Opinion
No. CV-04400413 S
March 16, 2006
MEMORANDUM OF DECISION
FACTS
This is a contract case in which the Plaintiff claims that he and the Defendant entered into an agreement for Plaintiff to do certain construction work on the reconstruction of a house located at 71 South Main Street, Essex, CT. At trial, the court heard testimony from Plaintiff Glenn Theriault, President of Yankee Drywall; Defendant George MacLauchlan, the General Contractor for the job; Tom Knox, a painter; and John Brozinski, a contractor. The Plaintiff, Glenn Theriault, testified that the original work called for sheetrock taping, spackling, and preparing walls for painting on the 1st, 2nd and 3rd floors of the property. The basement and garage were not included in the original agreement. Subsequent to the original agreement, Plaintiff claims that the Defendant decided he wanted the Plaintiff to use "bullnose corners", paint ceilings, and apply skimcoating. Plaintiff claims he explained, and Defendant understood that these extra tasks would cost extra. He stated that the cost on the extras would be determined by time and material.
The Plaintiff testified that he also incurred extra cost because the work took longer than was expected due to more patching being created when other things were done, such as trim removal. Much of this work was not seen in the beginning when the price was quoted, and was happening as the job progressed. In addition, there were many other tradesmen on the job at the same time they were, e.g., tileman in the bathroom; carpenters demolishing walls and removing trim; mechanics; electricians; floor sanders. The presence of all these other tradesmen hampered their ability to do their work. Sometimes they couldn't work but 2-3 hours in a day because of all the interference. Plaintiff's Estimate dated 1/29/03, quoted a price of $9,800 for "Drywall taping on 1st, 2nd 3rd floors (labor only)." (Exhibit 1.) He claims Defendant subsequently personally requested that he do additional work and changes which cost more, and that Defendant agreed to pay extra for this.
Plaintiff's Invoice dated 3/16/03 quotes a price of $12,000 for "Drywall taping 1st, 2nd 3rd floors." In addition, it quotes additional charges in the amount of 10,841.14 as follows:
$6,266.40 Interior wall ceiling slim coat spray
3,480.00 One coat of finish paint. Labor from 3/3/03 ending 3/14/03
1,095.00 GWB supplies-60 gals. Paint, 4 rolls plastic, 2 rolls rosin paper, sandpaper, 5 bags durabond, 4 masking tape
The invoice also states that $13,000 had been paid to Plaintiff by Defendant as of that date. The Defendant submitted checks to Plaintiff on 2/4/03 for $5,000; and 2/26/03 for $8,000.00.
The extra work and expense included using bullnoses and skimcoat spraying. Plaintiff testified that his original bid of $9,800 did not include the bullnose corners, and that the decision to do that was made afterwards. The Plaintiff testified that he handed the Defendant an invoice for $5,000.00 for the bullnose corners. The Plaintiff's Invoice dated 3/16/03 does not reflect this charge, but does include a figure of $12,000 for the drywall taping 1st, 2nd 3rd floors. The Court is unclear where that figure comes from. Plaintiff's Invoice dated 3/16/03 also quotes a cost of $6,266.40 for the skimcoat spray, and $3,480.00 for one coat of finish paint.
The Defendant claims that the originally agreed-upon price for drywall taping was $9,600.00. He testified that the Plaintiff quoted the job to include 3/4" bullnose beads and it was "understood" that Plaintiff would use bullnoses. Defendant stated that he and the Plaintiff subsequently discussed the skimcoat spraying and came to an agreement that Defendant would pay an additional $5,000.00 for Plaintiff to paint the ceilings and skimcoat spray.
Most of these figures were apparently reached verbally and on handshakes. The only documentation — the Estimate dated 1/29/03 — states $9,800 for "Drywall taping 1st, 2nd 3rd floors." The Exhibit 2 Invoice shows a price of $12,00 for this work, and is dated 3/16/04, 2 days after the Plaintiff received a call from Defendant terminating his services. Defendant claims that the materials were included in the original quote, the Plaintiff claims they were not.
Therefore, according to Defendant's claims he agreed to pay $14,600 for the job, i.e. $9,600 plus $5,000.00. As stated previously, the Plaintiff believes he is entitled to $21,841.14 for his work. Based on the testimony and evidence presented at the trial, the Court is of the opinion that the bullnose corners were not included in the original estimate. The Court also believes that the materials which Plaintiff is seeking to be paid for were included in his quoted prices. The Court believes the Plaintiff is entitled to $5,000.00 for the bullnose corners, $9,800.00 for drywall taping 1st, 2nd and 3rd floors, and $5,000.00 for painting of the ceilings skimcoat spraying. Therefore, the Plaintiff would be entitled to compensation in the amount of $19,800.00.
The Defendant, however, testified that the Plaintiff had a painter on his crew who had a drinking problem, didn't come to work as he should have, didn't do some of the work he should have done, did not do his work in a timely manner, and did a poor job with some of the work he did. On 3/14/03, the Defendant finally terminated the Plaintiff from the job because of the trouble he was having with Plaintiff's painter. In addition the Defendant testified that he had to clean floors which had paint on them because they were not covered as they should have been, when painting was being done. The Defendant testified that he had to hire others to finish and/or do over some of the work the Plaintiff's painter was supposed to have done.
The Plaintiff did not contest the fact that there were problems with his painter. He did, however, state that there were sub-floors in the house when he was working on it. Defendant states in Exhibit A that he paid Tom Knox $3,480.00 to repaint the ceilings. Tom Knox testified, however, that he remembers the ceilings as already painted, and he did not paint them. Tom Knox also testified that there were a lot of other tradesmen on this job, and that they all got into each other's way.
Nonetheless, as discussed herein, the Defendant would be entitled to set off any debt owed to him by the Plaintiff in this action. The Court, however, is not in agreement with Defendant's figures. In Defendant's Exhibit A, he lists what costs he feels he is entitled to because of money he claims to have paid out as a result of poor work by the Plaintiff. He makes several claims in that document including a $3,480.00 deducted from the Plaintiff's bill because he had to pay Tom Knox to repaint the ceilings; an estimated $1,600.00 deduction for payment to someone to hand scrap the floors under the base board; and an anticipated cost of $300.00 to sand paint off the floor. First of all, the Court does not understand why a project such as this would have the final flooring in when all of this construction is still going on. It does appear to the Court, however, that the floors did require additional attention as a result of the job that the Plaintiff's painter did; and that the Defendant should receive some set-off for his extra costs in that area. With regard to the ceilings, the Court finds that Tom Knox did not have to repaint them.
This Court therefore, finds that 1) the Plaintiff is entitled to $19,800.00 as compensation for his work on this job; 2) that the Defendant is entitled to a set-off in the amount of $1,900.00 for damage to the floors; 3) that the amount due to Plaintiff is $17,900.00 less $13,000.00 already received, for a total of $4,900.00 due to the Plaintiff
COUNTERCLAIMS
Although the Plaintiff failed to brief the issues of setoff and vexatious litigation, the Defendant still has the burden of proof on the counterclaims and, therefore, are not deemed abandoned
A. Set-Off
"In Connecticut, a setoff may be legal or equitable in nature." OCI Mortgage Corp. v. Marchese, 255 Conn. 448, 463, 774 A.2d 940 (2001). "General Statutes § 52-139 and Practice Book § 10-54 furnish our rules for pleading the right of setoff. Setoff is the right to cancel or offset mutual debts or cross demands . . . The concept of setoff allows [parties] that owe each other money to apply their mutual debts against each other, thus avoiding the absurdity of making A pay B when B in fact owes A . . . A set-off is made where the Defendant has a debt against the Plaintiff arising out of a transaction independent of the contract on which the Plaintiff sues, and desires to avail himself of that debt, in the existing suit, either to reduce the Plaintiff's recovery, or to defeat it altogether, and, as the case may be, to recover a judgment in his own favor for a balance."
"To constitute mutuality, the debts must be due to and from the same persons in the same capacity . . . Mutual debts . . . are cross debts in the same capacity and right and of the same kind and quality . . . Setoff may be employed only when a defendant requests that the court set off a judgment against a debt owed to the defendant by the plaintiff . . . It is the defendant's burden to demonstrate its right of setoff by affirmatively and adequately alleging such a claim in the pleadings." (Citation omitted; emphasis added; internal quotation marks omitted.) Mariculture Products Ltd. v. Certain Underwriters at Lloyd's of London, 84 Conn.App. 688, 703-04, 854 A.2d 1100, cert. denied, 272 Conn. 905, 863 A.2d 698 (2004).
In the present case, if the defendant is awarded damages, then any debt owed to the plaintiff may be set-off by those awarded damages.
B. Vexatious Prosecution
"A vexatious suit is a type of malicious prosecution action, differing principally in that it is based upon a prior civil action, whereas a malicious prosecution suit ordinarily implies a prior criminal complaint . . . Vexatious suit is the appellation given in this State to the cause of action created by statute (General Statutes § 6148 [now General Statutes § 52-568]) for the malicious prosecution of a civil suit . . . which we have said was governed by the same principles as the common-law action of malicious prosecution . . . In a malicious prosecution or vexatious litigation action, it is necessary to prove want of probable cause, malice and a termination of [the] suit in the plaintiffs' favor . . . [Establishing] a cause of action for vexatious suit requires proof that a civil action has been prosecuted not only without probable cause, but also with malice . . . It must also appear that the litigation claimed to be vexatious terminated in some way favorable to the defendant therein." (Citations omitted; internal quotation marks omitted.) Hebrew Home Hospital, Inc. v. Brewer, 92 Conn.App. 762, 766-67, 886 A.2d 1248 (2005).
"A dismissal in accordance with Practice Book § 251 [now § 14-3] is a dismissal for a failure to prosecute. The failure to prosecute constitutes an abandonment of the suit by the plaintiff and a termination in favor of the defendant." Knickerbocker v. Village Apartments Properties, Inc., Superior Court, judicial district of Litchfield, Docket No. CV 0058389 (September 23, 1992, Pickett, J.) ( 7 C.S.C.R. 1218, 1219) ( 7 Conn. L. Rptr. 414). "Civil proceedings may be terminated in favor of the person against whom they are brought . . . by . . . the dismissal of the proceedings because of his failure to prosecute them." 3 Restatement (Second), Torts 674, comment j (1979).
In the present case, the Plaintiff brought a matter to foreclose a Mechanic's Lien against the Defendant and the owner of the house, Anne L. Stone, with a return date of June 17, 2003. During the pendency of that action the Plaintiff commenced the current action and did not continue to pursue the first action, which lead to its dismissal in November 2004 for failure to prosecute. The Defendant claims that the Plaintiff should have pursued that action, has filed the present action vexatiously, and is seeking treble damages. The Court finds that a dismissal for the failure to prosecute satisfies the favorable termination requirement. However, the Court does not find that the Defendant has proven that this the Plaintiff has brought this action without probable cause and with malice. There is a legitimate dispute between these parties regarding what was done and what is owed regarding the work on the property. The Court, therefore finds in favor of the Plaintiff on the issue of vexatious litigation.
SPECIAL DEFENSES — RES JUDICATA
"Claim preclusion (res judicata) . . . prevents a litigant from reasserting a claim that has already been decided on the merits." (Internal quotation marks omitted.) Rocco v. Garrison, 268 Conn. 541, 554, 848 A.2d 352 (2004). The purpose of res judicata is to "protect the finality of judicial determinations, conserve the time of the court, and prevent wasteful relitigation . . . and express no more than the fundamental principle that once a matter has been fully and fairly litigated, and finally decided, it comes to rest." (Internal quotations marks omitted.) Id. "Under the doctrine of res judicata, a final judgment, when rendered on the merits, is an absolute bar to a subsequent action . . . between the same parties or those in privity with them, upon the same claim." (Internal quotation marks omitted.) Id., at 555. Practice Book § 14-3 provides in relevant part: "(a) If a party shall fail to prosecute an action with reasonable diligence, the judicial authority may . . . render a judgment dismissing the action with costs." "[A] dismissal entered pursuant to [Practice Book § 14-3] is not an adjudication on the merits that can be treated as res judicata." (Internal quotation marks omitted.) Lacasse v. Burns, 214 Conn. 464, 473, 572 A.2d 357 (1990); see Legassey v. Shulansky, 28 Conn.App. 653, 658, 611 A.2d 930 (1992) ("[j]udgments based on [failure to prosecute] are not rendered on the merits"); FDIC As Receiver for Bank of Stanford v. Cantore, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 98 0164815 (January 10, 2000, Rodriguez, J.) ("dismissal entered pursuant to [Practice Book § 14-3] is not an adjudication on the merits that can be treated as res judicata").
In the case before the court, the Defendant alleges in special defense one and two that the Plaintiff's action is precluded under the doctrine of res judicata. The Defendant argues that the Plaintiff brought an identical action in May of 2003, that the plaintiff's 2003 action was subsequently dismissed pursuant to Practice Book § 14-3 and that under the doctrine of res judicata the dismissal of the first action precludes the Plaintiff from bringing the present action. As previously discussed, "a dismissal entered pursuant to [Practice Book § 14-3] is not an adjudication on the merits that can be treated as res judicata." Lacasse v. Burns, supra, 214 Conn. 473. Therefore, the court finds that the plaintiff is not precluded from bringing the present action under the doctrine of res judicata and, consequently, finds that the defendant's first and second special defenses are without merit.
ORDERS
1. The Court awards damages to the Plaintiff in the amount of $4,900.00
2. Defendant's Special Defenses based on res judicata are denied.
3. Defendant's Counterclaim for vexatious prosecution is denied.
4. No attorneys fees are awarded to either party, as there exists no contractual basis for the award of such fees; and the Court does not feel such award is warranted.
5. No interest or costs are awarded.