Ray Weiner, LLC v. Connery

• Citation: 75 A.3d 771,146 Conn.App. 1
• Decision Date: 24 September 2013
• Docket Number: No. 34799.,34799.
• Court: Appellate Court of Connecticut
• Parties: RAY WEINER, LLC v. W. Hudson CONNERY, Jr., et al.

146 Conn.App. 1

75 A.3d 771

RAY WEINER, LLC

v.W. Hudson CONNERY, Jr., et al.

No. 34799.

Appellate Court of Connecticut.

Argued May 21, 2013.

Decided Sept. 24, 2013.

Daniel Shepro, Stratford, for the appellant (plaintiff).

James J. Nugent, Orange, with whom was Julia A. Nugent, for the appellees (defendants).

LAVINE, KELLER and HARPER, Js.

HARPER, J.

The plaintiff, Ray Weiner, LLC, doing business as All Phase Construction, appeals from the judgment of the trial court in favor of the defendants W. Hudson Connery, Jr., and Ann Moore ¹ on each count of the plaintiff's complaint and each count of the defendants' counterclaim in the total amount of $145,773.44. On appeal, the plaintiff claims that the trial court erred (1) in using an incorrect measure of damages, (2) in finding defects attributable to the plaintiff, and (3) in determining that the plaintiff was a general contractor for purposes of the Home Improvement Act (act), General Statutes § 20–418 et seq. We affirm the judgment of the trial court.

The following facts and procedural history, as set forth by the trial court and established from the record, are relevant to our resolution of this appeal. The plaintiff is engaged in the construction of residential and commercial properties. In April 2006, Moore and the plaintiff entered into an agreement for the renovation and expansion of an existing single-family residence owned by the defendants and located at 11 Soundview Place in Milford. ² Moore hired James McElroy, an architect, to draw up plans to renovate the house and construct an addition. The agreement between Moore and the plaintiff indicated that, with respect to the McElroy plans, the plaintiff would provide supervision of site work, excavation, concrete, exterior sheathing, house wrap, exterior trim including rakes, fascia board, crown molding and soffit board, framing, window installation, electrical, mechanical, masonry, roofing, insulation, dry wall and taping of three coats ready for painting and to provide site protection and shoring to keep all existing conditions free from damage due to weather.

The guaranteed maximum price for the project was $284,654.60, including costs of $249,686, profit and overhead of $24,968.60, and contingency of $10,000. It was understood and agreed that work change orders properly submitted and approved could change the ultimate cost of the project. Proposed work change orders were to be submitted by the project manager, Robin McCready. The defendants had an open book right to see all invoices and moneys charged by subcontractors and suppliers regarding both contract work and change order work. The plaintiff was required to maintain a daily project log containing a record of the weather, subcontractors working on the site, number of workers, work accomplished, problems encountered and other similar relevant data. The plaintiff also was required to provide monthly written reports to the defendants and architect on the progress of the entire work.

Work began in the fall of 2006 and continued into 2007. The defendants approved and signed various change orders and paid invoices as they were submitted and periodically asked McCready for an accounting of project manager hours, subcontractor billing and how deposit moneys were being used. In early 2007, the defendants were concerned about the progress of the job and the quality of the work that had been done up to that time. They consulted the Roger Ferris architectural firm (Roger Ferris) with the intent of making changes to the house as set out in the McElroy plans. Rob Marx, an architect with Roger Ferris, became the architect on the project and, due to structural concerns, he advised the defendants to hire Ken Jones, a structural engineer, to review the project. After a meeting between Marx, Moore and McCready, changes were made to the original McElroy plans wherein Moore was charged a drafting fee for the changes. The parties disputed the amount of work that had been completed up to this time and the extent to which changes to the project required the plaintiff to redo work that already had been completed. The parties also disputed the quality of the work that had been completed.Ultimately, after a change order was submitted by the plaintiff in excess of $600,000, the plaintiff was discharged by the defendants in May, 2007.

On August 6, 2007, the plaintiff filed a mechanic's lien on the subject property in the amount of $117,154. On July 17, 2008, the plaintiff filed a complaint seeking, inter alia, foreclosure of the mechanic's lien. The lien was released by the plaintiff on June 5, 2009, and an escrow account in the amount of $45,000 was created in order for the defendants to obtain refinancing. The plaintiff filed an amended four count complaint seeking distribution of the escrowed proceeds and alleging claims for breach of contract, unjust enrichment and quantum meruit. The defendants filed an answer denying the plaintiff's claims and setting forth a number of special defenses, most notably, that the plaintiff failed to comply with the provisions of the act. The defendants also filed a six count counterclaim alleging breach of contract, negligence, negligent hiring and supervision of subcontractors, violations of the act, and two theories of violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42–110a et seq. The plaintiff filed a response denying the defendants' counterclaim. A trial was held from April 26, 2011, through May 19, 2011.

In its memorandum of decision, the trial court concluded that the plaintiff's claims were barred due to its failure to comply with the requirements of the act. The trial court further found in favor of the defendants on all counts of their counterclaim, awarding total damages in the amount of $145,773.44. In addition to the damages awarded, the court ordered the escrowed funds in the amount of $45,000 be distributed to the defendants. The court denied the plaintiff's motion to open and modify the judgment. This appeal followed.

I

The plaintiff first claims that the court utilized an incorrect measure of damages in determining the amount owed to the defendants on their counterclaim. Specifically, the plaintiff argues that the court erred by awarding the defendants damages for unfinished work on the construction project, as that was money that “the owner would have to pay ... in any event” to complete the project. According to the plaintiff, it “was required to pay for unfinished work under the judgment and for which it otherwise would have been paid ... [and] [a]s a result it is paying twice.” We are not persuaded.

The following additional facts and procedural history are relevant to our resolution of this claim. In its memorandum of decision, the trial court noted that the defendants claimed $145,773.44 in damages, “which they allegedly incurred for the repair of the plaintiff's poor workmanship and unfinished work,” and stated that “[i]n assessing such damages, the court is required to determine what portion of the claim is for work which the [plaintiff] did incompetently or not at all and which portion is attributable to new work ... which was done to complete the project. The [defendants] are not entitled to have the cost of the entire project saddled on [the plaintiff].” The court cited the testimony of Jeff Carter ³ and Jim Lively, contractors “who assessed and supervised the repairs” done to address incompetent work performed by or billed but not performed by the plaintiff, and found that the total cost of labor and materials dedicated to such repairs and completion of work was $58,876.83 for Carter and $40,839.61 for Lively. The court specifically noted that Lively “was careful to distinguish remedial or repair work from new construction as evidenced by time sheets.” Additionally, the court found that the defendants were entitled to reimbursement of $46,057 for deposits paid to the plaintiff for work that was never performed by unpaid subcontractors.

The plaintiff moved to open and modify the judgment of the court, asserting, inter alia, that the court could not have determined which portions of Carter's and Lively's bills covered work for which the defendants had paid the plaintiff. The court denied the motion.

It is well settled that “[t]he trial court has broad discretion in determining damages....” O & G Industries, Inc. v. All Phase Enterprises, Inc., 112 Conn.App. 511, 528, 963 A.2d 676 (2009). “When, however, a damages award is challenged on the basis of a question of law, our review is plenary.” (Internal quotation marks omitted.) Day v. Gabriele, 101 Conn.App. 335, 346, 921 A.2d 692, cert. denied, 284 Conn. 902, 931 A.2d 262 (2007). “It is axiomatic that damages are awarded on the basis of facts and credible evidence, as found by the trier of fact. On appeal, [w]e will upset a factual determination of the trial court only if it is clearly erroneous.... We cannot retry the facts or pass on the credibility of the witnesses.” (Internal quotation marks omitted.) Robert v. Scarlata, 96 Conn.App. 19, 22, 899 A.2d 666 (2006).

“As a general rule, in awarding damages upon a breach of contract, the prevailing party is entitled to compensation which will place him in the same position he would have been in had the contract been properly performed.... For a breach of a construction contract involving defective or unfinished construction, damages are measured by computing either (i) the reasonable cost of construction and completion in accordance with the contract, if this is possible and does not involve unreasonable economic waste; or (ii) the difference between the value that the product contracted for would have had and the value of the performance that has been received by the plaintiff, if construction and completion in accordance with the contract would involve unreasonable economic waste.” (Citations omitted; internal quotation marks omitted.) Levesque v. D & M Builders, Inc., ...