Contracting v. Greater Hartford Jewish Cmty. Ctr. Inc.

• Decision Date: 29 March 2011
• Docket Number: No. 31679.,31679.
• Citation: 14 A.3d 461,127 Conn.App. 507
• Court: Connecticut Court of Appeals
• Parties: ROBERT J. BARNABEI CONTRACTING, LLCv.GREATER HARTFORD JEWISH COMMUNITY CENTER, INC., et al.

127 Conn.App. 507

14 A.3d 461

ROBERT J. BARNABEI CONTRACTING, LLC

v.GREATER HARTFORD JEWISH COMMUNITY CENTER, INC., et al.

No. 31679.

Appellate Court of Connecticut.

Argued Sept. 13, 2010.Decided March 29, 2011.

Terence D. Mariani, with whom, on the brief, was Robert P. Hanahan, Waterbury, for the appellant (plaintiff).Paul S. Tagatac, Hartford, for the appellee (defendant Aspinet Construction Company).GRUENDEL, HARPER and FLYNN, Js.GRUENDEL, J.

The plaintiff, Robert J. Barnabei Contracting, LLC, appeals from the judgment of the trial court rendered in accordance with a report filed by an attorney fact finder (fact finder). The court rendered judgment awarding the plaintiff $292 in compensatory damages pursuant to a subcontract agreement (agreement) with the defendant Aspinet Construction Company.¹ On appeal, the plaintiff claims that the court improperly overruled its objection to acceptance of the fact finder's report because the report lacks factual justification and is otherwise incomplete. The plaintiff further claims, for the first time on appeal, that the defendant failed to comply with § 7(f) of the agreement. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the resolution of this appeal. In early 2004, the Greater Hartford Jewish Community Center, Inc. (community center), retained the defendant as the general contractor for a renovation project (project) at the community center's West Hartford location. On March 19, 2004, the plaintiff and the defendant executed the agreement, whereby the plaintiff was to perform subsurface construction services for the project for a total price of $37,960. The dispositive provisions of the agreement are as follows:

“Section 4.... If at any time there shall be evidence of any lien or claim for which, if established, [the defendant] or the [community center] might be or become liable and which is chargeable to [the plaintiff], [the defendant] shall have the right to retain out of any payment due or to become due by [the defendant] to [the plaintiff] an amount sufficient to indemnify [the defendant] and [the community center] against such lien or claim....

* * *

“Section 7. The following conditions are hereby made a part of this [a]greement ...

“(d) The [plaintiff] agrees ... to comply with all [f]ederal, [s]tate, [m]unicipal and local laws, ordinances, codes and regulations governing and to pay all costs and expenses required thereby....

* * *

“Section 8.(a) [The plaintiff] shall submit in writing to [the defendant] all claims for adjustment in the [agreement] price ... for like claims by [the defendant] against [the community center—namely, through a written change order].... [The defendant's] liability to [the plaintiff] for such claims is limited to any adjustment which shall be made by [the community center] to [the defendant's] contract on account of [the plaintiff's] claim.”

On the same day that the parties executed the agreement, the defendant approached a third party, George Torello Engineers, P.C. (Torello), to perform engineering services in connection with the project, as such services were beyond the plaintiff's expertise. The defendant retained Torello to ensure that the plaintiff's work complied with applicable specifications of the West Hartford building code (building code), including, specifically, § 1816.13. After the plaintiff commenced work on the project, the defendant submitted a written change order on May 17, 2004, by which the agreement price was increased from $37,960 to $41,275. On June 11, 2004, the plaintiff submitted an invoice to the defendant in the amount of $51,200, although it is undisputed that the plaintiff failed to submit a written change order pursuant to § 8(a) of the agreement. Despite the plaintiff's noncompliance with § 8(a), the defendant submitted the plaintiff's invoice to the community center for approval, which the community center eventually declined to pay due to the lack of supporting documentation. On August 3, 2004, the defendant submitted a second written change order backcharging the agreement price by $16,435.50, the cost of Torello's services on the project, pursuant to § 7(d), thereby reducing the plaintiff's total compensation to $24,839.50. The defendant then refused to pay the plaintiff $9925, the difference between the agreement price of $41,275 and the plaintiff's invoice of $51,200, claiming that it was not liable for this amount pursuant to § 8(a) of the agreement. Additionally, the defendant maintained that the plaintiff was responsible for the expenses associated with Torello's work pursuant to § 7(d) of the agreement, as those services were required by the building code.

On July 11, 2005, the plaintiff commenced this action claiming, inter alia, breach of contract by the defendant. In support of its claim, the plaintiff alleged that the defendant was responsible for the full invoice amount of $51,200 and further that the defendant incorrectly backcharged the agreement price by the cost of Torello's services. In response, the defendant countered that the plaintiff was not entitled to the invoice amount of $51,200 because the community center never approved this adjustment to the agreement price. The defendant also argued that because the plaintiff already had been paid $24,547.50, and because the agreement price of $41,275 was properly reduced by $16,435.50, the cost of Torello's services, the plaintiff was entitled only to $292. The matter was tried before the fact finder on June 18, 2007, and a report was submitted by the fact finder on November 13, 2007. In his report, the fact finder specifically found that the defendant was not contractually liable for the invoice amount of $51,200, as the community center had not approved this upward adjustment in the agreement price as required by § 8(a). As to the plaintiff's claim regarding the back-charge for Torello's services, the fact finder found that “[§] 7(d) of the [agreement] makes [the] plaintiff liable for the costs of code compliance....” Thus, the fact finder recommended that the plaintiff be awarded $292, or the amount of the agreement price ($41,275), less the cost of Torello's services ($16,435.50) and the amount that the plaintiff had already been paid by the defendant ($24,547.50). Subsequently, the plaintiff filed an objection to acceptance of the fact finder's report and recommendations, arguing that the report was “incomplete and omits facts essential to a just disposition of this matter.” On October 19, 2009, the court overruled the plaintiff's objection and rendered judgment in accordance with the fact finder's report. This appeal followed.

The plaintiff claims that the court improperly overruled its objection to acceptance of the fact finder's report and recommendations. Specifically, the plaintiff argues that the fact finder incorrectly concluded that the $51,200 invoice amount in effect constituted a claim for $9925 in extra compensation, rather than a legitimate adjustment to the agreement price of $41,275. ² Additionally, the plaintiff claims that the fact finder incorrectly found that the cost of Torello's services was appropriately backcharged under the agreement.

Before addressing the merits of the plaintiff's claims, we begin with the applicable legal principles and standard of review governing our analysis. “A reviewing authority may not substitute its findings for those of the trier of the facts. This principle applies no matter whether the reviewing authority is the Supreme Court ... the Appellate Court ... or the Superior Court reviewing the findings of ... attorney trial fact finders.... This court has articulated that attorney trial fact finders and [fact finders] share the same function ... whose determination of the facts is reviewable in accordance with well established procedures prior to the rendition of judgment by the court....

“The factual findings of a[n] [attorney trial fact finder] on any issue are reversible only if they are clearly erroneous.... [A reviewing court] cannot retry the facts or pass upon 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.” (Internal quotation marks omitted.) LPP Mortgage, Ltd. v. Lynch, 122 Conn.App. 686, 692, 1 A.3d 157 (2010).

I

The record in the present case unequivocally demonstrates that the fact finder had sufficient evidence to conclude that the plaintiff was entitled to only $292 in compensatory damages pursuant to the parties' agreement. With respect to the plaintiff's claim regarding the $51,200 invoice amount, the plaintiff argues mainly that the fact finder incorrectly found that the agreement price was $41,275. Evidence submitted by the plaintiff itself, however, shows that the defendant submitted a change order for $41,275 on May 17, 2004, pursuant to § 8(a) of the agreement. Furthermore, the plaintiff does not dispute the fact that it failed to comply with the change order procedures specified in the agreement for seeking adjustments to the agreement price. Indeed, despite the plaintiff's noncompliance, the defendant sought, in good faith, to have the plaintiff's invoice approved by the community center. Ultimately, it was the plaintiff's failure to provide documentation in support of its invoice that led the community center to deny payment of the invoice amount. Because the community center never approved the payment of the plaintiff's invoice, pursuant to § 8(a) of the agreement, the defendant was not liable to the plaintiff for this additional amount. As a corollary, we cannot say that the fact finder's finding that the agreement price was $41,275 was clearly erroneous.

II

Turning to the plaintiff's claim with respect to the...