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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 diminution 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 defendant agreed to repair and repave the driveway at the

plaintiff’s residential property at 8 Cooke Road in Wallingford 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 condition 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 condition 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 defendantresponded 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 resurfacing 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 reappeared and ‘‘[t]ar was coming through the stone’’ in the

chip sealed surface.

In October, 2011, the plaintiff filed an amended complaint. 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 defendant filed an answer and special defense to the plaintiff’s amended complaint, alleging that the damage to

the plaintiff’s driveway had been caused by the plaintiff’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 plaintiff’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 original 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, afterthe second set ofrepairs pursuant 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 standards. 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-examination, 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 application and chip sealing. Tucker testified that the defendant 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 occasion. 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 ofthe 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 defendant had failed to prove its special defense concerning

the Belgian blocks by a fair preponderance of the evidence. The court awarded the plaintiff $36,550 in damages 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 workmanship 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 performing 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 provider 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 Contracts, (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 suffered 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 conditions.’’(Citation omitted; internal quotation marks omitted.) 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 contract that the service will be performed in a workmanlike manner. . . . A breach of this implied condition

would be a breach of contract.’’[Internal quotation

marks omitted.]). We therefore conclude that the defendant was required to complete the repairs to the plaintiff’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 properly 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 mistake 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 presumption . . . 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 defendant did not complete the second set of repairs to the

plaintiff’s driveway in accordance with industry standards. In other words, the court found that the defendant 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 presumption 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 properly 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 misapplied 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 Monetary 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 mistake 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 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 presumption . . . in favor of the trial court’s ruling.’’ (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 supported 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 complaint, 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 plaintiff on all four counts of the amended complaint violated

our Supreme Court’s holding in Audubon Parking Associates 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 complaint 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 Associates 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 ofthe 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 enforcement 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 settlement agreement. We are not persuaded.

‘‘The interpretation of a trial court’s judgment presents a question of law over which ourreview 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 circumstances 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 judgment 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 plaintiff’s driveway in 2009. The court further finds that the

defendant’s initial repair and replacement of the plaintiff’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 preponderance 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 enforcement of both the original contract and the settlement

agreement. Although the plaintiff made no formal election, it is evident from the judgment and the circumstances 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 satisfaction.’’(Citations omitted; internal quotation marks omitted.) 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 plaintiff 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 amountreflected

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 precluded 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 defendant. 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 enforcement of any obligation under the accord.’’ Audubon

Parking Associates Ltd. Partnership v. Barclay &

Stubbs, Inc., supra, 225 Conn. 809. Because the defendant breached the settlement agreement, the plaintiff

was permitted to seek enforcement of the original contract. 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 improperly 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 damages 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 ofthe 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 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.’’ (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 defendant 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 present 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 persuaded. ‘‘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 determined 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 language 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 impossible to prove damages with mathematical exactitude,

the plaintiff must nevertheless provide sufficient evidence for the trier to make a fair and reasonable estimate. . . . 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 economic 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 evidence 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 ofrepairing the driveway would result in economic waste, it was within the

court’s discretion to award damages based on the cost

ofrepairratherthan 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 underthe 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.