John Morgillo v. Empire Paving, Inc. (2014)

MEMORANDUM OF DECISION

This is a breach of contract and negligence action arising from the “swapping” of services between the parties.   The Plaintiff asserts his claim in a four-count amended complaint dated October 4, 2011.   In its answer the Defendant denies the bulk of the allegations and asserts a special defense.

The court has weighed all the evidence and assessed the testimony and credibility of the witnesses and reaches the conclusions set forth herein by a fair preponderance of the evidence.

THE PLEADINGS

“The admission of the truth of an allegation [in a] pleading is a judicial admission conclusive on the pleader.”  Jones Destruction, Inc. v. Upjohn, 161 Conn. 191, 199 (1971).  “An admission in pleading dispenses with proof, and is equivalent to proof.”  (Citation omitted.)  Patchen v. Delohery Hat Co., 82 Conn. 592, 594 (1909).

STANDARD OF PROOF

The standard of proof in civil actions, a fair preponderance of the evidence, is “properly defined as the better evidence, the evidence having the greater weight, the more convincing force in your mind.”  (Internal quotation marks omitted.)  Cross v. Huttenlocher, 185 Conn. 390, 394 (1981).

BURDEN OF PROOF

“While the plaintiff is entitled to every favorable inference that may be legitimately drawn from the evidence, and has the same right to submit a weak case as a strong one, the plaintiff must still sustain the burden of proof on the contested issues in the complaint and the defendant need not present any evidence to contradict it.”  Lukas v. New Haven, 184 Conn. 205, 211 (1981).   The general burden of proof in civil actions is on the plaintiff, who must prove all the essential elements of their cause of action by a fair preponderance of the evidence.  Gulycz v. Stop & Shop, 29 Conn.App. 519, 523, cert. denied, 224 Conn. 923 (1982).   Failure to do so results in judgment for the defendant.  Id. “[W]hat is necessarily implied [in an allegation] need not be expressly alleged.”  Pamela B. v. Ment, 244 Conn. 296, 308 (1998).

SPECIAL DEFENSES

“[A] special defense is not an independent action;  rather, it is an attempt to plead facts that are consistent with the allegations of the complaint to demonstrate, nonetheless, that the plaintiff has no cause of action.”   (Internal quotation marks omitted.)  Valentine v. LaBow, 95 Conn.App. 436, 447 n.10 (2005), cert. denied, 280 Conn. 933 (2006).   The defendants have the burden of proving the allegations in their special defenses by a fair preponderance of the evidence.   Lodovico v. Mihalcik, superior court, judicial district of Hartford at Hartford, Docket No. CV–07–50130991 (August 17, 2010, Rittenband, J.T.R.).

THE PROCEEDINGS

“The fact-finding function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of the circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties.”  (Internal quotation marks omitted.)  Cavoli v. DeSimone, 88 Conn.App. 638, 646, cert. denied, 274 Conn. 906 (2005).  “It is well established that in cases tried before courts, trial judges are the sole arbiters of the credibility of witnesses and it is they who determine the weight to be given specific testimony ․ it is the quintessential function of the factfinder to reject or accept certain evidence ․” (Citations omitted;  internal quotation marks omitted.)  In re Antonio M., 56 Conn.App. 534, 540 (2000).  “The sifting and weighing of evidence is peculiarly the function of the trier [of fact].”  Smith v. Smith, 183 Conn. 121, 123 (1981).   “[N]othing in our law is more elementary than that the trier [of fact] is the final judge of the credibility of witnesses and of the weight to be accorded to the testimony.”  (Citation omitted;  internal quotation marks omitted.)   Toffolon v. Avon, 173 Conn. 525, 530 (1977).  “The trier is free to accept or reject, in whole or in part, the testimony offered by either party.”   Smith v. Smith, supra, 183 Conn. 123.  “Then determination of credibility as a function of the trial court.”  Heritage Square, LLC, v. Eoanou, 61 Conn.App. 320, 333 (2001).

CREDIBILITY

It is well established that “[i]t is within the province of the trial court, when sitting as the factfinder, to weigh the evidence presented and determine the credibility and effect to be given the evidence ․ Credibility must be assessed ․ not by reading the cold printed record, but by observing firsthand the witness' conduct, demeanor and attitude ․ An appellate court must defer to the trier of fact's assessment of credibility because [i]t is the [factfinder] ․ [who has] an opportunity to observe the demeanor of the witnesses and the parties:  thus [the factfinder] is best able to judge the credibility of the witnesses and to draw necessary inferences therefrom.”   (Internal quotation marks omitted.)  State v. Lawrence, 282 Conn. 141, 155, 920 A.2d 236 (2007) (See also Dadio v. Dadio, 123 Conn. 88, 92–93, 192 A.2d 557 (1937)).   Such observation may include all genuine and spontaneous reactions of the witness in the courtroom, whether or not on the stand, but only to the extent that they bear on the witness's credibility.  State v. McLaughlin, 126 Conn. 257, 264–65, 10 A.2d 758 (1939).   It is generally inappropriate for the trier [of fact] to assess the witness's credibility without having watched the witness testify under oath.  Shelton v. Statewide Grievance Committee, 277 Conn, 99, 111, 890 A.2d 104 (2006).

DISCUSSION

Breach of Contract

The Plaintiff argues that the Defendant owes the Plaintiff under a theory of breach of contract.  “The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages.”  (Internal quotation marks omitted.)  Chiulli v. Zola, 97 Conn.App. 699, 706–07, 905 A.2d 1236 (2006).  “An ‘agreement’ is [t]he union of two or more minds in a thing done or to be done;  a coming together of parties in opinion or determination ․” (Internal quotation marks omitted.)  Viera v. Cohen, 283 Conn. 412, 429, 927 A.2d 843 (2007).

“The rules governing contract formation are well settled.   To form a valid and binding agreement contract in Connecticut, there must be a mutual understanding of the terms that are definite and certain between the parties ․ to constitute an offer and acceptance sufficient to create an enforceable contract, each must be found to be based on an identical understanding by the parties.”  Duplissie v. Devino, 96 Conn.App. 673, 688, cert. denied, 280 Conn. 916 (2006).   Mutual assent presents a question of fact.  M.J. Daly & Sons, Inc. v. West Haven, 66 Conn.App. 41, 48, cert. denied, 258 Conn. 944 (2001).   Mutual assent is based on the parties written or spoken words or by other acts.  Precision Mechanical Services, Inc v. Shelton Yacht & Cabana Club, Inc., 97 Conn.App. 258, 263, cert. denied, 280 Conn. 928 (2006).

“It is [well] established ․ that parties are free to contract for whatever terms on which they may agree.   This freedom includes the right to contract for the assumption of known or unknown hazards and risks that may arise as a consequence of the execution of the contract.”  (Internal quotation marks omitted.)  Scoville v. Shop–Rite Supermarkets, Inc., 86 Conn.App. 426, 431, 863 A.2d 211 (2004), cert. denied, 272 Conn. 921, 867 A.2d 838 (2005).  “If there was a meeting of the minds of the parties, without fraud or unfair conduct on either side, the contract must stand, although subsequent events may show that either party made a bad bargain ․” (Internal quotation marks omitted.)  Ross v. Koenig, 129 Conn. 403, 406–07, 28 A.2d 875 (1942).

‘Whether there was a breach of contract is ordinarily a question of fact ․ We review the court's findings of fact under the clearly erroneous standard ․ The trial court's findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole ․ We cannot retry the facts or pass on the credibility of the witnesses ․ A finding of fact is clearly erroneous when there is no evidence in the record to support it ․ or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed ․” (Citation omitted;  internal quotation marks omlttecf) Colliers Dow & Condon, Inc. v. Schwartz, 77 Conn.App. 462, 471–72, 823 A.2d 438 (2003).

Subsequent Contract Alteration

“Parties may alter any term of an existing contract by entering into a subsequent contract.   The contract as modified becomes a new contract between the parties.”  (Citation omitted;  internal quotation marks omitted.)   Spicer v. Spicer, 33 Conn.App. 152, 159, 634 A.2d 902 (1993), cert. denied, 228 Conn. 920, 636 A.2d 850 (1994).  “The meaning to be given subsequent agreements ․ depends on the intention of the parties.   As intention is an inference of fact, the conclusion is not reviewable unless it was one which the trier could not reasonably make.”  (Internal quotation marks omitted.)   Harris Calorific Sales Co. v. Manifold Systems, Inc., 18 Conn.App. 559, 564, 559 A.2d 241 (1989).

Settlement Agreements

A settlement agreement, or an accord, is a contract among the parties.   Ackerman v. Sobol Family Partnership, LLP, 298 Conn. 495, 532 (2010).  “An accord is a contract under which an oblige promises to accept a stated performance in satisfaction of the obligor's existing duty.   Performance of the accord discharges the original duty ․ [but] if there is a breach of the accord, the obligee has the option of either seeking enforcement of the original duty or seeking enforcement of the obligation under the accord.”   Audubon Parking Authority Ltd. Partnership v. Barclay & Stubbs, Inc., 225 Conn. 804, 809 (1993).

NEGLIGENCE

Negligence is the violation of a legal duty which one person owes to another.  Phaneuf v. Berselli, 119 Conn.App. 330, 336, 988 A.2d 344 (2010).   Common-law negligence is the failure to use reasonable care under the circumstances.   Reasonable care is the care that a reasonably prudent person would use in the same circumstances.  Hoelter v. Mohawk Services, Inc., 170 Conn. 495, 501 (1976).   A duty to use care exists when a reasonable person, knowing what the defendant either knew or should have known at the time of the challenged conduct, would foresee that harm of the same general nature as that which occurred here was likely to result from that conduct.  Coburn v. Lenox Homes, Inc., 186 Conn. 370, 375 (1982);  Pisel v. Stamford Hospital, 180 Conn. 314, 332–33 (1980);  Orlo v. Connecticut Co., 128 Conn. 231, 237 (1941).   In order to recover money damages, the plaintiff must prove that he suffered an actual injury.  Right v. Breen, 277 Conn. 364, 377 (2006).

DAMAGES–GENERALLY

It is fundamental in our law that “the right of a plaintiff to recover is limited by the allegations of the complaint ․ and any judgment should conform to the pleadings, the issues and the prayers for relief.”  (Internal quotation marks omitted.)  Journal Publishing Co. v. Hartford Courant Co., 261 Conn. 673, 686, 804 A.2d 823 (2002).

“[T]he nonbreaching party may recover only for damages that are direct[ly] and proximate[ly] caused by a defendant's breach ․ causation is an element—and a crucial one—of the plaintiff's prima facie case ․” (Citation omitted;  internal quotation marks omitted.)  McCann Real Equities Series XXII, LLC v. David McDermott Chevrolet, Inc., 93 Conn.App. 486, 503–04, 890 A.2d 140 (2006).  “Damages are recoverable only to the extent that the evidence affords a sufficient basis for estimating their amount in money with reasonable certainty.”  (Internal quotation marks omitted.)  Cas Construction Company v. Town of East Hartford, 82 Conn.App. 543, 556 (2004).

FINDINGS OF FACT

1. The Plaintiff owned residential property at 8 Cooke Road, Wallingford, Connecticut;

2. In June 2005, the parties agreed that the Plaintiff would reclaim and repave the driveway at the Plaintiff's home at the aforementioned residence at a cost of $27,475.20;

3. In June 2005, the Defendant performed certain work on the driveway at the Plaintiff's residence;

4. Shortly after the Defendant completed the driveway work, the driveway evidenced structural problems, including cracked, broken and depressed areas of pavement;

5. As a result of the observed driveway issues, the Plaintiff, in 2007, brought suit against the Defendant in the instant matter at Counts One and Two;

6. In the course of litigation, the parties, in 2009, entered into an oral agreement to settle this matter;

7. The settlement agreement called for the repair of the driveway by the Defendant after certain actions by the Plaintiff regarding the resetting of “Belgian Blocks” along the edge of the driveway;

8. In May 2010 the Defendant performed repair and resurface work in an attempt to remedy the driveway issues in satisfaction of the oral agreement;

9. A short period of time after the work was done, the Plaintiff again began to notice problems in the “chip sealed” driveway surface, including soft areas, depressions, pools of tar and bare spots;

10. The aforementioned problems failed to resolve, even over the course of several months, resulting in the addition of Counts Three and Four in the Amended Complaint;

11. The Defendant asserts that the Plaintiff's insistence on the presence of Belgian Blocks along the edging of the driveway and the Plaintiff's faulty setting and subsequent re-setting of those blocks, was the cause of the water infiltration that lead to the erosion of the driveway subsurface and driveway collapse in various sections;

12. The Court credits the testimony of the Plaintiff's expert witness, Christopher Bowker, as to his observations upon his inspection of the subject driveway in 2011;

13. The Court also credits Mr. Bowker's expert testimony in the areas of Hot Mix Asphalt and Chip Sealing, as well as his opinion and finds that the Defendant's driveway installation was not done in accordance with industry standards and resulted in, among other problems, excessive scuffing, tire marks, settling, cracks and pot holes;

14. The Court also credits the testimony of Mr. Bowker that the presence of the Belgian Blocks (described in his testimony as “cobblestones”) were not the cause of the water infiltration issues as their presence would be no different from grass berms as it relates to water channels along the driveway edges;

15. The Court further credits Mr. Bowker's testimony that a properly installed chip-sealed driveway would not need maintenance for approximately eight to ten years;

16. Additionally, the Court credits Mr. Bowker's testimony that the driveway needs to be replaced or “milled off” and resurfaced in order to be properly reclaimed and repaired;

17. The Court credits the testimony of the Plaintiff's expert witness Larry Wild in the area of asphalt driveway construction;

18. The Court credits Mr. Wild's testimony as to his observations upon his examination of the Plaintiff's driveway in 2009, including high spots, depressions, cracks and broken areas of blacktop driveway;

19. The Court credits Mr. Wild's testimony that the Defendant's work was not done in accordance with the contract in that the blacktop was not two inches thick and that six-inch “process” was not used in the construction of the driveway;

20. Mr. Wild opined that the Plaintiff's driveway was undermined by water penetrating the blacktop and washing away the base underneath, causing cracks and depressions;

21. Mr. Wild recommended the existing driveway be ground down, used as a base and paved over to create a new driveway;

22. The Court credits Mr. Wild's testimony and opinions and finds reasonable his estimate of $36,550.00 to repair and replace the Plaintiff's existing driveway.

RULING

The Court finds, based on the above findings of fact, that the Defendant breached the settlement agreement by his negligent repair and replacement of the Plaintiff's driveway in 2009.   The Court further finds that the Defendant's initial repair and replacement of the Plaintiff's driveway in 2005 was negligent and a breach of the original contract in the ways previously specified in this decision.   The Court finds that, despite the testimony of Mr. Tucker, the Defendant has failed to prove its special defense by a fair preponderance of the evidence.

Accordingly, the Court finds for the Plaintiff on all four counts of the Amended Complaint and further finds damages in the amount of $36,550.00 plus costs to be determined in a bill of costs.

By the Court

Hon. Vernon D. Oliver

Oliver, Vernon D., J.