Lewis v. Frazao Bldg. Corp., No. 29126.

• Decision Date: 23 June 2009
• Docket Number: No. 29126.
• Citation: 972 A.2d 284,115 Conn.App. 324
• Court: Connecticut Court of Appeals
• Parties: Kendall R. LEWIS v. FRAZAO BUILDING CORPORATION et al.

972 A.2d 284

115 Conn.App. 324

Kendall R. LEWIS v. FRAZAO BUILDING CORPORATION et al.

No. 29126.

Appellate Court of Connecticut.

Argued January 20, 2009.

Decided June 23, 2009.

James Colin Mulholland, Salem, for the appellant (plaintiff).

Katherine L. Matthews, with whom was R. Bradley Wolfe, Hartford, for the appellees (defendants).

FLYNN, C.J., and BISHOP and BORDEN, Js.

BISHOP, J.

This case concerns a home improvement contract dispute. The matter was referred to attorney fact finder Tegan Blackburn, who filed a report, on the basis of which the trial court subsequently rendered judgment awarding only a portion of the damages claimed by the plaintiff, Kendall R. Lewis, against the defendant Frazao Building Corporation (Frazao Building) and no damages against the individual defendant Dennis Frazao. The plaintiff claims on appeal that the court improperly (1) found that there was sufficient evidence in the record to support the findings of fact made by the attorney fact finder, (2) considered the plaintiff's claim under the clearly erroneous standard of review and (3) failed to find Frazao personally liable for the breach of contract. We affirm the judgment of the trial court.

The following facts were adduced during hearings before the fact finder and subsequently accepted by the trial court. On April 17, 2003, the plaintiff and Frazao Building entered into a home improvement contract regarding renovations to be done to the plaintiff's home. Under the terms of the contract, the work was to be completed in accordance with plans prepared by the project's architect, Hartford Design Associates, for the sum of $43,015. The contract provided that certain changes had been discussed and approved for the installation of a basement hatchway for $1025, the installation of heating radiators for $3500, the installation of Trex flooring for an additional $850 and the reroofing of the front of the house for an additional $1100. The contract further provided that all fixtures were to be installed by the plumber.¹ As of July 10, 2003, the plaintiff had paid the defendant $28,951.

The parties' professional relationship began to deteriorate following the plaintiff's request for numerous changes to the original plans. The plaintiff's proposed changes, which were not incorporated into the contract by written change order, primarily concerned the deck, the roof and the dimensions of a bathroom and its adjoining wall. Because the parties could not agree on what the building code requirements were for the proposed changes, the defendant was hesitant to proceed because he would have to correct, at his expense, any renovations later determined to be in violation of the building code. Accordingly, the parties were unable to reach a resolution concerning the plaintiff's proposed modifications. On August 9, 2003, the plaintiff sent Frazao Building a letter stating that the remaining work was to be completed in one week. Frazao Building construed the letter as terminating its services, and on August 13, 2003, it ceased working on the project. The plaintiff claims that he incurred additional expenses to complete the project and to repair some of Frazao Building's work.

On February 1, 2004, the plaintiff filed the present action against the defendants, seeking damages totaling $17,777.65 for breach of contract. The complaint alleged, inter alia, that Frazao Building and Frazao "unilaterally ceased work on the contract leaving the home improvements called for under the contract substantially incomplete" and that the plaintiff suffered actual losses as a consequence of the defendants' breach. The defendants filed an answer and special defense on May 18, 2004, asserting that the plaintiff had terminated their services, thereby excusing the defendants' performance.

Pursuant to Practice Book § 23-53,² the case was referred to an attorney fact finder, who heard evidence on the matter on April 18, May 16 and July 11, 2005. The fact finder concluded that Frazao Building did not meet its burden of proof by offering any evidence or credible testimony that it was discharged or otherwise justified in abandoning the project. The fact finder noted that the plaintiff offered extensive evidence of his material and labor costs. The fact finder determined from the plaintiff's testimony that numerous changes not part of the original contract were made during the course of renovations, that certain areas of work were to be completed at an additional cost under the original contract and that the construction delays were due to the plaintiff's proposed changes. The fact finder concluded that the completed project improvements were not the same as those contemplated under the original contract. The fact finder recommended that the plaintiff be awarded $5000 in contract damages and $11,000 in attorney's fees for a total award of $16,000. The fact finder further recommended that Frazao Building should only be required to remove debris from the project site, to repair damage to the home's landscaping and to return the site to its original condition because those items fell within the scope of the original contract. The fact finder did not find that Frazao should be held individually liable.

The plaintiff objected to the acceptance of the findings of fact on December 6, 2005, arguing that (1) there was no evidence in the record to support the fact finder's finding that the project improvements as completed were not contemplated in the original contract, (2) there was no evidence in the record to support the fact finder's finding that certain changes made during the course of renovations were not included in the original contract or contract price, (3) the fact finder's finding that certain projects were to be completed at an extra cost was legally incorrect because the contract unambiguously includes these costs, (4) there was substantial credible evidence in the record to support a finding that the plaintiff incurred additional costs to correct work inadequately performed by the defendants and (5) there was substantial credible evidence in the record to support a judgment against Frazao. Following the filing of the plaintiff's objections, the fact finder submitted supplemental findings of fact, and, on October 26, 2006, the court, Miller, J., accepted the fact finder's report and supplemental findings over the plaintiff's objections. This appeal followed. Additional facts will be set forth as necessary.

We begin our analysis by setting forth the applicable standard of review. "Attorney fact finders are empowered to hear and decide issues of fact on contract actions pending in the Superior Court.... On appeal, [o]ur function ... is not to examine the record to see if the trier of fact could have reached a contrary conclusion. ... Rather, it is the function of this court to determine whether the decision of the trial court is clearly erroneous.... This involves a two part function: where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court's decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous." (Internal quotation marks omitted.) Mastroianni v. Fairfield County Paving, LLC, 106 Conn. App. 330, 335, 942 A.2d 418 (2008). "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.) Carroll v. Perugini, 83 Conn.App. 336, 339-40, 848 A.2d 1262 (2004).

"Finally, we note that, because the attorney [fact finder] does not have the powers of a court and is simply a fact finder, [a]ny legal conclusions reached by an attorney [fact finder] have no conclusive effect.... The reviewing court is the effective arbiter of the law and the legal opinions of [an attorney fact finder], like those of the parties, though they may be helpful, carry no weight not justified by their soundness as viewed by the court that renders judgment." (Internal quotation marks omitted.) Mastroianni v. Fairfield County Paving, LLC, supra, 106 Conn. App. at 335, 942 A.2d 418. With the foregoing in mind, we now turn to the plaintiff's specific claims.

I

The plaintiff first claims that the court improperly found that there was sufficient evidence in the record to support the findings of fact made by the fact finder. Specifically, the plaintiff argues that he offered evidence showing that he had incurred additional costs to complete and to correct work performed by the defendants and that those project improvements were contemplated under the original contract. He claims, therefore, the fact finder's findings from the evidence were clearly erroneous. We do not agree.

The following additional facts are necessary for our review of the plaintiff's claim. During the hearings before the fact finder, the plaintiff offered invoices, receipts and a one page summary sheet to show the construction costs that he had incurred from other tradespeople to complete the project. The sheet listed a number of contractors, the work that they had performed and the cost of their services. The plaintiff claims that these contractors completed and repaired work that had been included in the architect's plans and that, under the original contract, the defendants were obligated to complete the project in accordance with those plans. Additionally, the plaintiff offered testimony, photographs of the project site and a building inspector's report in an effort to show that the defendants' work was done incorrectly...