2005 Ct. Sup. 14179
No. CV04-0352467 SConnecticut Superior Court Judicial District of Danbury at Danbury
November 8, 2005
MEMORANDUM OF DECISION
SIDNEY AXELROD, JUDGE TRIAL REFEREE.
This is a five-count suit brought by the plaintiff against the defendant arising out of the defendant furnishing and installing tile in a home owned by the plaintiff at 87 Berkshire Road, Newtown, Connecticut. Count One seeks damages against the defendant for sums the plaintiff alleges will be required to be paid in order to have the contract completed and repair defects in the work that was performed. Count Two sounds in unjust enrichment. Count Three alleges violation of the Connecticut Trade Practices Act. Count Four alleges negligent performance, and Count Five alleges a statutory improper lien.
The defendant has filed a counterclaim seeking damages for the difference between the agreed-upon price of $7,975 and the amount paid of $4,550.
Some of the facts leading to this lawsuit are not in dispute. The plaintiff hired the defendant in January 2004 to perform work in her home. The job originally included the purchase and installation of marble countertops but was later reduced to just tiling on the backsplash and floor which included custom cutting of the floor tiles to include rosettes. The final total price for the labor and materials was to be $7,975 of which $4,550 was paid as a down payment which paid for the materials in full. This $4,550 included the fact that the plaintiff asked for and received a 10 percent discount on the materials. The parties did not enter into a written signed contract.
I COUNT ONE (THE PLAINTIFF’S COMIPLAINT)
The plaintiff, in her trial memorandum dated August 29, 2005 claims in part as follows: CT Page 14180
The defendant, Tile Shop, Inc., claims plaintiff ordered and receive “porcelain” tile. Defendant’s expert, Anthony Varrone, testified that plaintiff received a “ceramic glaze” tile, which is not porcelain or flagstone floor tile (Exhibit 2). This testimony was unrebutted. Aside from the workmanship issues presented at trial, the plaintiff did not receive what she ordered.
The court is not persuaded by that argument.
The claim of the plaintiff that she received a ceramic tile and not a porcelain or flagstone tile based on the unrebutted testimony of her expert witness is not correct. Mr. Oprea, the president of The Tile Shop, Inc. and an expert witness, in his testimony on August 16, 2005, testified in part as follows:
Q Now, you had testified earlier that she bought porcelain tile?
A Yes.
The majority of the quantity of what we have ordered for Mrs. Abric is Casa Dolce Casa Flagstone Beige fifteen by fifteen floor tile, —
Q But you didn’t —
A But it’s a porcelain tile
BY MR. CARREIRA:
Q And you testified earlier that you had provided porcelain tile —
A Yes.
When examined by his attorney on August 17, 2005, Mr. Oprea testified in part as follows:
BY MR. CHAMBERLAIN:
Q There’s been some discussion about the tiles that were chosen in this case. Can you give us any CT Page 14181 information about the choice of tile for this job?
A Yes. The choice of tile was a Casa Dolce Casa a fifteen by fifteen flagstone tan color. It’s a — it’s a — a high quality Italian porcelain tile.
Q And when you say flagstone, that tends to make me think of an outside tile.
A Well, that — what — what that is is that’s the — the name of the tile by the manufacturer — name for the tile type, flagstone.
Q Is it — is it for interior use?
A Yes.
The court finds that the plaintiff received the exact tile that she ordered and that the tile that she received was a porcelain tile.
The plaintiff in her brief also alleges in part as follows:
Much was made by defendant on Mrs. Abric’s choice not to use “hardybacker” board. She was not told it was for leveling. She denied being told any purpose to it, but written communications and the testimony of Mr. Oprea indicated that it was communicated by invoice/estimate that this product helped in floor strengthening. Given the testimony of Mrs. Abric after Max Struebel saw the sub floor installation, it is clear that it was not communicated to Mrs. Abric that the “hardybacker” board could be utilized to accomplish the required flatness of the tiles. Mrs. Abric was denied the opportunity to make an informed decision due to this lack of communication.
A RE PLAINTIFF’S DENIAL OF BEING TOLD THAT THERE WAS ANY PURPOSE TO USING HARDYBACKER
The testimony of the plaintiff that she was not told that there was any purpose to the use of hardybacker is between incredulous and factually inaccurate. CT Page 14182
The original written estimate given by the defendant to the plaintiff included in part the following:
Hello Jeannie, if you don’t want to do the hardybacker boards as an additional strength to your project, then you have to deduct this amount off the total price: $2,139. Then the total price for the project will be $14,793.71.
Sincerely, Max Struble
Please, give me call if you have any questions. Thank you.
The plaintiff elected to have her own contractor lay the sub-flooring that had to be laid before the tile could be laid. She received a $2,139 credit off the total price as a result of her decision not to have the defendant install the hardybacker boards. Her contractor did not use hardybacker. The plaintiff also makes the following claim in her trial memorandum:
For example Mrs. Abric expected the defendant to properly prepare the floor for the tile installation.
This claim is also not true. The plaintiff expected her own “expert” to properly prepare the floor for the installation. She did not expect the defendant to properly prepare the floor for the tile installation.
B. THE PLAINTIFF’S CLAIM THAT SHE WAS NOT TOLD THAT HIARDYBACKER COULD BE USED TO CREATE A MORE LEVEL FLOOR
That claim simply put is not true.
The following is a portion of the testimony of the defendant’s salesman, Max Struble, on August 17, 2005:
Q Okay. Now did Mrs. Abric ever indicate to you knowledge of the condition of that floor?
A We had a conversation when I was at the residence doing some measuring for the project about the CT Page 14183 existing conditions of the floor. I voiced concern at the time about the levelness of the existing conditions. And she said, oh, my — my guy will take care of that. He’s going to do the sub floor.
Q Who do you think she meant by my guy?
A Her — the handyman that she uses for her rental properties.
Q Okay. And what did you take that statement to mean?
A Well, I discussed putting — I discussed the potential for Hardy Backer to create a more level floor, and she basically said, no, she didn’t want to do it.
MR. CHAMBERLAIN: Approach, Your Honor.
THE COURT: Yes.
Q Showing you Plaintiff’s 2, on the second page there appears to be a note, is that from you?
A Yes.
Q Okay. And is that — did that comment come after the discussion you just spoke of related to her refusal to use the Hardy Backer Board?
A Yes, that was a direct result.
Q Okay. And it says that — correct me if I’m wrong, but it says if you have any questions, call me?
A Yes.
Q Okay. Did she ever call you with any questions?
A Not on that issue.
Q But you — you made recommendations to Mrs. Abric on how to handle the floor, isn’t that true?
A I told her we needed to do something to — I told CT Page 14184 her we needed to do something with the sub floor. And her response was her guy was handling that.
THE COURT: From the standpoint of the installation of the plywood or the sub flooring, did the discussion that you testified that you handled Mr. — with Mrs. Abric regarding Hardy Backer takes place before the sub flooring was installed, after it was installed or during the time it was installed?
MR. STRUBLE: Before. [Emphasis provided.]
The court finds that the use of hardybacker board to assist with the leveling of the floor prior to the installation of the tile was communicated to the plaintiff and she elected not to have the defendant install the hardybacker but rather to have her own technician lay the sub floor. The court finds that the failure to have hardybacker installed prior to the tile being laid was solely the decision of the plaintiff for which the defendant cannot be held responsible nor can the defendant be held responsible for the fact that the floor is not more level. Even the plaintiff’s own expert witness testified that hardybacker should have been installed prior to the tile being laid.
The plaintiff also claims that the spacing between the tiles was not adequate to meet industry standards. The court is not persuaded by that claim. On the issue of spacing the defendant’s expert testified in part as follows:
Q Are tile spacings supposed to be consistent?
A The tile spacing is supposed to be consistent in — within reasons. The materials are not perfectly square as it is themselves. They differ from size to size, from tile to tile . . .
Q Is that considered a normal installation spacing in your —
A For that particular project, yes, it is.
Q You consider that variance normal?
A I consider that normal for that sub flooring CT Page 14185 situation there, yes. I can explain why that is like that . . . When your — when your floor is round like a ball or convex or concave, whatever, the joints will be like this. If you — if you go inside of the — the floor is lower on the inside, then the joints close in, and they will be a lot narrower.
And the situation here is because of — of the unevenness of the floor, the size of the tile being inconsistent — I mean, to slide. It’s not the tile. This is all the sub floor procedure that made us end up to this situation . . .
Q Would you consider inconsistent spacing a defect in a floor installation?
A No . . .
Q Do the tiles have consistent spacing in — in the — in the showroom?
A No.
The court finds that the spacing between the tiles and the installation of the tiles themselves met industry standards. The court also finds that any difference in spacing between tiles was not a defect in the tile installation but rather due to the plaintiff’s decision not to use hardybacker for the sub flooring and the fact that the tiles ordered are not perfectly square.
The parties are also in dispute as to whether the grout color matched the tile as specified. From the evidence presented the court finds that the grout color matched the tile as specified.
Finally, the parties are in dispute as to whether the tile was installed in a workmanlike manner. The court accepts the testimony of the defendant’s expert witness and finds that the tile was installed in a workmanlike manner and that the installation of the tile was the best professional job that could have been done.
The court finds that the plaintiff has failed to prove that the defendant breached the agreement in any of the ways claimed in the first count. CT Page 14186
COUNT TWO
The plaintiff’s claim involving unjust enrichment is as follows:
Plaintiff alleges that defendant has been unjustly enriched by payment in excess of the reasonable value of their materials and services. Although there was no direct testimony as to the value of the services and materials provided, plaintiff’s expert testified that the tiles would have to removed and replaced. Therefore, by inference, there is no value to plaintiff and no benefit conferred to her. However, the benefit of payment of $4,750.00 was made to The Tile Shop, Inc. that provided no value to plaintiff, but plaintiff did provide unearned value to defendant.
The court is not persuaded by that argument. The defendant was not unjustly enriched by payment in excess of the reasonable value of the materials and services. The fact is that the plaintiff received material and services the value of which exceeded her payment of $4,750. The claim of the plaintiff that the tiles would have to be removed and replaced is as a direct result of her decision not to install hardybacker.
COUNT THREE (CUTPA)
Plaintiff alleges in the Third Count violations of the Connecticut Unfair Trade Practices Act.
The agreement between the parties is a home improvement as defined by Connecticut General Statutes § 20-419(4) in that it is for the repair, remodeling, alteration, conversion, modernization, improvement or rehabilitation of a building to be used as a private residence (which can include rental property) which includes installation. Mrs. Abric was an owner as defined by § 20-419(6) and The Tile Shop, Inc. was a contractor as defined in §§ 20-419(3) and 20-419(7). The property at which defendant installed the tile was residential real property as defined by § 20-419(10).
Connecticut General Statutes § 20-429 requires Home Improvement Contracts to contain certain provisions including: 1) that it is in writing; (2) is signed by the homeowner and the contractor; 3) CT Page 14187 contains the entire agreement between the owner and the contractor; 4) contains the date of the transaction; 5) contains the name and address of the contractor; 6) contains a notice of the owner’s cancellation rights in accordance with chapter 740 (Home Sales Solicitation Act, Connecticut General Statutes §42-134a); 7) contains a starting date and completion date; and 8) is entered into by a registered salesman or registered contractor.
The contract between the parties was not signed by the plaintiff and the defendant, did not have a starting date and completion date and was not entered into by a registered salesman and did not contain a notice of the owner’s cancellation rights.
The first element of the threshold test for CUTPA recovery is satisfied in this case. The defendant’s undisputed failure to comply with the Home Improvement Act’s written contract requirements is a per se violation of CUTPA by virtue of General Statutes § 20-427 which provides that any violation of the Home Improvement Act is deemed to be an unfair or deceptive trade practice.
The plaintiff has not, however, satisfied the second threshold requirement for CUTPA recovery. CUTPA provides a private cause of action to any person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a prohibited method, act or practice. The ascertainable loss requirement is a threshold barrier which limits the class of person who may bring a CUTPA action seeking either actual damages or equitable relief. The words “any ascertainable loss” however, do not require a plaintiff to prove a specific amount of damages in order to make out a prima facie case. “Loss” has a broader meaning than the term “damage.” For the purposes of CUTPA, an ascertainable loss is a deprivation, detriment or injury that is capable of being discovered, observed or established. The plaintiff has failed to present any credible evidence of damages arising from the alleged CUTPA violations. The plaintiff has failed to present any evidence of any deprivation, detriment or injury that is capable of being discovered, observed or established as a result of the use or employment of a prohibited method, act or practice.
The plaintiff also seeks recovery of attorneys fees and punitive damages in this case which the court denies. CT Page 14188
COUNT FOUR (NEGLIGENT PERFORMANCE)
The plaintiff in the fourth count alleges that the defendants breached their duty of care to the plaintiff by the following negligent acts and omissions in that the defendant (a) failed to install the tile in a workmanlike manner; (b) failed to complete the contract pursuant to the agreement; (c) materially delayed the completion of the project resulting in substantial delay damages; (d) violated express and implied warranties contained in the agreement as to specified tile, gout, and inserts; (e) failed to perform such work in accordance with the contract; (f) failed to supervise his laborers, material, supplies and subcontractors.
The court finds that the plaintiff has failed to prove any of the above allegations.
The court finds that there was no credible evidence of any negligent performance on the part of the defendant.
COUNT FIVE (STATUTORY AND IMPROPER LIEN)
The allegations of Count Five are that the defendant filed a mechanic lien on the premises that is invalid and in violation of § 20-429 and that demand was made by certified mail on May 7, 2004 to the defendant to release the lien pursuant to § 49-51. The letter in question was not sent to the defendant. Unlike many of our statutes which expressly provide in the alternative for notice to either attorney or the party he represents in analogous statutory proceedings, § 49-51 specifies that written notice be given “to the lienor at his last known address.” There is no evidence presented that notice was given to the lienor and therefore there is no basis for this count.
II THE DEFENDANT’S COUNTERCLAIM
The court rules that the failure of the defendant to comply with the Home Improvement Act bars recovery of this claim.
In summary, the court finds for the defendant on the plaintiff’s complaint and for the plaintiff on the defendant’s counterclaim. CT Page 14189