Opinion
No. CV 02 0068119 S
October 22, 2003
MEMORANDUM OF DECISION
This is an action brought by a homeowner against the contractor who built his home. The homeowner alleges poor workmanship has caused several defects for which he seeks damages.
Counts one, two and three allege poor workmanship, breach of warranties and negligence, respectively.
After hearing testimony of the plaintiff and his expert, the defendant and his witnesses, the following facts are found.
On or about October 1, 1999 the plaintiff Joseph J. Ezzell, Jr., and the defendant Ray Gervais d/b/a Ray Gervais Builder (hereinafter "Gervais") entered into an agreement wherein Gervais agreed to construct a home with a breezeway and two-car garage on a 4.2-acre parcel of the plaintiff located at 271 Snake Meadow Hill Road in the Town of Sterling in this judicial district. (Plaintiff's Exhibit 2.) The original contract price was $81,500. (Plaintiff's Exhibit 2.) With extras and changes in the size of the residence the total sum paid by the plaintiff was slightly higher.
There were no formal plans or specifications agreed upon by the parties. The plaintiff provided a sketch of the proposed structure to the building inspector when he sought a building permit. (Plaintiff's Exhibit 3.) Shortly before construction began the plaintiff's father-in-law provided Gervais with a sketch of the proposed building with rough dimensions. Gervais went to view the father-in-law's residence to confirm the intended design. Neither party can locate this sketch. Construction was completed by January of 2001 when a certificate of occupancy issued. (Plaintiff's Exhibit 5.)
As built, the cape style two-story residence has three dormer windows on the street side of the building that have been placed in the wrong location. Although there are no plans and specifications detailing the exact location of the dormers by any standard the appropriate alignment would place the center dormer above the entrance door which is located in the center of the first story. In fact the center dormer is located 8" to 9" off center from the front door, a condition that is readily visible from the street. The defect was noticed by the plaintiff before the certificate of occupancy was issued. An attempt was made to relocate the front door so that it would be aligned vertically with the dormer but the 8" to 9" gap remained. Gervais impliedly recognized the defect by his attempt to correct the situation.
The plaintiff's expert, Terence Chambers, a civil engineer who has supervised several residential building projects, testified that the center dormer is not properly located as it should be in the sketch given to the building inspector. The court agrees.
The vinyl windows that were installed are the subject of a claim by the plaintiff that because of the use of wood siding as opposed to vinyl siding on the outside of the dwelling it was inappropriate for Gervais to install vinyl windows and frames. The evidence does not support this theory. A manufacturer's representative testified that the vinyl windows are used commonly with wood siding as well as vinyl siding. Rather, he said, any water that has entered the dwelling is due to the lack of caulking. At the time of installation the plaintiff had not decided whether the siding should be painted or stained; the color had not been selected and for that reason the caulking was not done. Gervais notified the plaintiff of the need to caulk prior to completion of the dwelling. For unknown reasons the plaintiff did not do so.
The set of wooden stairs leading to an in-law apartment has insufficient support and needs a proper post and bracing. The interior pipes in this apartment frequently freeze in the winter months. Although insulated by Gervais the pipes were installed too close to an exterior wall by a plumber hired by the plaintiff and not by Gervais.
Contrary to the claim of the plaintiff three vinyl sliding closet doors were installed by Gervais in accordance with instructions provided by the manufacturer. If unsightly, it is due to the design and not poor workmanship. (Defendant's Exhibit E.)
Finally, the plaintiff claims and his expert agrees, that the sheet rock in most areas of the building has been poorly taped. Joints are wavy; screws or nails are apparent as are joints between sheets. The subcontractor who supervised the installation crew returned to the site on three occasions at the request of the plaintiff to repair defects, after which he considered the job to be done properly. The plaintiff's expert, Terence Chambers, found that the defects noted above are present at this time, notwithstanding the subcontractor's efforts to correct them. (Plaintiff's Exhibit 6.) The court agrees with the plaintiff's expert.
The court finds that the plaintiff has proved by a fair preponderance of the evidence the allegations of counts one, two and three of the complaint that involve the alignment of the center dormer and the installation of the dry wall.
As to count one, implicit in a building contract for the construction of a dwelling is a promise by the builder that the house will be completed in a skillful, competent and workmanlike manner. Maier v Arsenault, 140 Conn. 364, 368, 369 (1953); Greentree Condominium Assn. Inc. v. RSP Corporation, 36 Conn. Sup. 160 (1980). Thus Gervais was bound to deliver to the plaintiff possession of a dwelling house completed in a workmanlike manner. Maier v. Arsenault, supra, 140 Conn. 368, 369. Gervais did not do so.
Further, an express warranty is made as a part of the bargain by a vender to a purchaser for the purposes of C.G.S. § 47-117. Similarly for purposes of C.G.S. § 47-118 certain warranties are implied as a matter of law "[i]n every sale of an improvement by a vendor to a purchaser . . ."
The plaintiff gave notice of the alleged defects before the one-year warranties terminated under §§ 47-117 and 47-118.
Thus, the construction of the dwelling by Gervais includes warranties that the dwelling is free from faulty materials, constructed according to sound engineering standards, constructed in a workmanlike manner and fit for habitation at the time of completion of the dwelling. Krawiec v. Blake Manor Development Cornoration, 26 Conn. App. 601, 606 (1992). For the reasons noted Gervais has breached these warranties.
Finally, Gervais also owed a common-law duty of care to construct the dwelling in a good substantial workmanlike manner. Gervais knew, or should have known, that the faulty installation of the sheetrock and the misalignment of the center dormer would result in the foreseeable harm that resulted. Coburn v. Lenox Homes, Inc., 186 Conn. 370, 375 (1982).
As to the remaining claims of the plaintiff involving the installation of the windows, inadequate insulation of the water pipes, and inadequate support for the stairs in the garage, the court finds that the plaintiff has not met the burden of proof requirement by a fair preponderance of the evidence. The windows should have been caulked by the plaintiff; the freezing of the pipes in the upstairs apartment is caused by the placement of the pipes too close to the outer wall by the plumber who was hired by the plaintiff. The evidence surrounding the lack of permanent support for the stairway is sketchy and inconclusive. It may have been attached only temporarily because of the plaintiff's future plans for the area.
The plaintiff has apparently abandoned his claim regarding the installation of the bedroom closets as it has not been briefed.
By way of damages the court accepts the testimony of the plaintiff's expert, Terence Chambers, relative to the relocation of the center dormer and the drywall repairs as follows: repair and repaint sheetrock, $5015; reconstruct dormer in proper location, $8,062. (Plaintiff's Exhibit 6.) Judgment is entered in favor of the plaintiff in the amount of $13,077.
Potter, J.