Opinion
No. FST CV 06 5002316
January 29, 2010
MEMORANDUM OF DECISION
This is an action by the plaintiff, Keith Simpson Associates, Inc. (plaintiff) against the defendant, Christina Ross (defendant). The essence of the plaintiff's allegation is that the defendant breached an agreement between the parties. The action also seeks foreclosure of a mechanic's lien on the defendant's property. The operative complaint in this matter is the plaintiff's five-count amended complaint filed January 23, 2009. Count one seeks foreclosure of a mechanic's lien. Count two sets forth a claim for breach of contract. Count three alleges unjust enrichment. Count four alleges conversion. Count five sets forth a cause of civil theft.
A court trial in this matter commenced on May 27, 2009, and concluded on June 23, 2009. Both parties were represented by counsel. At trial, the court heard testimony from six witnesses including Keith Simpson (Simpson), and the defendant, Christina Ross. Subsequently, each party submitted post-trial briefs regarding their respective positions.
FINDINGS OF FACT
"In a bench trial . . . the court sits as the trier of fact . . ." (Internal quotation marks omitted.) Knock v. Knock, 224 Conn. 776, 793, 621 A.2d 267 (1993). The court makes the following findings of fact.
The plaintiff is a landscaping architectural company operating in New Canaan, Connecticut since 1983. Keith Simpson, president of the plaintiff corporation, is a licensed landscape architect. During July 2005, the plaintiff entered into a written contract with the defendant for professional services regarding her application before the New Canaan Environmental Commission (Commission) for variances on a residential parcel. Specifically, the defendant, who is also a licensed architect, purchased property in New Canaan which included a historic single-family dwelling. The defendant intended to restore the home and use it as a secondary structure on the property. She further intended to build a six-bedroom home on the land which would be used as the primary residence for her family. The proposed improvements required a variance from the Commission.
During the initial stages of this project, the defendant began experiencing opposition from officials from the Commission in as much the construction required ingress and egress over wetlands on the property. Simpson contacted the defendant suggesting that his services might prove beneficial in an attempt to gain the required variance as, he represented, he had extensive experience with the Commission. On July 5, 2005, the plaintiff and the defendant entered into a written contract whereby the plaintiff would serve as a consultant to assist in presenting a favorable proposal to the Commission. The contract set forth that the plaintiff was to conduct site visits, meet with other specialized consultants, municipal officials and neighboring property owners. Ultimately, the plaintiff was to prepare a site plan for submission to the Commission. The contract provided for an hourly rate of $250.00 for Simpson's work and a maximum of $150.00 for all other office personnel working on the project. The defendant provided an initial retainer of $2,500. Pursuant to the contract the plaintiff designed multiple plans to submit to the town. The defendant sought several amendments to these plans which were subsequently incorporated by the plaintiff. The plaintiff additionally consulted with several specialists, including soil scientists, septic engineers, and land surveyors.
On December 8, 2005, the plaintiff forwarded an invoice to the defendant for $19,825.32, which included charges for services rendered and expenses from July until October 2005. While no written objection was made to the bill at this time, the defendant testified that she protested the charges verbally. The defendant contends that the maximum fee permitted under the contract was for $7,500, an amount which she attempted to pay, but which the plaintiff refused to accept. Furthermore, the defendant contends that although she periodically requested bills from the plaintiff, none were presented to her for consideration. Simpson continued to work on the proposal until January 2006, at which time his employment was terminated by the defendant. At this time, the plaintiff sent a final invoice which incorporated additional work performed between October and December 2005. The total for this bill was $46,809.32. Thereafter, pursuant to the defendant's request, the plaintiff submitted an itemized bill for services rendered. As a result of this itemization the plaintiff incorporated services which had been neglected in the original invoice, bringing the total due to $57,959.32. While the plaintiff did receive the retainer from the defendant, and provided a credit accordingly, it maintains that a balance of $55,459.32 is still due and owing. The plaintiff maintains that the defendant, without paying for the services, continued after the date of termination to use the plans in her application process. On March 17, 2006, the plaintiff filed a mechanic's lien for $46,809.32 on the defendant's property.
While the initial December 2005 bill charged a rate of $200 per hour as a professional courtesy, the plaintiff resubmitted a bill in January 2006 at which time it increased the rate to $250 per hour. Additionally, this January bill, which provided itemization for the work performed, increased the number of his billable hours from forty-nine to fifty-two and from ninety-two to 151.25 for that of his associate. The defendant contests the authenticity of many of the itemizations.
The present action commenced by service of process on September 14, 2006. The plaintiff seeks reimbursement pursuant to the terms of the contract including costs of collection and interest. The defendant has asserted several special defenses to the action which the court will address accordingly.
LEGAL DISCUSSION Count One: Foreclosure of the Mechanic's Lien
In the first count of the amended complaint, the plaintiff seeks foreclosure of a mechanic's lien. "In this state, a mechanic's lien is a creature of statute and gives a right of action which did not exist at common law . . . The purpose of the mechanic's lien is to give one who furnishes materials or services the security of the building and land for the payment of his claim by making such claim a lien thereon . . . Moreover, [t]he guidelines for interpreting mechanic's lien legislation are . . . well established. Although the mechanic's lien statute creates a statutory right in derogation of the common law . . . its provisions should be liberally construed in order to implement its remedial purpose of furnishing security for one who provides services or materials . . . Our interpretation, however, may not depart from reasonable compliance with the specific terms of the statute under the guise of a liberal construction." (Internal quotation marks omitted.) Intercity Development, LLC v. Andrade, 286 Conn. 177, 183-84, 942 A.2d 1028 (2008).
The defendant contends that General Statutes § 49-33, which governs mechanic's liens, is not applicable to services such as those performed by the plaintiff in this instance, and that, in any event, the lien was filed in excess of the ninety-day statutory requisite. Section 49-33 provides, in relevant part: "[i]f any person has a claim for more than ten dollars for materials furnished or services rendered in the construction, raising, removal or repairs of any building or any of its appurtenances or in the improvement of any lot or in the site development or subdivision of any plot of land, and the claim is by virtue of an agreement with or by consent of the owner of the land upon which the building is being erected or has been erected . . . then the plot of land, is subject to the payment of the claim." Persons entitled to claim a mechanic's lien pursuant to § 49-33 are those who have provided "services" or "materials" in connection with the construction, raising, removal or repairs of any building or any of its appurtenances or in the improvement of any lot or in the site development or subdivision of any plot of land . . ." § 49-33.
The two distinct types of services incorporated into § 49-33 are: "(1) services rendered in the improvement of any lot; and (2) services rendered in the site development or subdivision of any plot of land." Nickel Mine Brook Associates v. Joseph E. Sakal, P.C., 217 Conn. 361, 366, 585 A.2d 1210 (1991). The Appellate Court has constructed the meaning of "services" to be confined to that work which is of a mechanical nature or to those services related to the construction of a building which offer improvement to the land at issue. Thomas and Peck, Inc. v. Division Drywall, Inc., 241 Conn. 370, 378-79, 696 A.2d 326 (1997). "Historically, our cases construing the statute have required as a condition of lienability that the work done be incorporated in or utilized in the building to be constructed, raised, removed or repaired or in the improvement of any lot or subdivision." (Emphasis in original.)). Id., 379. Thus, § 49-33, does not extend to services which do not directly correlate to the physical construction, improvement or enhancement of the property as an essential component of the "scheme of improvement."
The plaintiff in this instance, as a landscape architect, provided consultation on the variance proposal sought by the defendant. More significantly, the plaintiff constructed and developed plans by which the defendant could enhance the existing structure on the property, which included designs to build a new single-family home. The court finds that the evidence presented sufficiently establishes that the parties contracted for the purpose of enhancing the physical property owned by the defendant, and provided such services in accordance with that objective.
In Weber v. Pascarella Mason St., 103 Conn.App. 710, 930 A.2d 779 (2007), the Appellate Court was asked to decide whether architectural services, including the drawings and plans which were used by the defendant to secure permits from the town, were considered lienable services within the confines of § 49-33. The court ruled that "the architectural services provided by the plaintiff in the present case satisfy the physical enhancement test, thus evidencing a direct association with the physical construction or improvement of the defendant's real property. The physical nature of architectural services, including those at issue, is undeniable . . ." Id., 718. The court reasoned that without the design and preparation needed to obtain the applicable permits there would be no building at all upon which to improve and as such lay the groundwork for the physical enhancement to real property. Id. In circumstances where the surveying and engineering work at issue is sufficiently associated with the physical construction or improvement of the land such that it may be deemed an integral part of receiving town approval for the overall project, such services are lienable. New England Savings Bank v. Meadow Lakes Realty Co., 243 Conn. 601, 614-15, 706 A.2d 465 (1998). See Marchetti v. Sleeper, 100 Conn. 339, 342, 123 A. 845 (1924) (engineering services undeniably offer physical enhancement to property). Accordingly, the court finds that the services rendered by the plaintiff in the instant matter are lienable under § 49-33.
The defendant next asserts that the mechanic's lien is invalid as it was untimely. General Statutes § 49-34 provides in relevant part: "A mechanic's lien is not valid unless the person performing the services or furnishing the materials (1) within ninety days after he has ceased to do so, lodges with the town clerk of the town in which the [property] is situated a certificate in writing, which shall be recorded by the town clerk with deeds of land . . ." The court credits the testimony of Simpson that he ceased to perform services no earlier than December 27, 2005. On January 6, 2006, the defendant called the plaintiff's office and indicated that their services were no longer necessary.
On March 17, 2006, the plaintiff filed a certificate of mechanic's lien with the town of New Canaan. The court therefore finds that the mechanic's lien was filed in a timely manner. The court further finds that the said lien was filed in accordance with the statutory provisions of § 49-34.
The plaintiff filed an amended mechanic's lien on August 3, 2006, increasing the amount claimed from $46,809.32 to $55,459.32. To the extent that the defendant's claim of untimeliness relates to the additional damages claimed in the amended lien, the court finds for the defendant. Only those costs encompassed within the originally filed lien are properly before this court. As such the court will not consider the additional claim of damage displayed in the amended lien. See Kesco, LLC v. 201 Salem Turnpike, LLC, Superior Court, Docket No. CV 09 5012053 (October 6, 2009, Cosgrove, J.) [ 48 Conn. L. Rptr. 576].
Count Two: Breach of Contract
In count two the plaintiff claims damages for breach of contract. The plaintiff asserts that on July 5, 2005, a written contract was entered into by the plaintiff and the defendant whereby the plaintiff was to perform certain architectural work and was, in return, to be compensated for his services. The plaintiff contends that although services and expenses were incurred in furtherance of the contract, the defendant has refused to tender payment in accordance with the terms of the agreement.
"The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages." (Internal quotation marks omitted.) American Express Centurion Bank v. Head, 115 Conn.App. 10, 15-16, 971 A.2d 90 (2009). "It is a fundamental principle of contract law that the existence and terms of a contract are to be determined from the intent of the parties . . . [T]he intent of the parties is to be ascertained by a fair and reasonable construction of the written words and . . . the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the [writing] . . . Where the language of the [writing] is clear and unambiguous, the [writing] is to be given effect according to its terms. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity." (Citations omitted; internal quotation marks omitted.) Auto Glass Express v. Hanover Insurance Co., 293 Conn. 218, 225-26, 975 A.2d 1266 (2009).
After careful review of all the evidence and corresponding legal principles, the court concludes that the plaintiff has sustained its burden of proof. The court finds the testimony of Simpson credible in that a contract was entered into by both the plaintiff and the defendant for architectural services. The contract was clear, concise and unambiguous. In pursuance of said contract the plaintiff rendered agreed services to the defendant. Although the plaintiff performed under the terms of the contract the defendant breached said contract by failing to render payment thereunder.
"Unjust enrichment applies wherever justice requires compensation to be given for property or services rendered under a contract and no remedy is available by an action on the contract . . ." Vertex v. Waterbury, 278 Conn. 557, 573, 898 A.2d 178 (2006). Having found that the plaintiff has sustained its burden regarding the breach of an operative contract the court need not address the merits of count three, unjust enrichment. "Parties routinely plead alternative counts alleging breach of contract and unjust enrichment, although in doing so, they are entitled only to a single measure of damages arising out of these alternative claims . . ." (Citations omitted.) Stein v. Horton, 99 Conn.App. 477, 485, 914 A.2d 606 (2007).
The defendant has asserted the following special defenses in response to the plaintiff's breach of contract claim: the plaintiff's work was performed negligently; the plaintiff failed to comply with the Home Improvement Act; the plaintiff performed work for which it was not authorized; and the plaintiff's recovery is barred by the doctrine of "unclean hands." "[T]he party who pleads a special defense bears the burden of proving that issue. See e.g, National Publishing Co. v. Hartford Fire Ins. Co., 287 Conn. 664, 673, 949 A.2d 1203 (2008); Selvaggi v. Miron, 60 Conn. App, 600, 601, 760 A.2d 539 (2000); Practice Book § 10-50." Ginsberg v. K.E. Braza Construction, LLC, Superior Court, judicial district of Middlesex, Docket No. CV 07 5003521 (January 21, 2009, Rubinow, J.). The court finds that the defendant has failed to sustain any of the claimed special defenses as referenced above.
a. negligent performance and unauthorized work
"[P]rofessional negligence or malpractice . . . [is] defined as the failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss, or damage to the recipient of those services." Votre v. County Obstetrics and Gynecology Group, P.C., 113 Conn.App. 569, 576, 966 A.2d 813 (2009). While the defendant has failed to provide analysis for these claimed special defenses, the court finds, based on the evidence presented at trial, that the defendant has failed to sustain these defenses.
The court credits the testimony of Simpson, as corroborated by Kathy Holland and Kristina Gates, that Simpson enjoyed a reputation as a respected and competent architect with an abundance of experience in appearing before the Commission. The record lacks any support for a claim that the plaintiff's work was performed in a professionally negligent manner. While the defendant may have been dissatisfied with the outcome of the permit application, such does not equate to a finding of professional negligence. Additionally, the contract is explicit and unequivocal in its obligations of both parties. The court finds that the testimony offered by the defendant that the work performed by the plaintiff was outside the authorization of the contract is incredible. Rather, the evidence establishes that the plaintiff rendered services as required by and within the scope of the terms of the agreement.
b. Violation of the Home Improvement Act
The defendant asserts in her fifth special defense that the plaintiff "failed to comply with the Home Improvement Act, C.G.S. § 20-418, et seq., and therefore, the Plaintiff is not entitled to payment." The Home Improvement Act provides that "[n]o 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, (8) is entered into by a registered salesman or registered contractor, and (9) 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." General Statutes § 20-429. The defendant has failed to articulate, either by way of pleading or briefing in this matter, which specific provision of the Home Improvement Act the plaintiff has allegedly violated to render the subject agreement unenforceable. After review of the evidence the court finds that the defendant has failed to sustain her burden of proving this special defense.
c. unclean hands
The defendant further asserts that the plaintiff may not recover on the contract under the doctrine of "unclean hands." "It is a fundamental principle of equity jurisprudence that for a complainant to show that he is entitled to the benefit of equity he must establish that he comes into court with clean hands . . . The doctrine of unclean hands expresses the principle that where a plaintiff seeks equitable relief, he must show that his conduct has been fair, equitable and honest as to the particular controversy in issue . . . Unless the plaintiff's conduct is of such a character as to be condemned and pronounced wrongful by honest and fair-minded people, the doctrine of unclean hands does not apply." (Citation omitted; internal quotation marks omitted.) Thompson v. Orcutt, 257 Conn. 301, 310, 777 A.2d 670 (2001). "The party seeking to invoke the clean hands doctrine to bar equitable relief must show that his opponent engaged in wilful misconduct with regard to the matter in litigation." (Internal quotation marks omitted.) Monetary Funding Group, Inc. v. Pluchino, 87 Conn.App. 401, 407, 867 A.2d 841 (2005).
The court credits the testimony of Simpson, Holland and Gates that the plaintiff performed in accordance with the terms of the contract. The record is devoid of evidence that the plaintiff engaged in willful misconduct, or that Simpson conducted himself in an unfair or dishonest manner during his employment. Accordingly, the court finds that the defendant has failed to sustain her burden of proof regarding this special defense.
Count Four — Conversion
In the fourth count of the amended complaint, the plaintiff alleges that the defendant's actions constitute conversion. Specifically, the plaintiff contends that the defendant continued to use the plaintiff's designs in her application process after the date of termination, and without having paid for such services. The Supreme Court has defined conversion as "[a]n unauthorized assumption and exercise of the right of ownership over goods belonging to another, to the exclusion of the owner's rights . . . It is some unauthorized act which deprives another of his property permanently or for an indefinite time; some unauthorized assumption and exercise of the powers of the owner to his harm. The essence of the wrong is that the property rights of the plaintiff have been dealt with in a manner adverse to him, inconsistent with his right of dominion and to his harm." (Internal quotation marks omitted.) Macomber v. Traveler's Property Casualty Corp., 261 Conn. 620, 649, 804 A.2d 180 (2002).
"Conversions may be grouped into two general classes: (1) those where the possession is originally wrongful; and (2) those where it is rightful and subsequently becomes wrongful. Under the first class, wrongful use and the unauthorized dominion constitute the conversion; therefore no demand for the return of the personal property is required. Under the second class, since the possession is rightful and there is no act of conversion, there can be no conversion until the possessor refuses to deliver up the property upon demand." Label Systems Corp. v. Aghamohammadi, 270 Conn. 291, 331 n. 30, 852 A.2d 703 (2004).
From the facts found by the court, the plaintiff has failed to sustain its burden of proof as to the elements supporting any cause of action for conversion. Therefore, judgment shall enter in favor of the defendant and against the plaintiff on count four of the complaint.
Count Five — Civil Theft
In count five of its amended complaint, the plaintiff makes a claim based on civil theft, and, in its prayer for relief, seeks treble damages pursuant to General Statutes § 52-564. That statute provides that "[a]ny person who steals any property of another, or knowingly receives and conceals stolen property shall pay the owner treble his damages." § 52-564. "Statutory theft under § 52-564 is synonymous with larceny under General Statutes § 53a-119 . . . Pursuant to § 53a-119, [a] person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or [withholds] such property from an owner. Conversion can be distinguished from statutory theft as established by § 53a-119 in two ways. First statutory theft requires an intent to deprive another of his property; second, conversion requires the owner to be harmed by a defendant's conduct. Therefore, statutory theft requires a plaintiff to prove the additional element of intent over and above what he or sit must demonstrate to prove conversion." (Internal quotation marks omitted.) Deming v. Nationwde Mutual Ins. Co., 279 Conn. 745, 771, 905 A.2d 623 (2006).
In Chernick v. Johnston, 100 Conn.App. 275, 280, 917 A.2d 1042, cert. denied, 282 Conn. 919, 925 A.2d 1101 (2007), the Appellate Court articulated that "the plaintiff's burden to prove statutory theft pursuant to § 52-564 [is] by clear and convincing evidence." See also Suarez-Negrete v. Trotta, 47 Conn.App. 517, 520, 705 A.2d 215 (1998) (plaintiff is required to satisfy the higher standard of proof by clear and convincing evidence to be entitled to an award of treble damages pursuant to § 52-564). Clear and convincing proof is sustained if evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist. Chernick v. Johnson, supra, 100 Conn.App. 280.
The plaintiff has failed to sustain its burden of proof for a claim of civil theft. The plaintiff's claim for treble damages must therefore fail. On this count judgment shall enter for the defendant and against the plaintiff.
DAMAGES
The court, having found in favor of the plaintiff on count two, must now address the claim for damages. "It is axiomatic that the burden of proving damages is on the party claiming them." (Internal quotation marks omitted.) 24 Leggett Street Ltd. Partnership v. Beacon Industries, Inc., 239 Conn. 284, 308, 685 A.2d 305 (1996).
The plaintiff asserts entitlement to damages in the amount of $55,459.32 plus interest in the amount of $26,503.91 and attorney fees and costs of $43,527.02 In matters tried to the court, the determination of whether damages should be awarded and, if so, the amount of damages so awarded, are solely the function of the court. "Proof of damages should be established with reasonable certainty and not speculatively and problematically." (Citations omitted; internal quotation marks omitted.) Leisure Resort Technology, Inc. v. Trading Cove Associates, 277 Conn. 21, 35, 889 A.2d 785 (2006). "(T]he nonbreaching party may recover only for damages that are direct[ly] and proximate[ly] caused by a defendant's breach of contract, causation is an element — and a crucial one — of the plaintiff's prima facie case . . ." (Citation omitted; internal quotation marks omitted.) McCann Real Equities Series XXII, LLC v. David McDermott Chevrolet, Inc., 93 Conn.App. 486, 503-04, 890 A.2d 140 (2006). "Damages are recoverable only to the extent that the evidence affords a sufficient basis for estimating their amount in money with reasonable certainty." (Internal quotation marks omitted.) Cas Construction Company v. Town of East Hartford, 82 Conn.App. 543, 556 (2004).
The court finds that the plaintiff has met its burden of proving by a fair preponderance of the evidence its entitlement to recover reasonable damages. The court credits the testimony of Simpson and Gates regarding the specifics of the work performed. In accordance with all of the evidence presented, including, but not limited to, exhibits 18 and 19, the court awards damages in the amount of $55,459.32 representing the unpaid balance for work performed by the plaintiff under the terms of the contract minus the initial deposit of $2,500 made by the defendant. The court additionally awards interest at the contract rate of 1.25% per month from February 2006, 30 days after rendition of the final invoice, until the date hereof. The court additionally awards attorneys fees and costs in the amount of $30,000, which the court finds to be fair and reasonable.
CONCLUSION
For the foregoing reasons the court finds for the plaintiff on counts one and two, and finds for the defendant as to all other counts.
The court orders that the matter be scheduled for a foreclosure judgment hearing at which time the court will address the merits of the foreclosure action as pled in count one.