Opinion
No. CV 02 0087935
January 13, 2004
MEMORANDUM OF DECISION REGARDING DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT (#111)
This matter is before the court on the defendant's motion for summary judgment. (#111) The plaintiff, Michael Smith, filed this two-count complaint against the defendants, Charles and Patricia Fabrizio, the first count of which claims that the defendants breached a new home construction contract in failing to pay his bill for construction of their home. The second count claims the defendants have been unjustly enriched by their failure to pay him. The defendants counterclaimed, alleging, inter alia, that the defendants violated the Connecticut Unfair Trade Practice Act (CUTPA) by failing to comply with the NHCA.
The defendants move for partial summary judgment on count one of the plaintiff's complaint, alleging that since a purchase price was never established, there was no meeting of the minds between the parties, and therefore, the defendants argue, there is no enforceable contract and the defendants are entitled to judgment as a matter of law. The defendants further seek a determination as to liability regarding the alleged NHCA violation. The court was not asked to treat the defendants' motion as a motion for summary judgment on its CUTPA counterclaim.
When asked what court action the defendants would like, the defendants' counsel stated that they wanted a determination that the plaintiff failed to comply with the NHCA and therefore the defendants are entitled to bring a CUTPA action pursuant to Connecticut General Statutes §§ 20-417g and 42-110b.
DISCUSSION
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." Gould v. Mellick Sexton, 263 Conn. 140, 146, 819 A.2d 216 (2003). "The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . [T]he party opposing such a motion must provide a evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Internal quotation marks omitted.) Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 252, 819 A.2d 773 (2003). "To oppose a motion for summary judgment successfully the nonmovant must recite specific facts . . . which contradict those stated in the movant's affidavits and documents." (Emphasis added.) (Internal quotation marks omitted.) Connecticut National Bank v. Great Neck Development, 215 Conn. 143, 148, 574 A.2d 1298 (1990).
Enforceability of the Contract
"[T]he issue of contract formation is a question of fact. The existence of a contract is a question of fact to be determined by the trier on the basis of all the evidence . . . To form a valid and binding contract in Connecticut, there must be a mutual understanding of the terms that are definite and certain between the parties . . . To constitute an offer and acceptance sufficient to create an enforceable contract, each must be found to have been based on an identical understanding by the parties . . ." (Internal quotation marks omitted.) Cheverie v. Ashcraft Gerel, 65 Conn. App. 425, 439, 738 A.2d 474 (2001). "If the minds of the parties have not truly met, no enforceable contract exists . . . [A]n agreement must be definite and certain as to its terms and requirements . . . So long as any essential matters are left open for further consideration, the contract is not complete." (Internal quotation marks omitted.) LR Realty v. Connecticut National Bank, 53 Conn. App. 524, 535, 732 A.2d 181, cert. denied, 250 Conn. 901, 734 A.2d 984 (1999).
The defendants argue that they are entitled to summary judgment because the contract is unenforceable since a purchase price, which is an essential term, was never established. They have submitted an affidavit in support of their motion. The affidavit states that an exact price was never given but that the plaintiff did provide estimates. The plaintiff argues in reply that the defendants, by admitting in their answer that an agreement was reached, have contradicted themselves.
Additionally, the plaintiff offered several documents to show that genuine issues of fact existed as to whether parties agreed to a purchase price. Specifically, the plaintiff submitted a description of materials with a cost estimate of $220,000 and an addendum with an estimate of $211,057, which were both signed by the defendants; various billing statements; an affidavit addressing the same issues that the defendants addressed in their affidavit (i.e., whether the defendants requested a written contract, the billing method, etc.); documents that were provided to the defendants' lender; and a copy of a letter from the defendants discussing changes that they wanted made to the home and acknowledging that these changes would reduce the estimated cost.
The defendants also submitted this document and do not deny that the plaintiff provided them with these estimates.
These documents evince a genuine issue of material fact as to whether the parties agreed upon a purchase price for the home because the plaintiff has shown that the parties may have agreed on a pricing methodology based on an understanding that the actual project cost could not be predetermined but would depend on various factors such as the site condition and the materials chosen by the defendants. The defendants' motion for summary judgment as to the enforceability of the contract is, therefore, denied.
NHCA Violation
The NHCA was modeled after the New Home Improvement Act and its purpose is to protect consumers from fraudulent and negligent new home contractors. Conn. Joint Standing Committee Hearings, General Law, Pt. 2, 1999 Sess., p. 12, 14.
At least one Connecticut Superior Court judge has granted summary judgment where a home improvement contractor failed to satisfy the requirements of the New Home Improvement Act and therefore violated CUTPA. Haber v. Letsky, Superior Court, judicial district of Litchfield, Docket No. CV 93 0061511 (August 12, 1994, Walsh, J.) ( 12 Conn. L. Rptr. 308). The defendants in this case, however, do not seek summary judgment on the CUTPA counterclaim. Rather, they have moved for summary judgment on the issue of whether the plaintiff violated the NHCA. The defendants concede that the Supreme and Appellate Courts have not decided whether a violation of the NHCA renders a contract unenforceable and seek only a determination of liability under the NHCA.
General Statutes § 20-417d requires new home construction contractors to provide consumers with a copy of the contractor's certificate of registration and to make various disclosures, which the defendants claim the plaintiff did not do. The defendants' affidavit states that they did not receive any of the required information. The plaintiff's affidavit states that his license number was printed on the initial building permit but does not indicate that the requirements of § 20-417d were satisfied. Because the plaintiff has failed to contradict the statements set forth in the defendants' affidavit, there is no issue of material fact, the plaintiff's noncompliance with the NHCA is established and the motion for summary judgment on the issue of noncompliance with the NHCA is granted.
In Pulte Home Corp. v. Appleton, Superior Court, Judicial District of New London, Docket No. 557401 (July 1, 2002, Corradino, J.) ( 32 Conn. L. Rptr. 452), Judge Corradino, despite their similarities, distinguished the Home Improvement Act from the NHCA, holding that failure to comply with the NHCA does not relieve a party of his or her contractual duties and that remedies should be sought under CUTPA.
Therefore, while the court rules that the plaintiff violated the NHCA it does not rule that the defendants are entitled to a judgment that violation constitutes a CUTPA violation, as a matter of law.
BY THE COURT,
VANESSA L. BRYANT.