Centimark v. Vill. Manor Assoc. Ltd. P'Ship

• Decision Date: 07 April 2009
• Docket Number: No. 29012.,29012.
• Court: Connecticut Court of Appeals
• Parties: CENTIMARK CORPORATION v. VILLAGE MANOR ASSOCIATES LIMITED PARTNERSHIP.

967 A.2d 550

113 Conn.App. 509

CENTIMARK CORPORATION v. VILLAGE MANOR ASSOCIATES LIMITED PARTNERSHIP.

No. 29012.

Appellate Court of Connecticut.

Argued September 26, 2008.

Decided April 7, 2009.

Dominic Fulco III, Hartford, for the appellant-appellee (named defendant).

Martin A. Clayman, with whom, on the brief, was Michael Hafkin, Bloomfield, for the appellee-appellant (plaintiff).

Harold R. Cummings, South Windsor, with whom was Doreen Amata, for the appellee (third party defendant M. Dzen Roofing Company, Inc.).

GRUENDEL, HARPER and BEACH, Js.

BEACH, J.

The plaintiff, Centimark Corporation (Centimark), commenced this action against the defendant, Village Manor Associates, Limited Partnership (Village Manor), seeking, inter alia, to foreclose a mechanic's lien that it had placed on Village Manor's real property after Village Manor had failed to pay Centimark for services rendered in installing a roof. Village Manor, alleging problems with the roof, filed a counterclaim against Centimark. Centimark, as a counterclaim defendant, impleaded M. Dzen Roofing Company, Inc. (Dzen), the roofing company that installed a portion of the roof pursuant to a subcontract agreement between it and Centimark. The trial court found in favor of Village Manor on all counts of its counterclaim and in favor of Centimark on its third party complaint. Centimark appealed from the judgment of the trial court, and Village Manor cross appealed. On appeal, Centimark claims that the court improperly (1) found in favor of Village Manor on Village Manor's claims of negligent misrepresentation, fraudulent misrepresentation, breach of contract and a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., and (2) assessed damages on certain counts of Village Manor's counterclaim. With respect to its third party complaint against Dzen, Centimark claims that the court improperly determined its indemnification damages. On cross appeal, Village Manor claims that the court improperly concluded that it cannot recover its expert witness fees pursuant to the CUTPA count. With respect to Centimark's appeal, we affirm the award of damages on Village Manor's counterclaim. With respect to Centimark's claims regarding its third party complaint, we reverse the judgment of the court with respect to the amount of damages and remand the case for a determination as to the amount of attorney's fees to be awarded. We disagree with Village Manor's claim on its cross appeal.

The following facts, as found by the court, and procedural history are relevant to our resolution of these appeals. Village Manor owns a facility in Plainfield, which it leases to Village Manor Health Care, Inc. (Village Manor Health Care). In 2001, Carter Rodowicz, vice president of Village Manor Health Care, who was acting as a representative of Village Manor, asked Barry Slotnick, administrator of Village Manor Health Care, to compile bids from roofing companies to construct a new roof on the nursing facility. In response to the request for bids, Michael Rzempoluch, a project manager for Centimark, prepared a proposal that included providing materials, installing a second layer of shingles on the pitched portions of the roof and installing a second layer of materials on the flat portion of the roof. Centimark does not itself install pitched roofs, and, prior to submitting his proposal to Village Manor, Rzempoluch contacted Dzen to obtain a bid for doing the work on the pitched portions of the roof. In July, 2002, Rodowicz, on behalf of Village Manor, met with Jeff Westbrook, local project manager for Centimark, to discuss Rzempoluch's proposal.¹ Westbrook brought Dean Pinto, residential manager for Dzen, to the meeting. During the meeting, Rodowicz and Westbrook discussed the fact that Dzen would be installing the shingled portion of the roof. Dzen, a GAF Master Elite contractor, is considered to be in the top 2 percent of shingle roofers in the country. Partly because of Dzen's elite status, Rodowicz decided to enter into an agreement with Centimark. Pursuant to the agreement between Centimark and Village Manor, Centimark was to perform the entire roofing job, and it was recognized that Dzen would provide the materials for and perform the installation of the shingled portion of the roof. The contract provided, inter alia: "All items listed in the scope of work will be completed by [Centimark] and [Dzen]." The agreed on price was $98,999.76, rounded to $99,000.

Centimark then entered into a subcontract agreement with Dzen for $38,992. Dzen contracted the labor for the shingled portion of the roof to Tom Thompson, a local roofing contractor doing business as BHR Construction, LLC (BHR). BHR hired a small crew of independent contractors with limited experience to install the shingled portion of the roof. Neither Thompson nor any of the independent contractors on his crew were GAF Master Elite contractors. Dzen supplied materials, including nails, roof cement and shingles to BHR. Dzen also supplied BHR with T-shirts and signs, both bearing Dzen's name, so customers would think Dzen workers were installing the roof. Centimark and BHR began work on the roof in August, 2002, and completed the work by September 12, 2002.

In the beginning of September, 2002, Rodowicz returned from out of state and inspected the roof for the first time since work had begun. Rodowicz was not satisfied with the workmanship. On September 4, 2002, in a meeting with representatives of Centimark, he expressed concern that, inter alia, most of the HVAC units were not flashed with metal flashing and that there were defects in the installation of the shingled roof. In a letter dated September 11, 2002, Rodowicz expressed his additional concerns that, inter alia, Dzen had subcontracted the labor for the shingled portion of the roof to BHR. The problems were not resolved, and Village Manor never paid Centimark for the roof. Centimark, in November, 2002, filed a mechanic's lien on the land records of the town of Plainfield against Village Manor for the entire contract price.

Centimark filed a one count complaint seeking to foreclose on the mechanic's lien that it had placed on Village Manor's property. In its complaint, Centimark alleged that the agreement between it and Village Manor provided for payment to Centimark of $98,999.76 for services rendered but that Village Manor had not paid any of that amount to Centimark. Village Manor filed an amended answer, special defenses and a six count counterclaim. Village Manor asserted, inter alia, negligent misrepresentation as a special defense. In its counterclaim, Village Manor alleged breach of contract, negligence, breach of warranty, negligent misrepresentation, fraudulent misrepresentation and a violation of CUTPA.

In July, 2004, Centimark filed a motion to implead Dzen, which was granted by the court, Potter, J. Centimark thereafter filed an amended third party complaint in three counts against Dzen. In its third party complaint, Centimark sought indemnification from Dzen.

After a trial to the court, the court, Martin, J., issued a memorandum of decision. It found against Centimark on the claim for foreclosure of its mechanic's lien because Village Manor's special defense of negligent misrepresentation defeated recovery. It found in favor of Village Manor on all counts of its counterclaim. The court found that Centimark breached its contract with Village Manor by failing to obtain a building permit, failing to use Dzen itself to install the shingled portion of the roof and failing to install the shingled portion of the roof in accordance with GAF specifications, the building code and the agreement between the parties in that inter alia, it failed to flash the roof properly. On the breach of contract count of Village Manor's counterclaim, the court awarded Village Manor $139,670 to replace the shingled portion of the roof in a proper manner and reduced that amount by $98,999.76, the contract price, which Village Manor had not paid. The net amount of damages awarded to Village Manor on its breach of contract count, therefore, was $40,670.24. With respect to the counts of Village Manor's counterclaim alleging negligence, breach of warranty, negligent misrepresentation and fraudulent misrepresentation, the court awarded Village Manor the same damages for these claims as it awarded on the breach of contract count. With respect to Village Manor's count alleging a violation of CUTPA, the court awarded $133,276.82 in attorney's fees but did not award Village Manor the cost of its expert witness fees. On Centimark's third party complaint in which it sought indemnification from Dzen, the court found in favor of Centimark and awarded it $38,992. This appeal and cross appeal followed. Additional facts will be set forth as necessary.

I CENTIMARK'S CLAIMS AS TO LIABILITY ON VILLAGE MANOR'S COUNTERCLAIM

Centimark first claims that the court improperly found in favor of Village Manor on its claims alleging negligent misrepresentation, fraudulent misrepresentation, breach of contract and a violation of CUTPA. As explained more fully in part II A, the court awarded Village Manor one damages award for its claims of breach of contract, negligence, breach of warranty, negligent misrepresentation and fraudulent misrepresentation. Therefore, as long as the court's finding of liability is proper with respect to one of those counts on which the damages award is based, then the damages award, if proper in itself, would stand. Centimark did not contest the court's finding of liability with respect to the negligence count.² As a consequence, even if we were to conclude that the court's decision as to one of the challenged counts was improper, Centimark could be afforded no practical relief because its liability would rest on the unchallenged finding of negligence. See Housing Authority v. Davis, 57 Conn.App. 731, 733, 750 A.2d 1148, cert....