Opinion
No. CV01-4000177S
February 9, 2007.
MEMORANDUM OF DECISION
The plaintiff homeowner filed a six-count complaint against each of two defendant contractors. She alleged that each was liable under the Home Improvement Act, for CUTPA violations, and under theories of negligence, misrepresentation, unjust enrichment, and intentional infliction of emotional distress. The case was tried to the court.
The evidence discloses that the plaintiff purchased the property which is the subject of the lawsuit in 1992. The house is located in Weston, Connecticut. In 1999, the plaintiff hired Ken Fermender, a painting contractor, to stain the exterior of the house. She told Fermender that she wanted some interior work done, and Fermender spoke to his brother-in-law, Joseph Taddia.
Taddia was not working as a home improvement contractor in 1999 but as a consultant in the restoration of colonial and victorian homes. He was familiar with homes in Weston, Connecticut. Prior to viewing the house, he spoke with the plaintiff on the phone, and he explained to her that he charged ten to fifteen percent of the cost of the job for his work
When Taddia went with Femender to the plaintiff's property, he saw that her home was not the type he expected to see in Weston. It was a small one-story cottage which had been built in the fifties. The plaintiff told him what work she wanted done in the house. She wanted the "bounce" in the living room floor corrected and some remodeling done. Taddia advised the plaintiff to keep the project small because he thought that doing everything she mentioned would entail upgrades to code. She did not want to spend more than $10,000.00. He made some suggestions to her regarding relocating the bedroom closet in order to enlarge the bathroom. After discussions with the plaintiff, Taddia drew some pictures for her which showed the bathroom enlarged and a cantilever closet made by way of a what he called a "bump out" in the bedroom outside wall. He told her that he thought the work he envisioned would not cost more than ten to twelve thousand dollars. There was no written agreement. Taddia did not obtain any building permits for the proposed renovations. He did not present the plaintiff with a bill. He also did not undertake any of the renovations or repairs. This was not the kind of work for which he charged ten to fifteen percent. The anticipated job did not require his presence on site. He had not planned to do and did not do any physical work on the property. He made three trips to the plaintiff's home, spoke to her on the telephone several times and made the drawings. He accepted the $500.00 she gave him.
Taddia contacted Gary Hanson, a contractor. They went to the property together. Taddia explained to Hanson the work to be done. Hanson agreed to do the work for ten thousand dollars. There was no written agreement. The plaintiff gave Hanson a check for $3,000.00 for materials. Hanson commenced work on the house. The plaintiff made additional payments to Hanson pursuant to invoices he gave her. Hanson hired Mark Larson and someone named Charlie to assist him.
In addition to the initially agreed-upon repairs, Hanson found other items that needed repair or replacement. Some of the window sills were rotted and needed replacing. He replaced them. There were plumbing problems that Hanson did not expect. The bathtub had a crack in it which resulted in water leaking. The tub had to be replaced. Some of the electrical outlets were not up to code. The plaintiff told Hanson that her pipes had frozen in the past, and he determined that the crawl space under the house needed insulation. Larson worked in the crawl space. He testified that it took three days to dig out dirt and to place the insulation.
In December, the plaintiff became dissatisfied with the job Hanson was doing. The plumbing problems in the bathroom and the inability to find the correct size tub/shower caused the plaintiff to be without a useable bathroom for several weeks. In addition, there was no heat. The ducts had been moved around. The pipes froze. By this time, the plaintiff had paid Hanson more than the amount initially contemplated. She withheld further payment. Hanson would not continue working without getting paid additional money. He did install a temporary shower in early January after receiving a check for $1,332.80. The plaintiff then wrote to Hanson, telling him that she decided not to proceed with the bathroom. By that time, the plaintiff had paid a total of $13,679.81 to Hanson.
The plaintiff contacted the police. A detective came to the house and saw that it was in a state of disrepair, and it was not in a liveable condition. He contacted the Department of Consumer Protection. Based on the plaintiff's complaints, an investigation was conducted. Taddia and Hanson were arrested. They paid the plaintiff a total of $10,000.00 in restitution, $1,000.00 from Taddia and $9,000.00 from Hanson.
One of the plaintiff's experts, Donald Baerman, testified to the various problems he saw in and about the plaintiff's home. He said that he looked at the exterior of the building, the crawl space, and the interior finishes. Specifically, he observed that the crawl space was full of construction debris, that there was no insulation in a number of places, that it was damp, and that the new supports for the floor above were grossly inadequate. He noted that the bathroom was only partially complete with one wall having insulation but no finish. There was a rough floor in the bathroom but no finished floor. The temporary shower Hanson had placed was still there. With respect to the closet, Baerman testified that the sliding closet mirror doors were not straight. In addition, the wood was split inside the closet where a fastener had been driven in. The wood casing around the opening of the closet was, in Baerman's opinion, crudely put together with a grade of wood that was not a finish grade. Baerman also found problems with the outside of the house. The shingles on the roof of the cantilever closet (bump out) were an inch short. There were multiple splits in the boards (siding), and three nails which had missed going into the boards were painted over. Finally, the wood used in siding the cantilever was too close to grade.
Baerman testified that the cost of the repairs, based on what he saw would be $25,000.00. It was clear, however, that not all of the problems he encountered were caused by Hanson. He could not say whether the various leaks he found pre-existed Hanson's work.
Another of the plaintiff's experts, Delbert Smith, is an engineer with Consulting Engineering Services. He examined the plaintiff's property. He visually inspected the areas in question and overall mechanicals for the home. Without taking into consideration the cost of labor for digging out the crawl space and for additional framing in the crawl space, Smith estimated the value of the architectural portion of the work done by Hanson to be $2,238.42. He valued the electrical work completed at $569.36, and the mechanical and plumbing at $1,977.22. According to Smith, the total value of the work performed by Hanson was $4,585.00. He estimated that the cost of necessary repairs would be $1,178.88. However, some of those repairs were necessitated by leaking pipes which were not proven to be caused by Hanson.
The plaintiff's contract with her subsequent contractor, Molloy Son, LLC, included many items that were not contracted for with Hanson. Attachment "A" to the contract provided, among other things, that Molloy would install new windows, new wood floors and new shower wall tiles. The renovations performed by Molloy were much more extensive than those for which the plaintiff retained Hanson. The evidence demonstrated that the house was larger in square footage after the Molloy renovations. The sole specification in the contract with respect to the work done by Hanson was the $1,500 charge noted for labor in connection with renovating the crawl space. The total price of the contract was $35,000.00.
Discussion Home Improvement Act Violation
The first count is brought pursuant to § 20-418, et seq. of the Connecticut General Statutes, better known as the Home Improvement Act. Connecticut General Statutes § 20-419(3) defines a home improvement contractor as "one who owns and operates a home improvement business or who undertakes, offers to undertake or agrees to perform any home improvement." The court finds that, with respect to the plaintiff's home, Taddia was not acting as and did not hold himself out a home improvement contractor. The home improvement act does not apply to him.
Hanson was operating as a home improvement contractor. As such, he was obliged to comply with the provisions of Connecticut General Statutes § 20-429 of the Connecticut General Statutes which "explicitly requires, inter alia, that a home improvement contract be in writing and signed by the owner and contractor in order to be valid or enforceable against an owner." Economos v. Liljedahl Brothers, Inc., 279 Conn. 300, 309, 901 A.2d 1198 (2006). Because Hanson never provided a written contract to the plaintiff, he violated the provisions of the Home Improvement Act.
Subsection (3) of § 20-419 of the Connecticut General Statutes provides the relevant definition of contractor as "any person who owns and operates a home improvement business or who undertakes, offers to undertake or agrees to perform any home improvement."
Section 20-429(a) of the Connecticut General Statutes provides: No 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, (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, and (8) is entered into by a registered salesman or registered contractor. Each change in the terms and conditions of a contract shall be in writing and shall be signed by the owner and contractor, except that the commissioner may, by regulation, dispense with the necessity for complying with the requirement that each change in a home improvement contract shall be in writing and signed by the owner and contractor.
CUTPA
"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 the damages suffered." (Internal citations omitted.) A. Secondino Son, Inc. v. Loricco, 215 Conn. 336, 343, 576 A.2d 464 (1990). The court finds that the plaintiff has not met the threshold requirements with respect to Taddia.
With respect to Hanson, the plaintiff has clearly met the first requirement. "The . . . undisputed failure to comply with the Home Improvement Act's written contract requirement is a per se violation of CUTPA by virtue of General Statutes § 20-427 which provides that any violation of the Home Improvement Act is deemed to be an unfair or deceptive trade practice." Id.
The next issue is whether the plaintiff's evidence met the second requirement. "Under Connecticut law, [t]he ascertainable loss requirement is a [threshold] barrier which limits the class of persons who may bring a CUTPA action seeking either actual damages or equitable relief . . . Whether a party has suffered an ascertainable loss is a factual determination." (Internal quotation marks omitted; internal citations omitted.) Francis T. Zappone v. Plymouth Commons, 99 Conn.App. 175, 178 (2007).
"[L]oss has been held synonymous with deprivation, detriment, and injury." (Internal quotation marks omitted.) 267 Conn. 524, 531, 839 A.2d 1250 (2004). An ascertainable loss is one that is "capable of being discovered, observed or established . . . A loss is ascertainable if it is measurable even though the precise amount of the loss is not known . . . Under CUTPA, there is no need to allege or prove the amount of the ascertainable loss . . . A plaintiff need not prove a specific amount of actual damages in order to make out a prima facie case under CUTPA." (Citations omitted, internal quotation marks omitted.) Service Road Corp. v. Quinn, 241 Conn. 630, 638, 698 A.2d 258 (1997). The plaintiff must establish, however, that she suffered some ascertainable loss of income or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by the Act. "[T]he [plaintiff] must show that it is more likely than not that [she] suffered . . . a loss as a result of the challenged practice." Id., at 644.
Mr. Baermann's testimony with respect to costs and the plaintiff's evidence regarding Molloy's bill is insufficient for the court to construct any ascertainable loss to the plaintiff resulting from Hanson's violation of the Home Improvement Act. In going through the plaintiff's house with her, Mr. Baermann failed to address only the work Hanson was hired to do.
The plaintiff paid Hanson a total of $13,679.81. According to Delbert Smith, who did not consider all of the work done by Hanson, the value of the work performed by Hanson was at least $4,585.00. Hanson returned $9,000.00 to the plaintiff. Based on these facts, the court concludes that the plaintiff has failed to prove an ascertainable loss. Pursuant to § 42-110g, the plaintiff must prove that she suffered an ascertainable loss of money or property as a result of the violation in order to recover under CUTPA. This the plaintiff has failed to do. Accordingly, the court finds the issues for Hanson on this count.
Negligence
In the third count of her amended revised complaint, the plaintiff alleges that she retained the services of defendants to perform certain renovations to her home, that the work performed by defendants was faulty, defective, and not of workmanlike quality, that she complained to the defendants about the work but they did not respond, and that she suffered damages as a result of their negligence.
"A party may be liable in negligence for the breach of a duty which arises out of a contractual relationship . . . Even though there may not be a breach of contract, liability may arise because of injury resulting from negligence occurring in the course of performance of the contract." (Internal citations omitted). Johnson v. Flammia, 169 Conn. 491, 497, 363 A.2d 1048 (1975).
Based on the facts found, the plaintiff failed to sustain her burden of proving her negligence allegations against Taddia. The evidence clearly establishes that Hanson was negligent in his construction of the cantilever closet, in leaving the construction debris in the crawl space, and in the manner in which he or his employees insulated the crawl space.
"The plaintiff is entitled to recover all damages proximately caused by the [defendant's] negligent performance of the contract whether or not the results were reasonably to be anticipated." (Internal citations omitted). Mattegat v. Klopfenstein, 50 Conn.App. 97, 104, 717 A.2d 276 (1998). The plaintiff claims that she suffered damages as a result of the defendant's negligence. "When proximate cause exists for damage to real estate, [t]he basic measure of damages for injury to real property is the resultant diminution in its value. Such diminution in value may be determined . . . by the cost of repairing the damage as long as that cost does not exceed the former value of the property and the repairs do not enhance the value of the property over what it was prior to the damage." Id., 106. The evidence demonstrates that the repairs and subsequent renovations undertaken by the plaintiff enhance the value of the property over what it was prior to the damage. Moreover, the plaintiff has not provided any credible evidence that the total cost of repairs due to Hanson's negligence is greater than $9,000.00, the amount she received from him as a result of the criminal prosecution. "To authorize a recovery of more than nominal damages, facts must exist and be shown by the evidence which affords a reasonable basis for measuring the [plaintiff's] loss. The [plaintiff has] the burden of proving the nature and extent of the loss . . . Mathematical exactitude in the proof of damages is often impossible, but the plaintiff must nevertheless provide sufficient evidence for the trier to make a fair and reasonable estimate." Willow Springs Condo. Ass'n, Inc. v. 7th Brt. Dev. Corp., 245 Conn. 1, 58-59, 717 A.2d 77 (1998); Falco v. James Peter Associates, Inc., 165 Conn. 442, 445, 335 A.2d 301 (1973).
Although the court finds that the plaintiff sustained her burden of proving that Hanson was negligent, she has failed to provide evidence which affords a reasonable basis for measuring her damages beyond that for which she was already compensated.
Misrepresentation
The plaintiff claims that the defendants held themselves out as knowledgeable and skilled in home improvements and licensed by the Department of Consumer Protection, that they did so in order to get the plaintiff to rely upon their representations, that she did rely on them, and that she sustained damages as a result of that reliance.
"Under the common law . . . it is well settled that the essential elements of fraud are: (1) a false representation was made as a statement of fact; (2) it was untrue and known to be untrue by the party making it; (3) it was made to induce the other party to act upon it; and (4) the other party did so act upon that false representation to his injury . . . All of these ingredients must be found to exist . . . Additionally, [t]he party asserting such a cause of action must prove the existence of the first three of [the] elements by a standard higher than the usual fair preponderance of the evidence, which . . . we have described as clear and satisfactory or clear, precise and unequivocal." (Citation omitted; internal quotation marks omitted.) Duplissie v. Devino, 96 Conn.App. 673, 681, 902 A.2d 30 (2006).
Based on the evidence, the court finds that the plaintiff has failed to sustain her burden of proving misrepresentation against Taddia.
The evidence is that Hanson's license expired in November 1999, and he did not have it renewed until sometime later. There is no question that Hanson held himself out as a licensed contractor. However, the court finds that the plaintiff did not prove by clear and precise evidence that he misrepresented himself with respect to this knowledge and skill in home improvements. Therefore, the plaintiff cannot prevail on this count against Hanson.
Unjust Enrichment
The plaintiff's claims that the defendants were unjustly enriched is not supported in the evidence. Taddia actually paid the plaintiff twice the amount he received. The plaintiff received $9,000.00 from Hanson. The court finds for the defendants on this count.
Intentional Infliction of Emotional Distress
The plaintiff alleges that the defendants' conduct in breaching their contract by demanding additional monies before completing the project and by not completing the project was extremely outrageous and the cause of her distress. She claims that she became ill, remains ill, and has sought and will seek in the future, medical care and attention for her condition.
"In order for the plaintiff to prevail in a case for liability under . . . [intentional infliction of emotional distress], four elements must be established. It must be shown: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe . . . Liability for intentional infliction of emotional distress requires conduct that exceeds all bounds usually tolerated by decent society." (Internal quotation marks omitted; internal citations omitted). Smulewicz-Zucker v. Zucker, 98 Conn.App. 419, 426, 909 A.2d 76 (2006).
With respect to Taddia, the evidence is clear that he did not demand any money. With respect to Hanson, the evidence is clear that he did demand money in order to continue working and that the plaintiff fired him. There is no support in the evidence to show that Hanson's conduct exceeded all bounds usually tolerated by decent society. The plaintiff has also failed to produce evidence that she suffered or sought treatment for any medical illness as a result of Hanson's conduct. The plaintiff cannot prevail on this count.
Conclusion
The court finds the issues for Taddia on each count.
The court finds the issues for Hanson on counts two, four, five and six.
Although the court finds that Hanson violated the Home Improvement Act (first count) and consequently the Connecticut Unfair Trade Practices Act (second count) and was negligent in his performance of the oral contract (third count), the court does not award any damages to the plaintiff for the reasons which follow.
A violation of Connecticut General Statutes § 20-418 et seq. (Home Improvement Act) provides the plaintiff no civil remedy other than that provided by Connecticut General Statutes § 42-110(a) et seq. (CUTPA). As indicated above, a CUTPA violation is not sufficient to prevail on a CUTPA claim without evidence of an ascertainable loss. There was no evidence put forward from which this court could determine that the plaintiff-sustained an ascertainable loss.
Likewise, the plaintiff cannot sustain her burden of proving damages in her negligence action. Based on the only evidence before the court, the plaintiff has been fully compensated for the damages she sustained as a result of Hanson's negligence. As the Connecticut Supreme Court has stated, "[t]he rule precluding double recovery is a simple and time-honored maxim that [a] plaintiff may be compensated only once for his just damages for the same injury." Carlson v. Waterbury Hospital, 280 Conn. 125, 150 n. 30, 905 A.2d 654 (2006), citing Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 22 n. 6, 699 A.2d 964 (1997). "Connecticut courts consistently have upheld and endorsed the principle that a litigant may recover just damages for the same loss only once. The social policy behind this concept is that it is a waste of society's economic resources to do more than compensate an injured party for a loss and, therefore, that the judicial machinery should not be engaged in shifting a loss in order to create such an economic waste." (Internal quotation marks omitted.) Id., citing Rowe v. Goulet, 89 Conn.App. 836, 849, 875 A.2d 564 (2005).
Accordingly, judgment enters for the defendants on all counts.