Opinion
No. FST CV 02 0191946 S
August 1, 2006
MEMORANDUM OF DECISION
Findings of Fact
By its third amended complaint dated June 21, 2005, the plaintiff, MD Drilling Blasting, Inc. (MD) instituted suit against the defendants, Simon Greenshields (Greenshields) and the defendant, DeVito Sons, LLC (DeVito). The amended complaint contained six counts relating to the property of Simon Greenshields at 246 Whipstick Road, Wilton, CT. The count relating to foreclosure of a mechanic's lien was withdrawn prior to this trial as well as all claims by and against Greenshields. This amended complaint contained claims for breach of contract in failing to pay for additional work; for quantum meruit; for unjust enrichment; and for negligent misrepresentation, all claims against DeVito.
DeVito filed its answer, special defenses and counterclaim. It admits reference to the purported contract without any admissions as to its meaning or contents. The balance of the plaintiff's claims were denied. The defendant also admitted that certain information was provided to the plaintiff but denies knowledge of the specifics of this allegation.
By way of special defenses, the defendant DeVito alleges the plaintiff breached the operable agreement in failing to perform in a satisfactory and workmanlike manner or as agreed. In its second special defense, it alleges that the plaintiff is barred by waiver and estoppel in that the plaintiff was not owed any money since it failed to bill or demand payment in a timely fashion. In the third special defense, the plaintiff is barred for failing to mitigate its damages and/or any recovery must be reduced by its failure to so mitigate its damages. In the fourth special defense comparative negligence in failing to accurately assess scope of work. In the fifth special defense, DeVito alleges plaintiff's claims are barred or must be reduced for damages caused by plaintiff as alleged in defendant's counterclaim. In its sixth special defense, defendant disputes the plaintiff's claimed rate of interest and in its seventh special defense the defendant states the plaintiff's claim based on quantum meruit and unjust enrichment cannot be granted since plaintiff has alleged express contracts. The defendant also filed a counterclaim in three counts alleging plaintiff's breach of contract, negligence in the performance of its work and for indemnification of DeVito resulting from plaintiff's negligent performance.
The plaintiff called as its principal witness, Todd Barrett, its Regional Superintendent. Barrett testified that MD was a corporation organized under the laws of Maine, that Greenshields owned the property at 246 Whipstick Road in Wilton, CT and DeVito was a corporation organized under the laws of Connecticut. In 2001, prior to the subject contract and lawsuit, the plaintiff had performed drilling and blasting services at the Greenshields property under a contract providing for a daily rate of $3,200. This contract was for drilling and blasting rock in the driveway area and some site work. MD fully performed in this first contract and was paid in full for its work.
Subsequently, in early 2002 MD received a call from Michael Weinzimmer, purportedly DeVito's estimator for additional blasting and drilling at the same site (Greenshields). Weinzimmer stated that DeVito wanted a lump sum contract price. At MD's request, Weinzimmer provided MD with a worksheet (Plaintiff's Exhibit 2) and a plan sheet (Plaintiff's Exhibit 3) providing information regarding quantity of rock excavation for MD to use in calculating a fixed lump sum price. MD's representative visited the site but there was no construction layout in January 2002. Accordingly, MD relied on the worksheet and plans provided by Weinzimmer. By MD's calculations, the quantity of rock to be drilled and blasted amounted to 2596 cubic yards. On or about January 16, 2002, MD and DeVito entered into the second agreement and contract whereby MD was to provide drilling and blasting for a lump sum price of $20,000. MD, as required, obtained all of the necessary permits for this work. The January 2002 contract provided: Contractor (DeVito) will furnish materials and services identified below to MD at no charge. MD will be responsible for rock over one cubic yard to be broken by secondary blasting means. Contractor will furnish the following in a timely manner to prevent any delay to the drilling and blasting operation: De-watering, no back charges without prior authorization, all oversize, layout grade and site preparation including grade elevations on stakes.
The evidence bears out and as testified to by DeVito that he billed Greenshields for the full amount of the contract price of $20,000. Furthermore, the parties stipulated that McClane, the controller of MD, would have testified that he had a conversation with DeVito and the latter never said "I will pay you if you finish the job." The Stipulation further recited that McClane would testify that DeVito promised payment but that he needed time to make the payment and that he would pay all three invoices. See pg. 2 of the transcript of May 3, 2006. The court believes that the more credible evidence was provided by the plaintiff and that McClane's stipulated testimony was what occurred between these two parties.
Further, said contract provided MD is not responsible for determining whether the layout or grade is in compliance with project plans and specifications; contractor expressly agrees to assume all risks and costs associated with the above items and not to seek or withhold payment from MD for any expenses by contractors as a result thereof. MD is not responsible for any consequential damages incurred by contractor. Further, said agreement provided: MD is not responsible for any costs incurred by contractor on its behalf unless contractor and MD agree in writing to such, before contractor incurs any expense. Finally, said agreement provided contractor will pay MD reasonable compensation for any extra work ordered by contractor. As recited in Greco v. Morcaldi, 145 Conn. 685, 689, 690 (1958), "compensation is allowed for services rendered under a contract, but not in accord with it, if the deviation was not wilful and the other party has availed himself of, and benefitted by such labor."
As the contract provides, DeVito was to provide the construction layout showing the horizontal limits of drilling and blasting and the depth of the work to be performed by MD. When MD started work in January 2002, there was no construction layout in place at the site. At that point, MD performed the "line drilling" at the site. Waiting for the construction layout, MD returned to work in March 2002. The evidence bears out that at this point MD drilled and blasted the required area set forth in DeVito's layout. Although DeVito testified it was required to break and excavate considerable rock left by MD, it points out that MD performed most of the drilling and excavation required under the contract. From Barrett's testimony, it appears he did not tell his crew to leave the site until all the work was performed. The weekly cost reports, drilling reports and blasting reports bear out MD's contention that all of its work was performed. Although MD did not resume work until March 2002, on March 22nd, it notified DeVito of the problem concerning the construction layout provided by the defendant. The testimony also bears out that a second meeting was held on March 25, 2002 to discuss these construction layout problems. Barrett testified that he explained to DeVito and Weinzimmer that their layout did not match the previous information provided to MD. DeVito at this point instructed MD to keep working on the job. At the second meeting of the parties, it appears that Weinzimmer agreed with Barrett's position that the construction layout did not match the data given to MD by DeVito. MD's weekly report of March 25, 2002 reflects; "Meeting today. Todd [Barrett] was right. Foundation is wrong depth. 5 feet to deep." After this latest meeting, MD drilled and blasted based on DeVito's information. At this point, considerable work had been performed by MD. This court is mindful of DeVito's testimony that the 17'-10" cut mark corresponded to a bottom elevation of 72 while the floor elevation was noted at 75.
As the contract provided, contractor will pay MD reasonable compensation for any extra work ordered by the contractor. During his testimony, DeVito admitted he had agreed to the term of the instant contract. The court finds that the contractor, DeVito, is responsible for the extra work performed by MD and its additional charges. As recited in Jacobson Electric Co. v. Rome Fastener Corporation, 156 Conn. 55 (1968), the disputed claim involved the extras which the plaintiff billed after receiving full payment for the original contract price. The court there held, at page 59, "the extra work and materials for projects outside the scope of the plaintiff's express contractual obligation, the existence of the contract would not militate against an implied contract to pay for them . . . Likewise, since the extra work concerned projects separate and apart from the specific understanding assumed in the written contract, the rule of cases such as Dahl v. Edwin Moss Son, Inc., 136 Conn. 147, 154, 69 A.2d 562 . . . has no application."
MD billed for the balance of the original contract and made attempts to discuss payment of the additional costs due to the erroneous layout. DeVito never made any payment or a response to these inquiries. On September 27, 2002, MD billed DeVito for the additional costs. The court notes that MD billed DeVito for $14,404 instead of $11,854.90 due to a clerical error which was only discovered several years later. As stated above, DeVito has not paid MD the original contract price of $20,000 or any part thereof and has not paid MD for the additional costs. This fact again was admitted by DeVito in his testimony, in addition to the fact that he admitted MD had performed a substantial portion of its work. The only payment received by MD was an $8,000 payment from Greenshields.
DeVito has set up several special defenses and a counterclaim, the essence of which is that as a result of MD's failure to complete the work under the aforementioned contract, specifically, "to blast and remove specified and/or agreed amount of rock and soil materials" and/or "to blast the specified and/or agreed areas," DeVito had to do this work itself and is entitled to a recovery of $11,800. As recited above, MD was required to reduce the size of any rock over one cubic yard by secondary blasting means. As Barrett testified this would require drilling a hole in the boulder or rock and loading it with explosives. There was testimony that MD was prepared to drill and blast any oversize rock with notification from DeVito which was never forthcoming. The court believes that DeVito may have used its own equipment to break down oversize rocks. However, there was no evidence presented by DeVito as to the size of these oversize boulders and that they exceeded the contract specification of one cubic yard. As set forth in Gilband v. Liberti, No. 295329 (Mar. 7, 1996), 1996 Ct.Sup. 1584, "The court cannot speculate or provide missing ingredients and must therefore find that the plaintiff has failed to meet its burden of proof in this particular case. This court finds that the defendant has failed to meet its burden of proof in this particular case." See also EA, LLC v. Tarver, No. CV 04 0184901 (July 22, 2005), 200 S.Ct.Sup. 11699. Accordingly, the defendant's counterclaim is denied and the court finds in favor of the plaintiff on the defendant's counterclaim.
By Way of Summary
MD and DeVito entered into a contract whereby MD agreed to perform certain drilling and blasting at 246 Whipstick Road, Wilton, CT for a lump price of $20,000. MD performed under the contract but received no payment from DeVito. MD also performed additional work and incurred additional costs due to DeVito's failure to provide an accurate construction layout. The total for both charges comes to $20,000 (original contract) and $11,854.90 for the additional work. Therefore, MD is entitled to recover the total sum of $31,854.90, less $8,000 paid by Greenshields, a net recovery of $23,854.90. In addition, MD is also awarded interest at the rate of ten (10) percent per year on this unpaid judgment of $23,854.90 from March 19, 2002 in accordance with § 37-3a of the Connecticut General Statute for monies wrongfully withheld. The court has not awarded interest at the rate of 2% per month as stated in the contract due to the discrepancies in plaintiff's billings.
On the issue of attorneys fees, a separate hearing will be held by the court at a future agreed-upon date between counsel and the court.
Judgment may enter in accordance with this decision.