Nor'easter Group, Inc. v. Colossale Concrete, Inc.

• Decision Date: 17 May 1988
• Docket Number: No. 13291,13291
• Citation: 542 A.2d 692,207 Conn. 468
• Court: Connecticut Supreme Court
• Parties: The NOR'EASTER GROUP, INC. v. COLOSSALE CONCRETE, INC., et al.

Page 692

542 A.2d 692

207 Conn. 468

The NOR'EASTER GROUP, INC. v. COLOSSALE CONCRETE, INC., et al.

No. 13291.

Supreme Court of Connecticut.

Argued Feb. 9, 1988.

Decided May 17, 1988.

Mark A. Dubois, Hartford, with whom, on the brief, was Nancy Brouillet, Lebanon, for appellants (defendants).

James D. Hirschfield, Litchfield, for appellee (plaintiff).

Before ARTHUR H. HEALEY, SHEA, CALLAHAN, GLASS and HULL, JJ.

CALLAHAN, Associate Justice.

This is a contract action brought pursuant to General Statutes § 49-42 ¹ by the plaintiff, The Nor'easter Group, Inc. (Nor'easter), a subcontractor, to recover a balance due for labor and material furnished in the construction of a municipal swimming pool for the city of Torrington. The action was brought on a payment bond against Colossale Concrete, Inc. (Colossale), the general contractor and principal on the bond, and the Continental Casualty Co. (Continental), the surety.

Colossale, as general contractor, built the pool pursuant to a contract with the city of Torrington. Pursuant to an agreement with the defendant Colossale, the plaintiff, a swimming pool contractor, was to supply the labor and material for the installation of a stainless steel overflow system, drain piping, and forms for a gutter groove channel in connection with the pool construction. In conformity with General Statutes § 49-41 ² the defendant Colossale, as principal, and the defendant Continental, as surety, furnished a bond in the amount of $230,000 guaranteeing payment to subcontractors supplying labor and material to the project.

The plaintiff alleged that it had performed labor and furnished material for the pool project commencing in October, 1982, and terminating in July, 1984. At trial, through its president, Walter Liff, the plaintiff offered evidence that it had properly completed its portion of the Torrington pool contract and that there remained a balance due it of $25,817.84. It is undisputed that this balance remained unpaid for more than ninety days after the plaintiff last supplied labor or material to the job, before Nor'easter commenced suit under § 49-42 in October, 1984.

The defendant's president, Dominic Colossale, testified that Colossale had not paid the balance due on its contract with the plaintiff because the plaintiff's work was defective. He claimed that there were leaks in two of the drains installed by the plaintiff and that the city of Torrington would not accept the pool or pay Colossale the unpaid balance of approximately $75,000 on Colossale's contract with the city until the leaks were fixed. Dominic Colossale also testified that it had cost his company considerable money to locate the leaks and that he and others had attempted, without success, over a period of three years, to induce the plaintiff to correct the problems.

The trial court found for the plaintiff and rendered judgment for Nor'easter to recover from the defendants the total amount claimed of $25,817.84 together with costs and interest at the legal rate from July 6, 1984.

On appeal, the defendants claim that the trial court erred in: (1) awarding damages to the plaintiff when it had found for the defendants "on the issue of performance by the plaintiff"; (2) finding for the plaintiff despite the fact that it did not comply with the notice provision of General Statutes § 49-41a(b); and (3) awarding the plaintiff interest on the judgment.

I

The defendants first claim that the plaintiff cannot prevail because the trial court resolved the question of whether the plaintiff had performed its obligations under the contract with Colossale in the defendants' favor. That simply is not so. It is true that at the beginning of its memorandum of decision the trial court appears to have found "that the drains which Nor'easter had installed were leaking." ³ It went on in its memorandum, however, to determine "that the plaintiff has in fact established its right to recover against Colossale" and rendered judgment for the plaintiff for the full amount of its claim. ⁴ This seeming contradiction was clarified and resolved in the plaintiff's favor by the trial court's response to the plaintiff's subsequent motion for articulation. Therein the trial court stated that it had found "(A) ... that the plaintiff substantially performed its obligation under its contract with the defendant Colossale [and] (B) ... that the defendant Colossale failed to establish that a leak in the pool drain system was caused by the negligence or improper workmanship of the plaintiff Nor'easter."

Whether a building contract has been substantially performed is ordinarily a question of fact for the trier to determine. Edens v. Kole Construction Co., 188 Conn. 489, 494, 450 A.2d 1161 (1982); Randolph Con struction Co. v. Kings East Corporation, 165 Conn. 269, 274, 334 A.2d 464 (1973); Chinigo v. Ehrenberg, 112 Conn. 381, 384, 152 A. 305 (1930). The resolution of conflicting factual claims falls within the province of the trial court. Edens v. Kole Construction Co., supra 188 Conn. at 495, 450 A.2d 1161; Fairfield County National Bank v. DeMichely, 185 Conn. 463, 466, 441 A.2d 569 (1981). "The trial court's findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. Practice Book § 3060D; Superior Wire & Paper Products, Ltd. v. Talcott Tool & Machine, Inc., 184 Conn. 10, 17, 441 A.2d 43 (1981); Pandolphe's Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980)." Edens v. Kole Construction Co., supra, 188 Conn. at 494, 450 A.2d 1161. We cannot retry the facts or pass on the credibility of the witness. Id., 495, 450 A.2d 1161; Vesce v. Lee, 185 Conn. 328, 335, 441 A.2d 556 (1981).

Upon reviewing the entire record we can find no reason to disturb the trial court's finding that the plaintiff had substantially completed the contract with the defendant and was entitled to recover the full amount of its claim. The trial court's factual findings and ultimate conclusion are adequately supported by the record and are not clearly erroneous. Practice Book § 4061; see also Pandolphe's Auto Parts, Inc. v. Manchester, supra; Howie's Painting Service, Inc. v. Ferreria, 12 Conn.App. 583, 584, 532 A.2d 1318 (1987).

II

The defendants next contend that the trial court erred when it determined that it was unnecessary for the plaintiff to give the defendants the notice required by General Statutes § 49-41a(b) ⁵ before commencing suit on the defendants' payment bond under General Statutes § 49-42. The defendants argue that § 49-41a(b) is an integral part of the statutory scheme that furnishes a subcontractor a cause of action against the general contractor and the surety on a payment bond under § 49-42. The defendants claim that § 49-41a(b) must be read together with, and its notice provision applied to § 49-42. Therefore, they argue that the plaintiff's failure to give them the notice that they contend was required by § 49-41a(b) is a jurisdictional defect which requires "the plaintiff's claim [under § 49-42] to fail." We disagree.

A brief summary of the applicable provisions of §§ 49-41, 49-41a(a) and (b), and 49-42 is necessary in order to place the defendants' claim in proper perspective. At all relevant times § 49-41 required that, before any contract exceeding $1000 could be awarded for the construction of a public work by the state or a municipality, the general contractor selected for the job furnish a surety bond in the amount of the contract for the protection of subcontractors supplying labor or materials in the prosecution of the work. Section 49-41a(a) required that a contract for a public work for which a payment bond was required contain a provision that the general contractor pay amounts due any subcontractor for labor or materials supplied, within forty-five days after payment to the general contractor by the state or municipality, when the labor or materials supplied by the subcontractor were included in the requisition of the general contractor paid by the state or municipality. ⁶

At all relevant times, § 49-41a(b) provided that if payment was not made to a subcontractor in accordance with the requirements of § 49-41a(a), "the subcontractor shall set forth his claim against the general contractor ... by registered or certified mail. Ten days after the receipt of that notice the general contractor shall be liable to its subcontractor ... for interest on the amount due and owing at the rate of one per cent per month. In addition, the general contractor, upon written demand of its subcontractor ... shall be required to place funds in the amount of the claim, plus interest of one per cent, in an interest bearing escrow account in a bank in this state...." (Emphasis added.) Section 49-41a(b) also provided that the general contractor could refuse to place the funds in escrow if the subcontractor's claim was disputed. If the subcontractor prevailed on its claim in arbitration or litigation, however, the general contractor was responsible for the attorney's fees of the subcontractor.

At all relevant times § 49-42(a) provided that every person who had furnished labor or material in the prosecution of the work provided for in a public works contract for which a payment bond was furnished under the provisions of § 49-41, and who had not been paid in full within ninety days after last performing labor or furnishing material, had the right to sue on the payment bond for the amount unpaid at the time of the institution of suit. It further provided that a person having a contractual relationship with a subcontractor, but none with the general contractor furnishing the payment bond, had a right of action on the payment bond, upon giving written notice detailing his claim, by registered or certified mail, to the general contractor within ninety days from the day on which that person last performed the labor or furnished the material for...