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 ...