Opinion
FSTCV136019327S
01-19-2016
Robert J. McCreary v. Sirjohn Papageorge et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR REARGUMENT AND RECONSIDERATION (#201)
Hon. Charles T. Lee, J.
On September 1, 2015, defendant Sirjohn Papageorge filed this motion for reargument and reconsideration of the court's memorandum of decision dated August 18, 2015 (#198) to the extent it (1) granted plaintiff's motion for summary judgment based on Count Four of the complaint against Mr. Papageorge individually for negligence as a result of the arbitrator's finding in his award that defendant's company, Vanguard Construction Corp. (" Vanguard") was negligent; (2) denied summary judgment to defendant on Count Four; and (3) appeared to deny summary judgment to defendant on Count Five of the complaint. Plaintiff filed an objection to the motion on September 10, 2015.
As more fully set forth below, the court grants the motion for reargument and reconsideration and directs that the matter be set down for hearing.
Background
As more fully set forth in the court's previous decision, plaintiff Robert McCreary commenced this action on or about July 26, 2013 alleging that he entered into an agreement on October 29, 2007 to purchase a partially completed dwelling in Greenwich, Connecticut from Carnegie Hill Estates LLC, of which defendant Papageorge was a member. Plaintiff engaged Vanguard pursuant to a construction management agreement (the " CMA") to complete the house, which it had been building on speculation for Carnegie Hill. The complaint alleges that defendant Papageorge was and is the owner of Vanguard, and defendant concedes that he is its president. The complaint further alleges that Mr. Papageorge represented that the pre-existing improvements prior to the sale had been performed in a workmanlike manner; however, the complaint alleges that there were significant defects of which Mr. Papageorge was aware. Mr. McCreary moved into the house in August 2009 and subsequently discovered leaks and substantial construction defects. It is alleged that Mr. Papageorge misrepresented the scope of the problems, incorrectly blamed others and performed unnecessary work. Subsequently, plaintiff paid others to analyze and correct the work at substantial expense. The fourth (negligence) and the fifth (recklessness) counts of the complaint are relevant here.
Simultaneously with filing the complaint, plaintiff commenced arbitration against Vanguard as specified by the CMA. Plaintiff eventually asserted claims against Vanguard sounding in, among other things, negligence, recklessness, breach of contract and breach of warranty based on factual allegations identical to those alleged in the complaint. The arbitrator rendered an award in excess of $1,200,000 in favor of Mr. McCreary and against Vanguard.
On October 14, 2014, the arbitration award was confirmed by a judge of the superior court. On January 16, 2015, plaintiff revised the amended complaint in the present action to add several additional counts, which include count seven alleging an alter ego theory of liability with Vanguard against Mr. Papageorge.
Plaintiff McCreary moved for summary judgment on the fourth, seventh, and eleventh counts alleging respectively negligence, piercing the corporate veil with Vanguard, and the failure to carry adequate insurance, against the individual defendant Papageorge. Defendant Papageorge filed a motion for summary judgment on all counts except for count six.
In its memorandum of decision dated August 18, 2015, the court, among other things, granted plaintiff's motion for summary judgment on the fourth count of the complaint and stated that it denied defendant's motion for summary judgment in its entirety, but in fact granted the defendant's motion as to the fifth count (recklessness).
In granting the motion as to the negligence count against Mr. Papageorge personally, the court found that Mr. Papageorge personally supervised the project and was at the site virtually every day. Accordingly, the court found that it was not necessary to consider whether Vanguard's corporate veil should be pierced to reach Mr. Papageorge because he was personally involved in the tort of negligence. Key to this finding was the court's interpretation of the following language in the arbitration award:
I find that certain portions of the work pre-purchase were done improperly and contrary to reasonable construction practice, and that [Vanguard's] failure to investigate and correct said work was a breach of the Construction Management Agreement.
Further, I find that certain portions of the work post-purchase were done improperly and not in accordance to plans or good construction practice and were a breach of the Construction Management Agreement.
Arbitration Award, at 1.
Based on this language, the court concluded that the arbitrator had found that Vanguard had acted negligently with respect to both pre-purchase and post-purchase work, and that finding could be imputed to Mr. Papageorge because he was in privity with Vanguard and personally involved in the work. Defendant moves the court to reconsider this holding because, among other things, it believes the court misconstrued the arbitrator's language and claims that the arbitrator did not make any finding of negligence against Vanguard.
Discussion
The court both agrees and disagrees with defendant's contention. Upon reconsideration, it appears that the better construction of the first paragraph cited above is that the pre-purchase work had been performed negligently and that Vanguard breached the management agreement by not identifying and correcting it. The language does not say that Vanguard was negligent in connection with the performance of the pre-purchase work, but rather is liable for its later breach of contract.
The second paragraph, on the other hand, finds that portions of the post-purchase work " were done improperly" and " not in accordance . . . to good construction practice, " which is plainly consistent with a finding of negligence against Vanguard for post-construction work. Although the arbitrator did not use the actual word " negligence, " allegations that a defendant " failed to provide services in a skilled, competent and workmanlike manner implicate negligence principles." Latex Foam International Holdings, Inc. v. Richard N . Goldman & Co., Superior Court, judicial district of Hartford, Complex Litigation Docket, Docket No. X03-CV-03-4022300-S, (January 26, 2007, Langenbach, J.). If a count, or in this case, an arbitrator's award, specifically lists examples of poor workmanship, it is presumed that this list is intended to illustrate a party's negligence. Anderson v. Whitten, 100 Conn.App. 730, 735 n.3, 918 A.2d 1056 (2007). Accordingly, the rationale of the decision would support a modified summary judgment based on post-purchase work. While defendant raises various other points in the instant motion, the court does not find them persuasive with respect to post-purchase work.
Defendant in the instant motion (at Point II.E, pp. 9-11) also raises portions of the arbitrator's monetary award which refer variously to pre- and post-purchase work. Accordingly, the court could revise the amount of the summary judgment based on Count Four to reflect only the post-purchase work, which is substantial and arguably approximately $800,000. However, before proceeding to a final decision on summary judgment, the court will schedule a hearing and consider the parties' contentions in light of this decision.
Conclusion
In summary, the court finds that defendant has demonstrated that the arbitrator did not make a finding against Vanguard for negligence in the pre-purchase work and, accordingly, that prong of the court's decision granting summary judgment on Count Four must be revised. The court denies any reargument or reconsideration as to its denial of defendant's motion as to Count Four, but does determine that the decision should be clarified as to granting defendant's motion for summary judgment on Count Five, sounding in recklessness, against Mr. Papageorge.