Opinion
No. CV 054013311
December 1, 2010
MEMORANDUM OF DECISION
The plaintiff, Pacemaker General Contractor, LLC, (Pacemaker) brings this action against Anne J. Jones and Richard Petrillo, claiming that they owe it money for professional construction services it provided to them. The defendants filed an answer denying this claim along with special defenses and counterclaims, alleging that, far from owing the plaintiff money, it in fact owed them money. The parties presented their arguments and evidence during a courtside trial on March 24, 30 and May 11, 2010. The parties also both filed Post-Trial Briefs on August 6, 2010.
In the Amended Complaint dated November 7, 2006, the plaintiff claims money damages in the amount of $10,000. At trial, the plaintiffs owner, Phillip Bilides, claimed the defendants owed $11,700. Trial Transcript, p. 6.
All the trial testimony is memorialized in the Trial Transcript, dated March 24, March 31 and May 11, 2010, pages 1 to 301. The plaintiff offered three full exhibits. The defendants offered Exhibits A through EE.
In a Five Count Amended Complaint dated November 7, 2006, the plaintiff alleges two counts of breach of contract and two counts of unjust enrichment. The defendants, in an Answer to the Amended Complaint and Special Defenses and Counterclaims, deny that they owe the plaintiff money; and they claim that the contract at issue in this case is unenforceable and that the work done by the plaintiff was unprofessional and incomplete. For reasons more fully set forth herein, this court finds that the plaintiff has failed to meet its burden of proof on any of its claims; and that defendant Jones has proven the first count of the counterclaim.
The First Count derives from the filing of a Mechanic's Lien which was not the subject of the court trial.
I. FINDINGS OF FACTS
"It is well established that in cases tried before courts, trial judges are the sole arbiters of the credibility of witnesses and it is they who determine the weight to be given specific testimony . . . It is the quintessential function of the fact finder to reject or accept certain evidence . . ." In re Antonio M., 56 Conn.App. 534, 540, 744 A.2d 915 (2000). Further, "[t]he sifting and weighing of evidence is peculiarly the function of the trier [of fact]. Nothing in our law is more elementary than that the trier [of fact] is the final judge of the credibility of witnesses and of the weight to be accorded their testimony . . . The trier is free to accept or reject, in whole or in part, the testimony offered by either party." (Citations omitted; internal quotation marks omitted). Smith v. Smith, 183 Conn. 121, 123, 438 A.2d 842 (1981).
The court finds the following facts:
1. Pacemaker is a limited liability corporation authorized to do business in Connecticut.
2. The principal and owner of Pacemaker is Phillip Bilides.
3. Mr. Bilides is an experienced contractor, having built at least 40 new homes over his years in the profession.
4. On September 9, 2004, Pacemaker, through Bilides, entered a written agreement with defendant Richard Petrillo. (Plaintiff's Exhibit 1.)
Though this issue was not raised by the defendants, the court notes that the Pre-Printed Agreement form, onto which the terms of the agreement were memorialized lists the name of the Seller/Contractor as "Bilides Building Excavation." The corporate name "Bilides Building Excavating" is crossed out and over it is handwritten "Pacemaker General Construction, LLC." However, unlike with the other additions and corrections on the Agreement, this "correction" is only initialed by Mr. Bilides ("BP") and not by both Mr. Bilides and Mr. Petrillo ("PB" and "RP"). The court takes judicial notice of the fact that Mr. Bilides previously had some interest in the company "Bilides Building and Excavating, LLC." See, Rosina v. Bilides B. E., Superior Court, judicial district of New Haven at New Haven, Docket No. CV 020462976 (December 3, 2002, Zoarski, J.).
5. The Agreement between Pacemaker and Petrillo set forth terms and conditions for the construction of an in-law addition to property located on 282 Spring Street in North Haven, Connecticut.
6. Mr. Bilides knew, at the time he entered the agreement with Mr. Petrillo, that the homeowners did not intend for the addition to be a free-standing structure, but rather intended it to be attached to the existing residential structure.
7. The property located at 282 Spring Street, North Haven, Connecticut was a single-family residence.
8. The property located at 282 Spring Street, North Haven, CT, was owned by Cliff and Anne Jones (husband and wife).
9. Defendant Petrillo resided in 282 Spring Street, North Haven, CT.
10. The September 9, 2004 Agreement was between non-owner defendant Petrillo and the plaintiff and not between the owner (defendant Jones) and the plaintiff.
11. The Agreement contained no Notice of Cancellation.
12. Mr. Bilides unintentionally omitted the Notice of Cancellation from the Agreement.
13. Mr. Bilides knew that the project was a home improvement and not a new home.
14. The Agreement established a start date of September 13, 2004 and estimated that all work would be complete within 120 days.
15. The Agreement set forth a contract price of $114, 000.00 and a payment schedule as follows: $20,000 "when const signed"; $10,000 when foundation complete; $10,000 when frame complete; $10,000 when roof and siding complete; $10,000 when rough mechanicals complete; $10,000 when sheet rock complete; $10,000 when floors installed; $10,000 when trim and doors installed; $10,000 when paint complete; and $14,000 when job complete.
There is no dispute that a $20,000 deposit was paid by defendant Jones at or near the time the Agreement was initially entered into by the plaintiff and Mr. Petrillo.
16. Pacemaker left the job at the Jones' residence in January 2005, before it completed the work outlined in the Agreement.
17. Defendant Jones had paid the plaintiff $40,000 by January 2005.
18. In January 2005, the plaintiff had not completed all of the framing work; all of the siding work; or all of the roofing work.
19. Subsequently, defendant Jones was required to hire another contractor to complete or correct work that the plaintiff had left.
20. The work which the subsequent contractor, Ronald Neubig, completed, redid or repaired included: redoing the basement stairs and risers; repairing the header/blocker in garage wall; exposing and installing anchor bolts; replacing steps in garage; and inserting a lolly column top and bottom plates.
21. The plaintiff provided no accounting for the work it completed or for the value of that work.
22. The plaintiff provided no accounting for the work that remained to be completed or corrected.
23. Mr. Bilides made a demand for a payment of $10,000 even though he knew that he had not completed all the contracted for work and even though he knew that some of the work required repair.
24. Mr. Bilides made a demand for a payment of $10,000 even though he knew that the Agreement he had entered with Mr. Petrillo did not constitute a valid home improvement contract.
25. Although the 2004 Agreement set forth a payment schedule, that schedule does not reflect the monetary value of the work performed or the services provided.
26. Defendant Jones hired other construction professionals to complete the unfinished work on the in-law addition over the course of several years.
27. Ronald Neubig completed and corrected unfinished which resulted in a cost of materials and labor to defendant Jones as follows: replacement of basement stairs cost $1,800; installation of header/blocking in garage cost $150; replacement of basement steps cost $250; exposure of anchor bolt cost $250; installation of lolly column top plate cost $750; and installation of bottom plate cost $1,000.
28. Pursuant to the contract, the addition of the in-law suite to the residence did not change the residence from a one-family dwelling; and the expanded continuous building retained its single family address.
29. The in-law addition required no certificate of occupancy, nor did it require separate phone lines or cable lines.
30. The work performed by the plaintiff was home improvement, in that it consisted of an addition to an existing single family resident.
31. The contract entered into by the plaintiff and defendant Petrillo did not comply with the Home Improvement Act.
II. THE PLAINTIFF'S BREACH OF CONTRACT CLAIMS
The plaintiff claims that it entered a written Agreement with the defendants to provide construction services to build an in-law addition onto the single family residence located at 282 Spring Street, North Haven, CT and that the defendants failed to provide payment pursuant to that Agreement. The plaintiff concedes that the Agreement did not contain a Notice of Cancellation, as is required for a Home Improvement Contract, but contends that one was not needed because the contract was for a new home and not a home improvement. The defendants counter that the plaintiff cannot claim that they breached the contract or enforce the contract because it was legally insufficient when signed.
Transcript, p. 9.
Transcript, p. 6.
A. Whether Contract is for New Home or Home Improvement
There is no dispute that the Agreement, as executed by Mr. Bilides and Mr. Perrotti, did not contain all the requisite elements under the Home Improvement Act (HIA). Namely, it was not executed by the contractor and the owner; and it did not contain a notice of owner's cancellation rights. Therefore, the first issue the court must determine is whether or not the contract at issue is a Home Improvement contract or one for a New Home.
Connecticut General Statutes, Section 20-429 (The Home Improvement Act) provides in pertinent part: "(a) No home improvement contract shall be valid or enforceable against the 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 owner's cancellation rights in accordance with the provision of Chapter 740, (7) contains a starting date, and (8) is entered into by a registered salesman or a registered contractor."
"The plain language of § 20-429(a) invalidates any home improvement contract in which the cancellation notice required by General Statutes § 42-135a is not included." Parvin Group, LLC v. Barry, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 065003016 (June 4, 2007, Hiller, J.).
The HIA, found in General Statutes Chapter 400, provides a definition for home improvement. That definition provides, in pertinent part: "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 . . ." (Emphasis added.) § 20-419(4). The statute also provides for exceptions to the "home improvement" definition. The only one that is relevant to this matter is the one found at § 20-419(4). "Home improvement does not include: (A) construction of a new home . . ."
The court did not find the testimony of Mr. Bilides credible, despite the plaintiff's argument throughout the trial that the contract was clearly one for new construction. The plaintiff relies upon the following facts to support its claim: the contract, itself, describes the project as "one family house"; the license he used was for new homes; the permit that issued was for a new build; the construction required all the things a new construction would require (including a foundation, framing, roofing, heating, electrical and plumbing); and the in-law addition required a separate meter for electricity.
In the narrative of the Agreement the description of the project is to "complete house including labor + materials." Plaintiff's Exhibit 1.
Mr. Bilides testified that he used his new home license because he was told that he had to do this. Transcript, pp. 4-5.
Although in its Post-Trial brief, the plaintiff argues that the permit issued in this case was for New Home construction, the Building Application (which Mr. Bilides completed himself) and the Building Permit that was issued both describe the project as an In-Law construction. The application describes it as "1-Family In-Law" and the Permit describes it as "Building In-Law Addition." Defendants' Exhibits C and D.
The defendants maintain that the contract was for home improvement because the building was and remained a one-family residence. The defendants argue that, notwithstanding the elements required in the project, the construction project was an addition to or renovation of an existing home and not a construction of a new build or a new home. Further, the defendants introduced the facts that, though there was a separate meter for electricity, the phone lines and cable lines remained the same for the entire residence and the address remained the same. To construe that the work was anything other than home improvement would make a mockery of the Home Improvement Act, the defendants argue.
The proven facts which militate in the plaintiff's favor (namely that the agreement contains Bilides' new home license number; and the new construction required separate electrical) are not, ultimately persuasive. These facts do not distinguish this case from the many cases addressing additions to existing single family residences. This is hardly the first instance in which a Connecticut Court has had to determine whether a home improvement contract governed the construction of an addition to an existing residence.
Applying the same reasoning used by Judge Hiller in Parvin, this court concludes that the work in this case clearly falls within the scope of the HIA. "The present case does not present a complaint alleging only a contract or construction work; it is clear that constructing a new frame addition to the [defendants'] existing dwelling, among the other work detailed in the complaint and incorporated contract, involves 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 . . . constituting home improvement under the act. General Statutes § 20-419." Parvin Group, LLC v. Barry, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 065003016 (June 4, 2007, Hiller, J.).
The plaintiff argues that this court should apply the reasoning of the court in Laser Construction LLC v. Torrance Family LTD, 108 Conn.App. 222, 947 A.2d 989 (2008), to conclude that the work at issue in this case was for new construction, rather than home improvement. However, the facts in that case are not analogous to those in this case, nor is the holding directly applicable.
In Laser Constr., the appellate court upheld the trial court's conclusion that the services provided by the contractor in installing a modular home at a new site and then in making improvements to the newly installed home, qualify for the statutory exception in HIA for contracts for construction of a new home. Id. at 223. One of the key factors in the Laser Constr. decision was that there was continuous uninterrupted construction on a new site. The court concluded that the addition to the modular home was still considered a new home, because it found that all of the construction work, (the initial installation and construction work and the renovations and additions) constituted one act. ". . . [T]he plaintiff's services [making repairs and alterations and upgrades to the unit] were not separate and distinct from the underlying project of reassembling and preparing [the unit] at a new location." Id. at 228.
There are certainly analogous facts between this case and the Laser case, namely that the work involved additions; and that the additions required electrical, plumbing and heating services. But, here is where the analogies end. The construction in the instant matter was adding to an existing and inhabited building, not to a new and vacant lot. Further, the construction of the addition in this case was not executed at the time of the construction of the existing home, nor did it require a Certificate of Occupancy.
As plaintiff's counsel is well aware, there are far more analogous decisions, addressing additions to existing homes and they all conclude that the HIA governs the work. Three recent trial court decisions addressing similar issues to the ones in this case are particularly helpful. Parvin v. Barry, supra, Docket No. CV 065003016; Fahey v. Senterline Constr., Superior Court, judicial district of Tolland at Rockville, Docket No. CV 030082081 (September 23, 2005, Epstein, J.) aff'd, 98 Conn.App. 903, 908 A.2d 1153 (2006); and Santos Constr. v. Savino, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 030481020 (June 29, 2004, Hadden, JTR) [ 37 Conn. L. Rptr. 250]. In each of the three superior court cases, the additions are treated as home improvements. In Parvin, the court found that a "new frame addition to the existing dwelling on the property of the defendants," was governed by the HIA. Similarly, the court in Santos Constr. found that the addition of a one-floor, two-piece modular home to an existing two-floor home was a home improvement under the definition of the statute. And, Judge Epstein, in Fahey found, as a finding of fact, that work in remodeling and building an addition to the plaintiff's home was a home improvement.
The plaintiffs factual argument that it neither attached the addition to the existing home nor intended that the addition be attached to the existing building is totally irrelevant. Clearly, home improvements, according to the statute can include work done within existing residences, as well as work done outside of them. The statute itself makes reference to "additions to land or building."
The defendants do not concede that the addition was separate and not attached to the existing residence. But, whether it was attached by the plaintiff or not is irrelevant.
Considering all the evidence, the arguments of the parties and the law, this court concludes that the contract at issue is one for home improvement. Therefore, the Agreement was legally insufficient because it was not executed by the home owner and contractor and because it did not contain a cancellation notice. Accordingly, the contract is unenforceable and the defendants are entitled to judgment on the two breach of contract counts of the plaintiff's complaint.
B. Breach of Contract Claim Against Anne Jones
Even if the court had not found that the contract was one for home improvement, it would still have found that the plaintiff failed to meet its burden of proof for the second count. First, the Second Count of the Amended Complaint alleges that Anne Jones breached the contract. Whether the contract is one for a new home or for home improvement, it was not with Anne Jones. The signed agreement was between Bilides (Pacemaker) and Petrillo, only. Therefore, Anne Jones is entitled to judgment on this Count on this ground. Second, the Agreement entered into evidence does not comply with the legal requirements for a New Home. As the owner of the plaintiff and plaintiff's counsel should well know, construction of new homes is governed by Chapter 399a of the General Statutes (§§ 20-417a et seq.) which sets forth requirements for New Home contracts. While failure to comply with the requirements of that chapter does not always automatically void a contract, it is certainly one of the factors to consider in determining the contract's enforceability. And, failure to comply with the requirements of the statute subjects the contractor to liability for damages incurred by the consumer pursuant to a CUTPA claim.
General Statutes, Section 20-417d governs Contracts for New Homes and provides in pertinent part: "(a) A new home construction contractor shall (1) prior to entering into a contract with a consumer for a new home construction, provide to the consumer a copy of the new home construction contractor's certificate of registration and a written notice that (A) discloses that the certificate of registration does not represent in any manner that such contractor's registration constitutes an endorsement of the quality of such person's work . . . (B) advises the consumer to contact the Department of Consumer Protection . . . (c) advises the consumer to request from such contractor a list of consumers of new homes constructed to completion by the contractor . . . (D) discloses each corporation . . . in which the owner or owners of the new home construction contractor . . . have been a shareholder, member, partner or owner . . . The new home construction contractor, or his agent, shall also discuss with the consumer the installation of an automatic fire extinguisher system in a new home.
(b) A new home construction contractor shall include in every contract with a consumer a provision advising the consumer that the consumer may be contacted by such contractor's prospective consumers concerning the quality and timeliness of such contractor's new home work . . .
(c) The written notice required in subsection (a) of this section shall be in capital letters not less than ten point bold faced type and may include a statement in substantially the following form . . ." (Emphasis added.)
Mr. Bilides testified that he has built over 40 new homes. Transcript, p. 8.
See, Thier v. Kenyon, 49 Conn.Sup. 346, 348-49, 879 A.2d 917 (2005), citing Nussbaum v. Kimberly Timbers, Ltd., 271 Conn. 65, 856 A.2d 364 (2004), which upheld the trial court's conclusion that though several of the required terms were not in the New Home Contract, it was not necessarily voided.
"[T]he act provides that a violation of any of its provisions shall be deemed an unfair or deceptive trade practice under subsection (a) of Section 42-110b; General Statutes § 20-417g; thereby exposing the violator to a private lawsuit under the Connecticut Unfair Trade Practices Act (CUTPA) . . ." D'Angelo Development Constr. Co. v. Cordovano, 278 Conn. 237, 244-45, 897 A.2d 81 (2006).
The plaintiff offered no evidence whatsoever regarding the issue of its compliance with the New Home Construction Contractors statutes. It did not provide testimony that the homeowner or consumer was given the verbal advisements required by the statute. It did not provide a contract that contained all the necessary elements under the statute. It did not produce a copy of Bilides' certificate of the registration that was supposed to have been given to the homeowner or consumer.
The testimony offered by the plaintiff, that it intended to enter and did enter a New Home contract with the defendants is simply not credible. However, if the testimony of Mr. Bilides was sincere, his counsel completely failed to provide any proof to support his claim that he was seeking to enforce a valid New Home Contract. Accordingly, the breach of contract claim against Anne Jones fails.
C. Breach of Contract Claim Against Robert Petrillo
The Fourth Count of the Amended Complaint alleges that Robert Petrillo breached his agreement with the plaintiff. Specifically, the complaint claims that Mr. Petrillo failed to pay the money due and owing to the plaintiff following its completion of the siding and the roofing. Defendant Petrillo, unlike defendant Jones, was a signatory to the September 2004 Agreement. As noted above, even if the court assumes arguendo that the work done was not home improvement, the plaintiff has failed to establish that it had an enforceable New Home Contract with defendant Petrillo for the reasons set forth above. Additionally, the court also finds that the plaintiff failed to establish that all of the necessary work had been completed when it made the demand for payment. Therefore, the court finds that the plaintiff has failed to meet its burden of proof that Mr. Petrillo owes it money pursuant to the Agreement.
Mr. Bilides testified on direct that the plaintiff completed the siding and roofing work prior to its demand for the $10,000. The court does not find this testimony supported by the evidence. The plaintiff was able to offer no direct evidence to corroborate its claim that it satisfactorily completed the framing, roofing and siding. There is no dispute that, at the time Mr. Bilides made the demand for the $10,000 payment, there still remained unfinished items relating to the framing, the preceding work listed in the agreement. Accordingly, this court concludes, even if the work was not a "home improvement," which it was, and even if the contract was an enforceable New Home contract, which it was not, the plaintiff still failed to establish by a preponderance of the evidence that it had completed all of the items of work listed in the Agreement which would entitle it to the claimed monetary payment.
Transcript p. 5.
This court recognizes that direct evidence is not required in order to meet one's burden of proof. A case may be proved with circumstantial evidence. However, the absence of direct evidence, such as pictures, photographs or eyewitness testimony, when credibility is at issue, is a factor that the court considers.
Transcript, pp. 72-73.
According to Mr. Bilides' testimony, completion of certain itemized work entitled the plaintiff to the corresponding payment. Because the plaintiff received payment before the framing work was completed, it is not entitled to subsequent payments. The evidence is insufficient to prove by a preponderance of the evidence that the plaintiff completed the necessary work to entitle it to an additional payment of $10,000.
III. UNJUST ENRICHMENT CLAIMS
Because this court concludes that the contract at issue was one for home improvement, the plaintiff's unjust enrichment claims fail, too. "Absent proof of bad faith on the part of the homeowner, General Statutes § 20-429 permits no recovery by a home improvement contractor under theories of quantum meruit or unjust enrichment if the home improvement contractor fails to comply with the statutory requirements of the act." Dinnis v. Roberts, 35 Conn.App. 253, 257, 644 A.2d 971, cert denied, 231 Conn. 924, 648 A.2d 162 (1994). The plaintiff has offered no proof of bad faith on the part of defendant Jones. Therefore, the plaintiff is not entitled to judgment on its Unjust Enrichment claims.
Again, even assuming this contract was not governed by the HIA, this court would still find that the defendants are entitled to judgment on the unjust enrichment counts because the plaintiff has failed to meet its burden of proof against either defendant. In its complaint, Pacemaker alleges that the defendants have unjustly benefitted because it provided services to them for which it was not compensated. The doctrine of unjust enrichment has three requirements: "(1) the defendant benefitted, (2) the defendant unjustly failed to pay the plaintiff for the benefits, and (3) the failure of payments was to the plaintiff's detriment . . . All the facts of each case must be examined to determine whether the circumstances render it just or unjust, equitable or inequitable, conscionable or unconscionable, to apply the doctrine." (Citation omitted; internal quotation marks omitted.) Gagne v. Vaccaro, 255 Conn. 390, 409, 766 A.2d 416 (2001). The doctrine "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." (Internal quotation marks omitted.) Schreiber v. Connecticut Surgical Group, P.C., 96 Conn.App. 731, 740, 901 A.2d 1277 (2006).
A. Unjust Enrichment Claim Against Defendant Jones
Defendant Jones owned the property at issue in this case during the pertinent times. Aside from establishing her ownership interest and the fact that some work was done by Pacemaker on Mrs. Jones' property, the plaintiff has failed to prove how defendant Jones was unjustly enriched. As was noted earlier, the plaintiff has failed to establish precisely what work was completed; and what work was not paid for by Defendant Jones. Additionally, the plaintiff offered no credible substantive rebuttal to the proof offered by the defendants about the remedial work required. Further, Mr. Bilides testified that he never did an accounting to ascertain whether or not his company actually did more than $40,000 worth of work. Therefore, the plaintiff has failed to meet its burden of proving the requisite elements of unjust enrichment against defendant Jones.
Transcript, p. 71.
B. Unjust Enrichment Claim Against Defendant Petrillo
For similar reasons, this court finds that the plaintiff has failed to prove its claim against defendant Petrillo. The plaintiff failed to establish how, precisely, Mr. Petrillo was unjustly benefitted from the services of the plaintiff. Mr. Petrillo was not an owner of the property, though he did reside in it. The in-law addition was being constructed for Mrs. Jones' benefit and the benefit of her late husband. Accordingly, the plaintiff has failed to establish that Mr. Petrillo was unjustly enriched by its services.
Additionally, as was explained in the above section, the plaintiff failed to establish, by a preponderance of the evidence, precisely what work was completed and the value of the completed work. Therefore, even assuming the court concludes that defendant Petrillo was the beneficiary of the plaintiffs services, he would still be entitled to judgment on this count because of this failure of proof.
IV. DEFENDANTS' COUNTERCLAIMS
The defendants assert two Counterclaims. The first Counterclaim alleges that the plaintiff violated the Home Improvement Act, which violation constitutes a violation of the Connecticut Unfair Trade Practices Act (CUTPA), entitling her to compensatory and punitive damages. The Second Count of the Counterclaim alleges that the plaintiff failed to perform his work in a reasonable and workmanlike manner and failed to do work for which it was paid.
A. Home Improvement Act! CUTPA Violation Claim
As explained above, this court finds that the contract in this case was one for home improvement and not a new home. The Agreement did not comply the HIA. Failure to comply with the HIA constitutes a basis for a CUTPA claim. "The Home Improvement Act, General Statutes § 20-418 et seq. (Chapter 400), provides in pertinent part, that: A violation of any of the provisions of this chapter shall be deemed an unfair or deceptive trade practice under subsection (a) of Section 42-110b. General Statutes § 20-427(c). And alleged failure to comply with specified provisions of the Home Improvement Act's written contract requirements is a per se violation of CUTPA." (Internal quotation marks omitted; citation omitted.) Gaskell v. Onofrio, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 096005011 (March 29, 2010, Lager, J.).
Therefore, this court must determine if the defendants have proven that they suffered injury or actual loss as a result of the violation. The evidence clearly establishes that because the plaintiff incompletely and improperly performed certain home improvement work, defendant Jones was forced to incur additional expenses and financial losses. While the court was underwhelmed by the detail and clarity of some of the claimed damages, these are all compensable under CUTPA. Accordingly, the evidence supports an award of damages to the defendant Jones as follows:
The defendants offered scant proof to support their claim for damages. For instance, they submitted into evidence an undated, unsigned "Invoice" from AAD, LLC. Had such evidence been the only one submitted, the court would have granted judgment for the plaintiff on the Counterclaim. However, the defendants also provided testimony from defendant Jones and the contractor who performed remedial and completion work as to the payments of and the value of some of the services. Based on this testimony, along with the testimony of town officials regarding the work that needed to be completed or repaired, the court was able to cobble together a complete picture of the defendant's damages and thus calculate an appropriate award of damages.
Replacement of basement stairs $1,800.00
Transcript, p. 208.
Transcript, p. 208.
Installation of Header/blocking in garage $150.00
Transcript, p. 209.
Transcript, p. 209.
Exposure of Anchor Bolds $250.00
Transcript, p. 207.
Transcript, p. 207.
Replacement of garage steps $250.00
Transcript, p. 210.
Transcript, p. 210.
Installation of Lally column Top Plate $750.00
Transcript, p. 211.
Transcript, p. 211.
Installation of Bottom Plates $1,000.00
Transcript, p. 242.
Transcript, p. 242.
Additionally, pursuant to CUTPA, the court may, in its discretion, award punitive damages in the form of attorneys fees. Stearns Wheeler, LLC v Kowalsky Bros, Inc., 289 Conn. 1, n. 12, 955 A.2d 538 (2008). "Although the law is not well developed as to how the court's discretion should be guided in determining punitive damages under CUTPA, a basic criterion for such an award is evidence revealing a reckless indifference to the rights of others or an intentional and wanton violation of those rights. Whitaker v Taylor, 99 Conn.App. 719, 733, 916 A.2d 834 (2007)." Cohen v Roll-A-Cover, LLC, Superior Court, judicial district of Waterbury, Complex Litigation, Docket No. CV X06044015047 (June 23, 2010, Stevens, J.).
Based upon the evidence submitted, this court finds that the plaintiff was owned and operated by an experienced contractor who knew the requirements of a home improvement contract. Far from believing that the project at issue was a new build, as plaintiff's counsel maintained throughout the trial, this court finds that Mr. Bilides did not intentionally omit the notice of cancellation. Mr. Bilides testified: "No [I did not intentionally leave out the notice], I normally submit it with this document [the Agreement] and I don't know why it wasn't there. But, normally, every time I give one of these, I do give that notice of cancellation with it." Transcript, p. 11. He further testified: "[a]gain, I don't know that it was [a new construction] or wasn't [a new construction]. I can't remember six years ago, but I know that I normally do [include a notice of cancellation] when I submit these." Transcript, p. 12.
This testimony supports the court's finding that the plaintiff acted indifferently to the rights of the defendants. Far from proceeding on a good-faith claim of breach of new house contract, Mr. Bilides and his counsel were well aware that this project was or very well could be a home improvement. Nonetheless, they proceeded upon untenable legal theories (filing a mechanic's lien along with breach of contract and unjust enrichment claims) founded upon unsupportable factual assertions. Thus, defendant Jones is entitled to an award of punitive damages, which amounts to the cost she incurred in defending herself and prosecuting her Counterclaim.
The court reviewed defense attorney, John Esposito's Affidavit of Attorneys Fees, and it appears reasonable. Therefore, defendant Jones is also entitled to an award of attorneys fee in the amount of $9,300.00.
The defendants claim that Anne Jones over-paid the plaintiff $10,000 and that she is entitled to an award of damages for this over-payment. However, as was explained earlier in this decision, neither party provided this court with an accounting of the professional services that were or were not performed, nor did the court have any evidence to determine the value of those services. Therefore, the most this court can conclude is that it appears the plaintiff was over-paid, but by how much, it is impossible to determine.
Therefore total award of damages to defendant Jones is $l3,500.00.
The defendants offered no proof as to damages incurred by defendant Petrillo. Therefore, the award of damages is only for defendant Jones.
B. Second Count of Counterclaim
Because the court finds that the defendant Jones is entitled to an award of damages on the first count of the Counterclaim, plus an award of attorneys fees, it does not need to reach the second count of the Counterclaim.
V. CONCLUSION
For all the foregoing reasons, judgment may enter for the defendants on the second, third, fourth and fifth counts of the plaintiff's amended complaint; and for defendant Jones on the first count of the Counterclaim.
Judgment does not enter for defendant Petrillo on the Counterclaim because the evidence establishes only that defendant Jones, the homeowner, is entitled to judgment.