Borrelli v. H AND H CONTRACTING, INC.

919 A.2d 500, 100 Conn. App. 680, 2007 Conn. App. LEXIS 155
CourtConnecticut Appellate Court
DecidedApril 17, 2007
DocketAC 25905
StatusPublished
Cited by5 cases

This text of 919 A.2d 500 (Borrelli v. H AND H CONTRACTING, INC.) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Borrelli v. H AND H CONTRACTING, INC., 919 A.2d 500, 100 Conn. App. 680, 2007 Conn. App. LEXIS 155 (Colo. Ct. App. 2007).

Opinions

Opinion

PETERS, J.

In this case about the installation of a septic system, the parties dispute whether the installer, in breach of contract or negligently, failed to construct the system in accordance with the plans of the designated architect. Resolving a number of factual disputes against the plaintiff landowners, the trial court rendered judgment holding them liable for unpaid bills for services rendered by the defendant installer. The plaintiffs’ principal claim is that the judgment should be set aside because the trial court failed to assign dispositive significance to the defendants’ pleadings. Because we are not persuaded that a fair reading of the record sustains this claim, we affirm the judgment of the trial court.

[682]*682On July 9, 2001, the plaintiffs, Ronald Borrelli and Stephanie Borrelli, brought an action against the defendant H & H Contracting, Inc.,1 alleging that in June, 1999, the parties had entered into a construction contract. This contract included a number of projects associated with the construction of a house, including a commitment by the defendant to install a septic system according to plans prepared by their architect, Bascom Magnotta, Inc. (Bascom Magnotta).2 The defendant admitted this allegation but denied that it had failed to do so. In a counterclaim, the defendant alleged that the plaintiffs had failed to pay $4820 at the stipulated hourly rate for services rendered in accordance with their contract. After a court trial, the court found for the defendant, both on the complaint and the counterclaim, and rendered judgment for the defendant in the amount of $3520. The plaintiffs have appealed.

The plaintiffs have raised two issues on appeal. They maintain that, as a matter of law, the trial court improperly failed to conclude that the defendant was obligated to install the plaintiffs’ septic system in accordance with the plans prepared by Bascom Magnotta. They farther maintain that, as a matter of fact, the court improperly failed to find that the septic system was not operating properly. We are not persuaded.

[683]*683I

The plaintiffs’ principal disagreement with the court’s judgment in favor of the defendant stems from their dissatisfaction with the statement in the court’s memorandum of decision that the sanitarian of Middletown approved the installation of the plaintiffs’ septic system. The plaintiffs construe this statement as a legal ruling by the court that the sanitarian’s approval was dispositive of the defendant’s compliance with its contract obligation. The court’s ruling was improper, according to the plaintiffs, because it disregarded the pleadings filed by the parties. We disagree with this construction of the record.

In the plaintiffs’ complaint, they alleged that the defendant was obligated to install the septic system in accordance with a blueprint prepared by Bascom Magnotta. In the defendant’s counterclaim, on which the court based its judgment, the defendant alleged nonpayment of bills presented to the plaintiffs that purported to represent work performed in compliance with the specifications in the blueprint. The plaintiffs rely on this pleading by the defendant as a judicial admission on its part that the court improperly failed to enforce.

Standing alone, the plaintiffs’ argument may be plausible, although it would be surprising to have an experienced trial court judge ignore the pleadings presented to her. We note that the plaintiffs did not avail themselves of the opportunity to file a motion for articulation to clarify this conundrum. See Practice Book § 66-5. Our examination of the record, however, leads to a different explanation for the court’s statement.

The plaintiffs are correct that the defendant agreed to comply with the Bascom Magnotta blueprint in installing the septic system for the plaintiffs. The plaintiffs are also correct that the defendant was not entitled [684]*684to recover on its counterclaim without establishing that it had complied with these specifications. The defendant never argued to the contrary. Its contention was, instead, that it was entitled to be paid because it had followed the specifications of the Bascom Magnotta blueprint. As we read the record, the trial court found that the defendant was entitled to be reimbursed for the unpaid portion of its bills because the defendant had sustained its burden of proof on this issue.

The standard of review that governs a trial court’s findings of fact is well established. “Questions of fact are subject to the clearly erroneous standard of review. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. . . . Because it is the trial court’s function to weigh the evidence ... we give great deference to its findings.” (Internal quotation marks omitted.) Reiner, Reiner & Bendett, P.C. v. Cadle Co., 278 Conn. 92, 107, 897 A.2d 58 (2006).

The factual issue that the trial court resolved in favor of the defendant relates to the defendant’s compliance with the blueprint specification that stated: “This work shall not be done within 2 days of a rainstorm, or if there is standing water in the fill area.” In their complaint, the plaintiffs had alleged that persistent wet grounds on their property in the vicinity of the septic system were attributable to the defendant’s failure to prepare the grounds in accordance with this specification at the time when it installed the system.3

[685]*685Accordingly, the plaintiffs’ expert, Frank Magnotta, opined at trial that the septic system had drainage problems because it had been installed when the ground was too wet. Magnotta acknowledged that the defendant had used the proper materials for the fill. Even with proper materials, however, the placement of septic fill when the ground is too wet, he testified, results in sealing the fill off so that water and effluent can be trapped, and the septic area can become flooded. In his view, the defendant had failed to comply with the specification related to when the work was to have been done because the defendant’s work schedule showed that the defendant had started on February 22, 2000, but did not place any sand until March, 4 2000, a week and one half later. During that period, Magnotta testified, a substantial amount of rain fell. According to Magnotta, the defendant should have waited for a different time of year,4 particularly because that area “ha[d] marginal soil to begin with . . . .”

Magnotta was not at the work site when the defendant completed the installation of the septic system in March, 2000. In the absence of direct observations of the defendant’s performance, Magnotta based his criticism of the defendant’s installation on subsequent test borings, on his appraisal of a schedule of the dates on which the defendant had worked on the installation and on inferences he drew from rainfall data.

Without challenging Magnotta’s expert opinion about how a septic system should be installed, the defendant disputed Magnotta’s factual representations about what had transpired at the work site.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Pack 2000, Inc. v. Cushman
11 A.3d 181 (Connecticut Appellate Court, 2011)
Mastroianni v. Fairfield County Paving, LLC
942 A.2d 418 (Connecticut Appellate Court, 2008)
Borrelli v. H & H Contracting, Inc.
940 A.2d 787 (Supreme Court of Connecticut, 2008)
Borrelli v. H AND H CONTRACTING, INC.
926 A.2d 665 (Supreme Court of Connecticut, 2007)
Borrelli v. H AND H CONTRACTING, INC.
919 A.2d 500 (Connecticut Appellate Court, 2007)

Cite This Page — Counsel Stack

Bluebook (online)
919 A.2d 500, 100 Conn. App. 680, 2007 Conn. App. LEXIS 155, Counsel Stack Legal Research, https://law.counselstack.com/opinion/borrelli-v-h-and-h-contracting-inc-connappct-2007.