Opinion
No. CV 03-103247-S
June 24, 2005
MEMORANDUM OF DECISION
This is an action by homeowners against a building contractor with whom they entered into a contract to build an addition to their home located in East Haddam, Connecticut for a total price of $43,500. After Michael J. Wrang d/b/a Wrang Builders walked off the job on July 8, 2003, the plaintiff homeowners hired certain other contractors to complete portions of the work and did certain other work themselves. They commenced suit in August 2003 and in their amended complaint of February 27, 2004, seek damages for breach of warranty, negligence, breach of contract as well as five counts alleging separate violations of the Connecticut Unfair Trade Practices Act. For the reasons set forth in detail below, the court finds for the plaintiffs on the contract count only and awards the sum of $14,121.61.
I. SPECIFIC ALLEGATIONS
The first count alleges that pursuant to the written contract entered into between the arties, the defendant Wrang was to perform all work in a "workmanlike manner according to standard practices." They alleged he breached this agreement by performing improper and incomplete work in that the foundation was poured improperly, the walls were not level, the work performed was not to specifications and not to code. Count two sounds in negligence and alleges substantially the same facts. Count three seeks damages for the breach of the contract with the same factual allegations, because the work at the time the defendant left the job was only half completed.
In counts four through eight, the plaintiffs allege the defendant failed to comply with the Connecticut Home Improvement Act, General Statutes § 20-418 et seq., and by doing so violated the Connecticut Unfair Trade Practices Act, General Statutes § CT Page 10629 42-110a et seq. Specifically, they claim that Mr. Wrang failed to provide notice of the owner's cancellation rights in accordance with General Statutes § 20-429(a)(6). They allege that such violations of the Home Improvement Act arc per se violations of the Unfair Trade Practices Act. In addition, they claim that the defendant
(a) falsely and deceptively promised the plaintiffs that he would address the defects in his work and that he did not and/or did so willfully and deliberately;
(b) omitted the notice of the plaintiffs' cancellation rights and/or did so willfully and deliberately;
(c) walked off the job and left the work only half complete and the home open to the elements and placed a mechanic's lien on the property for the unpaid balance of the contract;
(d) engaged in these acts, which were unfair and deceptive business practices which caused the plaintiffs an ascertainable loss.
As to all such violations of the Unfair Trade Practices Act the plaintiffs claim damages, punitive damages and an award of attorneys fees.
II. FACTS
From the evidence the court finds the following facts. In November or December 2002, Mr. Greenlaw first contacted the defendant Michael Wrang concerning the addition he and his wife sought to put onto their existing home in East Haddam, Connecticut. They specifically sought out Mr. Wrang because he was an engineer. Mr. Wrang prepared an initial set of plans in accordance with his discussions with the Greenlaws. The Greenlaws then sought estimates based on Mr. Wrang's plan from Mr. Wrang and other building contractors. In February of 2003, Mr. Wang's bid having been the lowest, they entered into a written contract with him which was amended several times. Work began in April 2003 and the expectation was that the work would be completed within three months.
A. Contract Claims
Trouble began almost immediately, as the work was not being performed to the Greenlaws' expectations of timing and quality of the work. There were substantial delays and some of the work being performed was shoddy. The building inspector was called a number of times to the job site. Even Mr. Wrang admitted that some of the work performed was not completed in a workmanlike manner. At that time in late April and May of 2003, he assured the Greenlaws that he would remedy the defects. As the work progressed and Mr. Wrang was often not actually on the job, the Greenlaws began to lose faith in Mr. Wrang's ability to do the work competently and Mr. Wrang began to lose faith in the Greenlaws' willingness to pay him as the work progressed. The Greenlaws insisted that all the problems be remedied before the third progress payment was to be made.
In a last ditch attempt to remedy the worsening situation between them, Mr. Wrang agreed to certain changes in the contract without an increase in the contract price and began to repair some of the visible defects. But the relationship between the two parties to the contract had deteriorated too far. When Mr. Wrang understood that the Greenlaws, who were on a tight budget, would not make the third progress payment after the sheetrock work had been largely completed inside, he terminated the relationship and walked off the job.
One of the more egregious examples of the problems Mr. Wrang was having was that in the course of building the addition, some wiring in an existing wall was cut. It was not left out to be repaired but simply pushed back behind the sheetrock in its cut state. Mr. Wrang testified that this was wrong, that he was not proud of what he did, but that he had intended to remedy it later. In addition, he testified that he himself was inspecting bridges for the State of Connecticut at the time and had more work than he could handle. He was also unable to supervise his workers adequately.
From the voluminous exhibits and the testimony, the court finds that when Mr. Wrang walked off the job on July 8, 2003, there were many aspects of the construction work performed that had not been performed in a workmanlike manner and needed correction. There was also work that had not been finished.
The Greenlaws hired the construction firm of Brown and Wimler to complete and correct certain items. Specifically, the firm corrected siding that had been improperly placed on the addition, built a balcony deck, finished and corrected certain roofing and reconstructed a valley on the roof which had been leaking badly during each rain. The firm tore down and rebuilt a "bump out" of the upstairs bedroom, which rain had regularly come into the house due to improper installation of the sills and placement of the addition. The company completed the sheet rock taping inside and cut out sheetrock in the garage where it installed columns to support the roof and the second story, which had been improperly joined to the first floor roofing timbers. They completed the interior stairs. The court finds that the work Brown and Wimler corrected had been improperly completed by Mr. Wrang and his assistants. The court concludes that the amount paid of $22,071 was reasonable for the work, which remained to be completed and corrected when Mr. Wrang left the job.
Brown and Wimler also had some difficulty in collecting the full sums believed due, as Mr. Greenlaw concluded that the workers on the job were not there the full hours of labor they were claiming and a compromise was reached to reduce the amount of the outstanding bill.
While Mr. Wrang testified to cheaper and simpler corrections, the fact remains that once he walked off the job, the Greenlaws were only obligated to take reasonable steps to complete the contract and remedy the defects, not the same steps Mr. Wrang would have taken.
In addition to these contract damages, Mr. Greenlaw paid Tourello Engineers $1,370 to inspect and make recommendations as to what should be done on the addition, which the court concludes was reasonable. He also incurred fees for Balcom Inspection of $200.
Mr. Greenlaw also kept careful track of the many tasks he performed himself as he was on a tight budget. The court credits his record keeping and claim for payment of $25 an hour for the work. Mr. Greenlaw is a licensed electrician and has some skill in the construction trade and the court finds such compensation to be reasonable under the circumstances. Mr. Greenlaw provided many receipts, many photographs and a competed spread sheet to list the many tasks that he performed. The court finds from the evidence that a total of 381 hours was spent on all the items the court approves listed on exhibit 8 and finds that a total amount for labor of $9,525 is due. From Exhibits 3, 8 and 10 as well as testimony, the court concludes that total materials purchased by the Greenlaws to complete the contract are $2,455.61.
This is the total sum of $3,260.18 claimed on Exhibit 10, less the materials disallowed by the court for the grading, drainage and topsoil of $315 and $250 as claimed on Exhibit 8, as well as the Middlesex Plumbing Supply receipt of $239.57 on Exhibits 9 and 3.
There are certain items of damage plaintiffs claim that the court specifically finds were not necessary and does not award. The court concludes that the 100 hours Mr. Greenlaw spent to build retaining walls, install footing drains and complete stone work and so on around the outside of the garage were not required, given the soil characteristics and grade of the lot. Furthermore, the court also concludes that the paving of the driveway was not occasioned because of Mr. Wrang's demolition of a small area of paving just outside the front of the garage. The $2,500 paid to a paving contractor for this work is also disallowed.
Thus, the total amount of money damages the court concludes directly followed from Mr. Wrang's breach of the construction contract for all of the above work is $35,621.61 with an offset of $21,500.00 still due Mr. Wrang under the contract for a net total of $14,121.61. The court awards this net sum for contract damages.
The plaintiffs have also made a claim for loss of use of the home while the construction was ongoing and for inconvenience. The court does not award the claimed sums as the court concludes they are not proper contract damages. The Greenlaws were able to use some of their home throughout the time in question. They did not have a penalty clause in their contract entitling them to damages if the work was not completed on time. While the work took indeed longer than expected and caused considerable inconvenience, such amounts are not compensable under the contract count.
B. CUTPA CLAIMS
The court finds that the contract entered into between the parties was subject to the Home Solicitation Sales Act § 42-135a, the requirements of which are incorporated in the Home Improvement Act, § 20-418 et seq. Mr. Wrang was a home improvement contractor and is registered as required by the act. Plaintiffs allege in one of the CUTPA counts that the contract they received did not contain the notice of the owners' cancellation rights required. Mr. Wrang testified that he sent the notice to them as page 3 of the contract they signed, as best he can recall. He admitted candidly that it did not comply with the details of the statute, and that all of his contracts since the filing of this lawsuit have complied. He still had in his possession at the time of trial the envelope in which the Greenlaws returned the signed contract with the modifications they had added to him, but the page with the notice of the right of cancellation was not returned.
Sec. 42-135a. Notice in sales agreement. Notice of cancellation. Duties of seller.
No agreement in a home solicitation sale shall be effective against the buyer if it is not signed and dated by the buyer or if the seller shall: (1) Fail to furnish the buyer with a fully completed receipt or copy of all contracts and documents pertaining to such sale at the time of its execution, which contract shall be in the same language as that principally used in the oral sales presentation and which shall show the date of the transaction and shall contain the name and address of the seller, and in immediate proximity to the space reserved in the contract for the signature of the buyer, or on the front page of the receipt if a contract is not used, and in boldface type of a minimum size of ten points, a statement in substantially the following form:
YOU, THE BUYER, MAY CANCEL THIS TRANSACTION AT ANY TIME PRIOR TO MIDNIGHT OF THE THIRD BUSINESS DAY AFTER THE DATE OF THIS TRANSACTION. SEE THE ATTACHED NOTICE OF CANCELLATION FORM FOR AN EXPLANATION OF THIS RIGHT.
(2) Fail to furnish each buyer, at the time such buyer signs the home solicitation sales contract or otherwise agrees to buy consumer goods or services from the seller, a completed form in duplicate, captioned "NOTICE OF CANCELLATION," which shall be attached to the contract or receipt and easily detachable, and which shall contain in ten-point boldface type the following information and statements in the same language as that used in the contract."
Mr. And Mrs. Greenlaw testified that they had no recollection of the notice of their rights to cancel the contract, as required by the statute. Of the two contrary versions, the court credits Mr. Wrang's testimony and finds that he provided a generic notice of the cancellation rights to the Greenlaws that did not conform in all specifics to the statutory requirements, in that the requisite number of copies were not attached, the notice was not in the type size required nor did it contain the exact statutory language. The court also concludes from this testimony that Mr. Wrang's failure to comply with the exact details of the statutory requirements was neither willful nor deliberate.
In Wright Brothers Builders, Inc. v. Dowling, 247 Conn. 218, 231, 720 A.2d 235 (1998), the Supreme Court had occasion to review a notice of the right of cancellation in a home improvement contract that was significantly more in accordance with the statutory requirements than Mr. Wrang's generic notice. In Wright, the builder was suing to recover sums claimed due under the contract, but had failed to include more than one copy of the notice. The copy that was included did not contain the date of the transaction and the date by which the owners could cancel the transaction, although that information was readily ascertainable from the contract to which the notice was appended. The trier of fact had concluded that the violations were minor and technical in nature. The court noted:
The HIA 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. While the purposes of the statute are advanced by an interpretation that makes compliance with the requirements of § 20-429(a) mandatory, it does not necessarily follow that advancement of the purposes also requires that the mandatory compliance with each subsection be technically perfect. (Internal citations and quotation marks deleted.)
The statute prohibits claims by a contractor against a homeowner under circumstances where the statutory scheme has been violated. In the present case, the court notes that Mr. Wrang is not claiming any contract damages, as he recognizes and acknowledges his failure to comply with the statute.
There is no question that Mr. Wrang violated the Home Improvement Act by failing to include both the proper language in his notice as well as failing to provide the requisite number of copies. Thus, the court concludes that there was a per se violation of CUTPA, requiring a detailed analysis of the CUTPA claims made in this case.
The CUTPA claims allege additional violations, other than the failure to provide notice of the right of recission, most prominent among them that Mr. Wrang did not intend to remedy the defects in his work at the time he promised to make the repairs and that his failure to do so was willful. The court concludes from the testimony that willfulness has not been demonstrated. The court concludes that Mr. Wrang did intend to honor his word to correct all agreed-upon deficiencies at the time he made the promises to do so. This specific CUTPA violation has not been proven.
The claims also allege that he walked off the job and left the home open to the elements. The court has found he walked off the job, but cannot find that the home was left open to the elements, as alleged. There were tarps on the roof and over the uncompleted portions of the work. The court concludes that the evidence to support this claimed CUTPA violation is inadequate to prove a violation. Also alleged is that Mr. Wrang filed a mechanics lien on the Greenlaws' property for the balance of the contract amount. This fact was established and admitted. The lien was later released when the violation of the Act was made known through counsel.
"A party seeking to recover damages under CUTPA must meet two threshold requirements. First, he must establish that the conduct at issue constitutes an unfair or deceptive trade practice . . . Second, he must present evidence providing the court with a basis for a reasonable estimate of all the damages suffered." (Internal quotations marks omitted.) Jacques All Trades Corp. v. Brown, 42 Conn.App. 124, 130, 679 A.2d 27 (1996), aff'd, 240 Conn. 654, 692 A.2d 809 (1997). Under the first requirement, failure to comply with the act "is a per se violation of CUTPA by virtue of . . . [General Statutes] § 20-427(c), which provides that any violation of the Home Improvement Act is deemed to be an unfair or deceptive trade practice." (Internal quotations marks omitted.) Meadows v. Higgins, 49 Conn.App. 286, 296, 714 A.2d 51 (1998), rev'd on other grounds, 249 Conn. 155, 733 A.2d 172 (1999). The plaintiffs have satisfied this requirement.
The question next arises what ascertainable loss was caused by Mr. Wrang's failure to supply the proper notice to the Greenlaws. Homeowners are entitled to compensatory and punitive damages in accordance with General Statutes § 42-110g of the Unfair Trade Practices Act when a contractor who falls under the requirements of the Home Improvement Act fails to comply with the act's statutorily mandated requirements, General Statutes § 20-418 et seq. To recover such damages, the Greenlaws must present evidence providing the court with a basis for a reasonable estimate of the damages sustained, General Statutes § 42-110g(a). No such specific evidence was provided.
The Greenlaws were relatively sophisticated consumers of construction services. They sought out several bids, indeed they used Mr. Wrang's drawings before they entered into any contract with him to solicit bids from other contractors, a use he had not contemplated nor authorized. Had Mr. Wrang included the proper number of copies of the exact notice required, the outcome in this case is not likely to have been different. That is to say that the damages the Greenlaws suffered are not connected to the breach of the Home Improvement Act and the consequent failure to comply with the Unfair Trade Practices Act. There is simply no causal connection. As to the filing of the mechanics lien which was later released, no evidence was presented to the court as to what loss was occasioned by the filing of the lien to which plaintiffs now point as an ascertainable loss. The court concludes therefore that while there was a per se violation of CUTPA, there were no proven damages which were caused by the violation. This court holds that none of the counts alleging CUTPA violations have been proven, despite the per se violation, and finds for the defendant on these counts. Having found no CUTPA violation, the court need not address the plaintiffs' claims for punitive damages and attorneys fees.
Judgment may enter in favor of the plaintiffs on the contract claim in the net amount of $14,121.61. Judgment enters for the defendant on all remaining counts.
BY THE COURT
BARBARA M. QUINN, Judge