Luongo Construction & Development, LLC v. MacFarlane , 176 Conn. App. 272 ( 2017 )

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LUONGO CONSTRUCTION AND
DEVELOPMENT, LLC v.
JAMES MACFARLANE
(AC 38185)
DiPentima, C. J., and Lavine and Flynn, Js.
Syllabus
The plaintiff construction company, L Co., sought to recover damages from
the defendant, M, for, inter alia, breach of a contract for the construction
of a modular home. Thereafter, M filed a counterclaim against L Co.
and L, who was in charge of the construction, alleging, inter alia, breach
of contract, breach of the New Home Construction Contractors Act (§ 20-
417a et seq.), and violation of the Connecticut Unfair Trade Practices
Act (CUTPA) (§ 42-110a et seq.). Following a trial to the court, judgment
was rendered for M on the complaint and in part on his counterclaim,
from which L Co. and L appealed to this court. They claimed, inter alia,
that the trial court improperly denied two motions they had filed to
dismiss M’s counterclaim, which were based on the prior pending action
doctrine, given that a separate action was pending in New Haven that
involved the same parties. Held:
1. The trial court properly denied the motions to dismiss M’s counterclaim:
this court would not presume error in the trial court’s one sentence
order denying the first motion to dismiss, which was filed by both L
Co. and L, as the court was not required to issue a memorandum of
decision setting forth its reasoning as to each claim of law raised in the
motion, and because L Co. and L failed to seek an articulation of the
order, they failed to provide this court with an adequate record on which
to review their claim that the trial court failed to apply the proper
analytical framework, and this court would not presume error by the
trial court where L Co. and L failed to satisfy their burden of demonstra-
ting that the trial court’s ruling was factually or legally untenable; more-
over, the trial court properly denied the second motion to dismiss filed
by L Co., in which L Co. alleged, on the basis of the prior pending action
doctrine, that M’s counterclaim should be dismissed because M had a
full opportunity to litigate the claims raised therein in the New Haven
action but chose not to do so prior to the withdrawal of the New Haven
action, this court having concluded previously that once a second action
has been withdrawn, there is no action pending to implicate the prior
pending action doctrine.
2. The trial court properly denied the motion for summary judgment filed
by L Co., in which L Co. alleged that M’s counterclaim violated the prior
pending action doctrine, and also raised the defenses of waiver and
equitable estoppel: the trial court having stated that it had considered
the arguments of the parties and concluded that genuine issues of mate-
rial fact existed that precluded the rendering of summary judgment, the
assertion by L Co. and L that the court failed to consider their claim
regarding the prior pending action doctrine was unavailing; furthermore,
because the parties moving for summary judgment, L Co. and L, did not
satisfy their burden of establishing that no genuine issue of material
fact existed with respect to the issues of waiver and estoppel, M, as the
nonmoving party, had no obligation to submit evidence establishing the
existence of such an issue, and our Supreme Court having determined
previously that a denial of a motion for summary judgment is not appeal-
able when a full trial on the merits produces a verdict against the moving
party, there was no reason to depart from that general rule under the
circumstances of this case, where, after hearing all of the evidence, the
trial court rejected the claims of waiver and estoppel raised by L Co.
3. The trial court did not abuse its discretion in awarding punitive damages
to M pursuant to CUTPA; the record supported that court’s determina-
tion that L Co. had failed to follow the specifications of the modular
home manufacturer and performed the crucial work of setting the foun-
dation and beams in a shockingly poor manner, which resulted in a
number of defects and problems with the house, and that such conduct,
coupled with the failure of L Co. to comply with the requirements of
the statute (§ 20-417d) governing new home construction contractors,
constituted reckless conduct, which justified an award of punitive dam-
ages under CUTPA.
(One judge dissenting in part)
Argued April 17—officially released September 12, 2017
Procedural History
Action to recover damages for, inter alia, breach of
contract, and for other relief, brought to the Superior
Court in the judicial district of Middlesex, where the
court, Aurigemma, J., granted the plaintiff’s application
for a prejudgment remedy; thereafter, the court, Holz-
berg, J., granted the defendant’s motion to dismiss the
prejudgment remedy; subsequently, the court, Morgan,
J., denied the defendant’s motion to dismiss; thereafter,
the court, Aurigemma, J., sustained the defendant’s
objection to the plaintiff’s application for a prejudgment
remedy; subsequently, the court, Marcus, J., granted
the defendant’s motion to cite in Michael Luongo as
a counterclaim defendant, and the defendant filed a
counterclaim; thereafter, the court, Aurigemma, J.,
denied the motion to dismiss filed by the plaintiff and
the counterclaim defendant; subsequently, the court,
Domnarski, J., denied the motion for summary judg-
ment filed by the plaintiff and the counterclaim defen-
dant, and the plaintiff and the counterclaim defendant
appealed to this court, which granted the defendant’s
motion to dismiss the appeal; thereafter, the court, Aur-
igemma, J., denied the defendant’s motions to dismiss;
subsequently, the matter was tried to the court, Auri-
gemma, J.; judgment for the defendant on the complaint
and in part on the counterclaim, from which the plaintiff
and the counterclaim defendant appealed to this
court. Affirmed.
Frank P. Cannatelli, for the appellants (plaintiff and
counterclaim defendant).
Vincent T. McManus, Jr., for the appellee
(defendant).
Opinion
DiPENTIMA, C. J. The plaintiff, Luongo Construction
and Development, LLC (Luongo LLC), and the counter-
claim defendant, Michael Luongo (Luongo), appeal
from the judgment of the trial court rendered in favor
of the defendant and counterclaim plaintiff, James Mac-
Farlane (MacFarlane). On appeal, Luongo LLC and
Luongo (Luongo parties) claim that the court improp-
erly (1) denied their motions to dismiss, which were
based on the prior pending action doctrine, (2) denied
their motion for summary judgment and (3) awarded
an excessive amount of punitive damages. We disagree
and, accordingly, affirm the judgment of the trial court.
The following facts and procedural history are neces-
sary to understand the history of this case, which the
trial court aptly described as ‘‘unnecessarily protracted
and convoluted.’’ The proceedings originated in the Mid-
dlesex judicial district when Luongo LLC filed an appli-
cation for a prejudgment remedy against MacFarlane.
The court granted the application in the amount of
$20,000. The prejudgment attachment was dismissed
on June 29, 2012, and Luongo LLC’s subsequent efforts
to attach MacFarlane’s property proved to be unsuc-
cessful.
Luongo LLC commenced the present action and filed
an amended complaint on August 13, 2013. It alleged
that Luongo LLC and MacFarlane had entered into a
contract regarding the construction of a modular home.
It further claimed that Luongo LLC had performed its
obligations under the contract, including the comple-
tion of the items contained on a ‘‘punch list . . . .’’
Luongo LLC contended that MacFarlane had failed to
pay the balance of $20,000 owed under the terms of
the contract.
Over the course of several months, MacFarlane cited
in Luongo as a counterclaim defendant, filed an answer
to the amended complaint and brought a counterclaim
against the Luongo parties. In his amended counter-
claim, MacFarlane alleged breach of contract, a viola-
tion of the New Home Construction Contractors Act,
General Statutes § 20-417a et seq.,1 violations of the new
home express and implied warranties as set forth in
General Statutes §§ 47-117, 47-118 and 47-121, a viola-
tion of the Connecticut Unfair Trade Practices Act
(CUTPA), General Statutes § 42-110a et seq., and a viola-
tion of General Statutes § 21-86,2 and he sought recovery
from Luongo, who allegedly was personally in charge
of the construction of MacFarlane’s home, for negligent
and unworkmanlike construction.
Following a two day trial, the court issued a memo-
randum of decision on June 17, 2015, and found the
following facts. On November 24, 2010, MacFarlane
agreed to pay Luongo LLC $247,915 in exchange for the
‘‘delivery and installation’’ of a modular home with a
three car garage. Luongo LLC contracted to perform
the work in a substantially workmanlike manner and
in accordance with the drawing and specifications
provided.
MacFarlane called Steven Rocco, an expert with
thirty-five years experience as an architect and twenty-
five years experience as a builder, as a witness. Rocco
inspected the property several times, interviewed Mac-
Farlane, examined photographs taken during the con-
struction, and reviewed the ‘‘site assembly handbook’’
provided by the modular home’s manufacturer. In
Rocco’s opinion, the two steel beams which ran end to
end down the center line of the basement had been
installed in a ‘‘haphazard’’ manner, and this error com-
promised the rest of the construction of the home.
Rocco further testified that because the steel beams
ran uphill to the center column, there was ‘‘a very visible
ridge down the center of the floor, as well as the oppos-
ing slopes of the ceiling in the [basement]. Between the
high point in the center, and the exaggerated variances
[on] the top of the foundation walls, the wood modular
boxes above are subject to twists and turns, which
causes the plethora of cracks throughout the house.’’
(Emphasis omitted.)
The trial court stated in its memorandum of decision
that Rocco ‘‘further testified that at the place where
the two halves of the modular home meet, the ceiling
is visibly sagging and also rotating. [He] further opined
that the sagging and rotation of the beams was caused
by [Luongo’s] failure to bolt the beams or brace them in
some other fashion. The torque created by the unbolted
beams causes cracks in the house, which will continue
to occur unless the beams are bolted.’’ Rocco also indi-
cated that, as a result of the error by Luongo LLC in
placing the stairs that connected the cellar and garage,
the space to park a vehicle was decreased, and thus,
MacFarlane did not receive a three car garage.
Rocco also provided his opinions as to how to remedy
the various problems in the home. One option was to
tear down the home and have a new one installed cor-
rectly. Rocco noted a less costly alternative, but this
option required, among other things, the removal of
all appliances, cabinets, wiring and plumbing in the
kitchen, as well as refinishing the subfloor and floor.
Further, this would require that the home be vacant for
thirty days.
The court rejected the claim of the Luongo parties
that a check and letter sent by Amy Coppola, who lived
with MacFarlane at the time, indicated MacFarlane’s
satisfaction with the home after the ‘‘punch list’’ had
been completed. It further concluded that Luongo LLC
had failed to perform its work in accordance with the
drawings and specifications provided, as well as in a
workmanlike manner. ‘‘This court finds that [Luongo
LLC] has already been paid far too much for its work
and is not entitled to receive its claimed balance of
$18,959. Judgment enters on the amended complaint in
favor of . . . MacFarlane.’’
The court then found in favor of MacFarlane on his
claim of breach of contract against Luongo LLC as a
result of its failure to perform work in a proper, work-
manlike manner. It awarded $61,938.43 in damages,
which was comprised of the $6072.43 that MacFarlane
had paid to repair various items and $55,866, which he
will have to spend to repair the defects. The court also
awarded consequential damages in the amount of $6000
for room and board costs that MacFarlane will incur
during the repairs, as well as $40,000 for the diminution
in value of the home even after the repairs have been
made. The actual damages, therefore, awarded to Mac-
Farlane totaled $107,938.43. This figure, however, was
adjusted by the amount not paid by MacFarlane
($18,959) and the fact that MacFarlane had paid $1200
for blueprints that he never received. The final total of
the actual damages awarded for the first count of the
counterclaim was $90,179.43.
The court further found that, aside from providing
MacFarlane with a copy of Luongo LLC’s registration
certificate, ‘‘[t]here was no evidence that [the Luongo
parties] complied with the balance of [General Statutes]
§ 20-417d. Had they done so, then MacFarlane could
have had some opportunity to determine something
about the qualifications of [the Luongo parties] and
determine whether they had ever constructed/installed
a modular home before. The violation of § 20-417d is a
violation of CUTPA. The fourth count of the counter-
claim alleges a violation of CUTPA.’’
Relying on precedent from our Supreme Court,
namely, Ulbrich v. Groth, 310 Conn. 375, 78 A.3d 76
(2013), the trial court noted that punitive damages and
attorney’s fees could be awarded, in the court’s discre-
tion, under CUTPA. In considering the propriety of
these awards in the present case, the court stated: ‘‘Mere
negligent workmanship might not justify an award of
punitive damages. However, in this case [the Luongo
parties] disregarded the modular home manufacturer’s
instructions and recommended installation methods.
. . . The construction of the house described by . . .
Rocco as ‘shocking’ combined with the failure to com-
ply with . . . § 20-417d justify the conclusion that the
conduct of Luongo LLC was reckless within the mean-
ing of CUTPA, and that punitive damages should be
awarded by the court.’’ The court awarded $15,025 for
expert witness fees incurred by MacFarlane, as well as
reasonable attorney’s fees to be determined at a later
date. Additionally, it awarded $150,000 in punitive dam-
ages, which, as the court noted, was greater than 1.5
times the actual damages of $90,179.43, but less than
double the actual damages.3
The court also found that Luongo LLC had breached
its express warranty, pursuant to § 47-117, and implied
warranty, pursuant to § 47-118, but that MacFarlane
failed to demonstrate a violation of § 47-121, which
creates a warranty when a certificate of occupancy
issues. The court then determined that MacFarlane had
abandoned his claim regarding § 21-86. With respect to
the sixth count of the counterclaim, the court found
that Luongo was personally liable. ‘‘In this case, Luongo
LLC contracted with MacFarlane, but the negligent and
inept conduct of . . . Luongo created the massive
defects in the house. There was substantial evidence
that Luongo supervised the placing of the beams and
most other aspects of the construction on the property.’’
In conclusion, the court rendered judgment in favor
of MacFarlane and against the Luongo parties in the
amount of $255,204.43 plus subsequently determined
attorney’s fees.4 This appeal followed. Additional facts
will be set forth as needed.
I
The Luongo parties first claim that the court improp-
erly denied their two motions to dismiss MacFarlane’s
counterclaim, which were based on the prior pending
action doctrine. They appear to claim that the court
failed to review its arguments that the counterclaim
should be dismissed pursuant to the prior pending
action doctrine and that this failure constituted an
abuse of discretion.
The following additional facts are necessary for our
resolution of this claim. After Luongo LLC filed its appli-
cation for a prejudgment remedy in Middlesex judicial
district, MacFarlane initiated a separate action against
Luongo LLC and Apex Homes, the manufacturer of the
modular home in the New Haven judicial district. In
the Middletown case, MacFarlane filed a motion to dis-
miss on the basis of the prior pending action doctrine.
Specifically, he claimed that the New Haven case had
been filed first and involved the same parties and issues
as the Middletown case. On December 27, 2012, the
court, Morgan, J., issued a memorandum of decision
denying MacFarlane’s motion. The court determined
that the writ of summons and complaint were served
one month earlier in the New Haven action. It further
concluded that the New Haven action included a defen-
dant, Apex Homes, Inc., that was not part of the Middle-
town case and that the claims asserted in each were
sufficiently different. Thus, the court exercised its dis-
cretion and concluded that the prior pending action
doctrine did not warrant the dismissal of the Middle-
town case.
In the New Haven action, MacFarlane filed a motion
to cite in Luongo as a defendant. This motion was filed
on December 12, 2013. Luongo LLC objected, and the
court considered these matters in the context of the
prior pending action doctrine. The court, Wilson, J.,
issued a memorandum of decision on January 17, 2014,
noting that MacFarlane’s counterclaim in the Middle-
town action had been served on Luongo on October
30, 2013. As Luongo had not yet been served in the New
Haven action, the court determined that the Middletown
action had been commenced first. It further determined
that the two actions were virtually alike and, therefore,
sustained the objection to MacFarlane’s motion to cite
in Luongo.
We now turn to the two motions to dismiss, filed by
the Luongo parties in the Middletown action, that are
the subject of this appeal. The Luongo parties filed
the first motion to dismiss on December 23, 2013, and
sought to have MacFarlane’s counterclaim dismissed
in its entirety. The Luongo parties argued, inter alia,
that the counterclaim should be dismissed because the
New Haven action was pending and it involved the same
parties. MacFarlane filed his objection on January 7,
2014, arguing that the two cases were different and that
Luongo had not yet been cited into the New Haven
case.5 On February 10, 2014, the court, Aurigemma, J.,
denied the motion to dismiss with a one sentence order.
On May 12, 2015, approximately three weeks after
the trial had concluded, but prior to the release of the
court’s decision on the merits, Luongo LLC again moved
to dismiss MacFarlane’s counterclaim on the basis of
the prior pending action doctrine. This motion was filed
more than one year after the New Haven action had
been withdrawn by MacFarlane. It argued that MacFar-
lane had the opportunity to litigate the matters raised
in the counterclaim in the New Haven action, as well
as a claim that Judge Wilson’s decision constituted the
law of the case.6 MacFarlane opposed this motion,
arguing in part that it had been filed untimely. On June
22, 2015, Judge Aurigemma issued an order denying the
motion on the ground that it should have been raised
before the trial was completed.
As an initial matter, we set forth the relevant legal
principles and our standard of review with respect to
claims regarding the prior pending action doctrine.
‘‘[T]he prior pending action doctrine permits the court
to dismiss a second case that raises issues currently
pending before the court. The pendency of a prior suit
of the same character, between the same parties,
brought to obtain the same end or object, is, at common
law, good cause for abatement. It is so, because there
cannot be any reason or necessity for bringing the sec-
ond, and, therefore, it must be oppressive and vexa-
tious. This is a rule of justice and equity, generally
applicable, and always, where the two suits are virtually
alike, and in the same jurisdiction. . . . The policy
behind the doctrine is to prevent unnecessary litigation
that places a burden on crowded court dockets. . . .
‘‘[T]he trial court must determine in the first instance
whether the two actions are: (1) exactly alike, i.e., for
the same matter, cause and thing, or seeking the same
remedy, and in the same jurisdiction; (2) virtually alike,
i.e., brought to adjudicate the same underlying rights
of the parties, but perhaps seeking different remedies;
or (3) insufficiently similar to warrant the doctrine’s
application. In order to determine whether the actions
are virtually alike, we must examine the pleadings . . .
to ascertain whether the actions are brought to adjudi-
cate the same underlying rights of the parties. . . . The
trial court’s conclusion on the similarities between the
cases is subject to our plenary review. . . .
‘‘Following that initial determination, the court must
proceed to a second step. If the court has concluded
that the cases are exactly alike or insufficiently similar,
the court has no discretion; in the former situation, it
must dismiss the second action, and in the latter, it
must allow both cases to proceed. . . . Where actions
are virtually, but not exactly alike, however, the trial
court exercises discretion in determining whether the
circumstances justify dismissal of the second action.’’
(Citation omitted; internal quotation marks omitted.)
MacDermid, Inc. v. Cookson Group, PLC, 149 Conn.
App. 571, 576–77, 89 A.3d 447, cert. denied, 312 Conn.
914, 93 A.3d 597 (2014); see also Bayer v. Showmotion,
Inc., 292 Conn. 381, 395–98, 973 A.2d 1229 (2009); Seli-
moglu v. Phimvongsa, 119 Conn. App. 645, 650 n.4,
989 A.2d 121, cert. denied, 296 Conn. 902, 991 A.2d
1103 (2010).
Although the prior pending action doctrine properly
is raised via a motion to dismiss, ‘‘it does not truly
implicate subject matter jurisdiction [and] may not,
therefore, as is true in the case of classic subject matter
jurisdiction, always be raised at any time.’’ (Internal
quotation marks omitted.) Geremia v. Geremia, 159
Conn. App. 751, 762 n.10, 125 A.3d 549 (2015); see also
710 Long Ridge Operating Co. II, LLC v. Stebbins, 153
Conn. App. 288, 293–94, 101 A.3d 292 (2014); Travelers
Casualty & Surety Co. of America v. Caridi, 144 Conn.
App. 793, 804 n.9, 73 A.3d 863 (2013).
A
In light of these principles, we first consider the
denial of the motion to dismiss filed on December 23,
2013. The Luongo parties argue that the one sentence
denial established that Judge Aurigemma failed to per-
form the ‘‘required legal analysis . . . .’’7 In essence,
the Luongo parties ask this court to presume error on
the part of Judge Aurigemma. We decline to do so.
At the outset, we note that the Luongo parties failed
to seek an articulation of the order denying their Decem-
ber 23, 2013 motion to dismiss. In this instance, the
court was not required to issue a memorandum of deci-
sion setting forth its reasoning as to each claim of law
raised by the parties and the factual basis thereof. See
Practice Book §§ 6-1 and 64-1. The Luongo parties,
nonetheless, were obligated to provide this court with
an adequate record to review their claim pertaining to
the denial of the motion to dismiss. See Practice Book
§ 61-10 (a). Although the court did not state the rationale
for its denial of the motion to dismiss, we note that at
the time of the filing of this motion, and the court’s
decision, the parties were not the same in the two
actions as a result of the denial of MacFarlane’s motion
to cite in Luongo in the New Haven case.
The Luongo parties ask that we assume that the court
failed to apply the proper analytical framework and
‘‘abused [its] discretion in simply not entertaining said
motion to dismiss . . . .’’ This request runs afoul of
our established law. ‘‘Unless the contrary appears in
the record, we will presume that the trial court acted
properly and considered applicable legal principles.’’
(Internal quotation marks omitted.) Rozbicki v. Gissel-
brecht, 155 Conn. App. 371, 379, 110 A.3d 458, cert.
denied, 317 Conn. 905, 114 A.3d 1221 (2015); see also
Sosin v. Sosin, 300 Conn. 205, 244, 14 A.3d 307 (2011)
(in absence of articulation, Supreme Court will presume
trial court acted properly). Stated slightly differently,
this court does not presume error by the trial court
where the party challenging the court’s ruling failed to
satisfy its burden of demonstrating that it was factually
or legally untenable. Kindred Nursing Centers East,
LLC v. Morin, 125 Conn. App. 165, 174, 7 A.3d 919
(2010). We conclude, therefore, that the court properly
denied the December 23, 2013 motion to dismiss the
Middletown action, which was based on the prior pend-
ing action doctrine.
B
We next consider the claim regarding the motion to
dismiss filed by Luongo LLC on May 12, 2015. Luongo
LLC argued that MacFarlane’s counterclaims should
be dismissed on the basis of the prior pending action
doctrine because he ‘‘had [a] full opportunity to litigate,
and chose not do so,’’ in the New Haven action prior
to its withdrawal on April 15, 2014. To be clear on
the time line of events, this motion was filed after the
conclusion of the trial in the Middletown action, but
prior to the release of Judge Aurigemma’s decision on
the merits. MacFarlane filed his objection to the motion
to dismiss on June 23, 2015, five days after Judge Auri-
gemma issued her memorandum of decision on the
merits of the Middletown action.
The court denied Luongo LLC’s motion to dismiss on
June 22, 2015. It concluded that the motion ‘‘should
have been raised at trial and was filed on May 12, 2015,
after the trial was complete.’’ On appeal, Luongo LLC
claims that the court ‘‘never properly entertained’’ this
motion to dismiss. We conclude that this argument is
without merit.
As noted previously, the prior pending action doc-
trine does not truly implicate the subject matter jurisdic-
tion of the trial court and thus may not be raised at
any time. 710 Long Ridge Operating Co. II, LLC v.
Stebbins, supra, 153 Conn. App. 294. Additionally, the
policy underlying this doctrine is to relieve the burden
of unnecessary litigation. Lodmell v. LaFrance, 154
Conn. App. 329, 333, 107 A.3d 975 (2014), cert. denied,
315 Conn. 921, 107 A.3d 959 (2015). The goal of the
doctrine is not served when the second action, i.e., the
case filed in New Haven, has been withdrawn and is
no longer crowding a busy court docket. See id. Finally,
this court has concluded that once a second action
has been withdrawn, ‘‘there is no action pending to
implicate the prior pending action doctrine.’’ 710 Long
Ridge Operating Co. II, LLC v. Stebbins, supra, 293
n.7; see also Kleinman v. Chapnick, 140 Conn. App.
500, 505, 59 A.3d 373 (2013) (doctrine permits court
to dismiss second action that raises issues currently
pending before court); Stephenson v. Shelton, Superior
Court, judicial district of Stamford-Norwalk, Docket
No. CV-09-5009876, 2009 WL 2962131, *1 (August 7,
2009) (same). For these reasons, we conclude that the
court properly denied the motion to dismiss filed by
Luongo LLC on May 12, 2015.8
II
The Luongo parties next claim that the court improp-
erly denied their motion for summary judgment with
respect to MacFarlane’s counterclaim. Specifically, they
argue that the court, Domnarski, J., failed to properly
analyze and consider the claim regarding the applicabil-
ity of the prior pending action doctrine and that MacFar-
lane failed to submit evidence that created a genuine
issue of material fact. We are not persuaded.
On April 14, 2014, the Luongo parties filed a motion
for summary judgment pursuant to Practice Book § 17-
44 et seq. They argued that no genuine issues of material
fact existed and that, on the basis of Judge Wilson’s
opinion in the New Haven action denying the motion
to cite in Luongo, MacFarlane’s counterclaim in the
Middletown action violated the prior pending action
doctrine. Finally, they also raised the defenses of waiver
and equitable estoppel.
On June 4, 2014, Judge Domnarski issued an order
denying the motion for summary judgment. The court
stated: ‘‘After careful consideration of the briefs and
arguments, the court concludes there are genuine issues
of material fact pertaining to both the plaintiff’s claims
against the defendant and the defendant’s claims
against the plaintiff. These issues revolve around the
actions and statements of both the plaintiff and the
defendant pertaining to this construction dispute.’’ On
June 24, 2014, Luongo LLC filed a motion to reargue
and reconsider, which the court denied on July 3, 2014.
‘‘The standard of review of motions for summary
judgment is well settled. Practice Book § 17-49 provides
that summary judgment shall be rendered forthwith if
the pleadings, affidavits and any other proof submitted
show that there is no genuine issue as to any material
fact and that the moving party is entitled to judgment
as a matter of law. In deciding a motion for summary
judgment, the trial court must view the evidence in the
light most favorable to the nonmoving party. . . . The
party moving for summary judgment has the burden of
showing the absence of any genuine issue of material
fact and that the party is, therefore, entitled to judgment
as a matter of law.’’ (Internal quotation marks omitted.)
Abendroth v. Moffo, 156 Conn. App. 727, 730–31, 114
A.3d 1224, cert. denied, 317 Conn. 911, 116 A.3d 309
(2015).
A
On appeal, the Luongo parties again assert that the
court failed to perform the proper analysis of the claim
regarding MacFarlane’s counterclaim and the prior
pending action doctrine. Judge Domnarski stated that
he had considered the arguments of the parties and
concluded that genuine issues of material fact existed,
precluding him from granting the motion for summary
judgment. We disagree, therefore, with the bald asser-
tion offered by the Luongo parties that the court did not
consider the claim regarding the prior pending action
doctrine. As we noted in part I A of this opinion, we
do not presume error on the part of the trial court. See,
e.g., Brett Stone Painting & Maintenance, LLC v. New
England Bank, 143 Conn. App. 671, 681, 72 A.3d 1121
(2013) (‘‘[i]n Connecticut, our appellate courts do not
presume error on the part of the trial court’’). Accord-
ingly, we are not persuaded that the court improperly
denied the motion for summary judgment filed by
Luongo LLC.
B
The Luongo parties also argue that the court improp-
erly denied their motion for summary judgment, which
raised the defenses of waiver9 and estoppel.10 Specifi-
cally, they contend that MacFarlane failed to submit
evidence demonstrating the existence of a genuine issue
of material fact, and therefore, the court should have
granted their motion for summary judgment. We are
not persuaded.
In the motion for summary judgment, Luongo LLC
argued that Coppola had sent a letter detailing a ‘‘punch
list’’ of items that needed to be completed, along with
a check for $20,000. This document also requested that
Luongo provide a final balance. Luongo LLC also sub-
mitted a letter dated August 1, 2011, that informed Mac-
Farlane and Coppola that the final balance owed was
$18,959. Luongo LLC also attached an affidavit from
Luongo in which he claimed that he had made the
repairs indicated on the ‘‘punch list,’’ and that MacFar-
lane had ‘‘sign[ed] off’’ on the repairs. Luongo further
indicated that upon completing the requests on the
‘‘punch list,’’ he had completed the contract and was
entitled to the balance of $18,959. As a result, Luongo
claimed that any claims not contained in the ‘‘punch
list’’ were waived and that MacFarlane was estopped
from pursuing an action.
The Luongo parties assume that the burden of estab-
lishing that there was no genuine issue of material fact
with respect to waiver and estoppel had been met. They
then contend that MacFarlane did not provide any evi-
dence that created a genuine issue of material fact;
thus, the Luongo parties were entitled to summary judg-
ment. We reject this argument for two reasons.
First, the court did not determine that the Luongo
parties had, in fact, met their burden of demonstrating
the absence of a genuine issue of material fact with
respect to waiver and estoppel. As stated in the order,
the court considered the briefs and arguments of the
parties and concluded that genuine issues of material
fact remained. Unless and until the Luongo parties, as
the parties moving for summary judgment, met their
burden of establishing that no genuine issue of material
fact existed, MacFarlane, the nonmoving party, had no
obligation to submit evidence establishing the existence
of such an issue. See, e.g., Capasso v. Christmann,
163 Conn. App. 248, 257, 135 A.3d 733 (2016); see also
Allstate Ins. Co. v. Barron, 269 Conn. 394, 405, 848 A.2d
1165 (2004) (when documents submitted in support of
motion for summary judgment fail to establish absence
of genuine issue of material fact, nonmoving party has
no obligation to submit documents establishing exis-
tence of such issue); Mott v. Wal-Mart Stores East, LP,
139 Conn. App. 618, 627, 57 A.3d 391 (2012) (same).
Second, we note that ‘‘[o]ur Supreme Court had held
that absent exceptional circumstances, a denial of a
motion for summary judgment is not appealable where
a full trial on the merits produces a verdict against the
moving party. . . . The rationale for this rule is that a
decision based on evidence presented at trial precludes
review of a decision made on less summary judgment
evidence.’’ (Citations omitted; internal quotation marks
omitted.) Brown v. State Farm Fire & Casualty Co.,
150 Conn. App. 405, 410, 90 A.3d 1054, cert. denied,
315 Conn. 901, 104 A.3d 106 (2014); see also Smith v.
Greenwich, 278 Conn. 428, 464–65, 899 A.2d 563 (2006);
Greengarden v. Kuhn, 13 Conn. App. 550, 552, 537 A.2d
1043 (1988).
In the memorandum of decision on the merits, after
hearing all of the evidence in this case, the court
rejected the claims of waiver and estoppel raised by
Luongo LLC.11 Under the circumstances of this case,
there is no reason to depart from the general rule that
a denial of a motion for summary judgment need not
be reviewed following a subsequent trial and decision
on the merits. Accordingly, we conclude that the court
properly denied the motion for summary judgment.
III
Finally, the Luongo parties claim that the court
improperly awarded punitive damages to MacFarlane.
Specifically, they challenge the court’s finding of reck-
lessness with respect to the construction of the house.
They further argue that absent this reckless conduct,
punitive damages were not warranted.12 We disagree
that the court’s finding of recklessness was improper,
and, therefore, conclude that the court did not abuse
its discretion by awarding punitive damages.
In count two of the counterclaim, MacFarlane alleged
that Luongo LLC had held itself out as a new home
contractor and that the house had not been completed
as represented in the plan and specifications. Further,
MacFarlane claimed that Luongo had represented that
‘‘he would personally supervise the contractors and
subcontractors in connection with the construction of
the house, yet the finished house contained numerous
defects in material and workmanship resulting in leaks,
heaving floors, and a [G]erry-rigged heating system, to
name a few, all to [MacFarlane’s] loss and damage.’’
MacFarlane also claimed that these actions, standing
alone and as result of violating §§ 20-417d through 20-
417g, constituted a violation of CUTPA.
The court found that the Luongo parties had violated
§ 20-417d and thus violated CUTPA. It then turned to
the issue of punitive damages under CUTPA.13 ‘‘Mere
negligent workmanship might not justify an award of
punitive damages. However, in this case [the Luongo
parties] disregarded the modular home manufacturer’s
instructions and recommended installation methods.
According to . . . Rocco, those instructions were not
complex, but, rather, were consistent with good con-
struction practice. A contractor with the experience
and integrity that Luongo, LLC held itself out to be
would surely have insured that the beams running
through the first floor of the house were straight and
would have bolted roof beams so that the walls in the
house were not under constant torque, which made the
drywall crack. The construction of the house described
by . . . Rocco as ‘shocking’ combined with the failure
to comply with . . . § 20-417d justify the conclusion
that the conduct . . . was reckless within the meaning
of CUTPA, and that punitive damages should be
awarded by the court.’’
Our Supreme Court has stated that ‘‘[a]warding puni-
tive damages and attorney’s fees under CUTPA is discre-
tionary . . . and the exercise of such discretion will
not ordinarily be interfered with on appeal unless the
abuse is manifest or injustice appears to have been
done. . . . In order to award punitive or exemplary
damages, evidence must reveal a reckless indifference
to the rights of others or an intentional and wanton
violation of those rights. . . . In fact, the flavor of the
basic requirement to justify an award of punitive dam-
ages is described in terms of wanton and malicious
injury, evil motive and violence.’’ (Citation omitted;
internal quotation marks omitted.) Ulbrich v. Groth,
supra, 310 Conn. 446; see also Votto v. American Car
Rental, Inc., 273 Conn. 478, 486, 871 A.2d 981 (2005)
(trial court exercises discretion to award punitive dam-
ages under CUTPA after finding party acted recklessly);
Bridgeport Harbour Place I, LLC v. Ganim, 131 Conn.
App. 99, 139–40, 30 A.3d 703 (under CUTPA, punitive
damages awarded in amounts equal to or multiples of
actual damages and are focused on deterrence rather
than compensation), cert. granted, 303 Conn. 904, 905,
31 A.3d 1179, 1180 (2011) (appeals withdrawn January
26 and 27, 2012).
Rocco, MacFarlane’s expert, noted in his report that
the steel beams and lolly columns that supported the
home were not installed properly. It would have been
‘‘very easy’’ to check the elevation and the beam’s level
with a laser transit, and it was ‘‘enormously important’’
to do so; nevertheless, the Luongo parties failed to do
so. (Emphasis omitted.) Compounding these errors was
the failure to secure the beams and columns to prevent
the beams from shifting. Rocco described the construc-
tion as ‘‘haphazard’’ and stated that it led to a ‘‘domino
effect’’ of problems in the house. Rocco further noted
the errors of Luongo LLC to follow the plans leading
to the issues with the placement of the cellar stairs,
resulting in a smaller usable space in the garage than
MacFarlane had bargained for.
These facts support the court’s determination that the
Luongo parties had failed to follow the specifications
of the home manufacturer and performed the ‘‘crucial’’
work of setting the foundation and beams in a ‘‘shock-
ingly’’ poor manner. The attempts to place blame on
third parties for the substandard construction work
ignores the contractual responsibility of Luongo LLC
to provide MacFarlane with a completed modular home
with a three car garage. The contract further required
that all work was ‘‘guaranteed to be as specified and
. . . performed in accordance with the drawing and
specifications provided . . . [and] completed in a sub-
stantial workman-like manner . . . .’’ (Emphasis
omitted.)
On the basis of the record before us, we cannot con-
clude that the court abused its discretion in awarding
punitive damages. A flood of defects cascaded as a
result of the ‘‘shockingly’’ poor installation of the beams
and columns and failure to follow the specifications
and recommended installation methods14 of the home
manufacturer. This conduct, coupled with the failure
to comply with the requirements of § 20-417d, led the
court to conclude that there had been recklessness
within the meaning of CUTPA and thus punitive dam-
ages were appropriate. ‘‘Punitive damages are awarded
when the evidence shows a reckless indifference to the
rights of others or an intentional and wanton violation
of those rights.’’ (Internal quotation marks omitted.)
Tessmann v. Tiger Lee Construction Co., 228 Conn. 42,
54–55, 634 A.2d 870 (1993) (no abuse of discretion to
award punitive damages under CUTPA where contrac-
tors’ numerous derelictions included representation
that it would do work using its own employees but in
fact relied on subcontractors, driveway not constructed
to afford easy access to kitchen to accommodate plain-
tiff’s medical condition, driveway leaked water into
basement, skylight leaked and contractor refused to
correct it, claiming it was merely condensation and
poor grading caused water to leak into basement near
electrical panel); see also Ulbrich v. Groth, supra, 310
Conn. 446–47. Accordingly, we disagree that the court
abused its discretion in awarding punitive damages
under CUTPA.
The judgment is affirmed.
In this opinion LAVINE, J., concurred.
1
‘‘The New Home Construction Contractors Act, which took effect on
October 1, 1999, regulates the activities of new home construction contrac-
tors. The act requires a contractor to obtain a certificate of registration
from the commissioner of consumer protection (commissioner) before he
or she may engage in the business of new home construction or hold himself
or herself out as a new home construction contractor . . . . The act also
specifies the circumstances under which the commissioner may revoke,
suspend or refuse to issue or renew a certificate of registration. . . . Other
provisions of the act affirmatively regulate the conduct of new home con-
struction contractors, prohibit new home construction contractors from
engaging in certain activities and set forth various requirements as to the
format and content of new home construction contracts.
‘‘The act further provides three distinct penalties for a violation of its
provisions. First, the act empowers the commissioner to impose a civil
penalty on, among others, any person who engages in or practices the work
for which a certificate of registration is required by [the act] . . . without
having first obtained such a certificate of registration or any person who
violates any of the provisions of [the act] . . . . Second, the act provides
that any person who violates any provision of subsection (d) of section 20-
417d shall be guilty of a class A misdemeanor. . . . Finally, the act provides
that a violation of any of its provisions shall be deemed an unfair or
deceptive trade practice under subsection (a) of section 42-110b . . . .’’
(Citations omitted; emphasis added; footnotes omitted; internal quotation
marks omitted.) D’Angelo Development & Construction Co. v. Cordovano,
278 Conn. 237, 243–45, 897 A.2d 81 (2006).
2
General Statutes § 21-86 provides: ‘‘No person shall sell at retail a new
mobile manufactured home or a new modular or prefabricated home in this
state without a written manufacturer’s warranty to the buyer containing the
following terms:
‘‘(1) That such home is free from any substantial defects in materials or
workmanship in the structure, plumbing, heating and electrical systems and
all appliances and other equipment installed or included therein or thereon
by the manufacturer.
‘‘(2) That the seller or manufacturer shall take appropriate corrective
action at the site of such home in instances of substantial defects in materials
or workmanship which become evident within one year from the date of
delivery of such home to the buyer, provided the buyer gives written notice
of such defects to the seller, manufacturer or dealer at his business address
as soon as such defects become evident. The warranty provided herein shall
be in addition to and not in derogation of any other right or privilege which
the buyer may have as otherwise provided by law or instrument. The seller
or manufacturer shall not require the buyer to waive his rights under this
chapter and any waiver shall be deemed contrary to public policy and shall
be void and unenforceable. Any action instituted by a buyer for failure of
the manufacturer to comply with the provisions of this chapter shall allow
the recovery of court costs and reasonable attorney’s fees.’’
3
Punitive damages awarded as a result of a violation of CUTPA focus on
deterrence, rather than compensation and often are awarded as a multiple
of actual damages. See, e.g., Bridgeport Harbour Place I, LLC v. Ganim,
131 Conn. App. 99, 144–45, 30 A.3d 703, cert. granted, 303 Conn. 904, 905,
31 A.3d 1178, 1180 (2011) (appeals withdrawn January 26 and 27, 2012).
4
On July 27, 2015, the court awarded MacFarlane $47,359 in attorney’s
fees. The Luongo parties have not challenged the awarding of attorney’s
fees in the case.
5
We note that as a result of Judge Wilson’s subsequent order denying the
motion to cite in, Luongo was not added as a party in the New Haven action.
6
‘‘The law of the case doctrine expresses the practice of judges generally
to refuse to reopen what [already] has been decided . . . . New pleadings
intended to raise again a question of law which has been already presented
on the record and determined adversely to the pleader are not to be favored.
. . . [When] a matter has previously been ruled [on] interlocutorily, the
court . . . may treat that [prior] decision as the law of the case, if it is of
the opinion that the issue was correctly decided, in the absence of some
new or overriding circumstance. . . . A judge should hesitate to change
his own rulings in a case and should be even more reluctant to overrule
those of another judge. . . . Nevertheless, if . . . [a judge] becomes con-
vinced that the view of the law previously applied by his coordinate predeces-
sor was clearly erroneous and would work a manifest injustice if followed,
he may apply his own judgment.’’ (Internal quotation marks omitted.) Brown
v. Otake, 164 Conn. App. 686, 702–703, 138 A.3d 951 (2016).
7
The Luongo parties also suggested that MacFarlane had a fair opportunity
to litigate the claims set forth in the counterclaim in the Middletown case
in his action filed in New Haven. In other words, they insinuate that the
doctrine of collateral estoppel was intertwined with the claim of the prior
pending actions doctrine.
‘‘Under Connecticut law, [c]ollateral estoppel, or issue preclusion, prohib-
its the relitigation of an issue when that issue was actually litigated and
necessarily determined in a prior action. . . . For an issue to be subject to
collateral estoppel, it must have been fully and fairly litigated in the first
action. It also must have been actually decided and the decision must have
been necessary to the judgment. . . . The doctrine of collateral estoppel
is based on the public policy that a party should not be able to relitigate a
matter which it already has had an opportunity to litigate.’’ (Internal quota-
tion marks omitted.) Gateway, Kelso & Co. v. West Hartford No. 1, LLC,
126 Conn. App. 578, 583–84, 15 A.3d 635, cert. denied, 300 Conn. 929, 16
A.3d 703 (2011). To the extent that they have advanced a claim of collateral
estoppel, we decline to consider it because it was not raised in the trial
court, addressed by the trial court, or briefed adequately.
8
We may affirm a proper result of the trial court for a different reason.
Rafalko v. University of New Haven, 129 Conn. App. 44, 51 n.3, 19 A.3d
215 (2011).
9
‘‘[A] waiver is ordinarily an intentional relinquishment or abandonment
of a known right or privilege. An effective waiver presupposes full knowledge
of the right or privilege allegedly [being] waived and some act done design-
edly or knowingly to relinquish it. . . . Moreover, the waiver must be accom-
plished with sufficient awareness of the relevant circumstances and likely
consequences.’’ (Internal quotation marks omitted.) Chang v. Chang, 170
Conn. App. 822, 830, 155 A.3d 1272, cert. denied, 325 Conn. 910, 158 A.3d
321 (2017).
10
‘‘Equitable estoppel is a doctrine that operates in many contexts to bar
a party from asserting a right that it otherwise would have but for its own
conduct. . . . In its general application, we have recognized that [t]here
are two essential elements to an estoppel—the party must do or say some-
thing that is intended or calculated to induce another to believe in the
existence of certain facts and to act upon that belief, and the other party,
influenced thereby, must actually change his position or do some act to his
injury which he otherwise would not have done.’’ (Internal quotation marks
omitted.) St. Germain v. St. Germain, 135 Conn. App. 329, 334–35, 41 A.3d
1126 (2012).
11
Specifically, the court stated: ‘‘[Luongo LLC] has argued that this pay-
ment and letter from . . . Coppola evidenced MacFarlane’s satisfaction
with the house. The court does not agree with this characterization. In July,
2011, [MacFarlane] had not yet retained any experts to assess [Luongo LLC’s]
work and had no idea about the major errors in workmanship which had
occurred. He knew the house had cracks, but did not know that due to
improper bolting of the ceiling beams, the drywall in the house would
continue to crack for years. He knew that there was a huge ridge running
through the first floor of his house, but did not know that this was due to
the failure to use any effort to make sure that the beams were set level.’’
12
The Luongo parties do not challenge the amount of punitive damages
awarded in the present case.
13
We note that our Supreme Court has instructed that ‘‘CUTPA is, on its
face, a remedial statute that broadly prohibits unfair methods of competition
and unfair or deceptive acts or practices in the conduct of any trade or
commerce. . . . [CUTPA] provides for more robust remedies than those
available under analogous common-law causes of action, including punitive
damages . . . and attorney’s fees and costs, and, in addition to damages
or in lieu of damages, injunctive or other equitable relief.’’ (Internal quotation
marks omitted.) Artie’s Auto Body, Inc. v. Hartford Fire Ins. Co., 317 Conn.
602, 623, 119 A.3d 1139 (2015).
14
Rocco described the home manufacturer’s instructions and recom-
mended installation methods as ‘‘not complex’’ and ‘‘consistent with good
construction practice.’’