Opinion
No. CV08 5024991S
October 19, 2011
MEMORANDUM OF DECISION
This action seeks to foreclose a mechanic's lien for improvements to real property located in North Branford, Connecticut. The plaintiff, Clem Martone Construction, LLC (Martone), a contractor and homebuilder, commenced the action on November 25, 2008 by service of summons and complaint for foreclosure of a mechanic's lien for its improvements to property owned by the defendants Patrick and Gina DePino (the DePinos).
New Alliance Bank and Nicola Carusone were also named defendants. New Alliance Bank was subsequently granted judgment on January 25, 2011 in accordance with a settlement. Nicola Carusone did not file an appearance in the matter. Thus, Patrick and Gina DePino will be referred to as the defendants throughout this memorandum.
The one-count complaint alleges the following facts. The DePinos own, and are in possession of, land situated at 132 White Hollow Road in the town of North Branford. Martone "supplied materials and performed services in connection with the construction and erection of a house upon said premises, under an agreement with the defendants dated August 29, 2007, by which the plaintiff was to build said house, and the defendants were to pay the plaintiff $362,308.56 . . . Martone commenced construction of the house on September 21, 2007 and completed the same on June 7, 2008, according to said contract. The DePinos have paid the plaintiff $330,658.53, leaving a balance due of $31,660.03." On September 2, 2008, Martone "to secure the balance of $31,660.03, filed a certificate of Mechanic's Lien in writing, by it duly signed and sworn to, with the North Branford Town Clerk, which certificate was duly recorded in the North Branford Land Records. A true and attested copy of said certificate was served on the defendants on September 2, 2008." As of the date of the complaint, "no part of said sum of $31,660.03 has been paid." Martone claims foreclosure of the mechanic's lien, possession of said premises, and damages. The DePinos, on April 8, 2009, filed an answer, along with counterclaims. In the answer, the DePinos admitted that they owned and possessed the property upon which the home was built, and that a valid mechanic's lien had been filed and served upon the defendants, but denied the remaining allegations of the complaint.
The original complaint had the date of filing of the mechanic's lien as March 2, 2008. This date was later amended without objection, to reflect the filing date of the mechanic's lien as being September 2, 2008.
Thereafter the DePinos filed a counterclaim, which it subsequently revised on August 3, 2009. The revised counterclaim alleges the following. The DePinos own the premises at issue located at 132 White Hollow Road, and Martone supplied materials, labor and services in connection with construction of a house upon said property. Martone failed to perform its labor and services in a good and workmanlike fashion, and the DePinos lists nineteen particular deficiencies. These deficiencies can be categorized as falling into one of two broad categories: (1) the failure of Martone to construct the home in accordance with the original home construction design and plans, and (2) specific allegations of substandard construction work performed by Martone. Specifically, these deficiencies include, inter alia, unauthorized deviations from the plan in construction of framing deficiencies include, inter alia, unauthorized deviations from the plan in construction of framing supports, building foundation, and roof; installation of the septic system on wrong side of home; improper location of chimney and fireplace; incorrect grading of the site; failure to install ground fault interrupter circuits; air conditioning compressor and kitchen island not installed on a level plane, and gaps and misalignments in the installation of cabinets. On November 3, 2009, Martone filed its answer to the DePinos' counterclaims, denying that it failed to perform labor and services in a good and workmanlike fashion. Thereafter, on September 24, 2010, Martone filed an amended answer to the counterclaims, adding a special defense claiming that the DePinos prevented Martone from inspecting the property and performing any necessary remedial work, in violation of the contract and Connecticut law. On September 28, 2010, the DePinos filed an answer denying the allegations of the special defense.
The court heard testimony at trial before the undersigned on March 11, 2010, November 2-3, 2010, January 25-26, 2011, January 28, 2011, and February 4, 2011. The DePinos and Martone filed post-trial briefs, respectively, on June 24, 2011 and June 27, 2011.
After reviewing all the testimony and exhibits introduced at trial, together with the drawing of reasonable inferences, and taking into account the credibility of witnesses, the court finds that the following facts have been established by a fair preponderance of the evidence.
The DePinos are owners of real property located at 132 White Hollow Road in North Branford, Connecticut. Clem Martone Construction is a father-son partnership in the business of constructing residential homes; Clem is the father, Tom Martone is his son. The DePinos utilized the services of architect Original Home, LLC of Woodbridge, Connecticut to custom design their home and create the architecture plans (Plaintiff's Exh. 3) and also hired the Nafis and Young engineering firm for site engineering plans. (Pl. Exh. 12.) On August 29, 2007, Martone and the DePinos entered into a written contract (Pl. Exh. 4) for the construction of a home pursuant to those plans.
The contract contained the following provisions. Martone would supply labor, services and product in connection with the building of the home in exchange for the sum of $375,000, to be paid in several installments corresponding to completion of various phases of the home construction. The residence would be constructed in accordance with the residential construction specification attached to the contract, and incorporating the architecture plans provided by the DePinos. The DePinos would have the benefit of the express and implied statutory warranties provided by General Statutes § 47-118 and § 47-121, which entitle the purchaser of home construction services to, inter alia, workmanlike construction and habitability. Also, any "minor variations, including those of a structural nature, between the house constructed and the plans and specifications shall be accepted by the Owner provided the same do not detract from the structural or design integrity of the structure." Further, "the parties agree that this is the only agreement or contract executed by them, and there is no agreement . . . oral or written, limiting, qualifying or modifying the terms of this contract." In regards to change orders, the parties "shall agree as to the cost of . . . alterations, additions, modifications or changes and shall submit and execute the same in writing before it shall become effective . . . However, the fact that alterations, additions, modifications or changes are not submitted in writing shall not be considered a waiver by the Builder of its right to receive reasonable compensations if such additional work and materials are furnished at the request of the Owner."
Construction of the home began on September 21, 2007. During construction, several changes were made which departed from the specifications in the original architectural and engineering plans. These changes include some that were agreed to explicitly by the DePinos, such as minor changes to the garage doors and the addition of recess lighting. A major change that was also agreed to by the DePinos, was to move the physical location of the home on the plot of land. The original site plan placed it in the back, and it was agreed to move the home to the front of the lot. Due to this move, it was necessitated that the rear foundation be higher than originally specified in the original plans. Because there would be more visible foundation, Martone suggested to the DePinos to frame the upper portion of the foundation with wood and add windows and siding. The DePinos agreed to this change in the foundation because they wanted windows in the basement. Martone did not consult with an engineer or architect prior to making this change to the foundation. Because of the change in the physical location of the home, Martone suggested that the septic tank be located in a different location than as laid out in the plan, in case the DePinos ever wanted to construct a pool in the backyard; the DePinos agreed to the change.
Other changes during construction were not agreed to by the DePinos nor was there a written work order. One such change involved the roof. Martone altered the framing of the roof, changing the pitch of the roof to be slightly more steep than originally called for in the plan. Martone did not consult the homeowner, engineer, or architect before making the changes to the roof. Another unapproved change involved a beam in the basement. The original plan calls for a triple joist. Martone did not use a triple joist. The DePinos did not approve this change and there was no change order signed by the DePinos.
In February of 2008, as scheduled construction was nearing an end, the DePinos presented Martone with a "punch list" (Pl. Exh. 5 6) of various miscellaneous items around the home they wanted addressed, such as doors not closing properly, gaps between appliances and cabinetry, and general painting and general finishing. One such item was the kitchen cabinets. In order to address the cabinets, Martone asked Christopher Harder, the supplier of the cabinets, to come to the home. Harder ordered paint to match the cabinets, and visited the DePino home at least once in order to fix holes in the cabinetry and do touch up painting. Harder did not originally install the cabinets, but the DePinos indicated to Harder that the repairs to the cabinets were done to their satisfaction.
Thomas Cowell is the building inspector for the Town of North Branford. Cowell's office conducted the required building inspections of the DePino home in order to assess whether to grant a certificate of occupancy. A certificate of occupancy certifies that a home has met the minimum building standards and is safe for human occupancy. All building inspections of the DePino home passed, and no violations of any provision of the North Branford building code were found. On April 2, 2008, a certificate of occupancy was issued by the Town of North Branford for the DePino home at White Hollow Way. (Pl. Exh. 10.)
Under the terms of the contract, the final payment installment was to be due to Martone upon issuance of the certificate of occupancy. The DePinos though withheld making the last two payments because they were dissatisfied with the workmanship in the construction of their home and the deviations from the original plan, and the problems they believe were caused by those deviations. Two weeks after the issuance of the certificate of occupancy, the DePinos sent a letter, dated April 16, 2008, listing six specific items that must be agreed to by Martone to be corrected before the DePinos would render the final amount owed, which according to their calculations was $26,125. (Pl. Exh. 8.) These problems included that the kitchen cabinet was cut improperly, refrigerator side panel with holes drilled into in error, cabinet and molding near stove had holes in it, ceiling in a bedroom was to be straightened and repaired, backyard to be graded and seeded, and outside doors and porch painted. The letter stated that if Martone agreed in writing to repair these items, the remaining amount due on the contract would be paid immediately. Martone subsequently returned to the property several times to make repairs and also sent sub-contractors in to address the items. DePino was satisfied with the repairs on five of the six items, but was not satisfied with the grading and seeding work done on the backyard, which was his principal concern. Specifically, the DePinos requested that Martone do work on the backyard in grading, drainage, seeding and swale work. Martone subsequently seeded and landscaped the backyard. Martone attempted to alleviate the drainage issues by running the gutter drain pipes into the underground drainage pipes. Martone sent a letter dated June 4, 2008 to the DePinos indicating work was proceeding on the listed items referenced in the April 16th letter, and indicating that the total amount due, according to Martone's calculations, was actually $31,660.03 and payable immediately. (Pl. Exh. 7.) No payment from the DePinos was received in response.
The work done by Martone did not cure the backyard drainage problem completely. Specifically, large ponds of standing water accumulate in the backyard of the DePino home after heavy rains. Nearly two years later, the basement subsequently flooded with nearly six inches of water due to the drainage pipe becoming clogged due to leaves and debris from the gutter drain becoming stuck at the end of the pipe, and not being able to drain due to a vented cap placed by Martone at the end of the pipe in order to keep animals from entering. DePino though did not contact Martone again to make further repairs or tell him his dissatisfaction with the backyard water problem until January 2009. Shortly before trial, Martone was granted permission to inspect the home, and noticed some settling issues. Namely, he used a laser level in the bedroom and found that the middle of floor was low, which he believe was due to wood being left outside. He also measured the floor of the first-floor hallway and found it to be sloping.
At trial, the parties came to terms on their differing claimed amounts owed and stipulated that the balance due on the contract, taking into account payments and various credits, is $28,000.
The plaintiff "has the burden of proving the foreclosure of its mechanic's lien by a preponderance of the evidence." Rollar Construction Demolition, Inc. v. Granite Rock Associates, LLC, 94 Conn.App. 125, 133, 891 A.2d 133 (2006). The plaintiff in a civil trial bears the burden of proving its claims by a preponderance of the evidence, as do the defendants with respect to their counterclaims. Gateway, Kelso Co. v. West Hartford No. 1, 126 Conn.App. 578, 586, 15 A.3d 635 (2011).
The standard of proof, a fair preponderance of the evidence, is "properly defined as the better evidence, the evidence having the greater weight, the more convincing force in your mind." (Internal quotation marks omitted.) Cross v. Huttenlocher, 185 Conn. 390, 394, 440 A.2d 952 (1981). "[T]he trier of fact's assessment of the credibility of witnesses . . . is made on the basis of its firsthand observation of their conduct, demeanor and attitude . . . The weight to be given to the evidence and to the credibility of the witnesses is solely within the determination of the trier of fact." (Internal quotation marks omitted.) Machado v. Statewide Grievance Committee, 93 Conn.App. 832, 839, 890 A.2d 622 (2006).
In its complaint, Martone alleges that it may recover on the mechanic's lien for the full unpaid amount due under the contract because it supplied materials and performed services for the DePinos, completing performance of its contractual obligations on June 7, 2008.
General Statutes § 49-33(a) provides: "If any person has a claim for more than $10 for materials furnished or services rendered in the construction, raising, removal or repairs of any building or any of its apartments is . . . and the claim is by virtue of an agreement with or by consent of the owner of the land . . . or some person having authority from or rightfully acting for the owner in procuring the labor or materials, the building, with the land on which it stands is subject to the payment of the claim." The primary purpose of a mechanic's lien "is to give one who furnishes materials or services the security of the building and land for the payment of his claim by making such claim a lien thereon . . ." (Internal quotation marks omitted.) F.B. Mattson Co., Inc. v. Tarte, 247 Conn. 234, 237-38, 719 A.2d 1158 (1998). "Persons entitled to claim a mechanic's lien . . . are those who have provided `services' or `materials' in connection with `the construction, raising, removal or repairs of any building or any of its appurtenances or in the improvement of any lot or in the site development or subdivision of any plot of land . . .'" (Internal quotation marks omitted.) Id., 238-39 n. 2. "Although the mechanic's lien statute creates a statutory right in derogation of the common law . . . its provisions should be liberally construed in order to implement its remedial purpose of furnishing security for one who provides services or materials." (Citations omitted; internal quotation marks omitted.) Id., 238.
"[I]n a foreclosure of a mechanic's lien, a contractor is entitled to the value of the materials that it furnished or the services that it rendered in the construction of the project." Intercity Development, LLC v. Andrade, 96 Conn.App. 608, 613, 901 A.2d 731 (2006), rev'd in part on other grounds, supra, 286 Conn. 177 (2008); see also General Statutes § 49-33(a). "In the alternative, if it is found that the contractor substantially performed the contract, the court may determine the amount of the mechanic's lien by deducting the sum representing the cost of completion from the balance due on the contract." Intercity Development, LLC v. Andrade, supra, 96 Conn.App. 613. "Once the amount claimed to be due . . . has been secured by a mechanic's lien, the amount allegedly due . . . may be diminished only by (1) the reasonable cost of satisfactory completion of the contract, (2) any damages for which the general contractor might be liable to the owner, and (3) any bona fide payments that were made by the owner before it received notice of the lien." Chris Construction Co. v. May Centers, Inc., 23 Conn.App. 453, 456, 581 A.2d 748 (1990).
In the present case, there is no dispute that Martone provided services and material in connection with the construction of a home on the DePinos' land. The DePinos have admitted the validity of the filing of the certificate of mechanic's lien, and that they were duly served with notice of the lien. Furthermore, Martone has not provided any evidence as to the value of the services and materials it rendered. Instead, the parties stipulated at trial that the balance due under the contract is $28,000. The DePinos claim that Martone should be precluded from foreclosing on the mechanic's lien, and recovering the amount of the unpaid balance of the contract, because it did not render substantial performance under the contract. Thus, the first issue for this court is a determination as to whether Martone substantially performed the contract between the parties, so as to be allowed to recover the amount due and owing under the contract by way of foreclosure of its mechanic's lien. Intercity Development, LLC v. Andrade, supra, 96 Conn.App. 614 ("Without a finding that the plaintiff substantially had performed the contract, there can be no right to recover under the mechanic's lien statute with reference to the contract price").
"A party cannot recover on a contract unless he has performed his obligations or has a legal excuse for not performing." Argentinis v. Gould, 23 Conn.App. 9, 14, 579 A.2d 1078 (1990), rev'd in part on other grounds, 219 Conn. 151, 592 A.2d 378 (1991). The traditional explication of the test of substantial performance is that it "contemplates the performance of all items of a building contract except for minor details, those easily remedied by minor expenditures." Id. The determination as to whether a building contract has been substantially performed is a question of fact for the trier to determine. Id. "The analysis necessarily involves an inquiry into the totality of facts and circumstances surrounding the performance of the contract." Miller v. Bourgoin, 28 Conn.App. 491, 496, 613 A.2d 292, cert. denied, 223 Conn. 927, 614 A.2d 820 (1992).
"Although the issuance of a certificate of occupancy may be evidence of substantial performance, it is not dispositive of the question . . . Other factors to be considered include the extent to which the injured party will be deprived of the benefit reasonably expected, the extent to which that party can be adequately compensated for the deficiency of performance, the extent to which the performing party will suffer forfeiture, the likelihood that the performing party will cure his failure in light of the circumstances and his reasonable assurances, and the extent of good faith and fair dealing on the part of the performing party." (Citations omitted.) Miller v. Bourgoin, supra, 28 Conn.App. 496.
In examining the totality of facts and circumstances surrounding the performance of the contract, the court finds that Martone substantially performed all items of the building contract, except for some minor non-workmanlike deficiencies which could be remedied by modest expenditures in relation to the complete cost of the contract. As discussed in more detail under the DePinos' counterclaim, the damages as a consequence of Martone's substandard performance total barely 2% of the contract price. It cannot be said that this minimal amount, in terms of the entire cost to construct the home, is significant enough to wholly deny Martone payment on the remaining amount of the contract. The court finds that at the time the certificate of occupancy was issued by the Town of North Branford, making the final payment due under the terms of the contract, the DePino home was substantially complete within the specifications of the contract.
First, although not dispositive, a certificate of occupancy was issued for the home by the Town of North Branford on April 2, 2008. (Pl. Exh. 10.) The issuance of this certificate, which attests to the home's compliance with applicable building codes in a condition suitable for occupancy, constitutes some evidence of substantial performance of a contract to construct a habitable residential home. Consideration of other factors also supports a finding that Martone substantially performed the contract. Foremost, any issues that the DePinos have with the workmanlike efforts of Martone did not substantially deprive them of the benefit they had reasonably expected to receive under the agreement. While there were undoubtedly minor deviations from the original plan and certain areas of construction that were not done in a workmanlike manner, these deficiencies in construction were not so comprehensive as to substantially frustrate the expectations of the DePinos in having a home built to their custom specifications. Additionally, the DePinos can be adequately compensated for any non-workmanlike deficiencies in the form of off-setting damages on its counterclaim. Further, the court finds that Martone was willing to cure its deficiencies, and acted in good faith in performing the contract. For example, Martone worked to fix the problems that the DePinos identified on both their punch list and in their subsequent letter dated April 16, 2008. In fact, Patrick DePino testified that Martone fixed five of the six items in that letter to his satisfaction. Furthermore, the court credits the testimony of Tom Martone that he would have returned to the DePino home to further attempt to fix any deficiencies, but was not contacted by the DePinos regarding their further concerns with his workmanship. These actions support a finding that Martone acted in good faith in fulfilling its requirements of the contract.
Thus, the court finds that the allegations in Martone's complaint seeking foreclosure of the mechanic's lien have been proven by a preponderance of the evidence. Because the court has found that the contract to build the home was substantially completed, Martone is entitled to recover the amount unpaid on the contract, reduced by the reasonable cost of satisfactory completion of the contract, any damages for which the general contractor might be liable to the owner as proven in the DePinos' counterclaim, and any amounts already paid by the defendants. The court accepts the parties' stipulation at trial that the balance unpaid and due under the contract is $28,000, taking into account payments and credits owed to the DePinos. Thus, the amount of $28,000 claimed due is the maximum amount available to be secured by the mechanic's lien.
General Statutes § 49-36(a) provides: "No mechanic's lien may attach to any building or its appurtenances, or to the land on which the same stands, or any lot, or any plot of land, in favor of any person, to a greater amount in the whole than the price which the owner agreed to pay for the building and its appurtenances or the development of any such lot, or the development of any such plot of land."
It still must be determined how much, if any, of the $28,000 due on the contract should be diminished for the reasonable cost of satisfactory completion of the contract and any damages for which the general contractor might be liable to the owner as proven in the DePinos' counterclaim. The DePinos set forth their counterclaim claiming damages as a result of Martone's breach of contract for its failure to perform labor and services in a workmanlike manner, specifically listing nineteen alleged deficiencies in Martone's substandard performance in the construction of the DePino home.
"[T]here is implied in every contract for work or services a duty to perform it skillfully, carefully, diligently, and in a workmanlike manner." Sutera v. Washton, Superior Court, judicial district of New London, Docket No. CV 000556177 (March 14, 2003, Corradino, J.) ( 34 Conn. L. Rptr. 388, 391). "A breach of this implied condition would be a breach of contract." Ferrigno v. Pep Boys, 47 Conn.Sup. 580, 818 A.2d 903 (2003). "Failure to comply with this implied duty to perform in a skillful and workmanlike manner . . . may entitle the other party to damages resulting from the unskillful and unworkmanlike performance . . . With respect to the skill required of a person who is to render services, it is a well-settled rule that the standard of comparison or test of efficiency is that degree of skill, efficiency and knowledge which is possessed by those of ordinary skill, competency and standing in the particular trade or business for which he . . . is employed." Sutera v. Washton, supra, 34 Conn. L. Rptr 391.
"The nature and extent of any damages counter-claimed in a foreclosure of mechanic's lien action is limited by General Statutes § 49-33(f)." Chris Construction Co. v. May Centers, Inc., supra, 23 Conn.App. 456. "Setoff is proper only if the contract has been substantially performed; the buyer will not be forced to pay for value not received." Argentinis v. Gould, supra, 23 Conn.App. 14. "[T]he well-established rule . . . is that the reasonable value for which recovery may be had in cases of substantial performance of building contracts, is to be ascertained with reference to the contract price and by deducting from that price such sum as ought to be allowed for the omissions and variations." (Internal quotations marks omitted.) Intercity Development, LLC v. Andrade, supra, 96 Conn.App. 613.
General Statutes § 49-33(f) states: "Any such subcontractor shall be subrogated to the rights of the person through whom the subcontractor claims, except that the subcontractor shall have a mechanic's lien or right to claim a mechanic's lien in the event of any default by that person subject to the provisions of sections 49-34, 49-35 and 49-36, provided the total of such lien or liens shall not attach to any building or its appurtenances, or to the land on which the same stands or to any lot or to any plot of land, to a greater amount in the whole than the amount by which the contract price between the owner and the person through whom the subcontractor claims exceeds the reasonable cost, either estimated or actual, as the case may be, of satisfactory completion of the contract plus any damages resulting from such default for which that person might be held liable to the owner and all bona fide payments, as defined in section 49-36, made by the owner before receiving notice of such lien or liens."
A. Failure to Comply with Original Plans
The DePinos' first claim is that Martone failed to perform its labor and services in a workmanlike manner because it failed to adhere to the original home plans. At trial, the testimony and evidence presented in support of the DePinos' counterclaim was largely focused upon each of the nineteen individual alleged deficiencies. As discussed in more detail under each of the alleged deficiencies which follow, the testimony and submitted evidence does not support the claim of an overall failure by Martone to comply with plans. With some exceptions noted below, the home that was designed for the DePinos by their architect Original Home, LLC, and the site laid out in the plans by Nafis Young Engineers, is substantially the same as the home and site built by Martone. While there was testimony throughout trial regarding changes in the original plans, most could be classified either under a specific claim of deficiency or was validly requested by the DePinos and agreed upon by both parties. Brian Construction Development Co. v. Brighenti, 176 Conn. 162, 169-70 (1978) (even when a written contract provides "that it may not be changed except in writing, a parol agreement modifying its terms will be given effect"). Further, testimony supported the notion, as referenced to in the contract, that it is standard and ordinary in the construction trade to make modifications from the original plans to the finished home based upon extenuating circumstances during the construction process. In short, the DePinos have not sustained their burden to show, by a preponderance of the evidence, an overreaching failure of Martone to perform in workmanlike fashion due to its failure to comply with original plans.
B. Inadequate Supports to Front Foyer Entry, Floor Joists, Front Hallway Both Entries, Right Main Beam Below Family Living Area — All of which Deviate from Original PlanThe DePinos claim that Martone did not perform in a workmanlike manner because Martone failed to adequately frame and support the home. There was extensive, and contradictory, testimony on the subject of the structural supports of the home.
John Flanagan, president of John P. Flanagan and Company, testified on behalf of the DePinos. Flanagan has 25 years experience in the construction trade, and inspects commercial and residential building to verify their proper construction pursuant to plans. Flanagan testified that the front hallway, entryway, walls near bathroom, and the main entryway were not level due to inadequate structural support. Flanagan stated that although the normal settlement of a home can cause deflection in the floor, the amount of sloping in the DePino home was not normal for a home of this age due to settling. Flanagan opined that the failure to properly support the structure of the home would cause floor joists in basement to twist or sag.
Flanagan also testified that the location of lally columns, which are steel columns filled with concrete to provide additional structural support, were not in the location called for in the original plan. Flanagan opined that placing the lally columns in different locations than what is called for in the plan caused sagging in floors, and is not in accord with industry standard. Flanagan also testified that according to the plan, there was supposed to be a triple joist located under the side wall of the house where it joins the mud room and garage, but that it was not constructed as a triple joist as built. Flanagan attributed costs in the amount of $10,250 to fix the sagging structural areas.
Chris Marseglia also testified on behalf of the DePinos in support of their counterclaim. Marseglia is a licensed engineer in the state of Connecticut, and has been an instructional engineering consultant for over thirty years. Marseglia testified that he found problems with the structural framing. He stated that the original plan calls for a triple joist in the location of a mud room, between the garage and kitchen, but Martone used only a single joist. He also testified that the floor area in the front hallway and dining room is uneven because it is carrying weight from the upper floors. Marseglia believed that, although the plans do not call for it, the joists should have been moved closer together or doubled up. In regards to the deviations in the location of the lally columns as installed from the original plan, he stated that the "variation was small enough where I wouldn't be concerned with it." Marseglia also stated that the framer did not deviate from original plan regarding any inadequate support to the front foyer entry floor joists, because "the plans don't say what to do there." Nevertheless, Marseglia thought that the floor joists should have been reinforced. Marseglia testified that it would cost $10,000 to deal with "the wood, the framing, and some . . . tile or something in the bathroom."
Barry I. Steinberg testified as a rebuttal witness for Martone. Steinberg is a civil engineer and designs structural members for buildings and conducts inspections. He has been in practice for over thirty years and is licensed in the state of Connecticut as a professional engineer. Steinberg testified that there were some structural problems, including that some joists in the framing of first floor had knots and should have been "sistered," meaning another piece of wood would be placed next to it to reinforce the joist. In regards to the twisting of floor joists, Steinberg saw some twisting, but believed this was due to the shrinkage of wood due to it being wet when installed. Steinberg stated that the twisting could be fixed by putting a bridge between the wooden boards. Steinberg disputed Flanagan's assessment of the use of a single joist, instead of a triple joist. Steinberg opined that the wall above was not load bearing, so did not need to use triple joist. Steinberg though did recommend sistering another board to support the single joist. In regards to the deflection problem in the front hall, he noticed sloping in the floor, but stated that it could be corrected by jacking up the supports and placing a shim. Steinberg estimated that total cost of repair would be $1,500 to jack-up and shim the floor to fix the deflection problems and $200 to reinforce the joists with knots. Martone testified that he estimated the cost to put in place the repairs identified by Marseglia and Steinberg of around $800 for the carpenter, plus an additional $500 each for a half day of plumber and electrician, assuming that there would need to be work done by them in repairs.
After weighing the extensive testimony and submitted exhibits regarding this counterclaim, the court finds that there were deviations from the plan, and deficiencies in workmanlike construction, in areas identified by the DePinos which caused select areas to be inadequately supported. Martone installed only a single joist under the mud room, where it called for a triple joist. Marseglia stated it would take a carpenter one-half day to do the work. Martone testified that a carpenter and helper cost $100 an hour, putting the cost to fix at $400. The front foyer area is sloping excessively, partially due to inadequately supported joists. These areas can be fixed by reinforcements and shims, rather than an entire restructuring as proposed by Flanagan. Marseglia stated that it would take two days to fix these areas, and require carpenters and mechanical work by plumbers and electricians for both days. The court credits the testimony of Martone regarding the cost of carpenters at $1,600 and mechanical labor of $2,000 for two days work, and finds the cost to repair this area in the amount $3,600. In addition, it will cost another $200 to reinforce the joists with knots. Thus, a total cost of repair of $4,200 has been proven by a preponderance of the evidence by the DePinos under this counterclaim.
C. Inadequate Rear Foundation and Load Bearing Wall Deviates from Original Building Plan
This counterclaim by the DePinos is seemingly a repetition of their claim regarding the inadequacy of the rear foundation due to the placement of wood in the foundation, which deviates from the original plan. As such, this claim is examined thereunder in further detail. Nonetheless, the credible testimony was that the DePinos agreed to the change in the rear foundation, and that the rear foundation of the home is structurally sound. The DePinos have not proven this counterclaim in that regard.
D. Installation of Septic System on Wrong Side of Home Resulting in Negative Grade Towards Rear of House
The DePinos claim that Martone's installation of the septic system did not meet standards required by workmanlike construction because it was on a different side of the home than as set out in the original plans, and resulted in a negative grade towards rear of house. There is no merit to this counterclaim.
Although the original plans had the location of the septic tank in a different location, there was insufficient evidence to support the claim that Martone's moving of the septic tank resulted in it being on the "wrong" side of the home, or that its placement resulted in a negative grade towards the rear of the house. Specifically, Edgar P. Lambert, a professional civil engineer, testified that, in his review, the modified septic plan "as built" was approved by the East Shore Health District, signifying its compliance with standard requirements for the leaching system and grading of the septic field. Furthermore, all evidence demonstrated that there is actually a negative grade away from the home, thus eliminating any claim that the septic tank installation resulted in a negative grade towards the home. Importantly, there was evidence that the move of septic tank was not only approved by the DePinos, but was warranted and beneficial if the DePinos desired to construct a future outdoor pool in the backyard adjacent to a future outdoor deck. As a result, the DePinos have not sustained this counterclaim by a preponderance of the evidence.
E. Downspouts Connect to House's Drain System and then Drain through Septic Field
The DePinos next claim that the work of Martone was deficient because the downspout from the roof gutter improperly connects to the foundation curtain drain, and then drains through the septic field. In support, Flanagan testified that it is problematic to have all drains lead to a curtain drain, because of the possibility of water overload. Flanagan though, admittedly, did not examine the underground pipe in order to determine if it was large enough to handle the extra capacity and opined that because he didn't look at it, he couldn't say definitively if it was a problem here.
Christopher Gagnon also testified regarding the drainage system on behalf of the DePinos. Gagnon is a site civil engineer, and has been licensed in the state of Connecticut since 2007. Gagnon testified that it is not standard construction practice, nor allowed by public health code, to run the stormwater drains over a septic field. Gagnon though also admitted that he did not know if the pipe actually crosses the septic field because it is buried underground, and he did not unearth the pipe in his inspection. On rebuttal, Tom Martone testified that he was actually present when the drainage pipes were installed. He stated that he knows it is improper for the drainage pipe to cross the septic field, and so it was constructed so as not to cross through the septic field, but instead "goes around above the septic system by the driveway."
The DePinos have not sustained their burden of proof on this counterclaim. First, the court credits the testimony of Tom Martone that the drain pipe does not run directly through the septic field, but instead goes around the septic area. Moreover, the experts presented by the DePinos simply had no actual knowledge of the location of the pipe, making it impossible to credibly testify as to whether the pipe ran through the septic field. Further, the DePinos have not shown any damages as a result of the drains connecting. While there was testimony of a one-time flood in the basement, the evidence shows the flooding was caused by foliage debris trapped by a "critter cap" at the end of the drain pipe, and not as a direct result of any inherent inadequacy caused by the roof gutter and foundation drains being connected. Consequently, the defendants have not sustained this counterclaim by a preponderance of the evidence.
F. Improper Framing at Carrying Member for Front Upper Level at Supports for Master Bedroom and Adjacent Area
The DePinos have not proven this counterclaim by a preponderance of the evidence. In fact, Marseglia, the DePinos' own expert, stated in reference to this claim of deficiency that he was not clear as to what the DePinos were referring to, and that in his opinion, the second floor "is framed adequately." To the extent that this claim differs from the general claim of deficient framing and support of the structure, the court does not find any substantial evidence to support the claim that the front upper level was improperly framed.
G. Improper Installation of Insulation, Behind Exterior Siding and Molding, Which is Coming Out
The DePinos claim that Martone improperly installed insulation within outdoor siding. Flanagan specifically testified that the outside insulation in a corner of the home is slipping out. Flanagan stated that it would be a simple solution, costing $100, to fix this deficiency. Martone presented no relevant rebuttal testimony. The court finds that the DePinos have proven that the insulation in this area was not installed in a workmanlike manner by a preponderance of the evidence, and are due damages of $100.
H. Rear Foundation Concrete Wall Replaced in Part by Framed Wood Not in Accordance with Plan
The DePinos claim that Martone failed to perform satisfactory work by framing a portion of the rear foundation wall with wood, thereby deviating from original architectural plan which called for an all-concrete foundation. In support, Flanagan testified that although framing a foundation wall with wood is an acceptable building practice, Martone should have consulted with an architect or engineer as to where to place the wooden frames so as to not negatively impact the load bearing ability of the wall. Flanagan though stated that the rear foundation wall itself was built in a reasonable and workmanlike manner, and was not deficient in terms of quality of work. Nevertheless, Flanagan testified that the cost to replace the wooden portion of the wall with concrete, so as to conform to the original plans, would be $4,250. In addition, Marseglia and Steinberg testified regarding the rear foundation. Both opined that the wall itself is not inadequately framed in terms of workmanship, and it is an acceptable practice to frame a wall with wood.
The testimony and evidence in support of the claimed deficiency do not support a finding that the DePinos have suffered any actual damages. It is undisputed that the rear foundation wall was built according to industry standards, and is no less structurally sound than a wall of concrete. Further, while the wall was undoubtedly built differently than as laid out in the original plan, Patrick DePino testified that he agreed in advance to this change in order to have the benefit of windows in the basement. The DePinos cannot now be heard to say that Martone should not be paid according to the contract for work done because of a change that all agreed upon. The DePinos have not proven this claim regarding the framing of the rear foundation wall by a preponderance of the evidence.
I. Unauthorized Changes to Original Architecture Plans for Roof
The DePinos next claim that Martone failed to perform its construction services in a good and workmanlike fashion because Martone deviated from the original architectural framing plan of the roof without the DePinos' authorization. Evidence showed that Martone changed the specified framing of the DePinos' hip roof: A hip roof being a roof with four sloping faces, instead of two. Martone did not build the roof according to the specified slopes in the plan. Martone changed the roofing system at the construction site upon the advice of the framer on the job, despite the fact that the roof as designed could have been built, but would have been more difficult to frame. The original architectural plan called for two sides of the roof to be sloped, or pitched, at 8/12, and two sides to be pitched at 12/12. Instead of following these pitches, Martone changed the slope of the 8/12 sides to pitch at 10/12.
Several witnesses testified regarding the pitch of the roof. Flanagan testified that the change by Martone potentially caused structural problems by putting more weight on the front wall than what was planned for, and that the change may be the cause of cracking in sheetrock. Flanagan stated that the deviation by Martone from the original roof framing plans without consulting the architect or engineer was not acceptable building standards. However, Flanagan did opine that the actual workmanship of the roof was in accord with acceptable industry standards, though he stated that upon his inspection, there were holes in the attic area of the roof. Flanagan offered estimates as to the cost to repair the roofing system, stating it would be $3,250 in order to make some needed and appropriate adjustments to the roofing system, and up to around $18,000 for a full restructuring of the roof which would require a complete tear down and dismantling.
Marseglia also testified regarding the roof. He testified that Martone's increase of the slope on the roof was actually more structurally sound. Moreover, Marseglia stated that he did not agree with Flanagan that the change to the pitch of the roof was putting increased stress on the load bearing walls of the home. Steinberg also provided testimony that he would have recommended making the same change in pitch from 8/12 to 10/12. Steinberg further opined that the change does not impact or cause any extra stress on the structural integrity of the home, and the change in the pitch of the roof will benefit the DePinos by shedding snow more quickly.
The court finds that Martone unilaterally changed the pitch of the roof in order to make it easier to frame, and did not seek the input or permission of the DePinos, the architects, or structural engineers prior to making the change. Nevertheless, the court also finds that the change to the pitch of the roof did not impact in a substantial way the structural integrity of the home. However, the change to the framing of the roofing system impacted the subjective aesthetics and "design integrity," as stated in the contract, of the home from the original plan. Even Martone himself stated that the change in the framing of the roof made the home look different; in his opinion giving it better "curb appeal."
Nonetheless, it cannot be said that a hired contractor unilaterally changing the roof of a custom built home, prior to informing or receiving any input from the homeowner, is in workmanlike fashion according to industry standards. Of the differing remedial amounts given by Flanagan, the court finds the $3,250 figure to be more appropriate in this instance. This is so because the roof as built by Martone does substantially conform to the DePinos' expectations, and a complete dismantling of the roof is too drastic a remedy in this instance. This is especially so where in this case substantial and credible testimony was offered that the roof structure overall is sound and the prevailing look of the hip roof conforms to the original plan, albeit now with a slightly more steep slope which may actually provide some ancillary benefits. Thus, the DePinos have proven this counterclaim to the amount of $3,250 for appropriate adjustments and remedies to the roof system.
J. Improper Location of Chimney and Fireplace — Not in Accordance with Original Design
The DePinos contend that Martone deviated from the original home plan and improperly situated their fireplace. Specifically, the DePinos presented evidence through the testimony of Flanagan that the fireplace is not centered upon the wall in which it is built. Flanagan estimated that it would cost between $12,000 and $14,000 to disassemble the fireplace and center it in the room. However, Flanagan also testified that a review of the original architectural designs for the fireplace shows it to be off-center, with one side of the fireplace being five feet, eleven inches from a wall, and the other side five feet, one inch. As the original plan did not call for the fireplace to be centered, the DePinos did not prove this claim that the chimney and fireplace were not built in accordance with the original design plans for the home.
K. Improper Installation of Rear Thermopane Doors Resulting in Gaps, Drafts, and Energy Loss
The DePinos next claim that Martone improperly installed Thermopane doors, causing them to have a large gap in the bottom and resulting in air drafts and energy loss. Flanagan testified that, upon his inspection, the doors were not flush to the ground at the bottom, and drafts of air could come into the home. Flanagan estimated that the doors could be fixed by purchasing and installing a threshold at the bottom of the door at the cost of $750. However, Flanagan also stated that he could not know whether the gap beneath the door was as a result of faulty installation. In fact, Flanagan stated that the gap "could have been from settlement of the house . . ." Based on the evidence presented, the court finds that the DePinos have failed to satisfy their burden to show that the Thermopane doors were improperly installed by Martone, and thus have not proven this claim of deficient workmanship.
L. Curtain Drain and Exterior Drain Pipe Systems Runs Above Ground and Over Percolation Area for Septic System
There was no testimony that the curtain drain and exterior drain pipe systems run above ground, or over the percolation area for the septic system. The separate issue raised by the DePinos regarding the alleged improper connection of the curtain drain to the exterior drain pipe system is examined above. The DePinos have not proven this separate claim.
M. Incorrect Grading at Rear of Garage, Front Porch, Rear Step Areas and Perimeter of Home Causing Drainage Toward and Into Home
The DePinos claim that outdoor areas of the home, mostly focused upon the backyard, were incorrectly graded by Martone, causing pooling and improper water drainage. Evidence at trial included the following. The DePinos submitted into evidence a photo (Def. Exh. D) showing an accumulation of a large pool of water in the rear of the yard subsequent to a rainstorm. Flanagan was further called to testify as to the grading of the yard. Flanagan stated initially that upon his visual inspection, the backyard grading did not appear to be an acceptable angle because it had a negative slope towards the home, which could cause water to flow into basement. Flanagan testified that in order to fix the grading, it would cost in excess of $10,000. However, after being shown a topographical survey map (Pl. Exh. 19) that showed there in fact be a slight slope away from the home, Flanagan modified his testimony, stating that the negative slope away from the home was at an insufficient angle.
Gagnon testified that the grading of the backyard is different than what was called for on the site plan. Specifically, the site work performed by Martone on the yard is at a more gentle sloping angle than proposed in the plan, and further, is less than called for under the International Building Code (IBC), which calls for a five percent drop in the first ten feet. Gagnon opined that the grading was not done in a workmanlike manner as it does not serve its purpose of properly directing runoff of water away from the home. Gagnon testified that in order to fix this issue, the back of property would need to be regraded, and provided an estimate of between $12,000 to $15,000. On cross-examination, Gagnon admitted that there are several factors which influence whether water will flow away from a home, but that the slope of a yard is a reasonable indicator of where water is going to flow. Further, Gagnon admitted that the site plan itself does not comply with the IBC, and that Martone actually graded some parts of the yard more steeply than what was proposed in the plan.
On rebuttal, Carl Sargolini, a claims adjuster investigator testified on behalf of Martone. Sargolini testified that he visited the DePino home twice after the site was graded; each of those days being subsequent to days in which it had rained approximately four inches. On each of the visits, Sargolini took photos of the backyard. (Pl. Exh. 21, 22.) The photos showed no pooling of water. Lambert provided testimony that he hired a surveyor in order to evaluate the property and conduct a site survey. (Pl. Exh. 19.) In Lambert's opinion, he found that water flows away from the home. Lambert testified that the site as developed by Martone was in accordance with the site plan prepared by the Nafis Young engineers, and actually improves upon the pitch in some areas. Martone finally testified that he believes that it would cost $1,200, including reseeding work and transportation costs, to put the site at a pitch that Gagnon opined would be sufficient to allow for efficient drainage from the home.
The evidence supports the DePinos' claim that the backyard was insufficiently graded. The testimony showed that, while the yard was negatively graded away from the home, it was at an insufficient angle to allow for proper drainage away from the home and differed from the original site plan. Further, there was credible evidence of significant water accumulation after rainstorms. The DePinos have sustained this claim by a preponderance of the evidence, and are due $1,200 in damages from the insufficient grading work in the backyard.
N. Front Carrying Beam for Roof Above Side Porch Improperly Positioned to Support Roof
The DePinos' next claim is that Martone failed to perform in a workmanlike manner because a column on the side porch was incorrectly positioned to properly support the overhanging roof. In support of this claim, the DePinos offered the testimony of Flanagan who testified that the column did not fully rest on the concrete, and stated there was an inch gap between the column and the concrete floor. Flanagan opined that in order to fix the column, it would require its removal, adding supports to the top, and re-installing the column. Flanagan further testified that the column would need to be moved slightly to properly support the roof.
The court finds that the DePinos have not sustained their burden to show that the column is positioned improperly to support the roof. Flanagan himself testified that the column is positioned in the approximate position in which it is placed in the architectural plans. Further, both Marseglia and Steinberg testified that the column does not need to be repaired for structural integrity, and the only issues apparent in their opinion are purely cosmetic. Marseglia testified specifically that the only part possibly overhanging the porch was an ornamental piece at the bottom, but that ornamental piece in no way supports the weight of the overhanging roof. Furthermore, in the court's review of a photo of the column (Pl. Exh. 15), there appears to be considerably less than an inch gap, and the only possible slight overhanging portion appears to be solely an ornamental cap piece, and not anything that would impact the structural integrity of the column and overhanging roof due to its position. The DePinos are not due any damages from this claim of deficiency.
O. Ground Fault Interrupter Circuit not Installed and Required by Building Codes
The only testimony related to the ground fault interrupters came from Flanagan, who testified that they are required to be installed on any electrical outlet within six feet of a water source, such as a sink. Flanagan though never testified that any ground fault interrupters were missing or installed improperly, and in fact testified that all the plugs that he tested functioned properly. Furthermore, the home passed all building inspections, and was granted a certificate of occupancy, certifying its compliance with applicable building codes. The DePinos have simply not provided evidence to support this claim.
P. Improper Installation of Interior Waste Water Line, Resulting in Sag and Improper Drainage
The DePinos claim that Martone installed the interior main waste water line in a deficient manner, causing insufficient drainage of wastewater. In support, Patrick DePino testified that the sinks and toilets in the home frequently clog. Flanagan testified that upon his inspection, he found there to be a sag in the main waste line which may cause solid waste not to proceed along to septic system causing the clogs. Flanagan stated that a plumber would need to be hired to correct the issue. Ernest Ehle, a licensed plumber, provided testimony that the waste line is not set at enough of a slope, and may be the cause of the clogging drains. Ehle stated that this problem could be fixed by installing a "J-Hook" (Pl. Exh. 28) to lift the line one-quarter of an inch. This simple repair would cost $125.
The court finds that the DePinos have shown by a preponderance of the evidence that the main waste water line was not installed at a proper angle by Martone, and have sustained damages for $125 to satisfactorily repair the waste line.
Q. Exterior Air Conditioning Unit Not Installed on Level Plane
The DePinos argue that the installation of the air conditioning compressor was not done in a good and workmanlike fashion because it is not level to the surface of the ground. In support of this claim, Flanagan testified that he inspected the air conditioner and found that the compressor is not level nor placed on a concrete pad, neither of which is in compliance with industry standard in installing an air conditioner compressor. In order to fix, it would involve lifting the unit, making sure pad is properly set, and leveling the unit. Flanagan testified that this would cost between $100 to $200. Ehle opined that the cost to level an air conditioner compressor would be approximately $75, but he did not actually inspect the air conditioner compressor at the DePino home to see if it was level.
The court credits the testimony of Flanagan and finds that the DePinos have sustained their burden to show that the air conditioner was not installed in a workmanlike fashion due to it not being on level plane. Taking into account the testimony of Flanagan and Ehle, the court finds the DePinos have suffered damages in the cost to level the air conditioner unit in the amount of $150.
R. Kitchen Island Not Installed Level
The DePinos also argue that the kitchen island was not installed on a level plane. Flanagan testified that he inspected and measured the kitchen island, and that he found it not to be level. Flanagan opined that it would cost $100 to fix. Marseglia testified that the DePinos failed to point out that it was a concern during his home inspection. The court credits the testimony of Flanagan that the kitchen island was not level. As there was no rebuttal testimony, the DePinos have proven this counterclaim by a preponderance of the evidence. The DePinos are entitled to $100, the cost to repair the deficient installation of the kitchen island.
S. Cabinets in Kitchen Improperly Installed Above Stove Area with Gaps and Misalignments
The DePinos claim that Martone did not install cabinets in the kitchen in a workmanlike manner because there are gaps and misalignments above the stove area. In support, Flanagan offered testimony that he measured the cabinets, and they are not level. Flanagan stated that it would be $200 to $300 to repair.
However, there was also testimony that the DePinos were satisfied with repairs made by Martone to the cabinets in the stove area. Specifically, the DePinos' April 16, 2008 letter to Martone stated that "the cabinet and moulding next to the range hood, the stove and at least one other location are either crooked, have large holes, or both . . . The cabinets next to the stove are crooked." In order to remedy this particular issue, Martone sent Harder to repair. Harder testified that the DePinos, after he had completed his repairs, told him they were satisfied, and did not mention any gaps between the appliances and the cabinets. Further, Patrick DePino himself testified that he was satisfied with the repairs that were undertaken in response to his letter, with the only issue from the letter not done to his satisfaction as being the grading of the backyard. Further, the DePinos have not shown that any gaps in the cabinets are as a result of the installation of Martone. The court finds that the DePinos have not shown by a preponderance of the evidence that they are due any money to repair the alleged unsatisfactory installation of the kitchen cabinets.
Claims for Attorneys Fees Pursuant to § 52-249(a)
Martone, in obtaining judgment on the validity and amount of its mechanic's lien foreclosure, further makes claim for attorneys fees pursuant to General Statutes § 52-249(a). In support, Martone argued at trial it was entitled to fees under that statute, and submitted a supplemental affidavit of fees. (Pl. Exh. 27.) In the present case, Martone has moved for attorneys fees prematurely, as § 52-249(a) applies to allow the award of attorneys fees only after there has been a motion for judgment to foreclose and hearing as to the form of foreclosure judgment or a limitation of time for redemption. Before this court was a broad trial on Martone's claim for foreclosure of its mechanic's lien on the unpaid portion of its construction contract, and on the DePinos' counterclaim for setoff damages against the contract price. There was not, however, any hearing as to the form of the foreclosure judgment or the time of redemption; Martone is not entitled to attorneys fees at this time under the language of § 52-249(a). Original Grasso Construction Co. v. Shepherd, 70 Conn.App. 404, 418-19, 799 A.2d 1083 (2002) (a plaintiff "shall be allowed reasonable attorneys fees when there has been a hearing as to the form of judgment during the foreclosure action"); see also Northeast Tank Environmental Services, Inc. v. TA Operating Corp., Superior Court, judicial district of New Britain, Docket No. CV 06 5001541 (August 8, 2008, Domnarski, J.) [ 46 Conn. L. Rptr. 124] (plaintiff timely sought attorneys fees at hearing where the court determines the form of judgment, where plaintiff had established the amount of its mechanic's lien in earlier underlying proceedings); AA Mason, LLC v. Montagno Construction, Inc., 49 Conn.Sup. 405, 889 A.2d 278 [ 39 Conn. L. Rptr. 339] (2005) ("form of judgment" language in § 52-249(a) limited to strict foreclosure when court sets law days, or foreclosure by sale when court orders property sold); Edgewood v. Mirg Mystic Harbour, Superior Court, judicial district of New London, Docket No. CV 06 5002009 (March 26, 2009, Abrams, J.) ( 47 Conn. L. Rptr. 509) (claim for attorneys fees under § 52-249(a) untimely until foreclosing party files motion for judgment as to form of foreclosure). Therefore, the court declines to determine or make any award of attorneys fees.
General Statutes § 52-249(a) provides, in relevant part: "The plaintiff in any action of foreclosure of a mortgage or lien, upon obtaining judgment of foreclosure, when there has been a hearing as to the form of judgment or the limitation of time for redemption, shall be allowed the same costs, including a reasonable attorneys fee, as if there had been a hearing on an issue of fact."
CT Page 21963
ORDER
Based on the foregoing, the court finds the following and judgment shall enter as set forth. The parties stipulated at trial that the unpaid balance on the contract was $28,000. The court finds for Martone on its foreclosure of the mechanic's lien. Martone substantially performed the contract between the parties and is due the amount unpaid on the contract, less any setoff damages proven by the DePinos. The court finds that the DePinos have proven its counterclaim for the sum of $9,125 in setoff damages. Martone has not proven its special defense that it was prevented from inspecting the premises and performing any remedial work. The evidence shows that Martone was allowed to return to the DePino property repeatedly in attempts to alleviate the concerns of the DePinos.Thus, the court finds the debt owed by the defendants, in the amount of $18,875 and orders said defendants to pay said amount to the plaintiff in full payment of the construction cost.
The court makes no award of attorneys fees pursuant to § 52-249(a).