Rizzo Construction Pool Co. v. Riefler, 391537 (Conn. Super. 12/3/2003)
| Decision Date | 03 December 2003 |
| Docket Number | 391537 |
| Court | Connecticut Superior Court |
| Parties | Rizzo Construction Pool Co. v. Stewart Riefler et al. |
The plaintiff, Rizzo Construction Co., brings the present action in two counts, breach of contract and unjust enrichment. The first count alleges that the plaintiff entered into contracts with the defendants, Stewart and Sheryl Riefler, to complete the construction of a swimming pool, deck and certain extras at the defendants' home for a total contract price of $44,140.00. The plaintiff further alleges that the defendants paid the plaintiff the sum of $38,098.10, thereby leaving a balance due and owing to the plaintiff of $6,041.90. The second count alleges that the reasonable value of the labor and materials supplied by the plaintiff is $44,140.00 and that the defendants have been unjustly enriched in the amount of $6,041.90.
The defendants answered the complaint and interposed a special defense alleging that the plaintiff engaged in unfair and deceptive trade practices in the course of dealing with the defendants, in violation of General Statutes §42-110a et seq., the Connecticut Unfair Trade Practices Act (CUTPA). The defendants also filed a two-count counterclaim, alleging that the plaintiff breached its contract with the defendants and engaged in unfair and deceptive trade practices in violation of CUTPA.
The case was tried to the court without a jury on July 22, 2003. Thereafter, the parties filed post-trial briefs. The court having heard the evidence, examined the exhibits and reviewed the parties' briefs, finds the following facts.
In 2000, the defendants hired a contractor, Ed Carter, to construct a swimming pool at their Westport home. Carter constructed the "shell" for the pool and certain other items. However, the contractual relationship between the parties broke down the same year, long before the pool was substantially completed.1
The defendant2 contacted the plaintiff in September 2000. Richard Langley, a design consultant employed by the plaintiff, was the person with whom the defendants dealt throughout the relationship. On November 11, 2000, the parties executed two written contracts. In one contract, the plaintiff agreed to finish the construction of the swimming pool for $38,750. In the second contract, the plaintiff agreed to construct a pool deck for $11,242. On November 17, 2000, the parties executed addenda to these contracts whereby two items, including most electrical work, were removed from the pool contract and the contract price was reduced to $32,458.00. The price for the deck remained the same. The addenda required the defendants to make progress payments as the plaintiff completed certain specified items.
The pool contract called for the plaintiff to perform the following work:
1. Pressure test and mark all line flow pool to equipment pad.
2. Install equipment pad, install
A. Filter sta-rite modular media Cartride
B. Sta-Rite pump 2 H.P.
C. Install raypak RPwq00 electronic ignition 405000 BTU propane pool/spa cobo heater
D. Connect all equipment to plumbing lines.
3. Install and connect Polaris 380 . . .
4. Install automatic water fill line in spa.
5. Install blower motor within 12 feet of spa.
6. Tile bench, steps, swimout and seat in spa at edge with 1" tile.
7. Install lights in pool and one in spa.
8 Acid wash tile grouting, then seal tile and grouting to minimize any bleeding into white plastered pool.
9. Plaster pool and spa with diamond coat marbilite plaster in color white.
10. Dig hole and bury home owners propane tank.3
The contract included the following payment schedule: 10 percent was payable on the signing of the contract; 50 percent of the balance on the contract was due on completion of items 1 though 5; the next 20 percent was due on the completion of items 6 through 8; the next payment of 20 percent was due on the completion of items 9 and 10; and the final payment of 10 percent was due on the starting of the equipment.
The entire payment on the deck contract was due on the pouring on the deck.
The plaintiff commenced work in November 2000, and, as the parties contemplated, suspended work in December 2000, for the winter. On January 2, 2001, the defendant sent the plaintiff a check for $20,000 together with a letter expressing, inter alia, that he was pleased with the work done to date, though he observed that the blower and the lights in the pool had not yet been installed. The defendant also notified the plaintiff that he had chosen "lite dove grey" for the color of the deck.
The plaintiff resumed work in March or April 2001. Work was delayed because the plaintiff had some difficulty with subcontractors. In early April, the harmonious relationship between the parties began to deteriorate over an incident involving tiles in the spa originally installed by Carter. On April 4, 2001, an employee of the plaintiff observed that one tile, or a small number of tiles, had fallen off. Suspecting that other tiles were loose and had not been properly installed, the employee tapped on other tiles to ascertain if the tiles were, in fact loose. The employee tapped off over twenty tiles that either fell or, were determined to be loose.
The defendant was upset that the plaintiff's employee had done this in his absence and without his permission. He also was upset that the tiles became loose and fell off because water had gotten behind them after he had paid the plaintiff to have them sealed the previous year. He expressed these concerns in a letter to the plaintiff. In the same letter he changed his color selection for the deck from lite dove grey to dove grey.
The plaintiff indicated that the entire spa wall should be re-tiled, for which the cost would be $2,462.00. The defendant opted to replace only tiles that had fallen or been removed, for which the plaintiff charged $250.
By May, the defendants had paid the plaintiff $38,098.10 of the total contract price and refused to pay the remaining $ 6,042.40. In part, this was based on the defendant's inadvertent miscalculation as to the percentage of the job for which the defendants had already paid, as the defendant admitted at trial. The defendants believed in May and June 2001, that they had paid the plaintiff 89.2 percent of the contract price when, in fact they had paid only 86.3 percent. They also incorrectly believed that the deck constructed by the plaintiff was undersized. However, the defendants also were dissatisfied with the work. Langley met with the defendants to resolve their issues. Following a telephone conversation with the defendant in late May 2001, Richard Langley wrote to the defendant enumerating the defendant's list of concerns. Those concerns were: (1) temporary fence not erected, (2) blower motor not connected on spa, (3) tile wall only half sealed, (4) one piece of tile missing on swimout, (5) Stegmeir form under deck in pool was an undesirable color, white, (6) the Polaris system was not hooked up, (7) a leak in the plumbing line at the Polaris pump, (8) the deck color not dove grey but light dove grey, and (9) two rakes belonging to the defendants had been damaged.
Langley explained the plaintiff's position on those items. Langley stated that of the $6,042 balance on the contracts, $ 3,200 was past due and that after the defendants made that payment the plaintiff would (1) reattach the temporary fence, (2) connect the blower for the spa, (3) reseal the tile on the spa wall, and (4) repair the leak in the plumbing line.
In a letter dated June 4, 2001, the defendant responded that he did not owe the plaintiff any further monies and, in fact, was ahead of his payments. He asserted that he would pay the balance on the contracts when the pool was "up and running to my satisfaction." He also accused the plaintiff of having deliberately and unjustifiably delayed the work.
In an attempt to resolve their impasse, Rizzo met with the defendant on the morning of June 19, 2001. At the meeting the defendant presented the plaintiff with a document entitled "Punchlist/Agenda." The document had three subheadings: "punchlist," "major issues" and "minor issues."
Major issues listed were: 1. part of tile wall torn down without authorization; 2. file strip available in grey, 3. unjustified suspension of work as of 5/5/01 (-blower, -polaris, -jandy -skimmers, -fence, -dirt adhering to plaster).
At the meeting, the "punchlist" presented by the defendant contained eleven items: 1. autofills defective, 2. spa-side switch not level, 3. old spa-side switch tubing exposed, 4. polaris valve defective, 5. nose caps exposed, 6. nose caps uneven, 7. file strip uneven, 8. tile wall not restored as was, 9. rough spots in plaster, 10. return covers not installed, and 11. spa light (and maybe pool light) too hot.
The plaintiff responded to these items by letter dated June 20, 2001, as follows:
The plaintiff's position on the major issues was that any apparent imperfection in the plaster was not dirt, but trowel marks in the plaster that created variances in color. The plaintiff offered to try to rub them out when it sent a diver down.
"This is the work that we can do to help satisfy you," wrote the plaintiff's president, Albert...
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