Opinion
HHDCV156063388
04-05-2017
Mark Morey v. Mario Lallier et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Nina F. Elgo, J.
In this matter, which was tried to this court on December 15, 2016, the plaintiff, Mark Morey, alleges in his complaint against the defendants, Mario Lallier (Lallier) and Mario Lallier, LLC, (defendant LLC or LLC), breach of contract and a violation of the Connecticut Unfair Trade Practices Act (CUTPA), as to each defendant. After hearing testimony and accepting evidence, this court, by a preponderance of the evidence, makes the following findings of fact and conclusions of law.
This matter arises out of an oral agreement between the plaintiff and the defendants involving the installation of a metal roof, which was followed by significant leaking and, ultimately, water damage to the plaintiff's home, located on 9 Old Simsbury Road in Granby, Connecticut, in October 2014. In 2003, the defendant had previously installed a metal roof on an addition which the plaintiff had built on the home. For that work, the plaintiff acted as a general contractor in that the plaintiff scheduled and directed the various contractors and pulled a general permit for the home.
In 2014, the plaintiff called Lallier because he wanted to replace the roof on the original part of his home with a metal roof that would match the roof on the 2003 addition. The plaintiff had not experienced any problems with the metal roof installed in 2003. With respect to the work that began on October 20, 2014, by the defendant, the parties negotiated a total price of $21,000, of which $10,000 would be paid in cash and $11,000 by check. They agreed that the plaintiff need not put down a deposit but would pay in full upon completion of the work. Rather than having the defendant handle the preparatory work required to install the roof, the plaintiff chose to have a different contractor, Charles Hill, strip the roof and repair and replace the plywood and underlayment, as well as replace the skylights. When the defendants' work was completed, the plaintiff paid the defendant pursuant to the terms of the agreement, which included a check in the amount $11,000 made payable to the LLC. Neither the plaintiff nor the defendant pulled permits for the work that was done on the metal roof. The court credits Lallier's testimony that the truck he used for his work identifies his company as a limited liability company and that he has made apparent that his work was completed under the auspices of his LLC. The court further finds that the defendant's billing invoice demonstrates that Lallier operated as an LLC.
In February 2015, following a major snowstorm, the plaintiff began to experience leaking from his roof which ultimately caused significant damage. The plaintiff described the presence of ice dams on his roof that were two to three feet wide and eight inches high. The plaintiff further admitted that he had experienced ice dams for the thirty years in which he had lived in the home and would have " a little bit of water" every couple of years. He denied, however, experiencing any water damage prior to February 2015. The plaintiff's testimony also suggested that he was not terribly vigilant about removing snow from his roof, either by removing the snow itself before it would ice over or by hiring someone to remove it. In fact, when the new roof was installed, notwithstanding the significant amount of snow, the plaintiff admitted that he did not remove the snow with a roof rake because he did not want to damage the new metal roof.
The plaintiff also admitted that the defendant advised him to ensure that when the roof was removed that insulation be replaced as necessary and that louvers be sealed so that the ridge vents would operate properly. Although the plaintiff believed that Hill purchased a " couple of rolls" of insulation, Hill did not testify regarding his own work, i.e., whether or not the insulation was in fact evaluated and replaced and in particular, whether he or anyone sealed the louvers.
The court also finds that Lallier, a certified Englert metal roof installer, gave highly credible testimony with respect to both his knowledge of how to install a metal roof and the care he took in installing the plaintiff's roof. The court also finds credible Lallier's testimony that he relied on the plaintiff to ensure that the louvers were blocked and that the insulation was inspected and replaced if necessary since once Hill's work was done, there was no way to confirm that these issues were addressed. As such, Lallier installed the appropriate synthetic underlayment in addition to whatever was installed by Hill because, pursuant to Englert guidelines, this is required when it is unknown or unclear what type of underlayment is pre-existing.
Lallier also credibly testified that in order to ensure that the ridge vents worked properly, the louvers must be sealed; otherwise, the ventilation of the home would not work properly. Notably, the plaintiff's own expert, Bruce Darling, acknowledged that if, in addition to a ridge vent system, the louvers were not sealed, ventilation may be a problem because of the need to have the proper balance of soffit venting with exhaust venting.
One of Darling's criticisms includes the claim that the lack of proper ridge ventilation will increase the size and duration of the ice dams, which the defendant does not dispute. The court, however, cannot find that there was a lack of proper ridge ventilation. In fact, by use of a model of the roofing assembly he installed on the plaintiff's home, Lallier presented compelling evidence showing the physical design of the ridge vent. As Lallier demonstrated, Darling's photographs of the ridge vent are misleading because Darling would not have been able to see or feel the venting system simply by placing his hand underneath the lip of the ridge vent cover. Lallier demonstrated in court that when the cover is lifted, the venting system is very visible.
Lallier also gave credible testimony regarding his understanding of the proper installation of skylights. Contrary to the testimony of Darling, he noted that the Velux skylights installed at the plaintiff's home should not be sealed because the flashing kit that comes with the product uses a gutter-type system to drain water and condensation. Sealant, according to Lallier, would block the drainage.
Count One: Breach of Contract as to Mario Lallier
The court finds that as to count one, the plaintiff entered into an oral agreement with Mario Lallier, LLC, and therefore, the allegations against the individual defendant, Lallier, are dismissed. " [A] person who is a member or manager of a limited liability company is not liable, solely by reason of being a member or manager, under a judgment, decree or order of a court, or in any other manner, for a debt, obligation or liability of the limited liability company, whether arising in contract, tort or otherwise or for the acts or omissions of any other member, manager, agent or employee of the limited liability company." General Statutes § 34-133(a). Like the court in Berdon v. Iwaskiewicz, Superior Court, judicial district of New Haven, Docket No. CV-06-5006800-S, (July 8, 2009, Cosgrove, J.), this court cannot find a factual or legal foundation to support the plaintiff's claims as they relate to the individual defendant.
The plaintiff argues that because he has made claims of negligence within the breach of contract count, the LLC does not protect Lallier in his individual capacity. " It is well established that an officer of a corporation does not incur personal liability for its torts merely because of his official position. Where, however, an agent or officer commits or participates in the commission of a tort, whether or not he acts on behalf of his principal or corporation, he is liable to third persons injured thereby . . . Thus, a director or officer who commits the tort or who directs the tortious act done, or participates or operates therein, is liable to third persons injured thereby, even though liability may also attach to the corporation for the tort." (Internal quotation marks omitted.) Sturm v. Harb Devevelopment, LLC, 298 Conn. 124, 132, 2 A.3d 859 (2010). In considering the parameters of such tortious conduct, however, our courts have made clear that the failure to exercise that duty of care implicit in the performance of a contract is not the kind of negligent conduct for which individual liability would attach. Id., 140.
On one hand, this court notes that our Supreme Court has observed that " [i]t is well established within the construction context that a builder must exercise that degree of care which a skilled builder of ordinary prudence would have exercised under the same or similar conditions." (Internal quotation marks omitted.) Sturm v. Harb Development, LLC, supra, 298 Conn., 139; see also Scribner v. O'Brien, Inc., 169 Conn. 389, 400, 363 A.2d 160 (1975). " [T]he existence of a duty of care is an essential element of negligence . . . A duty to use care may arise from a contract, from a statute, or from circumstances under which a reasonable person, knowing what he knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result from his act or failure to act." (Internal quotation marks omitted.) Pelletier v. Sordoni/Skanska Construction Co., 286 Conn. 563, 578, 945 A.2d 388 (2008). Nevertheless, while " [t]here is no question that a duty of care may arise out of a contract . . . when the claim is brought against a defendant who is not a party to the contract, the duty must arise from something other than mere failure to perform properly under the contract." (Internal quotation marks omitted.) Sturm v. Harb Development, LLC, supra, 298 Conn., 140.
Putting aside the fact that the plaintiff failed specifically to assert a count in negligence, this court finds that the essence of the plaintiff's duty of care claim against Lallier is derived from the defendant's performance of the contract. Under these facts, only the LLC, and not Lallier, may be properly sued and, thus, this count is dismissed as to Lallier.
Count Two: Connecticut Unfair Trade Practices Act as to Mario Lallier
The plaintiff has also sued Lallier individually pursuant to CUTPA. See General Statutes § 42-110a et seq. For the same reasons this court has dismissed count one, this court dismisses count two because Lallier cannot be sued in his individual capacity.
General Statutes § 42-110b provides in relevant part: " No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce."
Count Three: Breach of Contract as to Mario Lallier, LLC
" The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages." (Internal quotation marks omitted.) Bross v. Hillside Acres, Inc., 92 Conn.App. 773, 780-81, 887 A.2d 420 (2006); see also Chiulli v. Zola, 97 Conn.App. 699, 706-07, 905 A.2d 1236 (2006) (same). Breach of contract is to be proven by the preponderance of the evidence. See Waicunas v. Macari, 151 Conn. 134, 137, 193 A.2d 709 (1963); see also Colliers, Dow & Condon, Inc. v. Schwartz, 77 Conn.App. 462, 471, 823 A.2d 438 (2003); Daley v. Wesleyan University, 63 Conn.App. 119, 131-32, 772 A.2d 725, cert. denied, 256 Conn. 930, 776 A.2d 1145 (2001).
The rules governing contract formation are well settled. " To form a valid and binding contract in Connecticut, there must be a mutual understanding of the terms that are definite and 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 . . . If the minds of the parties have not truly met, no enforceable contract exists . . . [A]n agreement must be definite and certain as to its terms and requirements . . . So long as any essential matters are left open for further consideration, the contract is not complete." (Citations omitted; internal quotation marks omitted.) L& R Realty v. Connecticut National Bank, 53 Conn.App. 524, 534-45, 732 A.2d 181, cert. denied, 250 Conn. 901, 734 A.2d 984 (1999). A contract requires a clear and definite promise. See Suffield Development Associates Ltd. Partnership v. Society for Savings, 243 Conn. 832, 843, 708 A.2d 1361 (1998). A court may, however, enforce an agreement " if the missing terms can be ascertained, either from the express terms or by fair implication." (Internal quotation marks omitted.) Geary v. Wentworth Laboratories, Inc., 60 Conn.App. 622, 627-28, 760 A.2d 969 (2000).
In this case, the plaintiff has alleged numerous grounds for his breach of contract claim, but the primary thrust of his claim is that the defendant failed to install the metal roof in a professional and competent manner. This court finds that by the terms of the oral agreement, Morey paid the LLC a total price of $21,000, of which $10,000 would be paid in cash and $11,000 by check, in exchange for the installation of a metal roof. The agreement also included that Morey would ensure that the roof was stripped and the insulation was checked and replaced if necessary and that the louvers were blocked. In the absence of testimony from Hill, the plaintiff does not present sufficiently credible evidence that the insulation was in fact checked and replaced or that the louvers were sealed. At the same time, the defendant presented highly credible evidence that he installed the metal roof and that his work was performed appropriately and professionally. In particular, he credibly addressed and refuted the plaintiff's expert, whose opinions this court believes were premised on wrong assumptions. For example, Darling believed that the roofing system was not vented, while the defendant demonstrated that it was not only vented, but its design obscured the vents in a way that led Darling incorrectly to conclude that the roof was not properly vented. Darling also believed that the skylights required sealing, yet the defendant credibly testified that the skylights come with a flashing kit requiring a gutter system rather than sealing to address snow and rain. Finally, Darling conceded that a ridge venting system and louvers which were not blocked could cause problems with the circulation of hot and cold air.
Although alleged, this court does not find that the terms of the agreement include a representation by the defendant that he would procure a permit.
In considering the evidence, this court is mindful that the burden is on the plaintiff to prove his claims. Thus, this court need not find or determine what in fact caused the significant water damage sustained by the plaintiff. Instead, this court need only determine whether or not the plaintiff met his burden of proving that the defendant failed to install his metal roof in a professional and competent manner. He did not and, thus, the court dismisses this count as to the defendant LLC.
Count Four: Connecticut Unfair Trade Practices Act as to Mario Lallier, LLC
The parties do not dispute that " the failure to comply with the Home Improvement Act's written contract requirement is a per se violation of CUTPA by virtue of General Statutes § 20-427(b), which provides that " any violation of the Home Improvement Act is deemed to be an unfair or deceptive trade practice." (Footnote omitted.) A. Secondino & Son, Inc. v. LoRicco, 215 Conn. 336, 343, 576 A.2d 464 (1990). The defendant argues, however, that because the plaintiff, although a homeowner, functioned as a general contractor, the Home Improvement Act does not apply to the defendant LLC, because relative to the plaintiff, the defendant LLC functioned as his subcontractor.
General Statutes § 20-420(a) provides in relevant part that " [n]o person shall hold himself out to be a contractor or salesman without first obtaining a certificate of registration from the commissioner [of consumer protection] as provided in [chapter 400], except that an individual or partner, or officer or director of a corporation registered as a contractor shall not be required to obtain a salesman's certificate." General Statutes § 20-419(3) 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." General Statutes § 20-429(a) provides in part that " [n]o home improvement contract shall be valid or enforceable against an owner unless it . . . (8) is entered into by a registered salesman or registered contractor . . ." Nowhere is there any mention of subcontractors. In reviewing the statutory language as well as the legislative history, our appellate court reasoned that had the legislature intended " to include subcontractors within the registration requirement of the [act], it would have listed them as affected parties in § 20-420." O'Donnell v Rindfleisch, 13 Conn.App. 194, 201, 535 A.2d 824 (1988).
In particular, the court noted that " [t]he [act] is a remedial statute that was enacted for the purpose of providing the public with a form of consumer protection against unscrupulous home improvement contractors . . . The aim of the statute is to promote understanding on the part of consumers with respect to the terms of home improvement contracts and their right to cancel such contracts so as to allow them to make informed decisions when purchasing home improvement services." (Citations omitted.) Wright Bros. Builders, Inc. v. Dowling, 247 Conn. 218, 231, 720 A.2d 235 (1998).
" The contract between the contractor and the subcontractor is not within the purview of the act, and need not be under its purpose and premise, for by its terms the contractor is responsible to the consumer and the commissioner of consumer protection for whatever the subcontractor may do. The level of the act's protection does not reach the contractor in his relationship with a subcontractor. In such a business relationship, the contractor is not a consumer. It is clear from the legislative record that the registered contractor was intended to be the person liable for the actions of persons he hires, employs or engages as a subcontractor to work on a homeowner's improvement project." (Emphasis in original.) O'Donnell v. Rindfleisch, supra, 13 Conn.App. 204.
In concluding that subcontractors need not register as home improvement contractors pursuant to the act, the court in Meadows v. Higgins, 249 Conn. 155, 167, 733 A.2d 172 (1999), adopted the reasoning in O'Donnell " that requiring subcontractors to register as home improvement contractors would be unreasonable and unduly burdensome in an industry where most . . . construction work is often subcontracted . . . by a general contractor who oversees the entire project and is responsible [to the owner] for the final result." (Internal quotation marks omitted.)
In considering our Supreme Court's analysis in Meadows, this court cannot conclude that the defendant should be considered a subcontractor under these facts as there is no dispute that the plaintiff is the homeowner. The fact that the plaintiff may have secured another contractor or sought to do some of the work on the roof himself does not obviate that fact. Moreover, to construe the Home Improvement Act as argued by the defendant is to deprive the plaintiff of the protection of the Act without any clear reason or authority to do so. Thus, this court rejects the defendant's claim that he is a subcontractor for purposes of the Act.
The defendant also argues, however, that the plaintiff must show that he has suffered damages as a result of the failure to comply with the Act's provisions, in this case, the failure to procure a written contract. On this basis, this court agrees that the plaintiff has failed to meet his burden that he is entitled to recover pursuant to the Act. A. Secondino & Son, Inc. v. LoRicco, supra, 215 Conn., 344 (" the defendant has failed to present any damages arising from the alleged [CUTPA] violations" [internal quotation marks omitted]). " 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." (Citations omitted.) Id., 343. " [I]n order to prevail in a CUTPA action, a plaintiff must establish both that the defendant has engaged in a prohibited act and that, 'as a result of' this act, the plaintiff suffered an injury. The language 'as a result of' requires a showing that the prohibited act was the proximate cause of a harm to the plaintiff." (Emphasis in original; internal quotation marks omitted.) Scrivani v. Vallombroso, 99 Conn.App. 645, 652, 916 A.2d 827 (2007).
As this court has found, the plaintiff has failed to demonstrate that any losses he has incurred from the damage to his home are related to the defendant's installation of the metal roof. Similarly, the plaintiff has not demonstrated or even attempted to argue that the damages he incurred were proximately caused by the defendant's failure to have a written contract. As such, this court dismisses this count as well.
Based on the foregoing, this court finds in favor of the defendants on all counts.