Opinion
No. CV02 039 51 52 S
July 6, 2004
MEMORANDUM OF DECISION
This case was tried to the court. Plaintiff Creative Waterscapes, LLC, seeks to recover $29,122.62 for construction materials and services provided to defendants John C. Maxwell and Carol Maxwell in connection with the renovation of a swimming pool and spa at the defendants' residence, $2,939.12 for maintenance services rendered during the 2000 and 2001 swimming seasons, and $96,687.50 for legal services rendered by plaintiff's attorney in connection with this case. The Maxwells, in response to these claims, assert the plaintiff failed to comply with the provisions of the Home Improvement Act, Gen. Stat. § 20-418 et seq. (HIA), and as a consequence is barred from enforcing its claims. The Maxwells, by way of a counterclaim, want to recover $1,481.00 as reimbursement for repairs and, asserting a violation of the Unfair Trade Practices Act, Gen. Stat. § 42-110a (CUTPA), want an award of $44,000.00 for attorneys fees. This court, after weighing the evidence and evaluating the parties' legal theories, awards plaintiff Creative Waterscapes, LLC $18,756.62.
A brief summary of the pleadings, which are numerous and lengthy, is necessary to identify the issues before the court. In the first count of its complaint, the plaintiff alleges that the defendants breached written and oral contractual agreements. In the second and third counts, the plaintiff alleges alternative theories of recovery, i.e. quantum meruit and unjust enrichment. In response to these claims, the defendants allege two special defenses. The Maxwells assert, as a complete bar to all of the plaintiff's claims, that the parties' written contract does not contain starting and completion dates as required by § 20-429(a)(7) of the Home Improvement Act (HIA). As a defense to some of the plaintiff's claims, the Maxwells assert that changes in the terms and conditions of the contract were not in writing as required by the same sub-section of the HIA. The plaintiff, in response to the special defenses, alleges that the Maxwells are precluded from relying on the Home Improvement Act for two reasons: (1) they waived the protections of the act and (2) they acted in bad faith. Creative Waterscapes, LLC also alleges that it should be allowed to recover under equitable principles because it has, as a practical matter, complied with the pertinent provisions of the Home Improvement Act.
While the defendants' purport to aver seven special defenses, they have as a practical matter only raised the two defenses described above. Their claim that there was a failure of consideration was neither discussed at trial nor addressed in post-trial briefs. The court considers this latter claim to be without merit and abandoned.
The plaintiff has set forth these issues in a pleading captioned Reply and Matters in Avoidance of Special Defenses (file item 103.00). While the pleading contains six replies or matters, the allegations are repetitive and present the issues that have been described by the court.
Additional issues are presented by the Maxwells' counterclaim. They allege (1) the plaintiff committed a violation of the Connecticut Unfair Trade Practices Act, Conn. Gen. Stat. § 42-110a et seq. (CUTPA); (2) provided work of unacceptable quality; and (3) breached the parties' written contract. For relief, the Maxwells seek $1,481.03 for compensatory damages and $44,000.00 for attorneys fees incurred in connection with this litigation. The plaintiff, in response to the Maxwell's counterclaim, alleges that it has not violated CUTPA.
The plaintiff alleges six special defenses to the counterclaim. These defenses are (1) the plaintiff is entitled to recover payment because of its "practical compliance" with subdivision 7 of § 20-429(a); (2) the defendants voluntarily and knowingly waived their rights under the act by urgently pressing the plaintiff to commence work; (3) the defendants signed the contract in bad faith because at the time they had assumed that it was invalid under the provisions of the Home Improvement Act; (4) the defendants have invoked the Home Improvement Act in bad faith and are therefore estopped from relying on the act; (5) the defendants have breached a covenant of good faith and fair dealing; and (6) the defendants' bad faith and the plaintiff's "practical compliance" with the provisions of the act preclude the defendants from a recovery under the Unfair Trade Practices Act.
The following facts set forth the basis for this court's resolution of the parties' claims. The plaintiff, Creative Waterscapes, LLC, is a business entity that builds and services in-ground swimming pools. It is registered as a home improvement contractor. Joseph Socci owns the business. His father, Loretto Socci, is employed by the business. In August of 1999, the Maxwells sought the Soccis' assistance in renovating a swimming pool that was located on the grounds of a home that the Maxwells had just purchased. Loretto Socci met with Carol Maxwell at the residence and also showed her pools in the area that the plaintiff had constructed. On September 21, 1999, Joseph Socci submitted a written proposal to the Maxwells. In this document (Plaintiff's Exhibit No. 34), the plaintiff offered to refurbish the Maxwell's pool, install a stone terrace, construct a waterfall and a spa, install a heater for the pool and spa, build a berm next to the pool, and perform other work, all as detailed in the proposal. The quoted price for this work was $58,500. The written proposal, with a modification concerning the size of the pool and the price, became the parties' contract.
At the time Joseph Socci prepared the proposal, he could not set forth therein a definite date for starting the work since the Maxwells wanted to use the existing pool until the end of the 1999 swimming season. Thus, the proposal provided that the "start date" was "to be arranged." The "finish date" was stated as "spring of 2000."
The Maxwells gave the proposal to Attorney James M. Hawley for his review and comments. At the time, the Maxwells were dealing with another contractor in connection with a major renovation and expansion of their house. They sought Attorney Hawley's advice on both projects. They discussed the plaintiff's proposal with Attorney Hawley and received his written comments. Attorney Hawley expressed concerns about the absence of written standards for the plaintiff's work and prepared a document, which is captioned "rider" (Plaintiff's Exhibit Nos. 72 and 100). In this document, Attorney Hawley set forth performance standards but did not elaborate on the lack of specificity with respect to the start and finish dates. While the document is not part of the parties' contract, it illustrates the Maxwells' lack of concern with respect to the imprecise times specified in the contract for the commencement and completion of the pool project.
On November 5, 1999, John C. Maxwell signed the proposal and returned it to the plaintiff along with a check for $16,625. At this time, the parties decided to increase the size of the pool for an additional payment of $6,000. This change was noted on the agreement. John C. Maxwell and Joseph Socci initialed the change. In this way, the agreed-upon price for the project became $64,500. Carol Maxwell did not sign the agreement.
The plaintiff fulfilled the legal requirements with respect to notifying the defendants of their rights to rescind a home improvement contract. See General Statutes §§ 20-429(e) and 42-135a. There is no dispute on this point.
On November 13, 1999, Carol Maxwell telephoned Joseph Socci and urged him to start work. On December 2, 1999, Carol Maxwell and Joseph Socci signed and filed with the Town of Fairfield an application for a building permit for the project.
The plaintiff performed preliminary work on the project in December of 1999 and suspended work when cold, winter weather arrived. The plaintiff resumed work in March of 2000. Progress was delayed, in part, by wet springtime weather and, later, by a supply shortage in the kind of stone that Mrs. Maxwell had selected for the pool project. On June 6, 2000, the Maxwells paid $19,350 for work and materials that had been billed on an invoice dated April 15, 2000.
The Maxwells had hoped that the pool would be finished sometime in April. After work started in the spring, they discussed the project with Joseph Socci and as a result expected the project to be completed by Mothers' Day. Later, they became concerned over delays and consulted Attorney Hawley. Attorney Hawley, by letter to the plaintiff dated July 26, 2000, insisted that the defendant set a completion date and finish the project. The plaintiff set August 5, 2000, as the new completion date. The plaintiff completed the project by the new date with the exception of the pool cover.
The written contract includes an "option" for an automatic safety cover at an additional cost of $15,000. In December of 1999, the Maxwells told Joseph Socci that they wanted the pool cover installed. Mr. Socci ordered this item in May of 2000 from an independent contractor, who installed the cover in October of 2000. This item could not have been installed earlier since electrical work for the house project was not completed until October. The electrical work was the responsibility of the general contractor who was renovating the house. With the installation of the pool cover, the total cost of the project, as specified in the contract, amounted to $79,500.00.
In addition to the work specified in the written contract, the plaintiff, pursuant to oral agreements, expanded the terrace and spa beyond the original specifications. Invoices given to the Maxwells show the plaintiff's charges for these modifications amount to $14,258.50.
The price for the renovation project as set forth in the written contract ($79,500.00) and the charges for the extras ($14,258.50) amount to $93,758.50. On December 4, 2000, the Maxwells paid an additional amount, $31,600, toward the outstanding invoices. Their three payments ($16,625.00; 19,350.00; and $31,600.00.) total $67,575.00. Thus, the plaintiff claims it is due $26,183.50 ($79,500.00-$67,575.00) for work and materials.
The Maxwells asked the plaintiff to service the pool during the 2000 and 2001 swimming seasons. The service charge for year 2000 was $1,070.39 and for year 2001 the charge was $1,868.12. The invoice for the year 2000 service was mailed on January 31, 2001. The invoice for the year 2001 service was mailed on October 30, 2001. The service charges have not been paid, leaving a balance of $2,939.12 due for service work. The court finds that these services were rendered and that the charges are fair and reasonable.
The Maxwells contend the plaintiff unsatisfactorily performed its contractual obligations. They claim that the heater was improperly installed and never worked properly, that the pool cover did not work properly, and that the masonry work was inconsistent. With respect to the heater, the parties' contract provides that electrical connections, gas lines, and permits required to install gas heaters "are not included in this agreement." The plaintiff supplied an appropriately sized heater, as required by the contract. The plumbing contractor who was working on the house renovation connected the heater to the gas line that services the house. In December of 2003, as the parties were getting ready for the trial of this case, the heater installation was inspected by the Town of Fairfield. As a result of this inspection, the parties learned for the first time that the plumber had used pipe of insufficient diameter and that the gas meter was undersized. The evidence shows that these deficiencies were in all likelihood the cause of the problems with the gas heater. In light of the terms of the parties' contract, the plaintiff is not responsible for the deficiencies in the operation of the heater.
The owner of the company that installed the cover system credibly explained that the system was installed properly, that it was done in accordance with industry standards, that the operating problems about which the defendants complain were caused by a lack of routine maintenance, and that a fair charge for repairing the cover system should be no more than $250.00. The plaintiff is not responsible for this charge as it is a maintenance rather than in installation matter.
The same masons did all of the stone work. The plaintiff, in an effort to satisfy the Maxwells' desires with respect to the appearance of the terrace, changed some of the terrace stones. There is, however, nothing wrong with the masonry work.
Based on the foregoing facts, this court would, in the absence of considering the issues relating to the Home Improvement Act, find that the plaintiff is entitled to recover $26,183.50. The issues under the Home Improvement Act will now be addressed. For this analysis, it is noted that the plaintiff's $26,183.50 claim has three components: $11,925.00 for work and materials provided under a written contract, $14,258.50 for work and materials provided under oral agreements, and $2,939.12 for service and maintenance work.
The Maxwells' first special defense is that the written agreement does not contain a start and a completion date and therefore does not satisfy the requirements of the Home Improvement Act. Section 20-429(a) of the General Statutes provides that "No home improvement contract shall be valid or enforceable against an owner unless it . . . (7) contains a starting date and completion date . . ." If a contract does not contain starting and completion dates, enforcement is precluded. Rizzo Pool Co. v. Del Grosso, 232 Conn. 666, 680, 657 A.2d 1087 (1995) (contractor, who was barred by owner from commencing pool installation, was precluded from recovering damages for breach of contract since contract lacked start and finish dates). On the other hand, "letter-perfect" compliance with the provisions of the act is not required. Wright Brothers Builders, Inc. v. Dowling, 247 Conn. 218, 720 A.2d 235 (1998). "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. at 231. The plaintiff bears the burden of showing that there has been practical compliance with the Home Improvement Act.
The court finds that the plaintiff has borne its burden of showing compliance with the Home Improvement Act. The imprecise times specified in the contract for starting and completing the project were agreed upon after the defendants consulted their attorney. The phrase "to be arranged" was used for the starting date because the Maxwells wanted to use the existing pool until the end of the swimming season. Whatever ambiguity in this term that may have existed was removed by Carol Maxwell's urging the plaintiff to commence work immediately and by her signing the building permit that was needed for the project. "Spring 2000" was a sufficient description of the completion date in light of the nature of the project. Under the circumstances, the alleged deviations are "technicalities" rather than matters of material non-compliance. The deviations neither deprived the defendants of clear notice that they had a right to cancel the contract nor interfered with their understanding of the terms of the contract. Since the plaintiff has shown that the written agreement complies with the Home Improvement Act, the claim for $11,925.00 that is made under the written contract is not precluded due to imprecise start and finish times.
The Maxwells' second special defense is that the changes in the terms and conditions of the contract were not in writing as required by the Home Improvement Act. The plaintiff seeks to recover $14,258.50 for work and services provided under oral modifications to the written agreement. Section 14-427(a) of the General Statutes provides, in pertinent part, as follows: "Each change in the terms and conditions of a contract shall be in writing and shall be signed by the owner and contractor . . ." The plaintiff has failed to show compliance with this provision and is precluded from recovering for such work unless it can establish that the defendants either waived the protections of the act or acted in bad faith.
The plaintiff has failed to prove that the defendants knowingly and intentionally waived their rights. The plaintiff has utterly failed to show defendants acted in bad faith. See Kronberg Brothers v. Steele, 72 Conn. App. 53, 62, 804 A.2d 239 (2002) (meaning of term "bad faith"). In light of this court's finding that bad faith has not been proven, the plaintiff may not recover on either of the alternative theories of recovery that are asserted in the second and third counts. Thus, the claim for $14,258.50. which is based on oral modifications of the contract, is precluded by Section 14-427(a).
The defendants do not claim the pool cleaning and related services, which were done over a two-year period after the pool and spa renovations were completed, constituted home improvements. See Gen. Stat. § 20-419(4). This part of the plaintiff's claim ($2,989.12) is not barred by the Home Improvement Act.
Based on the foregoing, the court concludes that the plaintiff is entitled to recover $14,864.12, which sum includes $11,925.00 for materials and services that were provided under the written contract and $2,939.12 for maintenance services. The plaintiff claims interest and attorneys fees should be added to this award. The court, as explained below, awards $1,446.00 as interest and $2,446,50 as attorneys fees.
The claims for attorneys fees and interest are based on a provision in the parties' contract. Interest and attorneys fees are proper elements of damages where the parties have expressly contracted for the payment of interest and attorneys fees. Guaranty Bank Trust Co. v. Dowling, 4 Conn. App. 376, 385-86, 494 A.2d 1216 (1985). The interest rate that may be recovered is limited by General Statute § 37-3a to "interest at the rate of ten per cent a year, and no more . . ." Under the parties' contract and § 37-3a interest is to be award from the time the money becomes due. With respect to the service and maintenance charges, the court finds that the due dates were January 31, 2001, and October 30, 2001, so that approximately $850.00 is due as pre-judgment interest on this part of the plaintiff's claim. With respect to the balance that is due under the written contract, this court finds that there was a good faith dispute as to the plaintiff's workmanship and that the detention of money became wrongful in December of 2003 after the parties knew or should have known that the plumber was responsible for the problems with respect to the water heater. The court awards $596.00 as interest on the amount due under the contract.
The contract reads, in part, as follows: "owner shall pay one and one half percent (1 1/2 %) interest per diam on the unpaid balance month from the date of default to the date of payment and the owner shall pay all of the collection including reasonable attorneys fees, subject to the limits of Connecticut statute, if any."
The plaintiff also asserts a claim for interest under Practice Book § 17-18 and General Statutes § 52-192a based on its having made an offer of judgment. Since the judgment of this court is less than the plaintiff's demand of $29,000.00, the plaintiff is not entitled to receive interest under these provisions of the law.
The plaintiff seeks an award for attorneys fees in an amount of $96,687.50. In support of this claim, the plaintiff's counsel filed with this court an affidavit describing counsel's work. The amount that is requested is disproportionate to the issues submitted to the court for consideration. Moreover, the amount that may be collected from the defendants as attorneys fees is limited by General Statutes § 42-150aa(b) to "not more than fifteen per cent of the amount of any judgment which is entered." This court awards the plaintiff $2,446.50 for attorneys fees.
A Letter of Engagement (Exhibit 115) signed by the plaintiff and its counsel provides, in part, as follows: "My services are based on your right to collect attorneys fees . . . This right is stated as terms in the accepted contract." The letter also provides that "my fee will be charged at $175."
The court concludes that Maxwells have failed to establish their counterclaim. Their claim that the plaintiff violated the Connecticut Unfair Trade Practices Act, Gen. Stat. § 42-110a (CUTPA), is premised on their contention the defendant failed to comply with the § 20-429(a)(7) of the Home Improvement Act. A failure by a contractor to comply with the Home Improvement Act is a per se violation of CUTPA. See MacMillan v. Higgins, 76 Conn. App. 261, 279, 822 A.2d 246, 279 (2003). Because this court has concluded, as explained above, that there was compliance with the Home Improvement Act, the defendants' CUTPA claim fails. The court also concludes that the Maxwells have failed to prove that the plaintiff's work was of unacceptable quality or that the plaintiff breached the written contract. Since the Maxwells' claim for attorneys fees is based on their claim that there was a CUTPA violation, their claim for an award for attorneys fees fails.
Finally, the court notes that Carol Maxwell did not sign the home improvement contract and, at the time the agreement was signed by her husband, was not an owner of the home. She became an owner at a later time. She is not liable for the contractual debt. She is, however, jointly liable with her husband for the maintenance charges and the interest thereon. Her liability is $3,789.12 ($2,939.12 for maintenance charges + $850.00 for interest).
Plaintiff Creative Waterscapes, LLC., is to recover from defendant John C. Maxwell $14,864.12 in compensatory damages, $1,446.00 in pre-judgment interest, and $2,446.50 in attorneys fees for a total award of $18,756.62. Defendant Carol Maxwell is jointly liable to the extent of $3,789.12.
THIM, J.