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concluding that certified question was not raised in trial court and, therefore, was not reviewable
Summary of this case from Town of Newtown v. OstroskyOpinion
SC 19560, (SC 19561)
03-28-2017
James E. BURNS, Jr. v. David Y. ADLER, et al.
David N. Rosen, with whom, on the brief, was Steven D. Ecker, for the appellant in SC 19560, appellee in SC 19561 (named defendant). William C. Franklin, for the appellee in SC 19560, appellant in SC 19561 (plaintiff).
David N. Rosen, with whom, on the brief, was Steven D. Ecker, for the appellant in SC 19560, appellee in SC 19561 (named defendant).
William C. Franklin, for the appellee in SC 19560, appellant in SC 19561 (plaintiff).
Rogers, C. J., and Palmer, Eveleigh, McDonald, Espinosa, Robinson and Vertefeuille, Js.
ROGERS, C.J.The primary issue that we must resolve in this certified appeal is whether the bad faith exception to the bar on the enforcement of home improvement contracts that do not comply with the Home Improvement Act (act), General Statutes § 20–418 et seq., entitled the plaintiff contractor, James E. Burns, Jr., to recover damages from the defendant homeowner, David Y. Adler, for home improvement services despite the plaintiff's noncompliance with that statute. The parties entered into an agreement whereby the plaintiff agreed to furnish materials and supply labor in connection with the renovation of a residence owned by the defendant in the town of Salisbury. After the renovation project was largely complete, a dispute arose regarding amounts that the defendant owed the plaintiff for services performed. Thereafter, the plaintiff brought this action claiming, among other things, breach of contract and unjust enrichment. The defendant raised the special defense that the plaintiff's claims were barred because the agreement did not comply with the requirements of General Statutes (Rev. to 2007) § 20–429. In turn, the plaintiff claimed that the defendant was precluded from relying on § 20–429 because his refusal to pay the plaintiff was in bad faith. After a trial to the court, the trial court concluded that the plaintiff had incurred damages in the amount of $214,039 and that § 20–429 did not bar recovery because the defendant's refusal to pay was in bad faith. Accordingly, the court rendered judgment for the plaintiff in the amount of $214,039. The defendant appealed to the Appellate Court, which affirmed the judgment of the trial court. See Burns v. Adler , 158 Conn.App. 766, 808, 120 A.3d 555 (2015). We then granted the defendant's petition for certification to appeal, limited to the following issues: (1) "Did ... § 20–429(f) abrogate the bad faith exception to the [act] created in Habetz v. Condon , 224 Conn. 231, 240, 618 A.2d 501 (1992) ?"; and (2) "Did the Appellate Court properly affirm the judgment of the trial court in favor of the plaintiff?" Burns v. Adler , 319 Conn. 931, 125 A.3d 205 (2015) ; see also footnote 7 of this opinion. We conclude that the first certified question is not reviewable because it was not raised in the trial court. We further conclude that the defendant did not act in bad faith and, therefore, the Appellate Court improperly affirmed the judgment of the trial court on the ground that the plaintiff was barred from invoking the protection of the act. Accordingly, we reverse the judgment of the Appellate Court and conclude that the case must be remanded to the trial court with direction to render judgment for the defendant.
The plaintiff's complaint also named as defendants Adler's wife, Amie R. Weitzman, and the Salisbury Bank and Trust Company (bank), which held a mortgage on the defendant's residence. The trial court concluded that Weitzman was not liable to the plaintiff, and the plaintiff has not challenged that conclusion on appeal. The bank's interest in this action also is not at issue in this appeal. Accordingly, hereinafter all references to the defendant are to Adler.
General Statutes (Rev. to 2007) § 20–429 provides in relevant part: "(a) No home improvement contract shall be valid or enforceable against an owner unless it: (1) Is in writing, (2) is signed by the owner and the contractor, (3) contains the entire agreement between the owner and the contractor, (4) contains the date of the transaction, (5) contains the name and address of the contractor and the contractor's registration number, (6) contains a notice of the owner's cancellation rights in accordance with the provisions of chapter 740, (7) contains a starting date and completion date, and (8) is entered into by a registered salesman or registered contractor. Each change in the terms and conditions of a contract shall be in writing and shall be signed by the owner and contractor, except that the [C]ommissioner [of Consumer Protection] may, by regulation, dispense with the necessity for complying with the requirement that each change in a home improvement contract shall be in writing and signed by the owner and contractor. ...
"(f) Nothing in this section shall preclude a contractor who has complied with subdivisions (1), (2), (6), (7) and (8) of subsection (a) of this section from the recovery of payment for work performed based on the reasonable value of services which were requested by the owner, provided the court determines that it would be inequitable to deny such recovery."
Section 20–429 was amended subsequent to the time the parties entered into their agreement. See Public Acts 2009, No. 09–18, § 2; Public Acts 2016, No. 16–35, § 3. All references herein to § 20–429 are to the 2007 revision of the statute.
The defendant also brought a four count counterclaim against the plaintiff alleging a violation of the Connecticut Unfair Trade Practices Act; General Statutes § 42–110a et seq. ; negligence, breach of contract and unjust enrichment. The trial court rendered judgment in favor of the plaintiff on the defendant's counterclaims, and the defendant has not challenged that ruling in this certified appeal.
The record reveals the following facts, which are undisputed or were found by the trial court, and procedural history. In September, 2007, the plaintiff, who is a self-employed construction worker, and the defendant entered into negotiations regarding the renovation and remodeling of a weekend residence that the defendant was planning to buy in the town of Salisbury. The work was to include substantial demolition of the existing structure, the addition of a second floor and the expansion of the structure's footprint. The defendant wanted the work to be performed as quickly as possible so that he and his family could use the residence during the summer of 2008. The parties discussed a cost of approximately $400,000.
Pursuant to these discussions, the plaintiff prepared a written "Home Improvement Service Agreement" (agreement) dated October 5, 2007. The agreement described the services that the plaintiff was to perform as "begin demolition [of] existing home in preparation of planned remodel." The agreement also provided that "[a]ny modifications or changes to the above described scope of services shall be set forth in a written [c]hange [o]rder signed by both parties ." (Emphasis in original.) In addition, the agreement provided that the defendant would pay the plaintiff "[$45] per man plus any expenses to include dumpsters [and/or] materials." The agreement further provided that "once full plans have been provided we will start another contract with firm pricing for every aspect of [the] job with the exclusion of any changes as the project progresses." The trial court concluded that the agreement did not satisfy the requirements of § 20–249 (a) or (f) because it was not signed by the plaintiff, it did not contain a completion date and the plaintiff failed to prove that he delivered a completed copy of it to the defendant. From October, 2007 through September, 2008, the plaintiff worked exclusively on the defendant's renovation project. During that period, the plaintiff received numerous work orders related to the project from multiple sources, including the defendant, his wife, Amie R. Weitzman, the defendant's architect, Elizabeth Slotnick, and Weitzman's assistant, Julie Weiner. None of these four people had a complete understanding of the work that the plaintiff was being requested to perform. In addition, none of them ever inquired about the cost of doing the various items of work that they requested. The written plans for the project were frequently revised by the defendant and others acting on his behalf, and many of the changes were significant. Indeed, the trial court found that the "project was marked by untrammeled profligacy on the part of the [defendant]." According to the plaintiff, he continued to rely on the time and materials provision of the agreement and never executed a "contract with firm pricing," as provided by the agreement, because he never received a full set of plans and "things constantly changed from day to day ...."
The defendant signed the agreement on October 9, 2007, but he also inadvertently signed three form notices of cancellation that had been attached to the agreement. On October 10, 2007, the defendant sent an e-mail to the plaintiff explaining that his assistant had printed out the agreement and the attachments, and that he had "just signed everything." In response, the plaintiff requested a new copy of the agreement or a letter explaining that the original agreement was still in effect. The defendant never complied with this request. According to the plaintiff, he gave a signed copy of the agreement to the defendant, but no such document was presented as evidence at trial and the defendant denied that he received an executed agreement.
The trial court found, for example, that the defendant or others acting on his behalf had directed the plaintiff to assemble furniture, roll up rugs, put mattresses on beds, mow the lawn, remove brush, chop firewood, shop for a wine refrigerator and an oven hood vent, and perform other "tasks that do not normally fall to a contractor."
As the project moved forward, the plaintiff periodically requested payments from the defendant, which the defendant provided. The plaintiff did not send the defendant itemized bills, however, and the defendant initially did not request them. Rather, the plaintiff calculated his expenses from his checkbook records, invoices and time sheets. The plaintiff did not retain all invoices and time sheets relating to the project, nor did he keep a daily construction log or other records that would show which tradesmen were on the site, what work was performed, or what materials were delivered to the site.
The plaintiff points to no evidence that he ever provided any of these records to the defendant in support of his requests for payment before bringing this action.
On March 15, 2008, the plaintiff presented the defendant with a written budget report showing that the projected total cost of the project was $810,267, including $521,944 for work already completed. On March 25, 2008, the plaintiff presented the defendant with a revised budget report showing that the projected total cost of the project was $795,038, including $518,352 for work already completed. On May 27, 2008, the plaintiff informed the defendant by e-mail that the budget had increased to $886,954, not including certain additional items that the defendant had requested. The e-mail stated that "all future changes will be done on a time and material basis unless it is more efficient to bid," and that "[t]here will ... be a need for an [e-mail] or written response for these changes from either you or your wife's office approving them ...." The plaintiff also told the defendant that he owed substantial amounts to his subcontractors and required additional funding to keep them working. The defendant was unhappy with the revised budget, but he chose to retain the plaintiff as his contractor because he was anxious to have the project completed so that he could use the house. Although the defendant contended that he believed that the e-mail represented the terms of a new "fixed price contract," he and Weitzman continued to ask the plaintiff to perform additional tasks.
On August 25, 2008, the plaintiff sent a letter to the defendant setting forth the "final numbers for all work performed" at the residence. The plaintiff stated that the total cost of the project was $1,188,350 and that payments received to date totaled $985,000, for a balance due of $203,350. At that point, the project was approximately 98 percent complete. In response, the defendant sent an e-mail to the plaintiff on September 3, 2008, summarizing and comparing the various budget reports that the plaintiff had provided. The defendant complained that "the numbers do not add up and there are different categories being created in each budget." According to the defendant's calculations, the total cost of the project was $963,923, or $21,077 less than the $985,000 that the defendant had already paid. The $963,923 figure included extra items of work that the defendant had approved since the plaintiff's May 27, 2008 budget report. The defendant indicated that he was willing to pay for these extras if the plaintiff could establish that the amounts shown were correct, and he requested additional information for certain items. The defendant also noted that the plaintiff had not begun to address "the 100+ item punch list" that the defendant had provided to the plaintiff. Finally, the defendant stated that he had been "very happy with the quality of [the plaintiff's] work generally and it is my hope that we can resolve this matter amicably."
The trial court found that the defendant made his last payment to the plaintiff on August 4, 2008, at which time the project was "largely complete."
On September 8, 2008, the plaintiff informed the defendant that the total cost of the project had increased to $1,199,911, and the total balance due was $214,911. On September 12, 2008, the plaintiff sent an e-mail to the defendant itemizing in detail the work that he and others had been performing at the residence since June 1, 2008. The plaintiff, however, did not provide the cost of each item or any backup documentation. The plaintiff stated that he had performed the work at the defendant's request on the understanding that he would be paid for it. He also stated that he was losing money on the project, that his relationships with his subcontractors and suppliers were in jeopardy, and that he needed to pay them.
On September 9, 2008, the defendant's architect, Slotnick, sent an e-mail to the defendant indicating that she had received an e-mail from a supplier inquiring whether the defendant was happy with the kitchen cabinetry, because he had not been paid yet. Slotnick had told the supplier that the plaintiff and the defendant had financial issues that they were attempting to resolve. In response, the defendant sent an e-mail to Slotnick asking if she could recommend "a good attorney who does this kind of work."
On September 16, 2008, the defendant informed the plaintiff by e-mail that "[w]e are at the end of the road." The defendant stated that the plaintiff's explanations of the additional charges after the May 27, 2008 budget report "were neither itemized, nor specific, and in my opinion are wholly inadequate ...." Accordingly, the defendant concluded that he did not owe the plaintiff any amount beyond the $985,000 that he had already paid, which included payment for all extra work performed after May 27, 2008, of which the defendant was aware. The defendant also stated that he was going to hire a contractor to complete the punch list items and that he was "officially and immediately terminating [the] relationship." Finally, the defendant stated that, if the plaintiff intended to litigate the matter in court, the defendant, who is an attorney, would represent himself, and he strongly believed that he would prevail. The defendant admitted at trial that the statement that he would represent himself was false and that he made it in the hope that the plaintiff would not bring a lawsuit if he knew that he would incur litigation expenses that the defendant would not incur.
In response to the defendant's September 16, 2008 e-mail, the following day the plaintiff sent an e-mail to the defendant stating, "[I] would like to finish the punch list. It is my respons[i]bility to complete the work." The plaintiff also asked whether his subcontractors would be paid. On September 24, 2008, the defendant sent an e-mail to the plaintiff inquiring when he would be able to complete the punch list. The defendant explained to the plaintiff that, "unless an item is highlighted on the punch list in yellow, these items are included in the amounts I have paid you to date ...." On October 10, 2008, the defendant sent another e-mail to the plaintiff stating that, although the plaintiff had indicated that he wanted to complete the punch list, the defendant had "only seen modest progress ...." Accordingly, the defendant was going to hire a contractor to complete the work. In addition, the defendant stated that, in light of the fact that he had received a notice of the plaintiff's intent to file a mechanic's lien on the residence, the plaintiff was no longer permitted to enter the defendant's premises.
On October 10, 2008, the plaintiff filed a certificate of mechanic's lien in the amount of $214,039.09 on the defendant's property. According to the certificate of mechanic's lien, the "last day substantial services were performed relative to the work done by [the plaintiff] was August 29, 2008."
Thereafter, the plaintiff brought this action against the defendant seeking foreclosure of his mechanic's lien (first count), and claiming damages for breach of contract (second count) and unjust enrichment (third count). The defendant raised the special defense that, because the plaintiff had failed to comply with § 20– 429, the agreement was unenforceable. In his reply in avoidance, the plaintiff contended that the agreement complied with the provisions of § 20–429 or, in the alternative, if the agreement was noncompliant, he could seek restitution from the defendant because the defendant's reliance on § 20–429 was in bad faith.The matter was tried to the court, which concluded that the agreement did not comply with the requirements of § 20–429, but that the plaintiff could nevertheless recover damages from the defendant because the defendant had acted in bad faith. In support of this conclusion, the trial court found that the defendant and others had made numerous requests for extra work without inquiring as to the expense, that the defendant was aware that the plaintiff owed significant debts to his subcontractors and suppliers, and that the defendant terminated the contract between the parties, but then continued to ask the plaintiff to work on the project without any intention of making further payments. The court further found that the defendant "unilaterally and arbitrarily selected a price that he was willing to pay for the project." The court reasoned that, because the defendant knew as of August 4, 2008, when he made his final payment, that the project was "largely complete," he must have believed that the project itself would not be at risk if he made no further payments even if he "could not trick the plaintiff into finishing the entire punch list ...." The trial court also found that the defendant knew that his failure to pay the plaintiff "created a serious risk of putting the plaintiff out of business," and that he "took advantage of [this] fact" to induce the plaintiff to continue to work for him by suggesting that he might make further payments, even though he had no intention of doing so. The defendant increased the pressure for the plaintiff to complete the work when the defendant stated falsely that he would represent himself if the plaintiff brought an action, thereby reminding the plaintiff that, unlike the defendant, he would have to bear legal expenses. The trial court acknowledged, however, that another contractor ultimately completed most of the work that remained to be done after August 4, 2008.
The parties agreed that the foreclosure claim would be bifurcated from the plaintiff's other claims and would be addressed in a separate hearing, if necessary, after trial. After the trial court rendered judgment in favor of the plaintiff on his breach of contract claim, he moved for a supplemental judgment seeking foreclosure of the mechanic's lien. The parties then stipulated that there was no need for a hearing on the terms of the judgment of foreclosure. Accordingly, the trial court rendered a judgment of strict foreclosure without a hearing, and the defendant filed an amended appeal to the Appellate Court from that ruling. The trial court denied the plaintiff's request for attorney's fees because, under General Statutes § 52–249, a hearing as to the form of judgment is a condition precedent to an award of attorney's fees in a foreclosure action. The plaintiff filed a separate appeal to the Appellate Court challenging the trial court's denial of his request for attorney's fees, and the Appellate Court affirmed that ruling. See Burns v. Adler, supra, 158 Conn.App. at 808, 120 A.3d 555. We then granted the plaintiff's request for certification to appeal from the judgment of the Appellate Court limited to the following issue: "Did the Appellate Court correctly affirm the judgment of the trial court denying the plaintiff's request for attorney's fees pursuant to ... § 52–249(a) ?" Burns v. Adler, 319 Conn. 931, 932, 125 A.3d 206 (2015). Because we are reversing the judgment of the Appellate Court affirming the judgment in favor of the plaintiff on his breach of contract claim and directing a judgment in favor of the defendant on that claim, we also reverse the judgment of strict foreclosure and direct judgment in favor of the defendant on that claim. Accordingly, the plaintiff's certified appeal from the ruling of the Appellate Court affirming the trial court's denial of his request for attorney's fees is dismissed as moot.
The trial court also found, however, that the defendant induced the plaintiff to finish the project because that approach would be "faster, more efficient and vastly more economical than concluding the relationship with the plaintiff and retaining a new contractor." It is difficult to reconcile the trial court's finding that the defendant believed that the project would not be at risk if he stopped paying the plaintiff because it was largely complete with its finding that the defendant believed that it would be "vastly more economical" to induce the plaintiff to complete the project than to retain a new contractor.
The trial court was apparently referring to the defendant's September 3, 2008 e-mail to the plaintiff indicating that he was willing to pay for extra items of work that he had approved if the plaintiff could establish that the amounts he claimed for the items were correct.
The trial court also acknowledged that "the plaintiff's billing records were poorly maintained" and that "much of the difficulty in preparing the case for trial, trying this case and determining the appropriate resolution of the dispute can be traced directly to the plaintiff's failure to maintain better records. Indeed, the existence of the lawsuit itself is undoubtedly tied to the plaintiff's administrative shortcomings. Just as the parameters of the renovation project [were] a constantly moving target, the precise calculation of the plaintiff's expenses was a difficult exercise, the correct resolution of which is a matter upon which the parties vehemently disagree."
On the basis of these findings, the trial court concluded that the defendant's conduct "constituted a design to mislead and/or deceive the plaintiff." Specifically, the court concluded that the defendant's "decision to make no further payments after August 4, 2008, was not prompted by an honest mistake as to his rights or duties. Instead, this decision was the product of [the defendant's] desire to use the plaintiff to finish the project at no further expense to [the defendant]." In addition, the court concluded that the defendant's course of conduct "was the product of [the defendant's] choosing to serve his own financial interests at the plaintiff's expense." Accordingly, the trial court concluded that the plaintiff was entitled to recover damages from the defendant, notwithstanding the fact that the agreement did not meet the requirements of § 20–429, because the defendant's refusal to pay the amounts due to the plaintiff was in bad faith. The court rendered judgment for the plaintiff in the amount of $214,039.09 on his breach of contract claim. The court also rendered judgment for the plaintiff on all of the defendant's counterclaims. See footnote 2 of this opinion.
The trial court did not expressly address the plaintiff's claim of unjust enrichment. In Walpole Woodworkers, Inc. v. Manning, 126 Conn.App. 94, 102, 11 A.3d 165 (2011), aff'd, 307 Conn. 582, 57 A.3d 730 (2012), the Appellate Court concluded that, "under the bad faith exception, the plaintiff is entitled only to recover the value of the work performed because the contract is otherwise unenforceable due to the plaintiff's violation of the act." In other words, when a contractor has proved bad faith, he may recover only under a theory of unjust enrichment, not breach of contract. Thus, although the parties have not raised the issue, it is unclear to us why the trial court, which cited Walpole Woodworkers, Inc., in its memorandum of decision, rendered judgment for the plaintiff on his breach of contract claim instead of his claim for unjust enrichment. We note, however, that this court concluded in Walpole Woodworkers, Inc. v. Manning, 307 Conn. 582, 590, 57 A.3d 730 (2012), that, when a homeowner has invoked § 20–429 in bad faith, "the contract price is evidence of the reasonable value of the benefit the defendant received from the plaintiff." Accordingly, it is reasonable to presume that any error in rendering judgment for the plaintiff on his breach of contract claim and awarding contract damages was harmless.
The defendant appealed from the judgment of the trial court to the Appellate Court, claiming that the bad faith exception to § 20–429 that this court adopted in Habetz v. Condon , supra, 224 Conn. at 240, 618 A.2d 501, has been abrogated by the enactment of § 20–429 (f). Burns v. Adler , supra, 158 Conn.App. at 792, 120 A.3d 555. The defendant further claimed that, even if the bad faith exception still exists, the trial court incorrectly determined that he acted in bad faith because "the only situation in which a homeowner can be found to have invoked the act in bad faith to defeat a contractor's claim for payment for work performed without an act-compliant contract is when he does so to avoid paying for services he accepted with knowledge of the act and its requirements and the intent not to pay for them by later invoking the act." Id. Finally, the defendant claimed that, even under a broader bad faith standard, the plaintiff failed to prove that the defendant acted in bad faith because the evidence showed only that the defendant refused to pay the plaintiff as the result of a good faith billing dispute. Id., at 801–802, 120 A.3d 555. The Appellate Court concluded that it was bound to reject the claim that the bad faith exception has been legislatively abrogated pursuant to its decision in Walpole Woodworkers, Inc. v. Manning , 126 Conn.App. 94, 104, 11 A.3d 165 (2011), aff'd, 307 Conn. 582, 57 A.3d 730 (2012), in which it had held to the contrary. Burns v. Adler , supra, at 792, 120 A.3d 555. The Appellate Court also rejected the defendant's claims that the trial court incorrectly determined that he had acted in bad faith. Id., at 801–802, 805, 120 A.3d 555. Accordingly, the Appellate Court affirmed the judgment of the trial court. Id., at 808, 120 A.3d 555.
This appeal followed. The defendant claims on appeal that this court should overrule the Appellate Court's holding in Walpole Woodworkers, Inc. v. Manning , supra, 126 Conn.App. at 105, 11 A.3d 165, that the legislature did not abrogate the bad faith exception to the act when it amended § 20–429 to include subsection (f). See Public Acts 1993, No. 93–215, § 1. The defendant further contends that, if the bad faith exception to the act still exists, the Appellate Court improperly affirmed the judgment of the trial court that he acted in bad faith because the plaintiff failed to establish that: (1) there was any causal connection between the plaintiff's losses and the purported acts of bad faith; (2) the defendant was aware of his right to repudiate the contract under the act when he disputed the plaintiff's bill; or (3) the defendant had no reasonable basis to dispute the plaintiff's bill.
I
We first address the defendant's claim that the legislature's enactment of § 20–429 (f) abrogated the judicially created rule that a homeowner may not avail himself of the protection of the act if the homeowner invokes § 20–429 (a) in bad faith. See Habetz v. Condon , supra, 224 Conn. at 237, 618 A.2d 501. The plaintiff contends that this claim is unreviewable because it was unpreserved. The defendant concedes that he did not raise this claim in the trial court, but contends that the claim is nevertheless reviewable because, in light of the Appellate Court's holding in Walpole Woodworkers, Inc. v. Manning , supra, 126 Conn.App. at 105, 11 A.3d 165, that § 20–429 (f) did not abrogate the bad faith exception, raising the claim would have been futile. We disagree.
The plaintiff raised this claim in his brief to the Appellate Court; see Burns v. Adler, Conn. Appellate Court Records & Briefs, January Term, 2015, Plaintiff's Brief p. 31; but the Appellate Court did not address the issue because, as we have indicated herein, the court disposed of the claim on the ground that it was bound by its prior holding on that issue in Walpole Woodworkers, Inc. v. Manning, supra, 126 Conn.App. at 105, 11 A.3d 165. See Burns v. Adler, supra, 158 Conn.App. at 792, 120 A.3d 555.
This court previously has rejected "the proposition that the futility of asking the trial court to overrule a decision of this court automatically excuses the failure to preserve the claim. Moreover, we [have concluded] that there are good reasons not to adopt such a rule. First, requiring the party to raise the claim would put the other parties on notice of the claim and allow them to properly evaluate their position at the time of trial.... Second, a futility exception to preservation could lead to ambuscade of the trial court." (Citation omitted; footnote omitted.) Ulbrich v. Groth , 310 Conn. 375, 428–29, 78 A.3d 76 (2013). Thus, although the futility of raising a claim is a factor that this court will consider when determining whether it will review an unpreserved claim, the general rule is that futility will not excuse the failure to raise a claim in the trial court in the absence of exceptional circumstances. See id. We find no such exceptional circumstances here. Indeed, the Appellate Court did not release its decision in Walpole Woodworkers, Inc. , until January 18, 2011, after the pleadings in this case were already closed. Thus, the defendant had no reason to believe at the time that the plaintiff filed his reply in avoidance alleging bad faith that it would be futile to file a motion to strike that pleading, yet he failed to do so. Accordingly, we conclude that this claim is not reviewable.
II
We next address the defendant's claim that the Appellate Court improperly affirmed the trial court's conclusion that the defendant acted in bad faith when he refused to pay the plaintiff the amounts that the plaintiff claimed were due. We agree.
We begin our analysis with the standard of review. This court previously has held that the question of whether a party acted in bad faith is a question of fact subject to review for clear error. Habetz v. Condon , supra, 224 Conn. at 237 n.11, 618 A.2d 501 ("[i]t is the burden of the party asserting the lack of good faith to establish its existence and whether that burden has been satisfied in a particular case is a question of fact"). In Habetz , however, the plaintiff homeowner did not challenge on appeal the trial court's conclusion that the defendant contractor had met his burden of proving bad faith. Id. Thus, this court was not required to consider the proper standard of review when the underlying facts are not disputed, but the homeowner claims that those facts do not rise to the level of bad faith. We now conclude that whether undisputed facts meet the legal standard of bad faith is a question of law. See Francis v. Dept. of Correction , 178 Wash.App. 42, 51–52, 313 P.3d 457 (2013) ("[w]hether an agency acted in bad faith ... presents a mixed question of law and fact, in that it requires the application of legal precepts [the definition of ‘bad faith’] to factual circumstances [the details of the agency's conduct]"), review denied, 180 Wash.2d 1016, 327 P.3d 55 (2014) ; Brown v. Labor & Industry Review Commission , 267 Wis.2d 31, 40, 671 N.W.2d 279 (2003) (determination of bad faith presents mixed question of fact and law); see also Walpole Woodworkers, Inc . v. Manning , 307 Conn. 582, 588, 57 A.3d 730 (2012).
Although the dissent agrees with our conclusion that, when the facts are undisputed, whether those facts rise to the level of bad faith under the act is a question of law, it ultimately concludes that we are substituting our factual findings for the trial court's. As we discuss at length in the body of this opinion, however, we fully accept the trial court's factual findings and assume every inference in favor of a finding of bad faith. The only "finding" by the trial court with which we disagree is that court's ultimate conclusion that the defendant's conduct satisfied the legal standard for bad faith. Indeed, the dissent has not identified a single specific factual finding that we have ignored or rejected.
In the present case, we assume the correctness of the trial court's factual findings that: the defendant and others had made numerous requests for extra work without inquiring as to the expense; the defendant was aware that the plaintiff owed significant debts to his subcontractors and suppliers; the defendant terminated the contract between the parties, but then continued to allow the plaintiff to work on the project because he wanted to finish the project at no further expense to himself; the defendant unilaterally and arbitrarily selected the price that he was willing to pay the plaintiff; the defendant knew that his failure to pay the plaintiff would jeopardize the plaintiff's business; and the defendant intended to pressure the plaintiff to complete the work by suggesting that he might make further payments and that, if the plaintiff brought an action against the defendant, the defendant would represent himself. Because we treat the trial court's factual findings as correct, whether this conduct rose to the level of bad faith for purposes of the bad faith exception to § 20–429 is a pure question of law, subject to plenary review.
We turn, therefore, to a review of the relevant law. In Habetz v. Condon , supra, 224 Conn. at 239, 618 A.2d 501, we recognized that the purpose of the act is "to preclude a contractor's recovery on the various restitutionary doctrines so as to effectuate the legislative purpose: to require that contractors comply with the act. ... Clearly, the legislature is entitled, in the first instance, to impose the burden of compliance with the statute on the professional, the contractor, rather than on the nonprofessional, the consumer. ... The objective of the act is to promote understanding by the consumer, to ensure his ability to make an informed decision and to protect him from substantial work by an unscrupulous contractor." (Citations omitted; internal quotation marks omitted.) We further concluded, however, that the act did not "override the general principle embodied in the bad faith exception: that an individual should not profit from his own deceptive and unscrupulous conduct." Id., at 239–40, 618 A.2d 501. Thus, "[p]roof of bad faith ... serves to preclude the homeowner from hiding behind the protection of the act." Id., at 237, 618 A.2d 501.
In Habetz, the defendant did not dispute the trial court's finding that he had acted in bad faith. See Habetz v. Condon, supra, 224 Conn. at 237 n.11, 618 A.2d 501. Thus, there was no occasion for this court to determine whether the facts of the case would support a finding of bad faith.
We stated in Habetz that "[b]ad faith in general implies both actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one's rights or duties, but by some interested or sinister motive. ... Bad faith means more than mere negligence; it involves a dishonest purpose." (Citation omitted; internal quotation marks omitted.) Id.
In the present case, the defendant contends that the Appellate Court improperly affirmed the trial court's finding of bad faith because a homeowner does not act in bad faith unless the homeowner "accepts the contractor's services knowing that he has an ‘escape hatch’ under the [act] which allows him to avoid payment for those services." See Wadia Enterprises, Inc. v. Hirschfeld, 224 Conn. 240, 248, 618 A.2d 506 (1992) (trial court properly found that plaintiff had not proven bad faith when there was no "proof that the attorneys intentionally [drafted a noncompliant contract] in order to have an escape hatch"). Thus, the defendant claims that the bad faith exception does not apply unless the contractor detrimentally relied on the homeowner's preexisting bad faith conduct when providing services pursuant to a noncompliant contract.
See also Lucien v. McCormick Construction, LLC, 122 Conn.App. 295, 298–99, 998 A.2d 250 (2010) (under Wadia Enterprises, Inc., bad faith exception did not apply when plaintiff homeowner did not dispute amounts owed or adequacy of defendant contractor's performance until homeowner made final payment and she failed to raise § 20–429 as defense to defendant's claim for payment until defendant brought action for payment); New England Custom Concrete, LLC v. Carbone, 102 Conn.App. 652, 661, 927 A.2d 333 (2007) (when, "[a]t best, the record demonstrates vigorous disagreement about the quality of the [plaintiff contractor's] workmanship in performing the contract," it was "doubtful that the [trial] court could have made a finding of bad faith" [emphasis in original] ); MacMillan v. Higgins, 76 Conn.App. 261, 272–73, 822 A.2d 246 (attorney trial referee properly found that defendant homeowners had not acted in bad faith even though they had drafted contract and evidence showed that defendants and their agents were familiar with provisions of § 20–429), cert. denied, 264 Conn. 907, 826 A.2d 177 (2003) ; Kronberg Bros., Inc. v. Steele, 72 Conn.App. 53, 63, 804 A.2d 239 (when trial court found no evidence that defendant homeowners were responsible for defects in contract and plaintiff's allegations of bad faith "arose out of the deteriorating relationship between the parties" such that defendants "were confronted with what must have been an exasperating ordeal," court properly concluded that plaintiff failed to prove that defendants acted in bad faith [internal quotation marks omitted] ), cert. denied, 262 Conn. 912, 810 A.2d 277 (2002) ; Dinnis v. Roberts, 35 Conn.App. 253, 259, 644 A.2d 971 (rejecting plaintiffs' claim that "the bad faith exception to the enforcement of the act is not limited to instances of bad faith relating to the formation of, or inducement to, enter into a home improvement contract"), cert. denied, 231 Conn. 924, 648 A.2d 162 (1994).
We conclude that the bad faith exception to the bar on a contractor's recovery under contracts that do not comply with § 20–429 does not apply when a homeowner receives goods and services from a contractor in the belief that they ultimately will have to be paid for, but then repudiates the contract because the contractor's noncompliance with the act gave rise to a genuine, good faith dispute about the scope of the work or the contract price. As we have explained, the very purpose of the act is to place the burden on the contractor to provide written documentation, signed by both parties, for "[e]ach change in the terms and conditions of a contract ...." General Statutes § 20–429(a) ("[e]ach change in the terms and conditions of a contract shall be in writing and shall be signed by the owner and contractor"); see also Habetz v. Condon , supra, 224 Conn. at 239, 618 A.2d 501 ("[c]learly, the legislature is entitled, in the first instance, to impose the burden of compliance with [§ 20–429(a) ] on the professional, the contractor, rather than on the nonprofessional, the consumer" [internal quotation marks omitted] ). When a contractor fails to meet this burden and, as a result, a genuine, good faith dispute about the authorized scope of the work or the contract price arises, the homeowner's refusal to pay the amounts claimed by the contractor is not in bad faith. Rather, under these circumstances, the inability of a contractor to enforce the homeowner's payment obligation is exactly what the act contemplates, even as to work that the contractor actually performed. See Barrett Builders v. Miller , 215 Conn. 316, 326–27, 576 A.2d 455 (1990) (although bar on recovery may be "a harsh result where a contractor in good faith but in ignorance of the law performs valuable home improvements without complying with § 20–429... the legislature could legitimately view as more urgent the need to protect consumers from unscrupulous contractors than the need to protect innocent contractors from manipulative consumers"); see also Wadia Enterprises, Inc. v. Hirschfeld , supra, 224 Conn. at 249, 618 A.2d 506 ("[t]here is nothing dishonest or sinister about homeowners proceeding on the assumption that there is a valid contract, enforcing its provisions, and later, in defense to a suit by the contractor, upon learning that the contract is invalid, then exercising their right to repudiate it"); New England Custom Concrete, LLC v. Carbone , 102 Conn.App. 652, 661, 927 A.2d 333 (2007) (when, "[a]t best, the record demonstrates vigorous disagreement about the quality of the [plaintiff contractor's] workmanship in performing the contract," it was "doubtful that the [trial] court could have made a finding of bad faith" [emphasis in original] ); Kronberg Bros., Inc. v. Steele , 72 Conn.App. 53, 63, 804 A.2d 239 (when trial court found no evidence that defendant homeowners were responsible for defects in contract and plaintiff contractor's allegations of bad faith "arose out of the deteriorating relationship between the parties" such that defendants "were confronted with what must have been an exasperating ordeal," court properly concluded that plaintiff failed to prove that defendants acted in bad faith [internal quotation marks omitted] ), cert. denied, 262 Conn. 912, 810 A.2d 277 (2002). Indeed, it would completely nullify the core purpose of the act to conclude that, if the contractor ultimately is able to establish the value of the work that he actually performed, it is in bad faith for a homeowner to refuse to pay the contractor, even though the contractor failed to document the work and any concomitant change in price in a writing, signed by both parties, and even though his failure to comply with § 20–429 initially gave rise to a genuine dispute about the authorized scope or actual value of the work. See Habetz v. Condon , supra, at 239, 618 A.2d 501 ("[t]he objective of the act is to promote understanding by the consumer, to ensure his ability to make an informed decision and to protect him from substantial work by an unscrupulous contractor").
In support of his claim to the contrary, the plaintiff relies on Walpole Woodworkers, Inc. v. Manning, supra, 126 Conn.App. at 94, 11 A.3d 165. In that case, however, the Appellate Court concluded only that a homeowner's repudiation of a noncompliant contract constitutes bad faith when the work has been satisfactorily completed and the contractor's noncompliance has not given rise to a genuine dispute about the scope of the work or the contract price. See id., at 101–102, 11 A.3d 165. Thus, the Appellate Court essentially held that a homeowner's repudiation of a contract pursuant to § 20–429 on the basis of a mere technical violation of the statute is in bad faith. We need not consider here whether that holding was correct, because the trial court implicitly found in the present case that the plaintiff's noncompliance with § 20–429 gave rise to a genuine dispute over the scope of the goods and services that were provided by the plaintiff and the total contract price, which is precisely what that act was intended to prevent.
In the present case, the trial court made no finding, and the plaintiff points to no evidence that would support a finding, that the defendant knew before August 4, 2008, when the project was largely complete, that he had an "escape hatch" to avoid payment for the goods and services that he was receiving. See Wadia Enter prises, Inc. v. Hirschfeld, supra, 224 Conn. at 248, 618 A.2d 506 (trial court properly found that plaintiff had not proven bad faith when there was no "proof that the [defendant homeowners'] attorneys intentionally [drafted a noncompliant contract] in order to have an escape hatch"). Indeed, there is no evidence that the defendant had any reason to believe as of August 4, 2008, that he had received goods and services for which he had not paid. Rather, the undisputed evidence shows that, as of May 27, 2008, the last date that the plaintiff provided a contract price to the defendant, the plaintiff estimated that the price to complete the project would be $886,954, not including certain items that the defendant had requested, and that, as of August 4, 2008, the defendant had paid the plaintiff $985,000. Although the defendant continued to ask the plaintiff to perform extra work between May 27, 2008, and August 4, 2008, the trial court did not find, and the plaintiff has cited no evidence that would support a finding, that the defendant knew or should have known that this extra work would raise the contract price from $886,954 to $1,199,911, an increase of $312,957, or 35 percent, in little more than two months. Indeed, the only evidence regarding the defendant's beliefs on this issue is the defendant's September 3, 2008 e-mail to the plaintiff indicating that, according to the defendant's calculations, the total cost of the project, including extras that he had approved since May 27, 2008, was $963,923, $21,077 less than he had already paid the plaintiff, and the defendant's September 16, 2008 e-mail to the plaintiff stating that he had already paid for all of the extra work performed after May 27, 2008, of which he was aware. Thus, the defendant's conduct before August 4, 2008, could not have been in bad faith.
Indeed, the defendant testified at trial that he did not learn about his right to repudiate the contract under the act until mid–September, 2008.
The plaintiff contends that there is no requirement under Walpole Woodworkers, Inc., that a contractor prove a "causal nexus" between the homeowner's conduct and the contractor's damages by showing that the homeowner fraudulently induced the contractor to provide goods and services. There is a requirement, however, that a contractor prove that the homeowner acted in bad faith. The mere fact that the contractor provided goods and services that the homeowner ultimately did not pay for, in and of itself, is not evidence of the homeowner's bad faith.
We emphasize that we do not conclude that the bad faith exception is applicable only to cases in which the homeowner accepted goods and services from a contractor knowing that the act would provide an "escape hatch" and to cases in which the contractor has detrimentally relied on the homeowner's bad faith conduct in providing goods and services. To the contrary, we have expressly left open the possibility that a homeowner's repudiation of a contract on the basis of the contractor's technical noncompliance with the act, when the contractor has satisfactorily completed the work and his conduct has not given rise to any genuine dispute about the scope of the work or the contract price, may constitute bad faith under the act. See footnote 15 of this opinion. Moreover, we cannot rule out the possibility that there may be other forms of conduct that constitute bad faith under the act. We conclude only that the plaintiff in the present case has not established that the defendant's repudiation of the contract was in bad faith under the "escape hatch" theory, under the detrimental reliance theory, under the technical violation theory, or under any other theory. Although we recognize that this is a harsh result for the plaintiff, our role is to implement the intent of the legislature as embodied in the act, not to impose our own notion of justice.
Although the trial court was free to discredit this evidence, any such disbelief would not support a finding that the defendant accepted goods and services from the plaintiff before August 4, 2008, with the intent not to pay for them. Cf. State v. Alfonso, 195 Conn. 624, 634, 490 A.2d 75 (1985) ("[w]hile it is true that it is within the province of the [fact finder] to accept or reject a defendant's testimony, a [fact finder] in rejecting such testimony cannot conclude that the opposite is true").
We further conclude that the defendant's repudiation of the contract after he made his final payment to the plaintiff on August 4, 2008, was not in bad faith. The trial court expressly found that "the plaintiff's billing records were poorly maintained," that "much of the difficulty in preparing the case for trial, trying this case and determining the appropriate resolution of the dispute can be traced directly to the plaintiff's failure to maintain better records," and that these "administrative shortcomings" caused the breakdown of the relationship between the parties that, in turn, led to the defendant's termination of the contract and the plaintiff's legal action. Although the trial court found that, "when [the defendant] made his final payment on August 4, 2008, he had no intention of ever making any further payments," and that the defendant "unilaterally and arbitrarily" decided how much he would pay the plaintiff, the court made no finding, and the plaintiff has cited no evidence that would support a finding, that the defendant knew or should have known that the plaintiff's calculations of the amounts owed to him were correct, or even close to correct. The only documents that the plaintiff provided to the defendant after August 4, 2008, were mutually inconsistent lists of work items and prices that were not supported by invoices, receipts, checks or time sheets. Indeed, the trial court expressly acknowledged that "the parties vehemently disagree" about the amounts that are owed to the plaintiff and that the plaintiff's poor record keeping made it difficult, if not impossible, to determine the precise amounts that he was owed even after trial , where the plaintiff had presented extensive documentation of his expenses that he previously had not provided to the defendant. Thus, it is implicit in the trial court's factual findings that the plaintiff's noncompliance with the act gave rise to a genuine, good faith disagreement between the parties as to whether the defendant owed the plaintiff the amounts that the plaintiff claimed. Moreover, even if there were no genuine dispute about the value of the goods and services that the plaintiff actually provided, the plaintiff's failure to comply with the act deprived the defendant of the opportunity to make an informed decision as to whether he should continue to accept goods and services from the plaintiff during the course of the renovation project, which is the core purpose of the act. See Habetz v. Condon , supra, 224 Conn. at 239, 618 A.2d 501. Finally, the fact that the defendant paid almost $1,000,000 to the plaintiff on a project that was initially estimated to cost $400,000, despite the plaintiff's failure to document the cost of the goods and services that he provided, strongly suggests that the defendant did not act in bad faith.
Thus, although we assume the correctness of the trial court's finding that the defendant decided, "without a sound factual basis, that he would not pay for all of the time and materials expended on the project," we cannot conclude that finding supports a finding of bad faith. The burden was not on the defendant to provide a sound factual basis for the amounts he paid to the plaintiff. Rather, under the act, the burden was on the plaintiff to provide written documentation, signed by both parties, for the amounts that he claimed were owing to him. Because the plaintiff's failure to comply with the act gave rise to a genuine dispute about the scope of the plaintiff's work and the amounts owed, the risk that the defendant would invoke the act to bar an enforcement action was on the plaintiff. Similarly, the trial court's findings that the defendant was profligate, that he was disinterested in managing the cost of the project, that, by repudiating the contract, he was serving his own financial interests at the plaintiff's expense, and that he lied to the plaintiff about representing himself if the plaintiff brought an action against him do not support a finding of bad faith under these circumstances because the act placed the burden of documenting contract changes on the plaintiff and the defendant had no duty to look out for the plaintiff's financial interests. See Hi–Ho Tower, Inc. v. Com–Tronics, Inc., 255 Conn. 20, 38, 761 A.2d 1268 (2000) (party to arm's-length transaction is under no obligation to act for benefit of other party). Moreover, the plaintiff has provided no authority for the proposition that bluffing, in and of itself, constitutes fraud or bad faith. Cf. Cook v. Little Caesar Enterprises, Inc., 210 F.3d 653, 658 (6th Cir. 2000) (to constitute fraud, "allegedly false statements must relate to past or existing facts, not to future promises or expectations ... [or] statements referr[ing] to events which might happen in the future" [citations omitted] ). In the absence of a fiduciary duty, evidence of a party's profligacy, disinterest and self-interest does not constitute evidence of dishonesty or bad faith. See Hi–Ho Tower, Inc. v. Com–Tronics, Inc., supra, at 38–39, 761 A.2d 1268.
The trial court found that the defendant had waived his right under the agreement to have all modifications set forth in a written change order signed by both parties by ordering the plaintiff to perform extra work. The court made this finding, however, in the portion of its memorandum of decision addressing and rejecting the defendant's counterclaim alleging that the plaintiff had breached the agreement. The court did not suggest that the defendant ever waived his right to invoke § 20–429 as a bar to the plaintiff's enforcement of the agreement. To the contrary, the trial court concluded that the agreement did not comply with § 20–429 and that it would be unenforceable in the absence of proof of bad faith.
Although § 20–429(a) does not expressly require contractors to reduce each change in the terms and conditions of the contract to a writing, signed by both parties, before the work that is the subject of the change is performed, this court has held that the purpose of the statute is to ensure that homeowners can make informed decisions as to whether to authorize additional work. See Habetz v. Condon, supra, 224 Conn. at 239, 618 A.2d 501. Thus, if a contractor fails to obtain written authorization from the homeowner for work before performing the work, the risk is on the contractor that the homeowner will refuse to sign a writing ratifying that the work was authorized and the contractor's claim for payment will, therefore, be unenforceable under the act, at least in the absence of proof of bad faith.
The dissent contends that the trial court never made a finding that the plaintiff's failure to comply with the act deprived the defendant of the opportunity to make informed decisions as to whether he should continue to accept goods and services from the defendant. There is no dispute, however, that the plaintiff failed to comply with the act. Nor is there any dispute that the core purpose of the act is to enable homeowners to make such informed decisions. See id. Accordingly, in the absence of proof of bad faith, the only possible conclusion is that the plaintiff's conduct deprived the defendant of his rights under the act.
To the extent that the trial court concluded that the defendant acted in bad faith when he continued to allow the plaintiff to perform work after August 4, 2008, at which point he had decided that he would make no further payments, we disagree. The trial court made no factual findings as to what items of work the plaintiff performed after that date, nor did it make any findings as to when the plaintiff billed the defendant for those items of work, and the plaintiff has cited no evidence that could provide the basis for such findings. Thus, there is simply no way of knowing whether the defendant believed in good faith that he already had paid the plaintiff for the small amount of work that the plaintiff performed after August 4, 2008, and it clearly would not be in bad faith for the defendant to allow the plaintiff to finish work for which the defendant believed that he had already paid. Moreover, it is clear that the defendant's September 3, 2008 e-mail indicating that he was prepared to pay for extra items of work if the plaintiff could establish that the amounts he claimed were correct did not induce the plaintiff to perform substantial additional work, because, according to the mechanic's lien that the plaintiff prepared and placed on the property, "[t]he last day [that] substantial services were performed" on the project was August 29, 2008. Because the trial court did not find, and the evidence would not support a finding, that the defendant received goods and services from the plaintiff with the intent of invoking § 20–429 to avoid paying for them, and because the trial court found that the plaintiff's failure to comply with the requirements of § 20–429(a) gave rise to a genuine dispute about the value of those goods and services, we conclude that the defendant did not act in bad faith when he invoked that statute as a bar to the plaintiff's enforcement action. Accordingly, we conclude that the Appellate Court improperly affirmed the judgment of the trial court that the plaintiff was entitled to recover damages from the defendant notwithstanding the fact that the agreement between the parties did not comply with § 20–429.
As we have indicated, the trial court found that the work was "largely complete" as of August 4, 2008, and 98 percent complete as of August 25, 2008. It is clear, therefore, that the plaintiff could not have performed a substantial amount of work after August 4, 2008. Indeed, the trial court expressly found that there was little risk to the defendant if he refused to make any further payments to the plaintiff after August 4, 2008, because the project was largely complete at that time and the defendant could easily hire another contractor to finish the work, which is what actually happened.
We also note that the defendant included these items of extra work in his calculations showing that the total cost of the project was $963,923, while the defendant's payments totaled $985,000. Thus, when the defendant stated that he was prepared to accept these extras, but reserved the right to review whether the amounts were correct, he was essentially stating the he was reserving the right to recoup payments that he had already made to the plaintiff. Thus, it is difficult to understand how the plaintiff reasonably could have believed on the basis of this statement that the defendant was prepared to pay him additional amounts if he continued to work on the project.
The judgment of the Appellate Court is reversed in part and the case is remanded to that court with direction to remand the case to the trial court with direction to render judgment for the defendant on the first and second counts of the plaintiff's complaint; the plaintiff's appeal from the Appellate Court affirming the trial court's denial of his request for attorney's fees is dismissed as moot.In this opinion PALMER, EVELEIGH, McDONALD and VERTEFEUILLE, Js., concurred.
ROBINSON, J., with whom ESPINOSA, J., joins, dissenting.
I respectfully disagree with the majority's decision in the first certified appeal, SC 19560, to reverse the judgment of the Appellate Court affirming the trial court's judgment in favor of the plaintiff contractor, James E. Burns, Jr., on the ground that the conduct of the defendant homeowner, David Y. Adler, did not fall within the bad faith exception to the statutory bar on the enforcement of contracts that do not comply with the requirements set forth in General Statutes (Rev. to 2007) § 20–429. See Burns v. Adler , 158 Conn.App. 766, 806, 120 A.3d 555 (2015). Specifically, I disagree with the majority's conclusions, set forth in part II of its opinion, that: (1) the bad faith exception is applicable only when a homeowner enters into an agreement with, or accepts services from, a home improvement contractor knowing that, under the Home Improvement Act (act), General Statutes § 20–418 et seq., the defective contract provides them with an " ‘escape hatch’ " from payment; and (2) the defendant's repudiation of the contract was the product of a good faith dispute over the goods and services provided by the plaintiff. Instead, I would hold that the bad faith exception, as articulated in Habetz v. Condon , 224 Conn. 231, 237–40, 618 A.2d 501 (1992), applies when a homeowner has acted in a manner inconsistent with the duty of good faith and fair dealing in the course of his relationship with a contractor, as the trial court properly found to have occurred in the present case. As a result of this conclusion, I would reach the second certified appeal, SC 19561, and conclude that the Appellate Court properly determined that the plaintiff was not entitled to an award of attorney's fees for the foreclosure of his mechanic's lien pursuant to General Statutes § 52–249(a). Burns v. Adler , supra, at 808, 120 A.3d 555. Because I would affirm the judgment of the Appellate Court, I respectfully dissent.
I note that Amie R. Weitzman and the Salisbury Bank and Trust Company were also named as defendants in the present case. See footnote 1 of the majority opinion. In the interest of simplicity, I refer to Adler as the defendant in this opinion.
General Statutes (Rev. to 2007) § 20–429 provides in relevant part: "(a) No home improvement contract shall be valid or enforceable against an owner unless it: (1) Is in writing, (2) is signed by the owner and the contractor, (3) contains the entire agreement between the owner and the contractor, (4) contains the date of the transaction, (5) contains the name and address of the contractor and the contractor's registration number, (6) contains a notice of the owner's cancellation rights in accordance with the provisions of chapter 740, (7) contains a starting date and completion date, and (8) is entered into by a registered salesman or registered contractor. Each change in the terms and conditions of a contract shall be in writing and shall be signed by the owner and contractor, except that the [Commissioner of Consumer Protection] may, by regulation, dispense with the necessity for complying with the requirement that each change in a home improvement contract shall be in writing and signed by the owner and contractor. ...
"(f) Nothing in this section shall preclude a contractor who has complied with subdivisions (1), (2), (6), (7) and (8) of subsection (a) of this section from the recovery of payment for work performed based on the reasonable value of services which were requested by the owner, provided the court determines that it would be inequitable to deny such recovery."
I note that § 20–429 was amended subsequent to the events underlying the present case. See, e.g., Public Acts 2009, No. 09–18, § 2; see also footnote 2 of the majority opinion. All references to § 20–429 in this opinion are to the 2007 revision of the statute.
I agree with part I of the majority opinion, which declines to reach, on preservation grounds, the defendant's claim that the 1993 enactment of § 20–429(f) abrogated the judicially created bad faith exception.
In contrast to the majority; see footnote 7 of the majority opinion; my resolution of the first certified appeal renders it necessary for me to reach the merits of the second certified appeal, which is limited to the following question: "Did the Appellate Court correctly affirm the judgment of the trial court denying the plaintiff's request for attorney's fees pursuant to General Statutes § 52–249(a) ?" Burns v. Adler, 319 Conn. 931, 932, 125 A.3d 206 (2015).
General Statutes § 52–249(a) provides: "The plaintiff in any action of foreclosure of a mortgage or lien, upon obtaining judgment of foreclosure, when there has been a hearing as to the form of judgment or the limitation of time for redemption, shall be allowed the same costs, including a reasonable attorney's fee, as if there had been a hearing on an issue of fact. The same costs and fees shall be recoverable as part of the judgment in any action upon a bond which has been substituted for a mechanic's lien."
I
I begin by noting my agreement with the background facts and procedural history set forth in the majority opinion. I also agree in limited part with the majority's statement of the standard of review. Specifically, I agree that the issue of whether the plaintiff can invoke the bad faith exception in this case presents a question of law over which our review is plenary, albeit only to the extent that the defendant's claims on appeal require this court to define the contours of that doctrine. See, e.g., Thompson v. Orcutt , 257 Conn. 301, 308–309, 777 A.2d 670 (2001) (application of equitable doctrine of unclean hands is committed to trial court discretion, but interpretation of that doctrine is question of law subject to plenary review); see also Walpole Woodworkers, Inc. v. Manning , 307 Conn. 582, 588, 57 A.3d 730 (2012) ("[t]he determination of whether an equitable doctrine applies in a particular case is a question of law subject to plenary review"). With respect, however, to the application of the bad faith exception, I disagree with the majority's statement of the standard of review to the extent it conflicts with the well established principle that "[w]hether a party has acted in bad faith is a question of fact, subject to review only for clear error." Renaissance Management Co. v. Connecticut Housing Finance Authority , 281 Conn. 227, 240, 915 A.2d 290 (2007) ; see MacMillan v. Higgins , 76 Conn.App. 261, 271–73, 822 A.2d 246, cert. denied, 264 Conn. 907, 826 A.2d 177 (2003) ; see also Habetz v. Condon , supra, 224 Conn. at 237 n.11, 618 A.2d 501. This reflects the fact that a finding of bad faith turns on subordinate considerations such as the relevant actor's motives and intent, which often may only be inferred from circumstantial evidence. See, e.g., Wadia Enterprises, Inc. v. Hirschfeld , 224 Conn. 240, 250, 618 A.2d 506 (1992).A
I believe that the majority improperly characterizes the entirety of the defendant's claim in the first certified appeal as presenting a mixed question of fact and law subject to plenary review because it calls for us to consider whether the facts, which are undisputed for the purposes of the first certified appeal, "meet the legal standard of bad faith ...." In my view, this statement of the standard of review is overbroad insofar as a finding of bad faith often depends on those inferences reasonably drawn from otherwise undisputed historical facts with respect to matters such as an actor's motives and intent. See, e.g., Wadia Enterprises, Inc. v. Hirschfeld, supra, 224 Conn. at 250, 618 A.2d 506. Put differently, to the extent that the trial court utilized the proper definition of the bad faith exception, I would adhere to existing precedent that would review the trial court's application of that doctrine under the clearly erroneous standard. See, e.g., Walpole Woodworkers, Inc. v. Manning, 126 Conn.App. 94, 99–102, 11 A.3d 165 (2011), aff'd, 307 Conn. 582, 57 A.3d 730 (2012) ; MacMillan v. Higgins, supra, 76 Conn.App. at 271–73, 822 A.2d 246.
I begin with the majority's analysis of the defendant's claims on appeal, which, notwithstanding footnote 16 of the majority opinion, may be misconstrued as embracing an unduly narrow approach to the bad faith exception. In particular, I wish to emphasize my disagreement with the defendant's position, founded largely on this court's decision in Wadia Enterprises, Inc. v. Hirschfeld , supra, 224 Conn. at 240, 618 A.2d 506, that the bad faith exception is applicable only to cases wherein the homeowner entered into an agreement or accepted services from a contractor knowing that the act gave the homeowner an "escape hatch" from payment because the contract was defective under § 20–429(a). I do not read our articulation of the bad faith exception in Habetz as so narrowly circumscribed.
At the outset, I briefly discuss the statutory scheme governing home improvement contract disputes and the history of the bad faith exception in Habetz . " Section 20–429(a) provides that no home improvement contract shall be valid or enforceable against a homeowner unless it contains certain enumerated criteria. The aim of the [act] is to promote understanding on the part of consumers with respect to the terms of home improvement contracts and their right to cancel such contracts so as to allow them to make informed decisions when purchasing home improvement services....
"In Barrett Builders v. Miller , 215 Conn. 316, 328, 576 A.2d 455 (1990), this court held that a contractor who did not comply with the written contract requirement of the act could not recover in restitution. This result was subsequently modified by one common-law and one statutory exception. First, in Habetz v. Condon , supra, 224 Conn. at 240, 618 A.2d 501, this court held that contractors may recover in restitution despite noncompliance with § 20–429(a), when homeowners invoke the protections of the act in bad faith. Subsequently, the legislature enacted No. 93–215, § 1, of the 1993 Public Acts, now codified at § 20–429(f), which allows recovery of payment for work performed based on the reasonable value of services which were requested by the owner for partial noncompliance with certain requirements of the act when the court determines that it would be inequitable to deny such recovery. Thus, both Habetz and § 20–429(f) provide for recovery in quantum meruit despite a contractor's noncompliance with certain statutory requirements." (Citation omitted; footnotes omitted; internal quotation marks omitted.) Walpole Woodworkers, Inc. v. Manning , supra, 307 Conn. at 586–87, 57 A.3d 730 ; see also footnote 2 of this dissenting opinion.
In formally adopting the bad faith exception, this court emphasized in Habetz that its "central element ... 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 encourage him to act thusly. Proof of bad faith therefore serves to preclude the homeowner from hiding behind the protection of the act. ... [W]e need look no further than the maxim that no person may take advantage of his own wrong. ... This deeply rooted principle has been applied in many diverse classes of cases by both law and equity courts and has frequently been employed to bar what would otherwise be inequitable reliance on statutes." (Citations omitted; footnote omitted.) Habetz v. Condon , supra, 224 Conn. at 237–38, 618 A.2d 501. The court emphasized that the "bad faith exception is designed to prevent a party's disavowal of previous conduct if such repudiation would not be responsive to demands of justice and good conscience. The law does not permit the exercise of a right to repudiate a contract when the exercise of such a right in bad faith would work an injustice. Every contract carries an implied covenant of good faith and fair dealing requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement. ... To demand this implicit component but do nothing about its absence would be at best incongruous, and, more accurately, grossly unfair. Thus, a contractor, otherwise precluded from recovering moneys owed for his work because of a violation of the act, must be permitted to assert that the homeowner's bad faith precludes him from safely repudiating the contract and hiding behind the act in order to bar the contractor's recovery." (Citations omitted.) Id., at 238, 618 A.2d 501. Acknowledging that this conclusion potentially "frustrate[s]" the purpose of the act, the court emphasized that the bad faith doctrine is "founded on public policy and contain[s] a strong strain of estoppel," and is intended to "prevent a misbehaving party from invoking the benefits of a statute which is absolute on its face. To deny the contractor any opportunity of recovery after he has completed his end of the bargain if he has persuaded the trier of fact that a statutory remedy is being invoked by a homeowner in bad faith would be to countenance a gross injustice and indeed to encourage its perpetuation and to assure its success." Id., at 239–40, 618 A.2d 501.
The bad faith exception had its genesis in dictum in Barrett Builders v. Miller, supra, 215 Conn. at 328–29, 576 A.2d 455, and its companion cases, A. Secondino & Son, Inc. v. LoRicco, 215 Conn. 336, 340, 576 A.2d 464 (1990), Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 350, 576 A.2d 149 (1990), and Sidney v. DeVries, 215 Conn. 350, 354, 575 A.2d 228 (1990) (per curiam).
The court utilized "the standard definition of bad faith," which "in general implies both ‘actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one's rights or duties, but by some interested or sinister motive.’ Black's Law Dictionary (5th Ed. 1979). Bad faith means more than mere negligence; it involves a dishonest purpose." Habetz v. Condon, supra, 224 Conn. at 236–37, 618 A.2d 501.
Applying the bad faith exception in Habetz , this court upheld the judgment of the trial court with respect to a contractor's counterclaim for unpaid sums, despite the fact that the contract violated § 20–429(a) by lacking a notice of cancellation provision—a defect that the trial court had deemed "minor." (Internal quotation marks omitted.) Id., at 233–35, 618 A.2d 501. Although this court did not engage in a detailed discussion of what had constituted bad faith on the part of the homeowner, it observed that the homeowner did not pay for numerous requested extras memorialized in change orders during the construction of an addition to his home, along with a portion of the balance remaining on the original contract, and that the homeowner had refused "repeated requests" by the contractor to sign the change orders with respect to the extras. Id., at 233–34, 618 A.2d 501.
It appears that this court did not engage in a detailed discussion of the facts giving rise to the bad faith finding in Habetz because "any claims regarding the trial court's finding of bad faith on the part of the homeowner have been waived." Habetz v. Condon, supra, 224 Conn. at 237 n.11, 618 A.2d 501.
Rather than confine the bad faith exception to a limited array of homeowner conduct involving the knowing acceptance of services under a noncompliant agreement, I believe that case law from this court and the Appellate Court suggests that, consistent with its equitable and fact dependent nature, the bad faith exception is applicable to a wide variety of homeowner misconduct. First, in Habetz itself, the court suggested that the bad faith exception may have broad applicability. See id., at 236 n.10, 618 A.2d 501 (interpreting Barrett Builders dictum "to mean that a homeowner cannot in bad faith invoke the contractor's statutory violation as a basis for his own repudiation of the contract," but leaving "for another day" question of "[w]hether proof of bad faith in some other manner on the part of the homeowner will also allow a contractor who has failed to comply with the requirements of the act to recover"). Indeed, Habetz focuses on the implied covenant of good faith and fair dealing; id., at 238, 618 A.2d 501 ; which extends through the life of the contract. See Geysen v. Securitas Security Services USA, Inc. , 322 Conn. 385, 405–406, 142 A.3d 227 (2016). Consistent with the covenant, Habetz also focuses on the inequity of the homeowner's receipt of services without payment once the contractor has completed its "end of the bargain"—also an event that naturally extends beyond formation or acceptance. Habetz v. Condon , supra, 224 Conn. at 240, 618 A.2d 501 ; see also Rizzo Pool Co. v. Del Grosso , 232 Conn. 666, 681–82 and n.24, 657 A.2d 1087 (1995) (because bad faith exception only permits restitution, contractor who had not yet begun construction could not recover liquidated damages, even if homeowner acted in bad faith to repudiate defective contract). Thus, I agree with the Appellate Court's conclusion in the present case that a homeowner might well have "invoked the act in bad faith if he did so to cover up and achieve the illicit objectives of other dishonest dealings between himself and the contractor, regardless of whether he knew of the act and its requirements at the time of those other dishonest dealings, or intended at the outset of those dealings to invoke the act to achieve his dishonest purpose." Burns v. Adler , supra, 158 Conn.App. at 799, 120 A.3d 555.
I disagree with the defendant's position that Wadia Enterprises, Inc. v. Hirschfeld , supra, 224 Conn. at 240, 618 A.2d 506, a companion case to Habetz , stands for the proposition that the bad faith exception is only applicable when the homeowner accepts services with knowledge of an "escape hatch" under the act. Consistent with the fact sensitive nature of the bad faith inquiry, I would confine Wadia Enterprises, Inc. , to the facts and claims before the court in that case, which held that a contractor's claim of bad faith could not survive summary judgment, despite the fact that the underlying defective contract was prepared by the homeowners' New York based attorney and architect, and the homeowners: (1) had certified payments while retaining 5 percent and refused to make the final payment in reliance on the terms of the contract that they sought to repudiate; (2) forced the contractor to "extend credit for change orders under provisions of the contract they [sought] to repudiate"; and (3) acted to "[enforce] the delay damages clause and alleged breach of specific parts of the very contract they [sought] to repudiate." Id., at 248, 618 A.2d 506. This court held that "[n]one of these facts ... indicates a dishonest purpose" sufficient to justify invocation of the bad faith exception, observing that the "fact that the [homeowners] had their architect and New York attorneys draft the contract does not in and of itself indicate bad faith on the part of the defendants. There is no allegation or proof that the attorneys intentionally omitted this requirement in order to have an escape hatch. At most, the New York attorneys were negligent in failing to consult Connecticut law and to include the required clause in the contract. An honest mistake does not rise to the level of bad faith." Id., at 248–49, 618 A.2d 506. The court held that summary judgment was appropriate because these facts were not sufficient to sustain the necessary findings with respect to "motive, intent and good faith ...." Id., at 250, 618 A.2d 506.
Our Appellate Court has followed Wadia Enterprises, Inc. , in rejecting claims of bad faith in cases wherein—at least in my view—the homeowners or their agents engaged in conduct that should place them beyond the protections of the act—at least by estoppel—such as actively participating in the drafting of the defective contract. See Lucien v. McCormick Construction, LLC , 122 Conn.App. 295, 302–303, 998 A.2d 250 2010) (reversing finding of bad faith, despite "eleventh hour" invocation of act to avoid contract, which homeowner did not sign prior to work starting, because there was no evidence that homeowner knew of violations or that her attorney "purposely drafted the contract in violation of the act in order to later avoid her obligation to pay"); id., at 302 n.5, 998 A.2d 250 (noting that homeowner's attorney was based out of New York and would be charged with knowledge of act if admitted in Connecticut); MacMillan v. Higgins , supra, 76 Conn.App. at 272, 822 A.2d 246 ("the fact that the [homeowners], through their agent, [a Connecticut attorney], drafted the contract does not mandate a finding of bad faith"); see also Dinnis v. Roberts , 35 Conn.App. 253, 256, 259, 644 A.2d 971 (recognizing footnote in Habetz , but declining to extend bad faith exception in upholding summary judgment for homeowners, despite contractor's claim that they acted in bad faith by terminating relationship when work was 85 percent complete, hiring engineer to inspect work without providing notice or expressing dissatisfaction, and using harassing litigation tactics), cert. denied, 231 Conn. 924, 648 A.2d 162 (1994).
I believe that Wadia Enterprises, Inc. , was wrongly decided, even beyond its apparent suggestion that the homeowner or their representative must harbor intent to draft a defective contract as an escape hatch in order for the bad faith exception to apply. Wadia Enterprises, Inc. , is inconsistent with both the bad faith exception and the purpose of the act, which is to protect consumers from unscrupulous contractors employing high pressure sales tactics and performing substandard work. Habetz v. Condon , supra, 224 Conn. at 239, 618 A.2d 501. Thus, I hardly see how it is "responsive to demands of justice and good conscience"; id., at 238, 618 A.2d 501 ; to allow a homeowner to repudiate a contract drafted by the homeowner, or especially the homeowner's professional representative such as an attorney or architect, based on technical defects in the contract. Allowing act based repudiation in such a case strikes me as just the kind of "inequitable reliance on statutes" contemplated by the bad faith exception. Id. Given the "strong" estoppel basis of the bad faith doctrine; id., at 240, 618 A.2d 501 ; allowing a repudiation of a defective contract drafted by a homeowner's attorney or architect does nothing to further the legislative judgment to "impose the burden of compliance with the statute on the professional, the contractor, rather than on the nonprofessional, the consumer." Barrett Builders v. Miller , supra, 215 Conn. at 326, 576 A.2d 455 ; see also Wright Bros. Builders, Inc. v. Dowling , 247 Conn. 218, 231, 720 A.2d 235 (1998) ("The [act] is a remedial statute that was enacted for the purpose of providing the public with a form of consumer protection against unscrupulous home improvement contractors. ... The aim of the statute is to promote understanding on the part of consumers with respect to the terms of home improvement contracts and their right to cancel such contracts so as to allow them to make informed decisions when purchasing home improvement services." [Citation omitted.] ).I emphasize however, that even if I did not conclude that this court should overrule Wadia Enterprises, Inc. , because it was wrongly decided, I nevertheless do not read it as requiring intent at formation or acceptance to use the defective contract as an escape hatch to establish bad faith in all cases. Instead, I believe that Wadia Enterprises, Inc. , held only that the contractor failed to adduce sufficient evidence to prove that specific theory of bad faith in that particular case. To hold otherwise would be to read Wadia Enterprises, Inc. , as overruling—without saying so—the broader and equitable conception of bad faith articulated in its companion case, Habetz , which expressly left to "another day" other iterations of bad faith. Habetz v. Condon , supra, 224 Conn. at 236 n.10, 618 A.2d 501. Rather, I believe that the intensely fact sensitive bad faith exception may encompass a broad variety of unscrupulous homeowner conduct. I find instructive Walpole Woodworkers, Inc. v. Manning , 126 Conn.App. 94, 101–102, 11 A.3d 165 (2011), aff'd, 307 Conn. 582, 57 A.3d 730 (2012), in which the Appellate Court upheld a finding of bad faith in a dispute arising from the construction of a fence in a case having nothing to do with the formation of the contract. The court held that an arbitrary refusal by the homeowner to pay was enough to support a finding of bad faith, given the fact finder's rejection of the homeowner's claim that the contractor's workmanship was defective. Id., at 99–100, 11 A.3d 165. The Appellate Court observed specifically that, after the construction of a fence was "substantially completed," the homeowner had "delayed payment of the balance due [for more than six months] and, when pressed, revealed the existence of his small dog and his newly voiced concern about its escape. The defendant delayed the plaintiff's installation of a free fix for another six months because the parties could not agree on a date for the fix to be installed and could not agree that the balance would be paid upon completion. After the fix was installed, the defendant continued to refuse to pay the balance due, even though his only real concern about the work was addressed by the fix. Moreover, he testified at trial that the fence work was completed; he simply decided he would not pay the balance due on the contract." Id., at 101–102, 11 A.3d 165.
The Appellate Court's decision in Kronberg Bros., Inc. v. Steele , 72 Conn.App. 53, 804 A.2d 239, cert. denied, 262 Conn. 912, 810 A.2d 277 (2002), similarly suggests that the bad faith inquiry is not limited to events surrounding the formation of the contract. Although the Appellate Court disagreed with the contractor's claim that the trial court had "improperly rejected its claim of bad faith by the [homeowners] on the basis of its finding that none of the acts alleged was committed prior to the execution of the contract"; id., at 62, 804 A.2d 239 ; the court emphasized that, even with no evidence that the homeowners had contributed to the defect in the contract, the trial court had "clearly considered the [homeowners'] acts before and after the execution of the contract when it rejected the [contractor's] bad faith claim," in concluding that the homeowners' actions alleged to constitute bad faith "arose out of the deteriorating relationship between the parties and can hardly be held to be actions in bad faith when the [homeowners] were confronted with what must have been an exasperating ordeal. The [contractor] overlooks the evidence in this trial, which hardly depicts a neat, orderly and efficient project proceeding on time and without delay." (Emphasis added; internal quotation marks omitted.) Id., at 63, 804 A.2d 239.
Accordingly, I conclude that the Appellate Court properly determined that the bad faith exception is not limited to claims that the homeowner accepted services from the contractor intending to rely on a known defect in the contract to avoid payment. See Burns v. Adler , supra, 158 Conn.App. at 801, 120 A.3d 555. I agree with the Appellate Court that "[a ]ny invocation of the act to avoid a contractual obligation to the contractor for a dishonest or sinister purpose can serve as a proper basis for seeking restitution under the bad faith exception, and thereby preventing an injustice." (Emphasis added.) Id.
Given my conclusion that the bad faith exception is not limited to claims arising from formation or acceptance by the homeowner with knowledge of the defect, I similarly disagree with the defendant's corollary argument that the bad faith exception carries with it an element of loss causation. The loss that the bad faith exception seeks to remedy is caused by operation of the act's statutory preclusion on even quantum meruit recovery in cases of defective home improvement contracts. See Habetz v. Condon, supra, 224 Conn. at 239, 618 A.2d 501. In my view, the court looks at the totality of the circumstances to determine whether the homeowner's hands are clean in invoking the substantial protections of the act, as compared to the more limited inquiry, urged by the defendant, of whether the homeowner actively used the act as a sword in an independently tortious scheme to defraud the contractor. See id., at 239–40, 618 A.2d 501 (noting that bad faith exception is judicial creation doctrinally distinct from act, and embodies "the general principle ... that an individual should not profit from his own deceptive and unscrupulous conduct").
B
Relying heavily on evidence of the plaintiff's disorganized bookkeeping practices as part and parcel of his failure to comply with the act's documentation requirements, the majority further concludes that the defendant's conduct after he made a final payment on August 4, 2008, was not in bad faith because the trial court "made no finding, and the plaintiff has cited no evidence that would support a finding, that the defendant knew or should have known that the plaintiff's calculations of the amounts owed to him were correct, or even close to correct." The majority posits that "it is implicit in the trial court's factual findings that the plaintiff's noncompliance with the act gave rise to a genuine, good faith disagreement between the parties as to whether the defendant owed the plaintiff the amounts that the plaintiff claimed. Moreover, even if there were no genuine dispute about the value of the goods and services that the plaintiff actually provided, the plaintiff's failure to comply with the act deprived the defendant of the opportunity to make an informed decision as to whether he should continue to accept goods and services from the plaintiff during the course of the renovation project ...." The majority further emphasizes that the trial court "made no factual findings as to what items of work the plaintiff performed after [August 4, 2008], nor did it make any findings as to when the plaintiff billed the defendant for those items of work, and the plaintiff has cited no evidence that could provide the basis for such findings. Thus, there is simply no way of knowing whether the defendant believed in good faith that he already had paid the plaintiff for the small amount of work that the plaintiff performed after August 4, 2008, and it clearly would not be in bad faith for the defendant to allow the plaintiff to finish work for which the defendant believed that he had already paid." (Footnote omitted.) I respectfully disagree with these conclusions because I believe that the majority's reliance on certain "implicit" findings represents an intrusion into the trial court's explicit factual findings.
I begin by noting that the majority's recitation of the governing principles is generally consistent with this court's statement of the law in Wadia Enterprises, Inc. v. Hirschfeld , supra, 224 Conn. at 249, 618 A.2d 506 —with which I agree in the abstract—that the homeowners' act of "initially enforcing the contract and subsequently asserting the contract's invalidity as a defense to a suit by the contractor ... does not, by itself, present a claim of bad faith. There is nothing dishonest or sinister about homeowners proceeding on the assumption that there is a valid contract, enforcing its provisions, and later, in defense to a suit by the contractor, upon learning that the contract is invalid, then exercising their right to repudiate it." Indeed, I wholly agree with the majority's statement that the bad faith exception does not apply when the homeowner "repudiates the contract because the contractor's noncompliance with the act gave rise to a genuine, good faith dispute about the scope of the work or the contract price." See Taylor v. King , 121 Conn.App. 105, 125–27, 994 A.2d 330 (2010) (upholding trial court's rejection of contractor's bad faith claim because there was no evidence that contractor repeatedly and unsuccessfully asked homeowner to sign contract, there were multiple violations of § 20–429 [a] beyond lack of signed contract, and "the evidence in this case does not indicate that the plaintiff merely was seeking to avoid paying for the defendant's work but, rather, that the defendant's work was substandard and reduced the anticipated value of the house by approximately $100,000"); New England Custom Concrete, LLC v. Car bone , 102 Conn.App. 652, 661, 927 A.2d 333 (2007) (noting that trial court made no finding of fact with respect to contractor's bad faith claim and calling it "doubtful" that finding could be sustained when "[a]t best, the record demonstrates vigorous disagreement about the quality of the plaintiff's workmanship in performing the contract").
This statement of the law does not, however, alter the fundamentally factual nature of the bad faith inquiry; Renaissance Management Co. v. Connecticut Housing Finance Authority , supra, 281 Conn. at 240, 915 A.2d 290 ; and the deference that the appellate courts owe the finder of fact under the applicable clearly erroneous standard of review, even when we disagree with the finding. See MacMillan v. Higgins , supra, 76 Conn.App. at 271–72, 822 A.2d 246 (deferring to attorney trial referee's finding that homeowners had not acted in bad faith, despite fact that they presented contractor with new contract one month after work had started, and that contract had been drafted by homeowner's attorney who was familiar with act, because referee could have credited attorney's testimony that original defective contract was merely draft). The "question before this court is not whether, if faced with the same set of facts, we would reach the same finding as did the [fact finder], but whether [his] finding of an absence of bad faith was clearly erroneous." Id., at 271, 822 A.2d 246.
Turning to the facts in the present case, I agree with the Appellate Court's appropriately deferential treatment of the inferences drawn by the trial court in its rejection of the defendant's claim that "the alleged bad faith in this case involved nothing more than a homeowner's refusal to pay disputed charges arising from a contract dispute ...." Burns v. Adler , supra, 158 Conn.App. at 803, 120 A.3d 555. In particular, the trial court "found, and the record confirms, that the renovation project on the defendant's home was largely completed by the time the defendant decided that he had paid the plaintiff enough for the work done on his home and refused to pay the plaintiff any more. The [trial] court found that the defendant's refusal to pay the plaintiff was motivated by the fact that the defendant had already received the bulk of the benefits he expected from his relationship with the plaintiff, and thus that there was little risk to him if he refused to pay. The [trial] court found that although the defendant had agreed to a time and materials contract, he unilaterally and arbitrarily selected a price that he was willing to pay for the project without a sound factual basis. He then employed a carrot and stick approach to entice the plaintiff to continue to do work on the project, suggesting that he might be convinced to pay the plaintiff more, even though he never actually intended to do so. The [trial] court found that the defendant's conduct in asking the plaintiff to continue working on the project, knowing that he would not be paying the plaintiff for that work, constituted ... neglect and/or a refusal to fulfill [his] contractual obligations to the plaintiff. The [trial] court concluded, based upon its observation of the conduct, demeanor and attitude of the witnesses—all factors that trial courts are particularly well-suited to assess—that [the defendant's] decision to make no further payments after August 4, 2008, was not prompted by an honest mistake as to his rights or duties.... [Rather], this decision was the product of [the defendant's] desire to use the plaintiff to finish the project at no further expense to [the defendant, which] was faster, more efficient and vastly more economical than concluding the relationship with the plaintiff and retaining a new contractor. Thus, it was a course of conduct that was the product of [himself] choosing to serve his own financial interests at the plaintiff's expense. The [trial] court concluded that the defendant's inducement of the plaintiff to continue working on his home on the pretense that he might pay him more, all the while not intending to do so, and his subsequent invocation of the act was made in bad faith." (Footnote added; internal quotation marks omitted.) Id., at 804–805, 120 A.3d 555. Of particular import in my view is the trial court's factual finding that the defendant knew that the plaintiff's business was in grave peril because of unpaid subcontractors and suppliers in September, 2008, when he had expressed his intention not to make further payments, while exhorting the plaintiff to finish the punch list. I also find significant that the trial court rejected, as a factual matter, the defendant's claim that the "charges beyond the amount he chose to pay were unwarranted," given the defendant's expressed need for speed in completion, and the flurry of parties giving the plaintiff orders and incurring costs at the defendant's disinterested behest throughout the project.
The trial court found specifically that the parties had entered into a time and materials contract, under which "the defendants would be charged $45 per hour for work done by the plaintiff and any crew members working under him," and that "the defendants would be responsible for any additional expenses on the project, including dumpsters and materials needed for the project." The trial court then found that the "plaintiff presented credible evidence, which the court does credit, indicating that the value of the plaintiff's work on the project, the value of the work of the crew members and subcontractors who worked under his supervision, and the cost of materials and associated expenses exceeds, not only the $985,000 paid by the defendants, but also the $214,039 in damages claimed in the complaint." The trial court reasonably could have credited the plaintiff's testimony that the constantly shifting nature of the project, with no final set of plans furnished to him by the defendant or his architect, rendered it impossible to create a fixed price contract. This also was consistent with the defendant's expressed demand for speed in completing the project.
I disagree in particular with the majority's conclusion that, "even if there were no genuine dispute about the value of the goods and services that the plaintiff actually provided, the plaintiff's failure to comply with the act deprived the defendant of the opportunity to make an informed decision as to whether he should continue to accept goods and services from the plaintiff during the course of the renovation project ...." First, the trial court never made a finding to this effect. Second, beyond the trial court's observation of the parties' demeanor and credibility during the proceedings, it is reasonable to infer that the trial court considered the unique circumstances of this project, under which the plaintiff had been working under extreme time pressure from the defendant to finish the job quickly, while taking orders from numerous individuals associated with the defendant, including his wife, her assistant, and their architect—despite "mushrooming" costs. In my view, this course of dealing evinced the defendant's implied waiver of his opportunity to make genuinely informed decisions. In my view, the majority's assignment of the risk of noncompliance with the act to the plaintiff under these factual circumstances is completely incompatible with the equitable nature of the bad faith exception.
I agree with the Appellate Court that the trial court reasonably could have inferred that the defendant's conduct constituted bad faith, insofar as it was a "self-serving attempt by the homeowner to receive the benefit of a bargain for which he had freely contracted without fulfilling his own duty to pay for that benefit. He tried to avoid his obligation by hiding behind the protection of the act, which was not established for that purpose. The bad faith exception to the act has been recognized and enforced to discourage this very conduct." Burns v. Adler , supra, 158 Conn.App. at 805, 120 A.3d 555. The majority's contrary reading of the factual record would have been logical and reasonable in the first instance if the majority had been tasked to serve as the fact finder. My view, however, is that the interpretation of the facts by the fact finder in this case does not lack "evidence in the record to support it," and I am not "left with the definite and firm conviction that a mistake has been committed." (Internal quotation marks omitted.) Naples v. Keystone Building & Development Corp. , 295 Conn. 214, 225, 990 A.2d 326 (2010). I, therefore, agree with the Appellate Court that a conclusion to the contrary would be an impermissible substitution of our judgment for that of the trial court. Burns v. Adler , supra, 158 Conn.App. at 805, 120 A.3d 555.
II
I next address the plaintiff's certified appeal from the judgment of the Appellate Court affirming the trial court's denial of his motion for attorney's fees upon the foreclosure of a mechanic's lien pursuant to § 52–249(a). See id., at 808, 120 A.3d 555 ; see footnote 4 of this dissenting opinion. The Appellate Court's opinion aptly sets forth the following additional relevant facts and procedural history. "[P]rior to the commencement of trial in this action, the parties agreed that trial on the first count of the plaintiff's complaint, the count seeking foreclosure of his mechanic's lien on the defendant's property, would be bifurcated from the trial on his breach of contract and unjust enrichment counts. The court acquiesced and the case proceeded accordingly. After the court issued its memorandum of decision ruling in favor of the plaintiff under the bad faith exception to the act, the plaintiff moved for a supplemental judgment seeking foreclosure of the mechanic's lien. The parties thereafter stipulated that there would not be a hearing on the terms of the judgment of foreclosure of the mechanic's lien. Accordingly, the stipulation was submitted to, and approved by, the court without a hearing. The trial court concluded, based upon the plain language of § 52–249(a), that the condition precedent to the awarding of attorney's fees, namely, a hearing, had not been satisfied. The court thus denied the plaintiff's request for attorney's fees." (Footnotes added.) Burns v. Adler , supra, 158 Conn.App. at 807–808, 120 A.3d 555. The Appellate Court agreed with the trial court's analysis. Id.,at 808, 120 A.3d 555.
Because both parties had sought attorney's fees in their pleadings, the trial court agreed, for reasons of judicial economy, with their recommendation to bifurcate that issue, and conduct a subsequent evidentiary hearing only upon the court making an initial determination that a fee award is warranted. The trial court then agreed with the parties' joint recommendation, as stated by counsel for the plaintiff, to bifurcate the count of the complaint seeking foreclosure of the mechanic's lien on issues such as the value of the property and setting law days, if there were a finding that a debt is owed.
The parties stipulated that: (1) a judgment may enter foreclosing the mechanic's lien on the defendant's home; (2) the debt due and payable pursuant to the mechanic's lien was $214,039.09, "the amount previously found by the [trial court] to be due"; (3) the fair market value of the defendant's improved real property subject to the lien was not less than $500,000; (4) a judgment of strict foreclosure was appropriate, with law days to commence on August 14, 2012; (5) the plaintiff was entitled to a title search fee of $225, but not an appraisal fee; and (6) "[w]hether [the] plaintiff is entitled to an award of attorney's fees on the [foreclosure count] of the revised complaint is subject to dispute between the parties ...."
With respect to the attorney's fees issue relative to the foreclosure count, the parties "agreed, subject to the court's approval, to submit ... simultaneous briefs on this issue ...." The parties then stipulated that "the plaintiff has incurred reasonable attorney's fees in the total amount of $98,325 for all legal work in the [above captioned] case," as supported by attached time entries, which "may be considered by the court in considering the issue to be decided by the court pertinent to the attorney's fees, if any, that should be awarded on the [foreclosure count]. Although the parties agree that the plaintiff has incurred these fees, they do not agree as to whether he is entitled to recover fees in that amount, or any amount, as part of the judgment on the [foreclosure count]. Both parties reserve the right to submit briefs to the court regarding that issue, and to present oral argument if the court requests argument ...." The parties also stipulated that they would be available for oral argument, if desired by the court, on the attorney's fees issue.
The remainder of the stipulation concerned appellate issues, including the plaintiff's agreement not to seek to terminate the automatic appellate stay, collect the judgment, or foreclose the mechanic's lien while an appeal is pending. The parties also stipulated to an annual postjudgment interest rate of 4.5 percent.
On appeal, the plaintiff contends that the Appellate Court improperly concluded that the "hearing" requisite to the award of attorney's fees had not occurred because the terms of the foreclosure were determined by stipulation and in-chambers conferences, rather than in a hearing. The plaintiff argues that this approach is unworkable because it elevates "form over substance" by requiring the court to convene on the record for a very brief hearing. To this end, the plaintiff relies on A. Secondino & Son, Inc. v. LoRicco , 19 Conn.App. 8, 15–16, 561 A.2d 142 (1989), for the proposition that attorney's fees are allowed under § 52–249(a) in foreclosure "actions," rather than just "hearings." He also contends that the requisite hearing commenced with trial on all other counts of the complaint, which served to establish the debt that formed the basis for the foreclosure judgment, given case law such as Clem Martone Construction, LLC v. DePino , 145 Conn.App. 316, 331–32, 77 A.3d 760, cert. denied, 310 Conn. 947, 80 A.3d 906 (2013), which suggests that attorney's fees under § 52–249(a) may include fees for the underlying trial to establish the debt.
In response, the defendant emphasizes that the proceedings in this case were bifurcated between the foreclosure and underlying unjust enrichment and breach of contract counts, and that the parties' subsequent stipulation resolving the plaintiff's motion for a supplemental judgment obviated the need for a hearing on the foreclosure remedy. Thus, the defendant contends that the plaintiff's "form over substance" arguments ask this court to rewrite the plain and unambiguous language of § 52–249(a), which calls for a specific type of hearing as a prerequisite to an award of attorney's fees, namely, one to determine the form of the foreclosure judgment and the defendant's right of redemption; he posits that requiring the plaintiff to pay his own attorney's fees in the absence of such a hearing is consistent with the common-law American rule under which parties pay their own attorney's fees absent a statutory or contractual exception. See, e.g., ACMAT Corp. v. Greater New York Mutual Ins. Co. , 282 Conn. 576, 582, 923 A.2d 697 (2007). To this end, the defendant further contends that the stipulation did not have the formalities associated with a hearing. I agree with the defendant, and conclude that the requisite hearing did not occur in this case to permit an award of attorney's fees pursuant to § 52–249(a).
Whether § 52–249(a) permits an award of attorney's fees when the foreclosure judgment is the product of a stipulation rather than an on-the-record hearing "presents a question of statutory construction over which we exercise plenary review.... When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature.... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. ... In seeking to determine that meaning, General Statutes § 1–2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. ... When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter .... The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation." (Citation omitted; footnote omitted; internal quotation marks omitted.) Tomick v. United Parcel Service, Inc. , 324 Conn. 470, 477–78, 153 A.3d 615 (2016).
I am mindful that, "[i]n determining whether ... a statute abrogates or modifies a common law rule the construction must be strict, and the operation of a statute in derogation of the common law is to be limited to matters clearly brought within its scope. ... Thus, [n]o statute is to be construed as altering the common law, farther than its words import [and a statute] is not to be construed as making any innovation upon the common law which it does not fairly express. ... We recognize only those alterations of the common law that are clearly expressed in the language of the statute because the traditional principles of justice upon which the common law is founded should be perpetuated." Citations omitted; internal quotation marks omitted.) Ames v. Commissioner of Motor Vehicles , 267 Conn. 524, 532, 839 A.2d 1250 (2004). It is well settled that this rule of strict construction applies to statutes such as § 52–249(a) allowing for awards of attorney's fees because such statutes operate in derogation of the "general rule of law known as the American rule," under which "attorney's fees and ordinary expenses and burdens of litigation are not allowed to the successful party absent a contractual or statutory exception." (Internal quotation marks omitted.) ACMAT Corp. v. Greater New York Mutual Ins. Co. , supra, 282 Conn. at 582, 923 A.2d 697 ; see also, e.g., Perry v. Perry , 312 Conn. 600, 625, 95 A.3d 500 (2014) ; Fennelly v. Norton , 294 Conn. 484, 504 n.17, 985 A.2d 1026 (2010) ; Ames v. Commissioner of Motor Vehicles , supra, at 532–33, 839 A.2d 1250 ; Stratford v. Castater , 136 Conn.App. 535, 544–45, 46 A.3d 953 (2012).As required by § 1–2z, I begin with the text of the statute. Section 52–249(a) provides in relevant part: "The plaintiff in any action of foreclosure of a mortgage or lien, upon obtaining judgment of foreclosure, when there has been a hearing as to the form of judgment or the limitation of time for redemption , shall be allowed the same costs, including a reasonable attorney's fee , as if there had been a hearing on an issue of fact. ..." (Emphasis added.) Given the strict construction that we must afford § 52–249(a), I conclude that the Appellate Court properly upheld the trial court's denial of the plaintiff's request for attorney's fees because no hearing on the foreclosure remedy took place in the present case. Specifically, the parties stipulated during trial that the foreclosure and merits proceedings in the present case were to be bifurcated, and the conduct of the proceedings reflects this stipulation. Once the plaintiff had prevailed at the court trial, the foreclosure remedy was the product of a second stipulation resolving the plaintiff's motion for a supplemental judgment, rather than a judicial decision following an in- court proceeding. This stipulated judgment procedure was inconsistent with the very specific language that the legislature used in drafting § 52–249(a), which requires "a hearing as to the form of judgment or the limitation of time for redemption ...." Allowing the stipulation to substitute for the required hearing, as urged by the plaintiff, would run afoul of the maxim that "a court must construe a statute as written. ... Courts may not by construction supply omissions ... or add exceptions merely because it appears that good reasons exist for adding them. ... The intent of the legislature, as this court has repeatedly observed, is to be found not in what the legislature meant to say, but in the meaning of what it did say. ... It is axiomatic that the court itself cannot rewrite a statute to accomplish a particular result. That is the function of the legislature." (Internal quotation marks omitted.) Marciano v. Jimenez , 324 Conn. 70, 77, 151 A.3d 1280 (2016).
I recognize that the use of a stipulated judgment procedure in lieu of a hearing has salutary effects with respect to judicial economy, and that the plaintiff argues that it was "tantamount" to a hearing under § 52–249(a) in the present case. Given the strict construction that we are required to give § 52–249(a), I do not view the stipulation as having the formality requisite to a "hearing," as that word is understood as a legal term of art. See State v. Fernando A., 294 Conn. 1, 16–17, 981 A.2d 427 (2009) (describing definitions of term " ‘hearing’ " in regular and legal dictionaries as encompassing judicial proceeding); Willimantic Car Wash, Inc. v. Zoning Board of Appeals, 247 Conn. 732, 737–38, 724 A.2d 1108 (1999) (relying on legal dictionary's definition of "hearing" as " ‘[a] proceeding of relative formality ... generally public, with definite issues of fact or of law to be tried, in which witnesses are heard and evidence presented, and in which parties to a dispute have a right to be heard" in concluding that pretrial conference was not "hearing" for court approval of settlement contemplated by General Statutes § 8–8n [footnote omitted; internal quotation marks omitted] ).
As the plaintiff urges, I recognize that the Appellate Court broadly stated in A. Secondino & Son, Inc. v. LoRicco, supra, 19 Conn.App. at 15–16, 561 A.2d 142, that "§ 52–249(a) succinctly and unambiguously provides for the allowance of attorney's fees in actions for foreclosure of mortgages or liens." (Emphasis added; footnote omitted.) The plaintiff, however, takes that broadly stated language from the Appellate Court's opinion somewhat out of context, as that case did not involve a challenge to the procedure utilized in awarding attorney's fees, and did not involve a stipulation. Id., at 15–16, 561 A.2d 142.
The cases on which the plaintiff relies do not support his argument that the stipulation procedure utilized in this case satisfied the hearing requirement under § 52–249(a), or that we have read that requirement in the "broadest possible terms rather than giving it the very narrow reading utilized by the Appellate Court and the trial court in this case." Although these cases upheld fee awards that appear to have encompassed both the foreclosure proceeding and the underlying trial, none of them concerned the propriety of a stipulation procedure in lieu of a hearing—none even mentioned the use of a stipulation, as all involved fee awards rendered after a hearing on the contractor's motion. See Intercity Development, LLC v. Andrade, 286 Conn. 177, 181, 942 A.2d 1028 (2008) (bifurcated proceeding, with foreclosure judgment product of motion); Clem Martone Construction, LLC v. DePino, supra, 145 Conn.App. at 331–32, 77 A.3d 760 (trial court improperly excluded legal work on homeowner's counterclaim in calculating fees for foreclosure claim); Gagne v. Vaccaro, 118 Conn.App. 367, 370–71, 984 A.2d 1084 (2009) (appellate attorney's fees permissible under § 52–249 [a] ); Original Grasso Construction Co. v. Shepherd, 70 Conn.App. 404, 418–19, 799 A.2d 1083 (concluding that contractor did not waive claim for attorney's fees under § 52–249 [a] by failing to present evidence before attorney trial referee because that was question of law for court, and remanding case for hearing on motion for fees), cert. denied, 261 Conn. 932, 806 A.2d 1065 (2002).
As the defendant points out, when the legislature has made attorney's fees more broadly available as a remedy in a civil action without mandating a particular procedure, it has said so. See, e.g., General Statutes § 35–53(b) (providing that court "may award reasonable attorney's fees to the prevailing party" in case brought under Uniform Trade Secrets Act for wilful or malicious misappropriation); General Statutes § 42–110g(d) ("In any action brought by a person under [Connecticut Unfair Trade Practices Act], the court may award, to the plaintiff, in addition to the relief provided in this section, costs and reasonable attorneys' fees based on the work reasonably performed by an attorney and not on the amount of recovery. In a class action in which there is no monetary recovery, but other relief is granted on behalf of a class, the court may award, to the plaintiff, in addition to other relief provided in this section, costs and reasonable attorneys' fees.").
I disagree with the plaintiff's argument that this interpretation of § 52–249(a) leads to an unworkable result in contravention of § 1–2z because a defendant can avoid liability for attorney's fees by simply paying the debt at the conclusion of the trial, rather than appealing it, thus obviating the need for a hearing to set the terms of the foreclosure judgment because the underlying debt would have been paid. The plaintiff argues that the "only way to avoid such an unjust result is to conclude that when trial commenced on all counts of the complaint, including establishing the debt which ... was essential for the mechanic's lien foreclosure action, that the hearing mandated by ... § 52–249(a) commenced at that time." In my view, providing a judgment debtor with incentive to satisfy a debt immediately, rather than take an appeal or incur a judgment of foreclosure that would bring into play an attorney's fee award under § 52–249(a), is not an unworkable result because it promotes the speedy resolution of disputes following the court's determination of the debt. I, therefore, conclude that the Appellate Court properly upheld the trial court's denial of the plaintiff's request for attorney's fees. Burns v. Adler , supra, 158 Conn.App. at 808, 120 A.3d 555.Because I would affirm the judgment of the Appellate Court, I respectfully dissent.
As the plaintiff urges, I recognize that "[t]his court repeatedly has eschewed applying the law in such a hypertechnical manner so as to elevate form over substance." Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 34, 848 A.2d 418 (2004). I also recognize the public policy that supports promoting settlement of disputes. See, e.g., Black v. Goodwin, Loomis & Britton, Inc., 239 Conn. 144, 166, 681 A.2d 293 (1996) ; Tomasso Bros., Inc. v. October Twenty–Four, Inc., 221 Conn. 194, 198, 602 A.2d 1011 (1992). Accordingly, I do not suggest that § 52–249(a) precludes parties from settling foreclosure cases in a manner that specifically accommodates the hearing requirements of § 52–249(a), or requires an extensive on-the-record proceeding. I similarly leave to another day the type of hearing necessary to satisfy the "specific aspects" of the foreclosure proceeding set forth in the plain language of § 52–249(a).
In his reply brief, the plaintiff posits that a decision by this court to affirm the judgment of the Appellate Court will result in a remand to the trial court for the purpose of setting new law days with respect to the judgment of strict foreclosure of the mechanic's lien. The plaintiff states that the hearing contemplated by § 52–249(a) will take place at that time, and asks this court to determine whether he is—contrary to the conclusion of the trial court—entitled to attorney's fees for successfully prosecuting the underlying action, defending this appeal, and defending against the defendant's counterclaims, in addition to those fees relevant only to the foreclosure proceedings. Indeed, as the trial court noted in its memorandum of decision, there appears to be a Superior Court split on whether the attorney's fees awarded pursuant to § 52–249(a) may encompass the trial of the underlying action, in addition to the foreclosure aspects of the proceeding—at least prior to the Appellate Court's decision in Clem Martone Construction, LLC v. DePino, supra, 145 Conn.App. at 331–32, 77 A.3d 760. Given the majority's reversal of the judgment in favor of the plaintiff, this issue is not likely to arise on remand and I need not consider it further. See, e.g., Sullivan v. Metro–North Commuter Railroad Co., 292 Conn. 150, 164 and n.8, 971 A.2d 676 (2009).
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