Opinion
No. CV06-5006140S
September 3, 2008
MEMORANDUM OF DECISION
In this case the Moores entered into a written contract with the defendant to construct a home (Paragraph 1 of complaint). Paragraph 2 of the complaint goes on to allege that "the defendant constructed said home in a negligent manner such that the foundation allowed water to enter into the basement area and settle in the basement." The parties closed on the house on May 24, 2002.
While the house was being constructed a flue was put in the basement and "rough plumbing" as well as a wood stove. Mrs. Moore testified all of this was done because she and her husband "had intentions of finishing the basement into an in-law apartment." Mrs. Moore also testified that the house was constructed with bay windows which were at the back of the house, these were followed down to the basement "so that there would be window access"; she also stated "we also have French doors for individual access into the basement, separate access." In this regard a Patricia Cyr testified who, according to her and Mr. Ferris, was his agent in the transaction with the Moores. The Moores' agent was a woman named Nancy Banning. In Cyr's folder for this case there was a fax she received from Banning which listed her cell number, home phone, and voice mail number. Cyr and Banning are listed on the contract the parties signed as the real estate agents. The contract was signed on December 16, 2001 and December 17, 2001 by the Moores and on December 20, 2001 by Mr. Ferris. The Banning fax was dated December 13, 2001 and sent December 15, 2001 and the fax information at the top of the fax says "from — Prudential CT Mad." The contract has Banning's name written in with "Prudential Connecticut Real . . . " under her name and the same voice mail number as in the fax. In Paragraph 4 of the fax from Banning, Banning asks a person identified as "Tricia" — "will builder include finishing basement in price, basic one big room, drop ceiling, industrial carpet, heat. In writing opposite this question, it says, "approximately $12,000 with arrow pointing to words `no additional.' " In fact the basement was not finished by the defendant. Ms. Cyr identifies this writing as hers and indicated she would have checked with Mr. Ferris before making responses. This document is sufficiently authenticated. Cyr's answers must be read with the posed questions and for purposes of the transaction both can be considered admissions by an authorized agent of Ferris. Cyr was handling the whole transaction, where would she get the responses to the questions but from Ms. Ferris, common sense would seem to indicate he would have known upon being questioned by his agent, Cyr, that his answers would be communicated to Banning, and thence to the Moores, cf Tierney v. American Urban Corp., 170 Conn. 243, 251 (1976).
To get to the heart of the dispute in this case the Banning document also says in Paragraph 5 "Assurance that the basement will be dry." The word "dry" is underlined twice and next to it Cyr wrote "yes." Mrs. Moore testified that the home delivered to her had cracks in the walls and the floor of the basement and that from the date of the closing and before, water seeped in. Water would come through the cracks and holes through which iron bars ran through the walls to strengthen the foundation. Moore said, "We've always had water in the basement . . . " Several photos were introduced into evidence by the plaintiffs; Mrs. Moore said most cracks were present at the time of the closing, a few appeared thereafter. Ferris sent employees out to repair one of the cracks a week or two after the closing. A year later he regraded the front of the yard because of puddling water. But according to Moore that did not reduce or have any impact on the water in the basement. Mrs. Moore said she tried to contact Ferris about the basement problems a couple of dozen times after the regrading and none of the calls were answered. She said he had no answering machine.
It should also be noted that Mrs. Moore testified that at the closing she and her husband reminded Mr. Ferris "that there was water in the basement and it needed to be repaired." She did not recall Ferris saying the basement would be dry at that time, but according to Mrs. Moore, he did say he would repair the water condition.
A Mr. Thody who is Guilford's Residential Building Inspector testified. He said the building code required basements that are meant to be habitable are "supposed to be waterproof." They are supposed to be dry. He inspected the basement area a couple of weeks before the closing. There was water by an oil tank and a fracture in the wall that "weeped a little bit." Thody testified Guilford subscribed to the State Building Code. He did issue a certificate of occupancy for the house which the amount of water he saw would not prevent. Thody testified that if the Moores were to finish the basement, the amount of water he saw would have to be remediated. At the time he inspected the basement, it was code-compliant. But the following did occur:
Q (Attorney Shea,) were you aware at that time of the inspection that the basement was intended to be habitated?
A No.
Q Would that fact that it was intended to be habitated change your answer as to whether it was code-compliant?
A Yes.
Mr. Ferris also testified. He stated he was not told prior to entering into the contract that the basement was to be used as living space and said he was never asked to give the Moores a quote to finish the basement. He testified that flues to accommodate a wood stove may have nothing to do with making the basement habitable — he has one and if the power goes out, a person can heat his house in an emergency by means of a wood stove. As to the so-called "rough plumbing" he said that would be installed if you wanted a washer and dryer in the basement. On cross, however, he was shown a copy of the plan for the house which indicated the laundry room was on the second floor; this room would presumably contain a washer and dryer.
At one point he testified he has observed cracks in basement walls of homes in general apparently, referring to ones he had built. He said it was not uncommon for cracks in walls and floors of basement foundations "right after the house is built." He also testified that water can penetrate through the cracks and this is managed by keeping water pressure from the walls. If water ponds against the walls, water is "going to find a crack in the foundation and get into your basement." The ground settles and this apparently causes the water to pond so Ferris advises homeowners to use earth or mulch to keep the ground from settling around the foundation. Ferris also testified that the Moores had a dog who dug around the foundations.
Ferris also agreed after the closing employees went to the home to patch a crack in the hole and a year after the closing, he regraded the yard. Ferris denies receiving calls from the Moores about basement leaks and said he does have an answering machine. Ferris said he saw Mrs. Moore on occasion after the closing but she said nothing about basement water but talked about a dispute the Moores were having with neighbors about a property line.
The plaintiff called Jeff Nelson to testify who works for Basement Systems. It addresses problems of water remediation and, for example, installs perimeter drain systems and sump pump systems. The Moores contacted his company in June 2004. After inspecting the basement Nelson proposed a drain system and the installation of two sump pump systems. Also recommended was a large area dehumidifier and a "bright wall panel system" to drain seven wall cracks that he saw and generally prevent moisture from coming into the basement. To the question "Q So is it fair to say that your system doesn't stop the water but it channels it into an area that's collected around the sump pumps so that the pumps can get it out of the basement?," he answered "A Yes." A contract was entered into and the work was performed at a charge of $14,260.
(1)
The defendant originally filed a special defense under Sections 52-581 and 52-584 of the General Statutes. In his post-trial brief it only relies on § 52-584 which provides for a two-year statute of limitations on actions to recover damages for injury to real or personal property. The argument runs as follows: "The plaintiff's house was completed and purchased on or before May of 2002. This action was brought by writ, summons, and complaint dated August 11, 2006 more than four years after plaintiff alleged complaints about moisture in the basement." The defendant maintains the action was brought in negligence.
It is necessary to examine the language of the complaint to determine the nature of the cause of action. The first three paragraphs define the issue before the court.
1. On or about December 17, 2001 the plaintiffs entered into a written contract with the defendant, Ferris Builders Inc., to construct a home in Guilford, Connecticut.
2. The defendant constructed said home in a negligent manner such that the foundation allowed water to enter the basement and settle in the basement area.
3. During the time of construction and up to the date of closing the defendant through Ron Ferris orally represented that the basement would be dry and that the defendant would make any necessary repairs to assure the basement was dry.
The mere fact that the claim is made in paragraph two that the defendant performed work under the written contract in a negligent manner does not defeat the characterization of the complaint as lying in contract. In the most general reference work available, 17 Am. Jur.2d § 627 in the article on contracts states that:
A contracting party may be bound by the terms of the contract to perform it in a good and workmanlike manner. Moreover, as a general rule, there is implied in every contract for work or services a duty to perform it skillfully, carefully, diligently, and in a workmanlike manner.
Failure to comply with this implied duty to perform in a skillful and workmanlike manner may not only defeat recovery but may entitle the other party to damages resulting from the unskillful and unworkmanlike performance . . . With respect to the skill required of a person who is to render 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.
Our state does not appear to depart from this general position that a contract theory of recovery can be advanced for an alleged brief of an explicit or implied promise to perform a certain service in a competent manner. For example, in the older case of Hickey v. Slattery, 103 Conn. 716 (1926) a contract theory of recovery was allowed. The court said:
The plaintiff is suing the defendant, a surgeon, for pain, suffering, incapacity, expenditures and losses which he alleges to be due for the failure of the defendant properly to set and treat his broken arm. The complaint is in two counts, the first relying upon the implied obligation of the defendant, arising out of his employment, to use proper skill and care, and the second resting upon the alleged negligence of the defendant in the way in which he set and cared for the arm. Undoubtedly, in such a case, the plaintiff may lay his action either in contract or tort, pp. 718-19.
See also Mac's Car City, Inc. v. DeNigris, 18 Conn.App. 525, 529-30 (1989); Bria v. St. Joseph Hospital, 153 Conn. 626, 630-31 (1966).
An indication that the plaintiff was proceeding under a contract theory and that the defendant should have had notice of this is underlined by paragraph 3 where the alleged oral representations of Mr. Ferris concerning a dry basement were mentioned. Insofar as a separated oral agreement is being alleged such an allegation may raise problems under the parol evidence rule even if it is suggested the representation only defines the obligations under the written contract. But it is totally irrelevant to any negligence claim and indicates a contract theory is being advanced. Paragraph 3 could also be construed as a promissory estoppel claim which at least takes it out of the ambit of § 52-584.
In any event the contract in this case in paragraph 11 states that the "Seller will complete the construction contemplated hereby in a reasonable and workmanlike manner and in accordance with all laws and regulations including the Basic Building Code of the State of Connecticut and the plans and specifications of this agreement."
For all of the foregoing reasons the court concludes the claim lies in contract in this case. But even if the foregoing analysis is found to be wanting there is another approach that can be taken to avoid application of the negligence statute of limitations. The issue of whether a complaint sounds in contract or tort when statute of limitations questions are raised can present a difficult question especially for example in legal or medical malpractice cases. The New York Court of Appeals has fashioned a method of analysis in these type of cases which has general applicability in all these contracts for service cases. In Santulli v. Englert Reilly, 579 N.Y.S.2d 324 (1992) the court was deciding a statute of limitations question under New York law in a legal malpractice case. Referring to its statute of limitations the New York solution is as follows:
Where a plaintiff fails to commence an action to recover damages on a legal malpractice claim within three years of the accrual of the cause of action (tort limitation), and seeks to rely on the six-year contract statute of limitations to protect the claim, the damages recoverable will be limited to those damages recoverable for the breach of contract. To the extent the legal malpractice claim seeks damages different from or greater than those customarily recoverable under a breach of contract claim, (PLR 214) (6) (tort limitations statute) will govern, pp. 328-29.
Here the claim is for money damages by way of reimbursement for monies spent with a private contractor to correct the alleged lack of skill of the defendant, clearly a breach of contract type of recovery.
(2)
Now the court will attempt to discuss the merits of the claim.
The complaint in this case could have used the benefit of a request to revise. As it is the complaint, the evidence produced at trial, and the plaintiff's post-trial brief can be construed as advancing three theories, an action on the written contract, an action based on oral representations and in effect an oral agreement, and promissory estoppel with reference to Section 90 of the Restatement (2d) Contracts. The court will make certain findings relevant to its decision.
As noted the court does make the following findings. Mrs. Cyr was an agent for the defendant; she received from the Moores' agent a fax which indicated the Moores expected the basement to be dry. Cyr in effect responded "yes." At the closing Ferris said he would repair the water leakage in the basement — obviously this conforms to the representations made by his agent. The request for a dry basement is an indication to the court that, along with other factors to be discussed shortly, the Moores intended to make the basement habitable. In the communication from the agent for the Moores, the Moores wanted a quote for a finished, i.e., habitable basement. Cyr quoted a price to them. The defendant put a flue in for a wooden stove which could be an indicia, but not necessarily, an indication to a reasonable builder that the basement area at some time in the not too distant future would be used for habitation — here by Mrs. Moore's in-laws. Rough plumbing was installed in the basement. Mr. Ferris surmised that this could have been done for the purpose of installing a washer-dryer. But the evidence indicates that there was a laundry room on the second floor of the house. Furthermore, why would the building have included French doors to give access to the basement and windows down to that location — hardly to give strollers on the property a view of the hypothetical washer-dryer or the wood stove.
The court also concludes that in fact extensive leaking occurred in the cellar from before and from the date of the closing. Mrs. Moore and Mr. Ferris struck the court as honest witnesses. Mrs. Moore lives in the house and as a result of that testified to leaking from several cracks; Mr. Ferris is a very busy man constructing many houses and apart from one employee repairing a crack shortly after the closing and exterior regrading he had not been in the basement area after the closing. The point is that two and a half years after the closing the Moores spent over $14,000 to remediate water conditions in the basement.
(a)
The court will now try to discuss several contract or quasi-contract theories that can be advanced under this complaint. Throughout the trial objections were made to any alleged parole evidence about a guarantee by Ferris of a dry basement. There is no specific reference to the installation of a dry basement in the contract and the defendant refers to paragraph 11 which specifically provides that "`all other warranties, express or implied, are expressly waived,' to impose upon the defendant a warranty of a dry basement based upon plaintiffs' testimony would be violative of the parole evidence rules. That rule forbids the use of parole evidence to vary or contradict the terms of a written contract." Battalino v. Van Patten, 100 Conn.App. 155, 167-68 (2007); Landry v. Spitz, 102 Conn.App. 34, 57-58 (2007).
(1.)
First the court will discuss two theories of recovery not based on the actual written words of the contract.
What does the parole evidence rule exactly dictate? The court in Heyman Associates No. 1 v. Ins. Co. of Pennsylvania, 231 Conn. 756, 779-81 (1995) said the following:
The parol evidence rule does not of itself, therefore, forbid the presentation of parol evidence, that is, evidence outside the four corners of the contract concerning matters governed by an integrated contract, but forbids only the use of such evidence to vary or contradict the terms of such a contract. Parol evidence offered solely to vary or contradict the written terms of an integrated contract is, therefore, legally irrelevant. When offered for that purpose, it is inadmissible not because it is parol evidence, but because it is irrelevant. By implication, such evidence may still be admissible if relevant (1) to explain an ambiguity appearing in the instrument; (2) to prove a collateral oral agreement which does not vary the terms of the writing; (3) to add a missing term in a writing which indicates on its face that it does not set forth the complete agreement; or (4) to show mistake or fraud . . . These recognized exceptions are, of course, only examples of situations [in which] the evidence (1) does not vary or contradict the contract's terms, or (2) may be considered because the contract has been shown not to be integrated; or (3) tends to show that the contract should be defeated or altered on the equitable ground that relief can be had against any deed or contract in writing founded in mistake or fraud. (Citations omitted; internal quotation marks omitted).
Also see Shilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 277-78 (2003).
The point is that there is nothing in the written contract that precludes an agreement for the installation of a dry basement and Cyr's representations and the representations of Ferris at the closing establish "a collateral oral agreement that does not vary the terms of the contract." Furthermore, in light of representations and their timing — one at the closing — any other result would allow a mistake or fraudulent result to occur. This is especially so in light of Mr. Thody's testimony that the Building Code would require a dry basement if it were to be inhabited. That conclusion as to the prospective use of this space is supported by Cyr's representations, installation of the flue and rough plumbing, the construction and intended use of the French doors and reach of the windows and underlines what the fair expectations of the parties were and/or should have been. Paragraph II also states that "Buyer's remedies are limited to repair or replacement of the defective improvement . . . " Section 1 makes clear that "improvements" includes the whole building or house which would necessarily include the foundation and basement. If there were not a side oral agreement or (to be discussed later) a dry basement obligation even under the contract why did Ferris send employees to repair a crack in the basement wall shortly after the closing and regrade the property many months after the closing.
(2.)
The complaint also allows and under the facts here it can be said that Section 90, "Promissory Estoppel" of the Restatement (2d) Contracts, applies. That section provides that:
A promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee and which does induce such action or forbearance is binding, if injustice can be avoided only by enforcement of the promise.
Given the numerous factors supporting the fact that the Moores had reason to believe and were led to believe a dry basement would be installed because of their wish to have a habitable basement it is difficult to see how recovery can be avoided under a section 90 theory. The case of D' Ulise-Cupo v. Board of Directors, 202 Conn. 206, 213 (1987) refers to and adopts the language of Section 90.
(b)
It can also be said that in light of what occurred here there is a violation of the written contract. One of the exceptions to the parole evidence rule permits the introduction of evidence to "explain an ambiguity" or to add a missing term in a writing which on its face does not set forth the complete agreement. Here specifications section of the contract mentions twenty-three matters running from "site work" through "foundation." "Windows," "plumbing," etc. The windows section merely says "(a) Harvey's Vicon:" Insulated glass, vinyl clad, with full tilt in sash and full screens." The "foundation" section has previously been mentioned; it has no reference to a dry basement but does not exclude it. The "plumbing" specification is as bare bones as one could define with no reference to as to the layout of the plumbing regarding the entire house just as the windows section gives no description of their full length. The plumbing section refers to — "washer/drying hookup" but gives no indication of the location; one has to guess at the location by examining the second floor floor plan attached to the specifications. The court could find no reference to the indoor vent system. Yet a flue was put in the basement. Rough plumbing was also located there. The "doors" section along with the floor plan only indicates their location as to the first and second plan. And the twenty-three specifications are preceded by a confusing "note" all of which is underlined.
PLEASE NOTE: Specifications for each home may vary according to individual custom, floor plans, availability of materials and owner preferences. These specifications should be reviewed on an individual basis.
Yet from the evidence the flue, rough plumbing, French doors to the basement, and window length to basement indicate the Moores intended the basement to be habitable and Ferris as an experienced builder knew or should have known this to be the case in a situation where the just mentioned matters do not actually contradict the language in the contract but just amplify its meaning.
That Ferris believed his obligations under the contract included a dry basement is underlined, as previously noted by his post-closing repair and regrading (see par. 11 of contract).
The question remains was there a violation of the written contract?
Mr. Thody, Guilford's Building Inspector, indicated if the basement were to be a inhabited space it would have to be dry and his decision to issue a certificate of occupancy would have been different if he knew the space was to be inhabited and the code would have been violated. He also testified Guilford subscribes to the State Building Code. The court in Considine v. City of Waterbury, 279 Conn. 830, 861-69 (2006) held that a building code is relevant and material to the standard of care. This contract in Paragraph 11 seems to go further than Considine demands stating construction will be completed in compliance with the Building Code. With the additions to the contract permitted by the above referenced exceptions or elaborations to the parole evidence rule, the court concludes the written contract was breached.
In any event for all the foregoing reasons the court awards the plaintiffs $14,620 plus costs. It should be noted that although the defendant of course contested any obligation on this Basement System bill they did not contest the amount of the bill or the price actually charged by Basement Systems.