Opinion
No. CV 01 0065486 S
October 8, 2003
MEMORANDUM OF DECISION
This is an action brought by two home owners against a developer and builder claiming damages for the faulty construction and placement of a manufactured home on premises they purchased in Plainfield in this judicial district. The action has been withdrawn as to the manufacturer of the preassembled dwelling.
On January 29, 1999 the plaintiffs, Adelbert R. Michaud and Kathleen M. Michaud, entered into a purchase and sales agreement with the defendant Dow Road Associates, Inc. (hereinafter "Dow") for the construction of a 28' x 40' ranch style dwelling and the purchase of a lot on which it was to be located known as 270 Dow Road, in a subdivision in the Town of Plainfield. The purchase price was $115,900 and a deposit of $1000 was paid by the plaintiffs. (Plaintiffs' Exhibit 1.) The dwelling was manufactured by Avis America under a contract with Dow and assembled on the premises by the defendant, Conyers Construction Company, Inc. (hereinafter "Conyers"), who provided the customary construction services. These services included the excavation of a cellar hole, construction of a foundation, provision for the delivery of the manufactured home, all work necessary to affix the home to the foundation, all plumbing and electrical work, grading and landscaping.
A closing took place on April 27, 1999 at which time the plaintiffs paid the balance of the purchase price to Dow. (Plaintiff's Exhibit C D.)
The following facts are found. Shortly after taking possession of the premises the plaintiffs discovered problems with the construction and site work. Specifically, the hardwood flooring that was installed after the home was placed upon the site has buckled, primarily in the area of the living room and kitchen where the two sides of the modular home were joined together when placed on the foundation. The condition is caused by a crowned rim joist on one side which, when joined with another rim joist on the other side that is level, created a hump or warp in the hardwood floor when it was installed. Dow admits that the defect exists and that the area of the crown should have been leveled before the floor was laid. The hump or warp ranges from 1/8" to 1/4" between the living room and kitchen and is visible to the naked eye. Another area is also affected to a lesser degree. This area is located in a hallway leading to a bedroom. The buckling of the flooring has also caused the corners of the dry walls to crack in some areas in the house.
There are cracks in the basement foundation wall on the northerly side from which water entered the cellar. Dow sought to remedy the situation by pumping epoxy into the cracks when the condition was brought to its attention by the plaintiffs. Recently the plaintiffs worked one day doing some regrading and directing surface water away from the north wall of the foundation. The basement has been finished and is currently in use as an apartment. It is dry.
Certain stumps and boulders were not removed from the premises as promised. The driveway washed out in places. Two loads of gravel were delivered by Dow to restore the grade. Additional grading was done by Dow to prevent erosion.
The plaintiffs commenced this action on April 26, 2001. The first count alleges a breach of the agreement to complete the dwelling in a workmanlike manner and to deliver a residential dwelling in accordance with the plans and specifications on the part of Dow. The second count alleges breach of express warranties found in C.G.S. § 47-117 and the implied warranties found in C.G.S. § 47-118 on the part of Dow. The third count alleges negligence in the construction of the dwelling in an unskillful manner on the part of Conyers.
In May of 2003 the plaintiffs amended their complaint to include claims that the basement floor was cracked and that the front porch was breaking away from the rest of the house.
Except for the claims found in the amended complaint the plaintiffs gave notice of the alleged defects before the one-year warranties terminated under §§ 47-117 and 47-118.
The parties are at odds about the propriety of some of the claims of the plaintiffs and the cost of making repairs where the defects are not disputed.
Additional facts will be found as necessary to discuss the various claims of the parties.
The most serious problem is the buckling of the hardwood floors, a condition that is not disputed by the defendants.
The plaintiffs' expert, Richard Matteau, a contractor with carpentry and masonry experience, testified that it would be necessary to replace all the hardwood flooring, initially installed at a cost to the plaintiffs of $7200, as well as the plywood subflooring, for a total cost of $9500. The defendants' expert, Edgar Audet, a floor installer for more than ten years, testified that the situation could be improved but not rectified by removing about ten flooring boards and then replacing them in such a way that the buckling is reduced. He indicated this could be done without "face nailing" the boards, thereby exposing the nails to view. This was a concern of the plaintiffs who refused to allow the original installer to remove a few boards after the defendants arranged to have the work done soon after the situation came to their attention in 1999. Audet estimated an installer could complete the repairs in one day if patching work was done. Since Audet conceded the repairs would not eliminate the buckling it was not unreasonable of the plaintiffs to refuse defendants' offer.
The buckling of the floors has caused a cracking of the drywall or sheet rock in the corners of inner walls of the living room and bathroom. Matteau has estimated the cost of caulking and repainting to be $1800. The defendants did not introduce evidence in rebuttal.
The two cracks in the northerly wall of the foundation were repaired from the inside by the defendants. Some water continued to seep into the basement until the plaintiffs, at their expense, removed soil from the area directing the flow of surface water away from the northerly foundation wall. Michaud estimated the cost of repairing the foundation to be $3600. The plaintiffs did not testify regarding their cost to move the soil away from the foundation.
Matteau estimates the cost of removing stumps and boulders to be $3100 and the cost of a drain and stones to prevent driveway erosion to be $2600. The testimony is not clear exactly which stumps and boulders were to be removed by the defendants, whose foreman indicated no demand was ever made to correct the situation. Nor is the testimony clear as to any permanent erosion of the driveway after two loads of stone were brought in by the defendants and some regrading work done by the defendants. The driveway has since been paved.
The claims of the plaintiffs found in the amended complaint of May 2003 are not supported by the evidence introduced at trial, and thus the repair estimates of Matteau are not relevant.
The first claim involves the cracking of the basement floor. No physical evidence of cracking was presented. While the testimony of the plaintiff, Adelbert Michaud, indicates the depth of the concrete near the oil tank is 2 1/2", the subcontractor who poured the floor testified its depth to be at least 3" as required by the specifications and plans for the house. In addition, defendants' expert, William Boyer, a structural engineer, testified that any hole that has been drilled in concrete will cause the concrete at the bottom to chip away, causing the measurement by Adelbert Michaud to be less than accurate. The court agrees.
The second claim involves the porch and the claim that it has "moved" since it was attached to the foundation. In August of this year Bayer inspected the porch area. Contrary to the testimony of the plaintiff, Adelbert Michaud, and Matteau, he found the porch to be stable. If it were moving, he said, the gap between the horizontal slab and the vertical foundation would be greater then one-eighth of an inch that now exists and the posts and roof would show the effects of movement. He attributed the gap to the normal shrinking of the horizontal slab where it attaches to the wall and not to poor workmanship. The court agrees.
The court finds that the plaintiffs have proved by a fair preponderance of the evidence the allegations of counts one, two and three of the complaint that involve the hardwood flooring and the dry wall and foundation wall cracking.
As to count one, implicit in a building contract for the construction of a dwelling is a promise by the builder to the owner that it will perform all of its duties and construct the dwelling in a skillful, competent and workmanlike manner. The intent expressed by the written contract for the construction of the dwelling was that Dow was bound to deliver to the plaintiffs possession of a dwelling house completed in a workmanlike manner. Maier v. Arsenault, 140 Conn. 364, 368, 369 (1953); Kroll v. Goldring, 38 Conn. Sup. 610, 613 (1982).
The court has not addressed the defense of "merger" raised in the defendants' brief because it was not pleaded.
An express warranty is made as a part of the bargain by a vendor 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 . . ."
Thus the construction of the dwelling by Dow 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. Krawic v. Blake Manor Development Corp., 26 Conn. App. 601, 606 (1992). For the reasons noted Dow has breached these warranties.
The defendant Conyers also owed a common-law duty of care to construct the dwelling in a good substantial workmanlike manner. Conyers knew or should have known, that the cracked foundation wall and the failure to match the two modular sections of the manufactured dwelling would result in the foreseeable harm that resulted, including the cracking of the sheetrock. Coburn v. Lenox Homes, Inc., 186 Conn. 370, 375 (1982). The seller is bound to deliver a house completed in a workmanlike manner. Maier v. Arsenault, supra, 140 Conn. 368, 369.
As to the remaining claims involving the driveway, removal of stumps and boulders, the cracking of the basement floor and the movement of the front porch, the court finds that the plaintiffs have not met their burden of proof requirement by a fair preponderance of the evidence. The evidence regarding these claims is sketchy and repairs are unnecessary. For example, the basement is now dry; the driveway is now paved. Just which boulders and stumps were to be removed is not clear from the evidence.
Because of its findings the court has not addressed the defendants' statute of limitations special defense regarding the claims found in the amended complaint.
By way of damages the court accepts the testimony of the plaintiffs' expert, Richard Matteau, relative to replacement of the hardwood and subflooring and finds the damage to be $9500. In addition his estimate of $1800 to repair the cracking of the dry wall is adopted. The plaintiffs did not introduce evidence in support of their actual costs to finally repair the foundation wall from the outside. The inside cost of repairing the cracks was assumed and paid for by the defendants.
Since the plaintiffs have not proved their remaining allegations of poor workmanship, breach of warranties and negligence, no damages are awarded for these claims.
Judgment is entered in favor of the plaintiffs against the defendants Dow and Conyers in the amount of $11,300.
Potter, J.