Opinion
No. CV04-4001446S
March 6, 2007.
MEMORANDUM OF DECISION
The plaintiff in this matter seeks damages from the defendants Towantic Woods Associates, LLC and FK Farms Estates, LLC arising out of the construction of a residence located at 67 Larkey Road, Oxford, Connecticut. On or about April 30, 2003 the parties entered into a contract of sale for construction of a one-family residential dwelling for an agreed price of $356,000. (Plaintiff's Exhibit 12.) The plaintiff became the owner of the property on November 13, 2003. (Plaintiff's Exhibit 3, 4.) At the closing, the plaintiffs furnished the defendants a punch list consisting of 28 items which needed replacement or repair to complete the construction according to the contract and specifications. (Plaintiff's Exhibit 66.)
The trial of the case extended over several days and a number of photographs were introduced by the plaintiff's sister, Diana White, showing the various claimed defects in the construction throughout the entire building and grounds. The evidence supports the conclusion that the defendants demonstrated a significant degree of incompetency in the construction of this dwelling.
The plaintiff brings his action in several counts with substantially identical claims against the two defendants Towantic Woods Associates LLC and FK Farms Estates, LLC based upon breach of express and implied warranties for new home construction, Sections 47-117 and 47-118 C.G.S. respectively.
Additionally, the plaintiff claims in the third and eighth counts violations of Sec. 42-110b C.G.S., CUTPA or unfair trade practices. As to these two counts, this court is not of the opinion that a simple contract between two parties can form the basis of a CUTPA violation when the claim is based upon poor workmanship or incompetency. Paulus v. LaSala, 56 Conn.App 139, 153; Ferrigno v. Pep Boys, 47 Conn.Sup. 580, 583.
The plaintiff in his claim for damages also claims punitive damages. The court does not conclude that the defendants' conduct while demonstrating a high degree of incompetence rises to the level of a reckless indifference to the plaintiff's rights which would support an award of punitive damages. See Vandersluis v. Weil, 176 Conn. 353, 358.
Sec. 47-117 C.G.S. provides that an express warranty is create by (1) any written affirmation of fact or premise which relates to the improvement and is made a part of the basis of the bargain between the vender and the purchaser shall create an express warranty. Here the defendants in paragraph four of the contract for sale (Plaintiff's Exhibit 1) expressly agreed to construct the dwelling in a good and workmanlike manner. Section 47-118 C.G.S., Implied Warranties, Section (a)(3) provides that in any improvement contract a warranty of construction in a workmanlike manner is an implied condition of the contract between the vender and the purchaser.
There is no question in this case from the evidence offered to the court through witnesses and the many demonstrative exhibits that the defendants through their agents failed to construct the building in question in a workmanlike manner.
As to damages, the plaintiff claims a total of $70,965.76 exclusive of attorneys fees and punitive damages which the court has concluded are not recoverable items in this action. Of the $70,955.76 claim, $7,925.76 is alleged by the plaintiff as damages due to the building being of shorter dimensions than contracted for. The home according to the blueprints and specifications was to be 2,204 square feet but upon completion due to an error during the course of construction proved only to be 2,156 square feet; a loss of 48 square feet. As to this claim, the court concludes that the parties reached an agreement that certain paving would be done by the defendant in exchange for the diminished size and such was accomplished satisfying that claim.
The plaintiff offered as a witness Cary O'Neil of O'Neil Associates who inspected the dwelling and in his report, Plaintiff's Exhibit 65, itemized the many deficiencies he found as a result of his survey. Michael Vodola who has been in home construction for 19 years inspected the property at the request of the plaintiff on February 23, 2005 and prepared an estimate of the cost of repairs or corrective work made necessary as a result of the defendants shortcomings; totaling $63,590. Plaintiff's Exhibit 64. The defendant offered the testimony of Michael Sprague in support of the defendant's claim that the plaintiff's complaints of poor workmanship were unfounded. The court finds that Mr. Sprague was not a credible witness in countering the plaintiff's claims.
The plaintiff's claim of $63,040 damages as a result of the defendants' poor workmanship appears to the court from all of the evidence presented to be reasonable and the plaintiff is accordingly awarded $63,040 plus allowable costs.