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Morgillo v. Empire Paving, Inc.

Appellate Court of Connecticut

July 7, 2015

JOHN MORGILLO
v.
EMPIRE PAVING, INC

Argued, February 19, 2015

Action to recover damages for, inter alia, breach of contract, and for other relief, brought to the Superior Court in the judicial district of New Haven at Meriden, where the parties entered into a settlement agreement; thereafter, the matter was tried to the court, Oliver, J.; judgment for the plaintiff, from which the defendant appealed to this court.

SYLLABUS

The plaintiff, who had hired the defendant paving company to repave his driveway at his residential property, sought to recover damages for breach of contract and negligence. The parties had entered into a contract pursuant to which the defendant was to repair and repave the plaintiff's driveway in exchange for the installation of a swimming pool at property owned by the defendant's vice president. Within a week after the contract had been executed, the plaintiff noticed many problems with the paving, especially along the edges of the driveway, which were bordered by certain blocks. The plaintiff commenced this action against the defendant in a two count complaint, alleging breach of contract and negligence. Thereafter, the parties reached a settlement agreement by which the plaintiff agreed to reset the blocks and the defendant agreed to repair and resurface the driveway. After the second repairs were completed, the plaintiff again noticed problems with the paving, and, as a result, he filed an amended complaint, alleging breach of contract and negligence in counts one and two with respect to the original contract and in counts three and four with respect to the settlement agreement. The defendant filed an answer and a special defense, claiming that the problems with the paving were caused by the plaintiff's improper installation of the blocks. The matter was tried to the trial court, which rendered judgment in favor of the plaintiff and awarded him $36,550 in damages for the cost of removing and replacing the driveway with asphalt in accordance with the original contract. The defendant then appealed to this court.

Held :

1. The defendant could not prevail on its claim that the trial court improperly found that it had failed to comply with the terms of the settlement agreement: contrary to the defendant's claim, the defendant was required, pursuant to the implied condition of workmanship present in every service contract, to complete the second repairs to the plaintiff's driveway with the degree of care exercised by skilled driveway paving companies in the construction industry; furthermore, there was sufficient evidence in the record from which the trial court reasonably could have concluded that the defendant failed to perform the repairs in a workmanlike fashion, including testimony from the plaintiff's expert witness that the defendant's repairs fell below the industry standard, which the trial court was free to credit.

2. The trial court properly found that the defendant failed to prove its special defense that the plaintiff was precluded from recovering damages because his improper installation of the blocks caused the problems with the paving; the trial court's finding was not clearly erroneous, as it was the province of that court to credit the testimony of the plaintiff and his expert witnesses over that of the defendant that the blocks were not the cause of the damage to the driveway, which provided sufficient evidence to support the court's finding.

3. The defendant could not prevail on its claim that the trial court improperly rendered judgment in favor of the plaintiff on the first and second counts of the amended complaint, alleging breach of contract and negligence with respect to the original complaint: the trial court did not improperly permit the plaintiff to enforce both the original contract and the settlement agreement in violation of the rule in Audubon Parking Associates Ltd. Partnership v. Barclay & Stubbs, Inc. (225 Conn. 804, 626 A.2d 729) that provides a party alleging breach of a settlement agreement may enforce either the original contract or the settlement agreement but not both, as the court properly rendered judgment in favor of the plaintiff on all four counts of the amended complaint because, in order to recover damages under the first and second counts, the plaintiff was required to prove breach of both the original contract and the settlement agreement; moreover, the trial court properly determined that the plaintiff did not waive his right to bring an action under the original contract when he entered into the settlement agreement because, as specifically found by the trial court, the defendant breached the settlement agreement, and as such, the plaintiff was permitted by law to enforce either the original contract or the settlement agreement; furthermore, it was evident from the judgment and the circumstances surrounding it that the trial court correctly proceed with the understanding that the plaintiff sought enforcement of the original contract.

4. The trial court did not abuse its discretion in awarding the plaintiff damages based on the cost of repairing his driveway rather than on the diminution in value of his property: because the plaintiff presented evidence of the cost of repairing his driveway and the defendant did not present any evidence that the cost of repair exceeded the former value of the property or that the repairs would enhance the value of the property over what it was before it was damaged, the defendant failed to meet its burden of proving that repairing the driveway would result in economic waste; furthermore, because the cost of repair and diminution in value are, in effect, alternative measures of damages and this court had determined that the damages awarded were based on the defendant's breach of the original contract, the defendant's arguments that the plaintiff was required to present evidence of the diminution in value of his property and that he failed to distinguish between the damages that he suffered as a result of the breach of the original contract and those he suffered as a result of the breach of the settlement agreement were unavailing.

David L. Weiss, for the appellant (defendant).

Jeremiah J. O'Connor, for the appellee (plaintiff).

Gruendel, Alvord and Flynn, Js.

OPINION

GRUENDEL, J.

[158 Conn.App. 401]  The defendant, Empire Paving, Inc., appeals from the judgment of the trial court rendered in favor of the plaintiff, John Morgillo. On appeal, the defendant claims that the trial court improperly (1) found that the defendant did not comply with the terms of the parties' settlement agreement, (2) found that the defendant failed to prove its special defense, (3) rendered judgment in favor of the plaintiff on the first and second counts of his amended complaint, and (4) awarded damages to the plaintiff based on the cost of repair of the plaintiff's driveway rather than the diminution in value of the plaintiff's property. We affirm the judgment of the trial court.

The record reveals the following relevant facts and procedural history. In June, 2005, the plaintiff and the defendant entered into a contract, in which the defendant agreed to repair and repave the driveway at the plaintiff's residential property at 8 Cooke Road in Wallingford at a cost of $27,475.20. The parties further agreed that the plaintiff, through his employer, Brothers Pool Enterprises, Inc., would pay for the repairs to his driveway by installing a swimming pool for Earl Tucker, the vice president of the defendant, at his property in Branford. The defendant subsequently completed the [158 Conn.App. 402] repair work on the plaintiff's driveway and the plaintiff installed the pool for Tucker. At the time the parties entered into the contract, and on the date the defendant completed the repair work, the plaintiff's driveway was bordered by Belgian blocks.

Within a week of the repair work completed by the defendant, the plaintiff noticed problems with the condition of his driveway, including " [c]racking, skipped spots, [and] dents." The plaintiff also observed potholes and " crumbling" along the edges of the driveway. The plaintiff complained to the defendant about the condition of his driveway, and the defendant reduced the cost of the driveway repairs from $27,475.20 to $22,500. The plaintiff also asked the defendant about correcting the problems with the driveway. The defendant offered to repair the driveway again at an additional cost of $2250. The plaintiff did not agree to the defendant's proposal.

The plaintiff then hired legal counsel to assist him in his dispute with the defendant. The plaintiff's counsel contacted the defendant regarding the problems with the driveway. The defendant responded in a letter dated May 17, 2006, in which it asserted that the problems with the plaintiff's driveway had occurred ...


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