.   That is offset by $13,500 in probable recovery by defendants, resulting in a net prejudgment remedy, in favor of plaintiffs, in the amount of $86,500.

Defendant JAA Advisors, LLC is entitled to a prejudgment remedy against plaintiffs in the amount of $12,500.

POVODATOR, J.

FOOTNOTES

FN1. The application for prejudgment remedy in FST–CV–135014050–S also is designated entry # 100.32. This is the duplicate memorandum, with the names reversed and the appropriate docket number.   As this is a duplicate (other than the caption and this footnote, all on the first page), references to plaintiffs and defendants remain as in FST–CV–135014050–S..  FN1. The application for prejudgment remedy in FST–CV–135014050–S also is designated entry # 100.32. This is the duplicate memorandum, with the names reversed and the appropriate docket number.   As this is a duplicate (other than the caption and this footnote, all on the first page), references to plaintiffs and defendants remain as in FST–CV–135014050–S.

FN2. There is a limited degree of asymmetry as to parties.   Mr. and Mrs. Boutry are plaintiffs in this case and defendants in the other case.   68 Birch Lane Associates, LLC and JAA Advisors, LLC are defendants in this action and plaintiffs in the other case.   Mr. Aiello is a defendant in this case but not a party to the other case.   For purposes of this decision, “plaintiffs” will refer to Mr. and Mrs. Boutry, and “defendant” will refer to 68 Birch Lane Associates, LLC (unless otherwise specified)..  FN2. There is a limited degree of asymmetry as to parties.   Mr. and Mrs. Boutry are plaintiffs in this case and defendants in the other case.   68 Birch Lane Associates, LLC and JAA Advisors, LLC are defendants in this action and plaintiffs in the other case.   Mr. Aiello is a defendant in this case but not a party to the other case.   For purposes of this decision, “plaintiffs” will refer to Mr. and Mrs. Boutry, and “defendant” will refer to 68 Birch Lane Associates, LLC (unless otherwise specified).

FN3. Somewhat inconsistently, Mr. Boutry testified that he did not know of defendants' financial difficulties until shortly before the closing, but he also testified that plaintiffs had agreed to allow defendant to use the deposit that had been paid, prior to the closing (instead of held in escrow), so that defendant would not have to borrow money to continue with the work..  FN3. Somewhat inconsistently, Mr. Boutry testified that he did not know of defendants' financial difficulties until shortly before the closing, but he also testified that plaintiffs had agreed to allow defendant to use the deposit that had been paid, prior to the closing (instead of held in escrow), so that defendant would not have to borrow money to continue with the work.

FN4. But see, State v. Acordia, Inc., 310 Conn. 1, 29 n.8 (2013), recognizing but not addressing issue of whether “cigarette rule” is or should be still applicable under CUTPA.   The issue also was recognized but not addressed on the merits in Ulbrich, 310 Conn. 422–29..  FN4. But see, State v. Acordia, Inc., 310 Conn. 1, 29 n.8 (2013), recognizing but not addressing issue of whether “cigarette rule” is or should be still applicable under CUTPA.   The issue also was recognized but not addressed on the merits in Ulbrich, 310 Conn. 422–29.

FN5. It should be noted that pursuant to the court's interpretation of ¶ 40 of the contract, whereby the court found probable cause that Mr. Aiello personally guaranteed contract warranties, plaintiffs are afforded most of the practical relief they would obtain under a piercing the corporate veil scenario..  FN5. It should be noted that pursuant to the court's interpretation of ¶ 40 of the contract, whereby the court found probable cause that Mr. Aiello personally guaranteed contract warranties, plaintiffs are afforded most of the practical relief they would obtain under a piercing the corporate veil scenario.

FN6. This situation is highlighted by plaintiffs' own discussion of the warranty claims in its initial memorandum of law.   In footnotes 3 and 4, plaintiffs indicate that the damages under the breach of warranty claims are essentially the same as under the breach of contract claims.   Payment for Mr. Pecora's assistance clearly does not fit within the “pigeonhole” of a warranty claim.   While in theory, breach of contract claims might include but not be limited to warranty claims, plaintiffs do not attempt to make any such distinction in any discussion in their brief.  (The court is not relying upon this overlap, but rather point it out as confirmatory in nature with respect to the claims being advanced by plaintiffs.).  FN6. This situation is highlighted by plaintiffs' own discussion of the warranty claims in its initial memorandum of law.   In footnotes 3 and 4, plaintiffs indicate that the damages under the breach of warranty claims are essentially the same as under the breach of contract claims.   Payment for Mr. Pecora's assistance clearly does not fit within the “pigeonhole” of a warranty claim.   While in theory, breach of contract claims might include but not be limited to warranty claims, plaintiffs do not attempt to make any such distinction in any discussion in their brief.  (The court is not relying upon this overlap, but rather point it out as confirmatory in nature with respect to the claims being advanced by plaintiffs.)

FN7. Plaintiffs offered evidence that they had to pay over $6,000 for corrective work, and implicitly if not explicitly acknowledged that about $11,000 remained outstanding..  FN7. Plaintiffs offered evidence that they had to pay over $6,000 for corrective work, and implicitly if not explicitly acknowledged that about $11,000 remained outstanding.

Povodator, Kenneth B., J.