Opinion
No. CV-01-0085525
December 29, 2003
MEMORANDUM OF DECISION
This is an action by homeowners against a painter who was paid to paint their home. On July 8, 2001, the plaintiffs Ronald and Lori Lunn commenced the present action against the defendant Thomas Hussey d/b/a Hussey Painting. On March 15, 2002, the plaintiffs filed a revised three-count complaint, count two of which was stricken by the court Pickard, J. by memorandum of decision on February 11, 2003. This case went to trial in front of this court on November 6 and 7, 2003, on the first and third counts only. In the first count the plaintiff alleged the defendant breached the agreement between the parties in one of the following ways:
a) the defendant failed to properly prepare the surface of the house for paint;
b) the defendant failed to perform his services in a workmanlike manner;
c) the defendant failed to sand the siding down to the bare wood, prime it and paint it with a proper coat of paint;
In the third count the plaintiff alleges the defendant failed to comply with the Connecticut Home Improvement Act found in General Statute 20-418 et seq. and by doing so violated the Connecticut Unfair Trade Practices Act found in General Statutes 42-110a et seq. in the following ways:
a) the defendant failed to reduce to writing the contract between the parties, including the starting date, the completion date, the names of the parties, and the owner's cancellation rights in accordance with General Statute 42-134 et seq; CT Page 14913
b) the defendant failed to deliver a written contract to the plaintiffs;
c) the defendant failed to provide the plaintiffs with the notices required by General Statutes 42-134 et seq.
FACTS
In April 1998 the plaintiff Ronald Lunn contacted the defendant by telephone concerning the painting of the exterior of the plaintiff's home located at 67 Takone Hills Road, Lakeville Ct. The parties met at the residence and discussed the job. On April 17, 1998, the defendant sent the plaintiffs an estimate and proposal for doing the painting work (P's Exh. 1). The estimate was for labor of $5,400.00 plus the cost of the materials to be paid by the plaintiffs. The plaintiffs upon receiving the estimate, contacted the defendant and engaged him to do the work. No further written documentation was furnished by the defendant, nor was a formal contract entered into. The job was completed in July or August 1998. Neither party could testify as to the exact dates. The plaintiff testified that when the job was completed, he paid the agreed upon price, was satisfied with the work, and tipped a couple of the workers.
The plaintiff further testified that at some point between six months and eighteen months after the completion of the painting, he noticed that the paint on a portion of the south side of the home, covering about 20 per cent of the south side between the first and second floors, was peeling and cracking. He further testified that there was an 8 x 12 foot area on the front of the home that was not finished, but this area was easy to miss, as you could only see it in the correct light. This area according to his testimony was painted by the defendant's son in late 1999. The plaintiff further testified that he made several attempts to contact the defendant by telephone and letter to discuss the peeling problem. On February 28, 2000, the plaintiff sent a letter to the defendant concerning the non-completion of the work. In this letter there is no mention of the peeling problem (P's Exh. 8). On April 12, 2000 the plaintiff received a letter from Pearse Hussey, the son of the defendant stating that he had finished the job the previous fall. That any other problems would be needed to be taken up with his father who was away until May (Def's Exh. 4). By a letter dated May 20, 2000, the plaintiff acknowledged that Pearse had finished the job the previous fall, but questioned the peeling problem on the garage side of the house (P's Exh. 11). The plaintiff's next attempt to contact the defendant was by letter dated August 23, 2000 (P's Exh. 10), in which the plaintiff asks the defendant to at least come look at the problem areas. There was no response to this letter. The plaintiffs then commenced legal action by filing this lawsuit on July 8, 2001. Prior to commencing legal action, the plaintiffs undertook no remedial measures to the south side of the home, until May 2003, when the plaintiffs repainted the entire home.
The defendant testified at trial that the reason the south side peeled was 1) there was moisture coming from the interior of the home, 2) some of the boards on the south side were rotted and needed replacement. He testified that he had informed Mr. Lunn that he should contact a carpenter to come and examine and replace the boards if necessary prior to painting. The defendant further testified that Mr. Lunn responded that he should just go ahead and paint them anyway. The plaintiff testified that Mr. Hussey never advised him to replace the boards and if he had he would have done so.
ISSUES
As to the first count the issue for the court to decide is the following: 1. Did the defendant properly prepare the home prior to painting it? 2. Did the defendants fail to perform the work in a workmanlike manner, and what loss if any did the plaintiff suffer as a result of this failure?
As to the third count the issue to be decided is the following Did the defendant violate Connecticut's Home Improvement Act, General Statutes 20-418 et seq. (hereinafter HIA), and was that violation an unfair trade practice, in violation of Connecticut's Unfair Trade Practices Act, General Statutes 42-110g et seq. (hereinafter CUTPA), which would allow the plaintiffs to obtain compensatory and punitive damages as well as attorney fees.
FINDINGS
As to the first count, the court finds the evidence produced at trial was that the defendant had worked as a painter and decorator in the Salisbury/Lakeville, Connecticut area for 32 years. That the defendant was contacted by the plaintiff by telephone, and that he went over and inspected the home with the plaintiff. He prepared a proposal on his letterhead which he sent to Mr. Lunn. Mr. Lunn then called him and gave him the contract to do the work. No written contract was ever entered into. The Court finds that prior to painting the home the defendant bleached and power-washed the entire home, sanded down various areas on the north, east and west sides of the home, and sanded down to the bare wood the entire south side of the home. Once the home was prepared, the entire house was primed and then painted with two finish coats of oil based paint. The defendant used Pittsburgh Paint which was purchased at a local hardware store. The court finds the plaintiff, that upon completion of the job, was satisfied with the work, paid the defendant in full and tipped some of the helpers. The question is then why did some of the paint peel and chip just on the south side of the home? The plaintiff called as an expert witness a Thomas Smith who has been involved in the paint industry for thirty years plus, as a manufacturers sales representative, as a painter himself of homes, and as someone who has written painting specifications for painting contractors. Mr. Smith testified that an oil based paint job in this part of Connecticut should last anywhere from three to six years depending on several factors including the weather, the type of paint used, the preparation of the home, moisture in the home, ventilation of the wood and the age of the home. He testified that the preparation of the house, that is the bleaching, power-washing, and sanding down certain areas of the home, is the proper way of preparing the home to be painted. In addition, he recommends that the painter take a moisture reading of the wood with a device called a moisture meter prior to applying any paint. The industry standards are that if the wood has a moisture reading over fifteen per cent, the paint should not be applied. There was no evidence presented that the south side of the Lunn home was too moist at the time it was painted. He further testified that only about two percent of all painting contractors use moisture meters. Mr. Smith examined the Lunn home in May 2003, after it had been freshly painted. It was his opinion that Mr. Hussey had done the work in a workmanlike manner. The house had been properly prepared. The paint which was used, Pittsburgh Paint, is one of the best in the industry. Mr. Smith submitted a report (P's Exh. 3) stating his opinion why the paint on the south side of the home peeled. The reasons were: 1) the southern exposure in this part of the country will always wear quicker, 2) a constant moisture problem existed on the south side of the house, 3) moisture being drawn through the siding, that forced the paint off, 4) the area where the peeling is occurring is not properly ventilated to allow the moisture to escape.
The court finds from the evidence presented at trial that the defendant Mr. Hussey did properly prepare the home prior to painting it. The court finds that the defendant did the work in a workmanlike manner. Thus it is left for the court to determine why only the south side of the home had a peeling and cracking problem within eighteen months of being painted. The court finds from the evidence presented that the reason for the peeling and chipping of the paint on the south side of the plaintiff's home was from moisture coming from the home, the failure to properly vent the boards, and the failure to replace certain boards on the house. None of this was the fault of the defendant. The court finds that the plaintiff has failed to prove any loss as a result of the defendant's work.
The third count presents the court with a much more difficult question. Homeowners are entitled to compensatory and punitive damages in accordance with General Statutes § 42-110g of Connecticut's Unfair Trade Practices Act (hereinafter CUTPA) when a contractor who falls under the requirements of Connecticut's Home Improvement Act (hereinafter HIA) fails to comply with the act's statutorily mandated requirements, General Statutes 20-418 et seq. In order to recover damages, the homeowners must prove that the conduct at issue constitutes an unfair or deceptive trade practice and they must present evidence providing the court with a basis for a reasonable estimate of the damages sustained, General Statute 42-110g(a).
Connecticut's Home Improvement Act is codified at General Statutes § 20-418 et seq. The parties in this action constitute individuals who fall under the protections and requirements of the home improvement act. The plaintiff homeowners constitute "owners" within the definition of General Statutes § 20-419(6), which defines owner as "a person who owns or resides in a private residence . . ." The plaintiffs verbally contracted with the defendant for the exterior painting of their home, residential real property located at 67 Tokone Hills Road in Lakeville, Connecticut. The defendant, Thomas Hussey d/b/a Tommy Hussey Painting constitutes a" home improvement contractor" within the act's statutory meaning. Subsection (3) of General Statutes § 20-419 defines" Contractor" as "any person who owns and operates a home improvement business or who undertakes, offers to undertake or agrees to perform any home improvement. `Contractor' does not include a person for whom the total cash price of all of his home improvement contracts with all of his customers does not exceed one thousand dollars during any period of twelve consecutive months." General Statute 20-419(3). The defendant's trial testimony confirms that he constitutes a "contractor" within the meaning of the HIA. The defendant testified that he has been engaged in the painting business in the Lakeville, Connecticut area for the past thirty or so years. Also, the defendant's written estimate (Plaintiffs' Exhibit 1) of the work to be performed on the plaintiffs' home is hand written on the defendant's business letterhead, which provides evidence that the defendant held himself out to be engaged in the business of painting, wall papering, and decorating.
Connecticut's Appellate Court has found that painters constitute "contractors" within the meaning of the HIA and, therefore, must comply with the act's requirements. See Meadows v. Higgins, 49 Conn. App. 286, 296, 714 A.2d 51 (1998,), rev'd on other grounds, 249 Conn. 155, 733 A.2d 172 (1999) (finding the HIA applicable to the defendant contractor who provided painting and wall papering services to the defendant homeowners); see also State v. Daugerdas, Superior Court, judicial district of Waterbury at GA. #4, Docket No. 204816 (Dec. 16, 1992, Barnett, J.) ( 8 Conn. L. Rptr. 94, 8 CSCR 110) (finding that house painting is a home "improvement" within the meaning of the HIA and persons engaged in such activity must be licensed under the act). "Home improvement" is defined in General Statutes § 20-419(4) as "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, dwelling place or residential rental property, or the construction, replacement, installation or improvement of driveways, swimming pools, porches, garages, roofs, siding, insulation, solar energy systems, flooring, patios, landscaping, fences, doors and windows and waterproofing in connection with such land or building or that portion thereof which is used or designed to be used as a private residence, dwelling place or residential rental property, in which the total cash price for all work agreed upon between the contractor and owner exceeds two hundred dollars . . ." In light of the above statutory language and case law, the parties' agreement and the defendant's business practices are clearly governed by Connecticut's Home Improvement Act.
Under the HIA, the defendant was required to be registered as a "contractor" and enter into a written contract with specific statutorily required provisions prior to performing any home improvement work. General Statutes § 20-427(b)(5) states that "[n]o person shall: . . . make any home improvement without having a current certificate of registration under this chapter . . ." The court finds the defendant was not a licensed home improvement contractor at the time he entered into a home improvement agreement with the plaintiffs to paint the exterior of their home. Plaintiff's Exhibit 2, a certified document from the State of Connecticut's Department of Consumer Protection, evidences that the defendant was not registered as a home improvement contractor at the time he entered into an agreement with the plaintiffs in 1998, his license became effective July 23, 2002.
Connecticut General Statutes § 20-429(a), sets forth the following requirements for a home improvement contract: "(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 owner's 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 . . ." "As remedial legislation, the HIA must be afforded a liberal construction in favor of those whom the legislature intended to benefit." Rizzo Pool Co v. Delgrasso, 232 Conn. 666, 678, 657 A.2d 1087 (1995). "[The requirement of the Home Improvement Act are mandatory and must be strictly construed . . ." Id., 680. "Clearly, the legislature is entitled, in the first instance, to impose the burden of compliance with the statute on the professional, the contractor, rather than on the nonprofessional, the consumer." Barrett Builders v. Miller, 215 Conn. 316, 326, 576 A.2d 455 (1990).
The Supreme Court has stated that the burden to ensure compliance with the HIA is on the contractor. In light of the foregoing, the court finds the defendant was in violation of the HIA by failing to comply with the written contract and registration requirements of the act when Connecticut law imposes the burden of compliance with the HIA on the contractor. Furthermore, the court finds Connecticut's Unfair Trade Practices Act provides homeowners with a cause of action to obtain damages from contractors who fail to comply with the HIA if the homeowners can prove a reasonable estimate of their damages.
Pursuant to General Statutes § 20-427(c), any violation of the Home Improvement Act is deemed to be an unfair or deceptive trade practice and constitutes a per se violation of CUTPA. Meadows v. Higgins, 49 Conn.App, 286, 296, 714 A.2d 51 (1998), rev'd on other grounds, 249 Conn. 155, 733 A.2d 172 (1999). The Supreme Court has concluded that "the failure to comply with the HIA is a per se violation of CUTPA by virtue of General Statutes § 20-427[c], which provides that any violation of the Home Improvement Act is deemed to be an unfair or deceptive trade practice." (Internal quotation marks omitted.) Woronecki v. Trappe, 228 Conn. 574, 579, 637 A.2d 783 (1994). The court finds that the defendant in this matter has violated CUTPA by not complying with the provisions of the HIA. As a result of the defendant's CUTPA violation, the plaintiffs claim that they are entitled to damages.
"A party seeking to recover damages under CUTPA must meet two threshold requirements. First, he must establish that the conduct at issue constitutes an unfair or deceptive trade practice . . . Second, he must present evidence providing the court with a basis for a reasonable estimate of the damages suffered. Under the first requirement, the failure to comply with the act is a per se violation of CUTPA by virtue of . . . [General Statutes] § 20-427(c), which provides that any violation of the Home Improvement Act is deemed to be an unfair or deceptive trade practice. The second requirement for a valid CUTPA claim does not necessitate that the actual amount of ascertainable loss be proven." (Citations omitted; internal quotation marks omitted.) Kronberg Brothers v. Steele, 72 Conn. App. 53, 60-61, 804 A.2d 239 cert. denied 262 Conn. 912, 810 A.2d 277 (2002).
In order for the plaintiffs to prevail in the third count, the plaintiffs must prove by a preponderance of the evidence, 1) the defendant's conduct constituted a violation of CUTPA, 2) that as a result of this violation they suffered an ascertainable loss which was a direct result of the CUTPA violation. Based on the evidence produced at trial the court finds, that the defendant was not a licensed home improvement contractor in 1998. The court further finds his failure to be licensed and his failure to abide by the requirements of General Statutes 20-249(a) requiring a written contract is a per se violation of CUTPA. The court finds the first threshold to be proven.
As to the second element of the threshold test, the plaintiffs claim that they suffered an ascertainable loss because the paint on the south side of their home peeled and cracked within a short period of time after it was painted. When a consumer has received something less than he bargained for he has suffered a loss of money or property. Scott v. Western International Surplus Sales, Inc., 267 Or. 512, 515, 517 P.2d 661 (1973). "An ascertainable loss is a deprivation, detriment [or] injury that is capable of being discovered, observed or established . . . [A] loss is ascertainable if it is measurable even though the precise amount of the loss is not known . . ." (Internal quotations omitted.) Service Road Corp. v. Quinn, 241 Conn. 630, 638-39, 698 A.2d 258 (1997), Yeong Gil Kim v. Magnotta, 49 Conn. App. 203, 211-12 (1999). The plaintiffs claimed losses are the following: 1) They had to repaint their entire house in May 2003 in order to maintain a uniform color (something they would have had to anyway based on Mr. Smith's testimony), 2) they had to live with an unsightly peeling and chipped side of their home. The court finds the plaintiffs did suffer an ascertainable loss though it is not precisely measurable based on the evidence presented. However, before the court can award damages, the court must find there is a causal connection between the CUTPA violation and the ascertainable loss. "The plain language of Section 42-110g(a) requires that the plaintiff suffer an ascertainable loss, as a result of the alleged unfair trade practice. Haesche v. Kissner, 229 Conn. 213, 223-24, 640 A.2d 89 (1994). In the present case no CUTPA violation exists because, as determined by the court in the first count, the plaintiffs failed to show that they suffered harm "as a result of" the alleged violation." Suarez v. Sordo, 43 Conn. App. 756, 772-73, 685 A.2d 1144 (1996). The court having already determined the peeling and cracking of the paint on the south side of the plaintiff's home was not as a result of the unworkmanlike manner of the work performed by the defendant, but by the plaintiff's failure to resolve the moisture problem on the south side of the home by failing to replace some of the boards and/or properly venting the siding. The court finds there is no causal connection between the CUTPA violation and the loss claimed by the plaintiffs. The plaintiff's loss would have occurred even if there had been a valid home improvement contract and the defendant had been a licensed Home Improvement Contractor. Therefore the plaintiff's CUTPA claims fails.
The court having found no CUTPA violation, the court need not address the plaintiff's claims for punitive damages and Attorney fees.
Accordingly, judgment may enter in favor of the defendant on both the first and third counts of the plaintiff's revised complaint.
BRUNETTI, JUDGE.