No. CV04 4000637 S
August 5, 2005
MEMORANDUM OF DECISION
The matter presently before the court arises out of alleged inadequate improvements to the plaintiff's residence. The plaintiff homeowner, Albertina Pereira, brought an eight-count complaint against the defendants, Marco A. DeLeon d/b/a Aardvark Roofing and Aardvark Roofing, LLC, the home improvement contractors.
The defendant Aardvark Roofing, LLC moves to strike count eight of the plaintiff's complaint which alleges a claim under the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq., based on the defendant's alleged violations of the Home Improvement Act, General Statutes § 20-418 et seq., on the grounds that a homeowner may not allege an independent cause of action against a contractor under the Home Improvement Act.
"Neither the Supreme Court nor the Appellate Court have determined whether a homeowner has an independent action and thus may sue a contractor for rescission or damages under the Home Improvement Act . . . i.e., whether a homeowner may use . . . the Home Improvement Act . . . `as a sword rather than a shield.'" Chasm v. Pasicki, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV 02 0079444 (April 2, 2004, Bear, J.). The Appellate Courts, nevertheless, have allowed homeowners to use the Home Improvement Act in counterclaims under CUTPA, when a contractor brings an action for breach of contract. General Statutes § 20-427(c); MJM Landscaping, Inc. v. Lorant, 268 Conn. 429, 435-36, 845 A.2d 382 (2004) (failure to comply with Home Improvement Act is a per se violation of CUTPA); Meadows v. Higgins, 249 Conn. 155, 161, 733 A.2d 172 (1999) (same); Macmillan v. Higgins, 76 Conn.App. 261, 279, 822 A.2d 246, cert. denied, 264 Conn. 907, 826 A.2d 177 (2003) (same). In CT Page 11889-au fact, the Appellate Court has addressed the issue presently before this court and has held that homeowners may initiate an action with a complaint seeking damages based on allegations under CUTPA for a contractor's violation of the Home Improvement Act. Tang v. Bou-Fakhreddine, 75 Conn.App. 334, 338-40, 815 A.2d 1276 (2003).
The plaintiff pleads violations of the Home Improvement Act in count eight to support her claim in paragraph twenty-three that the alleged acts and omissions constitute unfair trade practices violating CUTPA. In light of the Tang case, count eight states a legally sufficient cause of action. The motion is denied.
Though not provided as a ground on the face of the motion to strike, the defendant argues in its supporting memorandum of law that count eight also improperly alleges claims under the Home Solicitation Sales Act (HSSA), General Statutes § 42-134a et seq. For the same reasons noted with respect to the HIA, however, violations of HSSA likewise support a claim under CUTPA. General Statutes § 42-141.