Opinion
No. CV 03 071263 S
June 28, 2004
MEMORANDUM OF DECISION
The plaintiffs bring this action for damages resulting from the alleged failure of the defendant to comply with the terms of a contract calling for the construction of a log cabin style house. The action was commenced by a summons and complaint dated September 19, 2003; the defendant filed an answer and a special defense. The matter came before the court for trial on May 13, 2004.
The complaint is in two counts: the first count for breach of contract and the second count for a violation of the Connecticut Unfair Trade Practices Act. At trial the court heard the testimony of the witnesses and received and reviewed the exhibits entered into evidence. The court makes the following findings.
Some time in early 2001, the plaintiffs noticed a log house being built and stopped to inquire about the construction. They spoke to the defendant's brother who said the defendant may be interested in helping them with the construction of a similar log style house. They contacted the defendant and asked him to prepare an estimate of the cost of construction to help them acquire mortgage financing. He presented them with a proposal dated July 7, 2001, which stated "Requests for estimate to be given on a complete log home with attached garage construction." Plaintiff's Exh. 1. By their own testimony, the plaintiffs were to serve as the general contractor of the project, including obtaining the permits for the construction. The defendant's primary business is excavation, site preparation and land maintenance.
In the fall of 2001, the plaintiffs obtained the wetlands permit, the building permit, and received site approval. They finalized their financing in spring, 2002, and the defendant began site preparation and excavation in March 2002, after receiving an initial payment of $7,000.00. In preparing the site for the construction of the house, the defendant incurred problems with excavation and was required to install a drainage ditch and pump. Due to the extensive site work and drainage system, the defendant charged the plaintiffs an additional $5,470.86.
The defendant was present when the building material arrived at the site in June 2002. Upon examination of the material delivered consisting of the lumber/logs to be used, the defendant realized that the "kit" that was delivered was not even remotely similar to the one used in the construction of his brother's home. The "kit" for his brother's home consisted of pre-cut logs and the logs that were delivered were not pre-cut which would require substantially more in labor resulting in higher costs. The defendant contacted the plaintiffs, told them the problem, and subsequently presented them with another estimate showing the additional cost for the excavation and construction of the log house. That proposal stated: "If additional costs cannot be raised (lending agency or owners) contract will be terminated for the log home building segment. Concrete and site work will remain at this point but is pending on the additional monies alotted for the (1000 plus yards) gravel and a written guarantee that payment will be made for the continuation of the work to be done . . ." Plaintiff's Exh. 4. Up to that time the defendant had installed a driveway, a perimeter drain, dug the foundation hole, laid crushed stone and transplanted trees. He did not receive any further communication from the plaintiffs that they received the additional financing.
The plaintiffs contracted with a contractor in the fall for the completion of the log house. They are claiming the defendant defaulted in performance of his obligations in failing to obtain permits necessary for the construction of the home, improperly digging the hole for the foundation, improperly installing the drainage, failing to commence work timely, and refusing to honor his obligations under the contract. As a result, they are claiming additional costs for the construction as well as financing. Additionally, because they could not vacate the rental property they owned, they are claiming lost rental payments.
The plaintiffs' first count claims a breach of contract. The first step in determining this claim requires this court to determine whether there is an enforceable contract between the parties. It is a basic principle of contract law that in order to form a binding contract there must be mutual assent or a meeting of the minds. "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." Bridgeport Pipe Engineering Co. v. DeMatteo Construction Co., 159 Conn. 242, 249, 268 A.2d 391 (1970). "If there has been a misunderstanding between the parties, or a misapprehension by one or both so that their minds have never met, no contract has been entered into by them." Hoffman v. Fidelity Casualty Co., 125 Conn. 440, 443-44, CT Page 9536 6 A.2d 357 (1939). Cheverie v. Ashcraft Gerel, 65 Conn. App. 425, 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); Geary v. Wentworth Laboratories, Inc., 60 Conn. App. 622, 760 A.2d 969 (2000).
The plaintiffs failed to prove the existence of a contract. The court finds that there was no meeting of the minds with respect to the type of log house to be built, the materials to be used, and more importantly, the price to be charged. The defendant after incurring additional work in the site preparation and discovering the difference in the style of the log cabin house told the plaintiffs that it would cost substantially more than the initial estimate. He told them to contact him when they obtained the additional financing and they did not. He was under no contractual requirement to do any further work as there was not an enforceable contract. The defendant performed his obligations in the site preparation and excavation for which he was paid. The plaintiffs offered no credible evidence that his preparation of the site was not done properly and did not offer any evidence that they were forced to incur additional costs for the correction of the work he performed. As to the delay claim, a substantial portion of the delay was due to the plaintiffs' delay in obtaining the necessary permits and financing; further delay ensued because the plaintiffs did not order the type of kit to be constructed by the defendant.
The fact that the defendant's supplemental estimate was almost identical to what it eventually cost the plaintiffs to construct the home is evidence that they were not contemplating the same kit with the first proposal/estimate.
The second count of the complaint alleges violation of Connecticut Unfair Trade Practices Act (CUTPA). General Statutes § 20-417b(a) states: "No person shall engage in the business of new home construction or hold himself or herself out as a new home construction contractor unless such person has been issued a certificate of registration by the commissioner . . ." General Statutes § 20-417d requires a new home construction contractor prior to entering into a contract with a consumer for new home construction to provide the consumer with a copy of his or her registration. "A violation of any of the provisions of sections 20-417a to 20-417i, inclusive . . . shall be deemed an unfair or deceptive trade practice under subsection (a) of section 42-110b." General Statutes § 20-417g.
General Statutes § 20-417a(5) defines "new home construction contractor" as "any person who contracts with a consumer to construct or sell a new home or any portion of a new home prior to occupancy" and § CT Page 9537 20-417a(3) defines "contract" as "any agreement between a new home construction contractor and a consumer for the construction or sale of a new home."
The defendant through his actions in preparing the initial and subsequent proposals, in obtaining the estimates from the various sub-contractors and in preparing and excavating the site was engaging in the business of new home construction and holding himself out as a new home construction contractor. He was not at the time of his interaction with the plaintiffs registered in violation of General Statutes § 20-417(b)(a). Although the statute defines a new home construction contractor as any person who contracts with a consumer to construct a new home, because the court found no enforceable contract does not negate the fact that the defendant was attempting to contract with the plaintiffs for the construction of a new log style home.
A violation of General Statutes § 20-417b(a) is deemed to be a violation of CUTPA. General Statutes § 42-110g(a) provides that "any person who suffers any ascertainable loss of money . . . as a result of the use or employment of a method, act or practice prohibited by section 42-110b, may bring an action in the judicial district . . . to recover actual damages."
The court in Hinchliffe v. American Motors Corporation, 184 Conn. 607, 612-13 (1981), held that "the words `any ascertainable loss' as used in [General Statutes § 42-110g(a)] do not require a plaintiff to prove a specific amount of actual damages in order to make out a prima facie case." "Ascertainable means `capable of being discovered, observed or established.' `Loss' has been held synonymous with deprivation, detriment and injury. It is a generic and relative term. `Damages' on the other hand, is only a species of loss. The term `loss' necessarily encompasses a broader meaning than the term `damage'" Id., 613. "Under CUTPA, there is no need to allege or prove the amount of the ascertainable loss. This fact does not, however, negate the requirement that, for a CUTPA claim to be viable, at least some ascertainable loss must be alleged." Id., 613-14.
"[A]ctual damages are synonymous with compensatory damages and with general damages." DiNapoli v. Cooke, 43 Conn. App. 419, 427, 682 A.2d 603, cert. denied, 239 Conn. 951, 686 A.2d 124 (1996). Such damages "are to be distinguished from damages which are nominal, exemplary or punitive." Black's Law Dictionary, 35 (6th Ed. 1990).
The court does find that there exists the possibility that the plaintiffs are capable of experiencing some injury or detriment based upon the facts. They have laid out a prima facie case for the CUTPA claim. They have not, however, proved the actual damages which would allow this court to fashion an appropriate monetary remedy. There was not sufficient evidence for this court to determine an amount of actual damages suffered by the plaintiffs. The court therefore awards no compensatory damages.
General Statutes § 42-110g provides in relevant part that "[a]ny person who suffers any ascertainable loss of money or property . . . as a result of the use or employment of a method, act or practice prohibited by section 42-110b, may bring an action . . . to recover actual damages . . . The court may, in its discretion, award punitive damages and may provide such equitable relief as it deems necessary or proper." General Statutes § 42-110g(d) provides that "[t]he court may award, to the plaintiff . . . costs and reasonable attorneys fees based on the work reasonably performed by an attorney . . ."
"[A]warding punitive damages . . . under CUTPA is discretionary . . . and the exercise of such discretion will not ordinarily be interfered with on appeal unless the abuse is manifest or injustice appears to have been. [T]o award punitive or exemplary damages, evidence must reveal a reckless indifference to the rights of others or an intentional and wanton violation of those rights." (Internal quotation marks omitted.) Tanpiengco v. Tasto, 72 Conn. App. 817, 820-21, 806 A.2d 1080 (2002). With regard to the awarding of attorneys fees, there is an "undisputed requirement that the reasonableness of attorneys fees and costs must be proven by an appropriate evidentiary showing." Smith v. Snyder, 267 Conn. 456, 471 (2004) (emphasis added).
The court does not find the defendant exhibited any reckless indifference to the plaintiffs. Unfortunately this is a case where the plaintiffs contacted the defendant and were trying to cut corners and costs by taking on the task of acting as the general contractor. The defendant, on the other hand, was attempting to forge into the business of new home construction and both parties made mistakes along the way. But there was no reckless intention on the part of the defendant. The court does not award any punitive damages and declines to award any attorneys fees or costs as there was no evidentiary showing of those fees or costs.
The court finds that the parties had not finalized their negotiations for a contract for the construction of the log cabin style house. As to the breach of contract claim, the court finds in favor of the defendant. As to the CUTPA claim, the court finds the plaintiffs established a prima facie case for a CUTPA violation but failed to prove any actual damages.
Swienton, J.