Opinion
KNLCV166027026S
10-25-2018
Pleasant Beginnings, LLC v. James F. Campisi et al.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Calmar, Harry E., J.
MEMORANDUM OF DECISION
Calmar, J.
INTRODUCTION
At issue in this action is a construction contract in which the plaintiff and counterclaim-defendant, Pleasant Beginnings, LLC, provided labor, services, and materials to the defendants and counterclaim-plaintiffs, James F. Campisi and Jennifer J. Campisi (Campisis), in the construction of a home located at 20 Casean Court in Waterford, Connecticut (Property).
The plaintiff is foreclosing on a mechanic’s lien for materials and services provided to the defendants, pursuant to their contract. The plaintiff asserts that the defendants breached the contract by altering the manner in which payments were to be made to the plaintiff, failing to compensate it for services and materials provided, and prematurely discharging the plaintiff from the job. The plaintiff further asserts that the defendants have been unjustly enriched by the value of the plaintiff’s services and materials provided. The plaintiff further claims monies due in excess of the lien for the breach of contract claims.
The defendants counter that they have paid more than what is owed under the contract and that the plaintiff’s mechanic’s lien was not timely filed. The defendants further assert that the plaintiff failed to perform in conformance with the contract, violated the New Home Construction Contractor’s Act (NHCCA), General Statutes § 20-417a et seq., and violated the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110 et seq.
General Statutes § 20-417b(a) provides in relevant part: "No person shall engage in the business of new home construction or hold himself or herself out as a new home construction contractor unless such person has been issued a certificate of registration by the commissioner in accordance with the provisions of sections 20-417a to 20-417j, inclusive."
General Statutes § 42-110b(a) provides: "No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce."
The plaintiff responds, arguing that any failure to complete portions of the contract was a result of the defendants’ own defaults and that the defendants cannot collect compensation or damages which resulted from their own failures. To the extent, if any, that the plaintiff is found to be liable to the defendants, the plaintiff claims a set-off equal to the amounts it claims.
The plaintiff’s claim includes its original mechanic’s lien in the amount of $29,177; attorneys fees for this action, including a hearing to prevent the defendants’ attempt to discharge the plaintiff’s mechanic’s lien; damages for breach of contract; damages for unjust enrichment in the alternative; costs; and possession of the liened premises.
A courtside trial was held on May 3, 2018 and May 4, 2018. The plaintiff was represented by attorney Michael M. Bonnano, and the defendants were represented by attorney Matthew G. Berger. On May 4, 2018, the last day of trial and after the plaintiff’s case in chief had been completed, counsel for the defendants filed a request to amend their special defenses and counterclaims, specifically seeking to add a third special defense alleging that the "Plaintiff is barred from collecting on [its] claims by virtue of [its] failure to be a licensed New Home Construction
Contractor," and adding to its CUPTA claim an allegation that the plaintiff "performed work while not holding an active New Home Construction Contractor License." At trial, counsel for the plaintiff objected to such amendment. Post-trial memoranda were filed through June 11, 2018.
The court has considered the parties’ arguments, proposed findings of fact, and proposed orders. In the course of the trial, the court heard testimony from the parties and their witnesses and received documentary evidence. The court now issues the following ruling.
FACTS
The court finds the following facts. The plaintiff’s principal, developer Albert C. Snyder, became a partner with one of the defendants, James Campisi, in the entity Engineered Comfort, LLC (EC), which implements novel energy conservation designs for homes (EC System). The EC System had not yet been implemented in a home. The defendants were looking to build a new home, and intended to install the EC System in it in part to showcase the technology.
At the time of trial, Snyder and James Campisi remained partners in EC.
On October 26, 2014, the plaintiff and the defendants entered into a written contract for the construction of the new home. The contract contained the following material provisions:
The parties amended the contract and its addendum between November 19, 2014 and December 17, 2014, changing the cost from $425,000 to $325,000. This change apparently reflected consideration of the real estate purchase and sales agreement on December 16, 2014.
a. The plaintiff would construct an approximately 2500 square foot, multilevel home, designed by Craig Laliberte;
b. Construction would include implementation of the EC System;
c. The cost would be $325,000 paid for, as set forth in a schedule of values from the lending institution;
d. Pursuant to the addendum, the "[c]omplete project is based on loan amount of $325,000 fixed funding available that cannot be exceeded";
e. Construction of the home was to be completed "approximately 180 days of the approval of the house plan submitted to the Town of Waterford, CT";
f. Changes and substitutions would be made in writing, and if those changes resulted in a higher cost than the contractor’s quote "either in material, design or labor, the buyer [would] compensate the builder monetarily at the time of the change."
On December 16, 2014, the defendants entered into a purchase and sales agreement to purchase land at 20 Casean Court in Waterford from LAS, LLC (LAS), in which Snyder was the principal, for $100,000. The real estate purchase and sale agreement was contingent upon site plan approval and a building permit for the defendants’ home and was subject to the defendants’ approval of an agreement with LAS to serve as the general contractor.
The closing took place on January 30, 2015. LAS received $100,000, utilizing a construction loan with Chelsea Groton Bank. Additional disbursements from the construction loan were made to the defendants and then were tendered to Snyder personally; none were made to Pleasant Beginnings, LLC or LAS.
The permit was applied for in January of 2015 and obtained on April 20, 2015. By October, the project was delayed and the relationship between Snyder and the Campisis was strained. There were significant disputes at trial as to the cause of delays in the construction project. Snyder testified that delays in the project were attributable to the defendants, and the fact that the house incorporated the EC System, which had never been installed before. Snyder testified that cost overruns and delays were also attributable to the unilateral changes made to the materials schedule and the manner in which funds were being disbursed by James Campisi under the arrangement with Chelsea Bank. Snyder alleged that he was forced to finance the project, as cost overruns were fronted by him on the expectation of reimbursement from the defendants. However, Snyder also acknowledged that he inadvertently dug the foundation too deep. As a result, he had to build a knee wall to prevent sagging of the rafters, which increased construction costs. The defendants also insisted that the plaintiff adhere to the contract price of $325,000. Tensions continued to mount and construction progressed slowly. Finally, Snyder advised James Campisi that he would be unable to continue working on the project without additional funding.
On December 3, 2015, James Campisi emailed Snyder, demanding that he finish the job or the Campisis would have to find another contractor. On December 21, 2015, the defendants engaged attorney Jeffrey Londregan to formally terminate the contract for nonperformance. On January 4, 2016, Attorney Londregan mailed his letter doing so. Snyder asserted at trial that additional work was done after December 4, primarily finishing the electrical work and removing a door and putting it back in the exact same location. At the time the plaintiff left the site, Snyder had been paid a total of $204,002. In March 2016, the defendants hired DC Builders to complete the job and moved in at the end of summer of 2016.
On or about March 29, 2016, the plaintiff caused a Notice of Intent to File Mechanic’s Lien to be served upon the defendants in accordance with General Statutes § 49-35. On or about March 29, 2016, the plaintiff also caused a certificate of Mechanic’s Lien to be filed and recorded against the Property and improvements thereon with the Town Clerk of the Town of Waterford, which said certificate was duly recorded in the Waterford Land Records in Volume 1451, Page 289, in accordance with General Statutes § 49-34. On or about May 19, 2016, the plaintiff recorded a Notice of Lis Pendens against the Property with the Town Clerk of the Town of Waterford, which Notice of Lis Pendens was duly recorded in said Waterford Land Records in Volume 1459, Page 31.
General Statutes § 49-35(a) requires that only a contractor may claim a mechanic’s lien; must do so within 90 days of the last date of construction; record an affidavit with the Town Clerk in the town where the project is located, stating the name under which such original contractor conducts business, stating the original contractor’s business address, and describing the building, lot or plot of land; and serve notice on the owner.
General Statutes § 49-34 provides in relevant part: "A mechanic’s lien is not valid unless the person performing the services ... (1) within ninety days after he has ceased to do so, lodges with the town clerk of the town in which the building, lot or plot of land is situated a certificate in writing, which shall be recorded by the town clerk with deeds of land, (A) describing the premises, the amount claimed as a lien thereon, the name or names of the person against whom the lien is being filed and the date of the commencement of the performance of services or furnishing of materials, (B) stating that the amount claimed is justly due, as nearly as the same can be ascertained, and (C) subscribed and sworn to by the claimant, and (2) not later than thirty days after lodging the certificate, serves a true and attested copy of the certificate upon the owner of the building, lot or plot of land in the same manner as is provided for the service of the notice in section 49-35."
LAW
Plaintiff’s Claims
The plaintiff’s amended complaint alleges three counts: foreclosure of a mechanic’s lien; breach of contract; and unjust enrichment. The court finds for the plaintiff on its unjust enrichment claim and finds it may foreclose on the mechanic’s lien.
Breach of Contract
The plaintiff first alleges breach of contract by the defendants. "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.) Chiulli v. Zola, 97 Conn.App. 699, 706-07, 905 A.2d 1236 (2006). Additionally, the plaintiff must prove the defendant’s breach caused the plaintiff’s claimed damages. Meadowbrook Center, Inc. v. Buchman, 149 Conn.App. 177, 186, 90 A.3d 219 (2014). The contract must be viewed in its entirety, with each provision read in light of the other provisions and every provision must be given effect if it is possible to do so. Cruz v. Visual Perceptions, LLC, 311 Conn. 93, 103, 84 A.3d 828 (2014). The existence and terms of a contract are to be determined from the intent of the parties. Auto Glass Express, Inc. v. Hanover Ins. Co., 293 Conn. 218, 225, 975 A.2d 1266 (2009). "The parties’ intentions manifested by their acts and words are essential to the court’s determination of whether a contract was entered into and what its terms were." (Internal quotation marks omitted.) Id.
"[T]he general rule is that a contractor who substantially performs under a building or construction contract is entitled to recover the contract price minus the cost of repairing the defects or completing the unfinished part of the work so as to bring the construction up to the level required by the contract ..." (Internal quotation marks omitted.) Coppola Construction Co. v. Hoffman Enterprises Ltd. Partnership, 157 Conn.App. 139, 160-61, 117 A.3d 876, cert. denied, 318 Conn. 902, 123 A.3d 882 (2015). "A contractor may be excused from its duty of substantial performance, however, and, thus, may file an action based upon the contract, if the owner repudiates the contract or breaches it outright." Id., 161. The failure to make progress payments is a breach of contract so substantial as to render the contract nugatory. Id.
In the present case, the court finds that the plaintiff failed to prove its claim for breach of contract. The parties had a valid and enforceable construction contract. The contract’s base price of $325,000 was carefully and aggressively negotiated. Snyder testified that James Campisi had indicated a budget needed to be met, and that he and James Campisi spent significant time meticulously pricing out costs for specific materials in order to meet the contract price. Snyder undertook efforts to ensure that the budget could be met, including agreeing to take a reduced contractor’s fee for his own services, and, "beating up [his] sub[contractor]s" in an effort to meet the Campisi’s budget. Indeed, the parties agreed in the addendum contract specification document sheet, dated September 19, 2014 and signed in December 2014, that the "complete project was based on loan amount of $325,000 funding available that cannot be exceeded." That is not to say the base price could not be adjusted. Indeed, the parties agreed that "any changes or substitutions [would] be made in writing, and if at a higher cost than contractor’s quote, either in material, design or labor, the buyer would compensate the builder monetarily at the time of the change." However, no evidence was provided to the court by either party of a change or substitution in writing, with evidence of compensation at the time of the change for a higher cost.
Where the purchase of an item was delegated to the defendants, any subsequent purchase which they made at a higher cost was effectively a ratified change when they paid for the items. By way of example, the defendants purchased windows, doors, appliances, and fixtures for $22,418, and, to the extent these costs exceeded the schedule of values, the defendants ratified the change.
Importantly, coupled with the contract was a schedule of values. According to the schedule, disbursements to the plaintiff were to be made in three installments in the amounts of $70,650, $146,000, and $108,350, respectively. Each installment contemplated a portion of the $30,000 fee that the parties agreed the plaintiff would charge for its services under the contract. A copy of a spreadsheet prepared by the plaintiff and not substantially challenged by the defendants, sets forth the agreed-upon schedule of values, the actual costs, the amounts paid, and the date the plaintiff received payment. It is the best evidence of the construction project’s financial character. As reflected therein, the plaintiff billed the defendants a total of $233,195, and the Campisis paid $204,018. When the court compares the plaintiff’s billed costs against the agreed-upon schedule of values, it is apparent that there are deviations from the values agreed upon by the parties. The plaintiff billed $2,264 less than scheduled for certain items and $27,917 more than scheduled for others, for a net increase of $25,653 more than the agreed-upon schedule values. In short, the plaintiff billed a total of $233,195 for labor, costs, and materials that the contract established at $219,650. Against the billings of $233,195, the defendants paid $204,018, $15,632 less ($219,650 minus $204,018) than the schedule of values.
Nevertheless, the plaintiff may not recover such amount or any amount in breach of contract because it failed to prove the defendants breached the contract. The plaintiff primarily claims it was entitled to a $30,000 profit built into the $325,000 contract. However, the delays and errors that resulted in increased construction costs undercut that profit and were the result of the plaintiff’s own delays and mistakes, not the defendant’s. For example, the plaintiff dug the foundation too deep, resulting in increased construction costs to correct the problem. Additionally, cost overruns in the windows, wood, concrete, and stone further mitigated the plaintiff’s profit. Had the plaintiff desired to ensure it would receive a $30,000 profit, it should have included such a provision in the contract. Its failure to do so is its responsibility and not the defendant’s.
Moreover, the defendants did not delay their payments because the contract did not provide a timeline of when those payments should be made. Although the plaintiff argued it should have been paid more at certain times, the defendants repeatedly paid the plaintiff for its work to the extent that the bank allowed such payments. The bank only allowed such payments after it inspected the property, resulting in delays of the payments. Thus, the defendants are not at fault for any payments the plaintiff thought were late.
Lastly, the defendants did not breach the contract by discharging the plaintiff from the job. As tensions mounted between the parties, Snyder repeatedly stated that he needed to be paid for his work and would not work on the project absent payment. This amounts to a repudiation of the contract. See Solairaj v. Mannarino Builders, Inc., 168 Conn.App. 1, 9, 143 A.3d 666 (2016) ("even a mere statement indicating unwillingness to perform a contractual duty owed to another may constitute a total breach of contract" [internal quotation marks omitted] ). "Once a party repudiates a contract, the nonbreaching party is excused from its obligations under the contract." Id. Thus, once Snyder stated he would no longer perform under the contract, the defendants were entitled to fire him and hire another contractor. They did not breach the contract. Therefore, court finds for the defendants on the plaintiff’s claim for breach of contract.
Unjust Enrichment
The plaintiff alternatively alleges unjust enrichment by the defendants. "Unjust enrichment is a legal doctrine to be applied when no remedy is available pursuant to a contract." (Internal quotation marks omitted.) Burns v. Koellmer, 11 Conn.App. 375, 383, 527 A.2d 1210 (1987). "It is often said that an express contract between the parties precludes recognition of an implied-in-law contract governing the same subject matter." (Footnote omitted; internal quotation marks omitted.) New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 433, 454-55, 970 A.2d 592 (2009). "Nevertheless, when an express contract does not fully address a subject, a court of equity may impose a remedy to further the ends of justice." (Internal quotation marks omitted.) Id., 455.
"[A]n implied in law contract is another name for a claim for unjust enrichment." (Internal quotation marks omitted.) New Hartford v. Connecticut Resources Recovery Authority, supra, 291 Conn. 454 n.25.
"Plaintiffs seeking recovery for unjust enrichment must prove (1) that the defendants were benefited, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs’ detriment." (Internal quotation marks omitted.) Hartford Whalers Hockey Club v. Uniroyal Goodrich Tire Co., 231 Conn. 276, 283, 649 A.2d 518 (1994). "Unjust enrichment is, consistent with the principles of equity, a broad and flexible remedy." (Internal quotation marks omitted.) New Hartford v. Connecticut Resources Recovery Authority, supra, 291 Conn. 451. "This doctrine is based upon the principle that one should not be permitted unjustly to enrich himself at the expense of another but should be required to make restitution of or for property received, retained or appropriated ... The question is: Did [the party liable], to the detriment of someone else, obtain something of value to which [the party liable] was not entitled?" (Internal quotation marks omitted.) Id., 452.
In the present case, the plaintiff may recover under unjust enrichment. The contract between the parties does not fully address the subject of payments upon termination and it would be unjust for the plaintiff to receive nothing for the services, labor, and materials it provided in its attempt to complete the project. At trial, the plaintiff proved that (1) the defendants benefited from its additional work on the project, (2) the defendants unjustly did not pay the plaintiff $15,632 for the material and labor costs it invested in the project, and (3) the failure of payment was to the plaintiff’s detriment because it ate into his profit margins and payments to subcontractors. Therefore, the court finds for the plaintiff in its claim for unjust enrichment.
Mechanic’s Lien
The plaintiff also seeks to foreclose on the mechanic’s lien against the defendants. "[I]n a foreclosure of a mechanic’s lien, a contractor is entitled to the value of the materials that it furnished or the services that it rendered in the construction of a project." (Internal quotation marks omitted.) E&M Custom Homes, LLC v. Negron, 140 Conn.App. 92, 104, 59 A.3d 262 (2013), appeal dismissed, 314 Conn. 519, 102 A.3d 707 (2014). The reasonable value of the materials and services can be proven by: (1) providing evidence that the contract price represents the value of a contractor’s materials and services; (2) demonstrating the contractor substantially performed such that the contract is the proper valuation of its materials and services; or (3) submitting evidence of the cost to complete the work. Id., 104-05. "In order for a party to foreclose a mechanic’s lien it must comply with the requirements of [General Statues] § 49-39. Compliance with § 49-39 mandates that the party seeking to foreclose the lien must, within one year from the date the lien is recorded, (1) commence an action to foreclose the lien, and (2) record a notice of lis pendens." H.G. Bass Associates, Inc. v. Ethan Allen, Inc., 26 Conn.App. 426, 430, 601 A.2d 1040 (1992).
In the present case, the defendants challenge the validity of the plaintiff’s lien on the basis that it was untimely filed; namely, it was filed more than 90 days after the last date that work was performed on the project. They also challenge the validity of the lien on the basis that they assert the plaintiff was paid more than it was owed.
As to the defendants’ first argument, at trial, it was established by a preponderance of the evidence that the plaintiff last performed work on the project on January 4, 2016. The plaintiff’s lien is, therefore, valid because it was recorded on March 29, 2016, within 90 days of January 4, 2016. Thus, the defendants’ first argument is unsuccessful. As to the defendants’ second argument, the evidence at trial showed that the plaintiff was not paid more than it was owed. In fact, the defendants still owe the plaintiff $15,632 in costs. Thus, the defendants’ second argument is similarly unsuccessful.
Additionally, the plaintiff has met the other statutory requirements for filing a mechanic’s lien. It commenced an action to foreclose the lien and recorded a notice of lis pendens within one year from the date the lien was recorded. Therefore, it may foreclose on the mechanic’s lien.
Damages
"[T]he measure of damages in an unjust enrichment case ordinarily is not the loss to the plaintiff but the benefit to the defendant." (Internal quotation marks omitted.) Schirmer v. Souza, 126 Conn.App. 759, 771, 12 A.3d 1048 (2011). "The fact finder’s determination of whether unjust enrichment is available as a means of recovery requires a factual examination, and the [fact finder’s] determination of the exact amount of recovery under the doctrine, namely, the value of benefit derived from the plaintiff’s actions, is a question of fact." (Internal quotation marks omitted.) Data-Flow Technologies, LLC v. Harte Nissan, Inc., 111 Conn.App. 118, 126, 958 A.2d 195 (2008). "Further, [w]hen damages are claimed they are an essential element of the plaintiff’s proof and must be proved with reasonable certainty ... Damages are recoverable only to the extent that the evidence affords a sufficient basis for estimating their amount in money with reasonable certainty." (Internal quotation marks omitted.) Carrano v. Yale-New Haven Hospital, 279 Conn. 622, 646, 904 A.2d 149 (2006).
In the present case, the plaintiff is entitled to $15,632 in costs it incurred in the project. The plaintiff’s spreadsheet details the estimated costs, the actual costs, and the amounts paid. Tracking the spreadsheet, the plaintiff under billed $2,264 for certain items and over billed $27,917 for others: a net increase of $25,653 more than the agreed-upon schedule values. The plaintiff billed a total of $233,195 for labor, costs, and materials that the contract established would cost $219,650. Against the billing of $233,195, the plaintiff paid $204,018. In short, the court finds the defendants owe the plaintiff $15,632, the difference between the amount the defendants paid and the costs established by the contract. Thus, the court awards the plaintiff the following in damages: $15,632. The plaintiff may foreclose on the mechanic’s lien in that amount.
Defendants’ Counterclaims
The defendants’ amended counterclaim alleges two counts: breach of contract; and violations of NHCCA. The court does not find for the defendants on their claims.
Breach of Contract
The defendants’ first counterclaim alleges the plaintiff breached its contract with the defendants. "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.) Chiulli v. Zola, supra, 97 Conn.App. 706-07. Additionally, the defendants must prove the plaintiff’s breach caused the defendants’ claimed damages. Meadowbrook Center, Inc. v. Buchman, supra, 149 Conn.App. 186. A "mere statement indicating unwillingness to perform a contractual duty owed to another may constitute a total breach of contract." Carroll v. Perugini, 83 Conn.App. 336, 341, 848 A.2d 1262 (2004).
In the present case, the defendants established that the plaintiff breached the contract, but failed to establish the amount they were damaged. The plaintiff breached the contract by walking away from the project and refusing to complete it. Although the plaintiff asked for more money to complete the project, the contract had a set price of $325,000 and changes to that price could only be made by written agreement of the parties. There are no written agreements showing any changes as to the contract price. By refusing to complete the project, the plaintiff repudiated the contract, thus, breaching it. See Coppola Construction Co. v. Hoffman Enterprises Ltd. Partnership, supra, 157 Conn.App. 161 ("[a] repudiation is a manifestation by one party to the other that the first cannot or will not perform at least some of its obligation under the contract. It may be by words or other conduct" (emphasis omitted; internal quotation marks omitted) ].
Nevertheless, the defendants introduced no admissible receipts or other evidence for the court to review to even begin tallying their alleged damages. The only evidence was James Campisi’s testimony that he paid additional funds to a new contractor. Nevertheless, Campisi’s testimony was not credible because, at trial, he found cross examination challenging. He delayed his responses to counsel’s questions or failed to respond entirely to them, mumbled, and sought direction from his wife and counsel. His behavior undermined his testimony on direct examination, and the court does not find his testimony credible.
Thus, the defendants’ failure to produce evidence of damages is fatal to their counterclaim of breach of contract. See Gargano v. Heyman, 203 Conn. 616, 620, 525 A.2d 1343 (1987) (burden of proving damages is on party claiming them). The court finds for the plaintiff on the defendants’ breach of contract claim.
Although an award of nominal damages is appropriate where there is insufficient evidence produced at trial to prove actual damages; Hartford v. International Assn. of Firefighters, Local 760, 49 Conn.App. 805, 816, 717 A.2d 258, cert. denied, 247 Conn . 920, 722 A.2d 809 (1998); the court, in its discretion, declines to award such damages. See Elm City Cheese Co. v. Federico, 251 Conn. 59, 90, 752 A.2d 1037 (1999).
NHCCA & CUTPA
The defendants’ next counterclaim against the plaintiff is for alleged violations of the NHCCA and CUTPA. The NHCCA, § 20-417b(a), provides in relevant part: "No person shall engage in the business of new home construction or hold himself or herself out as a new home construction contractor unless such person has been issued a certificate of registration by the commissioner in accordance with the provisions of sections 20-417a to 20-417j, inclusive." Subsections (d) and (e) state that the certificate of registration expires biennially, and must be renewed. The NHCCA "was enacted to bring new home contractors under the same set of regulations ... as the home improvement contractors." (Internal quotation marks omitted.) Hopko v. St. Peter, Superior Court, judicial district of Middlesex, Docket No. CV-02-0100039-S (November 17, 2003, Jones, J.) (35 Conn.L.Rptr. 719). Specifically, the act’s "purpose is to protect consumers from fraudulent and negligent new home contractors." Smith v. Fabrizio, Superior Court, judicial district of Litchfield, Docket No. CV-02-0087935-S (January 13, 2004, Bryant, J.). The contract need not comply with the act to be enforceable. D’Angelo Development & Construction Co. v. Cordovano, 278 Conn. 237, 248, 897 A.2d 81 (2006). A violation of the NHCCA is a per se CUTPA violation. General Statutes § 20-417g. Nevertheless, "[a] plaintiff who has established a defendant’s CUTPA violation due to a violation of the NHCCA still must prove that she sustained damages as a result of the defendant’s violation. The question of whether a plaintiff has suffered ascertainable losses as a result of a CUTPA violation is a question of fact to be determined by the trier." Hylton v. Premier Partners & Associates, LLC, Superior Court, judicial district of Hartford, Docket No. CV-12-6037137-S (February 9, 2015, Peck, J.).
In the present case, the defendants proved the plaintiff did not comply with the NHCCA. Specifically, the evidence and testimony showed that the plaintiff, although licensed when construction began, allowed his license to expire and, thus, did not comply with the NHCCA. See § § 20-417b(d) and 20-417b(e). Thus, because the defendants proved the plaintiff violated the NHCCA, the plaintiff committed a per se CUTPA violation. See § 20-417g.
On September 30, 2015, Pleasant Beginnings, LLC’s new home construction license expired and was not renewed.
Nevertheless, the defendants were unable to prove damages due to the plaintiff’s violation. The defendants made no effort to substantiate or prove damages. They failed to introduce any admissible evidence to show damages and no proof as to any culpability of the plaintiff. Absent proof of an ascertainable loss that is causally attributable to a particular alleged violation of the NHCCA, the defendants are precluded from recovery under CUTPA. See Hylton v. Premier Partners & Associates, LLC, supra, Superior Court, Docket No. CV-126037137-S.
The defendants’ request to amend their pleadings in an attempt to rectify these problems is denied. The request was made in the middle of trial, after the plaintiff rested its case. Permitting such amendment is prejudicial to the plaintiff, and, fundamentally, unavailing to the defendants on the merits. Therefore, the defendants did not prove their NHCCA and CUTPA claims.
JUDGMENT
Order/Relief
For reasons stated herein, the plaintiff has established the validity of its lien in the amount of $15,632, and may foreclose the lien in that amount. The plaintiff has established the elements of its unjust enrichment claim, and that it is entitled to damages in the amount of $15,632.
The defendants’ breach of contract counterclaim and relief thereunder is denied as the defendants failed to establish that they sustained damages due to the plaintiff’s breach. The defendants are also denied recovery under CUTPA and the NHCCA because they failed to establish a causal connection between any of the alleged violations thereof, and any damages they allege to have suffered.