• Connecticut Appellate Court
  • AC 34799
  • Sep 24 2013 (Date Decided)
  • Harper, J.

As explained in the 1976 Supreme Court decision in Levesque v. D & M Builders, Inc., "[f]or a breach of a construction contract involving defective or unfinished construction, damages are measured by computing either (i) the reasonable cost of construction and completion in accordance with the contract, if this is possible and does not involve unreasonable economic waste; or (ii) the difference between the value that the product contracted for would have had and the value of the performance that has been received ….if construction and completion in accordance with the contract would involve unreasonable economic waste." After being discharged prior to completing renovations on a home, Ray Weiner, LLC, doing business as All Phase Construction, brought this action against W. Hudson Connery, Jr. and Ann Moore, to foreclose on a mechanic's lien. The plaintiff released the lien and an escrow account of $45,000 was created. The plaintiff's amended complaint sought distribution of the escrowed proceeds and alleged breach of contract, unjust enrichment and quantum meruit. The defendants denied the claims, filed special defenses and a six count counterclaim, including breach of contract. Following a bench trial, the court found the plaintiff's claims barred for failing to comply with the Home Improvement Act, C.G.S. §20-418 and for the defendants on all counts of their counterclaim awarding damages of $145,773.44. The escrowed funds were ordered distributed to the defendants. The plaintiff appealed claiming, first, that the court used an incorrect measure of damages. The Appellate Court affirmed the judgment. The plaintiff argued that the court erred by awarding the defendants damages for unfinished work as that was money "the owner would have to pay… in any event" to complete the project. The plaintiff contended that it was required to pay for unfinished work under the judgment and for which it otherwise would have been paid and, consequently, was paying twice. The panel was unpersuaded. The court employed a measure of damages entirely in line with Levesque's first prong. The court allowed recovery only for those costs necessary to repair unacceptable work or to complete work billed by the plaintiff but never performed. The court did not, as the plaintiff asserted, award damages for new work performed to complete construction. Thus, the court utilized the proper measure of damages.