Marron and Sipe Bldg. and Contracting Corp. v. Flor
| Decision Date | 21 August 1990 |
| Docket Number | No. 7283,7283 |
| Citation | 580 A.2d 508,22 Conn.App. 689 |
| Court | Connecticut Court of Appeals |
| Parties | MARRON AND SIPE BUILDING AND CONTRACTING CORPORATION, et al. v. Holly FLOR, et al. NEW MILFORD CAR WASH, INC. v. SHERMAN EAST, INC. |
Charles F. Brower, Torrington, for appellants-appellees (defendants in the first case, plaintiff in the second case).
Vincent P. McCarthy, New Milford, for appellees-appellants (named plaintiff et al. in the first case).
Gregory J. Pepe, New Haven, for appellee (plaintiff in the first case Land Engineering Associates, Inc.).
Before NORCOTT, FOTI and LAVERY, JJ.
This is an appeal from judgments in two building contract cases that were consolidated by the court and tried to a jury. Case No. 43905 is a suit for money damages for nonpayment of the balances due for services and materials furnished in the construction of a car wash on Route 7 in New Milford. In that action, the owner filed counterclaims alleging negligence. Case No. 45565 is a suit by the owner against the car wash equipment supplier and installer for negligence.
We affirm the trial court's judgments.
Although the cases were consolidated in the trial court, they have separate case files, and we discuss them separately because they are complicated. In Case 43905 the plaintiffs are James Marron, Leroy Sipe, the Marron and Sipe Building and Contracting Corporation (M and S Corp.), Land Engineering Associates, Inc. (Land Engineering). The defendants are the New Milford Car Wash, Inc. (car wash) and Holly Flor. In case No. 45565 the plaintiff is New Milford Car Wash, Inc. (car wash), and the defendant is Sherman East, Inc. (Sherman East).
All of the parties were involved in the construction of the car wash in 1985. Flor hired M and S Corp., Land Engineering and Sherman East. M and S Corp. was hired to act as general contractor. Land Engineering supplied engineering designs for the septic system. Sherman East supplied car wash equipment, installed it and supplied the design for a trench that was to be constructed through the middle of the car wash. Construction began in June, 1985, and was completed on November 8, 1985, when the car wash opened for business. Certain problems that arose after construction were remedied by M and S Corp. 1
The operation of the car wash is relevant to the various claims made in this appeal. Cars enter the south end of the car wash and exit the north end. There is a front wheel pull conveyor system which transports the cars through the car wash. Beneath the conveyor track is a trench for catching water. A dam in the middle of the trench divides it in two. The southern half of the trench is for catching wash water, which contains various cleaning chemicals. The northern half catches rinse water which contains car wax, but no cleaning chemicals. The northern part is approximately two and one-half feet wide and forty feet long.
The purpose of the dam is to keep the two types of water separate. Wash water is recycled whereas rinse water is discharged into the septic system. State environmental regulations restrict the discharge of cleaning chemicals into the septic system.
Jay Keillor, the president of Land Engineering, designed the septic system for the disposal of rinse water. A twenty foot section of six inch pipe leads from the west side of the northern half of the trench to the outside wall of the car wash. A second pipe leads from the outside wall to the first septic tank. There are two 5000 gallon septic tanks in the disposal system. There are baffles in the septic tanks opposite from where the water enters the tanks, which trap floatable material. The tanks must be pumped clean regularly.
A pipe leads from the second septic tank to a precast gallery. A precast gallery is a large tank similar to a septic tank except its purpose is to disperse filtered water into the ground rather than to trap sediment. The precast gallery at the car wash has holes in its bottom and sits on top of a leaching field consisting of four trenches that are full of rock and concrete. Water from the car wash is returned to the groundwater through the leaching field.
The elevation of the leaching field and the tanks dictates the elevation of the car wash. The pipes leading from the car wash must have a particular minimum pitch in order for water to flow out to the septic system. An imaginary line at the inside bottom of a pipe, where the water flows, is known as the invert of the pipe. The minimum pitch of the invert of the twenty foot pipe inside the car wash is one-eighth inch rise per foot. The pipe was installed so that the invert had a pitch of three-sixteenths inch rise per foot.
The invert enters the car wash six inches from the bottom of the rinse water trench. The top of the dam is two to three inches higher than the invert at the opening of the pipe. If 15,000 gallons of water went into the septic system per eight hour day, the water level in the northern end of the trench would rise one and one-half inch higher than the invert of the pipe. Thus, it appears that there was a great deal of extra capacity built into the drainage system because, as Keillor estimated, the car wash would discharge 5000 gallons of rinse water per twenty-four hour day under ordinary usage.
William Quinlan, the president of Sherman East, supplied and installed the car wash equipment, such as the conveyor track, brushes, etc. Quinlan welded the conveyor track to the floor. He set the passenger side of the track zero to one inch higher than that of the driver's side, as specified by the equipment manufacturer. Metal plates were installed over the car wash trench. M and S Corp. began to drill and pin those plates to set them in place, but left the project to begin a new construction project. On March 7, 1987, Flor hired Thomas Laramy to inspect and service the car wash equipment. He testified that he found that some of the metal plates were not pinned, that some of the welds on the conveyor track had broken and that the passenger side of the conveyor track was not installed at the appropriate height. He stated that he charged Flor $4554.89 to repair these conditions, but the trial court did not allow Laramy's bills into evidence.
Case number 43905 commenced on May 21, 1986, when M and S Corp. filed a complaint against Flor and the car wash. 2 The complaint had four counts. In the first and second counts, M and S Corp. alleged that it had fully performed under its construction contract with the defendants and was contractually entitled to payment from them of $41,693.33. In the third count, M and S Corp. alleged that the defendants failed to give M and S Corp. a mortgage on property located at 107 Danbury Road as required under paragraph thirteen of the construction contract. The fourth count contained a claim for payment for electrical contracting services. The trial court ordered that this count be severed from the case. After it was severed, the count was then consolidated with case number 290323. See A.J. Masi Co. v. Marron & Sipe Building & Contracting Corporation, 21 Conn.App. 565, 567, 574 A.2d 1323 (1990).
On February 11, 1987, Land Engineering, which had been made a plaintiff in the action on January 26, 1987, also filed a complaint against Flor, alleging that Flor had refused to pay a $8269.17 debt on the ground that she thought M and S Corp. owed the amount to Land Engineering.
Flor filed two counterclaims. The first was filed on August 13, 1987, and named Leroy Sipe and James Marron individually, and also named M and S Corp. This counterclaim had two counts. In the first count, it charged that the plaintiffs negligently constructed the car wash. The second count alleged that the plaintiffs negligently underestimated the cost of construction by $217,000.
The second counterclaim, filed on May 13, 1987, named Land Engineering and alleged that Land Engineering negligently designed the drainage system of the car wash. M and S Corp. also filed a cross complaint against Land Engineering alleging negligence. Thereafter, Land Engineering filed a cross complaint on January 7, 1988, seeking indemnification from M and S Corp. in the event that the court ruled in favor of Flor on Flor's counterclaim against Land Engineering.
All of the parties made oral motions for directed verdict. The trial court then directed verdicts as follows: (1) in favor of James Marron and Leroy Sipe on the first count of Flor's counterclaim against them which count alleged that M and S Corp. acted negligently and breached its contract with Flor and the car wash; (2) in favor of M and S Corp. on Land Engineering's January 7, 1988 cross complaint against M and S Corp. seeking indemnity; and (3) in favor of Land Engineering on the counterclaim of Flor against Land Engineering alleging negligence.
The trial court submitted the remainder of the charges to the jury on separate verdict forms, and instructed the jury that its foreperson was to sign each form after the jurors had come to an agreement on each count. 3
After the verdicts were returned, Flor submitted motions to set them aside. The trial court denied all of these motions except her motion to set aside the jury's verdict on the third count of the complaint of M and S Corp., 4 which awarded M and S Corp. $9229.75 for damages arising out of Flor's refusal to give M and S Corp. a mortgage.
After the trial court rendered judgment in both cases in July, 1988, Flor and the car wash filed a joint appeal and M and S Corp. filed a cross appeal. Flor and the car wash appealed the judgment rendered on July 26, 1988, in case number 45565 as the plaintiff in the case, and they appealed the judgment rendered on July 28, 1988, in case number 43905 as the defendants in that case. M and S Corp. cross appealed as the plaintiff in case number 43905.
Flor claims in case 43905 that the trial court (1) should not have directed...
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