Luongo Constr. v. Macfarlane, (AC 38185).

• Decision Date: 12 September 2017
• Docket Number: (AC 38185).
• Citation: 170 A.3d 57,176 Conn.App. 272
• Court: Connecticut Court of Appeals
• Parties: LUONGO CONSTRUCTION AND DEVELOPMENT, LLC v. James MACFARLANE

176 Conn.App. 272

170 A.3d 57

LUONGO CONSTRUCTION AND DEVELOPMENT, LLC

v.James MACFARLANE

(AC 38185).

Appellate Court of Connecticut.

Argued April 17, 2017

Officially released September 12, 2017

Frank P. Cannatelli, for the appellants (plaintiff and counterclaim defendant).

Vincent T. McManus, Jr., for the appellee (defendant).

DiPentima, C.J., and Lavine and Flynn, Js.

DiPENTIMA, C.J.

The plaintiff, Luongo Construction and Development, LLC (Luongo LLC), and the counterclaim defendant, Michael Luongo (Luongo), appeal from the judgment of the trial court rendered in favor of the defendant and counterclaim plaintiff, James MacFarlane (MacFarlane). On appeal, Luongo LLC and Luongo (Luongo parties) claim that the court improperly (1) denied their motions to dismiss, which were based on the prior pending action doctrine, (2) denied their motion for summary judgment and (3) awarded an excessive amount of punitive damages. We disagree and, accordingly, affirm the judgment of the trial court.

The following facts and procedural history are necessary to understand the history of this case, which the trial court aptly described as "unnecessarily protracted and convoluted." The proceedings originated in the Middlesex judicial district when Luongo LLC filed an application for a prejudgment remedy against MacFarlane.

The court granted the application in the amount of $20,000. The prejudgment attachment was dismissed on June 29, 2012, and Luongo LLC's subsequent efforts to attach MacFarlane's property proved to be unsuccessful.

Luongo LLC commenced the present action and filed an amended complaint on August 13, 2013. It alleged that Luongo LLC and MacFarlane had entered into a contract regarding the construction of a modular home. It further claimed that Luongo LLC had performed its obligations under the contract, including the completion of the items contained on a "punch list ...." Luongo LLC contended that MacFarlane had failed to pay the balance of $20,000 owed under the terms of the contract.

Over the course of several months, MacFarlane cited in Luongo as a counterclaim defendant, filed an answer to the amended complaint and brought a counterclaim against the Luongo parties. In his amended counterclaim, MacFarlane alleged breach of contract, a violation of the New Home Construction Contractors Act, General Statutes § 20–417a et seq.,¹ violations of the new home express and implied warranties as set forth in General Statutes §§ 47–117, 47–118 and 47–121, a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42–110a et seq., and a violation of General Statutes § 21–86,² and he sought recovery from Luongo, who allegedly was personally in charge of the construction of MacFarlane's home, for negligent and unworkmanlike construction.

Following a two day trial, the court issued a memorandum of decision on June 17, 2015, and found the following facts. On November 24, 2010, MacFarlane agreed to pay Luongo LLC $247,915 in exchange for the "delivery and installation" of a modular home with a three car garage. Luongo LLC contracted to perform the work in a substantially workmanlike manner and in accordance with the drawing and specifications provided.

MacFarlane called Steven Rocco, an expert with thirty-five years experience as an architect and twenty-five years experience as a builder, as a witness. Rocco inspected the property several times, interviewed MacFarlane, examined photographs taken during the construction, and reviewed the "site assembly handbook" provided by the modular home's manufacturer.

In Rocco's opinion, the two steel beams which ran end to end down the center line of the basement had been installed in a "haphazard" manner, and this error compromised the rest of the construction of the home. Rocco further testified that because the steel beams ran uphill to the center column, there was "a very visible ridge down the center of the floor, as well as the opposing slopes of the ceiling in the [basement]. Between the high point in the center, and the exaggerated variances [on] the top of the foundation walls, the wood modular boxes above are subject to twists and turns, which causes the plethora of cracks throughout the house." (Emphasis omitted.)

The trial court stated in its memorandum of decision that Rocco "further testified that at the place where the two halves of the modular home meet, the ceiling is visibly sagging and also rotating. [He] further opined that the sagging and rotation of the beams was caused by [Luongo's] failure to bolt the beams or brace them in some other fashion. The torque created by the unbolted beams causes cracks in the house, which will continue to occur unless the beams are bolted." Rocco also indicated that, as a result of the error by Luongo LLC in placing the stairs that connected the cellar and garage, the space to park a vehicle was decreased, and thus, MacFarlane did not receive a three car garage.

Rocco also provided his opinions as to how to remedy the various problems in the home. One option was to tear down the home and have a new one installed correctly. Rocco noted a less costly alternative, but this option required, among other things, the removal of all appliances, cabinets, wiring and plumbing in the kitchen, as well as refinishing the subfloor and floor. Further, this would require that the home be vacant for thirty days.

The court rejected the claim of the Luongo parties that a check and letter sent by Amy Coppola, who lived with MacFarlane at the time, indicated MacFarlane's satisfaction with the home after the "punch list" had been completed. It further concluded that Luongo LLC had failed to perform its work in accordance with the drawings and specifications provided, as well as in a workmanlike manner. "This court finds that [Luongo LLC] has already been paid far too much for its work and is not entitled to receive its claimed balance of $18,959. Judgment enters on the amended complaint in favor of ... MacFarlane."

The court then found in favor of MacFarlane on his claim of breach of contract against Luongo LLC as a result of its failure to perform work in a proper, workmanlike manner. It awarded $61,938.43 in damages, which was comprised of the $6072.43 that MacFarlane had paid to repair various items and $55,866, which he will have to spend to repair the defects. The court also awarded consequential damages in the amount of $6000 for room and board costs that MacFarlane will incur during the repairs, as well as $40,000 for the diminution in value of the home even after the repairs have been made. The actual damages, therefore, awarded to MacFarlane totaled $107,938.43. This figure, however, was adjusted by the amount not paid by MacFarlane ($18,959) and the fact that MacFarlane had paid $1200 for blueprints that he never received. The final total of the actual damages awarded for the first count of the counterclaim was $90,179.43.

The court further found that, aside from providing MacFarlane with a copy of Luongo LLC's registration certificate, "[t]here was no evidence that [the Luongo parties] complied with the balance of [General Statutes] § 20–417d. Had they done so, then MacFarlane could have had some opportunity to determine something about the qualifications of [the Luongo parties] and determine whether they had ever constructed/installed a modular home before. The violation of § 20–417d is a violation of CUTPA. The fourth count of the counterclaim alleges a violation of CUTPA."

Relying on precedent from our Supreme Court, namely, Ulbrich v. Groth , 310 Conn. 375, 78 A.3d 76 (2013), the trial court noted that punitive damages and attorney's fees could be awarded, in the court's discretion, under CUTPA. In considering the propriety of these awards in the present case, the court stated: "Mere negligent workmanship might not justify an award of punitive damages. However, in this case [the Luongo parties] disregarded the modular home manufacturer's instructions and recommended installation methods. ... The construction of the house described by ... Rocco as 'shocking' combined with the failure to comply with ... § 20–417d justify the conclusion that the conduct of Luongo LLC was reckless within the meaning of CUTPA, and that punitive damages should be awarded by the court." The court awarded $15,025 for expert witness fees incurred by MacFarlane, as well as reasonable attorney's fees to be determined at a later date. Additionally, it awarded $150,000 in punitive damages, which, as the court noted, was greater than 1.5 times the actual damages of $90,179.43, but less than double the actual damages.³

The court also found that Luongo LLC had breached its express warranty, pursuant to § 47–117, and implied warranty, pursuant to § 47–118, but that MacFarlane failed to demonstrate a violation of § 47–121, which creates a warranty when a certificate of occupancy issues. The court then determined that MacFarlane had abandoned his claim regarding § 21–86. With respect to the sixth count of the counterclaim, the court found that Luongo was personally liable. "In this case, Luongo LLC contracted with MacFarlane, but the negligent and inept conduct of ... Luongo created the massive defects in the house. There was substantial evidence that Luongo supervised the placing of the beams and most other aspects of the construction on the property." In conclusion, the court rendered judgment in favor of MacFarlane and against the Luongo parties in the amount of $255,204.43 plus subsequently determined attorney's fees.⁴ This appeal followed. Additional facts will be set forth as needed.

I

The Luongo parties first claim that the court improperly denied their two motions to dismiss MacFarlane's counterclaim, which were based on the prior pending action doctrine. They appear to claim that the court failed to review its arguments that the counterclaim should be dismissed pursuant to the prior pending action doctrine and that this failure constituted an abuse of...