Morgillo v. Empire Paving, Inc. ( 2015 )

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JOHN MORGILLO v. EMPIRE PAVING, INC.
(AC 36639)
Gruendel, Alvord and Flynn, Js.
Argued February 19—officially released July 7, 2015
(Appeal from Superior Court, judicial district of New
Haven at Meriden, Oliver, J.)
David L. Weiss, for the appellant (defendant).
Jeremiah J. O’Connor, for the appellee (plaintiff).
Opinion
GRUENDEL, J. The defendant, Empire Paving, Inc.,
appeals from the judgment of the trial court rendered
in favor of the plaintiff, John Morgillo. On appeal, the
defendant claims that the trial court improperly (1)
found that the defendant did not comply with the terms
of the parties’ settlement agreement, (2) found that
the defendant failed to prove its special defense, (3)
rendered judgment in favor of the plaintiff on the first
and second counts of his amended complaint, and (4)
awarded damages to the plaintiff based on the cost of
repair of the plaintiff’s driveway rather than the diminu-
tion in value of the plaintiff’s property. We affirm the
judgment of the trial court.
The record reveals the following relevant facts and
procedural history. In June, 2005, the plaintiff and the
defendant entered into a contract, in which the defen-
dant agreed to repair and repave the driveway at the
plaintiff’s residential property at 8 Cooke Road in Wall-
ingford at a cost of $27,475.20. The parties further
agreed that the plaintiff, through his employer, Brothers
Pool Enterprises, Inc., would pay for the repairs to his
driveway by installing a swimming pool for Earl Tucker,
the vice president of the defendant, at his property in
Branford. The defendant subsequently completed the
repair work on the plaintiff’s driveway and the plaintiff
installed the pool for Tucker. At the time the parties
entered into the contract, and on the date the defendant
completed the repair work, the plaintiff’s driveway was
bordered by Belgian blocks.
Within a week of the repair work completed by the
defendant, the plaintiff noticed problems with the con-
dition of his driveway, including ‘‘[c]racking, skipped
spots, [and] dents.’’ The plaintiff also observed potholes
and ‘‘crumbling’’ along the edges of the driveway. The
plaintiff complained to the defendant about the condi-
tion of his driveway, and the defendant reduced the
cost of the driveway repairs from $27,475.20 to $22,500.
The plaintiff also asked the defendant about correcting
the problems with the driveway. The defendant offered
to repair the driveway again at an additional cost of
$2250. The plaintiff did not agree to the defendant’s
proposal.
The plaintiff then hired legal counsel to assist him
in his dispute with the defendant. The plaintiff’s counsel
contacted the defendant regarding the problems with
the driveway. The defendant responded in a letter dated
May 17, 2006, in which it asserted that the problems
with the plaintiff’s driveway had occurred because the
Belgian blocks along the edges of the driveway had
been improperly set.
In January, 2007, the plaintiff brought this action
against the defendant in a two count complaint, alleging
breach of contract and negligence. In September, 2009,
the parties reached a settlement agreement by which
the plaintiff agreed to reset the Belgian blocks along
the edges of his driveway at his own expense, and the
defendant agreed to complete, at its own expense, the
‘‘work necessary to repair and resurface the existing
paved driveway with a chip-sealed surface and seal
the [Belgian blocks] to reasonably ensure that future
erosion between the [Belgian blocks] and the driveway
will not re-occur.’’ Shortly thereafter, the plaintiff reset
the Belgian blocks, and the defendant sealed them. The
defendant completed the work of repairing and resur-
facing the driveway, including the chip sealed surface,
in the spring of 2010. After the defendant completed
the second set of repairs pursuant to the settlement
agreement, the plaintiff once again noticed problems
with the condition of his driveway. The potholes reap-
peared and ‘‘[t]ar was coming through the stone’’ in the
chip sealed surface.
In October, 2011, the plaintiff filed an amended com-
plaint. In counts one and two, the plaintiff alleged
breach of contract and negligence with respect to the
original contract between the parties. In counts three
and four, he alleged breach of contract and negligence
with respect to the settlement agreement. The defen-
dant filed an answer and special defense to the plain-
tiff’s amended complaint, alleging that the damage to
the plaintiff’s driveway had been caused by the plain-
tiff’s failure to properly install the Belgian blocks. The
defendant alleged that the improper installation of the
Belgian blocks caused the surface of the driveway to
become ‘‘undermined after exposure to rain and other
elements and resulted in an erosion of the driveway
surface.’’
A trial was held before the court on May 22 and
August 28, 2013. At trial, the plaintiff presented the
testimony of two expert witnesses. Lawrence Wild, who
was qualified as an expert witness in asphalt driveway
construction, testified that he had inspected the plain-
tiff’s driveway in April, 2009, after the defendant had
completed the first set of repair work. During the
inspection, he observed ‘‘some high spots and along
the Belgian blocks, there was a lot of depressions and
it was all cracked. And on the top there was some—it
was broken up.’’ He also testified that the defendant
had not installed six inches of process stone and two
inches of bituminous concrete as promised in the origi-
nal contract. He provided a quote in the amount of
$36,550 to grind down the plaintiff’s existing driveway
and to repave it with asphalt instead of a chip sealed
surface.
Christopher Bowker, who was qualified as an expert
witness in hot mix asphalt application and chip sealing,
testified that he had inspected the plaintiff’s driveway
in November, 2011, after the second set of repairs pursu-
ant to the settlement agreement. During his inspection,
he observed ‘‘numerous scuffing, scuff marks’’ at the
top of the driveway, and as he proceeded down the
driveway, he noticed ‘‘some areas [of] bleeding . . .
and also other areas where stone had lost its bond from
the asphalt.’’ In addition, he noticed that ‘‘along the
. . . right-hand side up against the [Belgian blocks],
the stone that had been installed, there were many areas
that had settled’’ and ‘‘[d]epressions and potholes were
beginning to form . . . .’’ Bowker further testified that,
based on conversations with the plaintiff and his own
inspection of the driveway, it was his opinion that the
second set of repairs completed by the defendant had
not been performed in accordance with industry stan-
dards. He also opined that the entire driveway would
have to be removed and replaced in order to correct
all the problems he had observed. On cross-examina-
tion, he testified that it was ‘‘possible’’ that ‘‘any gaps
in the [Belgian blocks] or between the [Belgian blocks]
and the driveway surface’’ could cause water erosion
along the edges of the driveway.
The defendant presented the testimony of Tucker,
who was qualified as an expert witness in asphalt appli-
cation and chip sealing. Tucker testified that the defen-
dant had followed the appropriate procedures during
the first and second set of repairs. He also testified
that, before the defendant had done any work to the
plaintiff’s driveway, the driveway had begun to erode
along the edges due to the improper installation of the
Belgian blocks. According to Tucker, the plaintiff reset
the Belgian blocks once after the first set of repairs by
the defendant and then again after the second set of
repairs, but did not install them properly on either occa-
sion. He further stated that the continuing problems
with the condition of the driveway were the result of
the improper installation of the Belgian blocks.
In a memorandum of decision dated March 4, 2014,
the court rendered judgment in favor of the plaintiff on
all four counts of the amended complaint. The court
credited the testimony of the plaintiff’s expert witnesses
and found that the defendant had not complied with the
terms of the original contract and that the defendant’s
second set of repairs pursuant to the settlement
agreement had not been performed in accordance with
industry standards. The court also found that the defen-
dant had failed to prove its special defense concerning
the Belgian blocks by a fair preponderance of the evi-
dence. The court awarded the plaintiff $36,550 in dam-
ages in accordance with Wild’s quote for removing and
replacing the entire driveway with asphalt. This
appeal followed.
I
The defendant first claims that the court improperly
found that it did not comply with the terms of the
parties’ settlement agreement. The defendant argues
that the settlement agreement provided only that it per-
form the second set of repairs and did not provide a
specific standard of workmanship that it was required
to meet. The defendant further argues that the court
erroneously rendered judgment in favor of the plaintiff
because the defendant performed the second set of
repairs. In response, the plaintiff argues that workman-
ship is an implied condition in all construction and
service contracts in Connecticut. He also argues that
there was sufficient evidence in the record for the court
reasonably to conclude that the defendant failed to
perform the repairs in a workmanlike fashion.1 We agree
with the plaintiff.
We must first consider the question of whether the
defendant was required to satisfy an implied condition
of workmanship when it completed the second set of
repairs to the plaintiff’s driveway. ‘‘[A]ccompanying
every contract is a common-law duty to perform with
care, skill, reasonable expediency and faithfulness the
thing agreed to be done. A failure to observe any of
these conditions is . . . a breach of contract. Thus, [a]
cause of action for breach of contract may be based
on an implied promise to exercise due care in per-
forming the services required by the contract. Whether a
contract for services is breached depends upon whether
the service provider exercises or fails to exercise that
degree of skill and knowledge normally possessed by
those members of the trade in which the service pro-
vider is engaged who are in good standing in the same
or similar communities. This implied promise is related
to the implied warranty of workmanship and fitness
for a particular purpose.’’ (Footnotes omitted; internal
quotation marks omitted.) 23 R. Lord, Williston on Con-
tracts, (4th Ed. 2002) § 63:25, p. 525.
Our Supreme Court has recognized that ‘‘[a] duty to
use care may arise from a contract, from a statute, or
from circumstances under which a reasonable person,
knowing what he knew or should have known, would
anticipate that harm of the general nature of that suf-
fered was likely to result from his act or failure to act.
. . . A builder is under a duty to exercise that degree
of care which a skilled builder of ordinary prudence
would have exercised under the same or similar condi-
tions.’’ (Citation omitted; internal quotation marks omit-
ted.) Calderwood v. Bender, 189 Conn. 580, 584, 457
A.2d 313 (1983); see also Perl v. Eagle’s Wing, LLC,
Superior Court, judicial district of Middlesex, Docket
No. CV-08-5004560-S (May 11, 2011) (51 Conn. L. Rptr.
625) (‘‘It is an implied condition of every service con-
tract that the service will be performed in a workman-
like manner. . . . A breach of this implied condition
would be a breach of contract.’’[Internal quotation
marks omitted.]). We therefore conclude that the defen-
dant was required to complete the repairs to the plain-
tiff’s driveway with that degree of care exercised by
skilled individuals and businesses in the driveway repair
and construction industry.
We next turn to the issue of whether the court prop-
erly found that the defendant had failed to comply with
the terms of the settlement agreement. ‘‘A settlement
agreement, or accord, is a contract among the parties.’’
Ackerman v. Sobol Family Partnership, LLP, 298 Conn.
495, 532, 4 A.3d 288 (2010). ‘‘The determination of
whether a contract has been materially breached is a
question of fact that is 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 mis-
take has been committed.’’ (Citations omitted; internal
quotation marks omitted.) Efthimiou v. Smith, 268
Conn. 487, 493–94, 846 A.2d 216 (2004). ‘‘Because it is
the trial court’s function to weigh the evidence and
determine credibility, we give great deference to its
findings. . . . In reviewing factual findings, [w]e do not
examine the record to determine whether the [court]
could have reached a conclusion other than the one
reached. . . . Instead, we make every reasonable pre-
sumption . . . in favor of the trial court’s ruling.’’
(Internal quotation marks omitted.) Ackerman v. Sobol
Family Partnership, LLP, supra, 508.
In the present case, the court found that the defen-
dant did not complete the second set of repairs to the
plaintiff’s driveway in accordance with industry stan-
dards. In other words, the court found that the defen-
dant did not exercise the requisite degree of care. In
making this finding, the court credited the testimony
of Bowker, one of the plaintiff’s expert witnesses. After
reviewing the record and making every reasonable pre-
sumption in favor of the court’s ruling, we conclude
that the court’s finding was not clearly erroneous. There
was evidence offered at trial to support the court’s
conclusion, and we are not left with the definite and
firm conviction that a mistake has been committed.
Accordingly, we further conclude that the court prop-
erly found that the defendant failed to comply with the
terms of the settlement agreement.
II
The defendant next claims that the court improperly
found that the defendant failed to prove its special
defense. The defendant argues that Tucker’s testimony
at trial established that the plaintiff’s failure to install
the Belgian blocks properly was an intervening cause
of the damage to the driveway and precluded recovery
by the plaintiff. The plaintiff argues that the court’s
finding that the defendant failed to prove its special
defense was well supported by the evidence and was
not clearly erroneous. We agree with the plaintiff.
The defendant does not claim that the court misap-
plied the law. Rather, it claims that the court’s factual
findings were incorrect. The court’s factual findings
underlying the defendant’s special defense are reviewed
pursuant to the clearly erroneous standard. See Mone-
tary Funding Group, Inc. v. Pluchino, 87 Conn. App.
401, 406, 867 A.2d 841 (2005). ‘‘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 mis-
take has been committed.’’ (Internal quotation marks
omitted.) Efthimiou v. Smith, supra, 268 Conn. 493–94.
‘‘Because it is the trial court’s function to weigh the
evidence and determine credibility, we give great defer-
ence to its findings. . . . In reviewing factual findings,
[w]e do not examine the record to determine whether
the [court] could have reached a conclusion other than
the one reached. . . . Instead, we make every reason-
able presumption . . . in favor of the trial court’s rul-
ing.’’ (Internal quotation marks omitted.) Ackerman v.
Sobol Family Partnership, LLP, supra, 298 Conn. 508.
The court found that the defendant failed to prove
its special defense. After reviewing the record as a
whole, we conclude that the court’s finding was not
clearly erroneous. The testimony of the plaintiff and the
plaintiff’s expert witnesses provided sufficient evidence
for the court to conclude that the Belgian blocks were
not the cause of the damage to the plaintiff’s driveway.
The defendant asserts, correctly, that Tucker provided
testimony that the Belgian blocks were the cause of
the damage. The court, however, did not credit Tucker’s
testimony and instead credited the testimony of the
plaintiff’s expert witnesses, concluding that, ‘‘despite
the testimony of Mr. Tucker, the defendant has failed
to prove its special defense by a fair preponderance of
the evidence.’’ It is the province of the trial court to
determine the credibility of witnesses; Ackerman v.
Sobol Family Partnership, LLP, supra, 298 Conn. 508;
and the record before us reveals that the court’s factual
findings with respect to the Belgian blocks were sup-
ported by the evidence. We therefore conclude that the
court properly found that the defendant failed to prove
its special defense.
III
We now turn to the defendant’s claim that the court
improperly rendered judgment in favor of the plaintiff
on the first and second counts of the amended com-
plaint, alleging breach of contract and negligence with
respect to the original contract. The defendant argues
that the court’s rendering judgment in favor of the plain-
tiff on all four counts of the amended complaint violated
our Supreme Court’s holding in Audubon Parking Asso-
ciates Ltd. Partnership v. Barclay & Stubbs, Inc., 225
Conn. 804, 809, 626 A.2d 729 (1993), which permits
a party alleging breach of a settlement agreement to
enforce either the settlement agreement or the original
contract. The defendant also argues, in the alternative,
that the court was precluded from rendering judgment
on the first and second counts of the amended com-
plaint because the parties entered into a settlement
agreement, which materially altered the contractual
obligations of the parties.
The plaintiff argues that the court properly rendered
judgment in his favor on all four counts of the amended
complaint because, pursuant to Audubon Parking
Associates Ltd. Partnership, he was required to prove
a breach of the original contract and a breach of the
settlement agreement in order to recover damages
under the first and second counts. In response to the
defendant’s alternative argument, the plaintiff argues
that the settlement agreement did not preclude the
court from rendering judgment in his favor on the first
and second counts because the defendant did not satisfy
its obligations under the settlement agreement. We
agree with the plaintiff.
A
The defendant first argues that the court violated our
Supreme Court’s holding in Audubon Parking Associ-
ates Ltd. Partnership v. Barclay & Stubbs, Inc., supra,
225 Conn. 809. In that case, our Supreme Court stated
that ‘‘[a]n accord is a contract under which an obligee
promises to accept a stated performance in satisfaction
of the obligor’s existing duty. Performance of the accord
discharges the original duty. . . . If there is a breach of
the accord, the obligee has the option of either seeking
enforcement of the original duty or seeking enforce-
ment of any obligation under the accord.’’ (Citations
omitted; internal quotation marks omitted.) Id. The
defendant argues that the court, in rendering judgment
in favor of the plaintiff on all four counts of the amended
complaint, improperly permitted the plaintiff to seek
enforcement of both the original contract and the settle-
ment agreement. We are not persuaded.
‘‘The interpretation of a trial court’s judgment pre-
sents a question of law over which our review is plenary.
. . . As a general rule, judgments are to be construed
in the same fashion as other written instruments. . . .
The determinative factor is the intention of the court
as gathered from all parts of the judgment. . . . The
interpretation of a judgment may involve the circum-
stances surrounding the making of the judgment. . . .
Effect must be given to that which is clearly implied
as well as to that which is expressed. . . . The judg-
ment should admit of a consistent construction as a
whole.’’ (Citation omitted; internal quotation marks
omitted.) Sosin v. Sosin, 300 Conn. 205, 217–18, 14 A.3d
307 (2011).
In rendering judgment in favor of the plaintiff, the
court made the following ruling: ‘‘The court finds . . .
that the defendant breached the settlement agreement
by [its] negligent repair and replacement of the plain-
tiff’s driveway in 2009. The court further finds that the
defendant’s initial repair and replacement of the plain-
tiff’s driveway in 2005 was negligent and a breach of
the original contract . . . . The court finds that,
despite the testimony of Mr. Tucker, the defendant has
failed to prove its special defense by a fair preponder-
ance of the evidence. Accordingly, the court finds for
the plaintiff on all four counts of the amended complaint
and further finds damages in the amount of $36,550,
plus costs to be determined in a bill of costs.’’
Viewing the judgment as a whole, we conclude that
the court did not permit the plaintiff to seek enforce-
ment of both the original contract and the settlement
agreement. Although the plaintiff made no formal elec-
tion, it is evident from the judgment and the circum-
stances surrounding it that the court proceeded with
the understanding that the plaintiff intended to seek
enforcement of the original contract. The plaintiff has
also argued before this court on appeal that he intended
to recover under the contract.
A settlement agreement, or accord, ‘‘is a contract
under which an obligee promises to accept a stated
performance in satisfaction of the obligor’s existing
duty. Performance of the accord discharges the original
duty. . . . Thus, [u]ntil performance of the accord, the
original duty is suspended unless there is such a breach
of the accord by the obligor as discharges the new duty
of the obligee to accept the performance in satisfac-
tion.’’ (Citations omitted; internal quotation marks omit-
ted.) Tolland Enterprises v. Scan-Code, Inc., 239 Conn.
326, 333, 684 A.2d 1150 (1996). Therefore, in order to
recover damages under the original contract, the plain-
tiff was required to prove that the defendant breached
both the contract and the settlement agreement. The
court’s statement that it was finding in favor of the
plaintiff on all four counts of the amended complaint
was an acknowledgment that the plaintiff had met his
burden of proof with respect to the contract and the
settlement agreement.
The court made a single award of damages to the
plaintiff in the amount of $36,550. This amount reflected
the estimate offered by Wild for the cost of removing
and replacing the plaintiff’s driveway with asphalt, as
provided for in the original contract, rather than the
chip sealed surface provided for in the settlement
agreement. We therefore conclude that the court
awarded damages to the plaintiff only for breach of the
original contract and did not award duplicative damages
for breach of the settlement agreement. Accordingly,
the court did not violate our Supreme Court’s holding
in Audubon Parking Associates Ltd. Partnership, as
the plaintiff was permitted to seek enforcement of the
original contract but not the settlement agreement.
B
The defendant also argues that the court was pre-
cluded from rendering judgment on the first and second
counts of the amended complaint because the parties
entered into a settlement agreement, which materially
altered the contractual obligations of the parties.
According to the defendant, the plaintiff waived his
right to bring an action for breach of contract when he
entered into the settlement agreement with the defen-
dant. This argument is without merit.
‘‘An accord is a contract under which an obligee
promises to accept a stated performance in satisfaction
of the obligor’s existing duty. Performance of the
accord discharges the original duty.’’ (Emphasis added;
internal quotation marks omitted.) Id. In the present
case, the court properly found that the defendant had
not satisfactorily performed its obligations under the
settlement agreement. ‘‘If there is a breach of the
accord, the obligee has the option of either seeking
enforcement of the original duty or seeking enforce-
ment of any obligation under the accord.’’ Audubon
Parking Associates Ltd. Partnership v. Barclay &
Stubbs, Inc., supra, 225 Conn. 809. Because the defen-
dant breached the settlement agreement, the plaintiff
was permitted to seek enforcement of the original con-
tract. Accordingly, the court was not precluded from
rendering judgment in favor of the plaintiff on counts
one and two of the amended complaint.
IV
The defendant’s final claim is that the court improp-
erly awarded damages to the plaintiff based on the
cost of repair of the plaintiff’s driveway rather than
the diminution in value of the plaintiff’s property. The
defendant argues that the damages awarded to the
plaintiff by the court did not comply with our Supreme
Court’s holding in Levesque v. D & M Builders, Inc.,
170 Conn. 177, 181, 365 A.2d 1216 (1976). The plaintiff,
on the other hand, argues that the amount of damages
awarded to him was proper. We agree with the plaintiff.
‘‘Normally, we review a court’s determination of dam-
ages under an abuse of discretion standard. . . . When,
however, a damages award is challenged on the basis
of a question of law, our review is plenary.’’ (Internal
quotation marks omitted.) Day v. Gabriele, 101 Conn.
App. 335, 346, 921 A.2d 692, cert. denied, 284 Conn. 902,
931 A.2d 262 (2007).
In Levesque v. D & M Builders, Inc., supra, 170 Conn.
180–81, our Supreme Court stated that ‘‘[a]s a general
rule, in awarding damages upon a breach of contract,
the prevailing party is entitled to compensation which
will place him in the same position he would have been
in had the contract been properly performed. . . .
Such damages are measured as of the date of the breach.
. . . For a breach of a construction contract involving
defective or unfinished construction, damages are mea-
sured by computing either (i) the reasonable cost of
construction and completion in accordance with the
contract, if this is possible and does not involve unrea-
sonable 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 by the plaintiff, if construction and completion
in accordance with the contract would involve unrea-
sonable economic waste.’’ (Citations omitted; internal
quotation marks omitted.)
In the present case, the plaintiff presented evidence
of the cost of repairing his driveway, and the court
based its award of damages on that evidence. The defen-
dant argues that, pursuant to Levesque, the plaintiff was
required to also present evidence of the diminution in
value of his property. The defendant further argues
that the plaintiff failed to distinguish between damages
suffered as a result of the breach of the original contract
and damages suffered as a result of the breach of the
settlement agreement. We have already determined that
the damages awarded to the plaintiff by the court were
properly based on the defendant’s breach of the original
contract, and thus the plaintiff was not required to pre-
sent evidence of any damages he may have suffered as
a result of the breach of the settlement agreement.
With respect to the defendant’s first argument, that
the plaintiff was required to present evidence of the
diminution in value of his property, we are not per-
suaded. ‘‘The basic measure of damages for injury to
real property is the resultant diminution in its value.
. . . There is, however, a well established exception to
this formula; such diminution in value may be deter-
mined by the cost of repairing the damage, provided,
of course, that that cost does not exceed the former
value of the property and provided also that the repairs
do not enhance the value of the property over what it
was before it was damaged. . . . The permissive lan-
guage of [Whitman Hotel Corp. v. Elliott & Watrous
Engineering Co., 137 Conn. 562, 573, 79 A.2d 591 (1951)]
clearly leaves the selection of the repair measure in the
trial court’s discretion, limited only by the two attached
provisos. . . . The cost of repairs, therefore, is a proxy
for diminution in value caused by damage to property.
Because these are, in effect, alternative measures of
damages, the plaintiff need not introduce evidence of
both diminution in value and cost of repairs.’’ (Citations
omitted; footnotes omitted; internal quotation marks
omitted.) Willow Springs Condominium Assn., Inc. v.
Seventh BRT Development Corp., 245 Conn. 1, 59–60,
717 A.2d 77 (1998). Accordingly, we do not accept the
defendant’s argument that the plaintiff was required to
present evidence of diminution in value in addition to
the cost of repair.
The court may, in its discretion, substitute the cost
of repair for diminution in value as long as the measure
of damages based on the cost of repair does not result
in economic waste. Id. The question now before us,
then, is whether the plaintiff must prove that the cost
of repair will not result in economic waste, or whether
the defendant must prove that it will. In Falco v. James
Peter Associates, Inc., 165 Conn. 442, 446, 335 A.2d 301
(1973), our Supreme Court held that the trial court
improperly awarded damages based on the cost of
repair because the court ‘‘made no finding as to the
former value of the plaintiffs’ property or as to whether
the repairs contemplated would enhance the value of
the property beyond what it was before the injury.’’
Similarly, in Spera v. Audiotape Corp., 1 Conn. App.
629, 634, 474 A.2d 481 (1984), this court held that the
trial court improperly awarded damages based on the
cost of restoration rather than diminution in value. This
court noted that ‘‘[t]he burden is on the plaintiff to
present evidence which affords a reasonable basis for
measuring [his] loss. . . . Although it is often impossi-
ble to prove damages with mathematical exactitude,
the plaintiff must nevertheless provide sufficient evi-
dence for the trier to make a fair and reasonable esti-
mate. . . . This includes, in a case such as this
involving extensive changes in the property, providing
evidence of the relevant comparative values. . . .
Although the trial court here found that the sale of the
property took into account the cost of restoration, it
did not find that the difference in values was equal to
or approximated that figure. Moreover, it is clear that
it only employed the cost of restoration rule of damages
without regard to the possibility of unreasonable eco-
nomic waste.’’ (Citations omitted; internal quotation
marks omitted.) Id., 633–34.
Falco and Spera indicate that the burden is on the
plaintiff to prove that the cost of repair will not result
in economic waste. After both Falco and Spera were
decided, however, our Supreme Court stated for the
first time in Willow Springs Condominium Assn., Inc.
v. Seventh BRT Development Corp., supra, 245 Conn.
60, that ‘‘the plaintiff need not introduce evidence of
both diminution in value and cost of repairs.’’ After
Willow Springs Condominium Assn., Inc., this court
held in Centimark Corp. v. Village Manor Associates
Ltd. Partnership, 113 Conn. App. 509, 531, 967 A.2d
550, cert. denied, 292 Conn. 907, 973 A.2d 103 (2009),
that the trial court properly awarded damages based
on the cost of repair when there was ‘‘no evidence that
the cost of replacing the roof exceeded the value of the
property or that the replaced roof enhanced the value
of the property over what it was before it was damaged.’’
Although Falco and Spera required the plaintiff to
prove the absence of economic waste, the subsequent
appellate decisions in Willow Springs Condominium
Assn., Inc., and Centimark Corp. shifted the burden
of proving economic waste to the defendant. In light
of those appellate decisions, we conclude that the
defendant bears the burden of proving that the cost of
repair will result in economic waste. There is no evi-
dence in the record before us that the cost of repairing
the plaintiff’s driveway exceeded the former value of
the plaintiff’s property or that the repairs would
enhance the value of the property over what it was
before it was damaged. Because the defendant did not
present any evidence that the cost of repairing the drive-
way would result in economic waste, it was within the
court’s discretion to award damages based on the cost
of repair rather than diminution in value of the property.
We therefore conclude that the court properly awarded
damages to the plaintiff based on the cost of repairing
his driveway.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The plaintiff also argues that the defendant cannot claim on appeal that
it complied with the terms of the settlement agreement because it did not
specially plead the defense of accord and satisfaction as required by Practice
Book § 10-50. This argument is without merit. Although the defendant did
not specially plead the defense of accord and satisfaction, ‘‘the failure to
file a special defense may be treated as waived when no objection has been
raised to the offer of evidence on the issue.’’ Pepe v. New Britain, 203 Conn.
281, 286, 524 A.2d 629 (1987). At trial, extensive evidence was offered by
both the plaintiff and the defendant on the issue of whether the defendant
had satisfied its obligations under the parties’ accord. We therefore conclude
that the plaintiff has waived any objection to the defendant’s failure to
specially plead the defense of accord and satisfaction.