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pisani

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68 Conn. App. 361, *; 791 A.2d 634, 2002 Conn. App. LEXIS 109, law1-case-problems

 

PISANI CONSTRUCTION, INC. v. ADOLF W. KRUEGER ET AL.

 

APPELLATE COURT OF CONNECTICUT

 

68 Conn. App. 361; 791 A.2d 634; 2002 Conn. App. LEXIS 109

 

 

February 19, 2002, Officially Released

 

PRIOR HISTORY: ***1 Action to foreclose a mechanic's lien filed by the plaintiff against real property owned by the defendant, brought to the Superior Court in the judicial district of Danbury, where the defendant filed a counterclaim; thereafter, the matter was tried to the court, Carroll, J.; judgment for the defendants on the complaint, and for the plaintiff on the counterclaim, from which the plaintiff appealed to this court.

 

DISPOSITION: Affirmed.

 

CASE SUMMARY

 

PROCEDURAL POSTURE: In an action to foreclose a mechanic's lien on real property owned by defendant owners, plaintiff builder appealed from the judgment of the Superior Court in the judicial district of Danbury (Connecticut) in favor of the owners.

 

OVERVIEW: The builder claimed the trial court's finding that it had not substantially performed its contractual obligations was clearly erroneous. The appellate court disagreed. Mere use of the building was not enough for substantial compliance. Although ordinarily being a few inches off on the height of the building would not be sufficient to defeat substantial compliance, because the building was intended to be added to an existing building and the builder was aware of it, there was an obvious need to be concerned with the exact height of the new building. The builder also claimed the trial court improperly permitted the owners to retain the last payment due the builder under the contract, arguing the court thereby allowed them to benefit under the contract even though it found they were not entitled to damages on counterclaim. However, the appeals court ruled that when a builder breaches a bilateral construction contract by an unexcused failure to render substantial performance, he cannot maintain an action on the contract to recover the unpaid balance of the contract price because substantial performance has not been satisfied.

 

OUTCOME: The judgment was affirmed.

 

Rules of law

 

1. Conn. Gen. Stat. § 47-14a provides in relevant part: a conveyance of real estate by deed to two or more natural persons in such form that the conveyance runs unto the grantees and unto the survivor of them and unto the last survivor's heirs and assigns creates a joint tenancy in fee simple with right of survivorship added and the tenants shall be known as joint tenants. More Like This Headnote

 

2. The determination of whether a building contract has been substantially performed is ordinarily a question of fact for the trier to determine.

 

3. A finding of fact is reversed only when it is clearly erroneous. A factual finding is clearly erroneous when it is not supported by any evidence in the record or when there is evidence to support it, but the reviewing court is left with the definite and firm conviction that a mistake has been made. Simply put, the reviewing court gives great deference to the findings of the trial court because of its function to weigh and interpret the evidence before it and to pass upon the credibility of witnesses.

 

4.Generally, when a builder breaches a bilateral construction contract by an unexcused failure to render substantial performance, he cannot maintain an action on the contract to recover the unpaid balance of the contract price because substantial performance, a constructive condition of the owner's duty to pay the balance, has not been satisfied.

 

5. In a claim for substantial performance of a building contract, the analysis necessarily involves an inquiry into the totality of facts and circumstances surrounding the performance of the contract. Factors to be considered include the extent to which the injured party will be deprived of the benefit reasonably expected and the likelihood that the performing party will cure his failure in light of the circumstances.

 

6. When a builder breaches a bilateral construction contract by an unexcused failure to render substantial performance, he cannot maintain an action on the contract to recover the unpaid balance of the contract price because substantial performance, a constructive condition of the owner's duty to pay the balance, has not been satisfied.

 

OPINION BY: MIHALAKOS

 

OPINION: 635 *362

 

MIHALAKOS, J. In this action to foreclose a mechanic's lien, the plaintiff, Pisani Construction, Inc., appeals from the judgment of the trial court in favor of the defendants Adolf W. Krueger and Ida J. Krueger. n1 The plaintiff claims that the court improperly (1) found that the plaintiff had not substantially performed its obligations under its construction contract with the defendant and (2) 636 permitted the defendant to retain the last payment *363 due to the plaintiff under the contract. We affirm the judgment of the trial court.

 

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n1 The property at issue in this appeal was owned by Adolf W. Krueger and Ida J. Krueger, who were husband and wife. Subsequent to trial, Adolf W. Krueger passed away. Title to the property thus vested fully in Ida J. Krueger upon her husband's death. See HN1Go to the description of this Headnote. General Statutes § 47-14a, which provides in relevant part: "A conveyance of real estate . . . by deed . . . to two or more natural persons . . . in such form that the conveyance runs unto the grantees . . . and unto the survivor of them . . . and unto the last survivor's heirs and assigns . . . creates a joint tenancy in fee simple with right of survivorship added and the tenants . . . shall be known as joint tenants. . . ."

 

Because there now is only one defendant, we refer hereafter to Ida J. Krueger as the defendant.

 

 

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The following facts and procedural history are relevant to our consideration of the issues in the plaintiff's appeal. On April 17, 1986, the parties entered into an agreement whereby the plaintiff agreed to erect a metal building on the defendant's site as an addition to an existing structure. Pursuant to the agreement, the existing structure was to share a common wall with the new building, and the frames and panel heights of the new building were to match with those of the existing structure. After the parties signed the agreement, the defendant made an initial payment of $ 21,500 to the plaintiff. Construction then commenced in November, 1996, and the plaintiff finished construction in January, 1997.

 

Shortly before completion, it was determined that the roof line of the new building was, and continues to be, approximately three inches higher than that of the existing structure. The plaintiff offered the defendant no resolution to the problem, but field modified the ridge caps of the buildings to blend the roof lines. The discrepancy had other consequences, however, including misalignment of the gutters and windows of the two buildings, which resulted in an icing problem in the ***4 winter. The plaintiff thereafter filed a one count complaint seeking to foreclose on the mechanic's lien that it had filed against the defendant's property. The defendant filed an answer and a two count counterclaim, alleging breach of contract and breach of the covenant of good faith and fair dealing.

 

On the basis of the fact that a key component of the contract, which was that the frames and wall panel heights were supposed to match on the two structures, was not fulfilled, the court found that the plaintiff had not substantially performed under the terms of the *364 agreement and could not prevail in its foreclosure action. Because the plaintiff sought no other relief, the court therefore rendered judgment in the defendant's favor on the complaint and in the plaintiff's favor on the counterclaim. This appeal followed.

 

I

 

The plaintiff first claims that the court's finding that the plaintiff had not substantially performed its contractual obligations was clearly erroneous. n2 We disagree.

 

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n2 Although the plaintiff's statement of its claim in its brief posits that the court committed plain error, the plaintiff actually employs an analysis in which it claims that the court's factual findings were clearly erroneous. Accordingly, we review the plaintiff's claim in terms of whether the court's factual findings were clearly erroneous.

 

 

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"The determination of whether a building contract has been substantially performed is ordinarily a question of fact for the trier to determine." (Internal quotation marks omitted.) Miller v. Bourgoin, 28 Conn. App. 491, 496, 613 A.2d 292, cert. denied, 223 Conn. 927, 614 A.2d 825 (1992). "We have long held that HN3Go to the description of this Headnote.a finding of fact is reversed only when it is clearly erroneous. See, e.g., Poulos v. Pfizer, Inc., 244 Conn. 598, 616, 711 A.2d 688 (1998). A factual finding is clearly erroneous when it is not supported by any evidence in the record or when there is evidence to support it, but the reviewing court is left with the definite and firm conviction that a mistake has been made. Id. Simply put, we give great deference to the findings of the trial court because of its function to weigh and interpret the evidence before it and to pass upon the credibility of witnesses." (Internal quotation marks omitted.) American Heritage Agency, Inc. v. Gelinas, 62 Conn. App. 711, 717, 637 774 A.2d 220, cert. denied, 257 Conn. 903, 777 A.2d 192 (2001).

 

One decade ago, our Supreme Court considered an issue not unlike ***6 that with which we are faced here, namely, the situation in which the builder seeks to foreclose *365 when the purchasers refuse to pay the remainder of the contract price and the purchasers claim a lack of substantial performance of the contract as a defense. See generally Argentinis v. Gould, 219 Conn. 151, 592 A.2d 378 (1991). In that case, our Supreme Court stated: HN4Go to the description of this Headnote."Generally, when a builder breaches a bilateral construction contract by an unexcused failure to render substantial performance, he cannot maintain an action on the contract to recover the unpaid balance of the contract price because substantial performance, a constructive condition of the owner's duty to pay the balance, has not been satisfied." Id., at 157.

 

The plaintiff, in support of its claim that the court improperly found that it had not substantially performed its obligations under the contract, claims that the court in its memorandum of decision found that "the building 'had been completed and . . . is being utilized by the defendant.'" HN5Go to the description of this Headnote.Mere use of the building is not enough, however, for substantial compliance to be found. "The analysis necessarily involves an inquiry into the totality ***7 of facts and circumstances surrounding the performance of the contract." Miller v. Bourgoin, supra, 28 Conn. App. at 496. "Factors to be considered include the extent to which the injured party will be deprived of the benefit reasonably expected and the likelihood that the performing party will cure his failure in light of the circumstances . . . ." Id.

 

Because the building to be built by the plaintiff was intended to be added to an existing building and the plaintiff was aware of that intention, the court found that "there is an obvious need to be concerned with the exact height of the completed new building." Thus, although we might agree with the plaintiff that, in the ordinary case, being a few inches off on the height of the building would not be sufficient to defeat substantial compliance with the contract, in this case the plaintiff knew of the need for exactitude. In addition, any claim *366 by the plaintiff that its failure in that regard was de minimis and did not harm the defendants is defeated by the evidence in the record that, as the court stated in its memorandum of decision, "the misalignment of the gutters resulted in an icing problem for the defendant ***8 . . . ." We are unpersuaded, therefore, that the court's finding that the defendant had not rendered substantial performance was clearly erroneous.

 

II

 

The plaintiff also claims that the court improperly permitted the defendant to retain the last payment due to the plaintiff under the contract. The plaintiff argues that the court thereby allowed the defendant to benefit under the contract even though it found that the defendant was not entitled to damages under the counterclaim.

 

We note that the "benefit" to which the plaintiff refers is the final payment of $ 14,252, which the defendant did not pay to the plaintiff. The nonpayment was the genesis of this foreclosure action. Our Supreme Court has stated that HN6Go to the description of this Headnote."when a builder breaches a bilateral construction contract by an unexcused failure to render substantial performance, he cannot maintain an action on the contract to recover the unpaid balance of the contract price because substantial performance, a constructive condition of the owner's duty to pay the balance, has not been satisfied." 638 (Emphasis added.) Argentinis v. Gould, supra, 219 Conn. at 157. The court's refusal to award damages on the defendant's ***9 counterclaim is not relevant to this inquiry. Accordingly, the court correctly refused to allow the plaintiff to foreclose the mechanic's lien because of the defendant's failure to pay this amount.

 

The judgment is affirmed.

 

In this opinion the other judges concurred.

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