No. HHB CV07 5003259 S
November 27, 2007
MEMORANDUM OF DECISION ON MOTION TO STRIKE (#112)
The court heard oral argument concerning the defendant's motion to strike each count of the plaintiff's substituted complaint (#112) at the short calendar on October 9, 2007. After review of the parties' submissions and consideration of their arguments, the court issues this memorandum of decision. For the reasons set forth below, the motion is granted.
The plaintiff, The Drain Doctor, Inc., alleges, in its three-count substituted complaint (#111), that the defendant, Jason Lyman, owes the plaintiff $6,707.77 for work it performed at Lyman's residence, in Wallingford, Connecticut, including repairing a broken sewer line under a concrete slab, installing an upgraded sanitary sewer line, repairing a storm drain under the driveway in two locations, patching the defendant's driveway where it had been dug up to install the sewer line, and restoring and seeding the defendant's lawn where it had been dug up to install the sewer line. See substituted complaint, all counts, ¶ 8. The plaintiff alleges that the above work was performed at the request of the defendant or his agent, and in prompt response to a sewer problem that made the defendant's home uninhabitable. The plaintiff advances breach of contract and equitable theories of recovery.
The plaintiff filed a three-count amended complaint (#105) which was stricken in its entirety by Judge Prestley in her July 10, 2007 memorandum of decision (#110) granting the defendant's previous motion to strike (#106). Drain Doctor, Inc. v. Lyman, Superior Court, judicial district of New Britain, Docket No. CV 07 5003259 (July 10, 2007, Prestley, J.) In that decision, Judge Prestley expressly found that the sewer work done on the residence by the plaintiff is subject to the provisions of the Home Improvement Act, General Statutes § 20-418 et seq. (the Act). See id. Judge Prestley then considered whether an exemption to the Act provided by General Statutes § 20-428(4) was available to the plaintiff, and concluded that it was not because the plaintiff failed to allege that it was a licensed plumber. See id.
Following Judge Prestley's ruling, the plaintiff filed a substituted complaint on July 24, 2007 (#111). There, the plaintiff additionally alleges that it operated under a valid plumbing license, issued to Gary E. Schmidt.
In its motion to strike now before the court, the defendant contends that the substituted complaint is legally insufficient because the transaction at issue is governed by the Act, the plaintiff has not alleged that there was a written contract between the plaintiff and the defendant, and, therefore, as a matter of law, the plaintiff cannot recover damages on any theory that it advances.
In its memorandum of law in opposition to the motion to strike, the plaintiff objects on the ground that the work it performed for the defendant is not covered by the Act because plumbing work is not specifically referenced as home improvement, and that concerns for public protection are alleviated through the plumber licensing process. The plaintiff goes on to argue that this view is supported by the Act's legislative history, and that even if otherwise applicable, the exemption to the Act found in § 20-428(4) clearly applies.
II. STANDARD OF REVIEW
The standard of review on a motion to strike is well established. "[A] motion to strike challenges the legal sufficiency of a pleading . . . We take the facts to be those alleged in the complaint . . . and we construe the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . [W]hat is necessarily implied [in an allegation] need not be expressly alleged . . . It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 317-18, 907 A.2d 1188 (2006).
"For the purpose of ruling upon a motion to strike, the facts alleged in a complaint, though not the legal conclusions it may contain, are deemed to be admitted." (Internal quotation marks omitted.) Murillo v. Seymour Ambulance Assn., Inc., 264 Conn. 474, 476, 823 A.2d 1202 (2003).
General Statutes § 20-419(4) defines "[h]ome improvement" as including, but not limited to "the repair, replacement, remodeling, alteration, conversion, modernization, improvement, rehabilitation . . . or addition to any land or building . . . which is used or designed to be used as a private residence . . . or the construction, replacement, installation or improvement of driveways . . . landscaping . . . in connection with such land or building . . . in which the total cash price for all work agreed upon between the contractor and owner exceeds two hundred dollars." General Statutes § 20-429(a) provides that "[n]o home improvement contract shall be valid or enforceable against an owner unless it: (1) Is in writing . . ." The plaintiff does not allege the existence of a written contract with the defendant.
The plaintiff argues that the Act does not apply to the work it performed because the Act does not apply to the work of licensed tradesmen. The defendant argues that not only does the act apply, but that the court must so find because it is the "law of the case." The Supreme Court recently reiterated that
[i]n essence [the law of the case doctrine] expresses the practice of judges generally to refuse to reopen what [already] has been decided . . . New pleadings intended to raise again a question of law which has been already presented on the record and determined adversely to the pleader are not favored . . . Where a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance . . .
A judge is not bound to follow the decisions of another judge made at an earlier stage of the proceedings, and if the same point is again raised he has the same right to reconsider the question as if he had himself made the original decision . . . This principle has been frequently applied to an earlier ruling during the pleading stage of a case . . . According to the generally accepted view, one judge may, in a proper case, vacate, modify, or depart from an interlocutory order or ruling of another judge in the same case, upon a question of law.
Thus, while hesitant to disrupt a past finding, this court must perform its own analysis as to the applicability of the Act. The plaintiff notes that plumbing work is nowhere referenced in the Act's definition of home improvement. However, the definition of home improvement includes, but is not limited to its many examples, and the definition does include the repair of any building or land used as a private residence, which would seem to include the work performed by the plaintiff here. Further, the exemption in § 20-428(4) of the Act, exempting persons holding a current professional or occupational license under certain circumstances necessarily implies that such labors would, otherwise, be subject to the Act. Dispositively, the Appellate Court explicitly has found plumbing work to be subject to the Act, applicability of an exemption notwithstanding. See Avon Plumbing Heating Co. v. Fey, 40 Conn.App. 351, 357-58, 670 A.2d 1318 (1996). The Superior Court has as well. Drain Doctor v. Lyman, supra, Superior Court, Docket No. CV 07 5003259; Pete's Plumbing, LLC v. Meade, Superior Court, judicial district of Danbury, Docket No. CV 00 0340790 (April 12, 2001, Adams, J.). Therefore, all the work that the plaintiff performed on the defendant's residence, both the plumbing and piping work, as well as the driveway and landscaping work (which is explicitly referenced in the Act's definition of home improvement), falls within the ambit of the Act.
While the transaction at issue here is of the type governed by the Act, what must now be determined is whether the plaintiff satisfies one of its exemptions. General Statutes § 20-428 states that the Act "shall not apply to any of the following persons or organizations: . . . (4) any person holding a current professional or occupational license issued pursuant to the general statutes, and any person registered pursuant to section 25-126 to 25-137, inclusive, provided such person engages only in that work for which such person is licensed or registered." Because the plaintiff did not allege that it was a licensed plumber in its amended complaint, Judge Prestley granted the defendant's motion to strike, for the transaction as alleged by that complaint was plainly without the above exemption because the plaintiff did not allege in the previous complaint that it held any professional or occupational license that could exempt it from the Act. Drain Doctor v. Lyman, supra, Superior Court, Docket No. CV 07 5003259.
In his motion before Judge Prestley, the defendant raised the argument that the plaintiff was not entitled to protection under this exemption to the Act because of the nature of the work it performed. Specifically, because the plaintiff alleges that it performed driveway repair and landscaping, it did not perform work only for which it was licensed. The plaintiff argues that the driveway and landscaping work was "incidental" to the plumbing and piping work, and should not act to disqualify it from the exemption. Because Judge Prestley struck the plaintiff's claims based upon its failure to allege that it was a licensed plumber, she expressly did not decide whether or not the nature of the work the plaintiff performed disqualifies it from § 20-428(4)'s exemption to the Act. See id. This is the question now before the court.
"When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply . . . In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered." (Internal quotation marks omitted.) Pizzuto v. Commissioner of Mental Retardation, 283 Conn. 257, 264-65, 927 A.2d 811 (2007).
General Statutes § 1-2z provides, "The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered."
The court must "construe a statute as a whole and read its subsections concurrently in order to reach a reasonable overall interpretation . . . In particular . . . subsection (a) of § 20-429 must be construed in conjunction with subsection (f), which the legislature added to the Home Improvement Act in 1993. The legislature added subsection (f) to § 20-429 when it enacted No. 93-215, § 1, of the 1993 Public Acts, in order to address what it considered to be the harsh result of Barrett Builders v. Miller, 215 Conn. 316, 322-23, 576 A.2d 455 (1990), in which [the Supreme Court] denied a contractor recovery for work performed because the court concluded that the Home Improvement Act was intended to abrogate common-law remedies, including quasi contract claims." (Citation omitted; footnote omitted; internal quotation marks omitted.) Economos v. Liljedahl Bros., Inc., 279 Conn. 300, 309-10, 901 A.2d 1198 (2006).
General Statutes § 20-429(f) provides that "[n]othing in this section shall preclude a contractor who has complied with subdivisions (1) [requiring that a home improvement contract be in writing], (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."
As a preliminary matter, the defendant, at oral argument, advanced the position that the plaintiff has still failed to satisfactorily allege that it is a licensed plumber, noting that the plaintiff in this matter is "The Drain Doctor, Inc.," whereas the plaintiff alleges that it operated under a plumbing license issued to Gary E. Schmidt. However, "[b]ecause § 20-428(4) exempts from the written contract requirement of § 20-429(a)(1) `persons' with current occupational licenses and `persons' is defined as including corporations, . . . if work is done by a licensed plumber who works for a corporation, the lack of a written contract between the corporation and a home owner does not bar recovery by the corporation for the work performed." Avon Plumbing Heating v. Fey, supra, 40 Conn.App. 358. "If [a company's] employees are licensed plumbers, [the company] is considered licensed also for purposes of § 20-428(4)." (Internal quotation marks omitted.) Santa Fuel, Inc. v. Varga, 77 Conn.App. 474, 494, 823 A.2d 1249, cert. denied, 265 Conn. 907, 831 A.2d 251 (2003).
General Statutes § 20-330(3) defines plumbing and piping work as "the installation, repair, replacement, alteration or maintenance of gas, water and associated fixtures . . . sanitary equipment . . . all water systems for human usage, sewage treatment facilities and all associated fittings within a building and includes lateral storm and sanitary lines from buildings to the mains . . . and includes making connections to back flow prevention devices . . ." Having properly alleged itself to be a licensed plumber, the plaintiff argues that the work it performed clearly is within the definition of plumbing and piping work under General Statutes § 20-330(3), and that "[a]ll other work, i.e. re-filling of the trench, the seeding of the lawn and the repair of the driveway is incidental to the plumbing work . . ." See plaintiff's memorandum of law, pp. 10-11. However, the plaintiff does not allege that it is licensed to perform driveway or landscape repair, nor that its plumbing and piping license permit such work.
Section 20-428(4)'s conclusion, allowing an exemption to the Act "provided such person engages only in that work for which such person is licensed or registered," (emphasis added) is expressly limited. If a contractor performs work primarily within the scope of its license, but a small amount without that scope, § 20-428(4) exempts none of the work from the Act, possibly leaving the contractor without a remedy at law or in equity, if the home improvement contract does not comply with the Act. See Economos v. Liljedahl Bros., Inc., supra, 279 Conn. 309-10.
The language of § 20-428 contrasts sharply with other statutes that protect conduct "to the extent" that it complies with one or more provisions of the statute. See General Statutes § 20-123(c)(2)(d) (defining the scope of licensed practice in dentistry, authorizes certain procedures to the extent that they are associated with trauma, rather than making impermissible any procedure if any part of the procedure is not associated with trauma); General Statutes § 53a-22(b) (in making an arrest, the use of physical force upon another person is justified to the extent that a peace officer or authorized official of the Department of Correction reasonably believes such force to be necessary, rather than providing that any use of force without the requisite belief is impermissible); General Statutes § 42a-9-408(a) (in the commercial context, invalidating terms in financial instruments only to the extent that they contain certain provisions, rather than invalidating the entire instrument if part of it does not comply with the statute).
The text of General Statutes § 20-428 is plain and unambiguous and does not yield absurd or unworkable results. Accordingly, extratextual evidence of the meaning of the statute shall not be considered. See General Statutes § 1-2z.
"The purpose of the Home Improvement Act is to ensure that home improvements are performed by qualified people." (Internal quotation marks omitted.) New England Custom Concrete, LLC v. Carbone, 102 Conn.App. 652, 663, 927 A.2d 333 (2007). This concern is as applicable to unlicensed contractors performing plumbing and piping work as to work by a plumber performing driveway repair and landscaping.
The plaintiff performed work that is governed by the Act. See Avon Plumbing Heating Co. v. Fey, supra, 40 Conn.App. 357-58. The exemption to the Act provided in § 20-428(4) does not apply because, based upon its complaint, the plaintiff did not confine its activities to the work it was licensed to perform. The plaintiff does not allege that its home improvement contract with the defendant was in writing, thus the contract is not enforceable against the defendant at law under § 20-429(a)(1); nor in equity under § 20-429(f), as a writing is also a necessary condition for that relief. The Act abrogates any other common-law remedies. See Economos v. Liljedahl Bros., Inc., supra, 279 Conn. 310.
Since the defendant's argument, that the plaintiff is not registered as a home improvement contractor, was mentioned only in his memorandum of law, and not specified in his motion, the court need not consider it. See Practice Book § 10-41 (requiring a motion to strike to distinctly specify the reasons for each claimed insufficiency.); Jackson v. Water Pollution Control Authority, 278 Conn. 692, 711, 900 A.2d 498 (2006).
Accordingly, the defendant's motion to strike counts one, two and three of the plaintiffs substituted complaint is granted.
For the foregoing reasons, the defendant's motion to strike is granted. It is so ordered.
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