133 Conn. App. 737
Conn. App. Ct.2012Background
- Stratford sues A. Secondino & Son, Inc. over a construction contract for a new fire headquarters.
- Contract documents were AIA A101-1997 form, AIA A-201 general conditions, and architect plans/specifications; final price rose from $4,837,000 to $5,561,120.08.
- Contract required monthly applications for payment and a condition precedent that the owner pay only after the architect certifies; Lisi (architect) supposedly approved payments.
- Parties deviated from the contract: defendant prepared pencil copies, Lisi signed final applications, and the owner/Bucher were involved in payments; defendant believed Lisi’s certificate was not required after oral approvals.
- Punch list items remained; Lisi prepared lists; there were disputes about retainage and punch-list completion; litigation began August 22, 2006, after continued withholding of payments despite substantial completion.
- Trial court ruled for defendant on plaintiff’s complaint, found no breach by defendant, and awarded damages and interest; court later reduced prejudgment interest; plaintiff appeals on waiver of the payment-condition; defendant cross-appeals on § 37-3a interest; appeals affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Waiver of payment condition precedent | Stratford argues waiver was not pleaded and not proven. | Secondino contends conduct showed waiver of submitting payments to Lisi. | Waiver inferred from conduct; evidence supports implicit waiver of the condition precedent. |
| Prejudgment interest under § 37-3a | Plaintiff did not withhold payment lawfully; interest should be awarded. | Court acted within discretion; no mandatory award since interest already covered by contractual rate. | Court did not abuse its discretion; no additional § 37-3a prejudgment interest awarded. |
Key Cases Cited
- Lach v. Cahill, 138 Conn. 418 (1951) (defines a condition and how to determine waiver and intent)
- West Haven Sound Development Corp. v. West Haven, 207 Conn. 308 (1988) (elects to treat prejudgment interest as an equitable determination)
- Metcalfe v. Talarski, 213 Conn. 145 (1989) (two-step test for § 37-3a interest: wrongful detention and start date)
- Sosin v. Sosin, 300 Conn. 205 (2011) (clarifies discretion in awarding § 37-3a interest)
- State v. Corchado, 200 Conn. 453 (1986) (describes the nature of discretion in awarding damages)
- Ferrato v. Webster Bank, 67 Conn. App. 588 (2002) (illustrates equitable considerations in damages and interest)