Pisani Construction, Inc. v. Krueger

• Decision Date: 19 February 2002
• Docket Number: (AC 21273)
• Citation: 791 A.2d 634,68 Conn. App. 361
• Court: Connecticut Court of Appeals
• Parties: PISANI CONSTRUCTION, INC. v. ADOLF W. KRUEGER ET AL.

68 Conn. App. 361

791 A.2d 634

PISANI CONSTRUCTION, INC. v. ADOLF W. KRUEGER ET AL.

(AC 21273)

Appellate Court of Connecticut.

Argued January 22, 2002.

Officially released February 19, 2002.

Schaller, Mihalakos and Hennessy, JS.

Richard Bruno, for the appellant (plaintiff).

Robert L. Keepnews, for the appellee (defendant Ida J. Krueger).

Opinion

MIHALAKOS, J.

In this action to foreclose a mechanic's lien, the plaintiff, Pisani Construction, Inc., appeals from the judgment of the trial court in favor of the defendants Adolf W. Krueger and Ida J. Krueger.¹ The plaintiff claims that the court improperly (1) found that the plaintiff had not substantially performed its obligations under its construction contract with the defendant and (2) permitted the defendant to retain the last payment due to the plaintiff under the contract. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our consideration of the issues in the plaintiffs appeal. On April 17, 1986, the parties entered into an agreement whereby the plaintiff agreed to erect a metal building on the defendant's site as an addition to an existing structure. Pursuant to the agreement, the existing structure was to share a common wall with the new building, and the frames and panel heights of the new building were to match with those of the existing structure. After the parties signed the agreement, the defendant made an initial payment of $21,500 to the plaintiff. Construction then commenced in November, 1996, and the plaintiff finished construction in January, 1997.

Shortly before completion, it was determined that the roof line of the new building was, and continues to be, approximately three inches higher than that of the existing structure. The plaintiff offered the defendant no resolution to the problem, but field modified the ridge caps of the buildings to blend the roof lines. The discrepancy had other consequences, however, including misalignment of the gutters and windows of the two buildings, which resulted in an icing problem in the winter. The plaintiff thereafter filed a one count complaint seeking to foreclose on the mechanic's lien that it had filed against the defendant's property. The defendant filed an answer and a two count counterclaim, alleging breach of contract and breach of the covenant of good faith and fair dealing.

On the basis of the fact that a key component of the contract, which was that the frames and wall panel heights were supposed to match on the two structures, was not fulfilled, the court found that the plaintiff had not substantially performed under the terms of the agreement and could not prevail in its foreclosure action. Because the plaintiff sought no other relief, the court therefore rendered judgment in the defendant's favor on the complaint and in the plaintiffs favor on the counterclaim. This appeal followed.

I

The plaintiff first claims that the court's finding that the plaintiff had not substantially performed its contractual obligations was clearly erroneous.² We disagree.

"The determination of [w]hether a building contract has been substantially performed is ordinarily a question of fact for the trier to determine." (Internal quotation marks omitted.) Miller v. Bourgoin, 28 Conn. App. 491, 496, 613 A.2d 292, cert. denied, 223 Conn. 927, 614 A.2d 825 (1992). "We have long held that a finding of fact is reversed only when it is clearly erroneous. See, e.g., Poulos v. Pfizer, Inc., 244 Conn. 598, 616, 711 A.2d 688 (1998). A factual finding is clearly erroneous when it is not supported by any evidence in the record or when there is evidence to support it, but the reviewing court is left with the definite and firm conviction that a mistake has been made. Id. Simply put, we give great deference to the findings of the trial court because of its function to weigh and interpret the evidence before it and to pass upon the credibility of witnesses." (Internal quotation marks omitted.) American Heritage Agency, Inc. v. Gelinas, 62 Conn. App. 711, 717, 774 A.2d 220, cert. denied, 257 Conn. 903, 777 A.2d 192 (2001).

One decade ago, our Supreme Court considered an issue not unlike that with which we are faced here, namely, the situation in which the builder seeks to foreclose when the purchasers refuse to pay the remainder of the contract price and the purchasers claim a lack of substantial performance of the contract as a defense. See generally Argentinis v. Gould, 219 Conn. 151, 592 A.2d 378 (1991). In that case, our Supreme Court stated: "Generally, when a builder breaches a bilateral construction contract by an unexcused failure to render substantial performance, he cannot maintain an action on the contract to recover the unpaid balance of the contract price because substantial performance, a constructive condition of the owner's duty to pay the balance, has not been satisfied." Id., 157.

The plaintiff, in support of its claim that the court improperly found that it had not substantially performed its obligations under the contract, claims that the court in its memorandum of decision found that "the building `had been completed and ... is being utilized by the defendant.'" Mere use of the building is not enough, however, for substantial compliance to be found. "The analysis necessarily involves an inquiry into the totality of facts and circumstances surrounding the performance of the contract." Miller v. Bourgoin, supra, 28 Conn. App. 496....