DuBaldo Elec., LLC v. Montagno Const., Inc.

• Decision Date: 23 February 2010
• Docket Number: No. 30063.,30063.
• Citation: 988 A.2d 351,119 Conn.App. 423
• Parties: DuBALDO ELECTRIC, LLC v. MONTAGNO CONSTRUCTION, INC., et al.
• Court: Connecticut Court of Appeals

988 A.2d 351

119 Conn.App. 423

DuBALDO ELECTRIC, LLC v. MONTAGNO CONSTRUCTION, INC., et al.

No. 30063.

Appellate Court of Connecticut.

Argued October 16, 2009.

Decided February 23, 2010.

Robert J. O'Brien, Hartford, for the appellants-appellees (named defendant et al.).

Wayne Christopher Gerlt, South Windsor, for the appellee-appellant (plaintiff).

GRUENDEL, HARPER and SCHALLER, Js.

GRUENDEL, J.

The defendants, Montagno Construction, Inc. (Montagno), and Hanover Insurance Company (Hanover),¹ appeal from the judgment rendered after a court trial, in favor of the plaintiff, DuBaldo Electric, LLC (DuBaldo). The defendants challenge as clearly erroneous the trial court's findings that (1) DuBaldo substantially performed its contractual obligations, (2) DuBaldo was entitled to $193,120.80 in damages, (3) DuBaldo suffered a 20 percent loss of efficiency and (4) judgment be rendered against Hanover. Additionally, DuBaldo cross appeals, contending that the court erred in denying its recovery for attorney's fees. We affirm the judgment of the trial court.

In its February 11, 2008 memorandum of decision, the court found the following facts. Burlington Coat Factory hired Montagno as the general contractor to renovate space that it leased in the Brass Mill Center Mall in Waterbury. Seeking to become the electrical subcontractor for that project, DuBaldo submitted to Montagno a bid of $243,600 and estimated that the job would take 3200 man hours to complete.² On June 21, 2004, DuBaldo received a letter from Montagno awarding it the electrical subcontract work for $250,450 which it signed and returned on June 25, 2004, and which Montagno received on July 1, 2004. Attached to that letter was a scope of work plan. That letter represented the contract between the parties.³

On June 28, 2004, DuBaldo applied for an electrical permit with the city of Waterbury. Issuance of the permit was delayed until July 14 as a result of deficiencies in Burlington Coat Factory's architectural design and understaffing at the Waterbury electrical inspector's office. Several times, Montagno communicated to Burlington Coat Factory the importance of obtaining certain architectural information necessary for the issuance of the permit. Those communications were without success. "The court [found] that DuBaldo properly attempted to secure the electrical permit ... but was unable to do so for reasons beyond its control and within the control of the defendants. While on July 1 ... Montagno distributed a project time line, setting forth ten five day weeks, from ... June 21 through ... August 27 for the electrical work, Montagno failed to update that time line when, for the first two weeks of July, the electrical work was stalled by [the permit's delay]."

Unable to perform electrical work without a permit, DuBaldo fell approximately three weeks behind schedule. On August 14, to make up for time lost, Montagno authorized an acceleration in schedule in which DuBaldo agreed to work seven days a week with overtime. Burlington Coat Factory agreed to pay the overtime hours under that accelerated schedule. On August 30, Montagno hired Globe Electric LLC (Globe), to work alongside DuBaldo. Montagno informed DuBaldo that Globe had been hired to add electricians to the job. DuBaldo believed from its communications with Montagno that Globe's primary purpose was to address fire alarm deficiencies in Burlington Coat Factory's plans and, secondarily, to supplement DuBaldo on the original project. Globe joined the project pursuant to an oral agreement in which there was "no limit on hours to be worked, no bid, no limit on numbers of workers on the project and an hourly rate of $65 plus an addition of halftime with no cap on overtime hours billed."⁴ Although Montagno deducted from DuBaldo's account the amount that it paid Globe for work performed within the scope of DuBaldo's contract, it never discussed with DuBaldo either the amount or mode of payment that Globe was to receive for its work.⁵

Despite Montagno's arrangement with Globe, Globe's work was subject to no oversight by Montagno. Indeed, Globe performed much of its work in the evening and on weekends when Montagno personnel was not present. Even more troubling, the bills that Globe submitted to Montagno did not detail what particular work Globe performed within the scope of DuBaldo's contract. Unlike DuBaldo, "Globe was timely paid in full, based upon a list of first names and hours worked...."⁶ Additionally, Globe's chief executive officer, Lawrence Marotti, was on vacation in Cancun, Mexico, and unable to oversee crucial electrical work being performed and billed. Remarkably, Montagno did not attempt to check whether Globe's work related to the original contract between Montagno and DuBaldo or to work performed outside of Montagno's contract with DuBaldo. Essentially, "Globe not only had free rein to bill unreviewed manpower and hours on this project, Globe also was the final arbiter of what bills were backcharged to DuBaldo...."

In September, 2004, the relationship between DuBaldo's foreman, John Monaco, and Montagno's site superintendent, Richard Barzda, began to deteriorate. That negative interpersonal relationship resulted in the events culminating in DuBaldo's termination from the project. On September 27, 2004, DuBaldo intentionally disabled the fire alarm system one day before the city of Waterbury's scheduled inspection for the issuance of a temporary certificate of occupancy (certificate) for the upper level of the store. The court found that "[u]pon discovering [that] the fire alarm [was disabled], Globe was called in by Montagno, and ... within a few hours got the fire alarm system back up and running, and the [certificate] inspection proceeded successfully and as scheduled." On September 28, 2004, the same day as the inspection, Montagno terminated DuBaldo via letter, citing as grounds for termination both the fire alarm incident and insufficient manning of the job. Thereafter, Globe completed DuBaldo's contractual obligations for which it was timely and fully compensated in the amount of $322,472. DuBaldo submitted change orders for costs of several jobs done outside the scope of its contract, and, at the time of trial, all agreed that between July 16 and September 28, 2004, DuBaldo performed $105,867 of work over and above the contract price of $250,450. DuBaldo was partially compensated by Montagno for contractual work prior to its termination but was not compensated for any approved change order work.

In its February 11, 2008 memorandum of decision, the court found that Montagno was in breach of contract for terminating DuBaldo and that DuBaldo had substantially performed its contractual obligations as of September 28, 2004, when it was precluded from continuing work. The court further found that Burlington Coat Factory's unreasonably early fixturing and merchandising of the upper level of the premises caused DuBaldo a 20 percent loss of efficiency. The court awarded DuBaldo damages totaling $145,535.30. In its June 6, 2008 memorandum of decision, the court modified that amount to $193,120.80, after determining that it had miscalculated the initial amount, and denied DuBaldo's requests for both attorney's fees and prejudgment interest. This appeal followed.

I

The defendants raise a multitude of claims concerning the court's finding that DuBaldo had substantially performed its contractual obligations prior to termination.

"The determination of [w]hether a building contract has been substantially performed is ordinarily a question of fact for the trier to determine.... We have long held that a finding of fact is reversed only when it is clearly erroneous. A factual finding is clearly erroneous when it is not supported by any evidence in the record or when there is evidence to support it, but the reviewing court is left with the definite and firm conviction that a mistake has been made.... Simply put, we give great deference to the findings of the trial court because of its function to weigh and interpret the evidence before it and to pass upon the credibility of witnesses." (Citations omitted; internal quotation marks omitted.) Pisani Construction, Inc. v. Krueger, 68 Conn.App. 361, 364, 791 A.2d 634 (2002). Moreover, "[t]he analysis necessarily involves an inquiry into the totality of facts and circumstances surrounding the performance of the contract." Miller v. Bourgoin, 28 Conn.App. 491, 496, 613 A.2d 292, cert. denied, 223 Conn. 927, 614 A.2d 825 (1992).

A

The defendants argue that the court's finding that DuBaldo had substantially performed its contractual obligations was clearly erroneous because there allegedly was no evidence before the court as to how many days might reasonably have been expected for the electrical permit to be issued. The defendants contend that the absence of such evidence is particularly significant in light of the court's reliance on the permit's delay as causing DuBaldo to fall behind schedule. We disagree.

Based upon our examination of the record, we conclude that the court had before it ample evidence to support its finding that the electrical permit's delay caused DuBaldo to fall behind schedule.⁷ Although the defendants contend that the absence of any evidence as to how many days might reasonably have been expected for the permit to be issued rendered the court's finding clearly erroneous, Montagno identified the lack of a permit as a problem just three days after DuBaldo had applied for it, on July 1, 2004, at the subcontract start-up meeting. At trial, Kurt Montagno, Montagno's principal, testified that "[h]e knew when [DuBaldo] didn't have a permit at the project['s] start ... that there was going to be a schedule issue [be]cause the work just was not being hit full force. So, [he] got concerned right out of the box, basically, that there was going to be an issue." In an effort to remedy that scheduling issue, from July 2 through ...