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Abrams v. PH Architects, LLC

Court of Appeals of Connecticut

July 31, 2018

MARC ABRAMS
v.
PH ARCHITECTS, LLC, ET AL.

          Argued April 9, 2018

         Procedural History

         Action seeking to recover damages for, inter alia, breach of contract, and for other relief, brought to the Superior Court in the judicial district of Stamford-Nor-walk, where the defendant V.A.S. Construction, Inc., filed a counterclaim; thereafter, the named defendant filed a counterclaim; subsequently, the matter was tried to the court, Hon. Taggart D. Adams, judge trial referee; judgment for the defendants on the complaint and counterclaims, from which the plaintiff appealed to this court. Affirmed.

          Jane I. Milas, for the appellant (plaintiff).

          Jared Cohane, with whom was Alexa T. Millinger, for the appellee (named defendant).

          Gregory J. Williams, for the appellee (defendant V.A.S. Construction, Inc.).

          Prescott, Elgo and Blawie, Js.

          OPINION

          PRESCOTT, J.

         This appeal arises out of a dispute between a homeowner and the architectural firm and general contractor that he hired to design and perform substantial renovations to his home and surrounding property in Greenwich. The plaintiff, Marc Abrams, appeals, following a trial to the court, from the judgment rendered against him on his complaint and on the counterclaims of the defendants, PH Architects, LLC (PH), and V.A.S. Construction, Inc. (VAS). The plaintiff claims on appeal that the court improperly (1) failed to enforce provisions in his contracts with VAS and PH related to the processing of change orders and invoices; (2) failed to find that VAS had breached a separate contract governing the construction of a stone wall and fence on the property; (3) failed to enforce provisions in his contract with PH pursuant to which PH agreed to provide contract administration services; (4) failed to conclude that PH was liable for professional negligence because it had breached the professional standard of care for architects; and (5) made clearly erroneous factual findings with respect to a ‘‘punch list'' that was prepared on behalf of the plaintiff by a third party.[1]We are not persuaded by the plaintiff's claims and, accordingly, affirm the judgment of the court.[2]

         The following facts, which either were found by the court or are undisputed in the record, and procedural history are relevant to our discussion of the plaintiff's claims on appeal. The plaintiff is a New York attorney employed by a firm that oversees union elections. In 2010, he purchased an existing, single-family home located in Greenwich at 39 Hunting Ridge Road (property). The property consists of an approximately four acre lot that, in addition to a split-level home, features an outdoor swimming pool, a pond, a barn, and a tennis court.

         On May 14, 2010, the plaintiff entered into a contract with PH, an architectural firm, for services related to the design of renovations and additions that the plaintiff sought to make to the interior of the home and to the surrounding property (architectural contract). He was introduced to the principals of PH, Peter Paulos and Philip Hubbard, by his realtor, and met with them at the property on May 11, 2010, to discuss the renovation project. At that meeting, the plaintiff conveyed to the architects his desire to contain the overall cost of the project, indicating to them that, in designing and quoting the project, they should contemplate using only the highest quality materials and labor in order to help guard against the possibility of the project later running over budget. He believed that by getting quotes for high end materials and workmanship, any subsequent changes that occurred likely would involve a reduction, rather than an increase, in the overall price of the project.

         PH drafted a proposal dated May 12, 2010, that listed all of the proposed work items and set forth the hourly rates that PH would charge for various aspects of its work, including taking detailed measurements of the property and preparing a schematic design of the planned house alterations. The proposal also provided that, after completing the schematic design, PH would prepare outline specifications to use in soliciting preliminary bids from contractors. PH would next make any necessary changes to the schematic design, following which it would establish a lump sum fee for preparing complete drawings and negotiating and administrating construction contracts. The proposal expressly left open the cost for PH's services during the actual construction period. The parties signed the proposal on May 14, 2010, which all parties agree constitutes the entirety of the architectural contract between the plaintiff and PH.

         A schematic design limited to the house renovations was completed in June, 2010. The plaintiff approved the design, but wanted additional information regarding potential construction costs. With the consent of the plaintiff, PH also obtained additional landscape architectural plans from a third party. The plaintiff, however, rejected those landscape plans. He also rejected the initial bid that PH had obtained for the housing renovations, believing it was too high. He then authorized PH to complete a more detailed set of structural drawings and specifications for the residence in order to solicit additional construction bids.

         After receiving bids, PH prepared a bid comparison sheet for the plaintiff that showed bids ranging from $1.2 million to over $1.5 million. The plaintiff was unhappy and wanted the overall cost of the project reduced significantly, indicating to Hubbard that he wanted the total cost to be closer to $600, 000. In October, 2010, PH prepared a list of possible changes that could help to reduce costs, including eliminating a proposed office and a closet addition. The plaintiff approved many of PH's cost saving proposals. He also suggested, however, additional changes not in the original plan, including adding a side deck, an outdoor fireplace, and a larger master bedroom. After incorporating the changes approved by the plaintiff, PH obtained new bids.

         VAS, a general contracting business owned by Vincent Sciarretta, consistently was the low bidder throughout the bidding process. VAS constructs new homes and additions to existing homes. It submitted a bid of between $860, 000 and $912, 000.

         On December 6, 2010, the plaintiff entered into a contract with VAS for construction services involving the additions and renovations to the home contained in the architectural plans (construction contract). The contract was a standard form American Institute of Architects (AIA) agreement that included a total contract price for the renovations and additions of $921, 557.34.

         The plaintiff later entered into an additional AIA contract with VAS on December 16, 2010, for the construction of a stone wall on the property (wall contract). The stone wall was intended to run along the front of the house, connect with perimeter fencing around the remainder of the property, and include two operating gates. The contract called for a concrete footing to be placed three and one-half feet below grade to secure the fencing. The total additional cost for the wall contract was $229, 985.80.

         Due to significant conflicts that arose between the plaintiff and PH, [3] PH left the project prior to its completion. The plaintiff never engaged a replacement architect to oversee the project. Serious conflicts also arose between VAS and the plaintiff regarding, inter alia, certain change orders submitted by VAS. Nevertheless, despite the plaintiff failing to make all requested progress payments, VAS continued working on the construction project, substantially completing its work by late November or early December, 2011.

         The plaintiff, who was unhappy with the results and overall cost of the project, initiated the present action in September, 2012. The operative amended complaint was filed on September 20, 2013, and contained five counts, the first three directed against PH and the remaining two against VAS.

         With respect to PH, count one alleged that PH breached the architectural contract with the plaintiff by ‘‘failing to provide complete and accurate plans and specifications for the construction of the project, failing to provide construction administration services, failing to monitor the cost and the quality of construction of the project, failing to correct the errors, omissions, and deficiencies in the services and work product provided by PH, failing to address [the plaintiff's] reasonable questions and concerns, and instead abandoning the project when problems were becoming apparent to [the plaintiff].'' Count two alleged that PH had breached an express warranty that guaranteed it was qualified to perform the services undertaken in the architectural contract and that it would do so with the care, diligence, and skill exercised by professional architects. Count three sounded in professional negligence, alleging that PH breached its duty to perform with ‘‘that degree of skill, care, and diligence [that] professional architects normally exhibit under like and/or similar circumstances.''

         With respect to the remaining counts against VAS, count four alleged that VAS breached both the home construction contract and the wall contract in a variety of ways. More particularly, the plaintiff alleged that VAS breached the contracts by failing to complete the work, using lesser quality materials than specified, and performing defective work that would require repair or replacement. The plaintiff provided the following additional examples of VAS' alleged breach of the home construction contract: ‘‘[T]he master bedroom deck is poorly constructed; stairs are not adequately secured and shake significantly when walked on; plumbing fixtures in various locations are loose and not properly centered or installed; the electrical system is incomplete and many switches do nothing; the supply ductwork in the basement has not been insulated; tile in areas such as the laundry room is cracked; interior trim is defective and there are many instances of miters opening up; bilco door is not installed properly or weatherstripped; trim boards at exterior of dining nook are warping and delaminating below and around windows; material for front gates and fence is not what was specified and is of lower quality; cabinets are incorrectly installed; flooring is cupping and will have to be removed; many items of work remain incomplete.'' Count five sounded in negligence. The plaintiff alleged that VAS, as a general contractor, owed him a duty to perform its work pursuant to the contract and free from defects, and that it breached that duty, citing again the defects set forth in the breach of contract count.

         In addition to filing an answer and special defenses denying any liability, the defendants each filed a breach of contract counterclaim against the plaintiff. In its counterclaim, PH alleged that the plaintiff had breached the architectural contract by wrongfully terminating it from the project and by failing to pay PH in full for the engineering and architectural services rendered prior to its termination. VAS alleged in its counterclaim that, with the exception of certain obligations that the plaintiff wrongfully prevented or precluded it from performing, it had performed or substantially performed all of its obligations under its contracts with the plaintiff and, yet, the plaintiff had failed to pay invoices totaling $132, 996.18 and to release an additional $85, 613.46 being held in retainer.[4] The plaintiff denied the defendants' special defenses and counterclaims.

         A trial to the court, Hon. Taggart D. Adams, judge trial referee, was conducted between April 26 and May 6, 2016. The parties each submitted a post trial memorandum on October 12, 2016.

         On February 7, 2017, the court issued its memorandum of decision, disposing of all counts of the complaint and the counterclaims. With respect to PH, the court concluded that the plaintiff had failed to prove any of his causes of action, rendering judgment against him on counts one through three of the complaint. The court also rendered judgment against the plaintiff on PH's counterclaim, awarding damages of $3991.56.

         With respect to VAS, the court found that the plaintiff had failed to prove that VAS breached either the home construction contract or the wall contract. The court nevertheless found that the plaintiff was entitled to keep $8450 of the retainage as a result of certain incomplete or defective work. The court rendered judgment in favor of VAS on its counterclaim, and awarded it damages of $132, 966.18 plus 6 percent ...


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