Barnicoat v. Edwards , 1 Conn. App. 652 ( 1984 )

The defendant appeals¹ from a judgment by the trial court for the plaintiffs in a suit for breach of a contract for the construction of a new house. The plaintiffs alleged that they had a written contract² for construction of a house to be built for them according to certain specifications on land owned by the defendant. They claim numerous construction defects and seek damages for the cost of repair of these defects.

The closing took place on July 29, 1975. The plaintiffs brought suit on July 4, 1976, claiming eleven defects in the house. The trial began on May 16, 1979, and on May 17, 1979, the court allowed the plaintiffs to file an amended complaint claiming a very different set of defects based upon a pretrial memorandum filed by the plaintiffs on March 29, 1979.

The trial court concluded that the plaintiffs' suit was for a breach of contract and that the six-year statute of limitations contained in General Statutes 52-576 applied. The court found sixteen defects proven and after itemizing the costs to correct or repair each item, awarded the plaintiffs $6470.86 in damages.

The defendant raises two principal issues on appeal: (1) that the amended complaint was barred either by the three-year statute of limitations for torts; General Statutes 52-577; by the two-year statute of limitations for negligent damage to real property; General Statutes52-584; or by the three-year statute of limitations for failure to comply with the building code in the construction of a new single-family house; General Statutes52-563a; and (2) that the court erred in basing damages on the cost to repair the defects rather than on the diminution in value of the plaintiffs' property.³

The plaintiffs' amended list of defects contained in the amended complaint of May 17, 1979, did not constitute a new cause of action. Both the original list of defects and the amended list grew out of claimed defects in the construction of a new house. "`A cause of action is that single group of facts which is claimed to have brought about an unlawful injury to the plaintiff and which entitles the plaintiff to relief.' Bridgeport Hydraulic Co. v. Pearson, 139 Conn. 186, 197,91 A.2d 778 (1952)." Burgess v. Vanguard, Ins. Co.,192 Conn. 124, 125, 470 A.2d 244 (1984). "`It is proper to amplify or expand what has already been alleged in support of a cause of action, provided the identity of the cause of action remains substantially the same, but where an entirely new and different factual situation is presented, a new and different cause of action is stated.' Gallo v. G. Fox Co., 148 Conn. 327, 330,170 A.2d 724 (1961)." Burgess v. Vanguard, Ins. Co., supra, 126. The identity of the cause of action remained the same in this case so that the six-year contract statute of limitations applied and the court properly allowed the amendment in its discretion. See Jonap v. Silver,1 Conn. App. 550, 554-55, 474 A.2d 800 (1984).

"As 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. Bertozzi v. McCarthy, 164 Conn. 463,468, 323 A.2d 553 [1973]; Sabo v. Strolis, 148 Conn. 504,506, 172 A.2d 609 [1961]. Such damages are measured as of the date of the breach. Bachman v. Fortuna,145 Conn. 191, 194, 141 A.2d 477 [1958]; Lee v. Harris,85 Conn. 212, 214, 82 A. 186 [1912]; 22 Am.Jur.2d, Damages 52. For a breach of a construction contract involving defective or unfinished construction, damages are measured by computing either `(i) the reasonable cost of construction and completion in accordance with the contract, if this is possible and does not involve unreasonable economic waste; or (ii) the difference between the value that the product contracted for would have had and the value of the performance that has been received by the plaintiff, if construction and completion in accordance with the contract would involve unreasonable economic waste.' Restatement, 1 Contracts 346(1)(a), p. 573; see annot., 76 A.L.R. 2d 805, 812 4." Levesque v. D M Builders, Inc., 170 Conn. 177, 180-81, 365 A.2d 1216 (1976). "Levesque involved a buyer who wanted to relocate a house misplaced on a building lot. This court refused to permit relocation costs of $10,800 to be awarded for breach of contract and warranty, when the original contract price had been $22,600. Id., 182. Levesque adopts a rule that limits damages to the diminished value of the building whenever the cost of repairs is dramatically larger than is the difference in value. Id., 180-82. Although the costs of repair may more precisely place the injured party in the same physical position as full performance, policy dictates limitation to diminution of value to avoid unreasonable economic waste." Johnson v. Healy, 176 Conn. 97, 105,405 A.2d 54 (1978). In Johnson, the plaintiff had sought $27,150 as costs in constructing a new foundation for a house originally purchased for $17,000. In concluding that the proper test for damages was the difference in value between the property had it been as represented and the property as it actually was, the Johnson court noted that the price discrepancy between reconstruction cost and contract price was even larger than it was in Levesque, supra.

In this case, the $6470.86 cost of repair was a reasonably small amount compared to the purchase price of the house and lot in the amount of $52,260. The award of such damages does not involve an unreasonable economic waste.

The judgment of the court was not clearly erroneous. Practice Book 3060D; Pandolphe's Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).

There is no error.