2003 Ct. Sup. 9519
No. CV-00-0092542-SConnecticut Superior Court, Judicial District of Middlesex at Middletown
August 19, 2003
MEMORANDUM OF DECISION RE WHETHER HOME IMPROVEMENT ACT CONTRACT FORMED AND BREACHED
JONES, JUDGE.
Plaintiff Michael Krouchick brings this action for damages allegedly resulting from the failure of the defendant, Brian Malley, to comply with the terms of a home improvement contract calling for the remodeling of the plaintiff’s seasonal residence. Of particular concern in this case is whether the parties entered into such a contract; and, if so, whether that contract complies with the terms of the Connecticut Home Improvement Act.
The complaint is set out in three counts. The first count is for breach of contract; the second count asserts a violation of the Connecticut Unfair Trade Practices Act; the third count is characterized as one in Misrepresentation/Fraud; and the fourth count is captioned Unjust Enrichment.
Regarding the first count, the plaintiff claims that he has proved that in March of 1998 he and the defendant entered into an oral contract which provided that for the sum of $60,000 the defendant would add a second-story addition to plaintiff’s lake-front home in East Haddam, Connecticut. In this count the plaintiff avers that the defendant breached this contract by stopping work on the project in or about December of 1998, and that as a result the plaintiff has had to retain other contractors to complete the construction work, causing him additional expenses.
The second count presents for an adjudication under the Connecticut Unfair Practices Act (CUTPA). In this count the plaintiff realleges the essential allegations of the first count as the basis for finding a violation of CUTPA.
In the third count, which seeks an adjudication based upon misrepresentation/fraud, the plaintiff realleges the essential allegations of the first count. This count contains the further CT Page 9520 allegation that by misrepresenting his ability to do the job the defendant induced the plaintiff to pay money and to enter into an oral agreement on which the plaintiff relied to his detriment.
The fourth and final count is cast as one in unjust enrichment. In addition to realleging the essential allegations of the first account, the plaintiff in count number four alleges that the defendant has been unjustly enriched by accepting sums of money and by not completing the tasks that the monies represented. In its Answer the defendant has denied the essential allegations of each count of th Complaint.
The court shall now review the facts of the case in the context of the allegations of the complaint.
Plaintiff David Krouchick, a resident of California, has an ownership interest in a seasonal residence known as 209 East Shore Drive in East Haddam, Connecticut. The house is situated on Lake Haywood. Defendant Brian Malley is a home improvement contractor, so licensed by the State of Connecticut.
The defendant, a resident of Connecticut, was introduced to the plaintiff by mutual friends. The plaintiff’s wife and the defendant’s ex-wife were friends. While in Connecticut the plaintiff asked the defendant to undertake the project of remodeling his lakefront home. Walter Zell, an architect in Los Angeles prepared the architectural drawings which the plaintiff reviewed with the defendant when he was on vacation in Los Angeles in March of 1998. The plaintiff expressed an interest in undertaking the remodeling job and returned to Connecticut with a copy of the architectural plans which lists him as the General Contractor.
In March of 1998, prior to establishing an agreed-upon price, the plaintiff requested the defendant to “do him a favor” and obtain a building permit so that the new foundation for the house could be poured by another contractor hired by the plaintiff specifically for the foundation work. On March 12, 1998 the defendant applied to Town of Haddam for the Building Permit and paid the application fee of $495.00. The application contained the following wording as to the, “proposed work:”
Alteration — second story 30′ 3″ x 27′; Addition — 1′ x 15′ (increasing the living room).
Proposed Addition: Total sq. ft. of new work 810; # of stories 2; Height 26′ 9″; # bedrooms (including CT Page 9521 existing) 3.
In September or October of 1998 the plaintiff came to Haddam, Connecticut, inspected the property, and discussed the requested remodeling with the defendant in his presence. In discussing the scope of the work; namely, an alteration involving a second-story addition for approximately 810 square feet of living space, defendant Brian Malley quoted a price of $74,000 for the project. He also informed the plaintiff that the elimination of certain windows by Anderson could result in a savings of $17,000, and that if he were to use vinyl windows costing $3000, the remodeling could be done for $60,000. The expected completion date was sometime before Memorial Day. The plaintiff asked the defendant to provide to him a written remodeling contract. The defendant promised to provide the written contract.
In October of 1998 the plaintiff informed the defendant that he had arranged to have a separate contractor, B W Building Movers, raise the house so that a new foundation for the house could be poured. He further informed the defendant that he had hired Brent Devine, a separate contractor, to pour the new foundation. He then requested the defendant to remove the deck, stairs and chimney so that the house can be raised and the new foundation poured. In the latter part of October or early November, the defendant removed the deck, stairs and chimney in the absence of an agreement as to what he would charge for this scope of work. Shortly thereafter Brent Devine poured the new foundation.
The plaintiff requested the defendant to inspect the progress of the new foundation pour. During the inspection the defendant discovered that a portion of the house near the foundation had rotted. At the plaintiff’s request and without an agreement in advance as to what he would charge for this scope of work, the defendant made the repair.
The plaintiff forwarded to the defendant a check in the amount of $10,000, and by telephone from California asked him about the status of the foundation pour. When the defendant informed him that the pour did not include a jog that is on the plans the plaintiff became extremely upset, and expressed his displeasure in an extremely angry telephone call to the defendant in which he threatened to sue him as well as Brent Devine. The plaintiff then cancelled payment on the $10,000 check, which he later reissued.
Responding to the plaintiff’s displeasure, the defendant in early December of 1998 forwarded to him a memorandum in which he stated that he would no longer work for him.[1] Accompanying the memorandum was an itemized bill for work done and a check in the amount of $6,000 which CT Page 9522 represented a refund of all but $4,000 which the plaintiff charged for the work performed.
1. The Breach of Contract Claim — Whether Contract created
As stated earlier, the plaintiff in Count One alleges that he and the defendant entered into an oral contract for certain home improvements which the defendant breached by not completing the project. In his post trial memorandum of law, the plaintiff claims, inter alia, that the defendant violated the Home Improvement Act by undertaking the project without a written home improvement contract.
The term “Home improvement contract” means an agreement between a contractor and an owner for the performance of a home improvement. Connecticut General Statutes Section 20-419. The term applies to the renovation of a home. Clearly adding a second-story addition to a house would qualify as a home improvement. Connecticut General Statutes Section 20-429 (a) provides in relevant part that
no home improvement contract shall be valid or enforceable against an owner unless it: (1) Is in writing, (2) is signed by the owner and the contractor, (3) 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 owners cancellation rights in accordance with the provisions of Chapter 740, (7) contains a starting date and completion date, and (8) is entered into by a registered salesman or registered contractor.
Inasmuch as both the defendant and the plaintiff testified that no written agreement was prepared and signed, it is clear that no valid and enforceable contract for the improvement of the plaintiff’s home exists. Since no such contract exists, it cannot be breached, and therefore damages based upon such breach could not be available. Judicial precedent establishes that legally there can be no oral contract for home-improvement. Barrett Builders v. Miller, 215 Conn. 316 (1990).
Although a home-improvement contract as defined by statute does not exist, the plaintiff would have the court examine the conduct of the parties to determine whether the defendant entered into an agreement whereby he became obligated to construct the second-story addition. Precedent is clear that, “[t]o form a . . . contract in Connecticut, there must be a mutual understanding of the terms that are definite and CT Page 9523 certain between the parties . . . 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.” Lussier v. Spinnato, 69 Conn. App. 136, 140, 794 A.2d 1008 (2002).
The plaintiff maintains the following actions of the defendant confirm the existence of a binding contract 1) his obtaining the building permit in March of 1998; 2) his work in preparing the house so that it could be raised for the foundation pour; and 3) quoting him a price of $74,000, adjustable to $60,000. The court finds that the plaintiff requested the defendant to “do him a favor” by obtaining the building permit so that the foundation pour could be arranged. Clearly the doing of a favor is not a contractual undertaking.
As to preparing the house for raising for the foundation pour, the court finds that the plaintiff has not presented sufficient evidence to demonstrate that this was not a side job to assist the work of B W Movers that raised the house, and/or Brent Devine who actually poured the foundation. The court further finds that the plaintiff has not presented sufficient evidence to prove that the parties agreed upon a particular price for the second-story addition. The court finds that there was no meeting of the minds with respect to the materials to be used in the project. A project quote with an unresolved range of $14,000 (between $74,000 and $60,000) is more than suggestive of the parties not having agreed upon a particular contract price, and of not having entered into a contract for home improvement.[2]
For the foregoing reasons, the court finds that the defendant has not breached the Home Improvement Act, and that the plaintiff has not proved the formation of any alleged contract.
II. Alleged Violation of Connecticut Unfair Trade Practices Act
The Connecticut Unfair Trade Practices Act (CUTPA) provides in material part that, “[n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce. Conn. Gen. Stat. Sec. 43-110b. Our Supreme Court has articulated the standard for applying CUPTA to particular transactions.
[I]n determining whether a practice violates CUTPA we have adopted the criteria set out in the cigarette rule by the federal trade commission for determining when a practice is unfair: (1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has CT Page 9524 been established by statutes, the common law, or otherwise — in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers, [competitors or other businesspersons] . . . All three criteria do not need to be satisfied to support a finding of [a violation of CUTPA]. (Internal quotation marks omitted.)
Hartford Electric Supply Co. v. Allen-Bradley Co., 250 Conn. 334, 367-68, 736 A.2d 824 (1999).
The court finds that the plaintiff has not proved that any actions of the defendant matched any of the criteria found antithetical under the gaze of CUTPA. The evidence presented establishes, inter alia, that the plaintiff from a distance of at least 3,000 miles in California was trying to supervise independent contractors whom he had retained for the purpose of raising the house and pouring a new foundation.
From the evidence presented, including defendant Brian Malley’s demeanor, the court finds that the defendant thought that he was going out of his way in extending a helping hand to the plaintiff by 1) obtaining a building permit so that these contractors could do their work, and 2) reviewing that work at the plaintiff’s request. The court finds that certainly these actions did not violate CUTPA. It is noted that although the defendant is listed as the General Contractor, it was the plaintiff who hired and paid the contractors who respectively raised the house and poured the foundation. Furthermore, the court finds that the parties had not finalized their negotiations for a contract for installation on the second-story addition.
III. Misrepresentation/Fraud
As stated earlier, the plaintiff in the third count realleges the claim of breach of contract, and further alleges that by misrepresenting his ability to do the job the defendant induced him to pay money and enter into the oral agreement on which he relied to his detriment. The requirements for sustaining this claim are quite established.
The elements of fraudulent misrepresentation are as follows: (1) a false representation must be made as to a statement of fact; (2) the statement was untrue and known by the defendant to be untrue; (3) the statement CT Page 9525 was made to induce the plaintiff to act; and (4) the plaintiff acted on the false representation to her detriment.
Dorsey v. Mancuso, 23 Conn. App. 629, 633, 583 A.2d 646 (1990).
The proof of such a claim must be by clear and satisfactory evidence Miller v. Appleby, 183 Conn. 51, 54-55, 438 A.2d 811 (1981). The court finds that the plaintiff has not proved facts which support his claim of misrepresentation/fraud.
IV. Unjust Enrichment
The fourth count contains the allegation of breach of contract, tethered to the claim that the defendant accepted money and did not complete the tasks that the money represented, and that therefore the defendant has been unjustly enriched. Unjust enrichment is a noncontractual means of recovery in the absence of a contractual remedy.
Unjust enrichment applies whenever, “justice requires compensation to be given for property or services rendered under a contract, and no remedy is available by an action on the contract . . .” 12 S. Williston, Contracts (3d Ed. 1970) § 1479, p. 272. Indeed, lack of a remedy under the contract is a precondition for recovery based upon unjust enrichment. Not unlike quantum meruit, it is a doctrine based on the postulate that it is contrary to equity and fairness for a defendant to retain a benefit at the expense of the plaintiff. See National CSS, Inc. v. Stamford, 195 Conn. 587, 597, 489 A.2d 1034 (1985).
Gagne v. Vaccaro, 255 Conn. 390, 401, 766 A.2d 416 (2001).
The fact that the defendant returned to the plaintiff $6,000 of a $10,000 check with an itemization of the $4000 worth of work which he did perform is a clear testament to the absence of any unjust enrichment claim. The unjust enrichment claim is unsubstantiated. CT Page 9526
Judgment for the defendant Brian Malley d/b/a Malley Remodeling
For the reason that the plaintiff has not proved any of the causes of action alleged in his complaint, judgment enters in favor of defendant Brian Malley d/b/a Malley Remodeling.
Clarance J. Jones, Judge
CT Page 9527