158 Conn.App. 399
Conn. App. Ct.2015Background
- In June 2005, Morgillo and Empire Paving, Inc. entered a contract to repair and repave Morgillo’s driveway for $27,475.20; Belgian blocks bordered the driveway.
- After repairs, Morgillo reported cracking, skipping, dents, potholes, and edge erosion; Empire reduced the price to $22,500 and offered another repair for $2,250 Morgillo declined.
- In September 2009 the parties reached a settlement: Morgillo would reset Belgian blocks at his expense; Empire would complete, at its expense, chip-sealed resurfacing and seal the blocks to prevent erosion.
- Empire performed the second repairs in spring 2010; Morgillo again observed ongoing driveway problems, including potholes and loose stone.
- In January 2007 Morgillo filed suit; after years of litigation, a 2014 trial court decision found for Morgillo on all counts, awarding $36,550 for cost to remove and replace the driveway with asphalt; Empire appealed.
- The trial court found no fit for balance of the settlement agreement and original contract; issues included implied workmanship duty, adherence to the settlement, and the proper measure of damages under Levesque and related cases.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the settlement agreement includes an implied workmanship standard | Morgillo argues implied duty of workmanship applies to second repairs | Empire argues no explicit standard; only performance of second repairs required | Yes; implied workmanship duty applies to the second repairs |
| Whether Empire breached the settlement by failing to meet industry standards | Court should credit expert Bowker’s standard-based finding | Tucker testified repairs complied with procedures | Yes; court properly found breach of the settlement |
| Whether the court could award damages on counts for breach of the original contract and the settlement | Audubon Parking permits enforcement of original contract if settlement breached | Assessment of damages under settlement precludes original-contract recovery | Court allowed recovery on original contract without duplicative settlement damages |
| Whether cost-of-repair damages were appropriate versus diminution in value | Willow Springs/Centimark shift burden to prove economic waste to defendant; cost measure allowed | Falco/Spera require proof of no economic waste by plaintiff | Damages based on cost of repair were proper; no proven economic waste by defendant |
Key Cases Cited
- Audubon Parking Associates Ltd. Partnership v. Barclay & Stubbs, Inc., 225 Conn. 804 (1993) (settlement accord; option to enforce either relief or原 contract)
- Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1 (1998) (cost of repair as damages when no economic waste and no enhancement)
- Centimark Corp. v. Village Manor Associates Ltd. Partnership, 113 Conn. App. 509 (2009) (trial court may award cost of repair if no economic waste)
- Falco v. James Peter Associates, Inc., 165 Conn. 442 (1973) (initial requirement to show no economic waste for cost-of-repair damages)
- Spera v. Audiotape Corp., 1 Conn. App. 629 (1984) (damages rules for restoration, economic waste considerations)
- Levesque v. D & M Builders, Inc., 170 Conn. 177 (1976) (general rule: damages aim to place plaintiff in pre-breach position; methods for construction defects)
- Ackerman v. Sobol Family Partnership, LLP, 298 Conn. 495 (2010) (deference to trial court findings; credibility determinations)