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Girolametti v. Michael Horton Associates, Inc.

Court of Appeals of Connecticut

June 6, 2017


          Argued December 8, 2016 and December 9, 2016

         Appeal from Superior Court, judicial district of Waterbury, Complex Litigation Docket, Agati, J.

          Brian J. Donnell, with whom, on the brief, was Michael G. Caldwell, for the appellants in AC 38208 and the appellees in AC 38093, AC 38094, AC 38095, AC 38097, AC 38098, and AC 38099 (plaintiffs in both cases).

          Daniel J. Krisch, with whom was Frederick E. Hedberg, for the appellee in AC 38208 (defendant in the first case Rizzo Corporation).

          Deborah Etlinger, with whom, on the brief, was Matthew Horowitz, for the appellant in AC 38093 (defendant in the first case Lindade Construction, Inc.).

          Anita C. Di Gioia, for the appellant in AC 38094 (defendant in the first case Dominic Quaraglia Engineering, Inc.).

          Kevin M. Godbout, for the appellant in AC 38095 (named defendant in the first case).

          Jared Cohane, with whom, on the brief, was Luke R. Conrad, for the appellant in AC 38097 (defendant in the first case Test-Con, Inc.).

          Curtis L. Brown, pro hac vice, with whom was Davis S. Hardy, for the appellant in AC 38098 (defendant in the second case Bluescope Buildings of North America, Inc., et al.).

          Sean R. Caruthers, for the appellant in AC 38099 (defendant in the second case Pat Munger Construction Company, Inc.).

Sheldon, Mullins and Bishop, Js


          BISHOP, J.

         These seven appeals arise from disputes regarding the construction of an expansion to a Party Depot Store (store) located in Danbury. The owners of the store, the plaintiffs John Girolametti, Jr., and Cindy Girolametti, brought actions against the general contractor, Rizzo Corporation (Rizzo), and seven subcontractors and sub-subcontractors who worked on the construction project, on various claims relating to the quality of the work provided. All eight defendants filed motions for summary judgment.[1] The owners of the store appeal from the court's judgment granting Rizzo's motion for summary judgment. The subcontractors and sub-subcontractors appeal from the court's judgment denying all of their motions for summary judgment.[2]Although each appeal involves some unique facts and implicates the interests of parties specific to that appeal, the factual backdrop to these appeals is sufficiently common to enable us, on review, to set forth the facts that underlie them in one background statement. Additional facts will be noted, as appropriate, in our discussion of each appeal.



         In 2007, the plaintiffs, John Girolametti, Jr., and Cindy Girolametti, were the owners of property located at 43 South Street in Danbury. Later, on March 4, 2008, the Girolamettis transferred title to that property to 43 South Street, LLC, an entity of which they are the sole members. The Girolamettis are also the sole shareholders of Party Depot, Inc., an entity that leased the property from 43 South Street, LLC, on February 27, 2008. Although the Girolamettis and all of their foregoing entities are parties to these appeals, John Girolametti, Jr., has acted on behalf of all such parties in regard to the Party Depot project since its inception. Accordingly, for economy of language, we refer to the Girolamettis and their entities as Girolametti throughout our discussion of the appeals unless otherwise appropriate. Similarly, we refer to the Party Depot project simply as the project.


         The Project

         In June of 2007, Girolametti submitted a proposed building contract to the defendant Rizzo, a Connecticut corporation located in Danbury, under which Rizzo would serve as the general contractor for the construction of an expansion of the store. The project was to be designed by architect Russell J. Larrabee and structurally engineered by Richard Marnicki of Marnicki Associates, LLC. Between the date on which the contract was first proposed by Girolametti, June 22, 2007, and the date on which it was signed by Rizzo, November 12, 2007, several changes were made to the project. Most notably, the parties agreed to alter the project's original design by using a pre-engineered building (PEB), which was to be added to the existing structure. Due to this change, Girolametti and Marnicki could not come to terms as to Marnicki's services for the value engineering requirements of the anticipated PEB, and Marnicki left the project. As a result of his departure, Marnicki, whose design specifications for the project had previously been submitted to Danbury's municipal authorities, contacted the city with instructions not to use his structural drawings for permitting purposes.

         The contract ultimately signed by Rizzo and Girolametti was on an American Institute of Architects ‘‘Standard Form of Agreement Between Owner and Contractor'' and provided for a contract price of $2, 435, 100. The agreement included, inter alia, a provision requiring the submission of all disputes regarding the project between the owner and the contractor to binding arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association. The contract also had an article concerning subcontractors, which provided in relevant part: ‘‘By an appropriate agreement, written where legally required for validity, [Rizzo] shall require each subcontractor, to the extent of the work to be performed by the subcontractor, to be bound to [Rizzo] by the terms of the contract documents and to assume toward [Rizzo] all the obligations and responsibilities which [Rizzo], by these documents, assumes toward [Girolametti] and [Larrabee]. Said agreement shall preserve and protect the rights of [Girolametti] and [Larrabee] under the contract documents with respect to the work to be performed by the subcontractor so that the subcontracting thereof will not prejudice such rights, and shall allow to the subcontractor, unless specifically provided otherwise in the [Rizzo]-subcontractor agreement, the benefit of all rights, remedies and redress against [Rizzo] that [Rizzo], by these documents, has against [Girolametti]. Where appropriate, [Rizzo] shall require each subcontractor to enter into similar agreements with his sub-subcontractors. [Rizzo] shall make available to each proposed subcontractor, prior to the execution of the subcontract, copies of the contract documents to which the subcontractor will be bound by this paragraph 5.3, and identify to the subcontractor any terms and conditions of the proposed subcontract which may be at variance with the contract documents. Each subcontractor shall similarly make copies of such documents available to his sub-subcontractors.''

         As plans were evolving from an architect designed and individually engineered building to the purchase of a PEB for the project addition, Rizzo, in July of 2007, entered into a subcontract with the defendant Michael Horton Associates, Inc. (Horton), a Branford corporation engaged in the business of providing professional structural engineering services. Under this contract, Horton was to design the lower level parking garage structure and the supported floor slab at grade level with the understanding that the superstructure of the building above grade level would be designed by the PEB manufacturer. Horton also agreed to develop a snow drift load plan for the existing building roof structure, to include an analysis of the existing roof framing and a design for any needed framing reinforcement in this area. The contract amount for Horton's services was $23, 000.

         Consistent with the understanding between Girolametti and Rizzo that the project would involve a PEB, Rizzo entered into a $402, 000 subcontract with the defendant Pat Munger Construction Company, Inc. (Munger), a Connecticut corporation located in Bran-ford, for the purchase and erection of a pre-engineered steel building for the project. The subcontract provided, inter alia, that Munger would provide Rizzo and Larrabee with proposed shop drawings, as furnished by the building manufacturer for the purpose of completely describing the details of the PEB construction. In a portion of the agreement regarding Munger's potential liability, the parties agreed that Munger would be liable to Rizzo ‘‘for any direct costs [Rizzo] incurs as a result of [Munger's] failure to perform this subcontract in accordance with this Agreement. [Munger's] failure to perform includes the failure to perform of its subcontractors of any tier and any [suppliers].''

         Pursuant to its subcontract with Rizzo, Munger, in turn, entered into a sub-subcontract with Varco Pruden Buildings, Inc. (VP), an Ohio corporation that later merged with the defendant BlueScope Buildings North America, Inc. (BlueScope), for the purchase of the PEB.[3]At the time, Munger was an authorized builder of VP manufactured buildings. In conjunction with this order, the defendant Steven Oakeson, an employee of Blue-Scope and a licensed professional engineer, signed and sealed the final erection drawings for the PEB ordered by Munger for the project.

         Rizzo also subcontracted with the defendant Lindade Corporation (Lindade), located in Bridgeport, to perform construction services in connection with the project. Generally, Lindade's undertaking involved carpentry services in both the existing building and the anticipated addition. The contract price for Lindade's services was $245, 988. Notably, Lindade's agreement with Rizzo contained the following provisions. Section 1 (b) of the agreement provides: ‘‘[Lindade] assumes toward [Rizzo] all obligations, risks, and responsibilities for the Work, which [Rizzo] assumes toward [Girolametti] in the Contract Documents, and shall be bound to [Rizzo] in the same manner and to the same extent [Rizzo] is bound to [Girolametti] by the Contract Documents.'' Section 2 (f) of the agreement provides: ‘‘[Lindade] acknowledges that [Girolametti's] payment to [Rizzo] for any work performed by [Lindade] is an express condition precedent to any . . . payment to [Lindade from Rizzo] and that [Rizzo] is under no obligation to make any partial or final payments to [Lindade] until and unless [Girolametti] first pays [Rizzo]. . . .'' Section 4 (b) of the agreement provides: ‘‘[Lindade] shall be liable to [Rizzo] for any costs [Rizzo] incurs as a result of [Lindade's] failure to perform this subcontract in accordance with its terms. [Lindade's] failure to perform includes the failure to perform of its subcontractors of any tier and all [suppliers]. [Lindade's] liability includes, but is not limited to, (1) damages and other delay costs payable by [Rizzo] to [Girolametti] . . . .'' Section 9 (a) of the agreement provides: ‘‘If, any action by [Girolametti] or involving the Contract Documents is reason for any dispute between [Rizzo] and [Lindade], [Lindade] agrees to be bound to [Rizzo] as [Rizzo] is bound to [Girolametti] by the terms of the Contract Documents and by any preliminary and final decisions or determinations made by the party, board or court the Contract Documents authorize, or by law, whether or not [Lindade] is a party to such proceedings. . . .''

         Lindade, in turn, entered into a sub-subcontract with the defendant Domenic Quaraglia Engineering, Inc. (Quaraglia), a Massachusetts corporation, for structural engineering services in connection with the project. Specifically Quaraglia undertook to design and detail the infill stud wall and canopy roof along one wall of the building in accordance with architectural and structural drawings. The contract price for Quaraglia's services was $3825.

         The last party to these appeals is the defendant Test-Con Inc. (Test-Con), a Connecticut corporation with its principal place of business in Danbury. Girolametti retained Test-Con while the project was underway to perform construction material inspection and testing services as periodically requested by Girolametti, for which Girolametti, in turn, was obligated to pay Test-Con an hourly fee based on the particular scope and focus of inspection and testing requested.


         The Arbitration

         Work on the project proceeded and was completed by November 3, 2008, the date on which the city of Danbury awarded a certificate of occupancy for the store. The parties, however, had disputes regarding their respective rights and obligations, for which Rizzo sought resolution through arbitration. Accordingly, on April 29, 2009, Rizzo applied for arbitration through the American Arbitration Association, claiming that Girolametti owed it further sums beyond the contract price for extra work performed and costs incurred on the project. In response, Girolametti filed a counterclaim, seeking compensation of $406, 431 for the cost of repairing Rizzo's alleged defects and completing the project and for certain credits claimed by Girolametti, and the additional sum of $354, 572 for lost income caused by Rizzo's alleged failure to complete the project in a timely and proper manner.

         Before the commencement of the arbitration, both parties filed memoranda of law. In its submission to the arbitrator, Girolametti alleged that Rizzo was responsible for multiple construction defects. Girolametti claimed that Rizzo had ‘‘failed to provide a pre-engineered structure that complied with the intent of the original design'' and that ‘‘some of the most fundamental construction elements were completely eliminated.'' Additionally, while the arbitration was pending, Marnicki provided Girolametti with a report concerning his review of the construction, with particular regard to design issues concerning loading factors and the building's load carrying capacity.[4]

         The arbitration hearings commenced in December, 2009, and were concluded on December 15, 2010, after thirty-five days of hearings. The record reflects that on December 8, 2010, the thirty-third day of the hearings, Girolametti made the decision to no longer participate in the hearings, despite the urging of the arbitrator that Girolametti proceed with the presentation of his damages claims.

         On March 28, 2011, the arbitrator issued his award, in which he ordered Girolametti to pay Rizzo $508, 597 for sums due, after accounting for credits due to Girolametti on the basis of evidence during arbitration, with interest to run at the rate of 5 percent per annum until the award was fully paid.[5] The arbitrator also ordered Rizzo to provide Girolametti with close out materials including warranties from the contractor and the subcontractors. With respect to claims made by Girolametti, the arbitrator stated: ‘‘[Girolametti] made a conscious and informed decision to no longer attend the scheduled [American Arbitration Association] hearings and intentionally refused to present any evidence or expert witnesses to explain or otherwise justify any alleged damages. The only conclusion that can be drawn from this decision is that either [Girolametti] did not incur any damages due to [Rizzo's] construction of the project, or [Girolametti] was unable to prove any of the damages [he] alleged in [his] prehearing brief.''

         Nonetheless, the arbitrator did discuss and assess Girolametti's claims as part of his written award. With respect to structural issues, the arbitrator rejected Girolametti's claim that the second floor of the building was not being occupied due to safety concerns. Rather, the arbitrator found that Girolametti was not permitted by Danbury zoning regulations to use the second floor for any purpose, and in fact that the city, after conducting an inspection, had found the structure to be safe with no reason to restrict or remove its certificate of occupancy. The arbitrator concluded: ‘‘[Girolametti] is not entitled to any damages or credits for structural issues.''


         The Underlying Cases

         The dispute between Girolametti and Rizzo that began in arbitration ultimately metastasized into litigation involving Girolametti and Rizzo and several other entities that performed work on the project. On December 15, 2010, while the arbitration hearings were still in progress, Girolametti filed a declaratory judgment action in the Danbury Superior Court, seeking a determination that its contract with Rizzo was void, and therefore that it was not obliged to submit its dispute with Rizzo to arbitration. See Girolametti v. Rizzo Corp., Superior Court, judicial district of Danbury, Docket No. CV-11-6005230-S (January 3, 2013). While the declaratory judgment action was pending, the arbitrator issued his award, on March 28, 2011. Thereafter, Rizzo applied, in the declaratory judgment action, to have the court confirm the award. Id. The court granted Rizzo's application and confirmed the arbitration award. Id. The court's judgment later was affirmed by this court. See Girolametti v. Rizzo Corp., 152 Conn.App. 60, 97 A.3d 55 (2014).

         Also, on May 18, 2011, more than thirty days after receiving notice of the arbitration award, and after the court had confirmed the award, Girolametti filed an application in the Danbury Superior Court to vacate that award on the basis of various alleged improprieties. See Girolametti v. Rizzo Corp., 52 Conn.Supp. 592, 77 A.3d 217 (2012). Thereafter, Rizzo filed a motion to dismiss the application to vacate because of its untimeliness, which the court granted. Id., 601. On appeal, this court affirmed the court's judgment of dismissal. See Girolametti v. Rizzo Corp., 144 Conn.App. 77, 70 A.3d 1162 (2013).

         Two actions that have since been consolidated underlie the present appeals. By complaint filed March 22, 2011, after the arbitration hearings had concluded but before the issuance of the arbitration award, Girolametti brought an action in the Danbury Superior Court against Horton, alleging that Horton had been negligent in the performance of engineering services in connection with the project. Through an apportionment complaint, Horton brought into the litigation as apportionment defendants Rizzo, VP, Quaraglia, Lindade, and Test-Con.[6] Thereafter, Girolametti filed a fourth amended complaint, dated August 7, 2014, in which he made direct claims against Horton, Rizzo, Quaraglia, Lindade, and Test-Con. Second, on November 30, 2011, Girolametti brought an action in the Dan- bury Superior Court against VP, BlueScope, Oakeson, Munger, and Rizzo. Thereafter, on July 16, 2014, Girolametti filed a third amended complaint in that matter, in which he removed direct claims against Rizzo, but maintained direct claims against VP, BlueScope, Oakeson, and Munger.

         At the heart of many of Girolametti's claims in these underlying cases are the design and construction of the steel joists, engineered by a subcontractor of VP, Commercial Metals Company, to support the second floor of the building (defective joists claim). Each joist is comprised of two parallel steel bars that are connected by computer designed web reinforcements, which create a structural beam. Steel decking and a reinforced concrete slab sit on top of the structural beams. Girolametti alleged that the joists' design was defective, did not comply with the project's design requirements, and lacked the required loading capacity. Girolametti further alleged that many of the contractors, subcontractors, and sub-subcontractors were aware of these alleged defects and intentionally hid them from Girolametti.

         In the actions underlying these appeals, each of the defendants moved for summary judgment against Girolametti on the grounds of res judicata, collateral estoppel and, in one instance, Girolametti's failure to timely move to vacate the award. In response, the court granted the motion filed by Rizzo but denied the motions for summary judgment filed by the other defendants on the ground that they lacked privity with Rizzo by virtue of not having been parties to the arbitration. These appeals followed.



         Having set forth the common facts and procedural history of these appeals, we now detail the legal principles that are germane, albeit with varying emphasis, to the claims presented on appeal.


         Standard of Review

         We address first our standard of review. ‘‘In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact. . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent. . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the non-moving party has no obligation to submit documents establishing the existence of such an issue. . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue. . . . [I]t is only [o]nce [the] defendant's burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial.'' (Citation omitted; internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319-20, 77 A.3d 726 (2013). The scope of our review of the trial court's decision to grant or deny a defendant's motion for summary judgment is plenary. Id., 313.

         The applicability of the doctrines of res judicata and collateral estoppel present questions of law over which we employ plenary review. Lighthouse Landings, Inc. v. Connecticut Light & Power Co., 300 Conn. 325, 345, 347, 15 A.3d 601 (2011). Additionally, as one of the appeals raises the issue of the court's subject matter jurisdiction on the basis of Girolametti's failure to timely file a motion to vacate the arbitration award, we note that ‘‘because [a] determination regarding a trial court's subject matter jurisdiction is a question of law, our review is plenary.'' (Internal quotation marks omitted.) Ungerland v. Morgan Stanley & Co., 132 Conn.App. 772, 775, 35 A.3d 299 (2012).


         Finality of Judgments

         Because all but one of the appeals concern the trial court's denial of motions for summary judgment, we first address legal principles pertaining to finality of judgments before proceeding to a discussion of the substantive issues on appeal. Although, as a general matter, this court only has jurisdiction to hear appeals from final judgments, there are particular circumstances in which we may hear an appeal from an otherwise interlocutory judgment. The trial court's denial of a motion for summary judgment raising a claim of res judicata or collateral estoppel presents such an instance. Because one purpose of the doctrines of res judicata and collateral estoppel is to avoid unnecessary and duplicative litigation, we treat the denial of a motion for summary judgment based on the doctrines of collateral estoppel or res judicata as a final judgment for appeal purposes. Wheeler v. Beachcroft, LLC., 320 Conn. 146, 149 n.3, 129 A.3d 677 (2016); Santorso v. Bristol Hospital, 308 Conn. 338, 344, 63 A.3d 940 (2013); see State v. Osuch, 124 Conn.App. 572, 583, 5 A.3d 976 (‘‘[a]pplication of [res judicata] . . . effectuates public policy by promoting judicial economy and avoiding inconsistent judgments''), cert. denied, 299 Conn. 918, 10 A.3d 1052 (2010).

         Finally, regarding the issue of finality of judgments, although normally the court's denial of a motion for summary judgment on grounds other than those that fully conclude the rights of the parties would not be considered a final judgment for appeal purposes, if summary judgment is sought primarily on the basis of res judicata or collateral estoppel but the movants move unsuccessfully for summary judgment on an alternative ground as well, the court may review the denial of such a claim along with the denial of the res judicata defense when the two are inextricably intertwined with one ...

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