Opinion
No. CV 02 0187614 S
March 15, 2005
MEMORANDUM OF DECISION
This is the second time this case has come before the court for a ruling on the acceptance of an attorney trial referee's report. The facts of the case were detailed in the court's Memorandum of Decision of July 16, 2003. Put succinctly, the plaintiffs sought the return of $43,600 in fees paid to the defendant for architectural services rendered by the defendant in connection with proposed renovations to the plaintiffs' single-family residential dwelling. After a trial, the attorney trial referee recommended that judgment enter in favor of the plaintiffs for $43,600 on the first count of the complaint because the defendant, a licensed architect in New York, did not hold a license from the State of Connecticut to practice architecture. Acting upon the plaintiffs' motion for acceptance of the report of the referee, the court rejected the report, finding as a matter of law, that the defendant was exempt from the licensing requirements of the statute by virtue of Conn. Gen. Statutes § 20-298(2). The court also remanded the case to the attorney trial referee to determine the claims of the plaintiffs raised in the fourth, fifth, sixth and seventh counts of their complaint. These counts sounded in negligence, "detrimental reliance," breach of the implied covenant of good faith and fair dealing, and unjust enrichment, respectively. The attorney trial referee issued a supplemental report on July 8, 2004 recommending that judgment enter in favor of the defendant on all counts of the complaint.
In his initial report, the attorney trial referee found insufficient evidence to sustain the plaintiffs' claims of fraud and violation of the Connecticut Unfair Trade Practices Act, raised in their second and third counts.
The matter now comes again before the court, this time upon the plaintiffs' objection to the attorney trial referee's supplemental report. The objection contains two grounds:
1) findings of facts stated in the Supplemental Report are inconsistent with findings of fact in the Report Of Attorney Trial Referee And Recommendation Of Entry Of Judgment Dated February 28, 2003 (hereinafter `Initial Report') and
2) the Attorney Trial Referee erred in rulings on evidence with regard to the plaintiffs' claims that the construction plans were inadequate.
Although only these two grounds were stated in the objection, the plaintiffs go on in their objection to argue that the attorney trial referee should have found that the defendant was negligent (fourth count) and the defendant was unjustly enriched (seventh count). In their Supplemental brief, ordered by the court, they add the argument that the contract between the plaintiffs and defendants is illegal, void as against public policy and unenforceable because the Home Improvement Act (HIA) and the Home Solicitation Sales Act (HSSA) were violated, and that therefore, the plaintiffs are entitled to a return of the monies paid to the defendant.
The second count of the plaintiff's complaint alleges a violation of the HSSA. In their post-trial brief of November 4, 2002, and in oral argument on their objection to the acceptance of the Supplemental Report of the attorney trial referee, the plaintiffs contended that an unlicensed architect must comply with the HIA and the HSSA. The attorney trial referee has not addressed this question. In his initial report, the attorney trial referee found that the defendant was not entitled to retain his fees because he was an unlicensed architect in Connecticut. It was therefore, unnecessary, at that time, for the attorney trial referee to resolve the issues involving HIA and HSSA.
On remand, the attorney trial referee decided counts four, five, six and seven as ordered by the court. That left the HIA-HSSA arguments unaddressed. Since they involve purely questions of law, the court will decide them in this memorandum of decision along with all other objections raised and briefed by the plaintiffs.
I.
The first and most significant claim raised by the plaintiffs is that the defendant, an architect licensed in another state but not in Connecticut, must adhere to the provisions of the HIA and, through it, the HSSA. It must first be noted that certain activities of an architect are exempt from the provisions of the architect's licensing statute, Chapter 390 of the Conn. Gen. Statutes. In this case, the court has previously determined that the defendant was exempt from the requirement of obtaining an architect's license in order to draw residential plans for the plaintiffs, pursuant to Conn. Gen. Statutes § 20-298(2). See Osherow v. Diao, Superior Court, judicial district of Stamford/Norwalk, at Stamford, Docket No. CV 02 0187614S (July 16, 2003; D'Andrea, JTR) ( 35 Conn. L. Rptr. 149).
Connecticut General Statutes § 20-298 reads, in pertinent part, as follows: "the following activities are exempted from the provisions of this chapter: . . . (2) the construction or alteration of a residential building to provide dwelling space for not more than two families, or of a private garage or other accessory building intended for use with such residential building, or of any farm building or structure for agriculture use . . ."
The question is, then, did the defendant architect, exempt from licensure as such, become a "contractor" under the provisions of the HIA, when he prepared plans for the renovation of the plaintiffs' house? The court answers the question in the negative. To compare the very nature of the work performed by a person practicing architecture under Conn. Gen. Statutes § 20-288(3) with that of a "contractor" under Conn. Gen. Statutes § 20-419(3) and 20-419(4) is to compel that conclusion. The defendant in this case, in performing services for the plaintiffs, was practicing architecture as defined in § 20-288(3). He was not a contractor as defined in § 20-419(3) and (4) providing "home improvement." The HIA relates to contractors, that is people who actually perform work on the premises, but not to consultants, lawyers, or architects. Gouveia v. Pressman, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. CV 89 0097970 (October 23, 1989; Lewis, J.). The language of § 20-419(4) describing "home improvement" cannot logically be said to include architectural services. Indeed, § 20-419(4)B provides that home improvements do not include a sale of goods by one who does not perform ". . . any work or labor in connection with the installation or application of . . . goods or materials." Id. The plaintiffs contend that homeowners need the protection from unlicensed architects that the HIA provides. The simple response is that an architect, licensed or unlicensed, is not doing the work contemplated by the HIA for which a homeowner may need or expect protection.
The HIA is contained in Conn. Gen. Statutes, Chapter 400, § 20-419 et seq.; Section 20-419(3) reads as follows: "`contractor' means any person who owns and operates a home improvement business or who undertakes, offers to undertake or agrees to perform any home improvement . . ."
Section 20-419(4) reads as follows: "`Home improvement' includes, but is not limited to, the repair, replacement remodeling, alteration, conversion, modernization, improvement, rehabilitation or sandblasting of, or addition to any land or building or that portion thereof which is used or designed to be used as a private residence, dwelling place or residential rental property, or the construction, replacement, installation or improvement of driveways, swimming pools, porches, garages, roofs, siding, insulation, solar energy systems, flooring, patios, landscaping, fences, doors and windows and waterproofing in connection with such and or building or that portion thereof which is used or designed to be used as a private residence, dwelling place or residential rental property or the removal or replacement of a residential underground heating oil storage tank system, in which the total cash price for all work agreed upon between the contractor and owner exceeds two hundred dollars. `Home improvement' does not include: (A) The construction of a new home; (B) the sale of goods by a seller who neither arranges to perform nor performs, directly or indirectly, any work or labor in connection with the installation or application of the goods or materials; (C) the sale of goods or services furnished for commercial or business use or for resale, provided commercial or business use does not include use as residential rental property; (D) the sale of appliances, such as stoves, refrigerators, freezers, room air conditioners and others which are designed for and are easily removable from the premises without material alteration thereof; and (E) any work performed without compensation by the owner on his own private residence or residential rental property."
See footnotes two and three.
The plaintiffs point out that licensed architects are exempt from the provisions of the HIA by virtue of Conn. Gen. Statutes § 20-428(4) of the act. Apparently assuming the converse, they argue, in their initial post-trial brief (November 4, 2002) that an unlicensed architect must comply with the HIA and HSSA, citing Campbell v. Romaine, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. CV 95-0144241 (March 31, 1998; D'Andrea, J.). That case, however, does not stand for the proposition for which the plaintiffs cite it. In Campbell, the plaintiff was in fact a licensed architect seeking to recover architectural fees. In denying a motion for summary judgment made by the defendant homeowner, Judge Lewis simply decided that Conn. Gen. Statutes § 40-428 exempts licensed professionals, which includes architects, from the requirements of the HIA and HSSA. Nowhere in that case was it declared that an unlicensed architect must comply with the HIA. In fact, the plaintiffs cite no authority whatever that an architect, performing architectural services, exempt under the architects' statute from obtaining an architect's license, is deemed to become a home improvement "contractor;" Conn. Gen. Statutes § 20-419(3), and therefore must comply with the provisions of the HIA.
Conn. Gen. Statutes § 20-428 reads in pertinent part as follows: "this chapter shall not apply to any of the following persons or organizations . . . (4) any person holding a current professional or occupational license issued pursuit to the General Statutes . . ."
See footnote five.
Judgment in the Campbell case was in favor of the plaintiff architect. Compounding the mis-citing of Campbell and obvious confusion, the plaintiffs in their November 4, 2002 post-trial brief (Conclusions Of Law, page 9, paragraph 2), in reference to Campbell erroneously state "see footnote #4 discussing the law of the case, with specific reference to Judge Lewis' determination in the matter of Garten v. Chachkes, 1990 Conn.Super LEXIS 1102 (August 28, 1990, judicial district of Stamford/Norwalk at Stamford) (2 Conn. L. Rptr. 308)." In fact, in footnote #4 the court finds Judge Lewis' decision on the summary judgment in Campbell to be the law of the case. (Architects are exempt from HIA.) Nowhere in Campbell is the Garten case mentioned. Indeed, nowhere in the Garten case is there any reference to the HIA or HSSA.
II.
In plaintiff's objection to the Acceptance of the Supplemental Report of the Attorney Trial Referee, dated November 1, 2004, they assign as one ground for their objection that findings of facts stated in the Supplemental Report are inconsistent with the earlier report of the referee. Specifically, the plaintiffs complain that the attorney trial referee first stated that the plaintiffs were interested in architectural drawings for certain particular renovations and other "minor upgrades," but then, in the Supplemental Report, the attorney trial referee used the phrase a "general upgrade." Apparently the plaintiffs seek to have the court sustain their objection because of the attorney trial referee's use of these vague, undefined, allegedly inconsistent terms. The court notes, however, that the attorney trial referee's use of the phrase "minor upgrades" in his initial report (February 28, 2003) was in connection with what the plaintiffs, at the first meeting with the defendant in November 1999, indicated they wished done. In his Supplemental Report (July 8, 2004), the attorney trial referee found that "the parties met again from time to time thereafter to discuss the scope of the project and based upon a specific project scope — addition of a family room of approximately 900 sq. ft., alteration of the kitchen, master bedroom suite and main entrance and a `general upgrade' — a project budget of $300,000 was set." (Emphasis added.) The court sees no inconsistency as claimed by the plaintiffs, and finds no merit in their objection on this ground.
III. CT Page 4701
The next claim of the plaintiffs is that of negligence as alleged in the fourth count of the amended complaint, that is, that the defendant had a duty to provide a scope of services and work product that was in accordance with the American Institute of Architects Standards, and that he breached that duty. "This court's scope of review of an attorney trial referee's report was reiterated by the Supreme Court in Elgar v. Elgar, 238 Conn. 839, 848-49, 679 A.2d 937 (1996). The court held in that case that: `[a] reviewing authority may not substitute its findings for those of the trier of the facts. This principle applies no matter whether the reviewing authority is the Supreme Court . . . the Appellate Court . . . or the Superior Court reviewing the findings of . . . attorney trial referees. See Practice Book § 443 [currently § 19-17] . . . The factual findings of a [trial referee] on any issue are reversible only if they are clearly erroneous . . . [A reviewing court] cannot retry the acts or pass upon the credibility of the witnesses . . . A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.' Citations omitted; internal quotation marks omitted.). See also TDS Painting Restoration, Inc. v. Copper Beech Farm, Inc., 45 Conn.App. 743, 751, 669 A.2d 173, cert. denied, 243 Conn. 908, 701 A.2d 338 (1997) (the court `cannot find additional facts or reject others unless a material fact has been found without evidence.').
Pursuant to Elgar v. Elgar, supra, 238 Conn. 845, this court has two tasks to perform in reviewing an attorney trial referee's report. The first task is to determine whether the `referee's findings of fact were supported by the evidence.' Id. The second task is to ascertain whether `the conclusions drawn there from were legally and logically correct.' Id."
The plaintiffs argue that the defendant should have advised them as to the increased cost of the project. The attorney trial referee found that there was no evidence of a standard of care that was adopted by the American Institute of Architects for the provision of scope of services or work product. The attorney trial referee noted that the negligence count does not plead a failure to meet a reasonableness standard, and he found the plaintiffs' expert offered his own opinions as to the conduct of the architect, but did not testify concerning the existence of, or the details of, any American Institute of Architect standard for scope of services or work product. The trier of the fact is not required to accept uncontradicted expert testimony. Evans v. Taylor, 67 Conn.App. 108, 113, 786 A.2d 525 (2001).
"The acceptance or rejection of the opinions of expert witnesses is a matter peculiarly within the province of the trier of fact and its determinations will be accorded great deference by this court." (Internal quotation marks omitted.) Carter v. Carter, 8 Conn.App. 356, 358, 512 A.2d 979 (1986)." In its consideration of the testimony of an expert witness, the trial court might weigh, as it sees fit, the expert's expertise, his opportunity to observe the defendant and to form an opinion, and his thoroughness. It might consider also the reasonableness of his judgments about the underlying facts and of the conclusions which he drew from them . . .
"It is well settled that the trier of fact can disbelieve any or all of the evidence proffered . . . including expert testimony, and can construe such evidence in a manner different from the parties' assertions." (Internal quotation marks omitted.) State v. Alvarado, 62 Conn.App. 102, 112, 773 A.2d 958, cert. denied, 256 Conn. 907, 772 A.2d 600 (2001). We conclude that the credibility and weight to be given to the testimony of the defendant's expert was solely within the province of the court. Further, "[d]espite the defendant's contention to the contrary, the trial court is not required to accept uncontradicted expert testimony." (Internal quotation marks omitted.) Simard v. Commissioner of Motor Vehicles, 62 Conn.App. 690, 696, 772 A.2d 1137 (2001)."
Evans v. Taylor, supra, 67 Conn.App. 113.
Furthermore, the attorney trial referee found that the expansion of the project occurred with the full knowledge and consent of the plaintiffs, if not at their behest. He found that both plaintiffs had input into the design process, that they did not accept the first set of plans tendered, and the construction drawings were not begun until the design drawings were approved by the plaintiffs. The court finds that there is sufficient evidence in the record for the attorney trial referee to find, as he did, that the plaintiffs knew or should have known, before the project plans were completed and the project was put out to bid, that the original budget was no longer realistic and that the price for construction of the project in accordance with the final design and construction plans would be substantially higher than the budget for the original scope of work.
The attorney trial referee's recommendation that judgment enter for the defendant on the fourth count, based on negligence, is supported by the evidence.
IV.
The final issue raised and briefed by the plaintiff is that of unjust enrichment, alleged in the seventh count of the amended complaint. They claim that the attorney trial referee's finding that there was no credible evidence that the plans would not have been sufficient for use by a contractor throughout the construction process was clearly erroneous. Again, the plaintiffs rely on the uncontradicted testimony of their expert, this time that the plans were not sufficient for use for their intended purposes. The trier of facts is not required to accept the uncontradicted testimony of an expert. Evans v. Taylor, supra, 67 Conn.App. 113. The burden of proving that the plans were unusable was on the plaintiffs. The attorney trial referee did not find credible any evidence upon which to conclude that the plans would not have been sufficient for use by a contractor throughout the construction process. Rather, he found the design drawings created by the defendant were sufficient to enable him to prepare construction plans, and the construction plans were sufficiently detailed to permit three contractors to bid on the project. "There was credible testimony to the effect that the construction plans had some shortcomings, that they were lacking in specificity. Based upon the totality of the evidence, however, I do not find these shortcomings material. There was no credible evidence proving that the construction plans were so unsuitable or incomplete as to cause them to fail of their essential purpose, nor did the plans fail to meet any proven standard of care owed to the plaintiff." Supplemental Report Of Attorney Trial Referee, July 8, 2004, page 6.
V.
In conclusion, the court determines that all of the findings of fact of the attorney trial referee were supported by the record, and that the conclusions drawn therefrom were legal and logically correct. Killion v. Davis, 257 Conn. 98, 102, 776 A.2d 456 (2001); Elgar v. Elgar, 238 Conn. 839, 845, 848-49, 679 A.2d 937(1996). The recommendations set forth in the attorney trial referee's Supplemental Report of July 8, 2004 are accepted, the plaintiffs' objections thereto are overruled. Judgment shall enter in favor of the defendant in accordance with the Report.
D'ANDREA, J.T.R.