2011 Ct. Sup. 8018, 51 CLR 614
No. TTD CV 10 6001049 SConnecticut Superior Court Judicial District of Tolland at Rockville
March 28, 2011
MEMORANDUM OF DECISION
SFERRAZZA, J.
The plaintiff, Rosemary Zedlitz, sues Tekzn Home Improvements, LLC, and its owner, Edward Dembrowski, III, for breach of contract, fraudulent misrepresentation, and violations of the Connecticut Home Improvement Act (CHIA) and the Connecticut Unfair Trade Practices Act (CUTPA). The plaintiff seeks compensatory damages, interest, and attorneys fees. The plaintiff has acknowledged that two other counts of her complaint, asserting claims of conversion and civil theft, are inapplicable to the facts of this case, and judgment enters for the defendants as to those counts.
Also, the defendants concede joint responsibility in the event liability is established, and this memorandum will refer to Dembroski as the defendant on occasion. The defendant denies certain allegations of the complaint and interposes special defenses of accord and satisfaction, contractual damage limitation, and contractual limitation on the time in which this action had to be commenced.
On March 10 and 11, 2011, the court heard the evidence in this matter and makes the following findings of fact and rulings of law.
In 1969, the plaintiff and her husband had their residence on Winkler Road in East Windsor built. The original construction included a wooden exterior deck off the kitchen and a stairway to the ground. This deck had railings along its perimeter and stairway composed of boards affixed horizontally to vertical posts. The spaces between these horizontal boards were high and afforded the plaintiff a generous view of her backyard.
This system of horizontal deck rails violates state and town building codes which mandate vertical spindles which must be four inches or less apart. It is unknown whether the deck, as originally constructed, satisfied any safety code requirement extant in 1969.
CT Page 8019 However, around twenty years ago, the plaintiff’s husband extensively remodeled the deck system by constructing a ground-level deck underneath the original deck and which was about twice the length of the upper deck along the rear of the house. He never secured a permit to add to the existing deck although, at that time, the East Windsor building code required a permit for such an addition. A few years after that, he made further changes by constructing a screened porch atop that portion of the lower deck which was beneath the original upper deck.
He covered the enclosed porch with a roof made of eight-foot fiberglass panels. These panels were overlapped by around three inches and glued together. He never obtained a permit for these changes which permit was also required under the East Windsor ordinances. The plaintiff was aware that no permits had been sought for either of the modifications completed by her husband.
Sometime in 2008, the plaintiff’s kitchen caught fire. Possibly as a result of the fire, the upper deck detached from the house and became freestanding about two inches distant from the exterior wall of the house. The plaintiff submitted a homeowner’s insurance claim and received $10,000.
The plaintiff sought estimates for the reattachment and repair of the deck system. The plaintiff’s daughter was a friend of the defendant’s wife, and the plaintiff’s grandson was the best friend of the defendant’s son. At her daughter’s suggestion, the plaintiff asked the defendant to give her an estimate.
The work to be performed included reattachment of the deck system to the house and replacement of the upper deck floor boards, stairway, and fiberglass roof for the enclosed porch. The fiberglass roof installed by the plaintiff’s husband had over time cracked and was leaking.
The defendant proposed performing the desired work but included substituting a drainage system, which would be superior to the fiberglass roof, at a price of $13,500. The plaintiff, however, only wanted to expend $10,000, the amount of the insurance proceeds. Also, the plaintiff expressed her desire to maintain the old configuration and dimensions of the decks so that her view of her backyard would remain unobstructed. She explicitly rejected the use of vertical elements, such as spindles, to replace the horizontal railings, despite knowing that this construction would violate building code requirements.
Whether born of the cozy relationship between the two families or motivated by some other reason, the defendant agreed to submit a written CT Page 8020 proposal which eliminated the drainage system and vertical railing elements. The proposal provided, among other terms, that the defendant was to rebuild the upper deck with “specifications to be duplicate to the original.” Also, the proposal indicated that the “railings [were] to be reused.” The plaintiff agreed to this proposal, which had a cost of $10,000 and signed the contract on or about October 9, 2008.
Unfortunately, the contract also contained language that the defendant “will supply permit” and “all work to be performed in accordance with all applicable building codes.” For the reasons mentioned above, the defendant could not replicate the original deck railings and stairway, as demanded by the contract, and satisfy building code requirements simultaneously. These contract provisions are mutually exclusive. In other words, the contract, as written, was impossible to fulfill. The court finds that both parties to the contract knew of this infirmity when the proposal was accepted by the plaintiff.
The plaintiff paid the $5,000 down payment, and the defendant’s crew began working on the project some days later. On November 11, 2008, the work was completed, and the plaintiff paid the final installment of $5,000. She also gave a $100 “tip” to two of the defendant’s workmen because of the good job they had done.
The defendant never applied for a permit from the town building department even though he knew the law required one. The defendant also knew that the railings and stairway he installed were noncompliant with code provisions and would fail any inspection by the building official. He avoided the permit process precisely to elude inspection and to save the fees associated with the process.
He did, however, erect a sign advertising his company’s services on the plaintiff’s front lawn. On November 20, 2008, two days after the job was finished, the East Windsor building official, Rand Stanley, happened to drive by the residence and noticed the defendant’s sign. Stanley recollected that no permit had been drawn for any work on the property. He stopped and discovered the new deck work. He then telephoned the defendant and stressed the need to obtain a permit.
On December 1, 2008, the defendant belatedly applied for the permit. The defendant intentionally misrepresented on the permit application that the only work performed involved replacing decking floor boards and one post at a contract price of $600. The defendant’s prevarication was designed to save fees and misdirect the building official so that any future inspection might be limited to the scope of the work falsely described in the application. This ruse failed. CT Page 8021
Stanley inspected the decks on December 5, 2008, and withheld approval. He noted that the railings lacked the requisite balustrade, that the stairway risers were too high, the stairway wobbled, and other deficiencies regarding the deck stairs. Sometime thereafter, Stanley met with the defendant and the plaintiff’s son, Christopher Berardi, at the residence to discuss these delinquencies. As a result of the meeting, the defendant installed corrective measures to the stairway and agreed to “coach” Berardi with respect to replacing the noncompliant, horizontal railings with a vertical spindle railing.
On April 30, 2009, Stanley reinspected the premises and found that some problems persisted. After this second disapproval, animosity grew among the parties, and the defendant performed no further work at the site.
Breach of Contract
The plaintiff alleges in her first count that the defendant breached the agreement by failing to obtain a permit for the work and to comply with pertinent building codes. The court rejects this allegation. The plaintiff specifically asked the defendant to repair the deck so as to duplicate the existing deck which had been modified previously without securing the necessary permits and which failed to comport with the building code. The defendant made the repairs in exactly the way the plaintiff wanted them made which were in violation of the building code.
The plaintiff also alleges that the defendant breached the contract by installing deck floor boards upside down, by cutting the joists to an improper length, by failing to install proper joist hangers, by damaging the siding of the house during construction, by reusing an old, rotted post, by improperly forming and joining the new fiberglass roof, by failing to replace a rotting beam on the lower deck, by installing a door frame to the enclosed porch at the wrong location, and by failing to replace all the screens of the porch. The court finds that the plaintiff has failed to meet her burden of proving these allegations by a preponderance of the evidence.
The court does find that the plaintiff has proven that the defendant deviated from the contract by shortening the dimensions of the upper deck and repositioning the support posts for the upper deck off-center with respect to the concrete footing, which is a displacement from their original locations. Although the testimony as to who repositioned these posts off-center and sawed rabbet cuts so that the posts now rest partly on the wooden frame of the lower deck and only partly on the concrete piers was in conflict. The court determines that it was the defendant CT Page 8022 who made these changes.
This repositioning of the support posts shortens the dimension of the upper deck floor and eliminates the overhang which formerly was created by the full length of the upper deck extending past the ceiling of the porch. As a consequence, rainwater and snow melt now run straight down the screens of the porch and into the enclosed area. This phenomenon causes water damage to the lower deck and porch. The previously existing overhang diverted this water away from the porch.
The plaintiff and her son testified that these support posts were centered and the concrete footings rested their weight completely on the piers before the defendant commenced work. After the defendant finished the project, the support posts had been repositioned and cut in the manner described above. The defendant denies having engaged in this activity as part of the reattachment and rebuilding of the upper deck. The court believes the plaintiff and her son and disbelieves the defendant on this point.
Photographs show that the cutting of the bases of these support posts and repositioning of them off-center is of recent vintage. It is likely that someone working to reattach the upper deck, which had separated from the house by about two inches, would need to reposition the support posts to accomplish the reconstruction and reattachment of the upper deck. The dimensions of the upper deck now fit exactly over the repositioned posts. The court infers that the defendant’s crew altered the position of the support posts to accommodate the new upper deck dimensions and facilitate reattachment of the upper deck to the house.
The contract called for the defendant to “duplicate” the specifications of the old deck. Shortening the dimension of upper deck deviates from this obligation, and this deviation has resulted in extensive water infiltration and damage to the lower deck area by eliminating the overhang which previously existed.
At this juncture, the court would typically address whether the plaintiff has proved the amount of damages which flowed from this breach. However, the court must now confront the fundamental question of whether this contract is legally enforceable.
It must be recalled that the deck and enclosed porch system as it existed when it became detached from the house constituted an unlawful structure because the plaintiff’s husband never secured the required permits to make the additions. Can a plaintiff obtain a judgment for damages arising from a breach of a contract to replicate an illegal CT Page 8023 structure?
“Agreements which are legal on their face, yet which are designed to evade statutory requirements are routinely held unenforceable.” Parente v. Pirozzoli, 87 Conn.App. 235, 246 (2005). If a question of the illegality of a contract arises from the pleadings or from the evidence adduced at trial, the “court must consider that question” even though no litigant raised the issue. Id., 244. Contracts which violate public policy are unenforceable even though that unenforceability may result in a windfall for the other party who is just as culpable as the party attempting to sue on the contract. Id., 250-51.
A contract is contrary to public policy when it is designed to “negate laws enacted for the common good.” State v. Lynch, 287 Conn. 464, 477
(2008). Permitting and licensing requirements which are aimed at promoting health and safety are examples of such laws. Parente v. Pirozzoli, supra, 246. Building codes have as an important purpose the ensuring of public safety and the abating of nuisances. Gajewski v. Pavelo, 36 Conn.App. 601, 620 (1994).
An otherwise unlawful contract may be enforceable if the parties contemplate the possibility that the illegality will be removed, such as by obtaining a variance to cure a zoning violation. 12 Havemeyer Place Co., LLC v. Gordon, 76 Conn.App. 377, 391 (2003). However, that enforceability only arises where the contract may be fulfilled once the legal impediment is eliminated. In the present case, the contract was designed to perpetuate the violations of the building code rather than in contemplation of future compliance.
Unquestionably, the defendant could not duplicate the deck structure without violating existing building codes, and the plaintiff knew this to be the situation at the time she entered into the contract. The ultimate purpose of the contract was to repair the detached structure while maintaining its noncompliant design. The court concludes that the home improvement contract in this case was illegal and unenforceable. Judgment must enter for the defendant on the first count of the complaint.
Fraudulent Misrepresentation
In the second count of the complaint, the plaintiff alleges that the defendants “induced the plaintiff to tender the deposit funds totaling Ten Thousand Dollars ($10,000) on the specific representation and promise that they would use those funds to furnish materials and labor to perform the agreed scope of work at the Plaintiff’s home and that they would do so in accordance with all applicable building codes.” CT Page 8024
It is well settled that the elements of fraud are (1) a false representation made as a statement of fact; (2) the party making the false representation knew it was untrue when uttered; (3) the false representation was made to induce the other party to act upon it; and (4) the other party acted upon it. Duplissie v. Devino, 96 Conn.App. 673, 681 (2006). The burden is on the plaintiff to prove each of these elements by clear and convincing evidence. Id.
Although the plaintiff denies knowing that the deck structure could not be replicated without violating building codes, the court finds the evidence to the contrary more credible. Also, the plaintiff has failed to prove, by unequivocal and convincing evidence, that the defendant made the statement regarding code compliance and permit acquisition to induce the plaintiff to enter into the written agreement. The plaintiff was the one who rejected the defendant’s first proposal and wanted, instead, to duplicate the horizontal railings which are forbidden by the building code. She was well aware that her husband had constructed the lower deck and enclosed porch without obtaining building permits.
Judgment enters for the defendants on the second count.
Home Improvement Act (CHIA)
CHIA, General Statutes Chapter 400, provides administrative and criminal sanctions for contractors who violate its mandates. The Act also renders invalid and unenforceable against the homeowner home improvement contracts which fail to satisfy enumerated criteria, General Statutes §20-429. CHIA lacks, however, any provision affording a private right of action to homeowners to redress transgressions committed by home improvement contractors.
The Act does, instead, expressly declare that a “violation of any of the provisions of this chapter shall be deemed an unfair or deceptive trade practice under subsection (a) of section 42-110b,” that is, CUTPA, General Statutes § 20-427(c).
The court holds that no private cause of action may be asserted for a violation of CHIA except by way of a CUTPA claim. Judgment enters for the defendants as to the third count.
CUTPA
The fourth count is, in fact, a CUTPA claim which is partly premised on a violation of CHIA. The specific untoward acts are asserted in CT Page 8025 paragraph forty-six of the fourth count.
The second specification of a CUTPA violation is that the defendant failed to complete the work required under the contract. For the reasons set forth above in the discussion of the unenforceability of the illegal contract as to breach of contract, the plaintiff cannot prevail under CUTPA for failing to complete an illegal contract. In addition, the weight of evidence indicates that the defendant did complete the work promised in the contract. The plaintiff may have found fault with the quality of the work, but this is not a situation where the contractor abandoned the project in midstream.
The third specification of a CUTPA violation is that the defendant failed to refund payments “when no substantial portion of the contract work had been performed.” Again, this allegation is contrary to the evidence. The defendant substantially completed the work he was obligated to perform under the agreement. The defendant reattached the upper deck to the house and completely resurfaced the upper deck floor. He rebuilt much of the stairway and installed the railings as directed by the plaintiff. The defendant also installed a new fiberglass roof for the enclosed porch. While the plaintiff is dissatisfied with the workmanship and quality of that roof, the work was performed.
The fifth specification of a CUTPA violation is that the defendant’s work failed to comply with all applicable building codes. The inability to comply with building codes was an inevitable consequence of the work that the plaintiff wanted performed, viz, to duplicate the illegal structure which had become detached. Any deficiencies in this respect were at the plaintiff’s behest and cannot form the basis of a CUTPA violation.
The fourth specification of a CUTPA violation is that the defendant failed to return phone calls and respond to the plaintiff’s complaints. To prevail on a CUTPA claim, the plaintiff must prove, by a preponderance of the evidence, that the unfair or deceptive trade practice caused her to suffer an ascertainable loss, General Statutes § 42-110g(a). The plaintiff must demonstrate that “the prohibited act was the proximate cause of a harm to the plaintiff.” Scrivani v. Vallombroso, 99 Conn.App. 645, 651-52 (2007).
An “ascertainable loss” is one “capable of being discerned, observed or established.” Artie’s Auto Body, Inc. v. Hartford Fire Ins. Co., 287 Conn. 208, 218 (2008). An ascertainable loss embraces negative impact which is broader than that connoted by the word “damages,” Id. No specific dollar amount need be proven. Id. The loss, however, must be CT Page 8026 measurable even though imprecise. Id.
The court cannot discern any measurable economic loss to the plaintiff attributable to the failure to return calls. Not every contract dispute is a CUTPA violation. The state of the evidence is such that no measurable loss is established as to the failure to respond to the plaintiff’s complaints.
The court now addresses the first specification of a CUTPA violation which is that the defendant accepted payment for unworkmanlike effort. An isolated instance of unworkmanlike performance will rarely constitute an unfair, deceptive, oppressive, or unscrupulous trade practice. A-G Foods, Inc. v. Pepperidge Farms, Inc., 216 Conn. 200, 214-17 (1990). Usually, accusations of unworkmanlike conduct arise from a claim of negligent execution of contractual obligation. In the present case the defendant intentionally diminished the dimensions of the upper deck in the manner described earlier, and created a situation where rain water and snow melt now run down into the enclosed porch.
This purposeful deviation from the terms of the contract that the old dimensions of the upper deck were to be preserved was done without the plaintiff’s knowledge or consent. A knowing alteration of a significant term of the contract and concealing that change from the other party may be considered a deceptive trade practice, and the court finds it so in this case. Unilateral elimination of the overhang is unrelated to the illegal nature of the railing and stairs.
As noted above, the plaintiff must prove that she suffered an ascertainable loss as a direct consequence of the diminishment of the size of the upper deck and removal of the protective overhang. The plaintiff submitted in evidence estimates from two contractors to reconstruct her decks. One estimate was from DJL Builders for $13,800, and the other was from A Just Improvement, LLC for $13,475.
The proposal from DJL Builders comprises much work that is far beyond the original project to reconstruct the plaintiff’s deck structure to the extent for which she engaged the defendant. The estimate lacks itemization or detail. The proposal does indicate that $4,000 is attributable to the “screened roof.”
The other proposal supplies greater detail but also fails to assign values to each task. This proposal also entails work for a much greater construction project than that for which the plaintiff hired the defendant.
CT Page 8027 Both estimates envision extensive redesign and construction of the decks to meet building code requirements. The ascertainable loss sustained by the elimination of the overhang cannot be teased out of these estimates easily.
But the plaintiff did suffer ascertainable loss by virtue of the defendant’s purposeful and surreptitious diminishment of the size of the upper deck. The loss in the form of recurrent water damage and loss of use of the enclosed porch is plain and manifest. The court measures this loss at $5,000. This is one-half of the contract price. The enclosed porch approximates one-half of the desk structure, so the court has employed this fraction as a measuring stick to calculate fair compensation for this loss.
Special Defenses
The defendants have asserted special defenses of accord and satisfaction, express warranty, contractual limits as to damages, and contractual limitation as to when an action may be brought. The court rules that no special defense applies to negate the defendants’ liability as to the fourth count of the complaint.
“Accord and satisfaction is a method of discharging a claim whereby the parties agree to give and accept something other than that which is due in settlement of the claim . . .” Association Resources, Inc. v. Wall, 298 Conn. 145 (2010). A validly executed accord and satisfaction is a special defense precluding pursuit of the underlying claim. Id.
There is no evidence that the plaintiff accepted the defendants’ corrective action with respect to the height of the risers as a complete settlement of all claims stemming from the work done by the defendants. The CUTPA claim for which the court has found the defendants responsible was entirely unrelated to the stairway. Instead, that quarrel concerned the elimination of the protective overhang without the plaintiff’s consent.
It should also be noted that the plaintiff was not a participant in the meeting which preceded that corrective action. The meeting was among the defendant, the building official, and the plaintiff’s son. The purpose of the meeting was to try to establish what measures which might be taken to gain the building official’s approval of the work. The defendants have failed to prove, by a preponderance of the evidence, accord and satisfaction.
The remaining special defenses all arise from the terms of the CT Page 8028 contract which the court has previously determined was illegal and unenforceable. Just as the plaintiff could not seek redress from the court to enforce the provisions of the contract, neither can the defendants do so by way of defense.
The court may award reasonable attorneys fees for a CUTPA violation by virtue of a § 42-110g(d), and the plaintiff has requested an award of such fees. Considering the plaintiff’s complicity in producing much of her own problems in this case, the court declines to award attorneys fees.
Judgment may enter in favor of the plaintiff on the CUTPA count in the amount of $5,000 plus costs. No prejudgment interest is awarded.
CT Page 8029