Jamalipour v. Fairway's Edge Condominium Association, Inc.

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ALIREZA JAMALIPOUR v. FAIRWAY’S EDGE
ASSOCIATION, INC., ET AL.
(AC 40866)
DiPentima, C. J., and Keller and Sheldon, Js.
Syllabus
The plaintiff sought to recover damages from the defendants, a condominium
association and its property manager, for, inter alia, negligence in con-
nection with alleged faulty repairs to a deck attached to the plaintiff’s
condominium unit. The association managed a condominium community
in which the plaintiff owned a unit. In 2009, the association hired a
contractor to repair or replace decks throughout the community, includ-
ing the plaintiff’s deck. The property manager took over the management
of the community before the contractor performed the repairs on the
plaintiff’s deck in 2011. Following a trial, the trial court determined that
the repairs made to the plaintiff’s deck by the contractor, under the
supervision of the defendants, were deficient in several ways and that
the contractor’s negligence and the negligence of the defendants in
subsequently failing to correct the results of the contractor’s work proxi-
mately caused damage to the deck and to certain interior spaces of the
plaintiff’s adjoining condominium unit. The court awarded the plaintiff
$31,900 in damages to make the necessary repairs to the deck and
condominium unit. On the defendants’ appeal to this court, held:
1. The defendants could not prevail on their claim that the evidence did not
support the trial court’s award of damages and that the award would
unjustly enrich the plaintiff; the evidence and the rational inferences to
be drawn therefrom provided a factual basis for the court’s award of
damages, and this court was not left with the definite and firm conviction
that a mistake had been made, as certain testimony presented by the
plaintiff from B, a licensed home improvement contractor who estimated
the cost of repairing the claimed deficiencies, was particularly relevant
to the precise amount of damages awarded by the court.
2. Contrary to the defendants’ claim, the trial court did not fail to consider
relevant association bylaws and the Common Interest Ownership Act
(§ 47-200 et seq.) in rendering its judgment; that issue was not raised
by the defendants at trial but, rather, was raised for the first time in
their postjudgment motion to reargue, which the court denied on the
ground that it was procedurally improper as an attempt to obtain a
second bite of the apple by raising an issue that could have been pre-
sented at the time of trial, and, therefore, the record plainly reflected
that, at the time that the issue was raised before the trial court, the
court considered it and determined that it was not properly before it,
and the defendants did not appeal from the court’s ruling denying their
motion to reargue.
Argued September 19—officially released November 5, 2019
Procedural History
Action to recover damages for, inter alia, the defen-
dants’ alleged negligence, and for other relief, brought
to the Superior Court in the judicial district of New
Britain, where the action was withdrawn as to the defen-
dant Michael Moriarty; thereafter, White & Katzman
Property Services was cited in as a defendant; subse-
quently, the mater was tried to the court, Hon. Joseph
M. Shortall, judge trial referee; thereafter, the court
granted in part the motion to dismiss filed by the named
defendant et al.; subsequently, the court rendered judg-
ment for the plaintiff, from which the named defendant
et al. appealed to this court. Affirmed.
Anita M. Varunes, with whom was Christopher S.
Young, for the appellants (named defendant et al.).
Opinion
KELLER, J. The plaintiff, Alireza Jamalipour, brought
the underlying negligence action against the defendants
Fairway’s Edge Association, Inc. (association), and
White & Katzman Property Services (property man-
ager)1 seeking economic damages that he alleged to
have been caused by faulty repairs to a deck attached
to his condominium unit.2 The defendants appeal from
the judgment rendered by the trial court in the plaintiff’s
favor in the amount of $31,900. The defendants claim
that (1) the evidence did not support the court’s award
of damages and that the award will unjustly enrich the
plaintiff3 and (2) the court erred in failing to consider
relevant association bylaws and the Common Interest
Ownership Act (act), General Statutes § 47-200 et seq.
We affirm the judgment of the trial court.
Following a trial to the court on November 30, 2016,
and March 29, 2017, the court found in relevant part
that, in 2009, the plaintiff purchased a condominium
unit in the Fairway’s Edge condominium community.
In December, 2009, the association, which managed the
affairs of the condominium community at that time,
hired a contractor4 to repair or replace decks through-
out the community, directed the contractor to perform
work on the plaintiff’s deck, and notified the plaintiff
of the work to be performed. The property manager
took over the management of the community before
the contractor performed the repairs at issue in 2011.
The court determined that the repairs made to the
plaintiff’s deck by the contractor in 2011, under the
supervision of the defendants, were deficient in several
ways and that the contractor’s negligence and the negli-
gence of the defendants in subsequently failing to cor-
rect the results of the contractor’s work proximately
caused damage to the deck and to certain interior
spaces of the plaintiff’s adjoining residential unit. By
the time of trial, the deck and the unit were in a state
of disrepair requiring remediation. As against both
defendants, the court awarded the plaintiff $31,900 in
damages to undertake necessary repairs. This appeal
followed.
I
First, the defendants claim that the evidence did not
support the court’s award of damages and that the
court’s award will unjustly enrich the plaintiff. Essen-
tially, the defendants argue that the evidence demon-
strated that the cost to demolish and replace the deck
was far less than $31,900. We disagree.
With respect to its damage award, the court stated:
‘‘This includes demolition and replacement of the entire
deck, replacement of the ledger board that connects the
deck to the house, the services of electricians needed
to disconnect electrical service while work on the deck
connection of a down spout to prevent water spillage
and rental of dumpsters. It does not include the replace-
ment of flashing . . . .’’
The defendants acknowledge that we review chal-
lenges to the trial court’s findings of fact under the
clearly erroneous standard of review. ‘‘A finding of fact
is clearly erroneous [if] there is no evidence in the
record to support it . . . or [if] although there is evi-
dence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction
that a mistake has been committed.’’ (Internal quotation
marks omitted.) Lussier v. Spinnato, 69 Conn. App.
136, 141, 794 A.2d 1008, cert. denied, 261 Conn. 910,
806 A.2d 49 (2002).
We have carefully reviewed the evidence presented
at trial. The evidence and the rational inferences to be
drawn therefrom provide a factual basis for the court’s
award of damages, and we are not left with the definite
and firm conviction that a mistake has been made. In
particular, we observe that the testimony presented by
the plaintiff from David Balali, a licensed home
improvement contractor who estimated the cost of
repairing the claimed deficiencies, was particularly rele-
vant to the precise amount of damages awarded by
the court.
II
Next, the defendants claim that the court erred in
failing to consider relevant association bylaws and the
act.5 Essentially, they argue that it was improper for
the court to award the plaintiff economic damages to
replace his deck because, under the association’s
bylaws, the deck is a limited common element of the
association and, pursuant to General Statutes § 47-249,
the association is solely responsible for the repair and
replacement of common elements. Thus, the defendants
argue that the court’s judgment is contrary to the act.
We disagree.
The defendants’ appellate brief does not discuss the
following procedural history, but it is highly relevant
to our disposition of the present claim. Contrary to the
defendants’ arguments, the court did not fail to consider
the bylaws and the act. During the trial, the defendants
did not raise this issue. They raised the issue for the
first time following the trial, in their postjudgment
‘‘motion to reargue/reconsider’’ (motion to reargue).
The court denied the motion on the ground that it was
procedurally improper as an attempt to obtain ‘‘a sec-
ond bite of the apple’’ by raising an issue that could
have been presented at the time of trial. The court
observed that, ‘‘[w]hether it is the result of inattention
or design, defense counsel’s tardiness in raising [the
issue] serves neither the interests of her clients nor
the court.’’
In this appeal, the defendants do not raise a claim
of error with respect to the court’s denial of their motion
to reargue. The defendants filed their appeal from the
court’s judgment in favor of the plaintiff on September
20, 2017. The court denied their motion to reargue on
September 25, 2017, but the defendants did not amend
their appeal to encompass the court’s ruling on the
motion. See Practice Book § 61-9 (‘‘[s]hould the trial
court, subsequent to the filing of a pending appeal,
make a decision that the appellant desires to have
reviewed, the appellant shall file an amended appeal
within twenty days from the issuance of notice of the
decision’’).
The claim raised by the defendants is meritless
because it is belied by what transpired before the trial
court. The issue raised in the present claim was not
raised at the time of trial or decided by the trial court.
Rather, the court expressly declined to consider the
issue when it was raised in the defendants’ postjudg-
ment motion to reargue, and the defendants do not
appeal from the court’s decision to deny that motion.
Accordingly, the record plainly reflects that, at the time
that the issue was raised before the trial court, the court
did not fail to consider it. The court considered the
issue and determined that the issue was not properly
before it.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Michael Moriarity also was named as a defendant but is not involved in
this appeal; see footnote 2 of this opinion; and, therefore, we refer in this
opinion to the association and the property manager as the defendants. In
addition, the plaintiff has not participated in the present appeal. Accordingly,
we consider the appeal on the basis of the record, the defendants’ brief,
and the arguments advanced by the defendants at the time of oral argument
before this court. We note that, on March 8, 2019, the defendants, relying
on Practice Book § 63-4, filed a motion for permission to file a supplemental
brief on the ground that they wished ‘‘to introduce new evidence to the
court that was not available when [they] filed their original brief.’’ On March
28, 2019, this court denied the motion and, later, denied the defendants’
motion for reconsideration of that ruling.
2
In his operative third amended complaint, the plaintiff set forth five
claims. The court considered counts one and five of the plaintiff’s operative
complaint to state a cause of action sounding in negligence against the
association and the property manager, respectively, and rendered judgment
on those counts. At the beginning of the trial, the plaintiff abandoned counts
three and four of the complaint. At the conclusion of the plaintiff’s case-
in-chief, the court granted the defendants’ motion to dismiss count two of
the complaint. In an earlier complaint in this action, the plaintiff named
Michael Moriarity, the president of the association, as a defendant. Later,
the plaintiff withdrew the complaint against Moriarity.
3
The defendants claim that the court erred in its award of damages
because (1) the award was greater than the estimate provided by the associa-
tion for the cost of necessary repairs to the plaintiff’s deck and (2) the
award will unjustly enrich the plaintiff because it exceeds the cost of demol-
ishing and replacing the deck. Because these claims raise the same material
issue, we consider them together.
4
The contractor was not a party to the underlying action.
5
The defendants frame their claim in terms of whether ‘‘[t]he trial court
erred in failing to consider the bylaws and rules and regulations in deciding
an action brought by a member of the association against the association.’’