Opinion
No. CV 09 4009527
April 19, 2011
MEMORANDUM OF DECISION
Procedural History
This vigorously contested home improvement contract case originated as a small claims matter and was transferred to the regular docket on April 30, 2009. Thereafter, an amended complaint was filed by "A Kitchen and Bath by James," the plaintiff home improvement contractor, on June 4, 2009. On August 27, 2009, Donald Speicher, the defendant homeowner, filed an amended answer, with special defenses and counterclaims. After various interlocutory pleadings, the case was tried to the court at New London on March 22, 2011.
Factual Background
From the evidence produced at trial, the following facts are found. The plaintiff and defendant signed a written "form" contract for kitchen renovations on July 11, 2008, which included two sketches that represented diagrams of the project. Notes on the sketches that certain wallpaper was to remain undisturbed by the project. The contract called for a custom kitchen with granite countertops for an overall price of $51,000 and was drafted by the plaintiff.
The contract contained both "fill in" sections, and pre-printed language. One fill in section was a "start date" and that was left blank. Another fill in section was a "completion date," which was also left blank. The contract included a handwritten section, which stated that: "plumbing [is] included in the contract." The contract included a one-year warranty. The contract required that all work should be done in a "substantial workman-like manner." The contract explicitly provided that all changes must be in writing and agreed upon by parties.
Pursuant to the contract, the plaintiff was to do the designing, ordering, and installation of the entire kitchen for the defendant. The defendant, however, was to pick out and purchase the sink and faucet. The plaintiff did the work on the project mostly with subcontractors.
The relationship of the parties did not go smoothly. The defendant insisted that the plaintiff obtain a building permit for the job while the plaintiff did not feel it was necessary. The plaintiff did, however, obtain a building permit on August 27, 2008.
As the renovation was being completed, the plaintiff's subcontractor damaged the defendant's wallpaper, which was in violation of a note on one of the sketches that stated that the wallpaper was not to be damaged. After the wallpaper was damaged, the defendant required the plaintiff to repair the area. The plaintiff did fix it, but this, among other things, soured the parties' working relationship.
The project continued and eventually the cabinets were delivered to the defendant's house. The granite countertop, however, had yet to be delivered. At that point, the plaintiff asked for a payment of $18,000, which was one of the payments under the contract's payment schedule, upon the delivery of "all materials" to the project. The defendant refused to make the $18,000 payment, and he informed the plaintiff, through counsel, that he would make the payment only when the granite countertop was delivered. At that point, the plaintiff walked off the job, and both parties got their lawyers involved. The parties exchanged letters through their lawyers. Eventually, the plaintiff agreed to deliver the granite, and after it was delivered, the defendant made the $18,000 payment and eventually made another payment of an additional $10,000.
The project continued and progressed. Eventually the granite countertop, faucet, and sink were installed. The defendant picked out the sink and faucet. They were purchased by the defendant early on in the project and were kept at the job site at all times until installation. When the sink was purchased, the plaintiff took the dimensions of the sink and compared those dimensions to the specifications of the cabinets, and the plaintiff concluded that the sink would fit properly in the cabinets. The sink template was taken to a Milford, Connecticut facility that cut the granite. The purpose of taking the sink template is to make sure that the hole that is cut into the granite is the proper size for the sink.
Although a sink template was taken to the granite cutting facility, neither the sink nor the actual faucet was taken to facility. After the granite was delivered to the job site, and was installed on the top of the cabinets, the plaintiff's subcontractor at Eastern Granite and Marble, which supplied the granite, drilled a hole in the granite for the installation of the faucet. The plaintiff's plumber then installed the faucet.
After the faucet was installed by the plaintiff's plumber, it was apparent to the defendant that there was not enough room between the faucet and the backsplash to allow this particular faucet to be installed perpendicular to the backsplash. The lever, which was intended to control the hot and cold water regulation, needed room to complete its swing front to back. But the backward swing could not be completed without hitting the window casing. Since the hole was drilled into the granite it cannot be changed or moved. The hole location did not leave enough room for this particular faucet to function as intended.
During the installation of the faucet, the defendant was asked how he wanted it installed in light of the fact that it could not be installed perpendicular to the backsplash, and the defendant elected to have it installed at a 45 degree angle to the back splash. This was the best choice under the circumstances and it permitted the faucet to operate.
At this time, the defendant did not directly tell the plaintiff of his dissatisfaction with the faucet setup. There is no indication that a different faucet could not be installed to fit and operate properly in the hole which was drilled in the granite countertop for a faucet. The sink was installed in accordance with acceptable standards of the trade and in a workmanlike manner.
At some point during the project, it was discovered that additional plumbing work had to be done and the parties agreed that the defendant would pay an additional $1,000 for the additional plumbing work. The rest of the plumbing was part of the contract, and was the plaintiff's responsibility. The plaintiff claimed extra work should require additional payment but there are no writings to suggest an agreement of the parties as required by the contract.
The defendant was dissatisfied with both the alignment of the sink in the hole cut out for it and the alignment or offset of the particular faucet required by the spacing. Because of that, he refused to pay the balance due on the contract and the "extras" claimed by the plaintiff. After the litigation began to collect the unpaid balance the defendant claimed a violation of the Home Improvement Act.
Claims of the Parties
The plaintiff's amended complaint is in two counts. The first count alleges breach of contract and requests payment for the balance due on the contract of $5,000, plus the value of the extra work, $427.04. The second count claims payment for additional extra work in the amount of $6,676.00.
In his answer, the defendant denies owing the plaintiff for the reason that the contract did not satisfy the requirements of the Home Improvement Act, General Statutes § 20-429 et seq., and that the extras were not authorized in writing. Also, the defendant filed a counterclaim in five counts: breach of contract, breach of warranty, negligence, attorneys fees under § 42-150bb, and violation of the Connecticut Unfair Trade Practices Act (CUTPA).
The plaintiff, in response, claims that the Home Improvement Act is not a bar because it has been claimed in "bad faith" which is an exception to the harsh results in a case like this.
Analysis and Conclusion The Plaintiff's Claims
Section § 20-429(a)(7) of the Act states: "No home improvement contract shall be valid or enforceable against an owner unless it . . . contains a starting date and completion date . . ." "The [Connecticut Home Improvement Act], pursuant to § 20-429(a), provides that no home improvement contract shall be valid or enforceable against a homeowner unless it meets certain enumerated criteria. The [act] is a remedial statute that was enacted for the purpose of providing the public with a form of consumer protection against unscrupulous home improvement contractors . . . The aim of the statute is to promote understanding on the part of consumers with respect to the terms of home improvement contracts and their right to cancel such contracts so as to allow them to make informed decisions when purchasing home improvement services." (Internal quotation marks omitted.) Walpole Woodworkers, Inc. v. Manning, 126 Conn.App. 94, 100, 11 A.3d 165 (2011).
"Because the requirements of the [act] are mandatory and must be strictly construed, the absence of [a commencement and a completion date] constitutes a violation of the [act] that renders the contract unenforceable . . . Thus, the plaintiff is precluded from [any] recovery against the defendant[] unless the plaintiff can establish that the defendant['s] invocation of the [act] as the basis for [his] repudiation of the contract was in bad faith." (Internal quotation marks omitted.) Id., 103.
In the present case, the contract entered into between the parties did not have a commencement and completion date for the kitchen renovation. As such, the plaintiff contractor may not recover against the defendant unless it can demonstrate that the plaintiff invoked the act in bad faith.
"In Barrett Builders v. Miller, [ 215 Conn. 316, 328, 576 A.2d 455 (1990)], our Supreme Court stated, in dictum, that a homeowner could not avail himself of the protection afforded to him by § 20-429 if he invoked the statute in bad faith. Our Supreme Court subsequently applied the bad faith exception in Habetz v. Condon, 224 Conn. 231, 618 A.2d 501 (1992), in which it upheld a trial court's factual finding of bad faith . . . Habetz [ v. Condon] made it clear . . . that mere disagreement about contract performance does not suffice to establish bad faith. Habetz defined bad faith as involving actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one's rights or duties, but by some interested or sinister motive . . . Bad faith means more than mere negligence; it involves a dishonest purpose . . . In Lucien [v. McCormick Construction, LLC, 122 Conn.App. 295, 302-03, 998 A.2d 250 (2010)], the trial court had concluded that the contractor had met its burden to establish the homeowner's bad faith, reasoning that the homeowner's representation by counsel throughout the negotiation process and the homeowner's failure to raise the noncompliance with the act until the defendant raised a claim of nonpayment established bad faith . . . This court concluded that there was simply . . . nothing in the stipulated facts that can legally and logically support the court's conclusion that the plaintiff acted with a dishonest purpose in claiming that the defendant violated the act." (Citations omitted; internal quotation marks omitted.) Id., 100-01.
Here, the defendant had reasons that he considered reasonable to dispute his payment obligations because he believed that the plaintiff's work was substandard. It is not bad faith to raise sincere contract disputes. Claims in which a finding of bad faith has been upheld have been cases in which the claimed defects lacked any semblance of credibility at all. In the present case, the court finds that the plaintiff has not proven that the defendant has acted in bad faith.
For all of the foregoing reasons, the court finds that the plaintiff is not entitled to recover against the defendant.
The Defendant's Counterclaims
In counts one and two of the defendant's counterclaim, he claims that the plaintiff breached the contract, and breached the one-year warranty contained therein. "The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages." (Internal quotation marks omitted.) Chiulli v. Zola, 97 Conn.App. 699, 706-07, 905 A.2d 1236 (2007). "[A] breach of contract claim . . . requires proof by a preponderance of the evidence." Foley v. Huntington Co., 42 Conn.App. 712, 732 n. 7, 682 A.2d 1026, cert. denied, 239 Conn. 931, 683 A.2d 397 (1996). The court finds that the defendant has not sustained his burden of proof in regard to the allegations in counts one and two.
In count three, the defendant claims that the plaintiff was negligent. "The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury . . . [T]he existence of a duty of care is an essential element of negligence . . . A duty to use care may arise from a contract, from a statute, or from circumstances under which a reasonable person, knowing what he knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result from his act or failure to act." (Citations omitted; internal quotation marks omitted.) Sturm v. Harb Development, LLC, 298 Conn. 124, 139-40, 2 A.3d 859 (2010).
"[T]here is implied in every contract for work or services a duty to perform it skillfully, carefully, diligently, and in a workmanlike manner." Sutera v. Washton, Superior Court, judicial district of New London, Docket No. CV 00 0556177 (March 14, 2003, Corradino, J.) ( 34 Conn. L. Rptr. 388, 391.) "Failure to comply with this implied duty to perform in a skillful and workmanlike manner . . . may entitle the other party to damages resulting from the unskillful and unworkmanlike performance . . . With respect to the skill required of a person who is to render services, it is a well-settled rule that the standard of comparison or test of efficiency is that degree of skill, efficiency and knowledge which is possessed by those of ordinary skill, competency and standing in the particular trade or business for which he . . . is employed." Id., at 391.
The court finds that the defendant has failed to prove that the plaintiff was negligent in performing the renovations. The facts of this case indicate that the two areas of dispute, the faucet alignment and the sink alignment, did not violate the standards of the trade or workmanlike standards, taking into account the court's evaluation of the credibility of the witnesses. There was evidence from Eastern Marble and Granite that established the sink installation was within acceptable tolerances. The use of a particular design of faucet, causing an alleged cost of over $12,000, is simply not accepted by the court as evidence of negligence.
In count five, the defendant claims that the plaintiff violated CUTPA because the plaintiff violated the Home Improvement Act, and attempted to do the project without a building permit. A violation of the Home Improvement Act is a per se violation of CUTPA. See General Statute § 20-427(c); New England Custom Concrete v. Carbone, 102 Conn.App. 652, 666, 927 A.2d 333 (2007).
To recover under CUTPA, however, a party must prove that he has suffered an ascertainable loss of money or property as a result of the violation. "Litigants who seek to recover damages under CUTPA must meet two threshold requirements. First, they must establish that the conduct at issue constitutes an unfair or deceptive trade practice. Second, they must present evidence providing a basis for a court to make a reasonable estimate of the damages that they have suffered . . . There is no automatic entitlement to damages." (Citation omitted.) New England Custom Concrete v. Carbone, supra, 666. Here, the court finds the defendant has failed to meet that burden and therefore, cannot prevail on the CUTPA claim.
Finally, the defendant seeks attorneys fees pursuant to § 42-150bb. Section 42-150bb, in relevant part, provides: "Whenever any contract . . . to which a consumer is a party, provides for the attorneys fee of the commercial party to be paid by the consumer, an attorneys fee shall be awarded as a matter of law to the consumer who successfully prosecutes or defends an action or a counterclaim based upon the contract . . ."As noted by our Supreme Court in Rizzo Pool Co. v. Del Grosso, 240 Conn. 58, 75, 689 A.2d 1097 (1997), the purpose of § 42-150bb is to make attorneys fees clauses `reciprocal' in order to bring parity between a commercial party and a consumer. The legislature was concerned with remedying an inequitable situation: What [the statute] does is give some equity to the situation. At the present time, many form contracts include attorneys fees provisions for the commercial party, and even though . . . that [commercial] party may be wrong and a consumer successfully defends an action against him, or her, [the consumer] would not be entitled to receive attorneys fees in defending that action." (Internal quotation marks omitted.) Aaron Manor, Inc. v. Irving, 126 Conn.App. 646, 658, 12 A.3d 584 (2011).
"Under § 42-150bb, the court has no latitude to deny [attorneys fees] to a consumer who successfully defends an action brought against him by a commercial party . . . Such attorneys fees are available, rather, by operation of law." (Citation omitted; internal quotation marks omitted.) Id. This contract contained such a provision. The defendant successfully defended against the plaintiff's claim. As such, the defendant is entitled to attorneys fees.
Conclusion
Accordingly, the court finds judgment for the defendant on the plaintiff's complaint and judgment for the plaintiff on the defendant's counterclaims. The defendant, however, is entitled to attorneys fees pursuant to § 42-150bb the amount of which will be determined at a subsequent hearing upon motion of the defendant.