Reyes v. Vivona

Full title: Walter Reyes v. Dominick Vivona

Court: Superior Court of Connecticut

Date published: Apr 10, 2019

No. FSTCV186034504S (Conn. Super. Ct. Apr. 10, 2019)

Opinion

FSTCV186034504S

04-10-2019

Walter Reyes v. Dominick Vivona

GENUARIO, J.

UNPUBLISHED OPINION

Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Genuario, Robert L., J.

MEMORANDUM OF DECISION

GENUARIO, J.

I. INTRODUCTION

The plaintiff is an experienced carpenter who has practiced his craft for more than twenty years in Fairfield County and Westchester County. In June 2017, after some discussions, the defendant, a homeowner, asked the plaintiff to give him an estimate for the construction of a treehouse in the backyard of his home. The defendant, who is an experienced landscaper, had prepared sketches of the treehouse which he ultimately used to obtain a building permit from the Town of Greenwich. The defendant provided the plaintiff with those sketches which served as the basis for the plaintiff’s cost estimate. The plaintiff and the defendant had multiple discussions and exchanged multiple text messages to each other involving the construction of the treehouse. The text messages reveal a pattern of substantive negotiations between the plaintiff and the defendant. For example, the defendant who by his testimony admittedly wanted to keep the price down, suggested that the plaintiff should be paid on an hourly basis for himself and the workers he brought with him. The plaintiff insisted upon a $6,000 flat fee for all labor and the defendant agreed. The defendant agreed to provide and pay for all materials. The text messages reveal discussions about how long it would take to build the treehouse. One of the significant areas of discussion revealed in the text messages was the timing of payments. The plaintiff indicated that he would like to be paid 35% of the contract price on the second day of work, 30% on the fourth day of work and 35% when the job was finished. The defendant indicated that he would pay the plaintiff on the second day based upon how much work was done. By way of example the defendant suggested that if 40% of the contract work was done by the second day he would pay 30% of the contract price. The text messages do not reveal a resolution of the payment schedule prior to the commencement of work.

The defendant, using his experience as a landscaper, personally installed four substantial "tree bolts" into two trees. The plan called for large, heavy and substantial beams to be affixed to two trees and rest upon the tree bolts installed by the defendant. The plaintiff’s work began on a Monday. Because the two supporting beams were so heavy, the defendant offered to have two of his workmen assist the plaintiff in bringing these beams to the trees and lifting them to the tree bolts. The defendant also provided certain landscaping equipment that was utilized to transport the beams across the yard and lift them to the height of the bolts. Because of the weight of the beams, transporting them and raising them up to the level of the tree bolts was quite difficult, resulting in that portion of the work requiring the entire first day. During that day the plaintiff and his two workers worked side by side with the two workers provided by the defendant. On Tuesday, the second day, the plaintiff and his two workers did a considerable amount of framing for the treehouse and installed a considerable portion of the flooring. On Wednesday the plaintiff did not work (possibly because of rain). On Thursday the plaintiff and his two workers began the process of installing the rafters for the roof and framing of the doors and windows. On the fourth work day, Friday, the plaintiff and his workers began framing a loft within the treehouse which would serve as a sleeping area or in any event a partial second floor. (The parties do not agree as to whether or not the loft was included in the $6,000 price.) The plaintiff and his workers completed the rafters for the roof, installed posts for the deck and installed some of the flooring on the deck. (The treehouse also had an exterior deck outside of the enclosed portion of the treehouse.) By the middle of the fourth day the defendant had not yet paid the plaintiff anything for his work and the plaintiff had not specifically asked for payment. The parties communicated on a regular basis during this process. For example, if the plaintiff ran short of materials, the plaintiff would contact the defendant and the defendant would proceed to obtain the materials for the plaintiff. The parties seem to be getting along during this phase. The plaintiff believed that by the end of the fourth day of work he and his workers had completed 65% of the job. During early Friday afternoon, he asked the defendant for $3,500 on account. The defendant who thought the construction to that date did not amount to 65% of the job, offered to pay the plaintiff $2,000 for the work done to date. After some discussion the parties agreed that the defendant would pay the plaintiff $3,000 on account. The defendant returned to his home by 4:00 on Friday and gave the plaintiff a check for $3,000. Because the defendant was anxious to get the job completed for his children, the parties agreed that the plaintiff and his workers would return to the job site on Saturday and continue to work.

After the plaintiff left the job site, upon reflection, he started to be concerned about the defendant’s willingness to pay him what he owed him. He considered that the defendant had not paid him after the second day and that the defendant had, in the plaintiff’s mind, quibbled with him unreasonably about the amount the defendant should pay at the end of the fourth day. As a result of these concerns the plaintiff called the defendant that evening and told the defendant that from that point on he wanted to be paid at the end of each day for the work done during that day. While the parties do not agree on exactly what was said during that phone conversation it is clear that the relationship began to deteriorate and it ended with the defendant telling the plaintiff not to return to the site. The defendant followed up with a text message indicating that he had contacted the Greenwich police and that the plaintiff would be arrested for coming onto the property even to pick up his tools. The plaintiff contacted the Greenwich police and was escorted by the police to the property to pick up his tools. No further work was done. The defendant stopped payment on the check that he had previously delivered to the plaintiff with the result that the plaintiff has received no funds to compensate him for the work that he and his workers performed. At trial the defendant asserted that the plaintiff’s work was not of a reasonable quality and that he had to pay a subsequent contractor considerably more than $6,000 to complete the job. While the court finds that the defendant did pay a subsequent contractor more than $6,000 to complete the job, the court also finds that the plaintiff’s work was of reasonable quality and consistent with the plans/sketches provided to him by the defendant.

Additional facts and evidence will be discussed within the third section of this opinion as needed.

II. THE PLEADINGS

The plaintiff brings this action in two counts. The first count sounds in breach of contract. The second count sounds in unjust enrichment. In his answer the defendant admits that he asked the plaintiff to construct a treehouse at his residence with supporting beams, roof, windows, door and deck, but denies most of the remaining substantive allegations of the complaint. The defendant also asserts three special defenses. In the first special defense he alleges that the alleged agreement was oral, that he wasn’t provided with a written agreement and that recovery is barred pursuant to the Home Improvement Act, C.G.S. § 20-429. In his second special defense the defendant alleges that the plaintiff is not a licensed home improvement contractor, that the plaintiff intentionally and willfully misled the defendant into believing that he was properly licensed and capable of performing services on behalf of the defendant and that the work performed was "shoddy, and improperly done." He further alleges the partially built treehouse had to be substantially torn down and completed by another contractor at a higher cost than anticipated. In the third special defense the defendant alleges that he received no benefit for the work performed by the plaintiff who demanded more cash as a condition of continued performance of substandard work in an attempt to extort additional money from the defendant without performing any services of value in derogation of law.

The plaintiff in turn filed a reply to the special defenses alleging that the contract was set down in writing in the form of text messages from plaintiff to defendant which were at all times in possession of the defendant. The plaintiff further replied that the defendant has failed to specify how the plaintiff allegedly misled him or was harmed or prejudiced by the lack of a home improvement license from the plaintiff. The plaintiff replied to the third special defense that a majority of the frame structure of the treehouse including roofing beams were completed by the plaintiff before the defendant canceled checks and that any deficiencies resulted from the defendant’s own negligence in the drafting of the blueprints. In his reply to the third special defense the plaintiff also alleges that the defendant directed each facet of the construction and was effectively a general contractor for the project.

III. DISCUSSION

The court finds that the plaintiff, at the defendant’s request, began construction of the treehouse and worked with his two helpers whom he paid at the rate of $30 per hour for approximately four days and completed a substantial portion of the construction including the installation of the supporting beams on the tree bolts, the installation of a substantial amount of the flooring, the complete framing of the walls of the treehouse, the installation of the rafters which would serve as support for the roof for the treehouse and the installation of the loft which served as a partial second floor in the treehouse. The court finds that the work done by the plaintiff was of reasonable quality and substantially benefitted the defendant. While the court also finds that the defendant ultimately paid more than $6,000 to complete the treehouse, the court does not believe that the additional payment was the result of shoddy or substandard workmanship on the part of the plaintiff. Rather it is just as likely that it is the result of the plaintiff’s underbidding of the contract price or the normal consequence of bringing in a second contractor after a first contractor is terminated. The court does not find that a meaningful percentage of the plaintiff’s work had to be removed to complete the treehouse.

The difficult part of this case for the plaintiff of course is his clear failure to comply with the provisions of the Home Improvement Contractor’s Act. While the plaintiff testified that he currently has a home improvement contractor’s license, he also testified that at the time this work was done he did not have a home improvement contractor’s license.

Much of the work that the plaintiff did during his twenty years as a carpenter was work for other contractors for which he would not need a home improvement contractor’s license. One of those contractors recommended the plaintiff to the defendant.

The issues raised by the pleadings and particularly the special defenses and the replies to the special defenses are as follows. (1) Does the construction of a treehouse of the nature indicated by the evidence in this case fall within the scope of the Home Improvement Act; (2) Was the plaintiff a home improvement contractor as defined by statute; (3) If so, did the plaintiff comply with the home improvement contractor’s statute; (4) If not, can the plaintiff prevail by relying on the provisions of the Home Improvement Act set forth in C.G.S. section 20-429(f) and obtain the reasonable value of his services which were requested by the owner; or (5) In the alternative, can the plaintiff prevail notwithstanding his noncompliance with the Home Improvement Act as a result of the defendant’s bad faith.

C.G.S. § 20-429(a)(1)(A) states in pertinent part

No home improvement contract shall be valid or enforceable against an owner unless it: (i) Is in writing, (ii) is signed by the owner and the contractor, (iii) contains the entire agreement between the owner and the contractor, (iv) contains the date of the transaction, (v) contains the name and address of the contractor and the contractor’s registration number, (vi) contains a notice of the owner’s cancellation rights in accordance with the provisions of chapter 740, (vii) contains a starting date and a completion date, (viii) is entered into by a registered salesman or a registered contractor, (ix) 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 ... in which the owner or owners of the home improvement contractor are or have been a shareholder, member, partner or owner during the previous five years.

Under a section entitled definitions, C.G.S. § 20-419(3) defines a "contractor" as "any person who ... undertakes, offers to undertake or agrees to perform any home improvement." The definitions in subsection (4) state" ‘home improvement’ includes, but is not limited to, the repair, replacement, remodeling, alterations, conversion, modernization, improvement, rehabilitation or sandblasting of, or addition to any land or building or that portion thereof which is used to design 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, sidings, installation, sunrooms, flooring, patios, landscaping, fences, doors and windows, waterproofing, water, fire restoration or mold remediation in connection with such 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 removal or the replacement of a residential underground heating and oil storage tank system, which the total price for all work agreed upon between contractor or homeowner or proposed or offered by contractor exceeds $200." There are certain express exclusions of the definition of home improvement in subsection (4) that are not applicable to this case. Subsection (5) defines a "home improvement contract" as "an agreement between a contractor and an owner for the performance of a home improvement."

1. Does an Agreement for the Construction of a Treehouse Constitute a "Home Improvement"?

The definition of home improvement is broad and given the purposes of the act including the purpose to "protect homeowners from substandard work." Barrett Builders v. Miller, 215 Conn. 316, 327 (1990), the court must conclude that the construction of a treehouse of this nature falls within the parameters of a home improvement as defined. The treehouse included flooring, large and heavy support beams that required five people plus specialized equipment to move. The treehouse included rafters for the roof, complicated framing, flooring as well as framing for the windows and doors. There can be little doubt that a construction project of this magnitude falls within the scope of home improvement as defined by the statute and further elucidated by the courts. See e.g. Walpole Woodworkers, Inc. v. Manning, 307 Conn. 582 (2012). Accordingly the court concludes that the plaintiff’s right to recover is governed by § 20-429 and the case law interpreting it.

2. Was the Plaintiff a Contractor or a Subcontractor?

The plaintiff does not argue, nor could he credibly argue, that the agreement of the parties (to the extent there actually was a meeting of the minds) complied with the provisions of C.G.S. § 20-429(a)(1)(A). Even to the extent that the text messages pieced together could constitute an agreement in writing they cannot comply with the requisite provisions. The text messages were not signed. The text messages did not contain the name and address of the contractor or the contractor’s registration number. Of course, the plaintiff admitted during his testimony that he was not a registered home improvement contractor at the time that the work was done. They do not contain a notice of the owner’s cancellation rights. The agreement was not entered into by a registered salesman or a registered contractor and was not entered into by a registered salesman or a registered contractor.

The plaintiff however attempts to avoid what can, admittedly, be the harsh application of the provisions of C.G.S. § 20-429 by claiming that he was acting as a subcontractor while the defendant himself was the general contractor. The Connecticut Supreme Court has held that a subcontractor is not barred from seeking payments pursuant to an agreement by the provisions of § 20-429. See e.g., Meadows v. Higgins, 249 Conn. 155 (1999). However, this court cannot conclude on the facts before it that the plaintiff was acting as a subcontractor. The plaintiff’s agreement was directly with the homeowner and while the homeowner was certainly very involved in the treehouse project the homeowner’s involvement does not convert the plaintiff’s role as contractor into the role of subcontractor. While the plaintiff obtained the permits and drew certain plans and purchased most of the material for the job, the manner in which the construction proceeded was left to the plaintiff to decide, the number of workers the plaintiff retained was within his discretion, the agreement as required by the plaintiff was for a lump sum contract amount as opposed to an hourly rate. While the homeowner was frequently on the site and on one occasion provided some of his employees to assist the plaintiff, none of this converts the relationship between the homeowner and the plaintiff into a relationship of a general contractor to a subcontractor. Cases holding that a worker was a subcontractor as opposed to a contractor have usually involved situations where there was an intermediary such as an engineer or architect to whom the "subcontractor" reported. See Meadows, supra; O’Donnell v. Rindfleisch, 13 Conn.App. 194 (1988).

In the present case the defendant homeowner asked the plaintiff and only the plaintiff to construct the treehouse. There were no intermediaries and the fact that the defendant himself participated in some of the project and the plaintiff’s general contract was limited insofar as it did not include materials but labor only, does not convert the plaintiff into the status of subcontractor.

3. Can the Plaintiff Recover the Reasonable Value of his Services Pursuant to C.G.S. Section 20-429(f)?

C.G.S. § 20-429(f) states:

Nothing in this section shall preclude a contractor who has complied with subdivisions (1), (2), (6), (7) and (8) of subsection (a) of this section from the recovery of payment for work performed based on the reasonable value of services which were requested by the owner, provided the court determines that it would be inequitable to deny such recovery.

In order to avail himself of the provisions of subsection (f) and thereby allow the court to determine whether it would be inequitable to deny the plaintiff recovery for the reasonable value of his services, the plaintiff must comply with certain provisions of § 20-429(a). A review of the text messages clearly indicate that the plaintiff does not meet this threshold. The text messages are not signed, the text messages do not contain a notice of the owner’s cancellation rights, the text messages are not entered into by a registered salesman or registered contractor. Under subsection (f) the plaintiff must, at a minimum, work pursuant to an agreement that contains these elements. Accordingly, the plaintiff cannot prevail under that exception.

4. Can the Plaintiff Recover Under the Recognized Bad Faith Exception to the Home Improvement Act?

In Habetz v. Condon, 224 Conn. 231 (1992) the Connecticut Supreme Court recognized a "bad faith" exception to the bar on recovery provided in the Home Improvement Act. The Habetz court stated:

A bad faith exception is designed to prevent a party’s disavowal of previous conduct if such repudiation would not be responsive to demands of justice and good conscience. The law does not permit the exercise of a right to repudiate a contract when the exercise of such right in bad faith would work an injustice. Every contract carries an implied covenant of good faith and fair dealing requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement.

Id. at 238. (Emphasis added.) The plaintiff argues that this bad faith exception is applicable to the facts at bar. The court only partially agrees. One of the main areas of disagreement which ultimately led to the breakdown of the relationship between the plaintiff and the defendant was the timing and amounts of periodic payments that both parties contemplated but on different schedules. As previously stated it does not appear that the text messages evidence a meeting of the minds regarding such payments. The testimony of the parties at trial further bolsters the conclusion that prior to the plaintiff beginning his work the parties had not reached a firm agreement on the timing and amounts of periodic payments, though both contemplated that there would be periodic payments. In this regard the case of Burns v. Adler, 325 Conn. 14 (2017) is instructive. While recognizing the bad faith exception, the Supreme Court reversed the holdings of the trial court and Appellate Court both of which had applied the bad faith exception. In Burns the written contract was deficient with regard to the total price of the work and the trial court held that the defendant’s encouragement of the plaintiff to complete the job constituted bad faith when the defendant then refused to pay based on his assertion that it was not clear what the appropriate amount of payment should be. The Burns court wrote:

We conclude that the bad faith exception to the bar on a contractor’s recovery under contracts that do not comply with § 20-429 does not apply when a homeowner receives goods and services from a contractor in the belief that they ultimately would have to be paid for but then repudiates the contractor because the contractor’s noncompliance with the act gave rise to a genuine, good faith dispute about the scope of the work or the contract price. As we have explained, the very purpose of the act was to place the burden on the contractor to provide written documentation signed by both parties for each change in the term and conditions of a contract ... When a contractor fails to meet this burden and, as a result, a genuine good faith dispute about the authorized scope of work or the contract price arises, the homeowner’s refusal to pay the amounts claimed by the contractor is not in bad faith. Rather, under these circumstances, the inability of a contractor to enforce the homeowner’s payment obligation is exactly what the act contemplates, even as to work that the contractor actually performed.

Burns at 36-37. (Emphasis in original.) (Internal citations and quotations omitted.) In the present case the burden was on the plaintiff to form an agreement that set forth the timing and amounts of the payments with specificity. On a Friday afternoon before the parties reached the agreement there was a good faith dispute as to how much the defendant should pay. If it remained a good faith dispute the plaintiff’s recovery would be barred. To that extent the defendant would have been within his rights to withhold payment and rely on the provisions of the statute to bar recovery of a disputed amount. However, that is not what happened. On Friday afternoon the parties reached an agreement that the defendant would pay the plaintiff $3,000 for the work performed and in fact the defendant provided the plaintiff with a check for $3,000 for the work that the parties agreed had been performed at that time. The plaintiff left with the check. Subsequently, when the plaintiff initiated a conversation with the defendant to further discuss the tennis of future payments i.e. payment for work to be done on the next day and the following days the defendant terminated the relationship, barred the plaintiff from returning to the property and then stopped payment on the check that the defendant had provided to the plaintiff pursuant to their agreement reached that very afternoon. The court believes that the defendant was well within his rights to terminate the contract consistent with the holding in Burns. However, what constitutes bad faith is the reneging of the defendant on the specific and express agreement he reached that afternoon to pay the plaintiff for the work the plaintiff had performed. Once that agreement was reached there was no longer a good faith dispute as to the amount and timing of the payment that was due for the work already performed. Payment was tendered pursuant to that Friday agreement. The court finds the defendant’s actions in stopping payment on the check for the work that the defendant acknowledged had been performed to be in bad faith. Once the defendant and the plaintiff reached agreement on how much the plaintiff would be paid for the work performed through Friday, there was no longer a good faith dispute as to that payment. While the plaintiff and the defendant subsequently reached an impasse on future payments for future work, such impasse did not allow the defendant to disavow the agreement that he had not only reached on Friday, but performed by tendering payment. Accordingly, the court holds that the plaintiff can obtain recovery under the bad faith exception recognized in Habetz and further clarified in Burns for the amount of the payment that the defendant had tendered for the work done pursuant to the Friday agreement, but for no more. Accordingly. this court holds that the plaintiff may recover on the second count of his complaint, sounding in unjust enrichment, in the amount of $3,000 because the parties on Friday afternoon expressly came to an agreement that the plaintiff should be paid $3,000 for the work that the plaintiff had performed. The defendant tendered that $3,000 and then stopped payment on the check in bad faith because the plaintiff engaged the defendant in further discussions about future payments. By stopping payment, the defendant disavowed his previous agreement and his previous conduct in tendering payment.

To be sure the defendant testified and offered an explanation as to why he terminated the relationship and stopped payment on the check. The defendant testified that he felt the plaintiff was bullying him when he called on Friday evening. In that limited regard, this court does not find the defendant’s testimony credible. The court does not find that the plaintiff attempted to bully the defendant but only attempted to clarify what the plaintiff considered to be a reasonable payment schedule going forward. The defendant was well within his rights to reject the plaintiff’s proposed payment schedule and terminate the contract. What the defendant was not within his rights to do was to renege on or disavow his prior payment for the work that already had been performed.

IV. CONCLUSION

For all these reasons the court enters judgment for the defendant on Count One and enters judgment for the plaintiff in the amount of $3,000 on Count Two.