2011 Ct. Sup. 11600
No. CV 08-5022884-SConnecticut Superior Court Judicial District of Hartford at Hartford
May 17, 2011
MEMORANDUM OF DECISION
RITTENBAND, JTR.
FACTS AND PROCEDURE:
This is a case involving a Home Improvement Contract. On July 27, 2003 the defendant (hereinafter also “Guzman”) purchased a house known as 181 Collins Street, Hartford, Connecticut. The house was in very bad shape with broken windows, debris and basically inhabitable. The defendant applied for a grant from both the State and Federal Governments for the purpose of remodeling and making this house usable and available for tenants to live in. The application resulted in $60,000 in grant money to the defendant.
On or about August 24, 2007 the plaintiff (hereinafter also “Zito”) who was a home improvement contractor entered into a contract to install (he claimed) 23 windows out of 60 that were needed in the amount of $5,800. On or about October 23, 2007 the plaintiff and the defendant entered into a remodeling contract in the amount of approximately $248,540. The defendant paid the plaintiff at that time a $40,000 deposit. The contract for remodeling was for one year from October 23, 2007 to October 23, 2008. Subsequently on February 6, 2008 the parties entered into a change order for masonry work to be done by the plaintiff which work was not included in the scope of work under the original contract. The defendant paid the plaintiff in advance $15,000 for such work.
On or about May 22, 2008 the defendant obtained a construction loan from Hartford Community Loan Fund, Inc., which has been withdrawn as a defendant in this action. There was a short delay in the beginning of the work for the windows contract because of the lack of insurance held by the defendant. However, on or about October 7, 2007, the necessary insurance was secured by the defendant, and the plaintiff began work under the windows contract. The plaintiff claims the $15,000 for the masonry work which he never accomplished as well as $3,600 for additional work to be done on the remaining windows.
CT Page 11601 On or about July 13, 2008 the defendant presented the plaintiff with a demand to do certain things which the plaintiff found unreasonable to do, and the defendant terminated the agreement. The first count claims that the Court should decide who is entitled to the $15,000 aforementioned which has been sent into the Clerk of the Court. The second count claims breach of contract by the defendant, and the plaintiff is seeking the profit he would have made if the contract had continued. The third count of the complaint seeks unjust enrichment for the work and materials the plaintiff did furnish.
The defendant has countered with special defenses and a counterclaim claiming that the contract(s) do not comply with the Home Improvement Act, that the work done by the plaintiff was poor workmanship and in the third count claims a violation of the Connecticut Unfair Practices Act (“CUTPA”). Trial was held before this Court on December 15, 2010, December 21 and 22, 2010. Briefs have been filed by both parties, initial briefs and reply briefs the last of which were dated March 15, 2011.
STANDARD OF REVIEW:
“The plaintiff in a civil case sustains its burden of proof as to any essential element in its cause of action if the evidence, considered fairly and impartially, induces in the mind of the trier, a reasonable belief that it is more probable than otherwise that the facts involved in that element are true.” Busker v. United Illuminating Co., 156 Conn. 456, 458 (1968). This is also known as proof by a preponderance of the evidence.
In addition, this Court evaluates the credibility of the witnesses based upon their appearance and demeanor on the witness stand, the consistency or inconsistency of their testimony, their memory or lack thereof of certain events, whether they were candid and forthright or evasive and incomplete, their manner in responding to questions and their interest or lack of interest in the case.
Also, the Court evaluates general credibility on the basis of other testimony in this case as well as documents in evidence as to their consistency or inconsistency with other evidence.
The burden is on the plaintiff to prove its allegations by a preponderance of the evidence. The same is true for the defendant on his counterclaim.
ISSUES AND FINDINGS:
CT Page 11602 1. Credibility
The two main witnesses in the trial were the plaintiff and the defendant. The Court finds that the plaintiff was honest in his testimony as he saw it but did not have a good memory on some of the salient points of the proceedings between the parties prior to the institution of suit. The plaintiff’s claim that he was unable to work inside the building during the winter because of lack of heat is not persuasive. He could have pressed the defendant more to provide the heat which it was the defendant’s responsibility to do and failing that could have utilized his own portable heater in the area in which he was working if he really wanted to move his contract forward.
The defendant, Guzman, initially under direct examination appeared very honest. As a matter of fact, the Court has in the margin of its notes as to the defendant’s testimony the word written “Honest.” He admitted that certain items on the plaintiff’s list of work had been done, but in his complaint to the State Consumer Protection Division (plaintiff’s Exhibit 23) on September 5, 2008 he stated that the plaintiff had done only $2,000 worth of work. Based upon the evidence that is an incredible statement which cannot have a basis in fact. Also, when the defendant entered into a new contract with another contractor by the name of Wilbur Stanley of Hartford, it became clear under plaintiff’s Exhibit 28, the contract between Mr. Stanley and the defendant that Mr. Stanley had indicated a number of items that were listed as “done by prior contractor.” This is somewhat at odds with the testimony of the defendant. Further, the lack of heat in the building was an issue in the winter of 2007-2008, and apparently there is still a lack of heating. When questioned by the Court repeatedly as to why he hadn’t pushed Mr. Stanley to get the heating completed over a period from February 15, 2010 the date of that contract and the present time, he repeatedly said that that was the obligation of the general contractor Mr. Stanley. The contract with the plaintiff is clear that it was up to the defendant to supply the heat for the premises. Guzman wanted the plaintiff to provide the heat, but did not provide it himself. Further, he stated that he was willing to negotiate with the plaintiff on or about July 13, 2008 when he filed his demands as to what he expected the plaintiff to do and claims that he did not hear from the plaintiff. Apparently, he made no effort to set up a meeting with the plaintiff to follow through on his alleged “willingness to negotiate.”
The Court concludes that both witnesses are basically honest, but with reservations. The plaintiff has a problem with his memory of some of the important points, and the defendant although honest in the very beginning of his testimony became either contradictory in CT Page 11603 his later testimony or showed a lack of judgment in his role as the owner to get the job done quickly. In short, these two witnesses are credible but with reservations on their credibility.
2. Did the Plaintiff Violate the Home Improvement Act; C.G.S. § 20-429?
The short answer is Yes.
The Court is well aware that in 1993 the Connecticut General Assembly added subparagraph (f) to C.G.S. § 20-429 which added exceptions to the mandatory provisions of the Home Improvement Act (“HIA”).[1]
The Court is not concerned about certain technical violations such as the failure on the Notice of Cancellation attached to each contract to be completed. Only blank forms were used, and they were not filled in as they should have been. However, in each instance the defendant had on the contract the date of the contract and could have easily concluded without specifying the date of expiration of the cancellation rights that it would be three days from that date of the execution of the contract. The failure to fill in the Notice of Cancellation Form with the date of the transaction on the contract is a technical violation that enabled the defendant to ascertain easily the expiration of his right to cancel. An analysis of the specific contracts follows:
a) The so called “Windows Contract” which had a transaction date of 8/24/07 for $5,800. It also had the phone number of the plaintiff and the parties exchanged emails shortly after 8/24/07 so the defendant should have been easily able to contact the plaintiff. Moreover, they were in constant contact during the first few months. In Cavolick v. McGann, Superior Court, judicial district of Hartford, Docket No. CV 90-0385883 (1991, Satter, J.T.R.) 5 Conn. L. Rptr. 15, 15. The Court stated that listing the city and state as his principal place of business but not the street address was sufficient to comply with the requirements of the HIA and this was prior to the amendment of 1993 setting forth the exceptions.
However, the Windows Contract is deficient and in violation of C.G.S. § 20-429(a)(3) “in that it does not contain the entire agreement between the owner and the contractor.” The contract which is plaintiff’s Exhibit Four was not complete in that the wording stated that all windows would be done by the plaintiff when he thought that only 23 windows were to be done. The defendant thought 60 windows were to be done. Further, by not doing all the windows as prescribed in the contract, the plaintiff was in breach of that contract. The $5,800 paid by the defendant should be returned to him. CT Page 11604
b) Plaintiff’s Exhibit 11 is the main contract dated October 23, 2007 for $248,540 for work to be done between October 27, 2007 and October 27, 2008. Plaintiff’s Exhibit 11 has the transaction date and the address of the plaintiff and a blank notice of cancellation (which is missing from plaintiff’s Exhibit 12), and as stated above, with the transaction date etc., the defendant could easily have determined the date of expiration of his right to cancel. However, this contract also runs contrary to C.G.S. § 20-429(a)(3) in that it was not the entire contract. The plaintiff testified that the contract was supposed to be for $288,540 when in fact it was for $248,540. The plaintiff admitted making a mistake, but it shows that the contract was not complete and there was no meeting of the minds because of the different figures as to the parties’ understanding. Additionally, throughout his testimony, the plaintiff was not specific and, therefore, provided insufficient evidence that he had substantially completed the contract when he was terminated.
Violation of C.G.S. § 20-429(a)(3) does not prohibit use of the exceptions in sub paragraph (f). The Court finds that both the plaintiff and the defendant violated the contract. The defendant who was responsible for providing heat to the building failed to do so in violation of the contract and allowed delay by the plaintiff because of that. On the other hand, the plaintiff as stated above could have used a portable heater in the area in which he was working in order to proceed during the winter months. There were other delays caused by the defendant, such as not having the windows ready to install and a delay in obtaining proper insurance coverage. The plaintiff was proceeding with performance of the contract, and there was insufficient evidence for the defendant to terminate the contract as he did. At the same time, the plaintiff did not perform all of the work that he was supposed to do in a timely manner nor did he do a workmanlike job on a substantial part of what he did accomplish. The plaintiff is entitled to compensation for some of the work that he did prior to his termination.
The evidence does show that the defendant paid the plaintiff $40,000 in advance in regard to this contract, and that money should be returned to the defendant. However, the plaintiff, as part of his duties under the contract did accomplish work to the amount of $27,602 as evidenced by plaintiff’s Exhibit 34. The Court does not allow the monies on page two of plaintiff’s Exhibit 34 concerning the windows because the window contract was invalid as not having a meeting of the minds as to the meaning of said contract. The same is true in the case of the windows not in the contract in the amount of $6,426 because it is unclear as to whether those 27 windows should have been part of the original contract. Deducting the $27,602 for work accomplished by the plaintiff as part of CT Page 11605 the contract, the plaintiff is liable to the defendant for the balance of $12,398.
c) The parties entered into a change order for masonry work dated February 6, 2008, and the defendant paid $15,000 in advance for the performance of that contract which the plaintiff never performed. However, the evidence also showed that the plaintiff was not a registered home improvement contractor when he signed the change order. Plaintiff can claim that it is an amendment to a contract, but an amendment to a contract is still a contract. The HIA does not allow a contractor who is not registered to recover under such a contract. See C.G.S. § 20-429(a)(8). Accordingly, the $15,000 should be returned to the defendant.
3. Is the Plaintiff Entitled to Recover Under the Principle of Unjust Enrichment?
The short answer is No.
Absent proof of bad faith on the part of the homeowner, [2] “C.G.S. § 20-429 permits no recovery by a home improvement contractor under theories of quantum meruit or unjust enrichment if the home improvement contractor fails to comply with the statutory requirements of the act.”Dinnis v. Roberts, 35 Conn.App. 253, 257 (1994).
Under all of the circumstances in this case, the Court believes that it would be inequitable for the plaintiff to recover under the Windows Contract and under the change order. The only exception in subparagraph (f) is as to the main remodeling contract as specified above. “The legislature’s express failure to give the trial court carte blanche to excuse non-compliance with C.G.S. § 20-429 in its entirety manifests its acquiescence and our strict construction of the statute in these other respects.” New England Custom Concrete LLC v. Carbone, 102 Conn.App. 652, 658-60 (2007).[3]
4. Is the Defendant Entitled to Damages under the Counterclaim beyond the Connecticut Unfair Trade Practices Act? (“CUTPA”)
The short answer is No, except for the monies to be returned to him as aforesaid.
Connecticut General Statutes § 20-427(c) provides in relevant part as follows: “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.” Accordingly, this Court will assess attorneys fees under CUTPA against the plaintiff because he did not comply with CT Page 11606 subparagraph (8) (C.G.S. § 20-429(a)(8)) by not being a registered contractor at the time of entering into the change order. This failure to comply with subparagraph (8) prohibits an exception being granted under subsection (f) of C.G.S. § 20-429. Attorneys fees will be considered if the defendant provides within 30 days of this judgment a motion for attorneys fees complete with specifying hours etc.
CONCLUSION:
Based upon the totality of the evidence, judgment is entered on the plaintiff’s complaint for the plaintiff in the amount of $27,602.
Judgment is entered for the defendant on the defendant’s counterclaim in the amount of $5,800, $40,000 and $15,000 for a total of $60,800 plus attorneys fees to be determined.
This results in a net in favor of the defendant in the amount of $33,198 plus attorneys fees.
CT Page 11607