Mazier v. Signature Pools, Inc.

• Court: Connecticut Court of Appeals
• Writing for the Court: BISHOP, J.
• Citation: Mazier v. Signature Pools, Inc., 159 Conn.App. 12, 123 A.3d 1 (Conn. App. 2015)
• Decision Date: 04 August 2015
• Docket Number: No. 36283.,36283.
• Parties: Alex MAZIER et al. v. SIGNATURE POOLS, INC.

159 Conn.App. 12

123 A.3d 1

Alex MAZIER et al.

v.SIGNATURE POOLS, INC.

No. 36283.

Appellate Court of Connecticut.

Argued Feb. 5, 2015.

Decided Aug. 4, 2015.

Stephan E. Seeger, with whom, on the brief, was Igor G. Kuperman, Stamford, for the appellant (defendant).

Michael J. Barnaby, Greenwich, for the appellees (plaintiffs).

GRUENDEL, LAVINE and BISHOP, Js.

Opinion

BISHOP, J.

In this breach of contract and negligence action involving a dispute between the plaintiff homeowners and the defendant swimming pool contractor, the defendant, Signature Pools, Inc., appeals from the judgment rendered upon a jury verdict in favor of the plaintiffs, Alex Mazier and Giselle Mazier, for $62,142.86.¹ On appeal, the defendant claims that the trial court, Povodator, J., incorrectly (1) denied certain of the defendant's requests to charge; (2) denied a motion in limine regarding the law of the case; (3) permitted parol evidence where the language of the contract was clear and unambiguous; (4) denied the defendant's motion for a directed verdict; (5) denied the defendant's request to charge on professional negligence; and (6) denied the defendant's motion for a mistrial. We affirm the judgment.

At trial, the jury reasonably could have found the following facts. On March 22, 2007, the parties entered into a contract for the defendant to construct an in-ground swimming pool at the plaintiffs' residence in Wilton (town). Although the contract contained multiple clauses, the following provisions are particularly germane to the parties' ultimate dispute and to our resolution of this appeal:

“APPLICATION FOR PERMIT: If a permit authorization is part of this Agreement, [the defendant] shall attempt to obtain the building permit for you for the construction of the pool. If a building permit cannot be obtained by [the defendant], you shall attempt to obtain the permit at your expense. If the permit cannot be obtained, this Agreement will be canceled and any deposit refunded less any costs incurred by [the defendant]. You shall be responsible for obtaining any zoning variances, wetland approvals, coastal area management approvals, changes, plot plans, test borings, percolation tests, certificates of occupancy or special items required for [the defendant's] performance of the work. You shall pay all costs and fees in connection with obtaining/doing any of them. You shall be responsible for all required variances, surveys, and associated permits and fees....

“POOL LOCATION: You represent that you have title to the property that the pool is to be located on. You also represent that the access way and pool location is within your property lines and clear of setbacks, wetlands restrictions, underground installation and overhead power lines and that the equipment and pool location complies with all applicable zoning laws.

“You also represent that the pool location is on original ground and that it will not interfere with support of existing or proposed structures. You also acknowledge that you directed the location of the pool and other improvements and you shall not hold [the defendant] liable for any alleged incorrect location of the pool. You will indemnify, hold harmless and defend [the defendant] from any claim, loss or expense (including reasonable attorneys' fees) arising by reason of trespass and/or damage by [the defendant] resulting from your designation of pool location or access routes or by reason of any work by you or others.”

Before entering into the contract with the defendant, the plaintiffs had purchased their home from Carmine Tomas, who had constructed it on speculation. After purchasing the property, and upon deciding to enhance it with a pool, the plaintiffs sought the advice of Tomas and his spouse, Tracy Castelli. The plaintiffs retained Castelli to assist them in the selection of the pool contractor, in the process of determining the placement and installation of the pool, and for landscaping the property. Pursuant to her role as the plaintiffs' advisor and agent, Castelli prepared a tissue sketch to show the pool's general dimensions and location.²

The jury heard evidence, as well, that Tomas, acting on behalf of the plaintiffs, submitted an application to the town for approvals, including zoning, for the construction of the pool and its location. With the application, Tomas submitted a plot plan that had been developed by a land surveyor at the behest of the plaintiffs. This plan showed the pool's proposed location, including its distance from adjacent property lines. The town approved the plaintiffs' plans and application on March 29, 2007. The plot plan submitted on behalf of the plaintiffs, together with their application, became part of the town's building permit file related to the pool. Once the approvals had been obtained, the defendant, on April 11, 2007, filed an application for a building permit with the town, making reference in the application to the town's prior zoning approval for the pool construction. Castelli, on behalf of the plaintiffs, provided the defendant with a copy of the plot plan filed with the town.³

Thereafter, the defendant constructed the pool in a location consistent with the sketch it asserted Castelli had provided to the defendant and in accord with the location of the stakes the defendant had utilized to mark the pool's intended location.

Unbeknownst to the parties, the pool was not situated in accord with the plot plan but, instead, it was located closer to an adjacent property line than required by the setback provisions of the town's zoning regulations. During the spring of 2008, the town informed the plaintiffs that the pool had been situated in a location on the property that resulted in a violation of the town's zoning regulations regarding the required minimum setbacks from an adjacent property line. Unable to obtain a variance and subject to a subsequent cease and desist order from the town, the plaintiffs, on January 6, 2011, entered into a stipulation with the town, agreeing that the pool was in an improper location, agreeing to pay the town's legal fees, and agreeing to relocate the pool. In December, 2011, the plaintiffs commenced this action which resulted, following a verdict for the plaintiffs, in an award of $62,142.86 for the plaintiffs against the defendant. This appeal followed.

I

The defendant claims that the court incorrectly denied its request to charge on the “exculpatory provision” in the contract. The defendant claims, as well, that the court incorrectly instructed the jury that the provision should be ignored and that the plaintiffs' acknowledgements regarding their responsibility for the location of the pool were “ ‘ambiguous'....” The defendant bases this argument on its assertion that the contract between the parties contained a clear, precise and unambiguous exculpatory provision in favor of the defendant, and on the ground that the contract contained a provision through which the plaintiffs acknowledged that they bore the responsibility for the location of the pool and that they did in fact direct its placement.

Indeed, the contract between the parties contained an “exculpatory provision” that included both an acknowledgement by the plaintiffs that they directed the location of the pool, and language purporting to indemnify and hold harmless the defendant from any claims relating to the pool's siting. As noted, the first sentence, the acknowledgement of responsibility, reads: “You also acknowledge that you directed the location of the pool and other improvements and you shall not hold [the defendant] liable for any alleged incorrect location of the pool.” The second sentence, containing the indemnification and hold harmless provision, reads: “You will indemnify, hold harmless and defend [the defendant] from any claim, loss or expense (including reasonable attorneys' fees) arising by reason of trespass and/or damage by [the defendant] resulting from your designation of pool location or access routes or by reason of any work by you or others.”

In regard to the “exculpatory provision” as a whole, the defendant submitted the following request to charge: “You've heard evidence regarding contract between the [p]laintiff and the [d]efendant in this case. If you find that the contract in this case expressly and unambiguously purports to release the [defendant] from prospective liability for the incorrect location of the pool and that the terms of the contract are unambiguous, understandable, clear and coherent and that an ordinary person of reasonable intelligence would understand that, by signing the agreement, he or she was releasing the [defendant] from liability for the incorrect location of the pool, then you must find that the [d]efendant is not liable to the [p]laintiffs for the losses and damages arising from the incorrect location of the pool.”

The court did not give the defendant's requested charge. Instead, the court gave separate and distinct instructions on each of the two sentences contained in this part of the contract. On appeal, the defendant argues that both of these instructions were in error.

We begin by setting forth the legal principles and standard of review that guide our analysis. “Our standard of review regarding properly preserved claims of improper jury instructions is well settled. In reviewing claims of instructional [impropriety], we seek to determine whether it was ... reasonably possible that the jury was misled by the trial court's instructions.... [T]he charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding [it] to a correct verdict in the case.... The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge.... The test to be applied ... is whether the charge, considered as a whole, presents the case to the jury so that no...