Opinion
No. CV 07 5003259
July 10, 2007
MEMORANDUM OF DECISION ON MOTION TO STRIKE
On February 26, 2007, the plaintiff, the Drain Doctor, filed a three-count amended complaint for breach of contract, quantum meruit and unjust enrichment against the defendant, Jason Lyman. In response, the defendant has filed a Motion to Strike, arguing that the transaction falls within the confines of the Home Improvement Contractor's Act, that there was no written contract, and that as a matter of law, the plaintiff is not entitled to any compensation under any theory.
Brief History
On October 12, 2004, the plaintiff was contacted by the defendant regarding a sewer problem at the defendant's residence. After an initial service call, the plaintiff determined that there was a broken sewer pipe under the concrete slab on which the residence was constructed and, as a result, the residence could not be occupied. Subsequently, the plaintiff repaired the sewer line, which included repair to a storm water drain under the driveway, resulting in the need to patch the driveway and restore and seed the lawn where both had been dug up to facilitate the repair work. The work was done under an oral contract. After the plaintiff had completed the job and billed the defendant $6,707 for his services, the defendant refused to pay the plaintiff the entire amount due.
On March 1, 2007, the defendant filed a motion with attached memorandum of law to strike the plaintiff's amended complaint on the ground that there was no written contract as required under the Home Improvement Act (act), General Statutes § 20-418 et seq. On May 10, 2007, the plaintiff filed a memorandum of law in opposition. On May 14, 2007, the defendant responded to the plaintiff's objection. This matter was heard on the short calendar on May 21, 2007.
The defendant argues that the work the plaintiff did on the defendant's residence consists of home improvement activities. He further argues that because there was no written contract between the parties for these services, the plaintiff has violated the act's requirement for a written contract pursuant to § 20-429. As a result of this violation, the defendant argues that the plaintiff is not entitled to compensation.
On the face of the defendant's motion to strike the plaintiff's amended complaint, he erroneously refers to § 20-420, but in the memorandum of law in support of the motion, he correctly cites to § 20-429.
The plaintiff counters that, as a licensed plumber, it is exempt from the requirements of the act pursuant to General Statutes § 20-428(4), which exempts the holder of a current professional license from the provisions of the act. The plaintiff suggests that the plain language of the act, coupled with its legislative history, indicates that licensed plumbers qualify for this exemption. In addition, the plaintiff states that the work provided by it falls within the definition of plumbing and pipe work pursuant to General Statues § 20-330(3) which underscores the plaintiff's exemption from the act. The defendant responds that on occasion the court has found plumbers to be contractors for the purpose of the Act.
Section 20-330(3) provides in relevant part: "`Plumbing and piping work' means the installation, repair, replacement, alteration or maintenance of gas, water and associated fixtures. . . sanitary equipment, other than subsurface sewage disposal systems. . . all water systems for human usage. . . and all associated fittings within a building and includes lateral storm and sanitary lines from buildings to the mains. . ."
Section 20-419(4) provides: "`Home improvement' includes, but is not limited to, the repair, replacement, remodeling, alteration, conversion, modernization, improvement, rehabilitation or sandblasting of, or addition to any land or building or that portion thereof which is used or designed to be used as a private residence, or dwelling place or residential rental property, or the construction, replacement, installation or improvement of driveways. . . and landscaping. . . in which the total cash price for all work agreed upon between the contractor and owner exceeds two hundred dollars." (Emphasis added.) In § 20-419(4) "the concept of `home improvement' is divided into two categories. The first is a generalized listing of acts qualified by the words `includes but is not limited to.' The second is a list of specific items; the construction, replacement or installation of which constitutes a home improvement." Haber v. Letsky, Superior Court, judicial district of Litchfield, Docket No. CV 93 0061511 (August 12, 1994, Walsh, J.) [12 Conn. L. Rptr. 308]. Although plumbing work is not an enumerated act in the list of specific items that constitute home improvement, it could fall under the generalized repair of a building.
In Avon Plumbing Heating Co. v. Fey, 40 Conn.App. 351, 670 A.2d 1318 (1996), a plumbing company provided plumbing supplies, goods and services to the homeowner's real property for which the homeowner refused to pay the bill. The issue for the Appellate Court was whether the act precluded recovery in quantum meruit or unjust enrichment for work done by licensed plumber employees when there was no written contract between the parties. Id., 353. The court in Avon Plumbing Heating did find that plumbing work is a home improvement for the purpose of the act, but also found that § 20-428(4) provides an exemption from the requirements of the act. Id. Similarly, in Santa Fuel, Inc. v. Varga, 77 Conn.App. 474, 823 A.2d 1249, cert. denied, 265 Conn. 907, 831 A.2d 251 (2003), the court affirmed the trial court's finding that tank removal and soil remediation was covered by the act, but ruled that the contractor in question, which held heating, cooling, plumbing and piping licenses, was exempt from the act due to these licenses.
The court held that § 20-428(4) did exempt persons with occupational licenses from the written contract requirement of the act. Id., 358. Additionally, the court explained that "[t]he definition of `person' in the act; General Statutes § 20-419(7); which includes corporations, is dispositive of the meaning of the word `person' as used in § 20-428(4). Because § 20-428(4) exempts from the written contract requirement of § 20-429(a)(1) `persons' with current occupational licenses and `persons' is defined as including corporations, we conclude that if work is done by a licensed plumber who works for a corporation, the lack of a written contract between the corporation and a home owner does not bar recovery by the corporation for the work performed." Id., 357-58.
The defendant in the present case also points out occasions when the court has found plumbers to be contractors for the purposes of the act. See Graham v. Viele, Superior Court, judicial district of New Haven, Docket No. 352705 (December 6, 1996, Meadow, J.T.R.) (installing a new bathroom in a home is not a plumbing repair); Repaci v. Romanchuk, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 93 0131740 (December 29, 1993, Nigro, J.) (plumbing work done in an existing dwelling is a home improvement); Smith v. Thompson, Superior Court, judicial district of New Haven, Docket No. 285612 (March 6, 1991, Pastore, S.T.R.) (plumbing work done as part of rehabilitation of a home is a home improvement for purposes of the act).
It is clear that the courts have considered plumbing work to be a home improvement for purposes of the act. It is also clear that an exemption from the acts exists for "one who [holds] a valid plumber's license [falls] within the exemption because the purpose of the [act is] to ensure that home improvements [are] performed by qualified people and that purpose would not be violated by a licensed plumber who performed a home improvement." Rosenoff v. Eagle's Wing, LLC, Superior Court, judicial district of Middlesex, Docket No. CV 06 4004733 (August 24, 2006, Aurigemma, J.).
In the instant case, the sewer work done on the residence is subject to the act. The question is whether the exemption provided by § 20-428(4) is available to the plaintiff. In Pete's Plumbing v. Meade, Superior Court, judicial district of Danbury, Docket No. CV 00 0340790 (April 12, 2001, Adams, J.), the plaintiff, a plumbing and heating contractor, was hired by the defendant to perform excavation and plumbing work under an oral contract. After the work was completed, the defendant refused to pay the amount owed the plaintiff and moved to strike certain paragraphs in the plaintiff's complaint as oral contracts are not enforceable under the act. Id. The court held: "The plaintiff. . . attempts to bring in facts outside the complaint by asserting in its memorandum in opposition that it is a licensed plumber and therefore, under General Statutes § 20-428(4), it is exempt from the requirements of the [act]. These facts are not alleged in the revised complaint. Under the operative complaint, viewed in the light most favorable to the plaintiff, the [act] applies to the oral contract between the plaintiff and defendant for plumbing work done at the defendant's residence." Id. The motion to strike was granted. Id.
In the present case, the plaintiff does not assert he is a licensed plumber in the amended complaint, but asserts this fact in its memorandum of opposition. "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). Although the exemption for anyone holding an occupational license provided in § 20-428(4) could exempt the plaintiff from the requirements of the act, the plaintiff does not plead this in its amended complaint. The plaintiff does plead that it is a Connecticut corporation, but neglects to plead that the plaintiff is a licensed plumber. As such, the fact that the plaintiff is a licensed plumber can not be considered by this court for the purpose of this motion to strike.
Conclusion
Accordingly, the defendant's motion to strike the plaintiff's amended complaint is granted.
Since the motion to strike is granted on this basis, this court will not address other raised issues.