Opinion
No. CV 03 0194728
August 4, 2004
MEMORANDUM OF DECISION
The plaintiff, Stephen Chiulli, filed a four-count revised complaint dated January 29, 2004, against the defendant, Nancy Zola. This action arises out of construction work, including demolition, excavation, site work, and renovations, performed at the defendant's home on Tyler Drive, Stamford. Counts one, two, three and four of the revised complaint allege breach of contract, quantum meruit, unjust enrichment and fraud, respectively.
In the first count of the revised complaint, the plaintiff alleges that he and the defendant agreed orally in March 2000, that he would "move into the residence" of the defendant, perform extensive renovations and improvements, be reimbursed by the defendant for one half of all his expenditures, including "time, materials, [and] payments to subcontractors," and that, when the house was ultimately sold, he would be entitled to one half of the net profits. The plaintiff further alleges that after he and the defendant had a falling out, so to speak, the defendant told him on March 30, 2003, to leave her house, that she refuses to reimburse him for $300,000, representing one half of the $600,000 of expenditures he made in connection with the construction work on her home during the period from March 2000, to March 2003, and that she would not pay him one half of the profits when her house was sold.
In the counts for quantum meruit and unjust enrichment, the plaintiff contends that the defendant has been enriched in the amount of $300,000, representing one half of the reasonable value of the services rendered and materials furnished by the plaintiff. In the fourth count of the revised complaint, the plaintiff alleges that the defendant, in order to obtain improvements and renovations of her home, falsely represented that she would reimburse the plaintiff for 50% of his expenses for construction work and pay him 50% of the profits when her house was sold, that the plaintiff relied on these representations, that they were false, and that he has been damaged as a result. CT Page 11927-dk
The defendant filed motion #117 to strike all counts of the revised complaint on the ground of failure to plead sufficient facts in support of the plaintiff's claims of breach of contract, quantum meruit, unjust enrichment and fraud, all based on the contention that the plaintiff violated General Statutes § 20-429, et. seq., the Home Improvement Act (HIA). Section (a)(1) of that act provides in relevant part that: "[n]o home improvement contract shall be valid or enforceable against an owner unless it: (1) is in writing . . ." The plaintiff concedes that his agreement with the defendant was not in writing and that home improvements were involved but contends that the motion to strike should not be granted because he intends to invoke the doctrine of "bad faith" on the part of the defendant home owner.
In terms of the fourth count alleging fraud, the defendant argues that the alleged fraudulent inducement relates to a contract to perform home improvements and that such contract is unenforceable because of the violation of the Home Improvement Act.
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). Practice Book § 10-39. "It is fundamental that in determining the sufficiency of a [pleading] challenged by a [party's] motion to strike, all well-pleaded facts and those necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Commissioner of Labor v. C.J.M. Services, Inc., 268 Conn. 283, 292, 842 A.2d 1124 (2004). "[A motion to strike] does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). "[The court] take[s] the facts to be those alleged in the complaint . . . and . . . construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Bhinder v. Sun, Co., 263 Conn. 358, 366, 819 A.2d 822 (2003). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Commissioner of Labor v. C.J.M. Services, Inc., supra, 292.
Our Supreme Court, in interpreting the Home Improvement Act, has established the general rule that a contractor who fails to comply with the act is prohibited from recovery under either a breach of contract claim or quasi-contractual methods of recovery, such as unjust enrichment or quantum meruit. Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 350, 576 A.2d 149 (1990); A. Secondino Son, Inc. v. LoRicco, 215 Conn. 336, CT Page 11927-dl 340, 576 A.2d 464 (1990). There is an exception to the general rule as discussed in Wright Brothers Builders, Inc. v. Dowling, 247 Conn. 218, 231, 720 A.2d 235 (1998), where the court held that minor or technical deviations from the act did not bar recovery for a contractor. In the present case, however, there is no written contract at all, obviously not a minor deviation from the act.
Even if the act renders the contract unenforceable, a plaintiff can establish that a defendant's invocation of the HIA as the basis for a repudiation of the contract was in bad faith or that a defendant waived the protection of the act. See Habetz v. Condon, 224 Conn. 231, 238, 618 A.2d 50 (1992); Wadia Enterprises, Inc. v. Hirschfeld, 224 Conn. 240, 251-52, 618 A.2d 506 (1992). In Habetz v. Condon, supra, 237, the court defined bad faith as follows: "Bad faith in general implies both actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfil 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."
In Dinnis v. Roberts, 35 Conn.App. 253, 259, 644 A.2d 253, cert. denied, 231 Conn. 924, 648 A.2d 162 (1994), the court limited bad faith to "the formation of, or inducement to, enter into the home improvement contract." In the case before this court there is no allegation of that kind of bad faith. Our courts have made it clear that it is not bad faith to invoke the act at the time that the homeowner has been sued. As stated in Wadia Enterprises, Inc. v. Hirschfeld, supra, 224 Conn. 249: "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."
In this present case, it is not necessary to resolve the bad faith issue, because the plaintiff does not allege bad faith on the part of the defendant. Because there was no written contract between the parties, as required by the Home Improvement Act, the first three counts of the revised complaint are ordered stricken.
In terms of the fourth count alleging fraudulent misrepresentations, the Connecticut Supreme Court has repeatedly held that the essential elements of an action in fraudulent misrepresentations are that: (1) a false representation was made as a statement of fact; (2) it was untrue and known to be untrue by the party making it; (3) it was made to induce the other party to act upon it; and (4) the other party did so act upon CT Page 11927-dm that false representation to his injury. Barbara Weisman, Trustee v. Kaspar, 233 Conn. 531, 539-40, 661 A.2d 530 (1995); Billington v. Billington, 220 Conn. 212, 217, 595 A.2d 1377 (1991); Kilduff v. Adams, Inc., 219 Conn. 314, 329, 593 A.2d 478 (1991). The plaintiff has, in his complaint, set forth these allegations.
The defendant claims that one may not recover on the basis of fraudulent misrepresentation to induce a contract which itself is void and illegal. The defendant cites no appellate authority, however, to support the proposition that a claim based on tort alleging fraudulent inducement or misrepresentation to enter into a contract requires an enforceable contract.
The role of the trial court in ruling on a motion to strike is "to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). In count four of the revised complaint, the plaintiff has alleged all four elements of the common-law tort of fraudulent misrepresentation. When construed in the manner most favorable to the plaintiff, these allegations support a legally sufficient cause of action for fraudulent misrepresentation. Hence, the motion to strike the fourth count of the revised complaint is denied.
Dated at Stamford Connecticut, this 4th day of August 2004.
William B. Lewis, J.T.R. CT Page 11927-dn