Opinion
No. CV08 501 53 09 S
November 19, 2010
MEMORANDUM OF DECISION
This litigation was initiated when the plaintiff, Bryan Calandro, filed a mechanics lien for $23,000 against the defendants, Michael and Linda Menillo, for monies due under a contract for construction performed on their rental beach house in Fairfield.
The defendants filed a motion to discharge the mechanics lien, as the contract between the plaintiff and the defendants did not fully comply with the contract requirements of the Home Improvement Act and the Home Solicitation as it omitted the cancellation notice. Judge Arnold denied the motion to discharge the lien on the basis that the defendants acted in bad faith and precluded the defendant from using noncompliance with the act as a defense.
The plaintiff then filed a writ of summons and complaint against the defendants seeking a foreclosure on the mechanics lien and a second count claiming quantum merit and unjust enrichment.
The defendants filed an answer and special defenses. The first special defense claimed breach of contract. The second special defense claimed unclean hands and bad faith. The third special defense reiterated the claim that the contract was enforceable as it violated the requirements of the Home Improvement Act and Home Solicitation Act.
The defendants also filed four counterclaims.
The first counterclaim alleged that as a result of plaintiff's breach of contract the defendants incurred $14,000 in damages to complete the project.
The second counterclaim alleged that the plaintiff violated C.G.S Sec. 52-564, by stealing goods and materials paid for by the defendants entitling them to an award for triple damages.
The third counterclaim alleged that the contract between the plaintiff and the defendant was unenforceable and sought return of the $41,000 paid to the plaintiff pursuant to the contract.
The fourth counterclaim alleged that the plaintiff committed unfair and deceptive acts and practices including a violation of the Home Improvement Act and Home Solicitation Act and sought compensatory and punitive damages.
Based on all the testimony and exhibits introduced at trial, together with the drawing of reasonable inferences, and taking into account the credibility of witnesses, the court finds that the following facts have been established.
The defendants, Michael and Linda Menillo, are a brother and sister who own five beach houses on Fairfield Beach Road in Fairfield. They reside in one and rent the other four to students at Fairfield University. Michael Menillo is also an attorney.
In August of 2007, the defendants discovered that the house located at 2142-2144 Fairfield Beach Road was sinking. At that time, the defendants hired a consulting engineer, John Hilts, to advise them as to the process of repairing the problem. He recommended two engineers. After the first engineer declined to work for the defendants, they then contacted the second engineer, Scott Davies, owner of Champion Engineering.
After a meeting with John Hilts, Mr. Davies submitted a proposal to the defendants on September 20, 2007 offering to prepare the structural design and stamped plans for the project for which you included me cost $4,785. He also proposed to perform additional structural engineering services for specific hourly rates. Davies asked for a deposit of $3,000 but the defendant, Mr. Menillo, testified he only paid Mr. Hilts $2,000.
Davies paid the plaintiff, Brian Calandro of Calandro Associates LLC, $2,000 to draw the plans for the project. Calandro is a licensed home improvement contractor as well as a design consultant and has been so for 20 years. Davies submitted Calandro's plans to the defendants which provided for raising the house, replacing the two lateral girders under the back of the house and installing four 12-inch for four 18-inch diameter concrete piers, or columns, with proper concrete footings to support the girders.
At the request of the defendants, Davies requested that Calandro submit a proposal for performing the construction. Initially, Calandro requested $54,000. He subsequently agreed with Davies to reduce it to $51,860. The plaintiff met with the defendants for the first time on October 11 to agree on a contract.
The contract initially provided for a schedule of five progress payments totaling $51,860. At the meeting it was agreed that the contract could be reduced 15% in exchange for receiving $25,000 of the contract price in cash. The new total price was $47,000. The first payment was to be $17,500 upon signing the agreement. A second progress payment was to be made in the amount of $9,500. A third progress payment was to be made in the amount of $8,000. A fourth progress payment was to be made in the amount of $8,860 which actually represented substantial completion of the construction. The final fifth payment was to be made 10 days after the issuance of a Certificate of Occupancy in the amount of $4,000.
The contracted several salient points, including:
d) Any change orders or costs supplements to this agreement shall be paid by the homeowner within 24 hours of the agreed change order or supplement.
f) This agreement does not provide for work which is hidden of which reasonably could not be foreseen by the project engineer or general contractor. Any additional work required that is hidden or could not be reasonably foreseen, will be treated as a change order and supplement following the protocol of C and D above.
l) The lifting of this house may cause plaster/sheet rock to crack or split, floor tile to crack . . . and molding to separate at the joints. Brian Calandro Associates LLC and Champion Engineering will monitor the effects on the interior and exterior of the home during the lifting process, but this agreement does not cover the repair of any damage to the home related to the shoring or lifting of this residence.
4) The start date for the project would be approximately the 21st of October or within seven days after the deposit check clears the issuing bank. This work will not begin until the deposit check has cleared the issuing bank.
5) The finish date of this project will be approximately 15 working days from the start of the project, this is an exterior project and depend upon whether conditions.
7) Any delay in the payment schedule listed below may result in a delay of the completion of the project.
Mr. Calandro testified that when the contract was signed on October 11, rather than paying the plaintiff $17,500 as required, Mr. Menillo gave him a check he had already filled out for $5,000 claiming he had no additional checks.
On November 10, 2007 the plaintiff advised the defendants that they had installed the silt fences and were beginning to remove the sand underneath the house. He reminded them that he had not been paid the $12,500 balance of the deposit money as due under the contract. He further advised the defendants that his initial inspection of the residence found it to be to be "borderline unsafe to be in."
On November 18, the plaintiff advised the defendant that they were the process of completing the installation of the footing pads. He again complained to the defendants that while he had been proceeding in good faith he had yet to receive the initial down payment. He requested it be made by a cash payment of $5,000 and a check in the amount of $7,500 pursuant to their agreement of cash payments. He further told the defendants that he would be eligible for the second payment in two weeks when all seven footing pads would be poured.
On November 25, 2007 the plaintiff advised the defendants that he had finally received the building permit but he had still not been paid the initial down payment. He again requested $5,000 in cash and $7,500 by check.
On November 26 Mr. Calandro reminded the defendants by e-mail that there was an agreement for part payment in cash and part payment by check which resulted in a 15% discount on the charges for each schedule of payments. As the individual schedule of payments was discounted in the contract the actual payments should be divided accordingly with respect to cash and checks. He reminded them that he is still waiting for the deposit money which was due upon signing the contract and again requested that he be paid by $5,000 in cash and $7,500 by check. He told them that if they did not intend to comply with the agreement with respect to cash, he would revert to the original contract payments with payments in cash and no discounts.
On November 27 plaintiff received a check for $12,500 representing deposit money which had been due upon signing the contract.
On December 12, 2007 Mr. Calandro advised defendants that he had completed the work for the second payment $9,500 and requested payment in cash.
On December 17 plaintiff again reminded defendants by e-mail that he had not been paid the second payment of $9,500 and was currently owed $8,000 for the third payment.
When the sand had been removed from underneath the house and the lifting had begun, it was discovered that a supporting timber had become rotted. As a result when the rear of the house was lifted the rotted timber not support the lifting of the entire house which resulted in the floor of a laundry room not rising 6 inches and an adjacent sliding door area buckling.
The plaintiff and defendant began discussing the potential change orders to repair the rotting beams which were being discovered underneath the house. In anticipation, the plaintiff paid $3,000 to purchase girders and brackets for the prospective change orders.
On December 28, 2007 the plaintiff had complained by e-mail to the defendants that although he had finished phase two and three of the initial contract he had yet to be paid the $17,500 due and owing. With them refusing to be current with respect to the initial contract and having expended an additional $3,000 to purchase a girders for the change order indicated he was becoming uncomfortable doing more work and ordering more material.
The plaintiff and the defendant entered into a formal change order agreement. Not surprisingly, the plaintiff required a $6,337 payment for the first change order in advance. It consisted of installing a massive girder 12" x 11" running 20 feet with bolts and straps running perpendicular from the front of the house, which he installed.
The change order agreement also referenced the fact that there was an existing wood girder resting on top of the existing wood piles which was rotted and would have to be replaced as well as an additional supporting timber running the entire length of the house was rotted and would also have to be replaced. He advised them he would submit an estimate of the costs to replace that girders.
The plaintiff and the defendants never reached a change order agreement for the repair of any additional rotted girders discovered with the exception of the one which was installed. There was never an agreement as to price or payment within two days as required under the contract.
On February 19 the plaintiff advised the defendants that the only thing left to do with respect to the original October agreement and change order agreement was to put the filter fabric under the deck and fill the sand. With respect to the two beams mentioned in the change orders he indicated that they should be in agreement as to what they are doing and what it would cost before he does any work. He indicated that he purchased and installed two piers to support the future girder at his own expense.
In February the plaintiff had notified the defendants that he had completed stage four of the initial contract but the defendants refused payment. They began demanding that the plaintiff complete the installation of the two new rotted girders mentioned in the change order without any agreement or payment.
In February 26, 2008 the defendant Linda Menillo attempted to coerce the plaintiff to complete the installation of the additional girders by sending an e-mail claiming that the job was taking too long and that they had lost an entire summer season of rental income in 2007 and will lose future rental income. A somewhat ludicrous claim as the plaintiff and the defendants had not met until October 11, 2007, long after the summer season ended. With respect to rental income during the project, the defendants in fact did rent the entire house from the date the plaintiff and the defendant met until the project was completed. The next rental season was not until May of 2008.
The plaintiff replied by e-mail that contrary to the claim of the defendants the delays were primarily caused by the defendants' delay comply with their obligations under the contract, including the deposit check and building permit as well as further ongoing delays caused by their refusing to comply with their contractual obligations with respect to payments. He reminded them that he was still presently due the fourth payment of the initial contract which represented substantial completion of the entire contract.
On February 19 Linda Menillo e-mailed the plaintiff and declared that the house is not finished until the two change order girders were installed and a rotting deck replaced. She indicated that there would be no further payments, including the fourth stage of the initial contract, until of all of the work is completed and they have a Certificate of Occupancy from the town of Fairfield.
In reply, the plaintiff reminded the defendants that they are violation of a signed and initial contract. That he done everything that was agreed upon and more. He had now spent $5,000 buying girders and brackets in anticipation of an agreement with respect to the rotted girders being discovered and that demanding he complete the work without an agreement was absurd. "What you're asking me to do is not just bad business it would be stupid." He advised her that he has no further interest in installing additional girders or replace the rotted deck.
On February 20, 2008 the plaintiff e-mailed the defendants that he had been informed they were hiring another contractor. He indicated that he would be willing to meet with new contractor to explain what had been done and the current issues along the garage and under the deck; that he had installed two piers at his own expense in anticipation that he would be repairing that section of the new contractor could take it from there. He indicated that he has no intention of not completing the initial agreement but did expect to be paid according to their agreement.
On February 23rd 2008 the plaintiff again reminded the defendants that they had a contract in place with agreed-upon payments but then now he was operating in an environment of distrust. He attempted to resolve the matter by presenting three alternatives: One was to finish the entire job quickly and be paid according to the terms of the agreement. The second was to finish the brackets and girders and take it through inspection and then give him credit for the filter fabric, removal of the leftover debris and moving the sand. The third was to conclude their realm at that time and take credit for finishing of the blocking in addition to the credit for the filter fabric and removing the debris. He concluded that he had no longer believe that they intended to pay him.
Not having received a response, plaintiff again contacted the defendants on February 25, 2008 reminding them of his suggestions, emphasizing that he would be happy to finish and work out of an arrangement that's agreeable with them. The plaintiff had substantially completed the contract and the only work remaining was the installation of a fabric filter for which the plaintiff offered to give the defendants credit.
Although the defendants agreed to meet with the plaintiff later on in the week, they had already arranged to meet and hire another contractor immediately after the plaintiff left the meeting.
The new contractor hired to finish the initial contract and repair the rotted girders being discovered under the house was Paul Mignone of Sound Shore Construction LLC. He was also disclosed by the defendants as an expert in the construction of residential property near water.
Mr. Mignone testified that he did not have to replace anything done by the plaintiff and there was nothing to be repaired. In effect the defense expert testified that the plaintiff had substantially completed his obligations with respect to the terms and conditions of the October contract.
Mr. Mignone testified that the only additional work he did was to repair the lower floor in the laundry room and adjacent sliding glass doors which had bowed out. When the rear of the house was lifted a secondary timber located above a support timber which was later discovered to be rotted. With the house being lifted the wall system slid on the rotted timber causing the damage. The October contract specifically provided "this agreement does not cover the repair of any damage to the home related to the shoring or lifting of the residence." It also provided any hidden damage would be repaired as an agreed-upon change order.
Mr. Menillo's testimony consisted of a series of implausible claims combined with a selective memory loss when confronted by the contrary evidence.
For example, in her e-mail of February 26 2008, Linda Menillo accused the plaintiff of causing them the loss of the 2007 summer rental income by delaying the contract. At the hearing to discharge the mechanics lien Mr. Menillo testified before Judge Arnold that the house being repaired generated $85,000 in income. He testified that because of the plaintiff's delay in completing the contract house was vacant during the summer of 2007 and they lost $21,000 in rental income. The claim was obviously ludicrous as the plaintiff and defendants did not even meet and sign a contract until October 11, 2007, some several weeks after the summer season ended. In fact, the house was fully rented from the day the contract was signed until the day the project was completed and the claim that the delay affected future tenants was also ludicrous. When the defendant discharged the plaintiff there were five days left for completion. The next student season was May of 2008 some several months later.
During the present hearing Mr. Menillo actually denied making that claim which resulted in an excruciating cross-examination where Mr. Menillo kept claiming the transcript verifying his testimony was confusing. Eventually, after a line by line reading, Mr. Menillo did admit that he had made the claim.
He then proceeded to attempt to reassert the claim that he lost $21,000 in the summer of 2007. Although, as was stated, this was several months before he even met the plaintiff but for some unexplained reason the defendant claimed the plaintiff should reimburse them for the loss. At one point, his attorney announced for the record that the defendants were withdrawing their claim for the lost income during the summer of 2007 as damages.
There were two contracts between the plaintiff and the defendants with respect to installing girders. The October contract provided for the installation of two horizontal girders when the house was lifted. There was an additional change order agreement in which the plaintiff agreed to replace a rotted girder which ran the entire length of the house and measured 11" x 12." There was no agreement as to the installation of any additional girders.
Contrary to the evidence, Mr. Menillo claimed that he had confirmed that the plaintiff had not installed all the girders which were required under the contracts. He testified that he and a friend took the plans and a tape measure under the house to locate the girders and discovered they could not find "at least several." When the court asked the defendant to point out the missing girders on the plans he testified he could not, that it was two years ago and he didn't remember. There were numerous photographs introduced into evidence including pictures of the three girders installed. The court asked Mr. Menillo where in the pictures were the missing girders located? The defendant replied that he could not tell. He testified that it was two years ago and could not tell from the pictures as he was crawling underneath the house with a tape measure.
Although he admitted there was no agreement as to payment for any additional change order and no payment within two days, as required by the contract, Mr. Menillo claimed the plaintiff should have performed the additional work, apparently without pay. He further claimed that after they hired the new contractor, the plaintiff should have returned the $5,000 worth of girders and brackets which the plaintiff paid for out of his pocket.
Mr. Menillo testified that he was not obligated to pay the full deposit at the time of signing the contract; that he did not cause a delay by failing to pay the deposit money or providing any building permit; that there was no agreement for discount with respect to payment by cash; that he did not fail to make payments when due; that the plaintiff did not tell them when payments were due; that the plaintiff never told them he would delay work unless they complied with payment schedule; that the plaintiff never completed stage four of the contract; that they never asked the plaintiff to perform work which exceeded what was agreed to do with respect to the contract and the change orders and finally, in contradiction of his sister's e-mail, they never tried to get Mr. Calandro do extra work by refusing to pay him anything until he did.
"(T)he trier of fact's assessment of the credibility of witnesses . . . is made on the basis of first-hand observation of their conduct, demeanor and attitude. The weight given to the evidence and to the credibility of the witnesses is solely within the determination of the trier of fact." Machado v. Statewide Grievance Committee, 93 Conn.App. 832, 839 (2006). "It is well-established that the trier fact may accept or reject the testimony of any witness . . . the trier can, as well, decide what — all, none, or some of the witness credibility to except or reject." (Citations omitted internal quotation marks omitted.) Wilson v. Hiryniewicz, 51 Conn.App. 627, 633 (1999).
It is the opinion of this court that the testimony of Mr. Menillo was not credible and further finds that the defendants did indeed commit all of the claims of conduct which he denied.
The plaintiff claimed damages in the amount of $20,860 plus interest and attorneys fees. $10,430 of the claimed amount the $12,000 due and owing on the contract of October and $1,010 for the balance unpaid on January 3 change order. There were credits of $2,000 for work not completed and the October 10 agreement and $580 for not completed in the January change order. $5,575 represented the balance due and owing the plaintiff for noncompliance with the discount given for cash payments.
There were additional charges of $6,995 for various extra work performed by the plaintiff.
Following the trial, the defendants filed a motion to dismiss the request for the foreclosure of the mechanics lien. Although the mechanics lien had been filed properly and Judge Arnold had denied the motion to discharge the lien based on bad faith, the plaintiff did not file the writ, summons and complaint foreclosing the mechanics lien within the time required by statute. The court granted the motion to dismiss retained the plaintiff's cause of action for quantum meruit and unjust enrichment.
"Quantum meruit is a theory of contract recovery that does not depend upon the existence of a contract, either express or implied in fact. Fischer Co. v. Morrison, 137 Conn. 399, 403, 78 A.2d 242 (1951). Rather, quantum meruit arises out of the need to avoid unjust enrichment to a party, even in the absence of an actual agreement. Fischer v. Kennedy, 106 Conn. 484, 492, 138 A. 503 (1927); see also Sidney v. DeVries, 215 Conn. 350, 351-52 n. 1, 575 A.2d 228 (1990) (quantum meruit and unjust enrichment are common-law principles of restitution; both are noncontractual means of recovery without valid contract). Quantum meruit literally means " `as much as he has deserved' . . ." Black's Law Dictionary (7th Ed. 1999). Centered on the prevention of injustice, quantum meruit strikes the appropriate balance by evaluating the equities and guaranteeing that the party who has rendered services receives a reasonable sum for those services. Unjust enrichment applies whenever "justice requires compensation to be given for property or services rendered under a contract, and no remedy is available by an action on the contract . . ." 12 S. Williston, Contracts (3d Ed. 1979) 1479, p. 272. Indeed, lack of a remedy under the contract is a precondition for recovery based upon unjust enrichment. Not unlike quantum meruit, it is a doctrine based on the postulate that it is contrary to equity and fairness for a defendant to retain a benefit at the expense of the plaintiff. See National CSS, Inc. v. Stamford, 195 Conn. 587, 597,489 A.2d 1034 (1985).
"[A] right of recovery under the doctrine of unjust enrichment is essentially equitable, its basis being that in a given situation it is contrary to equity and good conscience for one to retain a benefit which has come to him at the expense of another. Franks v. Lockwood, 146 Conn. 273, 278, 150 A.2d 215 (1959); Schleicher v. Schleicher, 120 Conn. 528, 534, 182 A. 162 (1935). Connecticut National Bank v. Chapman, 153 Conn. 393, 399, 216 A.2d 814 (1966). With no other test that what, under a given set of circumstances, is just or unjust, equitable or inequitable, conscionable or unconscionable, it becomes necessary in any case where the benefit of the doctrine is claimed, to examine the circumstances and the conduct of the parties and apply this standard. Cecio Bros., Inc. v. Greenwich, [ 156 Conn. 561, 564-65, 244 A.2d 404 (1968)] . . . Providence Electric Co. v. Sutton Place, Inc., 161 Conn. 242, 246, 287 A.2d 379 (1981); Hartford Whalers Hockey Club v. Uniroyal Goodrich Tire Co., 231 Conn. 276, 282, 649 A.2d 518 (1994)." (Internal quotation marks omitted.) Meaney v. Connecticut Hospital Ass'n., Inc., 250 Conn. 500, 511-12, 735 A.2d 813 (1999).
Unjust enrichment is a very broad and flexible equitable doctrine that has as its basis the principle that it is contrary to equity and good conscience for a defendant to retain a benefit that has come to him at the expense of the plaintiff. National CSS, Inc. v. Stamford, supra, 195 Conn. 597. The doctrine's three basic requirements are that (1) the defendant was benefitted, (2) the defendant unjustly failed to pay the plaintiff for the benefits, and (3) the failure of payment was to the plaintiff's detriment. Bolmer v. Kocet, 6 Conn.App. 595, 612-13, 507 A.2d 129 (1986). All the facts of each case must be examined to determine whether the circumstances render it just or unjust, equitable or inequitable, conscionable or unconscionable, to apply the doctrine. Meaney v. Connecticut Hospital Ass'n., Inc., supra, 250 Conn. 511-12.
It is the finding of this court that the defendants not only breached their contract with the plaintiff but from the day the contract was signed until it was breached by their hiring another contractor to avoid paying the balance of the due and owing the plaintiff, defendants breached the implied covenant of good faith and fair dealing.
"It is a general principle of contract law that if one party to a contract hinders, prevents, or makes impossible performance by the other party, the latter's failure to perform will be excused . . . [A] contracting party whose performance of his or her promise is prevented by the other party is not obligated to perform, and is excused from any further offer of performance. In turn, the preventing party is not allowed to recover damages for the resulting nonperformance or otherwise benefit from his or her own wrongful acts . . ." (Internal quotation marks omitted.) Dow Condon, Inc., dba Colliers, Dow Condon v. Garden Main Street, LLC, Superior Court, judicial district of Hartford, Docket No. CVG08 5020258 (July 9, 2009, Bentivegna, J.). Finally, "[w]here a promisor prevents . . . the performance of a return promise, the promisor is not relieved of the obligation to perform, and may not legally terminate the contract for nonperformance." (Internal quotation marks omitted.) Id. "Whether interference by one party to a contract amounts to prevention so as to excuse performance by the other party and constitute a breach by the interfering party is a question of fact . . ." (Internal quotation marks omitted.) Id.
"When the defendant hired another architect to do the work the agreement was terminated. There is nothing to show that the termination was justified. The unwarranted repudiation of the agreement by the defendant entitled the plaintiff to recover for the reasonable value of the services already rendered. Such recovery is permitted without regard to the extent of the benefit conferred on the other party to the agreement. Rossetti v. New Britain, 163 Conn. 283 (1972)."
"During the construction of the ninth house, the defendants had advanced to the plaintiff the sums of $1,000 and $5,000 at which time the defendants notified the plaintiff that they would make no further advances for construction on that lot. The plaintiff was entitled to treat this action of the defendants as a repudiation of the contract, and, accordingly, he ceased construction. "A positive statement to the promisee that the promisor will not perform his contract constitutes an anticipatory breach which is a total breach of contract." Sagamore Corporation v. Willcutt, 120 Conn. 315, 318, 180 A. 464; Wonalancet v. Banfield, 116 Conn. 582, 586, 165 A. 785; 4 Corbin Contracts 959."
"To constitute a breach of the implied covenant good faith and fair dealing, the act by which the defendant allegedly impedes the plaintiff's right to receive benefits that he or she reasonably expected to receive under the contract must of been taken in bad faith . . . bad faith in general implies both actual and constructive fraud, are designed to mislead or deceive another, or neglect a refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one's rights and duties, but by the end of some interest or a sinister motive . . . bad faith means more than mere negligence, and involves a dishonest purpose" Belanger v. Maffucci, No. CV 05-4013892 (January 26, 2007, Elgo, J.).
Contrary to the terms and conditions of the agreement between the parties, the defendants failed to pay the full deposit for one month after the signing, failed provide a building permit for one month causing a delay in construction. They completely ignored all of the contractual obligations with respect to the time and method of payments due and owing the plaintiff causing further delays in completion of the contract. They failed to comply with their agreement to pay the plaintiff a percentage in cash in exchange for a discount in the overall price. They attempted to coerce the plaintiff into completing the minor details of the October contract without having paid the amounts due and owing under the contract and, in addition, complete the installation of their rotted girders discovered without an agreement for payment by threatening the plaintiff with a false claim that he was responsible for loss of summer income several months before he and the defendants even met.
After the defendants were unable to coerce the plaintiff into finishing the project without payment, they breached the contract by hiring another contractor for the purpose of avoiding payments due and owing the plaintiff.
When the October contract was substantially completed, in anticipation that the parties would reach an agreement as to the price of the installation of the additional rotted girders, the plaintiffs spent $5,000 purchasing girders and brackets and actually began their installation.
Although the defendants had refused to pay him the balance due and owing under the original contract they began demanding that he install the additional rotted beams without an agreement as to price and without payment, which he refused to do indicating the request was "absurd" and to do so would be "stupid." Correctly anticipating that he would never be paid, the plaintiff removed his girders and brackets. Although there was never an agreement and the defendants never paid the plaintiff, one of their claims is he was obligated to return them for use by the new contractor. As was found by this court, there was never an agreement with or payment to the plaintiff to perform additional work and there was no basis for such a claim.
The defendants filed a counterclaim claiming a violation of C.G.S. Sec. 52-564. In effect, the defendants are alleging that the plaintiff stole the girders and brackets belonging to the defendants and that defendants are entitled to treble damages. This is unfounded, as it was his own property and the defendants suffered no damages.
In addition, the plaintiff has to defend two frivolous claims totaling $62,000. The first was the claim for the loss of summer rental for $21,000 two month before the plaintiff and the defendant even met which was withdrawn during the trial.
The second was the third counterclaim filed by the defendants seeking $41,000 in damages as a result of the contract's omission of the cancellation clause required under the Home Improvement Act in Home Solicitation Act. This, in spite of the fact that it is well-established: "Neither the Home Improvement Act nor the Home Solicitation Act give rise to a cause of action by the plaintiff against the defendant . . . They are defenses and do not provide an independent cause of action for a homeowner against a contractor." (Internal citations omitted.) Chain et al. v. Pasicki et al., Superior Court, Docket No. 79444 (April 2, 2004, Bear, J.)."
In addition, there were no "damages" of $41,000 as a result of the cancellation date being omitted. The defendants were actually asking a court to order the plaintiff to return all the moneys he'd rightfully earned completing the contract to lift the defendants beach house. The defendants notified the court in a post-trial brief that the counterclaim was being withdrawn.
The defendants have filed a special defense that the contract was enforceable as it violated the requirements of the Home Improvement Act and Home Solicitation Act by omitting the cancellation date in the contract.
A counterclaim alleges that the plaintiff committed unfair and deceptive acts and practices including a violation of the Home Improvement Act and Home Solicitation Act and seeks compensatory and punitive damages.
There was, in fact, a technical violation of the contract requirements of the Home Improvement Act by omitting a cancellation notice requirement.
The plaintiff testified that he was never aware that the Home Improvement Act and Home Solicitation Act required, there be a contract requiring complete compliance with certain specifications listed in the Connecticut General Statutes. Although the plaintiff had been in the home improvement business for 25 years, his relationship with his clients was apparently such that until he dealt with the Menillos, it never became an issue.
In Habetz v. Condon, 224 Conn. 231 (1992) . . . the court ruled that proof of a homeowner's bad faith will preclude a homeowner from repudiating with impunity a home improvement contract that violates the act. "The essential element giving rise to this exception is the recognition that to allow the homeowner who acted in bad faith to repudiate the contract and hide behind the act would be to allow him to benefit from his own wrong, and indeed encouraged him to act thusly. Proof of bad faith therefore serves to preclude the homeowner from hiding behind the protection of the act." Habetz v. Condon, supra 224 Conn. 237.
The court found that the defendant's conduct throughout this entire project constituted a violation of the covenant of good faith and fair dealing and further finds that the conduct of the defendants has precluded them from asserting the violation contract requirement of the Home Improvement Act with respect to their special defense and counter claim.
It is the decision of this court that the plaintiff has established by a preponderance of the evidence that he that he is entitled to an award based on quantum meruit and/or unjust enrichment.
It is a further finding of the court that at the time the defendants breached the October 10 contract, the plaintiff had substantially completed his contractual obligations.
"The determination as to whether a building contract has been substantially performed is a question of fact for this court to determine." Argentinis v. Gould, 23 Conn.App. 9, 14, 579 A.2d 1078 (1990), aff'd in part, rev'd in part on other grounds, 219 Conn. 151, 592 A.2d 378 (1991). "The analysis necessarily involves an inquiry into the totality of facts and circumstances surrounding the performance of the contract." Miller v. Bourgoin, 28 Conn.App. 491, 496, 613 A.2d 292, cert. denied, 223 Conn. 927, 614 A.2d 820 (1992). The traditional explication of the test of substantial performance was that it "contemplates the performance of all items of a building contract except for minor details, those easily remedied by minor expenditures." Argentinis v. Gould, supra, 23 Conn.App. 14, citing Rosnick v. Aetna Sheet Metal Works, Inc., 146 Conn. 565, 568, 153 A.2d 435 (1959). More modern authorities set out a variety of factors for the court to consider, including the extent to which the injured party will be deprived of the benefit reasonably expected, the extent to which that party can be adequately compensated for the deficiency of performance, the extent to which the performing party will suffer forfeiture, the likelihood that the performing party will cure his failure in light of the circumstances and his reasonable assurances, and the extent of good faith and fair dealing on the part of the performing party. See 2 Restatement (Second), supra, § 237 comment (d), and 2 Restatement (Second), supra, § 241; [fn 19] see also Vincenzi v. Cerro, supra, 186 Conn. 616.
Connecticut adopts the contemporary view that substantial performance of a contract permits recovery by a contractor. Vincenzi v. Cerro, 186 Conn. 615, 442 A.2d 1352 (1982); see also 2 Restatement (Second) Contracts § 237 comment d. "Substantial performance of a building contract . . . is ordinarily a question of fact for the trier to determine . . . It is peculiarly within the province of the trier of fact to judge the credibility of a witness." (Citations omitted; internal quotation marks omitted.) Edens v. Kole Construction Co., 188 Conn. 489, 494, 450 A.2d 1161 (1982); see also Nor'Easter Group, Inc. v. Colassale Concrete, Inc., 203 Conn. 468, 472-73, 542 A.2d 692 (1988). "The analysis necessarily involves an inquiry into the totality of facts and circumstances surrounding the performance of the contract." Miller v. Bourgoin, 28 Conn.App. 491, 496, 613 A.2d 292, cert. denied, 223 Conn. 927, 614 A.2d 820 (1992).
With respect to the defendants' first special defense claiming breach of contract, the court found that the defendants breached the contract and not the plaintiff. With respect to the second special defense claiming the doctrine of "unclean hands," it is the opinion of the court that the plaintiff exhibited good faith throughout this entire matter. With respect to the third special defense claiming a violation of the Home Improvement Act the court has made the determination that the defendants may not make that assertion.
With respect to the first counterclaim alleging breach of contract and damages, the defendant did not breach its contractual obligations nor did the defendants suffer any damages. The second counterclaim claiming theft has already been discussed.
The third counterclaim was withdrawn by the plaintiff in their post-trial brief.
With respect to the fourth counterclaim alleging that the plaintiff committed unfair and deceptive acts and practices including a violation of the Home Improvement Act and Home Solicitation Act seeking compensatory and punitive damages, aside from the fact defendants are precluded from asserting a violation of the Home Improvement Act, the court does find that the plaintiff did not engage in any activities that were unlawful, immoral, oppressive or unscrupulous, as required to establish a violation of CUTPA. The court further finds that the plaintiff did not breach its agreement to complete its obligations under the contract. It was the defendants who prevented the plaintiff from completing the contract. Even if this court were to find that there was a breach of contract, a finding which the evidence clearly does not support, the defendants have also clearly not met their burden with respect to demonstrating that the plaintiff's action have caused substantial injury. The court finds that the defendants have not met their burden to establish a claim under the fourth counterclaim.
The plaintiff is awarded $20,860 in damages.
The law is well established that legal expenses, including attorney fees, may be recovered as damages when they are incurred as a result of a party's wrongful conduct. See Celantano v. Oaks Condominium Assn., 265 Conn. 579, 616-18, 830 A.2d 164 (2003) (attorney fees awarded against a party for its breach of the covenant of good faith and fair dealing); Atlantic Mortgage Investment Corp. v. Stephenson, 86 Conn.App. 126, 144-45, 860 A.2d 751 (2004).
The court additionally awards the plaintiff attorneys fees and costs to be determined at a post-judgment hearing which will be held within 30 days.
Judgment is entered accordingly.