Opinion
MMXCV165008932S
12-05-2017
CBCC CONNECTICUT BUILDING CONTRACTORS & CONSULTANTS, LLC v. Ronald SCARPA et al.
UNPUBLISHED OPINION
OPINION
PIERSON, J.
PROCEDURAL HISTORY
This action involves residential construction work performed by the plaintiff, CBCC Connecticut Building Contractors & Consultants, LLC, at the home of the defendants, Ronald and Lynne Scarpa, located at 52 Granite Hill Road, Killingworth, Connecticut (property). The plaintiff initiated this case against the defendants by way of a small claims writ. In the original complaint dated May 25, 2016, the plaintiff alleges that in 2014, it entered into an agreement with the defendants to perform construction work at the property and that it is owed money for the work. The plaintiff contends that it is entitled to recover from the defendants in breach of contract and quantum meruit. It claims damages of $3, 468.60, plus costs. Attached to the small claims writ is an invoice issued by the plaintiff to the defendant Ronald Scarpa, dated December 4, 2015, entitled " Statement, " showing a balance due of $3, 468.60
On June 3, 2016, the defendants filed a four-count counterclaim (docket entry no. 105), alleging breach of contract, negligence, unfair trade practices in violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., and unjust enrichment. With respect to the third count alleging a CUTPA violation, the defendants claim that in or about October 2014, the defendants entered into a series of agreements with the plaintiff whereby the plaintiff was to perform certain " home improvements, " as defined by General Statutes § 20-419(4), including but not limited to the construction of a dormer style roof at the property, as well as garage remodeling and the installation of siding. The defendants further contend that the services to be furnished by the plaintiff were, at a minimum, to meet the quality standards for workmanship and materials that are normal for home improvement contractors in the area, and to satisfy all standards required by applicable law, ordinances, and codes. The defendants claim that the plaintiff breached its obligations in a variety of respects, resulting in structural damage to the property, depriving the defendants of the full use of their property, and causing them to sustain economic damages.
The defendants allege that the plaintiff violated CUTPA in that the agreements entered into by the parties do not meet the requirements of Connecticut’s Home Improvement Act (HIA), General Statutes § 20-429 et seq., in that they (1) are not signed by the parties; (2) do not contain the entire agreement between the parties; (3) fail to reflect the proper name of the contractor or the contractor’s home improvement registration number; (4) do not contain notice of the owners’ cancellation rights in accordance with the provisions of chapter 740 of the General Statutes; (5) do not reflect a start date and completion date; and/or (6) fail to disclose each corporation, limited liability company, partnership, sole proprietorship or other legal entity in which the contractor has or had an interest during the preceding five years. The defendants claim that pursuant to General Statutes § 20-427(c), these alleged violations constitute unfair or deceptive trade practices under CUTPA, and further, that the alleged acts and omissions violate CUTPA in that they offend public policy; are immoral, unethical, oppressive or unscrupulous; and caused injury to consumers and competitors.
On June 8, 2016, the defendants moved to transfer this case to the regular docket (docket entry no. 104). After the motion to transfer was granted by the court, on September 15, 2017, the plaintiff answered the defendants’ counterclaim (docket entry no. 117). As a result of the filing of this responsive pleading, the plaintiff opened a default that had entered against it for failure to plead in response to the defendants’ counterclaim (docket entry nos. 114 & 114.10). In its answer, the plaintiff admitted that the defendants were residents and owners of a single-family home located at the property. The plaintiff further admitted that it agreed to perform work at the defendants’ home.
On July 24, 2017, the defendants filed a motion for summary judgment (docket entry no. 115), asking the court to enter summary judgment in their favor on the plaintiff’s claims in breach of contract and quantum meruit. In addition, the defendants moved for summary judgment, as to the issue of liability only, on the third count of their counterclaim. On September 15, 2017, the plaintiff filed an objection to the defendants’ motion for summary judgment (docket entry no. 116.00) (objection). The parties submitted the matter to the court for adjudication, on the papers, on September 18, 2017.
According to the defendants’ supporting memorandum of law, the defendants’ pursuit of summary judgment on the third count of the counterclaim is contingent on the opening of the default that entered against the plaintiff for failure to plead in response to the defendants’ counterclaim. See Def.’s Mot. Summ. J. (docket entry no. 115), p. 1 n.1. As the filing of the plaintiff’s answer served to open the default by operation of law, pursuant to Practice Book § 17-32(b), the court will rule on the defendants’ motion for summary judgment with respect to the third count of the counterclaim.
DISCUSSION
I
Legal Standard
The motion for summary judgment is designed to eliminate the delay and expense accompanying a trial where there is no real issue to be tried. Dowling v. Kielak, 160 Conn. 14, 16, 273 A.2d 716 (1970). The standard of review applicable to motions for summary judgment is well established in our law. " Practice Book § [17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party ... The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ... and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact ... [I]ssue-finding, rather than issue determination, is the key to the procedure ... [T]he trial court does not sit as a trier of fact when ruling on a motion for summary judgment ... [Its] function is not to decide issues of material fact, but rather to determine whether any such issues exist." (Brackets in original; internal quotation marks omitted.) Northrup v. Witkowski, 175 Conn.App. 223, 230-31, 167 A.3d 443 (2017). " It is not enough for the moving party merely to assert the absence of any disputed factual issue; the moving party is required to bring forward ... evidentiary facts, or substantial evidence outside the pleadings to show the absence of any material dispute." (Emphasis in original; internal quotation marks omitted.) Doty v. Shawmut Bank, 58 Conn.App. 427, 430, 755 A.2d 219 (2000). The legal standard applicable to the movant is strict. See Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008) (" courts hold the movant to a strict standard"); Anderson v. Gordon, Muir & Foley, LLP, 108 Conn.App. 410, 416, 949 A.2d 488 (2008). " The test is whether a party would be entitled to a directed verdict on the same facts." (Internal quotation marks omitted.) Doty v. Shawmut Bank, supra, 431.
In response to a summary judgment motion, " the party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue ... To oppose a motion for summary judgment successfully, the non-movant must recite specific facts in accordance with Practice Book ... § § 17-45 and 17-46 ... which contradict those stated in the movant’s affidavits and documents and show that there is a genuine issue of material fact for trial. If he does not so respond, summary judgment shall be entered against him." (Citation omitted; internal quotation marks omitted.) Id., 430. A party opposing the motion " must present an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." Appleton v. Board of Education, 254 Conn. 205, 209, 757 A.2d 1059 (2000). Mere assertions of fact are insufficient to establish the existence of a material fact and cannot rebut properly presented evidence in support of the motion. See Maffucci v. Royal Park Ltd. Partnership, 243 Conn. 552, 554-55, 707 A.2d 15 (1998). " [A] party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment." (Internal quotation marks omitted.) Doty v. Shawmut Bank, supra, 58 Conn.App. 430. " The existence of [a] genuine issue of material fact must be presented by counter-affidavits and concrete evidence." (Internal quotation marks omitted.) Pion v. Southern New England Telephone Co., 44 Conn.App. 657, 663, 691 A.2d 1107 (1997).
" [W]hen a nonmoving party fails to respond to a motion for summary judgment by setting forth specific facts showing that there is a genuine issue for trial, the court is entitled to rely upon the facts alleged in the affidavit of the moving party." Carrasquillo v. Carlson, 90 Conn.App. 705, 711, 880 A.2d 904 (2005). " Requiring the nonmovant to produce such evidence does not shift the burden of proof. Rather, it ensures that the nonmovant has not raised a specious issue for the sole purpose of forcing the case to trial." Gold v. East Haddam, 290 Conn. 668, 678, 966 A.2d 684 (2009). However, " [w]hen documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue." Ramirez v. Health Net of the Northeast, Inc., supra, 285 Conn. 11. It is only when the movant has met its burden that the opposing party " must present evidence that demonstrates the existence of some disputed factual issue." Id. In the context of a motion for summary judgment, a " ‘material fact’ is a fact that will make a difference in the result of the case." Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 313, 77 A.3d 726 (2013).
Summary judgment is ordinarily inappropriate where the inferences sought " deal with questions of motive, intent and subjective feelings and reactions." (Internal quotation marks omitted.) Nolan v. Borkowski, 206 Conn. 495, 505, 538 A.2d 1031 (1988); Tryon v. North Branford, 58 Conn.App. 702, 707, 755 A.2d 317 (2000). Despite the foregoing principle, " the summary judgment rule would be rendered sterile if the mere incantation of intent or state of mind would operate as a talisman to defeat an otherwise valid motion." (Internal quotation marks omitted.) Chadha v. Charlotte Hungerford Hospital, 97 Conn.App. 527, 539, 906 A.2d 14 (2006). Our Supreme Court has held that, " [e]ven with respect to questions of motive, intent and good faith, the party opposing summary judgment must present a factual predicate for his argument in order to raise a genuine issue of [material] fact." (Internal quotation marks omitted.) Id.
Summary judgment motions, and papers filed in opposition to such motions, must be supported by facts that are admissible under our rules of evidence. Practice Book § 17-46 provides: " Supporting and opposing affidavits shall be made upon personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached hereto." (Emphasis added.) Furthermore, documents submitted in support of or opposition to a summary judgment motion must be admissible under our rules of evidence. To begin, they must be authenticated properly. " [B]efore a document may be considered by the court in support of a motion for summary judgment, there must be a preliminary showing of [the document’s] genuineness, i.e., that the proper item of evidence is what its proponent claims it to be. The requirement of authentication applies to all types of evidence, including writings ..." (Brackets in original; internal quotation marks omitted.) Bank of New York v. Conway, 50 Conn.Supp. 189, 193, 916 A.2d 130 (2006); accord Conn. Code Evid. § 9-1(a), commentary. Even if a document is authenticated properly, it may not be considered on a motion for summary judgment if it is otherwise deficient or defective as an evidentiary matter. For example, hearsay documents may not be considered in support of, or in opposition to, a motion for summary judgment; see Jaiguay v. Vasquez, 287 Conn. 323, 363, 948 A.2d 955 (2008) (" factual assertions based on inadmissible hearsay are insufficient for purposes of opposing a motion for summary judgment"); unless they are otherwise admissible under our rules of evidence. See Curry v. Allan S. Goodman, Inc., 286 Conn. 390, 423 n.20, 944 A.2d 925 (2008); see also Barrett v. Danbury Hospital, 232 Conn. 242, 251-52, 654 A.2d 748 (1995); Conn. Code Evid. § 8-9.
Although evidentiary facts may be presented by way of affidavits, the use of affidavits is neither mandatory nor exclusive in the context of a summary judgment motion. See Practice Book § 17-45(a) (" motion for summary judgment shall be supported by appropriate documents, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and other supporting documents"). Thus, and as contemplated expressly by § 17-45(a), a party may rely on responses to requests for admissions in support of a motion for summary judgment. Moreover, a party’s failure to object or timely respond to admissions requests may serve as a basis for summary judgment. See Orenstein v. Old Buckingham Corp., 205 Conn. 572, 576, 534 A.2d 1172 (1987); Allied Grocers Cooperative, Inc. v. Caplan, 30 Conn.App. 274, 279, 260 A.2d 165 (1993). This is because such a failure gives rise to judicially admitted facts that may be considered by the court. " A party’s response to a request for admissions is binding as a judicial admission unless the judicial authority permits withdrawal or amendment ... Similarly, a failure to respond timely to a request for admissions means that the matters sought to be answered were conclusively admitted." (Citations omitted; internal quotation marks omitted.) East Haven Builders Supply, Inc. v. Fanton, 80 Conn.App. 734, 744, 837 A.2d 866 (2004).
II
Documents Submitted By The Parties
In support of their motion for summary judgment, the defendants submitted a supporting memorandum of law with five lettered exhibits, as follows: (A) an " Estimate" dated October 4, 2014, issued by the plaintiff to the defendant Ronald Scarpa; (B) the plaintiff’s responses to the defendants’ first set of interrogatories, dated May 9, and the accompanying notice of compliance dated May 11, 2017; (C) a notice of service of requests to admit filed by the defendants with the court on February 16, 2017 (docket entry no. 109.00), together with the defendants’ first request for admissions directed to the plaintiff; (D) an " Inspection Report" dated May 13, 2015, bearing town of Killingworth letterhead; and (E) an " Engineering Report" addressed to the defendants from Nicholas W. Scalzo of Scalzo Engineering. The defendants did not submit an affidavit in support of their motion.
With respect to documents such as the exhibits appended to the defendants’ supporting memorandum, and as previously stated, authentication is a precondition to admissibility. See Conn. Code Evid. § 9-1(a). Although authentication may take a variety of forms, in the present case, the defendants’ Exhibits A, D, and E are not authenticated in any manner. As such, these exhibits are deficient as an evidentiary matter and they will not be considered by the court. In addition, as noted by the plaintiff in its objection, Exhibits D and E are hearsay documents. Exhibits D and E constitute out-of-court statements offered to establish the truth of the matters asserted, namely, the veracity of the contents of the exhibits themselves. See Conn. Code Evid. § 8-1(3). As such, Exhibits D and E are also inadmissible. See Conn. Code Evid. § 8-2.
Exhibit B, which purports to contain the plaintiff’s responses to the defendants’ first set of interrogatories, is not signed by a representative of the plaintiff. Practice Book § 13-7(a) (" interrogatories shall be answered under oath by the party to whom directed ..."). The only signature accompanying the interrogatory responses is that of the plaintiff’s attorney, which appears on the notice of compliance dated May 11, 2017. Although the defendants fail to demonstrate that the plaintiff signed, under oath, the interrogatory responses appended as Exhibit B, the court will nevertheless consider them, as in its objection, the plaintiff relies on the responses. See Pl.’s Obj. Def.’s Mot. Summ. J. (docket entry no. 116), p. 2 (referring to Ex. B, interrog. no. 15). Moreover, the plaintiff does not challenge the authenticity or accuracy of the responses in the form submitted to the court by the defendants.
The interrogatory responses reflect, inter alia, that the plaintiff performed work or services at the property, including replacing the roof on the entire house and converting the storage room into an auxiliary room. The plaintiff’s responses also reflect that a written estimate was signed on or about October 4, 2014. The plaintiff refers to this written estimate as the contract between the parties. The plaintiff does not disclose that it ever provided the defendants with a notice of cancellation rights. Communications between the plaintiff and the defendants were primarily verbal and dealt with the ongoing progress of the project, scheduling, and the question of a support beam for the garage. A cash deposit in the amount of $9, 500 was made, reducing the contract price, followed by subsequent payments, resulting in an outstanding invoice for $3, 468.60.
The court will also consider the defendants’ first request for admissions directed to the plaintiff. Notice of service of these requests was filed with the court on February 16, 2017 (docket entry no. 109.00). The plaintiff did not file written answers or objections to these admissions requests within thirty days of their filing, as required by Practice Book § 13-23, and no responses to the requests have ever been submitted by the plaintiff. As a result, the following matters are deemed to be established for the purposes of the defendants’ motion: the plaintiff did not provide a written contract to the defendants for their signature, prior to performing any work or services at the property, as required by General Statutes § 20-429; the plaintiff did not provide a written notice of cancellation rights to the defendants prior to performing any work or services at the property, as required pursuant to General Statutes § 20-429(a)(1)(A)(vi); the contract that the plaintiff provided to the defendants did not include the date of the transaction, as required by General Statutes § 20-429(a)(1)(A)(iv); the contract that the plaintiff provided to the defendants did not include a start date and a completion date for the work at the property, as required pursuant to General Statutes § 20-429(a)(1)(A)(vii); the contract that the plaintiff provided to the defendants did not include the plaintiff’s home improvement registration number, as required pursuant to General Statutes § 20-429(a)(1)(A)(v); the contract that the plaintiff provided to the defendants did not include notice that the plaintiff’s owner had, within the five years preceding the contract, been an owner (or part owner) of another home improvement contract company, as required by General Statutes § 20-429(a)(1)(A)(ix); the work performed by the plaintiff at the property failed inspection by the building inspector of the town of Killingworth; subsequent to failing inspection by the town of Killingworth, the plaintiff did not perform any further work at the property to address the issues associated with that failure; shortly after completing work at the property, cracks developed in the sheetrock the plaintiff had just recently installed; the plaintiff used support jacks at the property and accidentally raised one of the jacks too high in the garage; and the plaintiff accepted a payment of $9, 500.00 in cash from the defendants on November 1, 2014.
Although the plaintiff filed a brief in opposition to the defendants’ motion for summary judgment, the plaintiff did not submit any affidavits or other evidentiary documents in opposition to the motion.
III
The Plaintiff’s Claims
The defendants move for summary judgment on both of the plaintiff’s claims against them, in breach of contract and quantum meruit. As for the breach of contract claim, the defendants begin by arguing that, as the construction work performed by the plaintiff constituted " home improvement" as defined by the HIA, General Statutes § 20-419(4), the provisions of the act apply to the parties’ contractual relationship. The defendants go on to assert that the plaintiff cannot prevail on its breach of contract claim because the contract at issue- namely, the written estimate- does not comply with General Statutes § 20-429(a)(1)(A), which provides: " No home improvement contract shall be valid or enforceable against an owner unless it: (i) Is in writing, (ii) is signed by the owner and the contractor, (iii) contains the entire agreement between the owner and the contractor, (iv) contains the date of the transaction, (v) contains the name and address of the contractor and the contractor’s registration number, (vi) contains a notice of the owner’s cancellation rights in accordance with the provisions of chapter 740, (vii) contains a starting date and completion date, (viii) is entered into by a registered salesman or registered contractor, (ix) includes a provision disclosing each corporation, limited liability company, partnership, sole proprietorship or other legal entity, which is or has been a home improvement contractor pursuant to the provisions of this chapter or a new home construction contractor pursuant to the provisions of chapter 399a, in which the owner or owners of the home improvement contractor are or have been a shareholder, member, partner, or owner during the previous five years."
More specifically, the defendants contend that the contract at issue fails to include provisions in compliance with subparts (v), (vi), and (vii) of General Statutes § 20-429(a)(1)(A), thereby rendering unenforceable the document upon which the plaintiff’s breach of contract claim is based. In response, the plaintiff argues that the defendants rely impermissibly on hearsay, and further, that " mechanistic compliance" with the HIA is unnecessary. The plaintiff does not dispute the HIA’s applicability to the subject contract.
As for the plaintiff’s first argument, and as previously noted, the court will not consider those unauthenticated and hearsay documents appended to the defendants’ supporting memorandum. Without any reference to these inadmissible documents, the defendants have presented facts, by way of the plaintiff’s answers to interrogatories and the unanswered requests for admission, as follows: that the written contract at issue (1) did not contain the plaintiff’s registration number; (2) failed to contain a notice of the defendants’ cancellation rights in accordance with the provisions of chapter 740; and (3) did not contain starting and completion dates. These facts are uncontroverted by the plaintiff. Viewing them in a light most favorable to the plaintiff, they demonstrate a lack of compliance with several specified provisions of General Statutes § 20-429(a)(1)(A).
The HIA is a remedial statute " enacted for the purpose of providing the public with a form of consumer protection against unscrupulous home improvement contracts." Wright Bros. Builders, Inc. v. Dowling, 247 Conn. 218, 231, 720 A.2d 235 (1998) (Wright Bros.). " 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." Id. As the HIA is a remedial statute, it must be interpreted broadly so as to accomplish its purpose and in favor of the class of persons it is intended to protect; in this case, consumers of home improvement services. See generally Aaron Manor, Inc. v. Irving, 307 Conn. 608, 615, 57 A.3d 342 (2013) (remedial statutes designed to protect consumers should be construed broadly so as to accomplish that purpose); Cagiva North America, Inc. v. Schenk, 239 Conn. 1, 14, 680 A.2d 964 (1996) (" law should be read broadly in favor of ... consumers"). Our courts have interpreted the HIA broadly in favor of consumers and held, repeatedly, that the requirements of § 20-429 are mandatory and require strict compliance. See Wright Bros., supra, 229. A contractor is precluded from enforcing a home improvement contract that does not satisfy the statute’s requirements. Id., 228. Moreover, our Supreme Court has barred the enforcement of such contracts in circumstances similar to those present here. See, e.g., Rizzo Pool Co. v. Del Grosso, 232 Conn. 666, 680, 657 A.2d 1087 (1995) (contract unenforceable under the HIA because it did not provide commencement and completion dates); Wadia Enterprises, Inc. v. Hirschfeld, 224 Conn. 240, 243, 618 A.2d 506 (1992) (enforcement precluded because the contract did not provide notice of homeowners’ cancellation rights).
Citing Wright Bros., supra, 247 Conn. 218, the plaintiff asks the court to overlook the failure of the subject contract to comply with multiple, mandatory requirements of § 20-429 on the ground that " mechanistic compliance" with the HIA is not required. This reliance on Wright Bros. is misplaced. Wright Bros. did not involve a contract such as the one at issue here- that failed to reflect the contractor’s home improvement registration number, lacked notice of cancellation rights, and did not contain commencement and completion dates. Rather, Wright Bros. involved the claim that a home improvement contract was unenforceable because it failed to comply with certain technical requirements of the Home Solicitation Sales Act (HSSA), as set forth in § § 42-135a(2) and (3), which requirements are incorporated into § 20-429(a)(6) of the HIA. See Wright Bros., supra, 226. The technical requirements at issue in that case included: (1) that contractors furnish two copies of the notice of cancellation to the homeowners with whom they contract, and (2) that each copy of the notice of cancellation specify the date of the transaction and the date by which the contract may be cancelled. Id., 227-28. In Wright Bros., the defendants argued that the contractor failed to comply with the HIA because the contract at issue " did not have the cancellation notice in duplicate" and the notice " failed to contain the date of the transaction and date by which the defendants could cancel the contract ..." (Internal quotation marks omitted.) Id., 232. With regard to the failure to provide duplicates, the court noted that the contractor furnished a copy of the cancellation notice to two separate persons, " one given to the titleholder, the other given to a resident of the property, " and concluded that this was " sufficient to constitute a ‘duplicate’ of this notice of cancellation within the meaning of § § 20-249(a)(6) and 42-135(a)(2)." Id., 233. As for the transaction and cancellation dates, the court determined that under the circumstances, the omission of these dates from the notice of cancellation did not " constitute such a deviation from the precise specifications of the HIA as to compel the conclusion that the contract failed to comply with the HIA." Id. This was because " [t]he missing information ... easily could have been gleaned from even the most cursory review of the contract." Id. The court characterized these defects as ones " of a minor and technical nature" that did not frustrate the remedial purpose of the HIA. Id., 232.
By contrast, in the present case, the deficiencies in the contract at issue are neither minor nor technical. They implicate directly the HIA’s remedial purpose by violating several of the act’s substantive and mandatory requirements, including the requirement that the contract contain the plaintiff’s registration number, notice of the owner’s cancellation rights in accordance with the provisions of chapter 740, as well as start and completion dates. The foregoing significant deficiencies, which are unrefuted by the plaintiff, render the contract unenforceable under § 20-429(a)(1)(A) and entitle the defendants to summary judgment on the plaintiff’s breach of contract claim. See Rizzo Pool Co. v. Del Grosso, supra, 232 Conn. 680; Wadia Enterprises, Inc. v. Hirschfeld, supra, 224 Conn. 243.
As for the plaintiff’s quantum meruit claim, our Supreme Court has held that " contractors may recover in restitution despite noncompliance with § 20-429(a), when homeowners invoke the protections of the act in bad faith." Walpole Woodworkers, Inc. v. Manning, 307 Conn. 582, 586, 57 A.3d 730 (2012) (Walpole). Under this common-law exception, a contractor may recover against a homeowner in quantum meruit, " despite a contractor’s noncompliance with certain statutory requirements." Id., 587. The common-law exception referred to in Walpole was initially recognized by our Supreme Court in Habetz v. Condon, 224 Conn. 231, 618 A.2d 501 (1992) (Habetz). In establishing this exception, Habetz " defined bad faith as involving 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." (Internal quotation marks omitted.) Lucien v. McCormick Construction, LLC, 122 Conn.App. 295, 300, 998 A.2d 250 (2010). The common-law exception established in Habetz was supplemented by way of a subsequently enacted statutory exception, codified in General Statutes § 20-429(f), which allows for the recovery of payment for work performed " based on the reasonable value of services which were requested by the owner, " despite noncompliance with certain limited requirements of the HIA, when " the court determines that it would inequitable to deny such recovery." (Internal quotation marks omitted.) Walpole, supra, 586. Thus, as noted by the court in Walpole, " both Habetz and § 20-429(f) provide for recovery in quantum meruit despite a contractor’s noncompliance with certain statutory requirements." Id., 586-87.
In opposition to the defendant’s motion, the plaintiff does not rely on the statutory exception of § 20-429(f). Rather, the plaintiff argues that the existence of bad faith under the common-law exception constitutes a question of fact, thereby precluding the defendants from obtaining summary judgment on the plaintiff’s claim in quantum meruit. According to the plaintiff, the defendants " must come forward with evidence that there is no remaining issue of material fact and that there is not bad faith as a matter of law, " and that the " submitted proof falls short of this threshold." Pl.’s Obj. Def.’s Mot. Summ. J., p. 2-3. The court agrees that the defendants have not presented sufficient evidence on the issue of bad faith to permit summary judgment on the plaintiff’s quantum meruit claim.
In order for the statutory exception to apply, § 20-429(f) requires the contractor to have " complied with [subdivision] (1) ... of subsection (a) of this section ..."
To the extent it is suggested or implied by the plaintiff in its brief, the court rejects any argument that, in the context of this motion for summary judgment, the defendants bear the burden of proof on the issue of bad faith. As noted by the court in Habetz, " [i]t is the burden of the party asserting the lack of good faith to establish its existence ..." (Emphasis added.) Habetz, supra, 224 Conn. 237 n.11; accord Lucien, supra, 122 Conn.App. 301. Thus, it is the plaintiff, not the defendants, who bear the burden of proof on this issue.
Despite the foregoing burden, in seeking summary judgment, the defendants must present facts sufficient to allow the court to find an absence of had faith on their part. Doty v. Shawmut Bank, supra, 58 Conn.App. 430. This, the defendants failed to do. The admissible facts presented to the court by the defendants do not bear sufficiently on their motive and intent. In this respect, this case is distinguishable from Wadia Enterprises, Inc. v. Hirschfeld, supra, 224 Conn. 243, in which our Supreme Court affirmed the trial court’s order granting a homeowners’ motion for summary judgment against a contractor. In Wadia Enterprises, Inc. v. Hirschfeld, although the contractor failed to provide any evidence that would raise a genuine issue of fact concerning the homeowners’ bad faith, this failure occurred in circumstances where the homeowner submitted affidavits reflecting a lack of bad faith. See, e.g., id., 249 (" plaintiff did not even challenge [defendants’] statements in their affidavits that they had been unaware of the [HIA] prior to the commencement of [the] lawsuit"). Moreover, the plaintiff’s failure to submit an affidavit does not excuse the defendants from providing facts adequate to allow the court to find an absence of bad faith. See, e.g., Ramirez v. Health Net of the Northeast, Inc., supra, 285 Conn. 11. That failure also does not give rise to any inferences on the issue that are favorable to the defendants. " The failure to file an opposing affidavit or documentary evidence where motive, intent or subjective feelings and reactions are involved does not entitle the moving party to a favorable inference as to the truth of his affidavit or documentary evidence." Tryon v. Town of North Branford, supra, 58 Conn.App. 707; see Nolan v. Borkowski, supra, 206 Conn. 504. As a result, the defendants are not entitled to summary judgment on the plaintiff’s claim in quantum meruit.
The court rejects the defendants’ threshold contention that the bad faith exception is inapplicable here because the plaintiff " has made no claim that the [d]efendants have invoked the [HIA] in bad faith ..." Pl.’s Obj. Def.’s Mot. Summ. J., p. 9. An allegation of bad faith is necessarily implied from the plaintiff’s small claims complaint which seeks recovery in quantum meruit. Such an implication arises in this context because proof of bad faith is a necessary element of the plaintiff’s quantum meruit claim. Walpole, supra, 307 Conn. 586.
IV
The Defendants’ Third Counterclaim
Finally, the defendants move for summary judgment, as to liability only, on the third count of their counterclaim, alleging a violation of CUTPA, based on the plaintiff’s noncompliance with the HIA. Although the motion itself requests the entry of summary judgment on this ground, the defendants’ brief contains no argument that the plaintiff’s failure to comply with the HIA entitles them to summary judgment on the issue of liability under the third count. Having failed to brief this particular claim, the court considers it to be abandoned. A court is " not required to review issues that have been improperly presented to [it] through an inadequate brief ... Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly." (Internal quotation marks omitted.) Connecticut Light & Power Co. v. Dept . of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003).
CONCLUSION
For the reasons stated above, the defendants’ motion for summary judgment is granted on the plaintiff’s breach of contract claim. The motion is denied as to the plaintiff’s claim in quantum meruit and on the issue of liability under the third count of the defendants’ counterclaim.