Fox v. Birds Construction, No. CV04 041 19 02 S (CT 7/7/2004)
| Decision Date | 07 July 2004 |
| Docket Number | No. CV04 041 19 02 S,CV04 041 19 02 S |
| Parties | Peter Fox et al. v. Birds Construction. |
| Court | Connecticut Supreme Court |
This proceeding is an application by the plaintiff, Peter Fox, for a prejudgment remedy to obtain an attachment against the defendant, Birds Construction Company. This case arises from a written contract for portions of the construction of a new residence.
According to the complaint the plaintiff, the general contractor for his home construction project, entered into a series of agreements with the defendant wherein the defendant would provide the foundation and framing for the home. (Complaint, first count.) The defendant further agreed to clear the construction site and excavate and install a septic tank. (Complaint, first count.)
The plaintiff alleges that the defendant is liable for breach of contract as a result of incomplete and defective work. (Complaint, first count.) In the second count sounding in unjust enrichment the plaintiff alleges that the defendant was paid $ 82,450.82 for services he did not perform. Finally, in the third count the plaintiff pleads that these same acts constitute unfair and deceptive trade practices in violation of the Connecticut Unfair Trade Practices Act, General Statutes §§42-110b et seq. In his prayer for relief, the plaintiff seeks money damages, punitive damages, and attorneys fees.
Before the court is the plaintiff's application for a prejudgment remedy. The plaintiff seeks to attach real estate located on Jarvis Street in Cheshire, Connecticut in order to secure the sum of approximately $250,000. The parties presented their respective positions during a hearing held in accordance with Connecticut General Statutes 52-278d.
A hearing was held on this application on June 15, 2004. The evidence was incomplete and highly conflicting. The plaintiff claimed that the defendant's workmanship was shoddy, that he fell behind schedule, and he was not attending to projects as required resulting in a delay in financing and a possible increase in ultimate mortgage costs. On the other hand, the defendant claimed that the plans were altered, that he was delayed by this uncertainty, and that he was not getting paid.
Based upon the evidence presented at the hearing, the following facts are found:
1. On May 31, 2003, the plaintiff and the defendant entered into a contract for foundation work to be done at the plaintiff's home being constructed in Monroe, Connecticut.
2. The contract price was set at $40,857.50, with $20,428.75 paid with signing and final payment upon completion.
3. The contract did not specify the work that was to be completed.
4. The contract did not set an estimated delivery date.
5. In July 2003 the foundation work was complete. The foundation was inspected. No problems were noted.
6. On September 16, 2003, the plaintiff and the defendant entered into another contract for foundation work to be done at the plaintiff's home being constructed in Monroe, Connecticut. This contract indicated that it reflected extra services to be performed by the defendant.
7. This second contract price was set at $5,186.32.
8. This second contract did not set an estimated delivery date.
9. On September 16, the plaintiff and the defendant entered into a third contract for rough-framing work to be done at the plaintiff's home being constructed in Monroe, Connecticut.
10. The contract price was set at $53,000.
11. The contract did not specify the work that was to be completed.
12. The contract did not set an estimated delivery date.
13. On September 2003, the plaintiff and the defendant entered into a contract for landscaping work to be done at the plaintiff's home being constructed in Monroe, Connecticut.
14. The contract price was not specified.
15. The contract did not specify the work that was to be completed.
16. The contract did not set an estimated delivery date.
17. On September 16, 2003, the plaintiff and the defendant entered into a contract for site work to be done at the plaintiff's home being constructed in Monroe, Connecticut.
18. The contract price was set at $28,883.12.
19. The contract did not specify the work that was to be completed.
20. The contract did not set an estimated delivery date.
21. In total, the agreements between the plaintiff and the defendant called for payments of $131,676.00.
22. The plaintiff paid the defendant $92,422.00.
23. The defendant did not supply all the truss joints required by the original building plans.
24. In October 2003 Timothy Burke, a civil engineer, determined that the defendant improperly excavated the site for the plaintiff's septic tank, rendering the excavation and site inappropriate. This forced the plaintiff to relocate the septic system at a cost of $2,400.00.
25. The plaintiff ordered the defendant removed from the construction site.
26. In November 2004 Gunnar Gaylord, the Town of Monroe Assistant Building Official, determined that the defendant had used a floor system whose manufacturer varied from that in the plans originally submitted. Mr. Gaylord did not know whether the plaintiff or the defendant selected the flooring. The plaintiff did approve the flooring.
27. Five of the several hundred trusses located in the home construction site required additional support.
28. Based upon the deviation noted above, Mr. Gaylord issued a stop-work order.
29. In April 2004 Mr. Gaylord, relying upon an architect's report, determined that the stairs leading to an accessory apartment did not conform with the town's building requirements.1
Connecticut General Statutes §52-278d(a) provides in relevant part that a hearing on a prejudgment remedy "shall be limited to a determination of (1) whether or not there is probable cause that a judgment in the amount of the prejudgment remedy sought, or in an amount greater than the amount of the prejudgment remedy sought, taking into account any defenses, counterclaims or setoffs, will be rendered in the matter in favor of the plaintiff . . . If the court, upon consideration of the facts before it and taking into account any defenses, counterclaims or set-offs . . . finds that the plaintiff has shown probable cause that such a judgment will be rendered in the matter in the plaintiff's favor in the amount of the prejudgment remedy sought and finds that a prejudgment remedy securing the judgment should be granted, the prejudgment remedy applied for shall be granted as requested or as modified by the court."
"In acting on a prejudgment remedy motion, the trial court must evaluate the arguments and evidence produced by both parties to determine whether there is probable cause to sustain the validity of the plaintiffs' claim . . . Tyler v. Schnabel, 34 Conn.App. 216, 219-20, 641 A.2d 388 (1994). "The plaintiff does not have to establish that he will prevail, only that there is probable cause to sustain the validity of the claim . . . The court's role in such a hearing is to determine probable success by weighing probabilities . . ." (Internal quotation...
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