Opinion
No. CV 07 5002674
September 24, 2008
MEMORANDUM OF DECISION
This lawsuit arises out of a construction contract to renovate and build a major addition to a Cape Cod style home at 307 Ferry Road in Old Lyme. The plaintiff, George Taylor, has sued the defendant, David King, d/b/a King Building, the home improvement contractor he engaged to perform construction services, which constituted a substantial portion of the construction project. The complaint presently consists of four counts including breach of contract (count one), breach of warranty (count two), negligent infliction of emotional distress (count three) and violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110b et seq. (count five). In response to the complaint, the defendant has denied the material allegations of all the counts and has alleged several special defenses, a set-off for unpaid work, and counterclaims alleging breach of contract and, alternatively, quantum meruit.
Count four of the complaint is an unjust enrichment claim which the plaintiff did not brief or include in oral argument. Count three of the counterclaim is a defamation claim which the defendant did not brief or include in oral argument. The court deems both of these claims to be abandoned. In addition, of the seven special defenses, only the third (failure to mitigate), the sixth (waiver of the contract requirements of the Home Improvement Act (HIA)) and the seventh (the defendant was a subcontractor not subject to the contract requirements of the HIA) have been briefed and/or included in oral argument. Without addressing the merits of the remaining special defenses, the court finds that the defendant has not met his burden of proof and/or has abandoned the first, second, fourth and fifth special defenses, and therefore, will not further address them.
The issues presented at trial are as follows: 1) whether or not the actions of either party constituted a breach of contract; 2) whether the defendant's actions constitute a breach of warranty; 3) whether the plaintiff has satisfied the elements of negligent infliction of emotional distress; 4) whether the defendant has violated CUTPA, per se, by violating the Home Improvement Act (HIA), and, if so, did the plaintiff suffer an ascertainable loss related to one or more of the claimed violations of the HIA, General Statutes § 20-418 et seq.; 5) whether the defendant is a contractor within the purview of the HIA, General Statutes § 20-419 (3); 6) whether the defendant is entitled to payment for unpaid work under the contract, the equitable doctrine of quantum meruit, or a set-off, and if so how much; and 7) what is the proper measure of damages if the plaintiff prevails on any of the foregoing counts.
Although the plaintiff argues other violations of CUTPA, the only violations set forth in the complaint arise under the HIA.
The court finds the following facts. The plaintiff purchased the property at 307 Ferry Road, Old Lyme, a basic Cape Cod style home, in December 2003, where he lived with his significant other, Susan Kelly. In 2004, the plaintiff and Kelly decided to do a major renovation and addition to the property. Among other improvements and renovations, the work included adding a full second floor and a garage. The plaintiff had to-scale plans drawn up detailing the proposed addition/renovation in August 2004. Al Bond, a local excavator and friend of the Kelly family, recommended the defendant for the framing on the project. The defendant is a registered home improvement contractor with the State of Connecticut, doing business as King Building for over twenty years. The defendant learned carpentry on the job and had no formal training. Most of the defendant's previous work consisted of much smaller renovations, such as bathroom and kitchen remodels.
The parties, including Kelly, had a meeting in mid-October 2004, to discuss the renovation/addition project. At the meeting, the defendant represented that his crew was knowledgeable, insured and trained to handle this type of project. Subsequent to the meeting, the defendant gave the plaintiff a quote over the phone for the discussed portion of the project, which the plaintiff accepted. The defendant commenced work on the project on October 28, 2004, a few days later.
On or about November 13 or 14, 2004, two weeks after the defendant's work had commenced, the defendant presented the plaintiff with a written contract. The contract provides, in material part, that the defendant is to complete the following construction work: "remove existing rear porch and house roof. Provide concrete foundation for the new garage, retaining wall, rear utility space and front porch sonatubes. Frame new root front porch, rear addition, and garage as per plan. Install trim on facia and rakes only. Shingle all new roofs." The contract further provides that the estimated time for completion for the project is ten weeks from the start date. With regard to the cost for project, the contract provides as follows: $52,425.00 in carpentry labor, $8,325.00 for concrete work, and $100/square for the shingling of the roofs. The written contract further provides that, in addition to the workmanlike performance of the work stated above, the defendant shall be responsible for providing an excavating contractor for $5,100.00. With regard to the payment terms, the contract states that the stipulated contract price shall be paid as a weekly draw based on the percentage of completion, with checks to be made payable to David C. King. In addition, the contract states that it is the entire agreement between the parties, that it may only be altered in writing, and that the homeowner has seventy-two hours after signing the agreement to cancel. The contract was never signed by either party. There was no further description of the work to be completed by the defendant at the plaintiff's residence; nor did the contract specify how changes would be addressed other than to state that any alterations to the agreement must be in writing. The contract did not contain the defendant's address or his registration identification with the State of Connecticut Department of Consumer Protection. The defendant did not give the plaintiff notice of his cancellation rights prior to commencing work on the project. Furthermore, in the text of the contract, which the defendant drafted, the defendant refers to himself as "contractor."
Also, at his deposition, the defendant referred to the excavating contractor as his subcontractor.
Neither party raised the issue of a signed contract while the work was ongoing. The roof, the original second floor and the kitchen were removed in the early stages of construction. Although the plaintiff and Kelly lived in the premises during construction and monitored the work as it progressed, the defendant was in charge of the work-site. Despite numerous changes from the original plans, the defendant never documented in writing any change orders or associated costs. During the construction, the plaintiff took in excess of 300 photographs documenting the work as it progressed. The plaintiff contracted separately, with other contractors, for other work to be completed at the residence, including the installation of an in-ground pool, the kitchen, HVAC, plumbing and electrical work. The plaintiff paid all these contractors directly and created his own account at Ring's End, a material supplier. The defendant was authorized to use this account.
By late December 2004, the plaintiff discovered that the garage, as framed by the defendant, would not accommodate the eight-foot doors contained in the building plans. Around that time, the plaintiff began to discover other deviations from the building plans which caused him concern about the defendant's workmanship. In January 2005, the relationship between the parties fell apart. As of January 19, 2005, the date of the last payment made by the plaintiff to the defendant, the plaintiff had paid $50,500 of the contracted amount of $52,425. Approximately only $2,000 remained to be paid on the contract although a lot of the work remained to be completed. Although the contract provided an additional amount for the defendant to pay for the excavating contractor and concrete work, the plaintiff paid the excavating contractor directly. The plaintiff paid each bill presented by the defendant promptly until the bill dated January 27, 2005, in the amount of $3,325 for "non-contract items." The plaintiff refused to pay the bill because some of the items detailed therein were part of the original contract. No change orders were ever presented concerning any additions to the contract price.
Some time in January 2005, although his work on the plaintiff's house was incomplete, the defendant began working on a horse barn in Marlborough. The defendant's own account records reflect that he made deposits, unrelated to the plaintiff's house project, in December and January 2005. (See Plaintiff's Exhibit 45.) After learning of the defendant's work on the Marlborough project, as of January 31, 2005, the plaintiff cut off the defendant's access to the plaintiff's Rings End account.
The defendant testified that he and his crew worked every day until January 28, 2005, when it became too cold to work outside. He further testified that all that remained to be completed on the project was the roof and the Azek trim. The plaintiff and Kelly testified that they do not recall specifically the last day that the defendant was on the job at their residence, but by the time the plaintiff cut off the defendant's access to the Ring's End account on January 31, 2005, he had not been there for some time. The defendant is not credible in his testimony as to the last day he worked on the plaintiff's house or the extent of the work he performed, either in fulfillment of the original contract, or as to the extras. The defendant did not return numerous phone calls made to him by the plaintiff during late January and early February 2005. The defendant did not bill for any extra work prior to January 27, 2005. His prior invoice, dated January 10, 2005 did not claim or detail any extra work. The January 27, 2005 invoice contains a list detailing extra work performed and number of hours worked and has the handwritten notation, "thru 1-25-05," added to the first sentence which states that the invoice is for "non-contract items." (See Plaintiff's Exhibit 7.)
Defendant's Exhibit S consists of a monthly calendar for each of the months from October 2004 through February 2005. The calendar for the months of January and February 2005, contain daily notations made by the defendant of the work and extras performed on the plaintiff's project through February 11, 2005. The list of extras on the January 27, 2005 invoice does not match up to the defendant's handwritten notes on the defendant's Exhibit S for the month of January 2005, although the defendant claims to have made his daily notations contemporaneously. The January 2005 entries that include the initials "GT" presumably relate to days the defendant worked for the plaintiff, George Taylor. There is no calendar record of the last week in January 2005, because the January calendar in the exhibit entered by the defendant had the week of January 24-28, 2005 completely cut off. In addition, although the November and December 2004 and January 2005 calendar entries contain the initials "GT" on most days shown, the February 2005 calendar contains no such initials, except for February 11, 2005, which contains the notation, "left GT."
The defendant did not produce this calendar at his deposition but brought a copy to the trial, which he offered into evidence. The defendant testified that he marked the calendar every day, noting the work performed on that day by him and his work force as well as extras. The defendant had no change order or other record of extras other than this monthly work calendar. The defendant had no records concerning the workers he hired for the job, and no time, payroll or tax records. The defendant paid his workers in cash. The defendant does have payroll records as to his one employee and workers' compensation insurance, but he did not produce these records in discovery, although requested to do so by the plaintiff.
The defendant's brief and oral argument did not attempt to reconcile these exhibits. Although the defendant did testify concerning the January 27, 2005 bill and Exhibit S to some extent, his testimony on the subjects of exactly when he stopped working and the extra work he performed was unclear at best. In addition, the defendant did testify that he performed $10,000 worth of work, in extras, before he left, for which he did not bill the plaintiff. It is unclear, however, how the defendant arrived at this amount based on the evidence presented.
The defendant testified that the contract terminated when the plaintiff cut him off from the Ring's End account on January 31, 2005. However, the parties both testified that a member of the defendant's work crew came to the house to perform some work on February 9, 2005. The plaintiff testified that after weeks of not returning his calls, the defendant finally telephoned him on February 11, 2005 and identified himself as "Dave, I quit, King." The defendant testified that he and his entire crew were on the job until January 28, 2005, but there is no evidence that any of them were on the job after January 21, 2005. Since the last week of the month of January 2005 is cut off on the defendant's January 2005 work calendar, there are no notations reflecting work for the plaintiff after January 21st until February 9th when a lone workman showed up to perform a quick fix on the roof. The defendant did not offer to produce the original or substitute a better copy of his work calendar to evidence his claim that he remained on the job until January 28, 2005. The exhibit of the "Regular/Payroll Account" of King Building sheds no light on this subject. Further, there are substantial additional inconsistencies between the defendant's testimony and exhibits concerning his work in January and February. The defendant's work calendar for February 2005 contains the notation "left GT" on February 11, 2005 when it is well established by other evidence that the last day anyone representing the defendant was on the job was February 9, 2005. Further, the notations of the work performed in defendant's Exhibit S are inconsistent with the defendant's claims that the weather prevented him from working most of January 2005. The court also rejects the other reasons offered by the defendant for not completing his work on the plaintiff's house, as not credible.
The defendant's claim that the weather conditions were too cold and snowy for him to work on the roof and exterior trim in January and February 2005 is inconsistent with his testimony that it was no problem for the plaintiff to live out the winter in a house with an unshingled roof and unfinished exterior trim. The court also notes that the exhibit the defendant sought to produce to support his view of the weather conditions in January and February 2005 did not come into evidence. However, the plaintiff's exhibit from a weather-related website, containing data concerning temperature and precipitation in January and February 2005, was admitted as a full exhibit. The plaintiff's exhibit contradicted the defendant's testimony on this issue. In addition, there was a substantial amount of work remaining beyond the roof and exterior trim, as evidenced by the testimony of other witnesses and several exhibits which undercut the defendant's claim that the roof and exterior trim were all the work that remained.
Other reasons offered by the defendant is that the plaintiff was difficult to work for and that the project was water tight when he left, with only the roof and installation of Azek trim remaining. Even if true, neither of these claims amount to a legal justification for abrogating his contract obligations.
The defendant claimed the only work remaining to be done as of January 28, 2005, was completing the roof and the Azek trim but that snow on the roof and the January weather was an impediment to completion. Contrary to the defendant's claim, there was substantial work which remained to be done inside the house, independent of the weather. At the time the defendant ceased work on the plaintiff's house, sometime in January 2005, the plaintiff's house did not have a shingled roof or completed exterior trim. The roof, as the defendant left it, consisted of lumber, tar paper and an ice and water shield called "RoofTopGuard," which the defendant improperly installed with staples.
The evidence is wholly unclear as to how the defendant arrived at the amount he claims that he is due from the plaintiff, or the specific work performed in support of his claim for damages in the amount of $13,325. Having found the testimony and evidence presented by the defendant to be inconsistent and not credible regarding the work performed by him in January 2005, the court further finds that the defendant has failed to sustain his burden of proof as to his special defenses and either count of his counterclaim. The court further finds that the plaintiff mitigated his damages by completing tasks left unfinished by the defendant and by correcting defendant's defective work by himself and Kelly, or by engaging PMB Construction, a contractor who was performing work on another house in neighborhood who the plaintiff was able to engage on a cash basis to do some work. Although there was work performed on extras, the defendant's claim for payment for extra work or unpaid work is offset by the time and money expended by the plaintiff to complete or correct the defendant's work which was markedly defective. Also, as previously stated, there is insufficient evidence to support the defendant's claim for payment for extra work completed. Based on the photographs in evidence, the testimony of the plaintiff, Kelly, Stephen Spurrell, a construction expert, and exhibits which clearly delineate when certain work was performed, there is no question that the defendant left the job with contract work unfinished and with numerous and significant defects in workmanship for which he is responsible. Given the state of the construction project at the time the defendant left it, the court rejects the defendant's claim that the plaintiff was required to allow the defendant to finish the job and make repairs to mitigate his damages.
The defendant testified that in addition to the amount billed on January 27, 2005 ($3,325), he performed an additional $10,000 worth of work, for which he did not bill. Neither the defendant's brief or oral argument specified how this amount was calculated. There is a notation on the defendant's invoice of January 27, 2005, indicating that the invoice covered extras through January 25, 2005. It is therefore a mystery to the court when an additional $10,000 worth of extra work could have been performed even assuming that the defendant remained on the job until January 28th as he claimed.
The only witnesses called by the defendant, besides himself, were the building official from Town of Old Lyme, a plumber who claims to have been verbally abused by the plaintiff, and a building official from the Town of Marlborough whose testimony focused on the height of the garage.
Spurrell testified that significant portions of work, clearly attributable to the defendant, were not built according to the plans and/or did not comply with industry standards either because they were structurally unsound, otherwise defective or architecturally displeasing. He estimated the cost of repairs as of time the defendant left the job to be $168,000. He further testified that the defects in the trim and garage footings were too costly to repair and are not included in his estimate.
I BREACH OF CONTRACT
Based on the foregoing findings, the plaintiff has established his claim of breach of contract, as set forth in count one of his complaint, by a preponderance of the evidence. Specifically, the court finds that the defendant failed to conform his work to the building plans, drawings and schematics; failed to complete the project as promised; failed to conform his work to industry standards of workmanship and quality; and failed to employ proper construction techniques. With regard to this count, the plaintiff claims both the cost of remedial construction and the diminution in value to the property at 307 Ferry Road, Old Lyme, and has, accordingly, produced expert testimony and documentary evidence as to the claimed damages. In support of his claim for damages necessary to complete the job and repair the defective work performed by the defendant, the plaintiff offered the testimony of Spurrell, an expert in the cost of construction.
As an alternative measure of damages to that presented by Spurrell, the plaintiff also offered evidence of amounts paid to another contractor (PMB) to complete or repair the defendant's contracted work and evidence quantifying the extensive time and effort expended by the plaintiff and Kelly. Spurrell estimated the cost, including labor and materials, to complete the contract and repair defective work to be $168,190. The actual out of pocket costs paid by the plaintiff to complete the job and make repairs, including the estimated value of the labor performed by himself and Kelly, amounts to $12,791 (out of pocket) plus $31,069.50 (estimate of value of work performed by homeowner) for a total of $43,860.50. The court credits the testimony of Spurrell, establishing that it is economically unfeasible to repair the problem with the height of the garage and the defects in the trim. The plaintiff also offered evidence of diminution in value to the property through the testimony of Brian Jermaine, a realtor and expert in real estate values in Old Lyme in 2005. Jermaine testified, based on a market analysis of comparable homes without such defects in 2005, that because of the noticeable defects in the trim and details inside and outside of the house, the value of the home was diminished by $100,000.
In his testimony and report which was admitted as a full exhibit, Jermaine stated that had the home been completed according to specifications in the plans, if it had been offered for sale during the second half of 2005, it would have sold for between $900,000 and $925,000 but, after reviewing the workmanship in the home, because of the lack of quality and details in the framing and the trim, it would have only sold for between $800,000 and $825,000.
"As a general rule, in awarding damages upon a breach of contract, the prevailing party is entitled to compensation which will place him in the same position he would have been in had the contract been properly performed . . . Such damages are measured as of the date of the breach . . . For a breach of a construction contract involving defective or unfinished construction, [direct] damages are measured by computing either (I) the reasonable cost of construction and completion in accordance with the contract, if this is possible and does not involve unreasonable economic waste; or (ii) the difference between the value that the product contracted for would have had and the value of the performance that has been received by the plaintiff, if construction and completion in accordance with the contract would involve unreasonable economic waste." (Citations omitted; internal quotation marks omitted.) Levesque v. D M Builders, Inc., 170 Conn. 177, 180-81, 365 A.2d 1216 (1976). See also Ambrogio v. Beaver Road Associates, 267 Conn. 148, 157-8, 836 A.2d 1183 (2003); Keppel v. Baross Builders, 7 Conn.App. 435, 438, 509 A.2d 51 (1986). Where an application of the two measures of damages rules "would result . . . in extremely different amounts, it is usually the smaller of the two amounts that will be awarded." Levesque v. D M Builders, Inc., supra, 170 Conn. 182. Furthermore, "[w]hile the costs of repair may more precisely place the injured party in the same position as full performance, it [has the potential to] create unreasonable economic waste. Thus, where an otherwise functional project is built in a manner other than as it should have been expected under the contract, the diminished value of the property will be the proper measure of damages." Rosengren, 13 Connecticut Practice Series: Connecticut Construction Law (2005) § 4:8, p. 77.
Based on the foregoing principles, although the court credits Spurrell's testimony as to the cost of repair, the cost is too high to constitute a reasonable result given that the full value of the defendant's work including materials, if performed in accordance with the contract, was approximately $126,000. While the costs of repair may more precisely place the plaintiff in the same position as full performance, it has the potential to create unreasonable economic waste. On the other hand, under all the circumstances, because the defects created by the defendant will likely exist for as long as the plaintiff owns his house, and will inevitably impact its sale price, if and whenever it is sold, the court finds that the out of pocket cost of repair and value of the plaintiff's work (if the court did accept it) does not fully compensate the plaintiff for his damages, as he clearly got far less than he bargained for. For these reasons, the fairer mode of compensation is diminution in value. Therefore, the court awards $100,000 in damages to the plaintiff as to count one for the diminished value to his property as established by expert testimony.
II BREACH OF WARRANTY
"Implicit in a construction contract is a promise by the builder that the construction project will be completed in a skillful, competent and workmanlike manner." Pasqualin v. N.E. Home Improvement, Superior Court, judicial district of New London, Docket No. CV 04 0569322 (September 8, 2005, Leuba, J.). "In addition to the express warranties found in the contract documents, the courts have often held that certain warranties are implied whenever a contractor undertakes a project. The implied warranties most often found are the warranties that: (1) materials supplied will be of good quality and free from all defects, even latent defects; (2) the construction will be done in a workmanlike manner and in accordance with good usage and accepted trade practice resulting in a merchantable structure — i.e., one that passes in the trade without objection; (3) the services of the contractor will be fit or suitable for their intended purpose; and (4) the resulting building will be in compliance with local building codes and habitable-suitable for habitation if the structure is so intended." S. Stein, Construction Law (1999) Volume 4, § 18:03[2], pg 18-16.
In count two of the complaint, the plaintiff alleges that the defendant's failure to complete the project and the defective work that was performed constitutes a breach of the express and implied warranties that the work performed under the contract be performed in a workmanlike manner, and in accordance with industry standards. Based on the foregoing findings of fact, the court finds that, by a preponderance of the evidence, the plaintiff has established this claim and that the measure of damages is the same as count one.
III NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
In count three of the complaint, the plaintiff alleges that the defendant's conduct "involved an unreasonable risk of causing substantial emotional distress and that distress might result in illness or bodily harm" and further that, "as a result of the defendant's actions, the plaintiff has sustained emotional distress." In support of this claim, the plaintiff has testified that as a result of the defendant walking off the job, and abandoning his contract with the plaintiff, the plaintiff was left to endure a harsh winter in a roofless house which was exposed in part to the elements."To establish a claim of negligent infliction of emotional distress, a plaintiff must prove the following elements: (1) the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress; (2) the plaintiff's distress was foreseeable; (3) the emotional distress was severe enough that it might result in illness or bodily harm; and (4) the defendant's conduct was the cause of the plaintiff's distress . . . Our Supreme Court continually [has] held that in order to prevail on a claim of negligent infliction of emotional distress, the plaintiff must prove that the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm." (Citations omitted; internal quotation marks omitted.) Murphy v. Lord Thompson Manor, Inc., 105 Conn.App. 546, 552-53, 938 A.2d 1269, cert. denied, 286 Conn. 914, 945 A.2d 976 (2008) (affirming a jury verdict for the plaintiff on a claim of negligent infliction of emotional distress arising out of a breach of a wedding services contract); citing Carrol v. Allstate Ins. Co., 262 Conn. 433, 815 A.2d 119 (2003) (a homeowner's negligent infliction of emotional distress claim was allowed, arising out of a false accusation of arson).
Referring to the elements of the tort of negligent infliction of emotional distress, as first stated in the seminal case of Montinieri v. Southern New England Telephone Co., 175 Conn. 337, 345, 398 A.2d 1180 (1978), in Carrol v. Allstate Ins. Co., 262 Conn. 433, 447, 815 A.2d 119 (2003), the Supreme Court stated: "[T]he Montinieri test essentially requires that the fear or distress experienced by the plaintiffs be reasonable in light of the conduct of the defendants. If such a fear were reasonable in light of the defendants' conduct, the defendants should have realized that their conduct created an unreasonable risk of causing distress, and they, therefore, properly would be held liable, Conversely, if the fear were unreasonable in light of the defendants' conduct, the defendants would not have recognized that their conduct could cause this distress and, therefore, they would not be liable."
While mere breach of contract ordinarily does not warrant recovery of emotional distress damages, under the foregoing test and based on the established facts, the plaintiff has proven by a preponderance of the evidence that the distress he suffered as a result of the defendant's actions was reasonable and foreseeable. The defendant should have realized that his conduct created an unreasonable risk of causing distress, which might result in illness or bodily harm to the plaintiff. The defendant abandoned the job in mid-winter and left the plaintiff, who was living in the house, exposed to the elements without a finished roof or exterior trim. As a direct result of the defendant's actions, the plaintiff experienced headaches, loss of sleep and extreme anxiety, which the court finds to be totally reasonable reactions under the circumstances.
"[M]ere breach of contract does not warrant recovery of either punitive or mental distress damages." (Internal quotation marks omitted.) Gardner v. St. Paul Catholic High School, Superior Court, judicial district of Waterbury, Docket No. CV 97 0143514 (November 15, 2001, Doherty, J.) (30 Conn. L. Rptr. 691). "That doesn't mean [however] that the same conduct that caused the breach of contract couldn't form the basis for a claim for infliction of emotional distress . . ." (Internal quotation marks omitted.) Thompson v. Bridgeport Hospital, Superior Court, judicial district of Fairfield, Docket No. CV 98 0352686 (November 17, 1999, Nadeau, J.) See K R Nursing Services, Inc. v. Genesis Health Ventures of Windsor, Superior Court, judicial district of Hartford, Docket No. CV 03 0830546 (February 7, 2005, Lavine, J.) (38 Conn. L. Rptr. 742).
Based on the harm suffered to the plaintiff, the court awards $10,000 as fair, just and reasonable damages for emotional distress.
IV CONNECTICUT UNFAIR TRADE PRACTICES ACT (CUTPA)
In count five of the complaint, the plaintiff alleges that the defendant's conduct violated the HIA, specifically, General Statutes § 20-429(a)(2)(3) and (6) in that the contract between the parties did not conform to the contract requirements set forth therein for home improvement contractors as defined by the HIA, and further, that the defendant failed to register or license King Building with the Department of Consumer Protection in violation of General Statutes § 20-420. The plaintiff further claims that the violations of the HIA also constitute unfair or deceptive trade practices under CUTPA, General Statutes § 42-110b(a).
Section 20-429(a), concerning required contract provisions for home improvement contractors provides, in relevant part, as follows: "(a) No home improvement contract shall be valid or enforceable against an owner unless it: . . . (2) is signed by the owner and the contractor, (3) contains the entire agreement between the owner and the contractor, . . . (6) contains a notice of the owner's cancellation rights in accordance with the provisions of chapter 740 . . . Each change in the terms and conditions of a contract shall be in writing and shall be signed by the owner and contractor . . ."
The court finds that the defendant was, at all time relevant, properly registered with the Department of Consumer Protection as a home improvement contractor. (Defendant's Exhibit L.) Since the plaintiff has not briefed or argued this issue, this aspect of the plaintiff's CUTPA claim is deemed abandoned.
Although the plaintiff argues, in his brief and at oral argument, that other conduct of the defendant constituted a violation of CUTPA, those allegations were not alleged in the complaint and are therefore not addressed by the court. "It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of his complaint." Foncello v. Amorossi, 284 Conn. 225, 233, 931 A.2d 924 (2007).
"[F]ailure 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).
"CUTPA provides that `[n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.' General Statutes § 42-110b(a). In order to enforce this prohibition, CUTPA provides a private cause of action to `[a]ny person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a [prohibited] method, act or practice . . . General Statutes § 42-110g(a) . . . Thus, in 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." (Citations omitted; internal quotation marks omitted.) Stevenson Lumber Company-Suffield v. Chase Associates, Inc., 284 Conn. 205, 213-14, 932 A.2d 401 (2007).
"Our Supreme Court has stated on several occasions that under the first requirement, the failure to comply with the Home Improvement 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." Scrivani v. Vallombroso, 99 Conn.App. 645, 652, 916 A.2d 827, cert. denied, 282 Conn. 904, 920 A.2d 309 (2007). Furthermore, our Appellate Court has stated that our law does "not . . . dispense . . . the second requirement once a violation of the Home Improvement Act is established." Id., 653. "The language `as a result of' requires a showing that the prohibited act was the proximate cause of a harm to the plaintiff . . . With regard to the requisite causal element, it is axiomatic that proximate cause is [a]n actual cause that is a substantial factor in the resulting harm . . . The question to be asked in ascertaining whether proximate cause exists is whether the harm which occurred was of the same general nature as the foreseeable risk created by the defendant's act . . ." (Citations omitted; internal quotation marks omitted.) Stevenson Lumber Company-Suffield v. Chase Associates, Inc., supra, 284 Conn. 213-14.
In addition, to be entitled to relief under CUTPA, a plaintiff must prove that he has suffered any "ascertainable loss" due to the CUTPA violation. "[T]he words `any ascertainable loss' [however] . . . do not require a plaintiff to prove a specific amount of actual damages in order to make out a prima facie case." (Internal quotation marks omitted.) Larobina v. Home Depot, USA, Inc., 76 Conn.App. 586, 593, 821 A.2d 283 (2003). "`Loss' has a broader meaning than the term `damage.' . . . For purposes of CUTPA, [a]n ascertainable loss is a deprivation, detriment, [or] injury that is capable of being discovered, observed or established." (Citation omitted.) Id.
The defendant argues strenuously that the plaintiff acted as his own general contractor, and that the defendant was, at all times, acting as a subcontractor, and therefore, pursuant to Meadows v. Higgins, 249 Conn. 155, 168, 733 A.2d 172 (1999), was not subject to the requirements of the Home Improvement Act. The court rejects this claim. General Statutes § 20-419, the definitions section of the Home Improvement Act provides, in relevant part, as follows: "(3) `Contractor' means any person who owns and operates a home improvement business or who undertakes, offers to undertake or agrees to perform any home improvement. (4) `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, dwelling place or residential rental property, or the construction, replacement, installation or improvement of driveways, swimming pools, porches, garages, roofs, siding, insulation, sunrooms, 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 . . ."
A close reading of Meadows v. Higgins reveals, that in holding that a subcontractor does not fall within the purview of the HIA, the Supreme Court focused on the plain language of the HIA and its legislative history. It noted, that nowhere in the act is there any mention of subcontractors. Referring to the legislature, the Court stated, "[the HIA's] aim was targeted only at contractors who deal directly with property owners." Meadows v. Higgins, supra, 249 Conn. 165.
In this case, the defendant, a licensed home improvement contractor, dealt directly with homeowner. The defendant contracted with the plaintiff to perform home improvement activities as defined by the act. There is no question that the defendant's direct relationship with the plaintiff and these activities brought him within the purview of the HIA. The fact that the plaintiff may have engaged in the hiring of other contractors for other aspects of the project and/or acted in some respects as a general contractor does not relieve the defendant of his responsibilities under the act. See Boucher v. McCaffrey, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 05 4003598 (June 21, 2007, Rubinow, J.) ("The clear and unambiguous language of the HIA indicates that a homeowner contracting for residential improvements is not considered to be a contractor for HIA purposes"). "[S]imply because a homeowner is knowledgeable about construction and acts in many ways as a contractor, his status as an owner is not changed . . . [T]he courts should not be obliged to draw a line and rule that some homeowners are really contractors and hence the HIA is not applicable to them, but that the Act applies to certain other homeowners." Fromm v. FAS Designer Builders, Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 97 0160094 (March 16, 1998, Lewis, J.) (21 Conn. L. Rptr. 494). See also Santos Construction, Inc. v. Savino, Superior Court, judicial district of New Haven, Docket No. CV 03 0481020 (June 29, 2004, Hadden, J.) (37 Conn. L. Rptr. 250) (facts of case did not make homeowner a "contractor" despite his entering into several contracts for improvements to his home, therefore plaintiff who performed work on home was not a "subcontractor" and the HIA applied).
The court finds the plaintiff has proved, by a preponderance of the evidence, that the defendant has violated § 20-429(a)(2)(3) and (6) of the Home Improvement Act, a per se violation of CUTPA, in accordance with the provisions of § 20-427(c). Further, the plaintiff has also proved, by a preponderance of the evidence, that he has suffered an ascertainable loss in the amount of $100,000 in diminished value to his home and $10,000 in non-economic damages for mental suffering, specifically as a result of the defendant's failure to obtain a signed agreement that contained his entire agreement with the plaintiff and his failure to document changes to the contract in writing. The disagreements of the parties as to what items were and were not part of the contract and what constituted changes in the terms of the agreement were substantial factors contributing to and resulting in the disintegration of their relationship and damage to the plaintiff. The failure to conclude a signed contract set the stage for the failure of the contract by leaving the relationship undefined and the obligations of the defendant unclear. Since the HIA places the obligation for obtaining a signed contract, which contains the entire agreement between the contractor and the owner, on the contractor the defendant must bear the responsibility for this failure which resulted in significant damage to the plaintiff.
V SPECIAL DEFENSES, SET-OFF AND COUNTERCLAIM
The court finds that the defendant has failed to meet his burden of proof with respect to any aspect of these claims.
CONCLUSION
For all the foregoing reasons, the court finds in favor of the plaintiff as specifically set forth herein, and awards damages in the total amount of $110,000. A further hearing is to be held on the issues of punitive damages, attorneys fees and costs in accordance with the provisions of General Statutes § 42-110g.
Although the bill for plaintiff's attorneys fees and costs came into evidence without objection as a full exhibit, counsel for the defendant indicated that he may wish to take issue with particular itemized fees and costs. Since nothing was raised prior to the close of evidence, the hearing will afford an opportunity to address this issue.