Opinion
No. CV 07 5001754 S
July 30, 2008
MEMORANDUM OF DECISION
The plaintiff, Camelot Modular Homes, LLC "(Camelot"), seeks to foreclose a Mechanic's lien on the property of the defendants, Paul and Kathleen Freska, located on Quarry Hill Road in Haddam, Connecticut (the "Property"). The plaintiff also seeks to recover for breach of contract (Second Count) and quantum meruit (Third Count). The defendants have filed a five-count counterclaim in which they seek damages for negligence (Counts One and Three), breach of the covenant of good faith and fair dealing (Count Three), breach of the Connecticut Unfair Trade Practices Act (Count Four), and breach of the Connecticut New Home Warranty Act (Count Five).
Facts
Camelot is a Connecticut limited liability company. John Larson, the manager of Camelot, met the Freskas in May 2005. They had a number of meetings concerning the plaintiff's construction of a modular home on the Property. On August 22, 2005, the Freskas executed a contract with Camelot which provided:
Camelot Modular Homes LLC (CMH) hereby agrees to sell deliver and erect model Colonial 2750 built to 27'6" X 50' w/24' X 40' gar. pending Manufacturers approval, on Buyers level basement/crawl space foundation, and Buyer agrees to purchase, accept, and pay for the modular home and all specific optional items . . .
The contract contained the following pertinent language concerning the Buyer's responsibilities:
Obtaining and compliance of all required building permits, site excavation, backfill, grading and preparation of the site according to CMH specifications. Building of foundation walls according to the blueprints supplies by CMH, installation of sill plates and cellar floor and any inside and outside stairs to basement. Supply lally columns to job site. All plumbing, heating, wiring connections, water supply and septic or sewer installation and connections . . .
Under the contract the Freskas agreed to pay $197,770 for the house. That amount was to be paid by means of deposits totaling $29,665 prior to production of the house, and $151,305 upon delivery of the house, with the balance of $16,800 when Camelot completed the work on the house.
The final specification sheet for the house was completed on October 13, 2005 and the house was ordered. It was delivered on January 26, 2006. The Freskas were required to pay $151,305 to Camelot upon delivery of the house. They made that payment, but then stopped payment on the check. The reasons for this conduct were not clear. After some negotiations between the parties the Freskas did pay the $151,305 due.
Under the terms of the contract the Freskas were responsible for making sure that the foundation was complete. They failed to properly prepare the lot so that Camelot could physically deliver the modular house and place it on the foundation, so Camelot was required to obtain the services of a larger crane in order to deliver the house. Camelot charged the plaintiffs an additional cost for the crane in the amount of $500.
The defendants' foundation contractor improperly placed bolts associated with the building code's high wind requirements, so Mr. Larson had to replace those bolts at an additional cost of $870. Similarly, the contract made the defendants responsible for placement of sill plates and lally columns. Since these were not supplied by the defendants, the plaintiff was required to supply them at an additional cost of $1,425.
The Freskas were unhappy with Camelot from the moment the house was delivered. The court finds that this unhappiness was misdirected. The vast majority of their construction problems were caused by the Freskas' inexperience in house construction and their frequent inability to perform tasks which they had undertaken to perform under the contract. They blamed Camelot for unnecessary delays in finishing the house. However, they were at least as much at fault for the delays as Camelot. During the entire time that Camelot was on the Property trying to complete work on the house, there was no electrical service to the house. The Freskas were clearly responsible for obtaining that service.
The Freskas were unhappy about Camelot's failure to finish siding the house. However, midway through the siding process, the Freskas determined that they wanted to move a chimney from one side of the house to the other. This created many of the siding problems and, of course, created additional delay.
The Freskas further found fault with Camelot for not completing interior improvements. However, certain improvements could not be completed until the plumbers had installed plumbing in the house. The Freskas were also responsible for hiring the plumbers. This additional delay was caused by the Freskas.
On April 20, 2006, less than 90 days after the house had been set on the foundation, the defendants sent a letter to the plaintiff which complained about the lack of progress, and threatened to contact the Connecticut Attorney General in order to secure the loss of Camelot/Mr. Larson's license to sell houses in Connecticut. The letter also stated:
The money that would have been forthcoming to you shall be placed in a separate bank account and any bills for the completion of this house that were your part of this agreement will be deducted from this money account.
The defendants never put the money owed to the plaintiff in a separate account and did little to remedy the defects that they now claim exist in the house.
A central issue in the dispute between the parties is the garage attached to the defendants' modular house. The defendants contend that the design of the garage as well as poor workmanship on the garage caused the garage roof to leak. The plaintiff contends that it did not design the garage, but did agree to build the defendants a three-car garage according to a design provided by the defendants.
The court finds that the defendants provided the plaintiff a garage "footprint" created by the defendants' engineers. This plan showed a garage which was perpendicular to the house. Mr. Larson advised the defendants that the garage design was problematic because the joining of the garage roof to the roof of the house was much more difficult than it would be if the garage was parallel to the house. However, the defendants insisted on the perpendicular placement of the garage. In addition during the construction period, they changed the size of the garage from 36' by 24' to 40' by 24,' changed the design so that the garage would have three doors instead of two, and then changed the size of the doors from 9' by 7' to 10' by 8.' The defendants also continued to change the configuration of the garage roof. They failed to consult with the plaintiff before making the aforementioned changes and then blamed the plaintiff for the delays occasioned by their many changes. The court finds that the defendants' or their agents designed the garage and, therefore, the plaintiff is not liable for any design defects in the garage.
On July 31, 2006, the defendants requested that the plaintiff leave the Property. At that point the work to be done by Camelot was 90% complete.
Although the defendants claim that faulty design of the garage roof caused water to seep into the walls, there was no expert testimony to support that claim. Instead, Larry Bejczi, a co-worker of Mr. Freska and part-time home improvement contractor, testified that the defendants' water problems were caused because the roof and areas of siding were exposed for a long period of time. He opined that the cost of repairing the roof would be $10,000 to $12,000.
The siding on the house was almost complete when the defendants ordered the plaintiffs off the job in July 2006. It was left incomplete because the defendants would not allow the plaintiff to complete it. The defendants' claim that the roof was improperly and negligently installed is simply not credible. By their own admission, the defendants had the $16,800 due to the plaintiff under the contract in July 2006 when the plaintiff was ordered off of the job. However, the defendants did not use any portion of that amount to have the garage roof repaired at any time between July 2006 and the time of trial, April 2008. This tends to support the plaintiff's contention that the garage roof is not defective and does not need repair.
The defendants are seeking to have the cost of siding, and various finish work in the house offset from the amount of the plaintiff's lien. These items include repair of a gable, a dryer vent, wavy siding, double doors, foyer closet door, and basement door and a crack in the ceiling. The court finds that the plaintiff gave the defendants a credit for siding and doors. The plaintiff would have completed the other items had it not been ordered off the Property. The defendants offered no evidence as to the cost to complete those items other than bills totaling $1,095 for materials. More importantly, the defendants offered no expert testimony that the allegedly defective items were the result of any negligence or poor workmanship by the plaintiff. The court finds that the defective items were not in fact defective. They were merely unfinished because the defendants peremptorily ordered the plaintiff off the job site and prevented the plaintiff from finishing its work.
Complaint
The First Count of the complaint seeks to foreclose a mechanic's lien.
The purpose of the mechanic's lien is to give one who furnishes materials or services the security of the building and land for the payment of his claim by making such claim a lien thereon . . . Moreover, [t]he guidelines for interpreting mechanic's lien legislation are . . . well established. Although the mechanic's lien statute creates a statutory right in derogation of the common law . . . its provisions should be liberally construed in order to implement its remedial purpose of furnishing security for one who provides services or materials . . . (Citations omitted; internal quotation marks omitted.)
F.B. Mattson Co. v. Torte, 247 Conn. 234, 237-38, 719 A.2d 1158 (1998).
A builder who has failed to complete his contract fully may not invoke its benefit unless he was prevented from doing so by some circumstances beyond his control such as interference by the owner. Vincenzi v. Cerro, 186 Conn. 612, 615, 442 A.2d 1352 (1982). The determination of whether a building contract has been substantially performed is a question of fact. Argentis v. Gould, 23 Conn.App. 9, 14, 579 A.2d 1078 (1990).
In the present case the plaintiff was hindered in the performance of its contract by the defendants, who had responsibility for certain aspects of the construction which they were unable or unwilling to complete. The defendants, who had never participated in the construction of a house before, did not even seem to comprehend the nature of their responsibilities. For example, under the contract the defendants clearly undertook the responsibility of providing electricity to the Property. However, in a letter dated July 31, 2006, to Professional Building Systems, Inc., which manufactured the modular house, the defendants complained that it was the plaintiff's fault that their house was still without power.
The defendants changed many aspects of the garage, but seemed unaware that those changes could cause delays. When the plaintiff's workers could not install finish trim and sheetrock because the plumbers had not yet installed plumbing fixtures, the defendants blamed the plaintiff. The defendants were responsible for plumbing under the terms of the contract with the plaintiff.
The plaintiff involuntarily ceased work on the Property on July 31, 2006 and filed the mechanic's lien on October 27, 2006 in the amount of $20,885. That amount was calculated as follows:
Remainder of contract price $16,800 High Wind System Corrections $ 870 Sill Plates and Lally Columns $ 1,425 Larger crane $ 500 Two Additional Windows $ 820 Change order light switch plates $ 175 Restructure of Garage $ 1,200 Subtotal $21,790 Credit for doors and siding ($ 905) Total $ 20,885Mr. Larson testified that the finish work on the house was 90% complete when the defendants ordered Camelot off the Property. Therefore, the plaintiff should recover $15,120 on the contract price, or 90% of $16,800. The plaintiff is also entitled to recover for the high wind system bolts, $870, the sill plates and lally columns, $1,450 and the larger crane, $500.
The defendants added two windows after the contract was signed and never paid for them, so the plaintiff is also entitled to recover $820 for the windows. The defendants decided to change the color of the switch plates in the house after it was ordered, which resulted in an additional charge of $175. The defendants did not contest the foregoing items or amounts.
The many changes in the garage size, door size and roof configuration resulted in an additional cost of $1,200 to which the plaintiff is also entitled. Based on the foregoing, a judgment may enter in favor of the plaintiff on the First Count for foreclosure of mechanic's lien in the amount of $19,205. The contract further provides that in the event payments are not made in a timely manner, then $750 will be added to the contract. The plaintiff is also entitled to recover that amount.
The contract between the parties calls for interest at the rate of 18% on unpaid amounts due. The court finds that the amount of $19,205 has been due from the defendants to the plaintiff since July 31, 2006 and awards interest in the amount of $6,900. The court finds that the foregoing amounts are due to the plaintiff under the First Count of the complaint. The Second Count alleges a breach of the same contract at issue in the First Count. Therefore, the same amounts are due to the plaintiff from the defendants under the Second Count. Judgment may enter in favor of the plaintiff on both counts.
Connecticut General Statutes § 52-249 provides that the plaintiff in a foreclosure of a mortgage or lien shall be allowed a reasonable attorneys fee. Upon the plaintiff's presentation of an affidavit of attorneys fee the court will award the plaintiff reasonable attorneys fees on the First Count.
The Third Count of the complaint alleges quantum meruit. Quantum meruit allows a plaintiff to "recover the benefit conferred on a defendant in situations where no express contract has been entered into by the parties." Burns v. Koellmer, 11 Conn.App. 375, 385, 527 A.2d 1210 (1987). There was an express contract in this case, so there is no need to invoke the equitable doctrine of quantum meruit.
Counterclaims
In the First Counterclaim the defendants claim that the plaintiff undertook to design an attached framed garage, designed it improperly and that the design caused a water leakage problem in the garage. As set forth above, the defendants, not the plaintiff, designed the garage and their continuous changing of the garage design contributed to the delays about which they complained.
A builder is under a duty to exercise that degree of care which a skilled builder of ordinary prudence would have exercised under the same or similar conditions. Coburn v. Lennox Homes, Inc., 186 Conn. 372, 441 A.2d 620 (1982). In order to prove professional negligence, expert testimony is required. Mayas v. Minck, 37 Conn.App. 321, 327, 655 A.2d 1155 (1994). The defendant never offered expert testimony regarding the standard of care that should have been used by the plaintiff.
Larry Bejczi, Mr. Freska's co-worker and a part-time home improvement contractor, testified that the last time he had been to the Freska's house and had seen any leak was in 2006. He stated that he thought the leak was caused by the fact that the sheeting was exposed for too long. However, it was not clear whether he was referring to the siding which the plaintiff could not complete because it had been prematurely ordered off of the Property. Mr. Bejczi's testimony was largely devoted to the price of redoing the roof but he offered no opinion on the manner in which the plaintiff had been negligent.
Mr. Bejczi had not been to the Freska's house for over a year, and therefore could not testify as to the present condition of the house. The Freskas had never hired him or any other roofer to repair the roof, even though they had the funds otherwise due to the plaintiff under the contract. This failure to repair leads the court to conclude that there is no need to repair the roof, and the defendants' claims of defects were asserted largely to avoid paying the plaintiff. The court was not presented with any credible evidence that the plaintiff was negligent, or that the defendants suffered any damage as a result of the alleged negligence.
In the First Counterclaim the defendants also seek damages which they claim are necessary to remediate mold that now exists in their garage. Absent credible evidence that the plaintiff was negligent, the court cannot find the plaintiff responsible for any alleged effects of that negligence, including mold.
The defendants failed to prove when the mold "problem" started. The defendants hired an expert to examine their garage for the presence of mold in September of 2007, over one year after the plaintiff left the Property. The expert testified that he could not opine as to when the mold originated. More importantly, the defendants failed to prove that they had any mold problem. Their expert witness testified that he found no high levels of any dangerous mold.
The Second Counterclaim alleges a breach of the implied covenant of good faith and fair dealing present in any contract. The court finds that it was the Freskas, and not the plaintiff, who violated the covenant of good faith present in the contract with the plaintiff. The Freskas reserved to themselves many functions involved in the construction of their house, such as preparation of the foundation, installation of electric service and installation of plumbing in the house. They were unable to properly or timely perform those functions. This resulted in delays which they always blamed on the plaintiff, rather than on themselves.
The sheetrock for the house could not be completed by the plaintiff because the defendants' plumbers had not finished their work and holes had to be left open for fixtures. In addition, the defendants did not obtain electricity at the house at any time during the plaintiff's work on the Property. The plaintiff had to obtain power from the defendants' neighbor's shed, a barely sufficient power source. The siding on the house was not finished because the defendants decided to move the chimney on the house from the left side to the right side of the house after the siding work had commenced. Some of the siding had to be removed as a result of this change by the defendants. Not surprisingly, the plaintiff ran out of siding through no fault of its own. Nevertheless, the plaintiff gave the defendants a credit for additional siding when it calculated the amounts it was owed.
In the Third Counterclaim the defendants allege that they have been damaged by the plaintiff's failure to complete and/or repair 23 items listed. As stated above, the plaintiffs failed to prove that the items in need of completion or repair were caused by the negligence of the plaintiff. It appears that the vast majority of the items about which the defendants complain are problems which they created by their actions, such as siding problems due to their relocating the chimney, or their inactions, such as failing to have plumbing work done prior to ordering the plaintiff off the job. Moreover, the defendants presented no estimates or bills showing the cost to repair these defective/incomplete items.
Damages are recoverable only to the extent that the evidence affords a sufficient basis for estimating their amount in money with reasonable certainty. 24 Leggett Street Ltd. Partnership v. Beacon Industries, Inc., 239 Conn. 284, 308-09, 685 A.2d 305 (1996). Mr. Freska testified that some items were completed by him. He seeks compensation for his time for that completion. The court cannot award damages on this account because the Freskas breached the contract, did not allow the plaintiff to complete its work, and the items completed by Mr. Freska were items that would have been completed by the plaintiff had the Freskas not breached the contract by ordering the plaintiff off of their Property. Moreover, the court has taken the incomplete items into consideration by awarding the plaintiff only 90% of the amount due to it under the contract.
The Fourth Counterclaim alleges violations of the Connecticut Unfair Trade Practices Act, Connecticut General Statutes §§ 42-110a, et seq. Based on the foregoing, the court cannot find that the plaintiff engaged in any unfair trade practice. The plaintiff used its best efforts to deal with customers who were extremely difficult. The defendants breached the contract at issue in this case by failing to allow the plaintiff to complete the work and by failing to pay the plaintiff pursuant to the contract. The only unconscionable conduct was that of the defendants in unjustly blaming the plaintiff for all of their construction woes.
The Fifth Counterclaim alleges a violation of the New Home Warranties Act, Connecticut General Statutes §§ 47-116, et seq. Connecticut General Statutes §§ 47-117 and 47-118 apply only if the builder constructs a home on a lot and sells both the lot and home to a third party. Greene v. Perry, 62 Conn.App. 338, 340, fn.2, 771 A.2d 196 (2001). The reason for this is that the legislature could rationally have concluded that property owners, like the defendants, who purchase property and then choose to act as their own general contractor can protect themselves by their own written contracts. Scott v. Regency Developers, Inc., 2000 Conn.Super.LEXIS 2943 at 10.
For the foregoing reasons the court finds that the defendants have not sustained their burden of proof on their counterclaims and finds in favor of the plaintiff on all five counterclaims.