Ray Weiner, LLC v. Connery
2013 WL 5274336
Conn. App. Ct.2013Background
- Plaintiff Ray Weiner, LLC d/b/a All Phase Construction contracted with defendants Moore and Connery to renovate and add to a Milford residence.
- Project managers, architects, and engineers were engaged (McElroy plans initially, then Marx and Jones) with change orders and open-book accounting.
- Plaintiff was discharged in May 2007 after a dispute over work quality, costs, and revisions to the plans.
- Plaintiff filed a mechanic’s lien in August 2007 and later sought distribution of escrowed funds ($45,000) after refinancing.
- Trial occurred April 26 to May 19, 2011; court awarded damages to defendants totaling $145,773.44 and ordered escrow funds released to defendants.
- Court declined to open/modify judgment; appeal affirmed on all counts; procedural posture included substitution of Moore’s estate executor as party defendant.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Damages measure | Plaintiff contends damages include unfinished work, duplicating owner’s future costs. | Defendants argue damages must cover only remedial work and completed repairs attributable to plaintiff's incompetence or nonperformance. | Damages properly measured; only repair/complete-work costs awarded. |
| Attribution of defects to plaintiff | Changes to plans and ongoing revisions meant repairs were not necessarily plaintiff's fault. | Evidence shows repair/rework due to plaintiff's incompetence; architect/engineer testimony supports attribution to plaintiff. | Evidence supports attribution of defects to plaintiff; damages upheld. |
| Contractor status under Home Improvement Act | Plaintiff was a contractor under the act; trial court erred in not treating it as such. | Court did not decide this issue below; untimely amendment defeated review; Marlborough standard preserved. | Court declined to review; not decided below. |
Key Cases Cited
- O & G Indus., Inc. v. All Phase Enterprises, Inc., 112 Conn. App. 511 (Conn. App. 2009) (discretion in awarding damages; standard of review)
- Levesque v. D & M Builders, Inc., 170 Conn. 177 (Conn. 1976) (damages measure for defective or unfinished construction)
- Kronovitter v. Doyle, 135 Conn. App. 157 (Conn. App. 2012) (lay vs. expert testimony; admissibility of expert opinion)
- Marlborough v. AFSCME, Council 4, Local 818-052, 130 Conn. App. 556 (Conn. App. 2011) (preservation of theory raised at trial on appeal)
- Sanzo’s Appeal from Probate, 133 Conn. App. 42 (Conn. App. 2012) (lay vs. expert testimony; evidentiary standards)