Opinion
FBTCV176066733S
01-30-2019
The TOTAL LOOK OF SOUTHPORT, INC. v. ROCK BOTTOM FURNITURE AND CARPET, INC. et al.
UNPUBLISHED OPINION
OPINION
THIM, JTR
The plaintiff, The Total Look of Southport, Inc., claims that the three defendants— Rock Bottom Furniture and Carpet, Inc.; New Beginnings, LLC Residential Renovation; and Daniel C. Bissonnette— improperly installed a porcelain-tile floor in plaintiff’s place of business in 2014. Plaintiff seeks to recover from defendants what the plaintiff paid for the tile and the installation. Plaintiff also seeks to recover the cost of removing the tile, the cost of removing fixtures and furniture that plaintiff placed on top of the tile, the cost of purchasing and installing new tile, the cost of replacing the fixtures and furniture, and compensation for loss of business revenue that will occur during the time the old tile is removed and new tile is installed. Defendant Rock Bottom contests liability and damages. Defendant New Beginnings, LLC Residential Renovation and defendant Daniel C. Bissonnette have failed to appear and, accordingly, have suffered defaults as to liability. This court enters judgment in favor of the plaintiff against all three defendants for $ 80, 443.20.
Plaintiff Total Look operates a hair, nail, and spa service business in Southport Connecticut. The business is owned and operated by Ms. Cher Anderson. In 2014, the building in which the business is located was renovated. The plaintiff, through its chief operating officer, Ms. Anderson, hired defendant Rock Bottom to provide various items and services during the renovation. One of the services Rock Bottom was requested to provide was the placement of porcelain tile in the large area that is used for work stations and customer services. Ms. Anderson purchased tile for the project from a tile company and asked Rock Bottom to install the tile. Rock Bottom subcontracted the tile work to defendant New Beginnings, LLC Residential Renovation. The latter business is owned by defendant Daniel Bissonnette, who placed the tile.
Bissonnette placed the porcelain tiles without giving sufficient attention to the level or balance of the tiles. As one looks at the tile floor, there exists a variation in the height of adjoining tiles that does not comply with industry standards. The descriptive term for this defect is "excessive lippage." The tiles have not moved since Bissonette finished the job in 2014 as the tiles are set in mortar and grout. The excessive lippage can only be corrected at the present time by removing the entire tile floor and placing new tiles.
Ms. Anderson was not satisfied with the tile placement "from the get-go." As Bissonnette was placing the tiles, Ms. Anderson complained to him that he was not evenly placing the tiles. Bissonnette attempted to respond to her complaints but, in the end, failed to perform to industry standards.
Even though Ms. Anderson was aware in October of 2014 of the excessive lippage, she finished setting up her salon, placing work stations on top of the tile. Her business, Total Look, now seeks to recover costs associated with removing and replacing the tile.
Plaintiff has alleged various causes of action with respect to defendant Rock Bottom: breach of contract, negligent performance of obligations established by contract, breach of one-year warranty, and unjust enrichment. Plaintiff alleges, inter alia, that Rock Bottom and the other defendants acted "negligently, incompetently, unprofessionally, in an unworkmanlike manner and in breach of their promises and representations to Total Look."
Plaintiff first seeks to recover the money it paid for the original tile and installation. Plaintiff paid $ 14, 826.32 for tile; $ 8, 700.00 for labor; and $ 7, 316.88 for a membrane to level the floor for a total cost in 2014 of $ 30, 843.20. Plaintiff also seeks to recover the cost of removing the improperly placed tile, removing the fixtures and work stations, and, after new tile is set, replacing the fixtures and furniture. Plaintiff has shown that this work will cost $ 49, 600. The court finds that the defendants are liable for the cost of the original installation and the cost of removing the tile and fixtures. These items total $ 80, 443.20.
Plaintiff also seeks the cost of purchasing and installing new tile. The new tile and installation will cost $ 27, 500.00. The court finds this is not an appropriate item of damages since plaintiff is recovering what she paid for tile and installation in 2014.
Finally, plaintiff seeks compensation for the loss of gross revenue that will occur while the replacement work is being done. Plaintiff estimates that the loss of revenue will be $ 166, 839.20. For this issue, there are two rules of damages this court must consider, one for breach of contract and one for negligent breach of a duty.
In an action based on breach of contract, the plaintiff’s recovery is limited to those damages the defendant had reason to foresee as the probable result of the breach at the time when the contract was made. The cost of new tile and compensation for loss of gross revenues, occurring years after the tile was installed, are not elements of damages any of the defendants had reason to foresee as a probable result of the breach when the contract was made. Furthermore, such an award ($ 166, 839.20 for loss of revenue) would be disproportionate compensation in light of the $ 8, 700.00 charge in 2014 for labor and the fact the excessive lippage was open, obvious and known to plaintiff in October of 2014.
A different rule of damages applies to actions based on negligence. The plaintiff contends that its anticipated loss of gross revenue is an appropriate element of damages under its negligence claims. Negligence is a breach of a duty. "A party may be liable in negligence for the breach of a duty which arises out of a contractual relationship." Johnson v. Flammia, 169 Conn. 491, 496 (1975). A plaintiff injured by a defendant’s negligent breach of a duty is not limited to a recovery for only those injuries or harm that were foreseeable. A negligent defendant will be held liable if the injury or harm occurs as a result of an unbroken sequence of events, provided the injury or harm is not too remote in time or space. "Foreseeability" is still relevant in determining whether the defendant’s act was negligent in the first place. Was there a duty? The issue for this court to resolve is whether the scope of the defendants’ duty, in providing a tile floor without excessive lippage, extends to protecting the plaintiff from a loss of revenue occurring years after the floor installation at such time as the plaintiff decides to replace the floor tile. Is such harm within the foreseeable risk created by defendants’ negligent conduct? This court finds that plaintiff’s anticipated loss of revenue is too remote and, in addition, beyond the scope of the defendants’ duty. The defendants’ responsibility does not extend to such result.
The plaintiff has withdrawn the causes of action set forth in counts seven and eight of the complaint. The court dismisses the causes of action in counts nine and ten for the following reasons. In count nine, plaintiff alleges a breach of warranty claim against Rock Bottom. The warranty that is set for on the invoice reads as follows: "one year warranty on all service and labor." The breach of warranty claim adds nothing more to this lawsuit than the breach of contract claims. In count ten, plaintiff alleges a cause of action of unjust enrichment against Rock Bottom. Plaintiff claims Rock Bottom received and kept payment for the defective work. This claim adds nothing to what is set forth in the other counts directed against Rock Bottom.
Rock Bottom plead special defenses in response to plaintiff’s claims. The court has considered the issues raised by the special defenses but does not see a need to comment on those issues.
Judgment enters in favor of the plaintiff against all defendants on counts one, two, three, four, five, and six for $ 80, 443.20. Postjudgment interest is awarded at six percent per annum commencing twenty days after entry of judgment.