Centimark Corp. v. Village Manor Assoc.

Full title: CENTIMARK CORPORATION v. VILLAGE MANOR ASSOCIATES

Court: Connecticut Superior Court Judicial District of Windham at Putnam

Date published: Jun 21, 2007

2007 Ct. Sup. 11659 (Conn. Super. Ct. 2007)

Opinion

No. CV 03 0070166

June 21, 2007

MEMORANDUM OF DECISION

ROBERT A. MARTIN, JUDGE.

This case arises out of an agreement between the plaintiff, Centimark Corporation (Centimark), and the defendant, Village Manor Associates (VMA), in which Centimark agreed to construct a roof on the property of VMA located at 16 Windsor Avenue, Plainfield, Connecticut. On April 7, 2003, Centimark filed a one-count complaint seeking to foreclose on the mechanic's lien that it had placed on VMA's property, attaching a copy of the certificate of mechanic's lien to its complaint. In its complaint, Centimark alleges that VMA owes Centimark $98,999.76 for the services it rendered commencing August 6, 2002 through September 12, 2002. On October 29, 2003, VMA filed a revised answer, special defenses and a six-count counterclaim. VMA alleges the following special defenses: negligent misrepresentation (first special defense); fraudulent misrepresentation (second special defense); breach of contract (third special defense); negligence (fourth special defense); and unclean hands (fifth special defense). In its counterclaim, VMA alleges breach of contract (count one), negligence (count two), breach of warranty (count three), negligent misrepresentation (count four), fraudulent misrepresentation (count five) and a violation of the Connecticut Unfair Trade Practices Act (CUTPA), pursuant to General Statutes § 42-110a et seq. (count six).

On July 2, 2004, Centimark filed a motion to implead M. Dzen Roofing Company, Inc. (Dzen), which was subsequently granted by the court, Potter, J., on July 22, 2004. Centinmark filed an amended three-count third-party complaint against Dzen on March 28, 2005, alleging breach of contract (count one), negligence (count two) and a violation of CUTPA (count three). On May 5, 2005, Dzen filed an amended answer and special defenses alleging payment as to count one and count three of Centimark's amended third-party complaint.

The case was tried to the court over six days, wherein the court heard testimony from fourteen witnesses and admitted over 100 exhibits. The evidentiary portion of the trial was held on the following dates: September 7, 8, 9, 22, 2005; January 24, 2006; and February 28, 2006. Post-trial briefs were filed by VMA and Centimark on June 7, 2006, and by Dzen on July 21, 2006. VMA filed a reply brief to Centimark's brief on September 15, 2006, and Centimark filed reply briefs to both VMA and Dzen's briefs on September 18, 2006.

I. FNDINGS OF FACT

From the evidence, including the testimony of the witnesses, exhibits of the parties and the reasonable inferences from the same, as well as taking into consideration the credibility of the witnesses, the court makes the following findings of fact. VMA is the owner of real property situated at 16 Windsor Avenue, Plainfield, Connecticut. Village Manor Health Care, Inc. (VMHC) leases the property, including a ninety-bed nursing facility from VMA. VMHC is a family run business — Stanley Rodowicz is president and his brother, Carter Rodowicz, is vice president. Their mother, Alma Rodowicz, owns ninety-nine percent of VMA.

In 2001, Carter Rodowicz (Rodowicz), acting as a representative of VMA, asked Barry Slotnick, administrator of VMHC, to compile bids from roofing companies to construct a new roof on the nursing facility. Michael Rzempoluch, project manager for Centimark, prepared a proposal which included: providing the materials, installing a second layer of shingles on the pitched portions of the roof and installing a second layer of materials on the flat portion of the roof.¹ Prior to submitting the proposal to VMA, Rzempoluch contacted Dzen to obtain a bid for the shingled portion of the roof because Centimark does not install pitched roofs. (Plaintiff's Exhibit [Exh.] 7.)² Barry Slotnick also received bids from three other roofing companies. VMA did not accept any of the bids at this time.

1 Rzempoluch's proposal, entitled "Scope of Work," is contained on pages 3-7 of exhibit 1, the agreement between Centimark and VMA.

2 All exhibits in the file are labeled as plaintiff's exhibits.

On July 17, 2002, Rodowicz set up a meeting with Jeff Westbrook, local project manager for Centimark, to discuss Rzempoluch's proposal.³ Westbrook brought Dean Pinto, residential manager for Dzen to the meeting.⁴ During the meeting, Rodowicz and Westbrook discussed the scope of work and made several changes to the proposal, which were handwritten and initialed by Westbrook.⁵ They also discussed the fact that Dzen would be installing the shingled portion of the roof. (Westbrook testimony, September, 22, 2005, p. 45; Carter Rodowicz testimony, September 22, 2005, pp. 79, 147.) Dzen, a GAF master elite contractor, is considered to be in the top two percent of shingle roofers in the country. (Exh. 1, p. 7.) In fact, Rodowicz decided to enter into a contract with Centimark based on Dzen's elite status. (Carter Rodowicz testimony, September 22, 2005, pp. 68-69.) Westbrook presented Rodowicz with Centimark's boilerplate contract, which also included Rzempoluch's proposal. The contract provided: "All items listed in the scope of work will be completed by Centimark Corporation and by M. Dzen Roofing Company."

3 Rzempoluch had subsequently left the local Centimark office and Westbrook took over his position.

4 Joe Brodeur, maintenance man for VMHC, and Stanley Rodowicz were also present at the meeting.

5 These changes included upgrading the shingles from three-tab to architectural, requiring six nails per shingle and flashing the rooftop units. (Exh. 1, p. 4.)

They agreed upon a price of $98,999.76, rounded up to $99,000. Under the agreement, Centimark was responsible for the materials and installation of the flat portion of the roof while Dzen was responsible for the materials and installation of the shingled portion of the roof. They also agreed to orally change the down payment amount from one-third to half the total amount in exchange for more time so that Rodowicz could request the funds from HUD.⁶ Rodowicz signed the agreement as administrator's representative with the understanding that Centimark would be sending him an invoice for the down payment. Several days later, Rodowicz received an invoice dated July 22, 2002, for $49,499.88, representing the down payment for the roof.

6 VMA had an escrow account with HUD to use for taxes, insurance, maintenance and repairs to the building. VMA would have to request the money from HUD, which would typically take thirty to sixty days to process. (Carter Rodowicz testimony, September 22, 2005, p. 75.)

After Rodowicz signed the agreement, Centimark entered into a subcontract agreement with Dzen for $38,992. Dzen subsequently subcontracted out the labor for the shingled portion of the roof to Tom Thompson, a local roofing contractor doing business as BHR Construction, LLC (BHR). Thereafter, BHR hired a small crew of independent contractors with limited experience, ranging in age from nineteen to twenty-eight, to install the shingled roof. (Tom Thompson testimony, September 9, 2005, pp. 159-69.) Neither Thompson nor any of the independent contractors on his crew were GAF master elite contractors. (Tom Thompson testimony, September 9, 2005, p. 160, p. 185-86.) Dzen supplied the materials, including the nails, roof cement and shingles, to BHR. Dzen also supplied BHR with T-shirts and magnetic signage bearing Dzen's name so that customers would think that Dzen workers were actually installing the roof. (Tom Thompson testimony, September 9, 2005, p. 199; September 22, 2005, pp. 4-5.) BHR began work on the roof on August 6, 2002, and Centimark began work on August 7, 2002.

Meanwhile, Rodowicz contacted HIJD on July 30, 2002, to request a release of funds to pay for the down payment. After contacting HUD, Rodowicz left for Florida and did not return to Connecticut until the beginning of September. On August 28, 2002, VMA received an authorization to release funds from HUD for $49,499.88, the down payment. Work on the roof continued while Rodowicz was in Florida and was completed by September 12, 2002.

Shortly after Rodowicz returned from Florida, he inspected the roof for the first time since work began. He was not satisfied with the workmanship and contacted Westbrook to set up a meeting to address his issues. (Carter Rodowicz testimony, September 22, 2005, pp. 86-87.) On September 4, 2002, Rodowicz met with Darren Crosse, Centimark's New England regional manager; Randy Craig, operations manager of Centimark's Rocky Hill, Connecticut office; and Westbrook.⁷ During the meeting, Rodowicz brought up the following concerns: (1) most of the HVAC units were not flashed with metal flashing; (2) roofing debris was scattered around the nursing facility, which caused safety concerns for the residents; (3) portions of the ridge vent were not installed properly; (4) roofing cement was not applied properly around all walls and projections; and (5) portions of the shingled roof were not properly installed in straight lines.

7 Slotnick and Brodeur were also present as representatives of VMHC.

The parties agreed that there had been a misunderstanding regarding the flashing of the HVAC units. Westbrook believed that Centimark was only responsible for flashing three units while Rodowicz believed that the contract called for the flashing of all nine units. Rodowicz requested that Centimark prepare a proposal to determine any additional cost for flashing the remaining six units. Centimark sent Rodowicz a proposal to flash the remaining units at a cost of $1,729. In a letter dated September 5, 2002, Rodowicz recommended that Centimark and VMA split the additional cost to flash the remaining units. (Exh. 14.)

On September 11, 2002, Rodowicz sent Centimark a letter addressing additional concerns that he had with the roof. These concerns included, inter alia, the following: (1) Dzen subcontracted out the labor for the shingled portion of the roof to BHR, which was not a GAF master elite contractor; (2) Centimark, Dzen and BHR did not have proper supervision over the work on a daily basis; (3) the appearance of the roof was unsatisfactory to Rodowicz because the shingles were not "running true"; and (4) the fasteners did not sufficiently penetrate the plywood deck. (Exh. 15.)

On September 16, 2002, Centimark sent VMA an invoice for the remaining balance of $49,499.88 and issued VMA a five-year warranty against defects in materials and workmanship.⁸ On September 23, 2002, Slotnick discovered that a heavy rainstorm, which occurred the night before, caused a leak in room C117. VMHC personnel inspected the attic and discovered that "a large amount of water [was] coming through the roof approximately two feet in front of the air units on the roof." (Exh. 17.) Slotnick contacted Rodowicz by letter dated September 24, 2002, to notify him of the problem. (Exh. 17.) Rodowicz subsequently contacted Centimark by letter to notify them of the leak.⁹ (Exh. 16.) On September 27, 2002, Centimark received Rodowicz' letter and immediately sent a crew to repair the leak by putting "tar around the four-by-fours that the AC units [sat] on."¹⁰ (Barry Slotnick testimony, September 9, 2005, p. 134; Exh. 18.)

8 Section III(a) of the warranty stated: "If Purchaser fails to pay all outstanding invoices in full and when due, and/or claims any offset against any invoices, then Purchaser shall not be entitled to any warranty protection or services."

9 Rodowicz's letter is not dated but has a fax date stamp of September 26, 2002. It stated: "[O]n September 22, 2002, [VMHC] was subjected to a major leak in one of the resident rooms . . . Be advised that this firm is extremely concerned in that within two weeks of [Centimark] allegedly completing the roof at [VMHC], we are being subjected to leaks within the building. We hereby request that Centimark immediately correct this situation."

10 On September 30, 2002, Rodowicz sent Centimark a letter thanking them for promptly fixing the leak and noting that the fix was only a temporary measure. (Exh. 18.)

In a letter dated October 17, 2002, Craig addressed Rodowicz' concerns regarding the uneven installation of the shingles, explaining that when a shingled roof is installed over an existing roof, "you follow the existing roof pattern." (Exh. 11.) He also stated that if Centimark did not receive full payment by October 30, 2002, it would place a mechanic's lien on the nursing facility. (Exh. 11.)

A second leak occurred on October 16, 2002. Rodowicz notified Centimark about the leak in a letter dated October 19, 2002. (Exh. 19.) In his letter, Rodowicz stated that he was still waiting for a corrective action plan from Centimark, which would fix the deficiencies in the roof.¹¹ He also stated: "In light of the [problems with the roof], all payments to [Centimark] would be withheld and placed in the account of [VMHC]. All costs incurred and/or to be incurred by this firm as a result of this defective roofing system, installed by your firm, will be deducted from the accounts until this matter has been fully resolved."¹² VMHC did not receive a response from Centimark to Rodowicz' letter.

11 As corrective action, Rodowicz recommended that the shingled portion of the roof be completely stripped, properly flashed and reshingled by a GAF certified master elite contractor.

12 Rodowicz also sent a letter to Centimark, dated October 27, 2002, in which he responded to Craig's October 17, 2002 letter. (Exh. 20.) Rodowicz' letter essentially reiterated his complaints regarding the roof up to this date.

Meanwhile, Dzen contacted GAF to inquire about the fastener requirements for GAF asphalt shingles. In a letter dated November 8, 2002, John Wheeler, technical services representative for GAF responded: "Fasteners should be long enough to penetrate at least 3/4" (19 mm) into wood decks or just through the plywood decks. Fasteners must be driven flush with the surface of the shingle. Over driving will damage the shingle. Raised fasteners will interfere with the sealing of the shingles. For normal installation, four fasteners must be installed per shingle, a nominal 6" (152 mm) up from the bottom of the shingle, to penetrate both layers of the shingle."¹³ (Exh. 24.)

13 The agreement between the parties, however, called for six nails per shingle.

Wheeler sent Dzen another letter, dated November 12, 2002, regarding GAF's warranty for VMA. He stated: "This is to confirm that GAFMC [s]mart [c]hoice [l]imited [w]arranty remains in effect per its terms and conditions provided shingles are installed in strict accordance with the application instructions. Please note that the GAFMC [s]hingle [l]imited [w]arranty covers manufacturing defects of the shingles and does not cover workmanship for the installation or repairs." (Exh. 25.) Thereafter, in response to Rodowicz' complaints, Dzen contacted GAF to determine the proper length of nail for the installation of GAF shingles over existing three-tab shingles at VMA. Wheeler sent Dzen a letter dated November 21, 2002, in which he explained that one and one-half inch nails were sufficient in length for the installation of the shingled portion of the roof. (Exh. 26.)

In a letter dated November 13, 2002, Rodowicz again notified Centimark of continued problems with the roof leaking. He also expressed his concerns regarding Centimark's continued failure to provide VMHC with a corrective action plan. Lastly, Rodowicz stated that if VMHC did not receive a corrective action plan in the next five days, he would find another roofing contractor to fix the problems and subsequently bill Centimark for these repairs. (Exh. 21.)

On November 15, 2002, Centimark filed a mechanic's lien in the land records of the town of Plainfield, Connecticut against VMA for the entire balance of the roof. In a letter dated November 22, 2002, Crosse responded to Rodowicz' letters and addressed the following concerns. First, VMHC did not give Centimark "reasonable notice and opportunity to respond to the leaks" because Centimark was only notified of the leaks through mail, days after the leaks had occurred. Pinpointing the cause of the leaks is very difficult to do days after the leaks have occurred. Second, Rodowicz' complaints about the aesthetics of the roof went beyond the scope of the contract. Centimark was not notified about VMHC's dissatisfaction regarding the aesthetics of the roof until after completion. Centimark installed the roof using industry standards and had no knowledge that this would be unsatisfactory to VMHC. Last, Centimark was willing to redo several portions of the ridge cap if VMHC would remit fifty percent of the contract price, which was approximately 120 days past due. (Exh. 12.)

Rodowicz responded to Crosse's letter on December 1, 2002. In his letter, Rodowicz argued, inter alia, that the installation of the roof did not meet GAF standards. Additionally, he stated that unless Centimark provided VMHC with a corrective action plan, he would file for arbitration. Last, he claimed that VMHC was unwilling pay fifty percent of the contract price because repairing the roof's deficiencies could exceed the entire contract price. (Exh. 22.)

Craig sent Rodowicz a letter dated December 9, 2002, in which he stated: "This letter is to let you know that we are in receipt of your letter dated December 1, 2002. We are reviewing the items that you listed and will respond to you in writing for delivery to you by December 13, 2002." (Exh. 12A.) Rodowicz never received a response. (Carter Rodowicz testimony, September 22, 2005, p. 103.) In a letter dated December 30, 2002, notifying Centimark that VMHC still had not received a response to its December 1, 2002 letter, Rodowicz stated that VMHC would "utilize the American Arbitration Association to resolve this matter." (Exh. 23.)

Subsequently, VMHC filed for arbitration. Centimark brought an action in Superior Court, judicial district of Windham at Putnam, to enjoin VMA from proceeding with an arbitration pending before the American Arbitration Association. The court, Potter, J., granted Centimark's injunction, "prohibiting and restraining [VMA] from proceeding with arbitration and/or re-filing a demand for arbitration with respect to any and all matters relating to the sales agreement and Scope of Work document." Centimark Corp. v. Village Manor Associates, Superior Court, judicial district of Windham at Putnam, Docket No. CV 03 0070099 (June 3, 2003, Potter, J).

Prior to December 2003, VMA contacted Robert Kerr, building official for the town of Plainfield (town), to inquire whether a building permit had been issued for the roof's installation. (Robert Kerr testimony, September 8, 2005, p. 142.) On December 19, 2003, Dzen and Centimark filed for a building permit with the town for the installation of the roof. (Exh. 34.) Under state building code and town ordinances, a building permit is required prior to commencing the installation of a roof.¹⁴ (Robert Kerr testimony, September 8, 2005, p. 82.) Kerr denied the permit because "[the] property taxes [were] not current." (Exh. 34.)

14 Centimark and Dzen were also required to pay double the original fee for the permit because the permit was not filed prior to work commencing on the roof. (Exh. 79.)

On May 17, 2004, VMA filed for a building permit for the roof. (Exh. 36.) Kerr granted the permit. (Exh. 36B.) The following day, Kerr inspected the roof and expressed his concerns with the installation in a letter dated May 18, 2004. In his letter, Kerr stated: "The fasteners (nails) were not of sufficient length to penetrate properly into the plywood sheathing. The roof was not shingled underneath the roof top mounted A-C units. The re-roofing project cannot be approved [for a certificate of occupancy] until these [b]uilding [c]ode items have been corrected." (Exh. 35.) No certificate of occupancy was issued.¹⁵ (Robert Kerr testimony, September 8, 2005, p. 191.)

15 At trial, on direct examination, Kerr indicated that he would have indeed issued a certificate of occupancy based on his inspection of the roof in May 2004. (Robert Kerr testimony, September 8, 2005, p. 115.) Kerr's May 15, 2004 letter, however, indicated the contrary — that he would not issue a certificate of occupancy. (Exh. 35.) Due to his inconsistent testimony, it is impossible for the court to determine whether a certificate of occupancy would have been issued to the nursing facility. Therefore, his testimony will be disregarded.

On May 26, 2004, Rodowicz met with Kerr; Brian O'Connor, GAF territory manager; Robert Fulton, executive vice president for Centimark; Crosse; and Pinto on the roof to discuss his concerns.¹⁶ (Robert Fulton testimony, September 9, 2005, p. 120; Robert Kerr testimony, September 8, 2005, pp. 156-59.) During the meeting, several shingles were removed and a portion of the interior attic space was examined to determine the exact penetration of the nails. (Exh. 30.) Rodowicz believed that the nails did not sufficiently penetrate the plywood. Relying on Wheeler's letter to Dzen dated November 8, 2002, which stated that the nails should be long enough to penetrate "just through the plywood decks," Rodowicz argued that the nails did not penetrate all the way through the plywood, but merely splintered the plywood. (Exh. 24.) Meanwhile, Centimark, Dzen and GAF representatives believed that the penetration was sufficient as per GAF's requirements.

16 Portions of this meeting were videotaped. (Exh. 30.)

In a letter to Dzen dated June 2, 2004, Wheeler explained that O'Connor made a "limited visual inspection"¹⁷ of the roof and observed that "the fasteners installing the [t]imberline shingles made full penetration through the plywood decking and were installed in accordance with [GAF's] specifications. He did not observe any visible defects or deficiencies in the application of the shingles or in the shingles themselves. The [GAF] [l]imited [w]arranty against manufacturing defects on these shingles is in full force and effect." (Exh. 27.)

17 O'Connor lifted four shingles and the fasteners were removed.

On June 2, 2004, Fulton spoke with Rodowicz about Centimark's corrective action plan for the roof. In a letter dated June 3, 2004, Fulton outlined Centimark's proposal: "(1) [r]eflash with new shingles around the [HVAC] units that have roof cement applied over the top of the shingles; (2) [l]ift [three] of the [HVAC] units, . . . and install new treated lumber and shingles; (3) [w]here the rakes meet a higher section, double check and make certain mastic was installed under shingles; (4) [i]nspect the roof thoroughly and check for popped nails. Where they currently exist and it has been patched with mastic, replace the shingle. Any additional ones found, will have the nail removed, followed by mastic installed under the shingle . . . No work will be performed until satisfactory payment arrangements have been made." (Exh. 73.)

In a letter to VMA dated June 7, 2004, Stanley Rodowicz, acting as administrator for VMHC, outlined the damages, maintenance and lost revenue VMHC incurred since September 2002, due to the defective roof. He also stated that VMA and VMHC agreed that VMHC would continue to maintain the roof, prevent further damage and perform temporary repairs to the roof caused by leaks. In exchange, VMA agreed to reimburse VMHC for these costs incurred after "completion, correction and/or replacement of the defective roofing system." (Exh. 38.)

Rodowicz subsequently contacted H.B. Fishman Company, Inc. (H.B. Fishman), a roofing consulting firm, to examine the problems with the roof.¹⁸ Michael Pascale, project manager for H. B. Fishman, examined the roof on multiple occasions. On June 8, 2004, Pascale examined the roof in detail and took approximately seventy-five pictures. (Exh. 62A.) He prepared a report dated June 16, 2004. In his report, Pascale pointed out several deficiencies with the roof including, inter alia: (1) nails popping through the top course of shingles; (2) nails installed improperly above GAF's designated nail line; (3) overdriven nails; (4) low nails; (5) shingle valleys not installed to GAF's specifications; and (6) leaking at HVAC units. Pascale recommended a water test to determine the source of the leaks. Last, he recommended that the roof be replaced because it would not be practical to make all of the repairs needed to the roof. (Exh. 62.)

18 H.B. Fishman Company, Inc. is a roof consulting firm that is involved in "the design, the evaluation [and] the assistance in claims of roofing." (Michael Pascale testimony, January 24, 2006, p. 117.) The company does not install roofs.

On August 23, 2004, Rodowicz filed a claim for shingle damage with GAF seeking to have the shingles replaced.¹⁹ (Exh. 96; Carter Rodowicz testimony, September 22, 2005, pp. 120-22.) GAF denied Rodowicz' claim on August 31, 2004. (Exh. 97.) VMHC received a letter from Lyn O'Sullivan, GAF claims specialist, dated August 31, 2004. (Exh. 28.) In her letter, O'Sullivan explained that the shingle samples submitted "do not show any evidence of a manufacturing defect." She stated that GAF's limited warranty only covers manufacturing defects and not defects in the installation of the shingles. Further, O'Sullivan explained that nailpops were observed, which could cause problems in the future, including leaking or blow-offs.²⁰ Moreover, she explained that GAF's limited warranty does not cover these problems and that VMHC should contact its roofing contractor to resolve any problems with the installation. (Exh. 28.)

19 Rodowicz attached six pictures of the roof to his claim form and also submitted shingle samples from the roof.

20 O'Sullivan specifically stated: "We have observed from your photographs that your roofing system displayed nailpops. Nailing or stapling is the responsibility of the roofer and is very important to the performance of the shingles. If nails or staples are not driven flush . . . or back out after application due to nails working out of the plywood decking, the protruding nail or staple will hold up the shingle tab and prevent the shingle from sealing. Inadequate sealing can cause caking and lead to blow-offs during high wind. This condition is not the result of a manufacturing defect. To correct this problem, you should contact your roofing contractor to assist you with the repairs." (Exh. 28.)

Pascale subsequently inspected the roof on June 22, 2005, and July 26, 2005. In a report dated July 27, 2005, he summarized his findings. During his June 22, 2005 inspection of the roof, he observed, inter alia, the following: (1) two additional areas where leaks had occurred; (2) overdriven nails; (3) nailpops; (4) loose nails; (5) exposed nail heads; (6) delaminating shingles; and (7) an improperly installed ridge vent. On July 26, 2005, Pascale removed a portion of the both layers of shingles to determine which nails were penetrating the underside of the roof. He observed that the nails used in the installation of the original layer penetrated the plywood. In his opinion, the nails used in the installation of the second layer of roof only splintered the plywood and did not penetrate the plywood completely.²¹

21 Pascale videotaped this inspection. (Exh. 95.)

In his July 27, 2005 report, Pascale again recommended that the roof be replaced. He stated: "Repairing the deficient items would not be practical due in part to their extent; attempts at repairs would cause significant damage to the shingle roof in that the shingles are aggressively adhered to each other and are not easily separated. The shingle roof areas should be removed and replaced in their entirety. We have estimated the cost to replace the roof at $127,670. An additional $8000 to $12,000 is estimated to properly shingle around and flash the HVAC curbs." (Exh. 62A, p. 2.)

In the summer of 2005, Dzen contacted BPD Roofing Consulting to inspect the roof. On approximately August 15, 2005, Bruce Darling, president of BPD Roofing Consulting, inspected the roof with Pinto, Pascale and Kerr Slovick, maintenance superintendent for VMHC.²² (Bruce Darling testimony, February 28, 2006, p. 71.) During his testimony, Darling explained the deficiencies that he observed during his inspection, which included the following: "overdriven nails, underdriven nails, less than six nails in a shingle, close-cut valleys, was not sealed down, it wasn't a GAF style [and] some of the units didn't have the shingles sealed to the . . . metal flashing." (Bruce Darling testimony, February 28, 2006, p. 74.) These deficiencies were very similar to the deficiencies Pascale observed during his inspections of the roof. Contrary to Pascale's opinion, however, Darling believed that the roof could be repaired — it did not have to be replaced. (Bruce Darling testimony, February 28, 2006, pp. 79-80.) Darling estimated that it would cost approximately $40,000 to repair the roof. He estimated that approximately 550 shingles would have to be replaced. (Exh. 115.) Additionally, he estimated that it would cost approximately $114,000 to replace the roof. (Exh. 116.)

22 Darling had a copy of one of Pascale's reports with him when he examined the roof. (Bruce Darling testimony, February 28, 2006, p. 71.)

In November 2005, Pascale sent five contractors a request for proposal (RFP) to determine the approximate cost to repair the roof.²³ (Exh. 109.) Pascale based his RFP on Darling's suggested repairs. (Michael Pascale testimony, January 24, 2006, p. 145.) Silktown Roofing, a master elite contractor, estimated $274,100; Allied Roofing estimated $324,831; and Barrett Roofing estimated $205,600 to make Darling's repairs. (Exh. 108.)

23 Three contractors replied to Pascale's RFP. One contractor contacted Pascale and said that it was not interested. One contractor did not respond at all.

The court will address additional facts below, as needed.

II. CENTIMARK'S CLAIM FOR RECOVERY ON ITS MECHANIC'S LIEN

Centimark alleges in its complaint that it may recover on the mechanic's lien because it furnished materials and rendered labor to VMA, completing performance on September 12, 2002. In VMA's reply brief, it argues that Centimark did not substantially perform under the agreement and, therefore, is precluded from recovering under this foreclosure action. VMA also asserts various special defenses: negligent misrepresentation (first special defense); fraudulent misrepresentation (second special defense); breach of contract (third special defense); negligence (fourth special defense); and unclean hands (fifth special defense). The court will address each in turn.

General Statutes § 49-33(a) provides in relevant part: "If any person has a claim for more than ten dollars for materials furnished or services rendered in the construction, raising, removal or repairs of any building or any of its appurtenances . . . and the claim is by virtue of an agreement with or by consent of the owner of the land . . . or of some person having authority from or rightfully acting for the owner in procuring the labor or materials, the building, with the land on which it stands is subject to the payment of the claim."

"Generally, when a builder breaches a bilateral construction contract by an unexcused failure to render substantial performance, he cannot maintain an action on the contract to recover the unpaid balance of the contract price because substantial performance, a constructive condition of the owner's duty to pay the balance, has not been satisfied." (Internal quotation marks omitted.) Pisani Construction, Inc. v. Krueger, 68 Conn.App. 361, 365, 791 A.2d 634 (2002), quoting Argentinis v. Gould, 219 Conn. 151, 157, 592 A.2d 378 (1991). "The determination of [w]hether a building contract has been substantially performed is ordinarily a question of fact for the trier to determine." (Internal quotation marks omitted.) Pisani Construction, Inc. v. Krueger, supra, 364. "The analysis necessarily involves an inquiry into the totality of facts and circumstances surrounding the performance of the contract." (Internal quotation marks omitted.) Id., 365.

"[F]actors to be considered include the extent to which the injured party will be deprived of the benefit reasonably expected, the extent to which that party can be adequately compensated for the deficiency of performance, the extent to which the performing party will suffer forfeiture, the likelihood that the performing party will cure his failure in light of the circumstances and his reasonable assurances, and the extent of good faith and fair dealing on the part of the performing party." Miller v. Bourgoin, 28 Conn.App. 491, 496, 613 A.2d 292, cert. denied, 223 Conn. 927, 614 A.2d 825 (1992).

VMA argues that Centimark did not substantially perform the work agreed upon by the parties. Specifically, VMA claims that Centimark admitted in its brief that the shingled portion of the roof needed repairs and, therefore, has admitted that it did not substantially perform under the agreement. Centimark does not address VMA's argument. In order to determine whether Centimark substantially performed under the agreement, this court must examine VMA's claims, which consist of the following: first, that Centimark failed to install the roof in a workman like manner; second, that the roof was not installed in accordance with GAF's specifications, the town's building code, and the agreement between the parties; third, that Centimark did not issue the golden pledge warranty, GAF's best warranty, to VMA; fourth, that Centimark did not obtain a building permit prior to commencing work on the roof; and finally, that Centimark failed to ensure that Dzen, a GAF master elite contractor, would install the shingled portion of the roof.

The court finds that these complaints do not preclude a finding that Centimark substantially performed under the agreement. Taking into consideration the factors our Appellate Court established in Miller v. Bourgoin, supra, 28 Conn.App. 496, these complaints, although significant, do not rise to the level that would prevent Centimark from any recovery under § 49-33(a). For example, VMA's complaints do not deprive it of the benefit it had reasonably expected to receive under the agreement, a new roof. Additionally, VMA can be adequately compensated for Centimark's deficiencies in the form of damages.²⁴

24 Although lack of good faith is one of the factors the court should consider, "lack of good faith is not conclusive in determining substantial performance." Carmel Homes, Inc. v. Bednar, Superior Court, judicial district of Litchfield, Docket No. CV 99 0079393 (March 26, 2001, Frazzini, J.), quoting 2 Restatement (Second), Contracts, Performance and Non-Performance § 241, comment (f) (1981) ("The extent to which the behavior of the party failing to perform or to offer to perform comports with standards of good faith and fair dealing is, however, a significant circumstance in determining whether the failure is material . . . In giving weight to this factor courts have often used such less precise terms as `wilful.' Adherence to the standards stated in Subsection (e) is not conclusive, since other circumstances may cause a failure to be material in spite of such adherence. Nor is non-adherence conclusive, and other circumstances may cause a failure not to be material in spite of such non-adherence").

III. VMA'S FIRST SPECIAL DEFENSE (NEGLIGENT MISREPRESENTATION)

VMA's first special defense is for negligent misrepresentation. It alleges the following facts. Pursuant to the agreement between the parties, all work was to be performed by Centimark and Dzen. As an inducement to enter into the contract, Centimark promised VMA that Dzen, a master elite contractor, would perform all of the work on the shingled portion of the roof. VMA relied on this representation and entered into an agreement with Centimark. Dzen did not perform the work on the shingled portion of the roof. Centimark knew or should have known that Dzen would not be performing the work. VMA relied on this representation to its detriment and suffered damages.

In its brief, VMA argues that Centimark negligently misrepresented that Dzen, a master elite contractor, representing the top two percent of roofers in the country, would perform all of the work on the shingled portion of the roof. Specifically, VMA argues that Centimark made this representation to Rodowicz on multiple occasions even though Centimark knew that Dzen would not be performing the work. In response, Centimark argues that VMA should have known that Dzen might subcontract out the work to crews who were not master elite contractors because this is standard practice in the construction industry.

"Our Supreme Court has long recognized liability for negligent misrepresentation. [It has] held that even an innocent misrepresentation of fact may be actionable if the declarant has the means of knowing, ought to know, or has the duty of knowing the truth . . . The governing principles are set forth in similar terms in § 552 of the Restatement Second of Torts (1977): One who, in the course of his business, profession or employment . . . supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information." (Internal quotation marks omitted. Mokonnen v. Pro Park, Inc., 96 Conn.App. 625, 632-33, 901 A.2d 725, cert. denied, 280 Conn. 924, 908 A.2d 1088 (2006).

"Traditionally, an action for negligent misrepresentation requires the plaintiff to establish (1) that the defendant made a misrepresentation of fact (2) that the defendant knew or should have known was false, and (3) that the plaintiff reasonably relied on the misrepresentation, and (4) suffered pecuniary harm as a result." Nazami v. Patrons Mutual Ins. Co., 280 Conn. 619, 626, 910 A.2d 209 (2006). "Whether evidence supports a claim of . . . negligent misrepresentation is a question of fact." (Internal quotation marks omitted.) Mips v. Becon, Inc., 70 Conn.App. 556, 558, 799 A.2d 1093 (2002). Negligent misrepresentation has been found to be a valid defense for a foreclosure action. See, e.g. Johnnycake Mountain Associates v. Ochs, Superior Court, judicial district of New Britain, Docket No. CV 03 0524226 (January 18, 2006, Shaban, J.); Ocwen Federal Bank v. Rivas, Superior Court, judicial district of Fairfield, Docket No. CV 99 0368135 (February 21, 2002, Stevens, J.); Home Loan Investment Bank v. Sebjan, Superior Court, judicial district of Danbury, Docket No. CV 97 0329603 (July 24, 2000, Moraghan, J.); Federal National Mortgage Ass'n. v. Jessup, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV 98 0169417 (August 3, 1999, Hickey, J.).

This court finds that VMA has met its burden of proof on its special defense of negligent misrepresentation. Centimark represented to VMA on numerous occasions that Dzen would be performing all of the work on the shingled portion of the roof. First, Rzempoluch's proposal to Slotnick in the summer of 2001, specifically stated that "[a]ll items listed in the scope of work will be completed by Centimark Corporation and by M. Dzen Roofing Company . . . M. Dzen Roofing Company is one of GAF's master elite contractors who stand out as being one of the top [two percent] of all shingle applicators in the country." (Exh. 1.) During his testimony, Rzempoluch admitted that this constituted Centimark's "standard sales agreement [that is used] in the majority of the projects."²⁵ (Michael Rzempoluch testimony, September 7, 2005, p. 65.) Additionally, when Westbrook met with Rodowicz in July 2002, to negotiate the agreement, he represented to Rodowicz that Dzen would be doing the work on the shingled portion of the roof. (Jeff Westbrook testimony, September 22, 2005, p. 45.) Westbrook also brought Pinto to the meeting as a representative of Dzen. (Jeff Westbrook testimony, September 22, 2005, p. 38.)

25 He also admitted that Dzen's master elite status is a saleable point for Centimark when bidding and obtaining work. (Michael Rzempoluch testimony, September 7, 2005, p. 38.)

Prior to negotiation of the agreement, Centimark's representatives knew that Dzen would not be performing the work on the shingled portion of the roof but would be subcontracting out the work to another contractor. Rzempoluch admitted that prior to executing the subcontract agreement between Centimark and Dzen, he knew that Dzen would subcontract out the work. (Michael Rzempoluch testimony, September 7, 2005, p. 39.) Rzempoluch also admitted that he did not tell Rodowicz or any other representative of VMA that Dzen would be subcontracting out the work. (Michael Rzempoluch testimony, September 7, 2005, p. 49.)

Rodowicz reasonably relied on Rzempoluch and Westbrook's representations that Dzen, a GAF master elite contractor, would be performing all of the work on the shingled portion of the roof. Rodowicz testified that he ultimately decided to go with Centimark because of Dzen's status as a GAF master elite contractor. During his testimony, Rodowicz explained: "The administrator and the maintenance guys felt that [Centimark's] brochure and what they had relayed to them was pretty impressive. I had . . . talked to Blackwell, I talked to Barr, Incorporated and I had talked to Northeast, and their prices were higher, a little higher than Centimark's, but the method of installation was different. But neither one of those contractors had a GAF certified installer, which . . . Centimark presented to me as an important factor." (Carter Rodowicz testimony, September 22, 2005, p. 68.) He also testified that Centimark's representatives told him that Dzen was in "the top two percent in the nation" of shingle applicators and he explained that "the other contractors, in my opinion, didn't have the credentials that Centimark had." (Carter Rodowicz testimony, September 22, 2005, p. 69.)

Last, this court also finds that VMA suffered damages as a result of Rzempoluch and Westbrook's representations about Dzen's status. Specifically, VMA did not receive a roof installed by Dzen, a GAF master elite contractor, as was stated in the contract. Since VMA has met its burden with regard to its first special defense of negligent misrepresentation, this court finds that Centimark is unable to recover on its mechanic's lien.²⁶

26 Therefore, VMA's other special defenses will not be addressed.

IV. VMA'S COUNTERCLAIM A. Breach of Contract

VMA's first count in its counterclaim is for breach of contract. VMA alleges the following in its counterclaim. On July 17, 2002, VMA and Centimark entered into an agreement in which Centimark and Dzen would install a roof on the nursing facility. Dzen did not install the shingled portion of the roof. Centimark breached the agreement by: (1) failing to obtain a building permit for the roof; (2) failing to use Dzen to install the shingles; (3) failing to have a master elite contractor install the shingles; (4) failing to install the roof in a workmanlike manner in accordance with industry standards; (5) failing to install the shingles in accordance with GAF's specifications, the building code and the terms and conditions of the agreement between the parties; (6) failing to properly install the flat roof;²⁷ and (7) failing to properly flash the roof. As a result of Centimark's breach, VMA has suffered damages.

i. Failing to obtain a building permit

VMA argues that Centimark breached the contract by failing to obtain a building permit from the town prior to commencing work on the roof. Specifically, VMA argues that Centimark assumed responsibility to obtain a permit, pursuant to the contract. In fact, VMA argues that Centimark included the building permit cost in its contract price. In response, Centimark argues that it was VMA's responsibility, as owner of the premises, to obtain the building permit, pursuant to General Statutes § 29-263(a).

Section 29-263(a) provides, in relevant part: "Except as provided in subsection (h) of section 29-252a and the State Building Code adopted pursuant to subsection (a) of section 29-252, after October 1, 1970, no building or structure shall be constructed or altered until an application has been filed with the building official and a permit issued. Such permit shall be issued or refused, in whole or in part, within thirty days after the date of an application. No permit shall be issued except upon application of the owner of the premises affected or the owner's authorized agent."

In the present case, Centimark did not apply for a building permit prior to commencement of work on the roof. Over a year after work was completed, Centimark and Dzen filed for a building permit, on December 19, 2003. Because the application was filed after work had commenced, the initial filing fee of $767 was doubled as a penalty, pursuant to the town's ordinance. Kerr denied the application because property taxes were due and owed to the town. On May 17, 2004, VMA filed an application for a building permit with the town and paid the $1,534 fee. Kerr subsequently inspected the roof and issued a permit.

This court finds that Centimark breached the contract in failing to obtain a building permit. Centimark's claim that VMA was required by statute to apply for the building permit is without merit; section 29-263(a) specifically authorized the owner's agent to file an application. Here, Centimark was acting as VMA's agent and should have filed for a building permit prior to commencing work. In fact, Rzempoluch testified that it was Centimark's responsibility to obtain the permit. (Michael Rzempoluch testimony, September 7, 2005, p. 49.) Additionally, Crosse admitted during his testimony that the contract price included the cost of obtaining a permit. (Darren Crosse testimony, September 8, 2005, p. 6.)

ii. Failing to use Dzen, a GAF master elite contractor, to install the shingles

VMA argues that Centimark breached the contract by failing to ensure that Dzen, a master elite contractor, would be performing the work on the shingled portion of the roof. Centimark counters that if VMA wanted to ensure that Dzen would perform the work on the shingled portion of the roof, then Rodowicz, who has "extensive contracting experience," should have insisted on a clause in the contract prohibiting any subcontracting of the work. Moreover, Centimark argues that it is industry standard to subcontract out work.

In order to determine whether Centimark breached the contract in this regard, the court must interpret the contract to effectuate the intent of the parties. "[O]rdinarily the question of contract interpretation, being a question of the parties' intent, is a question of fact . . . [w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law . . . Our case law, however, does not set forth a test by which to determine whether contract language is sufficiently definite to warrant its review as a question of law rather than as a question of fact. It is noteworthy that, in the majority of the cases considering contract interpretation a matter of law, the disputed agreement was a commercial contract between sophisticated commercial parties with relatively equal bargaining power." (Internal quotation marks omitted.) Connecticut Light Power Co. v. Lighthouse Landings, Inc., 279 Conn. 90, 109, 900 A.2d 1242 (2006).²⁸

28 In the present case, the court will interpret the parties' intent as a question of fact. Although there was evidence at trial that Rodowicz had a background in construction, he hardly represents a "sophisticated commercial [party] . . ." See Connecticut Light Power Co. v. Lighthouse Landings, supra, 279 Conn. 109.

"The intent of the parties as expressed in a contract is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction . . . [T]he intent of the parties is to be ascertained by a fair and reasonable construction of the written words and . . . the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract . . . Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity . . . Similarly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party's subjective perception of the terms." (Internal quotation marks omitted.) Id., 109-10.

"Well established principles guide our analysis in determining whether the language of a contract is ambiguous. [A] contract is ambiguous if the intent of the parties is not clear and certain from the language of the contract itself. [A]ny ambiguity in a contract must emanate from the language used by the parties . . . The contract must be viewed in its entirety, with each provision read in light of the other provisions . . . and every provision must be given effect if it is possible to do so." (Internal quotation marks omitted.) Santana v. Hartford, 94 Conn.App. 445, 464, 894 A.2d 307 (2006), aff'd, 282 Conn. 19, 918 A.2d 267 (2007).

In the present case, the contract provided: " All items listed in the scope of work will be completed by Centimark Corporation and by M. Dzen Roofing Company under the supervision of Centimark's operations manager. Centimark is North [America's] largest roofing contractor and M. Dzen [R]oofing Company is one of GAF's master elite contractors who stand out as being one of the top [two percent] of all shingle applicators in the country." (Emphasis added.) VMA argues that the plain and unambiguous meaning of the word "all" in this contract gave Centimark no authority to delegate or subcontract out any of the work to any contractor other than Dzen. On the contrary, Centimark argues that Rodowicz should have known that it is industry standard that contractors frequently subcontract out work to other contractors, especially in light of the fact that Rodowicz is a contractor himself.

Merriam-Webster's Dictionary defines the word "all" as "the whole amount, quantity, or extent of . . . [or] the whole number or sum of." When construing this language according to its "common, natural, and ordinary meaning and usage," it is clear that the entire re-roofing job was to be completed by Centimark and Dzen. See Connecticut Light Power Co. v. Lighthouse Landings, supra, 279 Conn. 110. If the court construes the contract to allow Centimark and Dzen to subcontract out the work on the roof to other contractors, the fact that Dzen is a master elite contractor, in the top two percent of all shingle applicators in the country, would be meaningless. Accordingly, this court finds that Centimark breached the contract in failing to use Dzen, a master elite contractor, as the applicator of the shingled portion of the roof.

iii. Failing to install the shingled roof in a workmanlike manner

VMA argues that Centimark breached the contract by failing to install the shingled portion of the roof in a workmanlike manner.²⁹ In support of its argument, VMA relies on Greentree Condominium Ass'n., Inc. v. PSP Corp., 36 Conn.Sup. 160, 165, 415 A.2d 248 (1980), for the proposition that "[i]mplied in construction contracts is a warranty that construction will be done in a `workmanlike manner and [be] fit for its intended use,' regardless of whether the structure is residential or commercial in nature." (VMA brief, p. 22.) In Greentree, the plaintiffs brought an action to recover damages from the defendants for failing to construct condominium units in a workmanlike manner. Id., 161. The court, Zarrilli, J., concluded "courts in this state have ruled that the builder-vendor of a structure used for residential purposes impliedly warrants to his purchaser that the structure was erected in a workmanlike manner and is fit for its intended use . . . There appears to be no valid reason why implied warranties should not be imposed upon builder-vendors of other types of structures, including condominiums and those used for commercial purposes. See Pollard v. Saxe Yolles Development Co., 12 Cal.3d 374, 380 (1974)." (Citations omitted.) Id., 165.

29 Centimark does not specifically address this argument in its brief and reply brief.

This court does not find VMA's argument persuasive. VMA does not cite any appellate authority for this proposition and Greentree is distinguishable.³⁰ In Greentree, the defendants were constructing new units and not improving existing ones. Additionally, the court, Zarrilli, J., cites to a California case for the proposition that this implied warranty should be extended to commercial construction. The court, Zarrilli, J., does not cite to any Connecticut case law applying an implied warranty to commercial construction. Furthermore, this court was unable to find authority for the proposition that there is an implied warranty that work will be performed in a workmanlike manner in commercial improvement construction contracts

30 Additionally, VMA relies on Sutera v. Estate of A.A. Washton, Superior Court, judicial district of New London, Docket No. CV ___ 556177 (March 14, 2003, Corradino, J.) ( 34 Conn. L. Rptr. 388, 391), for the proposition that in a contract to perform services, "it is a well-settled rule that the standard of comparison or test of efficiency is that degree of skill, efficiency and knowledge which is possessed by those of ordinary skill, competency and standing in the particular trade or business for which he (she) is employed." In Sutera, the plaintiffs brought a legal malpractice claim against a deceased attorney. In support of this proposition, VMA also cites to Harrington v. Grillo, Superior Court, judicial district of Hartford, Docket No. CV 98 0579272 (November 20, 2000, Rubinow, J.) In Harrington, a home improvement case to reroof the residential homes of the plaintiffs, the roofing contract contained an explicit warranty that "[a]ll work [would] he completed in a workmanlike manner according to standard practices." (Internal quotation marks omitted.) Id. The warranty in that case was not implied but expressly written into the contract. Accordingly, this court finds that Sutera and Harrington are also distinguishable.

iv. Failing to install the shingled roof in accordance with GAF's specifications, the building code ³¹ and the agreement between the parties

31 The building code adopts the manufacturer's specifications for each project — in this case GAF's Pro Field guide.

VMA argues that Centimark breached the contract by failing to install the shingled roof in accordance with GAF's specifications,³² the building code and the contract. Specifically, VMA argues that the following deficiencies constituted a breach: (1) overdriven nails; (2) underdriven nails; (3) the installation of nails at angles; (4) nails not installed at the designated nailing line; (5) nails that did not penetrate the plywood; (6) less than six nails per shingle; (7) the improper installation of the starter strip; (8) the improper installation of the ridge venting system; (9) the improper installation of valleys; (10) the improper installation of shingle roofing strips; (11) the improper sealing of shingles; and (12) improper flashing. In Centimark's brief, it appears to concede that the shingled portion of the roof is in need of repairs. (Centimark brief, p. 20.) In fact, this is confirmed by both experts, Pascale and Darling. The extent of repairs is in dispute between the parties. Therefore, this court will briefly address each alleged breach in turn.

a. Nailing deficiencies

VMA argues that Centimark breached the contract by failing to install the nails for the shingled portion of the roof in accordance with GAF's Pro Field Guide (guide), which requires nails to be "[d]riven [s]traight" and "[f]lush [w]ith [the] [s]hingle [s]urface."³³ (Exh. 60, p. 105.) In support of its argument, VMA cites to Pascale's July 27, 2005 roof inspection report, which stated that "[m]ultiple widespread deficiencies to the 2002 shingle roof were observed during this visit, including . . . multiple nail pops, overdriven nails, exposed nail heads, . . . nails located at shingle laps, less than six nails per shingle [and] nails not located at the manufacturer designated nail line . . ." (Exh. 62A.) Pascale's report also contained numerous pictures depicting these deficiencies. (Exh. 62A, photos 33, 37-41, 102-04, 111-45.) Darling testified that he agreed with Pascale's characterization of these deficiencies. (Bruce Darling testimony, February 28, 2006, p. 109.) This court finds Pascale and Darling's testimony to be fully credible regarding these nailing deficiencies. Therefore, this court finds that there were numerous nailing deficiencies in the roof's installation.

33 The guide also stated that overdriven nails can damage the shingles by driving the nails through the shingle. Underdriven nails can cause nail pops which can pull the shingles away from the sealant. Nails driven at an angle will cut through overlying shingles and can cause backing out of shingles with deck movement. (Exh. 60, p. 106.) The guide also instructs contractors to use the nail line guide painted on every shingle "to ensure nailing through the shingle's double ply area." (Exh. 60, p. 130.) It warns that "high nailing . . . shingles can cause product failure." (Exh. 60, p. 130.)

b. Penetration of nails into plywood

VMA argues that the nails did not sufficiently penetrate through the plywood deck in accordance with GAF's specifications. In response, Centimark argues that there was indeed sufficient penetration, as evidenced by both taped inspections of the roof. (Exh. 30; Exh. 95.) The dispute between VMA and Centimark with regard to this issue centers on their differing interpretations of an illustration in the guide and a letter from John Wheeler, technical services representative for GAF. Wheeler's letter stated that "[f]asteners should be long enough to penetrate at least 3/4" (19mm) into wood decks or just through the plywood decks." (Exh. 24.) The guide stated that "fasteners should be long enough . . . to penetrate 3/4" into wood plank decks and to go just through plywood decks." (Exh. 60, p. 105.) The text accompanying the illustration in the guide on page 105 explained that nails should penetrate "1/4" nominal through plywood."

VMA's interpretation is that the nails must penetrate one-fourth of an inch through the plywood. During Pascale's July 26, 2005 inspection of the roof he removed twelve shingles from both the original layer and the new layer of the roof. (Exh. 95.) He then inspected the underside of the roof from the attic. Once the nails were removed, small holes of sunlight could be seen from the attic. Pascale was able to determine that the nails used on the original layer of the roof created these small holes of sunlight. Meanwhile, the majority of nails used on the new roof did not create these holes of sunlight but only splintered the plywood.³⁴ He marked the nails that only splintered the plywood in yellow and marked the nails that penetrated the plywood one-fourth of an inch in red.

34 Pascale reported that fifty-two out of seventy-two nails used in the installation of the new roof failed to splinter the underside of the plywood sufficiently so that daylight could be seen from the nail holes.

Based on this observation, Pascale determined that the nails used in the installation of the original roof penetrated the plywood sufficiently while the majority of the nails used in the installation of the new roof did not. Because the nails from the new roof only splintered the plywood, he concluded that they were not installed in accordance with GAF's specifications, which require one-fourth of an inch of penetration through the plywood.

On the contrary, Centimark's interpretation focused on the word "nominal," which has been defined as "approximate . . ." Therefore, Centimark argues that nails just splintering the plywood deck is sufficient penetration, as per GAF's specifications. In fact, Centimark points to Pascale's testimony and his report in which he explained that he observed nails breaking through the underside of the plywood. (Michael Pascale testimony, January 24, 2006, p. 140; Exh., 62A, photos 146-49; Exh. 95.) While VMA argues that nails must penetrate one-fourth of an inch through the plywood, Centimark argues that "when nails break through the underside of plywood they have just gone through the plywood."

Taking into account the experts' testimony and taped inspections of the roof, the court finds that there was sufficient penetration of the nails. The court's interpretation of GAF's specifications for penetration is that GAF only requires that nails penetrate through the plywood. As evidenced by Pascale's taped inspection of the roof and his report, the nails from the new roof penetrated the plywood enough for Pascale to be able to mark these nails with a yellow crayon. (Exh. 60, photos 146-49; Exh. 95.) If the nails had not penetrated through the plywood, Pascale would not have been able to identify and mark these nails on the underside of the plywood. Although the text accompanying the illustration on page 105 of the guide stated that nails should penetrate "1/4" nominal through plywood," as VMA points out, the text on this page also stated that "fasteners should be long enough . . . to penetrate 3/4" into wood plank decks and to go just through plywood decks." Wheeler's letter dated November 8, 2002, clarifies this ambiguity: "Fasteners should be long enough to penetrate at least 3/4" (19 mm) into wood decks or just through the plywood decks." Accordingly, there was sufficient penetration in the installation of the shingled portion of the roof.

c. Improper installation of starter strip

VMA argues that Centimark breached the contract by improperly installing the starter strip in accordance with GAF's specifications.³⁵ Pascale's report stated: "Based on our observations at HBF [t]est [c]ut #1 the shingle starter strip was improperly installed . . . The improper installation makes these shingles susceptible to wind uplift or blow off." (Exh. 62A, p. 5.0-2.) Darling agreed with Pascale's observations. (Centimark brief, p. 23.) This court finds Pascale and Darling's testimony to be fully credible regarding the installation of the starter strip.

35 VMA's brief does not point to a specific section in the guide in support of its argument.

Therefore, the starter strip was improperly installed.

d. Improper installation of ridge vent

VMA argues that Centimark breached the contract by improperly installing the ridge venting system in accordance with GAF's specifications. Specifically, VMA argues that the ridge vent was improperly installed because Centimark failed to remove the plywood deck from the ridge vent after the vent was installed. Consequently, VMA argues that the ridge vent did not function properly as the plywood did not allow air to enter and exit through the rafters. Centimark does not specifically address this argument in its brief and reply brief.

Pascale's report explained that "[a] ridge vent system was installed at the lower roof area of the center wing, however the plywood deck was not cut out at this ridge vent area; therefore, the ridge vent does not function properly and does not ventilate the attic space." (Exh. 62A, p. 3.0-5.) Photographs from Pascale's June 22, 2005 inspection also depicted the improper installation of the ridge vent. (Exh. 62A, photos 82-85.) Darling disagreed with Pascale's conclusion. He testified that, in his opinion, the ridge vent was functioning properly.³⁶ (Bruce Darling testimony, February 28, 2006, p. 132.) The court finds Pascale's report to be fully credible and does not find Darling's testimony to be persuasive regarding the installation of the ridge venting system. Accordingly, the court finds that Centimark improperly installed the ridge vent by failing to remove the plywood deck from the ridge vent.

36 Darling testified that his only criticism of the ridge vent was the popped nails. (Bruce Darling testimony, February 28, 2006, p. 132.)

e. Improper installation of valleys

VMA argues that Centimark breached the contract by improperly installing the valleys on the shingled portion of the roof. Specifically, the valleys were not installed properly because the top course of shingles did not run even to the original course of shingles. Pascale testified that the guide requires "the top course of shingle to run and be cut even with the underlay — under layment course of shingle. The under layment course of shingle should not be there. The over — the top course should be run and cut on an angle and sealed."³⁷ (Michael Pascale testimony, January 24, 2006, p. 123.) Photograph thirty-one from Pascale's June 8, 2004 inspection also depicted this deficiency. (Exh. 62A, photo 31.) Darling testified that he agreed with Pascale's characterizations regarding the improper installation of the valleys. He stated that "the application [of the valleys was] done on a method as recommended by TAMKO, which is a competitor of GAF. It is not in line with what GAF shows in their literature . . ." (Bruce Darling testimony, February 28, 2006, p. 198.) The court finds Pascale and Darling's testimony to be fully credible regarding the installation of the valleys. Accordingly, the valleys were installed improperly.

37 VMA does not specifically cite to a portion of the guide in support of this proposition. After reviewing the guide, the court notes that pages 120-24 outline the proper installation of valleys for GAF shingles.

f. Improper sealing of shingles and the improper installation of shingle roofing strips

VMA argues that Centimark breached the contract by improperly sealing the shingles and improperly installing the shingle roofing strips, in accordance with GAF specifications. The guide requires shingles to be cemented "to underlayment and each other in a 4" width of asphalt plastic roof cement." (Exh. 60, p. 131.) The guide also outlines extensive requirements for the proper installation of roofing strips. (Exh. 60, pp. 130-34.)

Pascale noted the improper sealing of shingles at perimeters during his June 8, 2004 inspection of the roof. (Exh. 62A, Executive Summary.) Additionally, his report contained photographs noting areas where no sealant was applied or where it was applied improperly. (Exh. 62A, photos 57-60.) He also testified that "[t]he mastic should have been applied a) up against the wall and b) per each shingle . . ." (Michael Pascale testimony, January 24, 2006, p. 127.) Darling agreed with Pascale's observations regarding the sealing of shingles. (Centimark brief, p. 25.) The court finds the experts' observations fully credible regarding this deficiency.

Pascale's June 8, 2004 inspection of the roof also noted improper shingle staggering. (Exh. 62A, Executive Summary.) Pascale also testified that photograph sixty-eight of his report is evidence of this problem because this photograph only shows a one-inch lap between shingles while there should be a six inch lap. (Michael Pascale testimony, January 24, 2006, p. 128.) The court finds Pascale's report and testimony fully credible regarding the improper installation of shingle roofing strips. Therefore, the court finds that the shingles were improperly sealed and that the shingle roofing strips were installed improperly.

vi. Failing to properly flash the roof

VMA argues that Centimark breached the contract in failing to properly install the flashing in accordance with the contract. The initial boilerplate contract required the installation of aluminum vent stack flashing. (Exh. 1, p. 5.) During negotiation of the contract, Rodowicz and Westbrook agreed to add the following language to the contract: "and flash rooftop units [with] [m]odified [m]embrane [t]ar ([r]oof [c]ement)."³⁸ Darling testified that he saw deficiencies in the flashing of the vent stacks.³⁹ (Bruce Darling testimony, February 28, 2006, p. 104.) The court finds Darling's limited testimony credible. Therefore, the court finds that Centimark did not properly flash the vent stacks.

38 Westbrook initialed this change to the contract.

39 Darling did not examine the flashing at the HVAC units. (Bruce Darling testimony, February 28, 2006, p. 104.)

After reviewing the record, the court is unable to find any analysis by Pascale, including his testimony and reports, regarding the added language to the contract and whether this installation was done properly. Although Rodowicz extensively testified about the improper installation of flashing and the lack of any flashing around various units on the roof, Rodowicz was never certified as an expert to testify on such matters. Accordingly, the court finds that VMA is unable to meet its burden with regard to the added language to the contract that requires the flashing of the HVAC units. Consequently, there is insufficient evidence for the court to find that Centimark breached the contract in failing to properly flash the HVAC units.

vii. Damages

"It is axiomatic that the sum of damages awarded as compensation in a breach of contract action should place the injured party in the same position as he would have been in had the contract been performed . . . The injured party, however, is entitled to retain nothing in excess of that sum which compensates him for the loss of his bargain . . . Guarding against excessive compensation, the law of contract damages limits the injured party to damages based on his actual loss caused by the breach." (Internal quotation marks omitted.) Russell v. Russell, 91 Conn.App. 619, 643-44, 882 A.2d 98, cert. denied, 276 Conn. 924, 925, 888 A.2d 92 (2005). "Mathematical exactitude in the proof of damages is often impossible, but the plaintiff must nevertheless provide sufficient evidence for the trier to make a fair and reasonable estimate." (Internal quotation marks omitted.) Willow Springs Condominium Ass'n., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 59, 717 A.2d 77 (1998).

"For 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, if this is possible and does not involve unreasonable economic waste; 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 by the plaintiff, if construction and completion in accordance with the contract would involve unreasonable economic waste . . ." (Internal quotations marks omitted.) Kevin Roche-John Dinkeloo Associates v. New Haven, 205 Conn. 741, 749, 535 A.2d 1287 (1988). "[T]he basic measure of damages for injury to real property is the resultant diminution in its value . . . Such diminution in value may be determined, however, by the cost of repairing the damage as long as that cost does not exceed the former value of the property and the repairs do not enhance the value of the property over what it was prior to the damage." Mattegat v. Klopfenstein, 50 Conn.App. 97, 106, 717 A.2d 276, cert. denied, 247 Conn. 922, 722 A.2d 810 (1998). "The cost of repairs, therefore, is a proxy for diminution in value caused by damage to property. Because these are, in effect, alternative measures of damages, the plaintiff need not introduce evidence of both diminution in value and cost of repairs." Willow Springs Condominium Ass'n., Inc. v. Seventh BRT Development Corp., supra, 245 Conn. 59-60.

"It is true that damages for breach of contract are to be measured as of the date of the breach . . . This does not necessarily mean, however, that current cost of repair estimates cannot be evidence of the extent of earlier damage." (Citations omitted; internal quotation marks omitted.) Id., 61. "It has been held particularly appropriate to permit a plaintiff to use the actual cost of repairs as evidence of damages where the cause of action relating to breach of a construction contract does not become apparent until after a defect in the property is detected." Harrington v. Grillo, Superior Court, judicial district, Docket No. CV98 0579272 (November 20, 2000, Rubinow, J.), citing Willow Springs Condominium Ass'n., Inc. v. Seventh BRT Development Corp., supra, 61-62.

In the present case, VMA is seeking money damages; attorneys fees; actual damages, punitive damages and attorneys fees, pursuant to General Statutes § 42-110g(a);⁴⁰ recission of the agreement;⁴¹ costs; interest; and "such other relief as the [c]ourt deems just and proper [under] law and equity." Specifically, VMA is seeking $139,670⁴² to replace the roof and an additional $14,184 in consequential damages for its breach of contract claim.

40 VMA's prayers for relief pursuant to § 42-110g(a) will be addressed by the court in its analysis of VMA's CUTPA claim.

41 VMA withdrew its prayer for relief for recission of the agreement in court on February 28, 2006. (Attorney Fulco, February 28, 2006, p. 61.)

42 This figure represents $127,670 or $3.73 per square foot, Pascale's estimate to replace the roof, and an additional $12,000, to properly flash around the HVAC units. (Exh. 62a, appendix 15.)

As evidenced through extensive testimony, both experts agree that there are numerous deficiencies with the roof. They do not agree on whether the roof can be repaired or whether it must be replaced. VMA relies on Pascale's expert opinion and argues that the roof cannot be repaired, but must be replaced. On the contrary, Centimark relies on Darling's expert opinion and argues that the roof's deficiencies can be repaired.

During his testimony, Pascale explained that repairing the roof would require lifting each and every shingle. To minimize the least amount of damage to the shingles, lifting should only be done in the early morning or late afternoon. Otherwise, the shingles will either be too flexible or too brittle, causing damage to the shingle while lifting. (Michael Pascale testimony, February 28, 2006, p. 20.) In fact, during Pascale's inspection of the roof on July 26, 2005, he caused damage to the shingles that he lifted.⁴³ He explained that "part of the seal stuck to the upper course of the shingles and damaged that lower shingle where the seal strip is causing delamination which damaged that shingle. [It is very] difficult to take the shingles apart without causing damage there . . . That shingle is damaged now . . . [and would have to be] replaced." (Michael Pascale testimony, January 24, 2005, p. 139.) Pascale concluded that it would not be feasible to repair the roof because of the extent of possible damage caused by lifting each and every shingle. (Michael Pascale testimony, January 24, 2005, p. 144; February 28, 2006, p. 20.)

43 Pascale caused damage to some of the shingles he lifted, even though his inspection was conducted in the early morning, one of the best times to lift shingles for causing the least amount of damage. He also "hosed the roof down in that area" to cool the shingles further. (Michael Pascale testimony, January 24, 2005, p. 148.)

Conversely, Darling testified that the roof could be repaired because "there's no systematic leaking problem . . . There are some deficiencies — things that need to be repaired, but it pretty much doesn't leak and hasn't blown off . . . I wouldn't consider it failed at this time." (Bruce Darling testimony, February 28, 2006, pp. 76, 79.) Darling testified that once his suggested repairs were made, the roof would be in "good serviceable condition."⁴⁴ (Bruce Darling testimony, February 28, 2006, p. 85.) Lastly, Darling estimated that it would cost $39,690 to repair the roof. (Exh. 115.)

44 Darling testified that lifting the shingles in the early morning or late afternoon would prevent the majority of shingles from being damaged in the lifting process. (Bruce Darling testimony, February 28, 2006, p. 85.)

This court finds Pascale's testimony to be fully credible. It would not be feasible to lift every single shingle to look for deficiencies without significantly damaging the existing shingles.⁴⁵ Accordingly, the court finds that the roof must be replaced. The court awards VMA $139,670 in damages to replace the roof. Because VMA never paid Centimark for the roof, VMA's award is reduced by the initial contract price of the roof, $98,999.76.⁴⁶ Therefore, VMA is awarded $40,670.24 in damages to replace the roof.

45 It is estimated that there are approximately 28,000 shingles on the roof.

46 Although VMA's brief did not account for its failure to pay Centimark any portion of the contract price in determining damages, VMA admits in its reply brief that Centimark should be credited this amount.

VMA next argues that it is entitled to $14,184 in consequential damages for VMHC's lost room profits as a result of multiple leaks from the roof. VMA relies on Ambrogio v. Beaver Road Associates, 267 Conn. 148, 836 A.2d 1183 (2003), for the proposition that in addition to direct damages, VMA is also entitled to "any other loss, including incidental or consequential loss, caused by the breach." Id., 155. It explained that, as landlord, it retained responsibility to make structural repairs to the premises, and, therefore, it was VMA's responsibility, under Article VI of the lease, to replace the roof.⁴⁷ (Exh. 37, p. 4.) VMA argues that this provision of the lease also required VMA to be responsible for any losses VMHC, its tenant, might have incurred because of Centimark's failure to properly replace the existing roof.

47 Article VI provides in relevant part: "Landlord shall be responsible for structural repairs to the [b]uildings which comprise the [p]remises." (Exh. 37, p. 4.)

In response, Centimark argues that VMHC is not a party to this proceeding and, therefore, Centimark should not be liable for VMHC's lost profits. Specifically, Centimark argues that the conduct of VMA and VMHC is merely "inter-company manipulation of losses involving members of the same family." In fact, Centimark points out the VMHC could have filed an insurance claim or even could have brought a separate action against Centimark for its lost profits. VMHC failed to do either of these things; therefore, Centimark argues that VMA cannot collect VMHC's lost room profits in this action.⁴⁸

48 Centimark also points to Article VII, paragraph I, entitled "Personal Property at Tenant's Risk," which provides, "[t]hat all of the furnishings, fixtures, equipment, effects and property of every kind, nature and description of [t]enant shall be at the sole risk and hazard of [t]enant, and if the whole of any part thereof shall be destroyed or damaged by fire, water or otherwise, or by leakage or bursting of water pipes, steam pipes or other pipes, by theft or from any other cause, no part of said loss or damage is to be charged to or borne by the [l]andlord." Centimark argues that this provision of the lease precludes VMHC from collecting any of its lost profits due to "leakage."

In Ambrogio v. Beaver Road Associates, supra, 267 Conn. 151, the plaintiff, a surgeon, contracted with the defendant, a general contractor, to install surgical flooring in two rooms of the plaintiff's office. Several months after the flooring was installed, the plaintiff noticed problems with the flooring. The plaintiff brought a breach of contract action against the defendant, seeking, inter alia, lost profits. Our Appellate Court concluded that the plaintiff "was not precluded, as a matter of law, from recovering lost profits from the defendant's breach of a construction contract with the plaintiff." Id., 150. In affirming the Appellate Court's decision, our Supreme Court explained that "[t]raditionally, consequential damages include any loss that may fairly and reasonably be considered [as] arising naturally, i.e., according to the usual course of things, from such breach of contract itself . . . Although there is no unyielding formula by which damages are calculated, it is our rule that [u]nless they are too speculative and remote, prospective profits are allowable as an element of damage whenever their loss arises directly from and as a natural consequence of the breach." (Citation omitted; internal quotation marks omitted.) Id., 155.

Contrary to Ambrogio, in which the plaintiff was seeking his lost profits due to the defendant's breach, in the present case, VMA is seeking the lost profits of VMHC, which is not even a party to this action. Although our Appellate and Supreme Court have stated that a plaintiff is not precluded, as a matter of law, from recovering lost profits in a breach of a construction contract context, in this case, VMHC's lost profits are too "speculative and remote" for the court to allow this recovery. Additionally, there are no allegations in VMA's counterclaim related to VMHC's lost room profits. Accordingly, the court will not award VMA $14,184 in consequential damages.

B. Negligence

VMA's second count in its counterclaim is for negligence. VMA alleges the following in its counterclaim. VMA entered into an agreement with Centimark in which Centimark agreed to replace the existing roof on VMA's facility. Pursuant to the agreement, Centimark and Dzen would perform all of the work to replace the roof. VMA fulfilled all of its conditions under the agreement. Centimark, its agents and/or its subcontractors negligently constructed the roof in an unskillful manner. As a result of this negligent construction of the new roof the roof leaked, causing damage to the facility. VMA was injured and suffered damages.

In its brief, VMA argues that Centimark negligently constructed the shingled portion of the roof by failing to exercise the care of a skilled contractor. First, VMA relies on Coburn v. Lenox Homes, Inc., 186 Conn. 370, 381, 441 A.2d 620 (1982), for the proposition that "[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." (Internal quotation marks omitted.) VMA argues that Centimark, as "North America's largest roofing contractor," knew or should have known the customs and standards in the roofing industry, in addition to local building code. Second, VMA argues that Centimark failed to install the shingled portion of the roof "with the care of a skilled roofing contractor . . ." Third, VMA argues that Centimark's negligent workmanship was the proximate cause of VMA's injuries. Finally, VMA argues that it is entitled to damages in the amount claimed for its breach of contract cause of action. Centimark does not respond to VMA's arguments nor does it brief VMA's cause of action for negligence.

The court agrees with VMA. Centimark breached its duty to VMA under the contract in failing to install the shingled portion of the roof in a manner consistent with the customs and standards in the roofing industry, as well as the town's building code. This breach was the proximate cause of VMA's injuries; specifically, these deficiencies to the roof resulted in a defective roof. "[P]roximate cause [is] defined as an actual cause that is a substantial factor in the resulting harm . . . [T]he inquiry fundamental to all proximate cause questions . . . [is] whether the harm which occurred was of the same general nature as the foreseeable risk created by the defendant's negligence." (Internal quotation marks omitted.) Monk v. Temple George Associates, LLC, 273 Conn. 108, 124, 869 A.2d 179 (2005). It was foreseeable that Centimark's misconduct could result in a defective roof. Accordingly, this court finds that VMA is entitled to the same damages for its negligence claim as awarded for its breach of contract claim.

C. Breach of Warranty

In its counterclaim, VMA alleges the following in its third count for breach of warranty. VMA and Centimark entered into an agreement in which Centimark would replace the existing roof on VMA's facility. "Centimark warranted the roof to be properly installed and to be free from defects . . ." The agreement stated that the warranty would be the "best service commitment and warranty commitment available in the roofing industry." Centimark failed to install the roof without defects. After Centimark installed the roof, VMA noticed defects and requested that Centimark correct these defects, pursuant to the warranty. Centimark failed to correct these defects and therefore, Centimark breached the warranty. VMA suffered damages due to Centimark's breach.

VMA argues that Centimark breached the contract by failing to issue the warranty it had promised in the contract — the "best . . . warranty . . . available in the roofing industry." VMA also argues that Centimark breached the warranty by failing to correct the defective roof pursuant to the terms of the warranty. In response, Centimark argues that VMA could not have possibly received its best warranty, the golden pledge warranty,⁴⁹ because, in order for GAF to issue this warranty, the roof cannot be installed over an existing roof as was done in this case. Additionally, Centimark argues that since VMA failed to pay for any of the labor or materials for the roof, a requirement for GAF to issue the warranty, the warranty is void.

49 Rzempoluch described GAF's golden pledge warranty as follows: "It has to do with GAF standing behind the warranty labor portion and giving full coverage of the material portion for a certain duration of time." (Michael Rzempoluch testimony, September 7, 2005, p. 76.)

The court will first address VMA's argument that Centimark failed to issue it the "best service commitment and warranty commitment available in the roofing industry." In order to determine the warranty agreed upon, the court must interpret the contract to effectuate the intent of the parties. As stated previously, "[t]he intent of the parties as expressed in a contract is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction . . . [T]he intent of the parties is to be ascertained by a fair and reasonable construction of the written words and . . . the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract . . . Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity . . . Similarly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party's subjective perception of the terms." (Internal quotation marks omitted.) Connecticut Light Power Co. v. Lighthouse Landings, supra, 279 Conn. 109-10.

In interpreting the intent of the parties, "[t]he contract must be viewed in its entirety, with each provision read in light of the other provisions . . . and every provision must be given effect if it is possible to do so." (Internal quotation marks omitted.) Santana v. Hartford, supra, 94 Conn.App. 464. "Where the language is unambiguous, we must give the contract effect according to its terms . . . Where the language is ambiguous, however, we must construe those ambiguities against the drafter." (Citations omitted.) Cantonbury Heights Condominium Ass'n. v. Local Land Development, LLC, 273 Conn. 724, 735, 873 A.2d 898 (2005). "When the relevant contract language is ambiguous, [t]he determination of the intent of the parties to a contract . . . is a question of fact . . ." (Internal quotation marks omitted.) United Social Mental Health Services, Inc. v. Rodowicz, 96 Conn.App. 34, 41, 899 A.2d 85, cert. denied, 280 Conn. 920, 908 A.2d 546 (2006).

In the present case, the contract provided: "The [Centimark] and GAF [r]oof [s]ystems and warranty commitments are the best roofing investments available today . . . With [Centimark,] North America's largest roofing contractor and with GAF, North America's largest roofing manufacturer standing behind your new roof warranty you have the best service commitment and warranty commitment available in the roofing industry." (Exh. 1, p. 7.) The contract also provided: "Upon purchase of the roofing system, you become entitled to receive the benefits of [single source responsibility] through [Centimark's] non-prorated, comprehensive, total system written warranty and GAF's shingle system warranty. If your roof leaks at any time during the warranty period, we will provide complete warranty service." (Exh. 1, p. 6.)

Pinto admitted during his testimony that VMA did not in fact receive the best warranty that GAF provides to its customers, the golden pledge warranty. He explained that in order to qualify for a golden pledge warranty, the existing roof must be stripped and that "you have to install a GAF ice and water shield, their felt paper, their shingle, have the proper ventilation on the building on top of it is an extra charge to the [owner]." (Dean Pinto testimony, September 8, 2005, p. 15.) Pinto further testified that because the VMA job involved installing a second layer of shingles over the existing layer of shingles, the golden pledge warranty did not apply. (Dean Pinto testimony, September 8, 2005, p. 16.)

The contract does not state the specific warranty provided. It merely stated that the warranty is the "best . . . warranty commitment available in the roofing industry . . ." Therefore, this court finds this language to be ambiguous because it does not state the exact warranty VMA would receive from GAF. "Where the language is ambiguous, however, we must construe those ambiguities against the drafter." (Citations omitted.) Cantonbury Heights Condominium Ass'n v. Local Land Development, LLC, supra, 273 Conn. 735. Since Centimark drafted the contract, it should have added more specific language describing the warranty that GAF would be providing to VMA. Accordingly, Centimark breached the contract by failing to provide the golden pledge warranty, the best warranty, to VMA.

Next, the court will address VMA's argument that Centimark breached the warranty by failing to correct the defects in the roof and Centimark's argument that the warranty is void. On September 16, 2002, Centimark issued VMA a five-year warranty against defects in materials and workmanship. The warranty provided: "Purchaser shall pay all invoices issued by Centimark for installation, materials and services, in full and when due, and shall not offset any claims that the [p]urchaser may allege against Centimark against any amounts due on Centimark's invoices. If [p]urchaser fails to pay all outstanding invoices in full and when due, and/or claims any offset against any invoices, then [p]urchaser shall not be entitled to any warranty protection or services." (Exh. 29.)

Prior to this date, on September 4, 2002, Rodowicz contacted Westbrook to address several concerns he had regarding the workmanship of the roof. Ongoing discussions between VMA and Centimark occurred during the fall of 2002, regarding the deficiencies with the roof. These discussions never resulted in a resolution. Several leaks occurred after work was completed. Centimark repaired the first leak but failed to repair subsequent leaks to the roof. Crosse sent Rodowicz a letter dated November 22, 2002, explaining that Centimark would not make any more repairs to the roof until VMHC paid fifty percent of the contract price. (Exh. 12.) Rodowicz explained to Centimark in a letter dated December 1, 2002, that he was unwilling to pay any of the contract price because repairing the roof's problems could exceed the entire contract price. (Exh. 22.)

For the forgoing reasons, the court finds that Centimark breached the contract in failing to repair the deficiencies with the roof, pursuant to the warranty. Although the warranty stated that it is void if payment is not made in full, Rodowicz made Centimark aware of his concerns with the workmanship of the roof on numerous occasions. He also notified Centimark on December 1, 2002, with his reasons for withholding payment of the contract price because repairing the roof could exceed the contract price. Yet, Centimark failed to repair the deficiencies with the roof in violation of the warranty.

Accordingly, Centimark breached the contract in failing to provide VMA with the golden pledge warranty and also breached the warranty in failing to repair the deficiencies with the roof. The court awards VMA the same damages for its breach of warranty claim as awarded for its breach of contract claim.

D. Negligent Misrepresentation

VMA's fourth count in its counterclaim is for negligent misrepresentation. VMA alleges the following facts in its counterclaim. VMA and Centimark entered into an agreement in which Centimark agreed to replace the existing roof on VMA's facility. Pursuant to the agreement, all work would be completed by Centimark and Dzen. Specifically, Dzen, a master elite contractor, in the top two percent of all shingle installers in the country, would perform all of the work on the shingled portion of the roof. Centimark made this representation to VMA as an inducement for VMA to enter into the agreement with Centimark. VMA relied on this representation and entered into the agreement with Centimark. Dzen did not perform the work on the shingled portion of the roof. Centimark's representations regarding Dzen were made carelessly and negligently. Centimark knew or should have known that Dzen would not be performing the work on the shingled portion of the roof. VMA relied on Centimark's representation to its detriment and, as a result, sustained injuries and damages.

VMA argues that Centimark made representations multiple times that Dzen, a master elite contractor, would be performing the work on the shingled portion of the roof. In fact, VMA argues that these representations are saleable points for Centimark. VMA argues that Centimark's representatives knew, prior to making these representations, that Dzen would not be performing the work. VMA relied on these representations and entered into a contract with Centimark to VMA's detriment. In response, Centimark argues that VMA should have known that Dzen might subcontract out the work because this is standard practice in the construction industry.

"Our Supreme Court has long recognized liability for negligent misrepresentation. [It has] held that even an innocent misrepresentation of fact may be actionable if the declarant has the means of knowing, ought to know, or has the duty of knowing the truth . . . The governing principles are set forth in similar terms in § 552 of the Restatement Second of Torts (1977): One who, in the course of his business, profession or employment . . . supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information." (Internal quotation marks omitted. Mokonnen v. Pro Park, Inc., supra, 96 Conn.App. 632-33. "Traditionally, an action for negligent misrepresentation requires the plaintiff to establish (1) that the defendant made a misrepresentation of fact (2) that the defendant knew or should have known was false, and (3) that the plaintiff reasonably relied on the misrepresentation, and (4) suffered pecuniary harm as a result . . ." Nazami v. Patrons Mutual Ins. Co., supra, 280 Conn. 626.

As stated previously, the court finds that VMA has met its burden of proof in its claim for negligent misrepresentation. Centimark represented to VMA on numerous occasions that Dzen would be performing all of the work on the shingled portion of the roof. First, Rzempoluch's proposal to Slotnick in the summer of 2001, specifically stated: "All items listed in the scope of work will be completed by Centimark Corporation and by M. Dzen Roofing Company . . . M. Dzen Roofing Company is one of GAF's master elite contractors who stand out as being one of the top 2% of all shingle applicators in the country." (Exh. 1.) Additionally, when Westbrook met with Rodowicz in July 2002, to negotiate the agreement, he represented to Rodowicz that Dzen would be doing the work on the shingled portion of the roof. (Jeff Westbrook testimony, September 22, 2005, p. 45.) Westbrook also brought Pinto to the meeting as a representative of Dzen. (Jeff Westbrook testimony, September 22, 2005, p. 38.)

Prior to negotiation of the agreement, Centimark's representatives knew that Dzen would not be performing the work on the shingled portion of the roof but would be subcontracting out the work to another contractor. Rzempoluch admitted that prior to executing the subcontract agreement between Centimark and Dzen, he knew that Dzen would subcontract out the work. (Michael Rzempoluch testimony, September 7, 2005, p. 39.) Rzempoluch also admitted that he did not tell Rodowicz or any other representative of VMA that Dzen would be subcontracting out the work. (Michael Rzempoluch testimony, September 7, 2005, p. 49.)

Rodowicz reasonably relied on the representations of Rzempoluch and Westbrook that Dzen, a GAF master elite contractor, would be performing all of the work on the shingled portion of the roof. Rodowicz testified that he ultimately decided to go with Centimark because of Dzen's status as a GAF master elite contractor. (Carter Rodowicz testimony, September 22, 2005, p. 68.) He also testified that Centimark's representatives told him that Dzen was in "the top two percent [of shingle applicators] in the nation" and, therefore, he thought that "the other contractors . . . didn't have the credentials that Centimark had . . ." (Carter Rodowicz testimony, September 22, 2005, p. 69.) Last, this court also finds that VMA suffered damages as a result of Rzempoluch and Westbrook's representations about Dzen's status. The court awards VMA the same damages for its negligent misrepresentation claim as awarded for its breach of contract claim.

E. Fraudulent Misrepresentation

VMA's fifth count in its counterclaim is for fraudulent misrepresentation. VMA alleges the following in its counterclaim. VMA and Centimark entered into an agreement in which Centimark agreed to replace the existing roof on VMA's facility. The agreement provided that all work on the roof would be performed by Centimark and Dzen. Pursuant to the agreement, Dzen, a GAF master elite contractor, "who stand out as being one of the top 2% of all shingle applicators in the country," would perform all of the work on the shingled portion of the roof. As an inducement to enter into the agreement, Centimark represented to VMA that Dzen would be performing all of the work on the shingled portion of the roof. VMA relied on this representation and entered into an agreement with Centimark to replace the existing roof. Dzen did not perform the work on the shingled portion of the roof. Centimark's representation was "made knowingly with the intention of inducing [VMA] to enter into a contract and those representations were false and known to be false by Centimark when made." VMA relied on these representations to its detriment. VMA is injured and has sustained damages from Centimark's fraudulent misrepresentation.

VMA argues that Centimark misrepresented that Dzen would perform the work on the shingled portion of the roof. VMA argues that it justifiably relied on this misrepresentation, which Centimark knew was false, and consequently, sustained injuries and damages. Specifically, VMA points to the fact that Centimark's representatives, Rzempoluch and Westbrook, knew, prior to negotiations, that Dzen would subcontract out the work to another roofer. In response, Centimark argues that VMA should have known that Dzen might subcontract the work to roofers who were not master elite contractors because this is standard practice in the industry.

"The party claiming fraud . . . has the burden of proof . . . Whether that burden has been met is a question of fact that will not be overturned unless it is clearly erroneous . . ." (Internal quotation marks omitted.) Duplissie v. Devino, 96 Conn.App. 673, 680-81, 902 A.2d 30, cert. denied, 280 Conn. 916, 908 A.2d 536 (2006). "Under the common law . . . it is well settled that the essential elements of fraud are: (1) a false representation was made as a statement of fact; (2) it was untrue and known to be untrue by the party making it; (3) it was made to induce the other party to act upon it; and (4) the other party did so act upon that false representation to his injury . . . All of these ingredients must be found to exist . . . Additionally, [t]he party asserting such a cause of action must prove the existence of the first three of [the] elements by a standard higher than the usual fair preponderance of the evidence, which . . . [the Appellate Court has] described as clear and satisfactory or clear, precise and unequivocal . . ." (Internal quotation marks omitted.) Id., 681.

VMA relies on the same facts for its fraudulent misrepresentation claim as its negligent misrepresentation claim. Specifically, both Rzempoluch and Westbrook made a false representation to VMA that Dzen would be performing all of the work on the shingled portion of the roof. These representations were made both orally and in writing. Prior to negotiation of the agreement, Centimark's representative knew these statements to be untrue. Rzempoluch admitted that prior to executing the subcontract agreement between Centimark and Dzen, he knew that Dzen would subcontract out the work. (Michael Rzempoluch testimony, September 7, 2005, p. 39.) Rzempoluch also admitted that he did not tell Rodowicz or any other representative of VMA that Dzen would be subcontracting out the work. (Michael Rzempoluch testimony, September 7, 2005, p. 49.)

These statements were made to induce Rodowicz to enter into a contract with Centimark. Rzempoluch admitted during his testimony that Dzen's master elite status is a saleable point for Centimark in obtaining work. (Michael Rzempoluch testimony, September 7, 2005, p. 38.) Rodowicz testified that Centimark's representatives told him that Dzen was in "the top two percent in the nation" of shingle applicators and, therefore, he believed that "the other contractors . . . didn't have the credentials that Centimark had." (Carter Rodowicz testimony, September 22, 2005, p. 69.) He also testified that he ultimately decided to go with Centimark because of Dzen's status as a GAF master elite contractor. (Carter Rodowicz testimony, September 22, 2005, p. 68.) Last, VMA suffered damages as a result of Centimark's representations.

As further evidence of this misconduct, BHR's crew wore T-shirts bearing Dzen's name. (Tom Thompson testimony, September 22, 2005, pp. 4-5.) Additionally, Thompson attached a large magnetic sign to his truck which "said M. Dzen Roofing Company on it" when he was working on VMA's roof. (Tom Thompson testimony, September 9, 2005, pp. 199-200; September 22, 2005, pp. 4-5.) He admitted that he did this so that "[customers] would think that Dzen [r]oofing was doing the job . . ." (Tom Thompson testimony, September 22, 2005, pp. 4-5.)

This court finds that VMA has sufficiently met its heightened burden of proving that Centimark's representatives fraudulently misrepresented to Rodowicz that Dzen would be performing the work on the shingled portion of the roof. Accordingly, the court awards VMA the same damages for its fraudulent misrepresentation claim as its breach of contract claim.

F. CUTPA

VMA's sixth count of its counterclaim is for a violation of CUTPA. VMA incorporates the allegations in its cause of action for negligent misrepresentation and breach of contract into its cause of action under CUTPA. It also alleges the following facts. This conduct constitutes an unfair or deceptive act in violation of General Statutes § 42-110b. As a result, VMA has "suffered an ascertainable loss of money."

First, VMA argues that Centimark's misrepresentation, that Dzen would perform the work on the shingled portion of the roof, constitutes a deceptive act under CUTPA. Second, VMA argues hat Centimark engaged in unfair acts or practices in violation of CUTPA by breaching the contract between the parties and committing other "substantial aggravating circumstances attending the breach." Specifically, VMA argues that Centimark's failure to obtain a building permit, its failure to correct the defective work, negligently performing the work and performing the work in an unworkmanlike manner establish "unfair acts or practices" in violation of CUTPA.

In response to VMA's claim of deception, Centimark argues that VMA failed to establish that Centimark misrepresented the fact that Dzen would be performing all of the work on the shingled portion of the roof. Centimark argues that it is common practice in the roofing industry to subcontract out work and Rodowicz, who has experience as a contractor, should have negotiated a clause in the agreement which would limit Centimark and Dzen's right to subcontract. Therefore, "the fact that Dzen hired a crew to work under its supervision does not give rise to a CUTPA claim merely because the crew [were] not GAF master elite contractors."

In response to VMA's claim of unfair acts or practices in violation of CUTPA, Centimark argues that a breach of contract does not amount to a CUTPA violation without "substantial aggravating circumstances." Moreover, it argues that its failure to obtain a building permit is not a CUTPA violation because, although it did not obtain a permit prior to commencing work, a permit was ultimately obtained. Therefore, Centimark argues that its failure to initially obtain a permit is now moot. In the alternative, Centimark argues that if the court finds that its failure to obtain a building permit is a breach of contract, a simple breach of contract is not a CUTPA violation without "substantial aggravating circumstances . . ." Additionally, Centimark argues that if the court finds that Centimark's failure to obtain the permit is a CUTPA violation, VMA failed to establish that its losses were proximately caused by Centimark's CUTPA violation.

"[The Supreme Court's] jurisprudence regarding CUTPA is well settled. It is remedial in character . . . and must be liberally construed in favor of those whom the legislature intended to benefit." (Internal quotation marks omitted.) Eder Bros, Inc. v. Wine Merchants of Connecticut, Inc., 275 Conn. 363, 379, 880 A.2d 138 (2005). General Statutes § 42-110b(a) provides: "No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." "In determining whether a practice violates CUTPA, we are guided by the criteria set out in the Federal Trade Commission's so-called cigarette rule: (1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise — in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers, [competitors or other businesspersons] . . . All three criteria do not need to be satisfied to support a finding of unfairness . . . A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three." (Citation omitted; internal quotation marks omitted.) Scrivani v. Vallombroso, 99 Conn.App. 645, 648-49, 916 A.2d 827, cert. denied, 282 Conn. 904 (2007).

"Thus a violation of CUTPA may be established by showing either an actual deceptive practice . . . or a practice amounting to a violation of public policy." (Internal quotation marks omitted.) Glazer v. Dress Barn, Inc., 274 Conn. 33, 82-83, 873 A.2d 929 (2005). "Whether a practice is unfair and thus violates CUTPA is an issue of fact . . . The facts found must be viewed within the context of the totality of circumstances which are uniquely available to the trial court." Scrivani v. Vallombroso, supra, 99 Conn.App 650. The court will address each of VMA's arguments in turn.

i. Deceptive act

"An act or practice is deceptive if three conditions are met. First, there must be a representation, omission, or other practice likely to mislead consumers. Second, the consumers must interpret the message reasonably under the circumstances. Third, the misleading representation, omission, or practice must be material — that is, likely to affect consumer decisions or conduct." (Internal quotation marks omitted.) Smithfield Associates, LLC v. Tolland Bank, 86 Conn.App. 14, 28, 860 A.2d 738 (2004), cert. denied, 273 Conn. 907, 867 A.2d 839 (2007). "Furthermore, a party need not prove an intent to deceive to prevail under CUTPA." (Internal quotation marks omitted.) Journal Publishing Co. v. Hartford Courant Co., 261 Conn. 673, 696, 804 A.2d 823 (2002).

"[A] failure to disclose can be deceptive only if, in light of all the circumstances, there is a duty to disclose . . . Regarding the duty to disclose, the general rule is that . . . silence . . . cannot give rise to an action . . . to set aside the transaction as fraudulent. Certainly this is true as to all facts which are open to discovery upon reasonable inquiry . . . A duty to disclose will be imposed, however, on a party insofar as he voluntarily makes disclosure. A party who assumes to speak must make a full and fair disclosure as to the matters about which he assumes to speak." (Citations omitted; internal quotation marks omitted.) Macomber v. Travelers Property Casualty Corp., 277 Conn. 617, 622, 894 A.2d 240 (2006).

In the present case, Centimark made representations on numerous occasions that Dzen would be performing the work on the shingled portion of the roof. Centimark's first proposal, which was prepared by Rzempoluch, stated: "All items listed in the scope of work will be completed by Centimark Corporation and by M. Dzen Roofing Company . . . M. Dzen Roofing Company is one of GAF's master elite contractors who stand out as being one of the top 2% of all shingle applicators in the country." (Exh. 1, p. 7.) When Westbrook met with Rodowicz one year later, he also made representations that Dzen would be doing the work on the shingled portion of the roof. (Jeff Westbrook testimony, September 22, 2005, p. 45.) In fact, Westbrook brought Pinto, as a representative of Dzen, to the meeting with Rodowicz in which the parties negotiated the contract. Moreover, Rzempoluch admitted during his testimony that Dzen's master elite status is a saleable point for Centimark in obtaining work. (Michael Rzempoluch testimony, September 7, 2005, p. 38.) The court finds that Centimark voluntarily disclosed the fact that Dzen would be performing the work on the shingled portion of the roof. Therefore, a duty to disclose the fact that Dzen would actually not be performing the work but would be subcontracting out the work to a non-master elite contract was imposed upon Centimark, based on its voluntary disclosure to the contrary.

Additionally, the court finds that it was reasonable for VMA to interpret Centimark's representations regarding Dzen to mean that Dzen, a master elite contractor, would be performing all of the work on the shingled portion of the roof. "The words in an agreement must be given their ordinary and plain meaning." Montoya v. Montoya, 91 Conn.App. 407, 416, 881 A.2d 319 (2005), rev'd on other grounds, 280 Conn. 605, 909 A.2d 947 (2006). The contract stated that "[a]ll items listed in the scope of work will be completed by Centimark Corporation and by M. Dzen Roofing Company." (Exh. 1, p. 7.) This means precisely that Dzen and Centimark would be performing all of the work on the roof.

The court also finds that this representation was material or likely to affect VMA's decisions or conduct regarding the roof. Slotnick contacted several roofing companies seeking bids, including local contractors. In fact, Centimark convinced Rodowicz that Dzen's status was "an important factor" to consider. (Carter Rodowicz testimony, September 22, 2005, p. 69.) Rodowicz testified that he ultimately decided to accept Centimark's bid because of Dzen's elite status. For the foregoing reasons, the court finds that VMA has met its burden of proving a deceptive act or practice, pursuant to § 42-110b.

ii. Unfair acts or practices

"[T]he same facts that establish a breach of contract claim may be sufficient to establish a CUTPA violation." Lester v. Resort Camplands International, Inc., 27 Conn.App. 59, 71, 605 A.2d 550 (1992). "Although there is a split of authority [among the decisions of the Superior Court] regarding what is necessary to establish a CUTPA claim for breach of contract, the vast majority of Superior Court decisions [conclude] that, absent allegations of sufficient aggravating circumstances, [a] simple breach of contract, even if intentional, does not amount to a violation of [CUTPA] . . . When the [Superior Court has] permitted a CUTPA cause of action based on a breach of contract, there generally has been some type of fraudulent behavior accompanying the breach or aggravating circumstances." United Steel, Inc. v. Haynes Construction Co., Superior Court, judicial district of Middletown, Docket No. CV 05 4003365 (September 12, 2006, Dubay, J.)

"It has been held that a `misrepresentation' can constitute an aggravating circumstance that would allow a simple breach of contract claim to be treated as a CUTPA violation; it would in effect be a deceptive act . . . CUTPA liability should not be imposed, however, when a defendant merely has not delivered on a promise unless the defendant made a representation as to a future act coupled with a present intent not to fulfill the promise." Wright Brothers Builders, Inc. v. Shuldman, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. FST CV 05 4005897 (October 31, 2006, Jennings, J.) ( 42 Conn. L. Rptr. 252, 254).

The court agrees with the majority of Superior Court cases, that a simple breach of contract does not amount to a CUTPA violation; there must be fraudulent behavior or aggravating circumstances. "Negligent misrepresentation can form the basis of a CUTPA claim . . . [Even an] innocent misrepresentation can amount to a CUTPA violation." Friedlander Limited Partnership v. Cohen, Superior Court, judicial district of Bridgeport, Docket No. CV 04 0412571 (April 15, 2005, Skolnick, J.). "Where . . . a defendant made a misrepresentation during the course of the defendant's business practice, with or without the intent to deceive or fraud, and that misrepresentation led a plaintiff to lose money or property, that plaintiff has alleged a cause of action under CUTPA . . . Negligent misrepresentation suffices as a basis for a CUTPA claim and as an aggravating factor making a breach of contract action also the basis of a CUTPA claim." Id.

As stated previously, Centimark's representatives made statements to VMA on several occasions that Dzen would be performing all of the work on the shingled portion of the roof while Centimark's representatives knew, prior to negotiating the agreement, that Dzen would actually be subcontracting out the work. Rzempoluch admitted that prior to executing the subcontract agreement between Centimark and Dzen, he knew that Dzen would subcontract out the work. (Michael Rzempoluch testimony, September 7, 2005, p. 39.) During his testimony, Rzempoluch stated: "It is my understanding from talking with [Dzen] and meeting with them over the years that they had crews that they would hire on and contract to that were foremen for them that worked generally exclusively for them, and those — that Dzen would buy the materials and then these crews would apply the shingles on the building . . ." (Michael Rzempoluch testimony, September 7, 2005, p. 24.)

Yet, Rzempoluch also admitted that he did not tell Rodowicz or any other representative of VMA that Dzen would be subcontracting out the work to another contractor. (Michael Rzempoluch testimony, September 7, 2005, p. 49.) "CUTPA liability should . . . be imposed . . . when a defendant . . . made a representation as to a future act coupled with a present intent not to fulfill the promise." Wright Brothers Builders, Inc. v. Shuldman, supra, 42 Conn. L. Rptr. 254. Accordingly, the court finds that VMA has met its burden, by a preponderance of the evidence, that Centimark made a misrepresentation to VMA that Dzen would be performing the work on the shingled portion of the roof when Centimark's representatives had a present intent that this representation would not be fulfilled by Dzen, but by a non-master elite contractor.⁵⁰

50 During his testimony, Thompson admitted that he was not a master elite contractor. (Tom Thompson testimony, September 9, 2005, p. 160.) He also admitted that none of the individuals on his crew were master elite contractors. (Tom Thompson testimony, September 9, 2005, p. 185.)

Additionally, Centimark committed other actions that the court finds to be "aggravating circumstances." First, Centimark failed to obtain a building permit prior to commencing work on the roof. During his testimony, Rzempoluch explained that it was Centimark's responsibility to obtain the permit. (Michael Rzempoluch testimony, September 7, 2005, p. 49.) In fact, Crosse admitted during his testimony that the contract price included the cost of obtaining a permit. (Darren Crosse testimony, September 8, 2005, p. 6.) Nonetheless, Centimark did not apply for a building permit until December 19, 2003, over a year after work was completed on the roof and, additionally, over a year after this action was commenced.

Second, although Rodowicz addressed his concerns regarding deficiencies with the workmanship of the roof even before work was completed; (Carter Rodowicz testimony, September 22, 2005, pp. 86-87.); Centimark ultimately refused to correct these deficiencies. (Randy Craig testimony, September 9, 2005, p. 39.) While Centimark argues that it refused to correct these deficiencies because VMA failed to pay Centimark any portion of the contract price, VMA argues that it did not pay Centimark because it was not satisfied with the workmanship of the roof.

Since Rodowicz expressed his concerns with the roof to Westbrook before work was even completed, Centimark had ample opportunities to correct these deficiencies. In fact, both experts agreed that the vast majority of Rodowicz' complaints were valid. Additionally, Rodowicz had notified Centimark, in a letter dated December 1, 2002, that VMA would not pay any portion of the contract price because it could cost more than the entire contract price to have these deficiencies corrected. (Exh. 22.) Not only did Rodowicz express his concerns regarding the workmanship of the roof to Centimark on numerous occasions from early September through December 2002, he also explained his reason for refusing to pay any of the contract price. Centimark still refused, however, to correct the roof's deficiencies in a meaningful manner.⁵¹ Therefore, examining the totality of the circumstances, the court finds that VMA has sufficiently proven "aggravating circumstances," which are required for a breach of contract claim to also be a valid claim under CUTPA.

51 Centimark initially made efforts to correct the deficiencies with the roof. On September 27, 2002, after Rodowicz notified Centimark of a leak on the roof, Centimark sent a crew to temporarily repair the leak by putting "tar around the four-by-fours that the AC units [sat] on." (Barry Slotnick testimony, September 9, 2002, p. 134.) Centimark, however, did not respond to Rodowicz' letter dated October 19, 2002, notifying Centimark of a second leak at VMA. (Exh. 19.)

iii. Damages

As stated previously, in its prayer for relief, VMA seeks money damages; attorneys fees; actual damages, punitive damages and attorneys fees, pursuant to General Statutes § 42-110g(a); recission of the agreement;⁵² costs; interest; and "such other relief as the [c]ourt deems just and proper [under] law and equity." Specifically, in terms of its CUTPA claim, VMA seeks a new roof at the replacement cost of $139,670; $14,184 in VMHC's lost room rates due to the leaks on the roof; its attorneys fees; its expert's fees; other costs in bringing this suit; and double or treble its actual damages as punitive damages. In sum, VMA is seeking $153,854 and punitive damages. (VMA's brief, pp. 56-57.)

52 VMA withdrew its prayer for relief for recission of the agreement in court on February 28, 2006. (Attorney Fulco, February 28, 2006, p. 61.)

General Statutes § 42-110g(a) provides in relevant part: "Any person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42-110b, may bring an action in the judicial district in which the plaintiff or defendant resides or has his principal place of business or is doing business, to recover actual damages." "Our courts have interpreted § 42-110g(a) to allow recovery only when the party seeking to recover damages meets the following two requirements: First, he must establish that the conduct at issue constitutes an unfair or deceptive trade practice . . . Second, he must present evidence providing the court with a basis for a reasonable estimate of the damages suffered . . . Thus, in order to prevail in a CUTPA action, a plaintiff must establish both that the defendant has engaged in a prohibited act and that, `as a result of' this act, the plaintiff suffered an injury . . . The language `as a result of' requires a showing that the prohibited act was the proximate cause of a harm to the plaintiff." (Citations omitted; internal quotation marks omitted.) Scrivani v. Vallombroso, supra, 99 Conn.App. 651. "With regard to the requisite causal element, it is axiomatic that proximate cause is [a]n actual cause that is a substantial factor in the resulting harm . . . The question to be asked in ascertaining whether proximate cause exists is whether the harm which occurred was of the same general nature as the foreseeable risk created by the defendant's act." (Citations omitted; internal quotation marks omitted.) Abrahams v. Young Rubicam, Inc., 240 Conn. 300, 306, 692 A.2d 709 (1997).

In the present case, the proximate cause of VMA's losses was Centimark's negligent and fraudulent misrepresentations that Dzen would be performing all of the work on the shingled portion of the roof and its numerous breaches of contract, as previously discussed. Therefore, the court finds that VMA has met its burden of proving that as a result of Centimark's actions, VMA has suffered injuries. See Scrivani v. Vallombroso, supra, 99 Conn.App. 651. Next, the court will address each prayer for relief in turn.

First, VMA seeks a new roof at the replacement cost of $139,670 and further damages of $14,184. These damages have already been addressed by the court in VMA's cause of action for breach of contract and therefore, will not be addressed in relation to its CUTPA cause of action. Second, VMA seeks its attorneys fees in defending Centimark's foreclosure action and bringing its counterclaim. Last, VMA seeks punitive damages in the amount of double or treble its actual damages.

General Statutes § 42-110g(d) provides in relevant part: "In any action brought by a person under this section, the court may award, to the plaintiff, in addition to the relief provided in this section, costs and reasonable attorneys fees based on the work reasonably performed by an attorney and not on the amount of recovery." Our Appellate Court has stated: "An award of attorneys fees is not a matter of right. Whether any award is to be made and the amount thereof lie within the discretion of the trial court . . ." (Internal quotation marks omitted.) Heller v. D.W. Fish Realty Co., 93 Conn.App. 727, 734, 890 A.2d 113 (2006). In Heller, the plaintiffs brought an action against their real estate agency and their agent for breach of contract, negligence and a CUTPA violation. In that case, the plaintiffs could not distinguish the amount of attorneys fees for their CUTPA cause of action as compared to the plaintiff's other causes of action and, therefore, the trial court denied their motion for attorneys fees, pursuant to § 42-110g(d). Our Appellate Court reversed the trial court's denial of the plaintiffs' motion, explaining that "the plaintiffs' breach of contract and negligence claims were related to their CUTPA claim because they depended on the same facts . . . [Section] 42-110g(d) encompasses claims related to the prosecution of a CUTPA claim . . . not only one claim explicitly labeled as a CUTPA claim. The court therefore should not have ordered the plaintiffs to submit evidence apportioning their attorneys fees among their claims." (Citation omitted; internal quotation marks omitted.) Id., 735-36.

Similarly, in the present case, VMA's other claims depend upon the same facts as its CUTPA claim. Therefore, this court will consider VMA's attorneys fees as a whole. VMA and Centimark both submitted affidavits of attorneys fees. On June 7, 2006, Dominic Fulco, representing VMA, submitted an affidavit of attorneys fees in the amount of $133,276.82,⁵³ and Martin Clayman, representing Centimark, submitted an affidavit of attorneys fees in the amount of $107,617.34. This court must determine whether these fees are reasonable.

53 Fulco's affidavit includes his fees at Reid and Riege, P.C. for $132,476.60 and attorneys fees for Goldstein Isaacson, P.C. for $800.22, required for a deposition in New Jersey.

Factors to consider in determining whether attorneys fees are reasonable, as set forth by our Appellate Court, include: "(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee for similar work in the community; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation and ability of the attorneys; (10) the `undesirability' of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases." (Internal quotation marks omitted.) Riggio v. Orkin Exterminating Co., 58 Conn.App. 309, 318 n. 3, 753 A.2d 423, cert. denied, 254 Conn. 917, 759 A.2d 507 (2000). The court is not required to "consider each of the twelve factors individually, but instead [is] required to consider the full panoply of factors and not base its decision solely on one of the elements." Id.

The court has examined VMA's attorneys fees and finds that they are reasonable. This is a very complex case spanning over three years. The case was tried in front of the court over six days with testimony from fourteen witnesses. Over 100 exhibits were submitted at trial. VMA also submitted an extensive post-trial brief of over sixty pages and a reply brief of over thirty pages. The parties also attended a mediation and several pretrials in hopes of settling this case. "[T]he public policy underlying CUTPA is to encourage litigants to act as private attorneys general and to engage in bringing actions that have as their basis unfair or deceptive trade practices . . . In order to encourage attorneys to accept and litigate CUTPA cases, the legislature has provided for the award of attorneys fees and costs . . . Once liability has been established under CUTPA, attorneys fees and costs may be awarded at the discretion of the court." (Internal quotation marks omitted. Gebbie v. Cadle Co., 49 Conn.App. 265, 279-80, 714 A.2d 678 (1998). Accordingly, the court awards VMA $133,276.82 in attorneys fees and costs in bringing this action.⁵⁴

54 VMA is also requesting expert's fees in the amount of $23,605.74. In Miller v. Guimaraes, 78 Conn.App. 760, 783, 829 A.2d 422 (2003), our Appellate Court explained that General Statutes § 52-260 "sets forth the court's authority to award expert witness fees in civil litigation. Within the statute, there is an enumeration of the categories of experts entitled to a discretionary award of expert witness fees." This statute does not provide expert witness fees for roofing consulting firms. Similar to Judge Gordon's opinion in Duerr v. Dicesare, Superior Court, judicial district of New London, Docket No. CV ___ 566915 (October 1, 2004, Gordon, J.) ( 37 Conn. L. Rptr. 909), this court does not agree with our Appellate Court's decision in Miller, as expert's fees are one of the costs in bringing a CUTPA claim. The court, however, is "bound to follow the rule set forth therein, until a higher court chooses to revisit the issue." Id., 910. Accordingly, the court will not award VMA's expert fees.

Last, the court will address VMA's claim for punitive damages. VMA argues that it is entitled to punitive damages in the amount of double or treble its actual damages because Centimark "acted intentionally and in wanton violation of [VMA's] rights." (VMA brief, p. 57.) Specifically, VMA argues that Centimark made misrepresentations that Dzen would be performing the work on the shingled portion of the roof when its representatives knew that Dzen actually would not be performing the work. VMA also points out that Centimark stated in its boilerplate contract that Dzen, a master elite contractor, will be performing the shingled roofing work, therefore, Centimark's misrepresentations extend to other sales. Additionally, VMA argues that Dzen provided T-shirts and magnetic signs for BHR's trucks to make customers think that Dzen was performing the work, when "in reality it was not." (VMA's brief, p. 58.) Centimark does not specifically address VMA's arguments regarding punitive damages.

Section 42-110g(a) provides for the award of punitive damages, once the court finds a CUTPA violation. It provides in relevant part: "The court may, in its discretion, award punitive damages and may provide such equitable relief as it deems necessary or proper." "Once a violation of CUTPA has been established, evidence that the defendant has acted with reckless indifference to the rights of the plaintiff or has committed an intentional and wanton violation of those rights is a necessary prerequisite to the award of punitive damages . . . Such an award, however, is discretionary, and the exercise of such discretion will not ordinarily be interfered with on appeal unless the abuse is manifest or injustice appears to have been done . . ." (Internal quotation marks omitted.) Whitaker v. Taylor, 99 Conn.App. 719, 733, 916 A.2d 834 (2007).

Although the court finds that Centimark's conduct constitutes a CUTPA violation, it does not rise to the level of "reckless indifference to the rights of [VMA]" or "an intentional and wanton violation of [VMA's] rights." The facts that VMA relies upon in seeking punitive damages, the same facts that the court found for VMA on both its negligent misrepresentation claim and its fraudulent misrepresentation claim, do not warrant the award of punitive damages, which is within the discretion of the court. Accordingly, the court does not award VMA punitive damages.

V. CENTIMARK'S THIRD-PARTY COMPLAINT A. Breach of Contract

Centimark's first count in its third-party complaint is for breach of contract. Centimark alleges the following facts in its third-party complaint. Centimark filed an action against VMA seeking a foreclosure on its mechanic's lien on April 7, 2003. On July 3, 2003, VMA filed a counterclaim against Centimark, alleging breach of contract, negligence, breach of warranty, negligent misrepresentation, fraudulent misrepresentation and a violation of CUTPA. Centimark and Dzen entered into a subcontract agreement in which Dzen had agreed to install the shingled portion of the roof at VMA. Pursuant to the agreement, "Dzen agreed to indemnify, defend and hold harmless Centimark and [VMA] from and against all claims, damages, losses, liabilities and expenses (whether under a theory of negligence, strict liability, contract or otherwise) including attorneys fees, arising out of or resulting from (i) the performance of work undertaken to be performed directly or indirectly by Dzen, (ii) any breach of the [s]ubcontractor [a]greement by Dzen [and] (iii) any violation of federal, state or local laws, codes or regulations."

Centimark also alleges that the subcontract agreement provided that Dzen would perform all of the work under the agreement and would not assign any of the work to another contractor without Centimark's approval. The agreement also provided that Dzen would warrant that the work would be free from defects and would conform to the requirements of GAF's golden pledge warranty and the subcontract agreement. Centimark further alleges that if the court finds that Centimark breached its contract with VMA, Dzen's breach of the subcontract agreement was the direct and proximate cause of Centimark's breach. Last, Centimark alleges that it is entitled to indemnification from Dzen.

In its brief, Centimark argues that to the extent that the court finds that Centimark is in breach of its contract with VMA, Dzen must indemnify Centimark pursuant to the subcontract agreement. In response, Dzen argues that it was always "ready, willing and able to continue its performance"; however, Centimark's representatives made it clear that they did not want Dzen to correct any defects on the shingled portion of the roof until VMA paid Centimark at least fifty percent of the contract price. Therefore, Dzen argues that it was unable to perform under the agreement because Centimark prevented Dzen's performance.

"[W]here a party stipulates that another shall do a certain thing, he thereby impliedly promises that he will himself do nothing which will hinder or obstruct that other in doing that thing . . ." (Internal quotation marks omitted.) Godburn v. Meserve, 130 Conn. 723, 726, 37 A.2d 235 (1944). "Even in the absence of an express covenant, there is an implied one that the contractor shall be permitted to proceed with his construction in accordance with the contract and that he shall be given possession of the premises to enable him to do so . . . A delay caused by the owner may constitute a breach excusing performance as required by the contract." (Citations omitted; internal quotation marks omitted.) Hartford Electric Applicators of Thermalux, Inc. v. Alden, 169 Conn. 177, 182-83, 363 A.2d 135 (1975).

In the present case, Centimark hired Dzen to install the shingled portion of the roof on VMA's facility, pursuant to the subcontract agreement. (Exh. 8.) The subcontract agreement provided that "[t]he [s]ubcontractor warrants to the [o]wner and [c]ontractor that the . . . [w]ork of this [a]greement will be free from defects and that the [w]ork will conform to this [a]greement . . . Subcontractor agrees to be responsible for its workmanship and installation of the materials associated with the [w]ork for the first five (5) years of coverage, pursuant to the terms of the GAF . . . warranty." Dzen provided the materials and subcontracted out the labor to BHR, who installed the roof.

After installation, Rodowicz complained about multiple defects. At all times, Dzen was ready and willing to correct these defects; however, Dzen's representative, Pinto, was told by Centimark's representative, Craig, that Dzen should not repair any defects to the roof. Specifically, Pinto testified that Craig told him not to repair any of the defects with the roof until after Centimark received the down payment amount from VMA. He testified: "Randy Craig asked us to go back and fix the [r]idge [v]ent. And then after that, you know, with some other issues, you know, supposed leaks or whatnot, it was brought to my attention by Mr. Craig, but we were told not to do anything about it." (Dean Pinto testimony, September 8, 2005, p. 48.)

Additionally, Centimark's representatives testified that they were satisfied with the installation of the shingled portion of the roof. When asked if he had any issues with Dzen's performance under the subcontract agreement, Darren Crosse testified that he did not. (Darren Crosse testimony, September 7, 2005, p. 139.) Craig testified that his general experience with Dzen was always "phenomenal, top rate." (Randy Craig testimony, September 9, 2005, p. 67.) Craig also specifically testified that he was satisfied with Dzen's performance in the installation of the shingled portion of the roof at VMA's facility. (Randy Craig testimony, September 9, 2005, p. 72.) When asked if Pinto did everything that Craig asked him to do, he answered: "Yes. And we went out there afterwards and, you know, we walked the roof after it was done and, you know, looked at it and then in regards to the [ridge vent] there and he fixed those too." (Randy Craig testimony, September 9, 2005, p. 72.) In fact, Dzen sent Centimark an invoice dated August 7, 2002 for $38,992, which was paid in full by Centimark after completion of the job. (Exh. 75; Dean Pinto testimony, September 8, 2005, p. 21.)

The court finds that Dzen was excused from correcting the defects of the roof because Centimark told Dzen not to correct these defects until VMA paid Centimark fifty percent of the contract price. Therefore, Centimark prevented Dzen from performing under the subcontract agreement in correcting these defects. "[W]here a party stipulates that another shall do a certain thing, he thereby impliedly promises that he will himself do nothing which will hinder or obstruct that other in doing that thing." (Internal quotation marks omitted.) Godburn v. Meserve, supra, 130 Conn. 726. Accordingly, the court finds that Centimark has not met its burden of proving that Dzen breached the subcontract agreement. Because the court finds in Dzen's favor with regards to Centimark's breach of contract claim, the court will not address Dzen's special defense of payment nor will the court address Centimark's claim for indemnification.

B. Negligence

Centimark's second count in its third-party complaint is for negligence. Centimark incorporates the allegations from its first count into its second count. It also alleges that if the court finds that the work performed on the shingled portion of the roof was done in a negligent manner, it was Dzen's negligence that was the "direct and immediate cause of the damages allegedly sustained by [VMA]." Centimark further alleges that it did not know of Dzen's negligence, could not anticipate it and could reasonably rely that Dzen would not be negligent in the installation of the shingled portion of the roof. Last, Centimark alleges that it is entitled to indemnification from Dzen.

In its brief, Centimark argues that if the court finds that Centimark was negligent to VMA in relation to the shingled portion of the roof, Dzen is responsible for indemnifying Centimark, pursuant to the subcontract agreement. Dzen does not specifically address Centimark's argument regarding Centimark's cause of action for negligence. In the present case, both experts admitted that the roof was defective and is in need of repairs. In fact, Dzen admits this in its brief. (Dzen brief, p. 57.) During his testimony, Darling, Dzen's expert, described the deficiencies that he observed during his inspection: "overdriven nails, underdriven nails, less than six nails in a shingle, close-cut valleys, was not sealed down, it wasn't a GAF style . . . [and] some of the units didn't have the shingles sealed to the . . . metal flashing." (Bruce Darling testimony, February 28, 2006, p. 74.) The court finds Darling's testimony to be fully credible regarding the defects he observed in the shingled portion of the roof. Therefore, the court finds that Dzen was negligent with regard to the installation of the shingled portion of the roof.

"The logic and rationale underlying our indemnity case law are based on the premise that an action for indemnification is one in which one party seeks reimbursement from another party for losses incurred in connection with the first party's liability to a third party . . . Specifically, the concept of indemnity usually involves an indenmitor, A, and an indemnitee, B, who enter into a contract whereby A agrees to indemnify B for any money B becomes legally obligated to pay to a third party." Amoco Oil Co. v. Liberty Auto Electric Co., 262 Conn. 142, 148-49, 810 A.2d 259 (2002).

The court must first determine whether General Statutes § 52-572k, entitled, "Hold harmless clause against public policy in certain construction contracts," precludes enforcement of the indemnification clause in the subcontract agreement. Section 52-572k(a) provides: "Any covenant, promise, agreement or understanding entered into in connection with or collateral to a contract or agreement relative to the construction, alteration, repair or maintenance of any building, structure or appurtenances thereto including moving, demolition and excavating connected therewith, that purports to indemnify or hold harmless the promisee against liability for damage arising out of bodily injury to persons or damage to property caused by or resulting from the negligence of such promisee, such promisee's agents or employees, is against public policy and void, provided this section shall not affect the validity of any insurance contract, workers' compensation agreement or other agreement issued by a licensed insurer."

In the present case, the indemnification clause in the subcontract agreement provided: "To the fullest extent permitted by [law], [s]ubcontractor agrees to indemnify, defend and hold harmless the [c]ontractor and [o]wner from and against all claims, damages, losses, liabilities and expenses, (whether under a theory of negligence, strict liability, contract or otherwise) including attorneys fees, arising out of or resulting from (i) the performance of the [w]ork undertaken to be performed directly or indirectly by [s]ubcontractor hereunder, (ii) any breach of this agreement by [s]ubcontractor, (iii) any violation of federal or local laws, codes, or regulations, or (iv) the infringement of any copyright, patent, trademark, trade secret or other intellectual property rights of any third party. The [s]ubcontractor's obligation under this paragraph shall extend beyond termination of this [a]greement."

In interpreting the indemnification clause, the court finds that it does not violate § 52-572k because it limited to indemnifying Centimark for Dzen's conduct in relation to any third-party claims against Centimark, in this case, VMA's claims for negligence. Therefore, the court must examine the intent of the parties in drafting the indemnification clause to determine whether VMA's claim for negligence against Centimark and Dzen's negligent conduct require Dzen to indemnify Centimark.

"The intent of the parties as expressed in a contract is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction . . . [T]he intent of the parties is to be ascertained by a fair and reasonable construction of the written words and . . . the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract . . . Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity . . . Similarly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party's subjective perception of the terms." (Internal quotation marks omitted.) Connecticut Light Power Co. v. Lighthouse Landings, supra, 279 Conn. 109-10.

The court finds that the indemnification clause applies to these facts. The indemnification clause provided that Dzen agreed to indemnify Centimark for any injuries to a third party arising from Dzen's negligent conduct. Centimark seeks indemnification from Dzen for any judgment entered in relation to deficiencies in the shingled portion of the roof. The court awards Centimark $38,992, the contract price Centimark paid Dzen under the subcontract agreement between the parties. The court finds this amount to represent Dzen's negligent misconduct in relation to the installation of the shingled portion of the roof.

C. CUTPA

Centimark's third count in its third-party complaint is for a violation of CUTPA. Centimark incorporates the allegations in its breach of contract claim and alleges the following. Dzen's conduct constituted an unfair or deceptive act in violation of CUTPA. As a result, Centimark suffered damages.

Although Centimark makes this allegation in its third-party complaint, it does not subsequently make this argument in its brief or reply brief. "[The Supreme Court is] not required to review issues that have been improperly presented to this court through an inadequate brief . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly . . . These same principles apply to claims raised in the trial court." (Internal quotation marks omitted.) Connecticut Light Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003). Therefore, because Centimark did not brief this argument, it has abandoned it, and the court need not address it. Even if Centimark had briefed this claim, there was no evidence presented to the court that Dzen violated CUTPA. Moreover, the court will not address Dzen's special defense of payment to Centimark's claim against it.

VI. CONCLUSION

In summary, the court makes the following orders:

1. With regard to Centimark's claim for foreclosure on its mechanic's lien, the court finds that VMA's special defense for negligent misrepresentation precludes Centimark from recovering on its lien.

2. With regard to VMA's claim for breach of contract, the court finds that Centimark breached the contract in failing to obtain a building permit; failing to use Dzen, a master elite contractor, to install the shingled portion of the roof; and failing to install the shingled roof in accordance with GAF's specifications, the building code and the agreement between the parties. Specifically, in terms of VMA's claim that Centimark breached the contract in failing to follow GAF's specifications, the building code and the agreement between the parties, the court finds that the following deficiencies resulted in breach: nailing deficiencies; improper installation of the starter strip, improper installation of the ridge vent; improper installation of valleys; improperly sealed shingles; and improper installation of shingle roofing strips. VMA is awarded $139,670 to replace the roof. VMA's award is reduced by the initial contract price of $98,999.76. Therefore, VMA is awarded $40,670.24 in damages from Centimark to replace the roof.

3. With regard to VMA's claim for negligence, the court finds that Centimark was negligent and awards VMA the same damages as awarded in its breach of contract claim. Additionally, the court finds that Centimark breached the warranty in failing to issue VMA the golden pledge warranty and in failing to correct the defects with the roof pursuant to the warranty. The court awards VMA the same damages for its breach of warranty claim as awarded for its breach of contract claim.

4. The court finds in favor of VMA on both its negligent misrepresentation claim and its fraudulent misrepresentation claim. The court awards the same damages for these claims as was awarded for its breach of contract claim.

5. Regarding VMA's CUTPA claim, the court finds that Centimark committed a deceptive act and other unfair acts or practices in violation of the statute. Accordingly, the court awards $133,276.82 in attorneys fees to VMA from Centimark. The court does not award VMA consequential or punitive damages.

6. With regard to Centimark's claim against Dzen for breach of contract, the court finds that Dzen did not breach the subcontract agreement. The court finds, however, that Dzen was negligent and awards Centimark $38,992 from Dzen. The court does not find that Dzen committed a CUTPA violation.

Judgment may enter accordingly.