Opinion
145014334
04-07-2016
Nancy V. Vorel v. Curtis Basdeo et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE HEARING IN DAMAGES
Hon. Charles T. Lee, J.
Plaintiff Nancy Vorel commenced this litigation by service of an application for prejudgment remedy, proposed writ, summons and complaint and supporting papers on defendants Curtis Basdeo, doing business as New England Woodwork (Basdeo), and his wife Indira Basdeo on or about November 5, 2014. Plaintiff asserted various claims against defendants arising out of their unsatisfactory partial performance of a contract to repair her houses located at 3 and 5 Nassau Road in Westport, Connecticut, which were damaged by Tropical Storm Sandy in October 2012.
Defendants failed to appear at the hearing and the court granted a prejudgment remedy of attachment in the amount of $225,000 and order for disclosure of assets on December 14, 2014. The proposed complaint, as subsequently served on December 20, 2014, alleges breach of contract, breach of the implied covenant of good faith and fair dealing, conversion, civil larceny in violation of Gen. Stat. § 52-564, unjust enrichment, and violation of the Connecticut Unfair Trade Practices Act (Gen. Stat. § § 42-110, et seq.). Specifically, the complaint alleges that defendant Basdeo agreed to repair the building at 5 Nassau Road for $144,600 and to install some new oak flooring at 3 Nassau Road for $700. The complaint further alleges that plaintiff paid Basdeo $135,398.71 for the work at 5 Nassau Road, or 94 per cent of the contract price, but that Basdeo completed only forty-four percent of the work before refusing to complete the work, and that he retained the balance of the payment. The proof adduced at the hearing in damages altered these figures, as explained below. The complaint further alleges that Basdeo installed new oak flooring at 3 Nassau Road, which was " cupped." (In fact, the cupped flooring was installed at 5 Nassau Road.) With the work stopped, plaintiff alleged the loss of rental income of $5,500 per month.
Defendants entered appearances on January 22, 2015. However, they failed to plead to the complaint and a default for failure to plead was entered against them on March 4, 2015. Counsel appeared on behalf of the Basdeos on May 11, 2015 and filed a motion to open and vacate judgment for failure to plead on May 20, 2015. The matter appeared on the hearing in damages calendar on May 21, 2015 and the motion to open was denied at that time. The hearing in damages was continued several times thereafter. Defendants filed other motions to open the default on June 25, 2015 and September 24, 2015, which were denied on August 24, 2015 and October 9, 2015, respectively. Defendants attended and were represented by counsel at hearings in damages which were held on October 9, October 15, November 6 and 19, respectively. The court viewed the houses at 3 and 5 Nassau Road, with parties and counsel, on November 6, 2015. The parties submitted post-hearing briefs on damages on December 10, 2015.
Findings of Fact
Because of the defaults, the case proceeded as a hearing in damages. The defendants did not file a notice of defenses within ten days after entry of default. P.B. § § 17-34; 17-35. Thus, the procedure in such a case is that which is delineated in Whitaker v. Taylor, 99 Conn.App. 719, 725-27, 916 A.2d 834 (2007). Because the factual basis for both Whitaker and the present case are similar, that court's explanation of the legal effect of a no defense default is particularly informative.
" The crux of the plaintiff's claims on appeal relates to the effect of the default on the court's factual determinations at the hearing in damages. 'A default admits the material facts that constitute a cause of action . . . and entry of default, when appropriately made, conclusively determines the liability of a defendant . . . If the allegations of the plaintiff's complaint are sufficient on their face to make out a valid claim for the relief request, the plaintiff, on the entry of a default against the defendant, need not offer evidence to support those allegations . . . Therefore, the only issue before the court following a default is the determination of damages . . . A plaintiff ordinarily is entitled to at least nominal damages following an entry of default against a defendant in a legal action . . .'
" In an action at law, the rule is that the entry of a default operates as a confession by the defaulted defendant of the truth of the material facts alleged in the complaint, which are essential to entitle the plaintiff to some of the relief prayed. It is not the equivalent of an admission of all of the facts pleaded. The limit of its effect is to preclude the defaulted defendant from making any further defense and to permit the entry of a judgment against him on the theory that he has admitted such of the facts alleged in the complaint as are essential to such a judgment. It does not follow that the plaintiff is entitled to a judgment for the full amount of the relief claimed. The plaintiff must still prove how much of the judgment prayed for in the complaint he is entitled to receive. Bank of New York v. National Funding, 97 Conn.App. 133, 138-39, 902 A.2d 1073, cert. denied, 280 Conn. 925, 908 A.2d 1087 (2006).
" After a default, a defendant may still contest liability. Practice Book § § 17-34 and 17-37 delineate a defendant's right to contest liability in a hearing in damages after default. Unless the defendant provides the plaintiff written notice of any defenses [however] the defendant is foreclosed from contesting liability." Schwartz v. Milazzo, 84 Conn.App. 175, 178-79, 852 A.2d 847, cert. denied, 271 Conn. 942, 861 A.2d 515 (2004). Thus, a defaulted party who fails to file a timely notice of defenses prior to the hearing in damages " does so at his peril." (Internal quotation marks omitted.) Bank of New York v. National Funding, supra, 97 Conn.App. at 141.
Defendants did not give notice of defenses within ten days of entry of the default, or at any time thereafter. Accordingly, as a matter of law, they are held to have admitted the material allegations of the complaint, but plaintiff must still prove her damages.
Based on the allegations of the complaint and the evidence submitted at the hearing in damages, the court finds the following:
1. Ms. Vorel owns two buildings located at No. 5 and No. 3 Nassau Road in Westport, CT, near Long Island Sound (" Number 5" and " Number 3, " respectively). Prior to September 2013, Ms. Vorel was living in No. 5, the larger of the two buildings, and was renting No. 3.
2. In September 2013, Tropical Storm Sandy inflicted heavy damage on No. 5 and appreciable damage on No. 3. Ms. Vorel moved from No. 5 to No. 3.
3. Mr. Basdeo had done home improvement work for Ms. Vorel in the past. She retained him to repair No. 5 in January 2013. Subsequently, she retained him to replace flooring in Number 3. Ms. Indira Basdeo is Mr. Basdeo's wife and helps with the financial recordkeeping for her husband's business.
4. Mr. Basdeo, doing business as New England Woodwork, submitted an estimate for the work at No. 5 in the amount of $144,600, dated January 9, 2013. The estimate was divided into ten components, including a) replace insulation on walls and add new sheetrock--$27,200; b) install new oak flooring on first floor over insulated plywood--$24,000; c) replace tiles and shower stall in bathroom and install fixtures--$18,000; (d) replace six exterior doors--$9,300; (e) Repair back deck--$11,600; (f) repair drooping front deck--$4,700; (g) install new kitchen cabinets--$17,000; (h) repair walls in garage--$8,700; (i) install new interior doors, time and baseboard--$7,400; and (j) paint interior surfaces $16,700.
5. Ms. Vorel accepted the estimate of $144,600, to which the parties referred as their contract. Subsequently, Ms. Vorel also hired Mr. Basdeo to replace flooring in the foyer of Number 3. There was no separate estimate for this item.
6. Ms. Vorel received insurance proceeds for the repair of the storm damage of approximately $163,000. Much of that money was paid to Mr. Basdeo and Ms. Vorel jointly. The money was to cover Mr. Basdeo's estimate, as well as other costs for which Ms. Vorel was responsible, such as mechanicals, dumpsters and other mitigation expenses.
7. Mr. Basdeo received and retained $110,916.90 in connection with the work.
8. Mr. Basdeo commenced performance of the work in December 2012. He and his team removed the flooring on the first floor and replaced it with insulated plywood and oak flooring. Mr. Basdeo also substantially reconstructed the bathroom; replaced sheetrock of the walls; repaired the garage; and removed the rear deck, among other things.
9. In approximately May 2013, Basdeo believed that all the work would be completed in six weeks, within the budget of the contract.
10. Ms. Vorel claimed she had listed No. 5 with an on-line rental site (VRBO) and that she had potential renters starting in July 2013 for the rest of the year at $5,500 per month, for a total of $33,000. However, she did not offer any evidence supporting these contentions or identifying any renters. She did submit evidence showing that she had previously rented No. 3, which is a smaller house closer to the water, for $5,500 a month before the storm.
11. However, the project was derailed by problems with the first floor oak flooring in No. 5. After its replacement, the oak flooring exhibited " cupping, " meaning some warpage at the sides of the floor boards. Because cabinets needed to be placed on the flooring and doors hung to open across it, the work stopped until the problem could be resolved.
12. Mr. Basdeo had purchased the flooring from Home Depot, and at Ms. Vorel's request, he asked them to replace it. Discussions with Home Depot continued into the fall of 2013. By letter dated September 3, 2103, Home Depot denied responsibility and blamed the problem on replacing the flooring before the house and ground had dried sufficiently.
13. Ms. Vorel insisted that Mr. Basdeo replace the flooring at his expense and claims she offered to advance the money to him " at some point, " but that Mr. Basdeo refused. Mr. Basdeo denies this. Ms. Vorel may have been referring to Exhibit 19C, which is an email dated November 18, 2013 from Ms. Vorel to Mr. Basdeo, which says, in part: " I know money is tight for all of us, but I really need to get the house finished so that I can start making some money. If it would help, I can upfront a little money until you get reimbursed by Home Depot. I also want to get reimbursed for the $2,200 for the report."
14. Substantial email correspondence passed between the parties during the latter half of 2013 and into 2014. On or about March 1, 2104, Basdeo submitted a written offer to remove all the oak flooring on the first floor at No. 5, replace it with new floor, stain and treat it and re-install the affected kitchen cabinets, as well as replace the foyer flooring at No. 3, for a total of $21,400. Mr. Basdeo said that this document was prepared for the benefit of Home Depot, and that he did not think the floor needed replacing, although was willing to perform the work for the stated priced.
15. Ms. Vorel refused this offer, and Mr. Basdeo quit work in approximately May 2014. On June 10, 2014, Ms. Vorel sent another email to Mr. Basdeo insisting that he complete work on the house so that she could rent it out.
16. Ms. Vorel stated she was unable to find other contractors to finish the job because of the dispute with Mr. Basdeo. Ms. Vorel said someone was preparing an estimate for completing the painting, but that she had not received any other estimates for any other work to be done at No. 5 or No. 3. She has not caused any work to be done on either house, except a plumber repaired the baseboard heating. Ms. Vorel said she did not have the money to pay for the completion of the work.
17. On November 6, 2015, during a view of the premises, the court noted the following: a) the first floor at No. 5 looked free of defects, although certain unevenness was evident to the touch; b) the interior walls were unpainted; c)the rear deck had been removed and holes for the footings had been dug; d) the front porch at No. 5 was sagging; e) the foyer flooring at No. 3 had not been replaced.
18. Ms. Vorel claimed that the flooring in No. 5 did not look right and was worried about her ability to sell the house. Ms. Vorel claimed she hired a wood scientist to examine the floor, but did not offer his report in evidence.
19. Plaintiff's counsel submitted affidavits showing that attorneys fees in the amount of $25,783.91 had been billed to plaintiff as of October 15, 2015.
Discussion
In Argentinis v. Fortuna, 134 Conn.App. 538, 548, 554, 39 A.3d 1207 (2012), the Appellate Court held, " Damages are recoverable only to the extent that the evidence affords a sufficient basis for estimating their amount in money with reasonable certainty." (Internal quotation marks omitted.) Utica Mutual Ins. Co. v. Precision Mechanical Services, Inc., 122 Conn.App. 448, 464, 998 A.2d 1228, cert. denied, 298 Conn. 926, 5 A.3d 487 (2010) . . . " It is axiomatic that the burden of proving damages is on the party claiming them . . . When damages are claimed, they are an essential element of the plaintiff's proof and must be proved with reasonable certainty . . . Damages are recoverable only to the extent that the evidence affords a sufficient basis for estimating their amount in money with reasonable certainty." (Citations omitted; internal quotation marks omitted.) Stamford Landing Condominium Assn., Inc. v. Lerman, 109 Conn.App. 261, 272, 951 A.2d 642 (2008). By analogy, " [a]s a general rule, in awarding damages upon a breach of contract, the prevailing party is entitled to compensation which will place [it] in the same position [it] would have been in had the contract been properly performed." (Internal quotation marks omitted.) Naples v. Keystone Building & Development Corp., 295 Conn. 214, 224, 990 A.2d 326 (2010).
In Levesque v. D& M Builders, Inc., 170 Conn. 177, 181, 365 A.2d 1216 (1976), our Supreme Court stated, " [f]or a breach of a construction contract involving defective or unfinished construction, damages are measured by computing either (i) the reasonable cost of construction and completion in accordance with the contract . . . or (ii) the difference between the value that the product contracted for would have had and the value of the performance that has been received . . ." (Internal quotation marks omitted.) Cited with approval, Ambrogio v. Beaver Road Associates, 267 Conn. 148, 158, 836 A.2d 1183 (2003).
The duty to mitigate a plaintiff's damages is well-established in Connecticut law. Our Supreme Court held in West Haven Sound Development Corp. v. West Haven, 201 Conn. 305, 332, 514 A.2d 734 (1986), that the plaintiff " clearly had a duty to exercise reasonable conduct to minimize the damages occasioned by the defendant's breach; Brown v. Middle Atlantic Transportation Co., 131 Conn. 197, 199, 38 A.2d 677 [1944]; see Camp v. Cohn, 151 Conn. 623, 627, 201 A.2d 187 [1964]; Eastern Sportswear Co. v. S. Augstein & Co., 141 Conn. 420, 425, 106 A.2d 476 [1954]; and the court will measure damages as though [it] had acted reasonably. See 22 Am.Jur.2d, Damages, § 203."
In Preston v. Keith, 217 Conn. 12, 584 A.2d 439 (1991), the Supreme Court held that the burden of proving that the plaintiff failed to mitigate damages in a negligence case is generally on the defendant. The court stated that " a review of the relevant authorities reveals that [t]he burden of proving that the injured party could have avoided some or all of his or her damages universally rests on the party accused of the tortious act." (Internal quotation marks omitted.) Id., at 20-21. The court continued by stating that " The rule placing the burden of proof on the issue of mitigation of damages upon the defendant applies to actions for personal injuries or property damage arising out of tortious activity and to actions for breach of contract . . . To claim successfully that the plaintiff failed to mitigate damages, the defendant must show that the injured party failed to take reasonable action to lessen the damages; that the damages were in fact enhanced by such failure; and that the damages which could have been avoided can be measured with reasonable certainty." (Internal quotation marks omitted.) Id., at 22. However, the Supreme Court noted one exception to the rule placing the burden of proving failure to mitigate on the defendant: " Only in certain limited circumstances in cases involving breach of contract have courts placed the burden of proof on the issue of mitigation on the plaintiff. See, e.g., Nello L. Teer Co. v. Hollywood Golf Estates, Inc., 324 F.2d 669, 672 (5th Cir.1963), cert. denied, 377 U.S. 909, 84 S.Ct. 1169, 12 L.Ed.2d 178 (1964) (breach of contract after partial performance); see generally 25A C.J.S., Damages § 144(e) n.1.50." Id. at n.10.
Analysis
Plaintiff claims damages in five categories as follows:
1. Non-Performance of a) interior painting; b) drooping front deck; c) back deck; d) replacement of six exterior doors; in the total amount of $32,577. 2. Part Performance with respect to bathroom, where plaintiff asserts that defendant only completed half of the job; for $6,930. 3. Defective Work requiring the replacement of the first floor at No. 5; for $16,478. 4. Lost rental income for the period July 1, 2013 to October 1, 2015; for $148,500. 5. Attorneys fees; for $25,783.91
The court analyzes each category in turn, as follows:
1. Non-performance
Upon inspection, the court found the interior walls to be properly prepared and primered, but lacked the finishing coat of paint. Because plaintiff did not supply evidence of the value of that phase of the work or the reasonable cost of completion, she has not proven her entitlement to this element of damage.
The drooping front deck had not been repaired. The full amount of that item as estimated is $3,619.
The back deck has not been replaced, but defendant is entitled to a credit for the old deck's removal and excavation of the footing locations, as plaintiff concedes. However, plaintiff has not provided evidence as to what the credit should be, and accordingly, the court cannot award damages for this amount because plaintiff has not provided evidence of the reasonable cost of completion.
Replacement of six exterior doors. This is an element of the contract, which was not performed. The court awards the contract amount of $9,300. 2. Part Performance
Upon inspection, it appears that defendant completed the bathroom project, except for installation of the plumbing fixtures. As no amount was provided for the cost of completion, no damage is awarded here. 3. Defective Work
The contract required defendant to provide the new oak flooring in Number 5 and, accordingly, it was responsible for the materials and labor. The fact that Home Depot may have sold defective materials is a risk assumed by defendant, not plaintiff. The court finds that the contract entitled plaintiff to a floor free of the defects it exhibited in 2013 and awards the estimated cost of replacement of $21,400. 4. Lost Rental Income
It was the expectation of the parties that the project at Number 5 would be completed by the summer of 2013, but the defect in the flooring halted the project. However, plaintiff's claim of loss of rental income for Number 5 for the rest of 2013 is too speculative to support an award of damages. No evidence was submitted to support plaintiff's oral assertions, and the court finds that plaintiff has not satisfied her burden of proof in this regard.
The claims for lost rental income in 2014 and 2015 fail because of plaintiff's failure to mitigate her damages. The court finds that completion of the project was a matter of about six weeks work. While plaintiff claims that she could not find contractors to do the work because of her dispute with defendant, she supplied no testimony or evidence in support of that assertion, and the court does not credit it. The fact that she still has not repaired the flooring in the foyer of Number 3 four years after the damage is hard to understand, especially in light of the fact that plaintiff retained $31,000 of the original contract price and $53,000 of the insurance proceeds. In short, the evidence demonstrates that Ms. Vorel did not satisfy her obligation to mitigate her damages. 5. Attorneys Fees
Count Six of the Complaint alleges a cause of action under the Connecticut Unfair Trade Practices Act, Gen. Stat. § § 42-110, et seq. Because defendants were defaulted for failure to plead, their liability under that count was established. Plaintiff has submitted evidence of fees in the amount of $27,784, which the court finds to be reasonable, and, accordingly, awards that amount.
In summary, the court awards damages as follows:
Non-performance
$12,919
Defective work
$21,400
Attorneys fees
$27,284
TOTAL
$62,103
CONCLUSION
Having conducted a hearing in damages, viewed the premises and reviewed the pleadings and submissions of the parties, the court finds that judgment shall enter in favor of plaintiff and awards damages in favor of the plaintiff and against the defendants in the amount of sixty-two thousand one hundred three dollars ($62,103).