Opinion
No. X08CV06-5001664S
October 1, 2010
Memorandum of Decision
This is a new-home defect case brought by the purchasers of a newly constructed home in Stamford which has developed severe structural problems relating to settling of the foundation. The sole remaining defendant, Superior Walls of the Hudson Valley, Inc. ("Superior Walls") was the manufacturer/installer of the franchised precast concrete basement wall system installed at the homesite pursuant to a contract with the developer/general contractor, former defendant GS Properties, Inc., whose principal Jeffrey Gilbert through his corporation Hollow Oak Properties, Inc. sold the property to the plaintiffs Ronald and Kristin Tunison in 2005. The claims against Superior Walls are brought in negligence (Count 55); violation of the Certificate of Occupancy Act, Conn. Gen. Stat. § 47-121 (Count 57); breach of contract (Count 59); breach of the covenant of good faith and fair dealing-statutory (Count 61); and breach of the covenant of good faith and fair dealing-common law (Count 63). Additionally, near the end of the trial, the plaintiffs served a request to amend complaint to conform to the evidence adduced at trial by adding a sixty-ninth count alleging an unfair trade practice in violation of the Connecticut Unfair Trade Practices Act ("CUTPA"), Conn. Gen. Stat. § 42-110(b)(a) et seq. to which the defendant has entered a timely objection. The case was tried to the court without a jury over the course of five trial days in December 2009. Each party has submitted post-trial memoranda, and reply memoranda with detailed citations to the testimony and the multiple exhibits received into evidence.
This case was originally brought in sixty-eight counts against nine defendants. All claims were resolved prior to trial except the claims against the defendant Superior Walls of the Hudson.
Findings of Fact
The court finds that the following facts are uncontested or, if contested, have been proved by a preponderance of the evidence:
1. The plaintiffs ("Plaintiffs" or "Tunisons") own the real property known as 57 Woodridge Drive South in Stamford, Connecticut (the "Property" or the "Home").
2. The Tunisons first saw the Home in early July 2005. It was a newly constructed unoccupied four-bedroom modular home which satisfied all their important requirements.
3. Mr. Tunison's pre-purchase inspection of the Home included an inspection of the basement where he observed the basement walls covered with blue insulation and having vertical concrete studs. There is a reference to a fifteen-year warranty printed on the face of the insulation, but it relates to a warranty by the manufacturer of the insulation on the thermal quality of the insulation.
4. There is also a fifteen-year warranty on the basement walls confirmed by a promotional brochure provided by Superior Walls to the builder and general contractor Jeffrey Gerbert of GS Properties (Plaintiffs' Ex. 7) which includes multiple prominent references to a fifteen-year warranty or guaranty on the basement wall system such as "Guaranteed 15 Years" (pp. 2, 5, 6, 8); "Dry, Warm, Smart. Superior in every way. Guaranteed" (p. 6); "America's Finest Guarantee. With Superior Walls advanced engineering and 15 year warranty* you can relax with the assurance of a dry, warm, smart superior foundation supporting your new home . . ." (p. 7) Each reference to the warranty is marked with an asterix which refers to the statement at p. 8: "See the limited warranty. Contact your local Superior walls representative for details."
5. The basement wall system at the Home was manufactured by defendant Superior Walls at its plant in Poughkeepsie, New York in accordance with the specifications of its franchiser Superior Walls of America. The basement wall system was installed at the Home by defendant Superior Walls pursuant to a written Contract of December 9, 2004 (the "Sales Contract") with GS Properties, LLC which includes a Terms and Conditions page which provides, at ¶ 7: "Limited Warranty. SWHV [Superior Walls of the Hudson Valley, Inc.] warrants that the Superior Wall System and loose materials being sold shall be free from defects in materials and workmanship for a period of one (1) year from the date of delivery. It is agreed by Buyer that SWHV's sole responsibility herein is to repair or replace defects and it shall not be liable for any compensatory, consequential, incidental or other damages of any kind whatsoever."
Although the contract designates GS Properties as "LLC" Mr. Gerber testified that GS Properties was not a limited liability company but an unincorporated trade name used by himself and others. The court finds in accordance with that testimony.
6. Mr. Tunison was given a copy of the Superior Walls promotional brochure (Ex. 7) either by Jeffrey Gerbert or by the real estate broker who had received it from Mr. Gerbert.
7. The Tunisons signed a contract to buy the Home for $900,000 on July 15, 2005. They took title to the Home at the closing on August 2, 2005 and moved in about two weeks later. At the closing the seller, Hollow Oak Properties, LLC, a Jeffrey Gerbert company, turned over and assigned to the purchasers (Tunisons) pursuant to the contract of sale all guarantees and warranties seller had received from manufacturers, dealers, subcontractors, or other parties furnishing materials, appliances, equipment or work to the premises. (Ex. 23 Schedule C.) The court finds that the Superior Walls fifteen-year limited warranty on the basement wall system at the Home was assigned to the Tunisons as part of that agreement.
8. In or about February 2006 the Tunisons started to notice problems that were out of the ordinary for a new house. These included but were not limited to:
a.) problems in the kitchen including a crack in the upper right hand corner of the breakfast nook above the sliding glass door; (Tr. Tunison, 12/8/09, p. 30); the sliding glass door was no longer able to be locked; (Tr. Tunison, 12/8/09, p. 31; Ex. 49); shifting walls which caused a kitchen cabinet to slide across the hardwood floor; (Tr. Tunison, 12/8/09, p. 89-91; Ex. 43)
b.) Multiple drywall cracks (Tr. Tunison, 12/8/09, p. 32), including a large crack in the ceiling on the second floor landing (Tr. Tunison, 12/8/09, p. 33), and in the foyer where the drywall seams shifted vertically and horizontally; (Tr. Tunison, 12/8/09, p. 96; Ex. 47);
c.) The modular boxes appeared to be separating from each other (Tr. Tunison, 12/8/09, p. 33);
d.) The master bathroom door stopped latching, cracks appeared in the master bathroom shower and the shower stall appeared to be separating from the ceiling (Tr. Tunison, 12/8/09, p. 34; Ex. 40; Tr. Tunison, 12/8/09, p. 86); the master bedroom door stopped latching and the door was not in plumb within the jam itself (Tr. Tunison, 12/8/09, p. 92; Ex. 44);
e.) The moldings started popping out and breaking (Tr. Tunison, 12/8/09, p. 34-35, Ex. 48; Tr. Tunison, 12/8/09, p. 97);
f.) Diagonal cracks began appearing over almost every door and window (Tr. Tunison, 12/8/09, p. 35), including over the front door; (Ex. 38); (Tr. Tunison, 12/8/09, p. 84); over the sliding rear door/window (Ex. 36); (Tr. Tunison, 12/8/09, p. 82); in the foyer looking up the staircase (Ex. 37); (Tr. Tunison, 12/8/09, p. 84); in the upper right hand corner of the master bedroom door entrance, cracking in the ceiling and the molding around the door separating from the wall (Ex. 39); (Tr. Tunison, 12/8/09, p. 85); in the ceiling above the upstairs landing at the top of the stairs where drywall is shown to be shifting and cracking in 2 different directions (Ex. 41); (Tr. Tunison, 12/8/09, p. 88);
g.) The front door started sticking and became very difficult to open and close (Tr. Tunison, 12/8/09, p. 35); the door lifted so high that the rubber weather stripping was no longer in contact with the threshold and you clearly see the outside (Tr. Tunison, 12/8/09, p. 9495; Ex. 45 and Ex. 46);
h.) The house started making loud noises (Tr. Tunison, 12/8/09, p. 36);
i.) A very large crack in the foundation slab appeared which was located nearly directly under the sliding glass doors which refused to latch (Tr. Tunison, 12/8/09, p. 37; Ex. 5, foundation plan);
j) A basement wall between the basement joists was separating and water started seeping into the basement where the floors and walls met on occasion (Tr. Tunison, 12/8/09, p. 38; Ex. 29; Ex. 50); (Tr. Tunison, 12/8/09, p. 107-10,);
k.) Multiple problems with the foundation, including but not limited to uneven panel height evident from the insertion of shims (Ex. 30); (Tr. Tunison, 12/8/09, p. 68); a huge crack in the crawl space (Ex. 31); 2 arcing cracks on 2 separate walls that appear to go beneath the Superior sealant showing separation of the concrete from the blueboard insulation (Tr. Tunison, 12/8/09, 73; Ex. 32) an area of the south wall where 2 panels come together as part of the fireplace and one of the panels has shifted downward so that you can put your hand underneath the sill plate and the top of the foundation panel (Tr. Tunison, 12/8/09, p. 74; Ex. 33); panels twisting and sealant pulling away from the panels (Tr. Tunison, 12/8/09, p. 77; Ex. 34); unusual horizontal cracking at the top of the foundation panel at the outermost corner of the house (Ex. 35).
9. The precast concrete panels which make up the Superior Walls basement wall system are manufactured with bolt receptacles at the top and bottom of each side to bolt the panels firmly together to form a single rigid unit. There are also holes along the top concrete bond beam of each panel for bolting the wooden sill plate of the house firmly to the top of the foundation wall. In the case of modular housing, such as this house, there are also metal framing straps to be nailed through pre-drilled holes to the sill plate and to the house modules to hold them firmly together. The panels of the Tunison house had multiple holes missing bolts along the tops of panels. About two-thirds of the top bolt holes were not used. The framing straps were also missing nails through many of the provided nailing holes. In some areas no framing straps were used at all. A firm connection between the top of the concrete panels and the framing of the house above is necessary for a firm rigid basement wall system, and to provide uniform weight-bearing support of the home.
10. The panels of the basement wall system had shifted both laterally and vertically and some of them were out of plumb, resulting in separation of the panels and uneven heights along the top of the foundation wall. Some of the panels were more than an inch higher than others when inspected in May of 2006 by plaintiffs' engineer, Christopher Cusinelli on May 2, 2006.
11. Some of the sill plates had been shimmed in an effort to compensate for lack of uniform height of the tops of the panels. The sill plate in the south side of the crawl space is twisted. There is a cracked sill plate along the north foundation wall in the northeast panel of the utility room.
12. There is a one-inch gap between two of the rear foundation panels near the southeast corner of the utility room.
13. The spacing between the side supports on one of the concrete foundation wall panels near the window differs by two inches between the top and the bottom.
14. There is a shifted concrete foundation panel visible on the south foundation wall from the exterior.
15. There is a shifted concrete foundation panel near the front door. The door itself is no longer level.
16. In the living areas of the house, Mr. Cusinelli observed the following defective conditions on May 2, 2006, which the court finds to be true: the sliding glass door from the breakfast area to the exterior is no longer square; this door is directly above one of the shifted basement wall panels; there is a crack on the sheetrock wall entranceway leading from the front hallway to the breakfast area; there are several cracks in the rear wall of their breakfast area above the sliding door; there are cracks in the sheetrock of the entranceway from the dining room to the living room; most of the wood flooring of the Home has abnormal settlement especially around the perimeter of the home; there are cracks on some of the wood risers on the stairs leading to the second floor and cracks in the second floor hallway ceiling; the master bedroom door does not close properly and there are gaps in the moulding and the wood flooring of the master bedroom; there is a slight bulge in the floor of the second floor hallway; there are various cracks in the tile work in the master bedroom and gaps in the tile work of the guest bathroom; the guest bathroom door does not close; and there are popping nail heads visible on the walls in second floor laundry room.
17. The Sales Agreement between Superior Walls and plaintiffs' seller GS Properties (Ex 2, 3) provides for the manufacture and installation at the homesite of a "basement wall system" consisting of multiple (about 21) precast reinforced insulated concrete wall panels and associated hardware etc. The panels are sized to form a complete basement wall of the Home. They are pre-insulated with styrofoam insulation, and include on the inside edge attached vertical concrete "studs" with a wooden furring strip to accept nailing of sheetrock wallboard in the case of a finished basement. The panels are specially manufactured with appropriate openings for utility connections. The studs have predrilled holes for running plumbing and electrical lines. The panels in this case were mostly to be 8 ft. 2 inches tall (for the full basement area) and others 4 ft. 6 inches tall (for the crawlspace/garage areas). The panels are to be set on a level bed of 3/8" crushed stone or "gravel" laid around the perimeter of the foundation excavation 12 inches in width to a depth of six inches or more, depending on the soil type. The excavation of the hole and the provision and laying of the gravel is the responsibility of the builder. Likewise, the builder is responsible for providing the sill plate and bolting it to the top of the basement wall panels in accordance with Superior Walls' specifications. In the case of modular housing such as the house involved in this case, it is also the builder's responsibility to strap the modules to the sill, using the straps provided by Superior Walls. Superior Walls does not provide the basement floor or slab, which is to be installed by the builder or a subcontractor after the wall panels are all in place. The panels are designed such that the slab on the inside and backfilled material on the outside provides lateral stability at the bottom of the wall, and the sills and the house itself built on or attached to the sills provide stability at the top.
18. The Sales Agreement provides, in bold print, "SWHV's sole responsibility to the Buyer is to construct and deliver the Superior wall system unit described on the order to the buyer's site, to lift the Superior Wall system from the road carrier, to set up, assemble or complete the construction of the Superior Wall system at buyer's site, but has no responsibility to excavate, install footers, support materials, drainage or utilities of any kind."
19. The Sales Agreement was signed on January 13, 2005 and contemplated a January or February (mid-winter) installation.
20. The contract incorporates the provisions of the Superior Walls Builder Guideline Booklet (Ex, 8, 9, 10) a copy of which was provided to Jeffrey Gerbert. It contains detailed instructions on site preparation including soils verification, which dictates the depth of the gravel. It is required that the gravel footer be laid on top of undisturbed, or "virgin" soil. The booklet also contains cold weather practices to prevent freezing of the gravel or soil beneath it, including: "Do not excavate the site too far in advance of the scheduled set date" and "After the site has been excavated, insulate the area where walls are to be set and protect this area with a waterproof covering."
21. The basement was excavated at this homesite by GS's excavation subcontractor approximately two or three weeks before the basement walls were installed. The six inch gravel base for the walls was spread by hand by GS employees a day or so before installation began. The site was checked one or two days before the wall installation began by Roy Schweitzer, the Superior Walls sales representative on this case, who has been with Superior Walls for more than 20 years, and has sold and observed the installation of five to six thousand wall systems. He verified that the gravel base was in place and that the builder had set the corner pins for the wall system. He also said he normally checks for snow and ice. There was no evidence that he disapproved the site preparation in any way. Roy Schweitzer called Mr. Gerber and told him that the Superior Walls engineer James Quill said everything was fine.
22. There had been another house at this homesite, which was demolished. That house was built on a slab at grade. It had no basement. The court finds that the excavation for this house, and particularly the gravel base laid for the basement walls was beneath the disturbed soil from the slab on which the earlier house stood.
23. The installation of the basement wall system occurred over a two-day period on January 26 and January 27, 2005. On each day there was a crew of installers led by installation supervisor Bernard Daisley, plus a crane operator and one or more drivers of the tractor-trailer trucks which delivered the panels to the site. On January 26, 2005 when the crew arrived at the site at about 8:30 AM they found that the gravel was covered by about 2 inches of snow. It was not snowing at that time. The snow had fallen at some prior unknown time. The court finds that the weather was "very cold" per the testimony of Mr. Gerber. The snow was shoveled off the gravel by the Superior walls crew with assistance from GS personnel. Then the gravel base was tamped and checked segment by segment with a rotating laser level. Gravel was added or subtracted as necessary to insure that the entire gravel base was firm and level. Then the panels were lowered into place on the gravel one by one in accordance with the engineering plans that had been drawn up by Superior Walls' engineer. "Three beads" of sealant was applied to each side of the panels as they were cinched together by bolts at the top and bottom. Seven panels were installed on that day and measured in place to make sure they were level and plumb. The crew arrived back at the site at about 8:30 on the morning of January 27. The On-Site Report (Ex. 12) indicates that it was very cold, minus five degrees, requiring the crew to take warming breaks, especially since they could not install the cinching bolts with gloves on, and had to work with bare hands. They also had to use a torch warming a pile of extra gravel as a means of keeping the tubes of sealant from getting too cold. They continued the same procedure as the previous day, until all 21 panels were installed and checked. When the wall system was fully installed, they fastened to the wall in a visible location, a plastic envelope which contained another copy of the Builders' Guideline Booklet and a bright orange placard (Def. Ex B) which said in prominent lettering, in part: "Attention Builder and Excavator. Do not backfill the foundation until the first floor deck is attached and the basement floor is in place. The placard also gave instructions for bolting the sill plate to the top of the wall ("Bolt every four feet and attach at each side of the joints") and for attaching the floor joists to the sill plate. The placard also cautioned that "Builder is responsible for following the guidelines in the procedure booklet"; and that "Following these procedures is of extreme importance for any wall system. Failure to do so will allow the wall to move in when backfilling."
24. Bernard Daisley testified that when he arrived at the job site on January 26 he checked to see if the gravel was frozen. Although covered with snow (which is an insulator), after the snow was removed, the gravel was not frozen, but gravel (small stones) will not normally freeze unless it is wet. Other than the snow, there was no insulation or waterproofing material on the gravel.
25. Superior Walls technician "Ernie" returned to the site on February 2, 2005 to complete the caulking of the installed panels and "repaired" "some walls [that needed] to be straightened." (Pl. Ex. 12) Roy Schweitzer also returned to the on February 2, 2005 to deliver the metal framing straps to Mr. Gerbert. That day was the last contact between Superior Walls and the Home until after this lawsuit was commenced.
Other findings of fact will be made as necessary.
Discussion and Conclusions of Law Count 55: Negligence Against Superior Walls
The plaintiffs allege in ¶ 33 of the complaint that: "Superior, despite having a duty to perform its work in a good and workmanlike manner, (a) constructed the Subject Property in a negligent manner and/or supervised those individuals completing the work; and/or (b) supplied improper and/or faulty materials for incorporation into the subject property."
Defendant has raised a threshold issue. Citing Worldwide Preservation Services, LLC v. The IVth Shea, LLC, Docket No. X05CV98-0167154, Superior Court, Complex Litigation Docket at Stamford (February 1, 2001, Tierney, J.) 2001 WL 34093945, it argues that "Plaintiffs cannot bring a claim of negligence against Superior Walls since any of the duties imposed upon Superior Walls were enumerated in the contract between Superior walls and Gerbert and any of the risks rights and obligations between those parties concerning the Project were specified in their Construction Agreement." (Def. Brief, p. 7.) Worldwide Preservation is one of many Superior Court decisions since 1998 attempting to define the parameters of the "economic loss doctrine" to bar tort claims for purely economic losses between parties in a contractual relationship. The "economic loss doctrine" is a judicially created principle which prohibits recovery in tort (and perhaps other non-contract causes of action) where the basis of the claim arises out of a contractual relationship between the parties and the damages are limited to purely economic losses as opposed to personal injury or damages. Because the doctrine has its underpinnings in the freedom of sophisticated commercial parties to allocate risks and losses in accordance with their contract and the remedies provided by statute for their transaction, it may not apply simply because the plaintiffs in this case, the Tunisons, are not sophisticated commercial parties, and are not parties to the underlying Sales Agreement. The court will nonetheless explore whether or not the doctrine applies here without regard to the Tunisons' particular status.
The Tunisons' claim that they are third party beneficiaries of the Sales Agreement will be discussed, infra. The court's conclusion is that they are not third party beneficiaries.
The only Connecticut appellate case to address the concept is Flagg Energy Development Corp. v. General Motors Corp., 244 Conn. 126 (1998), which was a breach of contract/breach of warranty dispute between the buyers and seller of gas turbine engines which allegedly failed to operate efficiently and economically. The buyers sued for breach of contract with additional counts including a tort claim for negligent misrepresentation and a claim for violation of the Connecticut Unfair Trade Practices Act (CUTPA) based on the alleged misrepresentation. The trial court had granted a motion to strike the misrepresentation and CUTPA counts "because the plaintiffs are seeking recovery for commercial loss, and, as a result, are limited to the remedies provided by the Uniform Commercial Code." Id. 151. The Supreme Court upheld the striking of those counts under the economic loss doctrine, saying: "We agree with the holdings of cases in other jurisdictions that commercial losses arising out of the defective performance of contracts for the sale of goods cannot be combined with negligent misrepresentation." Id. 153. Since the Flagg Energy case came down a split of authority has developed among superior courts as to whether or not the economic loss doctrine is limited to disputes between the buyer and seller of goods under Article 2 of the Uniform Commercial Code, or if it applies generally to other types of disputes between parties who are in a contractual relationship. There are multiple unreported decisions espousing both the narrow view and the broader view. The same debate is evident in cases coming from other states. In 2008 this court held in Hoydic v. B E Juices, Inc., Docket No. X08CV-034010104S, Superior Court, Complex Litigation Docket at Stamford, (February 27, 2008, Jennings, J.), 208 Ct.Sup. 3570 that the narrower view was correct. In that opinion I cited the superior court decisions on both sides of the issue which had been decided to that point (some twenty cases in all). Since then, additional cases have been decided including Worldwide Preservation, cited by defendant herein, where Judge Tierney, after recognizing that ". . . no appellate court has applied the economic loss doctrine in a building contract dispute." ( Id. *3), after an extensive analysis, applied the doctrine in striking tort claims (negligent interference with business relations, CUTPA, aiding and abetting liability, and civil conspiracy) in a construction dispute between a building owner and a number of contractors. This court has re-examined the issue and continues to adhere to the narrower view that the economic loss doctrine as enunciated in Flagg Energy is limited to transactions involving the sale of goods governed by Article 2 of the Uniform Commercial Code. (In Connecticut, Conn. Gen Stat. §§ 42a-2-101- 42a-2-725.) The reasoning of Judge Sheldon in Santoro, Inc. A.H. Harris Sons, Inc., Docket No CV03-0828039, Superior Court, Judicial District of Hartford (September 23, 2004) is persuasive:
With due respect to the parties, neither appears to have correctly understood or applied the Supreme Court's controlling opinion in Flagg. Upon close examination, that decision cannot reasonably be read to create a general rule barring all tort claims based in whole or in part upon alleged breaches of contract or alleged breaches of implied warranties of fitness and/or merchantability. Instead, it can only be read to bar such claims in the particular circumstances there at issue, to wit: where both the plaintiff and the defendant are sophisticated commercial parties, and their dispute arises from the defendant's allegedly defective performance under a contract for the sale of goods. The reasons for this limitation, quite simply is that its origin lies not in the broad common law of torts or contracts, but in the narrower, express provisions of Article 2 of the Uniform Commercial Code, which establishes special rules governing the remedies available for breaches of commercial contracts for the sale of goods. Id. 152.
See also, more recently, State v. Maximus, Inc., Docket No. X06 CV07-5011488S, Superior Court, Complex Litigation Docket at Waterbury (April 1, 2009, Stevens, J.), 2009 Ct.Sup. 6022, 47 Conn. L. Rptr. 642 (Economic loss doctrine applies only to cases involving the UCC).
The inquiry therefore becomes whether or not the "Sales Agreement" between Superior Walls and GS Properties would be a contract for the sale of goods governed by Article 2 of the UCC. Article 2, § 42a-105(1) defines "Goods" as ". . . all things, including specially manufactured goods, which are moveable at the time of identification to the contract for sale . . ." The code defines "Contract for Sale" in § 42a-106(1): "In this article, unless the context otherwise requires, `contract' and `agreement' are limited to those relating to the present or future sale of goods. `Contract for sale' includes both a present sale of goods and a contract to sell goods at a future time. A `sale' consists in the passing of title from the seller to the buyer for a price . . ." There is no doubt that the 21 concrete wall panels were "goods," but this transaction was far more than just a delivery or passing of title of those panels. The agreement (Ex. 2, 3) provides that "The purchase price includes delivery and erection on BUYER's or BUYER's customer's site in accordance with the terms and conditions of this agreement." Those terms and conditions fill an entire page of small print. They are involved not just with the simple sale of the panels but extensively with the installation process at the buyer's site. Those services included the computer design and location of each panel in the wall, the procurement of a detailed plan for the wall system, signed by an engineer, the final leveling and preparation of the gravel base, and the actual transporting, lifting, and placement of the panels at the site, caulked and bolted together. There is no price breakdown between goods and services. There is a single "turnkey" price for the wall system, designed, manufactured, delivered, and installed.
In cases such as this where a single contract obligates a party both to sell goods and provide services, the trial courts have developed a "predominant element test" whereby the court looks to the essence of the agreement to see whether service predominates over any sale aspect, such as supply of the materials by the principal to the service entity. The question becomes whether the dominant factor or essence is the sale of the materials or the services. See, State v. Maximus, Inc., supra; Incomm Inc. v. Thermo Spa, Inc., 41 Conn.Sup 566, 569-70 (1991); Gulash v. Stylarama, Inc., 33 Conn.Sup. 108, 111-13 (1975); Page v. Hotchkiss, Docket No. CV02-0067814, Superior Court, Judicial District of Windham at Putnam (December 2, 2003, Cosgrove, J.), 36 Conn. Law Rptr. 193; and DSP Software Engineering, Inc. v. NCT Group, Inc., Docket No. CV00-0370062, Superior Court, Judicial District of Fairfield at Bridgeport (August 10, 2000, Melville, J.). In this case, the services were extensive. The wall system had to be custom designed and the plan checked and signed by an engineer. The installation involved the entire attention of an experienced supervisor and crew of several workers for two long days and one worker for a part of a third day. It necessitated the use of sophisticated equipment for measuring and leveling, including a rotating laser level and measurements using the Pythagorean theory. It involved the use of several vehicles including tractor trailers driving two hours each way, and the use of a crane for offloading the panels and setting them in place. Several panels had to be returned to the factory for modification and reinstallation. Field modifications had to be made by adding support angles or ledges and a concrete column to support certain panels. Given that the total cost for the entire job came to $15,857.91, and the extensive nature of the services provided, the court concludes that the services were the predominant factor and this transaction was not a contract for the sale of goods under the UCC and the economic loss rule therefore would not apply to bar a negligence claim against Superior Walls in this case.
A case tried — and lost — by the undersigned before Judge Norton Levine in the Court of Common Pleas at Bridgeport thirty-five years ago.
On the first day the crew left the plant at 5:45 AM and did not return until about 8:15 PM. On the second day they left at 6:30 AM and did not return until about 7 PM.
The combined total of the initial contract (Ex. 2) and the supplemental contract (Ex. 3).
"The existence of a duty of care is an essential element of negligence . . . A duty to use care may rise from a contract, from a statute, or from circumstances under which a reasonable person, knowing what he knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result from his act or failure to act . . . When negligent construction is alleged the plaintiff must prove that the defendant knew or should have known of the circumstances that would foreseeably result in the harm suffered." Coburn v. Lenox Homes, Inc., 186 Conn. 370, 375 (1982). "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." Calderwood v. Bender, 189 Conn. 580, 584 (1983). See also Scribner v. O'Brien, 169 Conn. 389, 401 (1975). In this case, the vice president of Superior Walls, Tamara Ackert admitted in her testimony that purchasers from the builder are foreseeable end users of the product. (Tr. Ackert, 12/11/09, 189-90.) From that the court can infer that Superior Walls could foresee that any defect in its product or any deficiency in its workmanship or installation would cause harm of the general nature that the Tunisons have suffered.
The court concludes from the evidence that the defendant was negligent in installing the wall system in the middle of the winter in freezing cold without checking the soil beneath the gravel to determine whether or not it was frozen. Even though the builder had the responsibility of preparing the subsurface and protecting it from freezing, it was unreasonable conduct under the circumstances for the defendant, realizing that underlying soil had been exposed to the elements for one or two weeks in January, to simply forge ahead with the installation regardless of the risk of frozen soil and let the chips fall where they may because the preparation of the soil was someone else's responsibility. Granted there was a snow cover of about two inches and snow has insulating qualities, but there was no knowledge how long the snow had been there. If the ground had frozen before the snowfall, the snow may have been actually holding the frost in the ground rather than the opposite. Or, the snow cover may have been just inadequate insulation to protect the underlying ground from freezing. Snow is not even mentioned in the Builder Guideline Booklet as an acceptable insulator. Any reasonable cost-benefit analysis at that point would come down overwhelmingly in favor of taking five or ten minutes each morning to scrape aside six inches of gravel in two or three places to check for frozen soil beneath. If care was used, the gravel scraped aside could have been carefully replaced and tamped back in place so as not to alter the level of the "sacred ground" of tamped level gravel. Or the underlying soil could have been checked just to either side or both sides of the narrow gravel base without disturbing the "sacred ground" at all. The situation was a classic case where, to quote Benjamin Franklin, "An ounce of prevention is worth a pound of cure." Or to draw a more contemporary point of reference, would an airline pilot not be negligent by failing to check for sufficient fuel to complete the flight, even though it was the responsibility of others to fuel the aircraft? Mr. Daisley testified that he always checks to see if the gravel or "stones" are frozen and "If the stones are frozen and there was no condition of protecting the surface I would not lay any walls . . . I did that because it is my job to make sure after the project that the homeowner will be benefitting from a good foundation and not any foundation that may have problems." (Tr. 12/10/09 Daisley, p. 11.) But the consequences of frozen soil beneath the gravel are just as serious as frozen gravel. There is no rational justification for fastidiously checking one and ignoring the other. Furthermore the installation of panels on frozen ground is negligence per se in violation of the 2003 International Residential Code Section R.403.1.4.1 which provides that "Footings shall not bear on frozen soil unless such frozen condition is of a permanent character."
The court finds that the ground beneath the gravel was frozen at some point before or during the installation process. The snow cover had not melted overnight before the first day January 26. Mr. Daisley said there was no water on the gravel as the snow was removed. So the temperature must have been below freezing during that overnight. Mr. Gerber testified, and the court has found, that the daytime temperature on January 26 was "very cold." The Installation Log for the second day, January 27, records the morning temperature as minus five degrees, and notes the measures the crew had to take to work outdoors on such a bitterly cold day. If not sooner, the ground beneath the gravel froze during that day or the preceding night. Engineering testimony is supportive of these findings. Plaintiff's engineer, Mr. Cusanelli testified that, to a reasonable degree of engineering certainty, the fact that the panels are not flush with each other and that the sill plate is not sitting on certain panels necessitating the use of shims all evidence improper installation of the panels. (Tr. 12/9/08 37-43.) Defendant's engineer James Quill admitted on cross examination that extreme cold was a factor in his opinion that the house sat on unstable soil (Tr. Quill, 12/11/09, 94-96). Plaintiff's Code expert, Mr. Gray testified that it is a violation of the building code to install a foundation on frozen soil because once it sets and the frost thaws, that foundation. (Tr. Gray, 12/9/09, 120-21.) Furthermore this is a situation where expert testimony would not even be required to establish negligence. It does not concern any of the technical aspects of the wall system or its installation or the construction of the modular home. It boils down to common sense. When the early morning temperature is minus five degrees or not warm enough to melt snow, it very likely has been below freezing overnight, causing exposed earth to freeze, or be permeated with frost. It is common knowledge that structures cannot be built on frozen ground, because of the instability which inevitably comes with the thaw. Even the defendant's vice president Ms. Ackert admitted that the settling of the foundation and the damage to the interior of the Tunison house are consistent with the foundation being installed on frozen soil. (Tr. Ackert 12/4/09, 154-55.) The court further finds that frozen ground beneath the panels, and the subsequent thawing, was, among other factors, a substantial producing factor, a proximate cause, of the uneven settling of the wall system which caused the damage to the sills resting on the wall system, and the damage to the walls, floors, doors, windows, woodwork and structure of the living areas on the floors above. The Tunison's are therefore entitled to damages.
Count 57 — Violation of the Certificate of Occupancy Act — Conn. Gen Stat. Section 47-121 — Against Superior Walls.
Plaintiffs put on the testimony of an experienced code enforcement officer, Dan Gray, who offered his opinion that the installation of the basement wall system violated several provisions of the 2003 International Residential Code applicable to this new construction in 2005 in the City of Stamford. From this, and the fact that the City of Stamford issued a Certificate of Occupancy for the subject property on August 2, 2005, plaintiffs claim Superior Walls is liable for breach of the statutory warranty of the Certificate of Occupancy Act, Conn. Gen. Stat. § 47-121, which provides in relevant part:
. . . [T]he issuance by the building department of any municipality of a certificate of occupancy for any newly constructed single-family dwelling shall carry an implied warning to the purchaser of such dwelling from the vendor who constructed it that such vendor has complied with the building code or the customary application and interpretation of the building code of such municipality.
Plaintiff's claim that Superior Walls qualifies as "the vendor who constructed it" and is therefore bound by the statutory warranty. The definition of "vendor" in § 47-118 (which applies to § 47-121) is "any person engaged in the business of erecting or creating an improvement on real estate, any declarant of a conversion condominium, or any person to whom a completed improvement has been granted for resale in the course of his business." "Improvement" means "any newly constructed single family dwelling unit, any conversion condominium unit being conveyed by the declarant and any fixture or structure which is made a part thereof at the time of construction or conversion by any building contractor, subcontractor, or declarant." In this case the defendant Superior Walls is clearly a "vendor" of an "improvement" (the basement wall system as a structure which is a part of a single family dwelling unit.) But the warranty of § 47-121 does not incorporate the defined term "improvement." It runs in favor only of a purchaser of a "newly constructed single family dwelling unit" which is only one of several things that can constitute an "improvement." And the warrantor under the statute is the "vendor who constructed it" where "it" clearly refers to the "single family dwelling unit." Superior Walls is not the vendor who constructed the house at 57 Woodridge Drive. That was GS Properties, the general contractor, who was — but is no longer — a defendant in this case. The count for breach of violation of the Certificate of Occupancy Act therefore does not lie against Superior Walls.
Count 59: Breach of Contract/Breach of Warranty Against Superior Walls
Plaintiffs claim that Superior Walls has breached the express warranty contained within the Sales Agreement (Ex. 2, 3) and/or warranties set forth in the various promotional materials given to Mr. Gerbert, at least some which were turned over to the plaintiffs in connection with their purchase of the home. (See Findings of Fact Nos. 4, 5, 6.) Defendant raises the issue of lack of privity between the Tunisons and Superior walls since the Sales Agreement, and the sales transaction was between Superior Walls as seller and GS Properties as purchaser. Plaintiffs claim that they have standing to assert these breach of warranty/ breach of contract claims either as third party beneficiaries and/or as assignees of the contract and warranties. The court holds that they were not third party beneficiaries, but they were assignees of the warranty within the Sales Agreement with standing to assert a claim for breach thereof.
"The law regarding contract rights in third parties in Connecticut is well settled . . . [T]he ultimate test to be applied [in determining whether a person has a right of action as a third party beneficiary] is whether the intent of the parties to the contract was that the promisor should assume a direct obligation to the third party [beneficiary] and . . . that intent is to be determined from the terms of the contract read in the light of the circumstances attending its making, including the motives and purposes of the parties." (Citation and internal quotation marks omitted.) Dow Condon, Inc. v. Brookfield Development Corp., 266 Conn. 572, 580 (2003). But in this case the intent of the contracting parties was made clear in the terms and conditions of the contract itself, which expressly provides, in ¶ 13:
The only parties to this contract intended to be benefited hereby are Superior Walls and the BUYER whose signature appears on the reverse side hereof, [GS Properties] and the covenants, agreements, representations, of SWHV [Superior Walls of the Hudson Valley] made herein shall extend solely to said BUYER and to no other person or entity, known or unknown, who may be affected thereby.
This provision would apply to the express limited warranty of the contract language itself in ¶ 5 of the terms and conditions (which is designated as being in lieu of any other warranty, express or implied) but also to the warranty references in the various promotional materials to the extent that they may create any obligation different from the contractual warranty, since the Builder's Procedure Booklet is incorporated into the contract (¶ 12) (and therefore subject to ¶ 13) and the other materials are expressly "superceded" by the contract (¶ 12). The provision is unambiguous and would preclude consideration of the parol evidence relied upon by the plaintiffs. It is firmly established that "[w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law." (Citation and internal quotation marks omitted.) Mulligan v. Rioux, 229 Conn. 716, 740 (1994). (Contractual provision that either party could terminate the agreement on sixty days notice was definitive as to continuation of the contract in the absence of either party having given notice of termination.) In Shoreline Care Limited Partnership v. Jansen Rogan, Consulting Engineers, Docket No. X06CV94-0155982S, Superior Court, Complex Litigation Docket, (January 9, 2002, McWeeny, J.) 2002 WL 173155 (Conn.Super.), 31 Conn. L. Rptr. 223, the court applied the foregoing precept to a contract provision similar to ¶ 13 of the Sales Agreement, to bar third party beneficiary status to a claimant: "The parties . . . deliberately excluded in their writing any future attempt to create a contractual relationship or cause of action in favor of any third party." Id. *4. Based on these principles the Tunisons are not third party beneficiaries of the limited warranty given to GS Properties to Superior Walls.
The provision read: "Nothing contained in this Agreement shall create a contractual relationship with or cause of action in favor of a third party against either the Architect or Consultant . . ." Shoreline Care at *3.
The Tunisons, however, may assert those warranty claims as assignees of GS Properties. The court has found that the warranty on the wall system was assigned to Mr. Mrs. Tunison at the closing of the purchase of the house. (Finding of Fact No. 7, supra.) The Installation Agreement (Ex. 2, 3) does provide in Terms and Conditions ¶ 14 that "This Agreement may not be assigned by the BUYER without the express written consent of SWHV," and there is no evidence that SWHV consented in writing to the assignment to the Tunisons. But that provision is ineffective as a matter of law to prevent a valid assignment, because it fails to inhibit the Buyer's power to assign the contract as compared to its right to assign. A provision which only limits the right to assign creates a covenant obligation which may give rise to a claim for damages in favor of the other contracting party, but it does not effectively prevent an assignment or void an assignment which has purportedly been made. Rumbin v. Utica Mutual Insurance Co., 254 Conn. 259, 269-71 (2000). The contract provision must expressly state that any attempted assignment shall be void or invalid if not made in a specified way. Id. 270. Paragraph 13 of the Terms and Conditions of the Installation Agreement fails to contain such a provision. In fact the anti-assignment provision in Rumbin found to be lacking was very similar to the provision here at issue: "no payment under this annuity contract may be . . . assigned . . . in any manner by the [plaintiff]." Id. 264. Citing, inter-alia, Section 322(2)(b) of the Restatement of Contracts (Second) the court held the anti-assignment clause ineffective to void the assignment.
Section 322(2)(b) of the Restatement (Second) of Contracts provides in part: "[a] contract term prohibiting assignment of rights under the contract, unless a different intention is manifested . . . (b) gives the obligor a right to damages for breach of the terms forbidding the assignee, but does not render the assignment ineffective."
The Tunisons are therefore valid assignees of the Superior Walls limited warranty against defects in materials and workmanship. The court finds that warranty to have been breached by the defective installation of the panels of the basement wall system as detailed above under the discussion of Count 55 (negligence), entitling the plaintiffs to breach of warranty damages.
Count 61 — Breach of the Covenant of Good faith and Fair Dealing — Statutory.
The plaintiff in this case alleges a breach of the covenant of good faith and fair dealing as provided for in the Uniform Commercial Code, Conn. Gen. Stat. § 42a-1-304, which provides: "Every contract or duty within this title imposes an obligation of good faith and fair dealing in its performance and enforcement."
This count has not been briefed, and is therefore considered to be abandoned. In any event the court has already held that this was not a Uniform Commercial Code transaction, so that § 42a-1-304 would not be applicable.
Count 63 — Breach of the Covenant of Good Faith and Fair Dealing — Common Law
The concept of good faith and fair dealing references the fact that "every contract carries an implied duty requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement." De La Concha of Hartford, Inc. v. Aetna Life Co., 269 Conn. 424, 432 (2004). "Every contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement." Restatement (Second), Contracts, § 205 (1981). "Good faith emphasizes faithfulness to an agreed common purpose and consistency with the justified expectations of the other party; it excludes a variety of types of conduct involving `bad faith' because they violate community standards of decency, fairness or reasonableness. Id. Bad faith in general implies both actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one's rights or duties, but by some interested or sinister motive . . . Bad faith means more than mere negligence; it involves a dishonest purpose." (Citation omitted; internal quotation marks omitted.) Habetz v. Condon, 224 Conn. 231, 237 (1992).
The court finds that the plaintiff has proved that Superior walls was negligent, as discussed above, but has not proved a dishonest purpose or a violation of community standards decency, fairness, or reasonableness, fraud or deception. Superior walls has raised bona fide issues of law and fact in defense of this action, without sinister motive. The court rules for the defendant on this count.
Objection to Request to Amend Complaint to Add CUTPA Count.
Near the end of the trial, at the end of the defendant's case, the plaintiff filed a request to amend complaint "to conform to the evidence adduced at trial" by adding a count alleging that the defendant committed unfair and deceptive trade practices in violation of the Connecticut Unfair Trade Practices Act ("CUTPA"), Conn. Gen. Stat. § 42-100a, et seq. The specific trial evidence cited by plaintiff as the basis for this amendment is the testimony of Superior Walls vice president Tamara Ackert that when she conducted a field visit in September 2006 to inspect the Tunison home after this action had been commenced, she "unilaterally voided the warranty."
CUTPA claims were filed against other defendants at the commencement of this case in June 2006. See Count 50 (Jeffrey Gerbert), Count 51 (Hollow Oak), Count 52 (Gerbert Sons Landscaping), and Count 53 (GS Properties, LLC). No CUTPA Count was filed against Superior Walls. Then some three and a half years later at the very end of a long trial plaintiff seeks to add a CUTPA count against Superior Walls, after all discovery had been completed, and defendant had no opportunity to depose anyone on the CUTPA allegations, or challenge them by motion to strike or motion for summary judgment. The plaintiffs admit in their memorandum that they were aware "of this `voiding' of the warranty" when Ms. Ackert so testified at her deposition on March 3, 2009, nine months before the start of trial, but still made no motion to amend at that time or at any time until the very end of trial. The court holds that the requested amendment is too late, would be prejudicial to the defendant, and that the evidence to which the amendment would "conform" does not justify the addition of a CUTPA claim at the end of trial.
The transcript reference cited by plaintiff (12/4/09 Tr. 149) does not quote Ms. Ackert as using the word "void." She testified that after her inspection of the Tunison home she consulted with her engineer and decided that the warranty "was not in place for the Tunison's concerns," "because it was obvious to me that our guidelines and specifications had not been followed by the builder." (Tr. 149.) Earlier she testified that the warranty "was no longer in effect." (Tr. 139.) As a witness for the defendant she testified "[o]ur limited warranty is against sidewall water penetration and structural defects with the foundation. There's quite a bit of other language in there, but basically, what it says, overall if our builder's guidelines and specifications are not followed precisely, the warrantee would not be in effect." (Tr. 12/11/09, 173.) The court finds that the statement does not open the door to any unfair or deceptive trade practice, or to any unfair, immoral, unscrupulous conduct as prohibited by CUTPA. There was no attempt to hide the warranty or claim that it never existed. It was a decision, based on investigation and consultation, to take a legal position that the Tunison's claims were not covered by the language of the warranty. It was entirely with defendant's right to do so. In fact, the reasons stated by Ms. Ackert formed the basis of defendant's case as tried. Plaintiffs were not injured by the taking of this position other than being put to their burden of proof at trial. Certainly plaintiffs have not suffered any "ascertainable loss" from Ms. Ackert's position as required by § 42-110g(a) of CUTPA. In fact the court has found that the Tunisons had standing to make the breach of warranty claim, that the warranty was breached, and that plaintiffs are entitled to breach of warranty damages.
Under all these circumstances the objection to the request to amend the complaint to add a CUTPA count is sustained.
Special Defenses
The defendant has filed two special defenses: (1) that "Plaintiffs, Ronald Tunison and Kristin Tunison are not in privity of contract"; and (2) that "Plaintiffs' claims are barred by the expiration of time."
The lack of privity claim has been considered and addressed in the foregoing discussion and ruling under Count 59, breach of contract/warranty. There are no facts alleged, or no statute cited on the statute of limitations defense, nor has it been briefed. It is considered abandoned.
Damages
The plaintiffs are entitled to negligence damages on Count 55, and breach of contract/breach of warranty damages under Count 59. The contract limited warranty (Ex. 2, Terms and Conditions ¶ 5) specifies that "It is agreed by BUYER that SWHV's [Superior Walls of the Hudson Valley's] sole responsibility herein is to repair or replace defects and it shall not be liable for any compensatory, consequential, incidental, or other damages of any kind whatsoever."
The plaintiffs have disclosed the terms of their settlement with all defendants other than Superior Walls. Mr. Gerbert and his related companies settled for $200,000, plus an agreement for Mr. Gerbert to testify. They settled with Signature Homes to provide certain interior remedial work once the foundation issue was resolved (replacement of sheetrock, reinstallation of doors and windows, etc.). There is no evidence from the plaintiffs of the perceived value of the Signature Homes settlement. When asked that question, Mr. Tunison responded, "I would have to refer to my counsel on a dollar amount." (Tr. Tunison, 12/8/09, p. 188.) By extrapolating individual items from the plaintiffs' expert Mr. Shay's report (Ex. 22) Superior Walls values the Signature Home work at $46,460. Plaintiffs have settled with Marr Caruso Real Estate for $7,500, and with Focus Home Inspection for $5,000. In other words, they have settled for $212,000 in cash plus the value of the Signature Homes in-kind remedial work to the interior of the home. Plaintiffs admit that the value of these settlements must be deducted from any greater damages found to be due from Superior Walls.
Plaintiffs' rely primarily on the testimony of Christopher Shay of Domus Constructors, LLC whose testimony is summarized in his cover letter (Ex. 21) and Cost Estimate Report (Ex. 22). His total estimate to repair the home (including the damage caused to the upper floors) is $312,620.90 which includes $10,000 for relocation of the existing tenants during a two-month repair period. He contemplates, a lifting of the house off its sills by a crane ($50,000 contingency allowance) a total removal of the existing basement wall system and panels, and replacement of the foundation with an $80,000 conventional cast-in place footing, walls and reinforced slab on grade. Additionally' plaintiffs claim carrying costs incurred because they cannot sell the house in its present condition and have rented it to tenants since June 2007 for a rental of $3,500 per month which is about $1,400 per month less than the carrying costs on the first and second mortgages, taxes, insurance and upkeep. The court accepts those figures based on Mr. Tunison's undisputed testimony. June 2007 through today's date (September 30, 2010) comes out to 39 months plus a two-month repair period' when the house will be inhabitable is 41 months at $1,400 or total carrying costs of $57,400.
The problem with Mr. Shay's $312,600 number is that it is not supported by plaintiffs' engineer Christopher Cusanelli of Heimer Engineering who testified that the poured concrete foundation is "more of an optional thing" (TR. 12/9/09, p. 96) and "economically wasteful" ( Id. 93) and he acknowledged that the existing Superior Walls panels could be reused. Mr. Shay's estimate provides no alternate cost figure for re-using the existing panels. He also proposes a new steel beam and columns at $5,175 without any evidence that the existing steel has been damaged and could not be re-used. And he includes in his figure a new concrete slab when Superior Walls had nothing to do with the installation of or damage to the existing slab which was poured by another subcontractor after the basement wall had been installed. The court also has doubts about his $50,000 item for lifting the entire house with a crane, if indeed that can even be done. The jacking suggested by Mr. Cusinelli seems more reasonable. Because Mr. Gray does not provide sufficient itemization of individual line items to back out the unnecessary items and no cost figure to re-use and reinstall the existing wall panels, his report (Ex. 22) is of limited value except for some incidental items which are itemized and not covered by the Signature Homes settlement.
Defendant's expert James Quill included no repair estimates in his report, (Ex. D, Ex 20) but testified that the basement could be repaired by jacking up the house slightly off the sills in order to level the existing foundation walls by shoring them up with helial pilings, which he estimated at $100,000. (12/11 Tr., p. 54.)
The court finds the more credible evidence on damages to be that of Mr. Cusinelli. His solution is to jack up the house, remove the materials beneath the existing panels, "underpin" them with suitable new material, and reset them. His estimate to perform that remedial work is $150,000. (12/9/09 Tr. 94; Ex. 19.) He states that during this time the house will not be habitable.
The court will calculate damages by assuming that the interior repairs on the upper floors will be done in-kind by Signature Homes in accordance with its settlement obligation. It is therefore not necessary to put a dollar cost on that work. The damages the court finds to remediate the failed basement wall system, plus consequential damages is calculated as follows:
$ 7,000 ($212,500)
Underpinning, and resetting wall panels $150,000 Repairs to stoops, etc. (from Ex. 22) $ 8,625 Painting (from Ex. 22) $ 20,700 Carrying Costs $ 57,400 Tenant Relocation—2 mos Total Damages $243,725 Less: Total cash settlement with others Net Damages $31,225Since deduction of the consequential damages (the carrying costs) would bring the net damages to a negative number, only nominal damages can be assessed on Count 59.
Order
The Court finds for the plaintiffs on Count 55 and Count 59 and awards damages of $31,225 on count 55 and nominal damages of $10 on Count 59 which is included in the damages under Count 55. Total damages are $31,225, plus costs of suit as taxed by the Clerk per Practice Book Section 18-5. Judgment shall enter accordingly.