Opinion
UWYCV166032040S
05-10-2017
Jillian Zampaglione v. James Dempsey
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
HON RUPAL SHAH, J.
The plaintiff, Jillian Zampaglione, brings this action in five counts against the defendant, James Dempsey. The plaintiff brings the following claims in connection with her contract for home improvement with the defendant: (1) breach of contract; (2) fraud; (3) unjust enrichment; (4) violation of the Connecticut Home Improvement Act, General Statutes § 20-418 et seq.; and (5) violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq.
The defendant was defaulted for failure to plead on January 23, 2017. The matter was heard by the court on May 5, 2017. The court received certain documents into evidence and heard the testimony of the plaintiff. The defendant received notice of the hearing on March 16, 2017, but failed to appear.
FINDINGS OF FACT
Based on the allegations of the complaint, the documents submitted into evidence and the testimony heard at trial, the court makes the following findings of fact:
1. On September 10, 2014, the plaintiff entered into a written contract with the defendant for home improvement services (Contract) at the plaintiff's home at 435 West Hill Road in New Hartford, CT. 2. At the time of the execution of the Contract, the defendant represented to the plaintiff that he was a fully licensed and insured home improvement contractor. 3. In fact, the defendant had not been licensed since November 30, 2012, and had not been insured since January of 2013, in violation of the Connecticut Home Improvement Act (CHIA). 4. Despite his non-compliance with CHIA, the defendant began a series of substantial home remodeling projects on the plaintiff's home. In the interior of the home, the defendant agreed to removing sheetrock and insulation, inspecting the framing and reinstalling insulation and sheetrock in three bedrooms, hallway and bathroom; installing a Jacuzzi tub in the bathroom and appropriate plumbing and electrical; installing lighting in the kitchen, installing granite countertops in the kitchen, installing a stove pipe in the kitchen and removing and replacing two windows. On the exterior of the home, the defendant agreed to finishing the cement board, skim coating the entire exterior of the home, spraying on rubber siding, repairing the chimney, installing a bulkhead, basement and front door to the home; framing and constructing a front porch; framing and constructing a two-story, three-bay garage with a fully functional kitchen and bathroom and 25, 000 btu electric forced air unit; and repairing the roof on the home with a matching roof over the aforementioned garage. 5. In the Contract, the plaintiff agreed to pay the defendant a total of $70,900.00 to complete the home remodeling and renovation as contemplated by the Contract. In accordance with the Contract, the plaintiff agreed to pay the defendant an initial amount of $28,672.56 to cover the cost of parts and equipment, and an additional $10,000.00 every week until the total $70,000.00 was reached. The Contract allowed for the additional cost of parts and equipment for the countertops, stove pipe and garage stairs. 6. The plaintiff paid an initial amount of $28,672.56 to the defendant by certified bank check, in accordance with the terms of the Contract. Thereafter, the defendant began work on the above mentioned projects on September 11, 2014. 7. Additional costs were accrued in the amount of $11,180.00, increasing the total cost of the project to $82,080.00. The plaintiff and the defendant agreed to this modification to the contract's original terms by email on October 18, 2014. 8. In accordance with the Contract, the plaintiff submitted certified bank checks in the amounts of $10,000.00 on September 18, 2014 and September 26, 2014. On October 4, 2014, a check for $11,380.00 was submitted to the defendant to cover that scheduled installment, as well as a portion of the additional costs. 9. On October 18, 2014, the defendant sent an email to the plaintiff that there had been a problem with the roof and asked that an additional $10,000.00 be paid despite previous agreement to delay payment. The plaintiff agreed and submitted an installment check of $10,000.00 on October 22, 2014. 10. On November 3, 2014, the defendant again contacted the plaintiff and orally indicated that he had purchased a car and would need the remaining $12,027.44 in order to continue work on the plaintiff's home. The plaintiff expressed concern with delays and the amount of work yet to be started and indicated by text message and email that further payment would not be made at this time. 11. On November 6, 2014, the defendant contacted the plaintiff by email and requested a two-week pause in construction so that he could acquire funds through another contracting job in order to satisfy his financial obligations. The plaintiff agreed to this by email as long as the defendant finished installing doors and repairing the roof before he left for the other job. 12. On November 6, 2014, in a text message conversation, the defendant again asked for a two-week delay in construction. The plaintiff expressed concern over further delay. 13. On this same date, the defendant proceeded to remove his tools and dumpster from the premises despite not yet completing work on the roof as previously agreed. 14. On November 8, 2014, in a text message conversation, the plaintiff inquired as to why the defendant had not yet arrived at the plaintiff's home to complete work on the roof. The defendant indicated that he would complete the contracted work but indicated that he would require the remaining $12,000.00, after which he would commence work again. 15. On November 15, 2014, the plaintiff and the defendant met in person at the plaintiff's home to discuss arrangements for completion of the contracted work. The defendant again asked for the remaining $12,000.00 and would return in two weeks to finish the work. The defendant indicated that he had made a bad decision in purchasing a car and did intend on finishing work on the plaintiff's home. 16. On August 1, 2014, the defendant had indicated by email that interior work would take approximately two weeks to complete, at which point the defendant would commence work on the substantial exterior projects. Notwithstanding the defendant's professional estimate, work slowed and remodeling on the interior of the house continued, unfinished, from September 11, 2014, through November 6, 2014. 17. As of November 6, 2014, exterior work had not yet been commenced despite the plaintiff having paid $70,052.56 of the $82,080.00 agreed upon. 18. As of November 6, 2014, the defendant has left unfinished the following interior projects: one window was installed incorrectly, causing it to break; in the bathroom, hallway and one bedroom, the defendant failed to replace ceiling supports; and the defendant failed to install electrical for a Jacuzzi tub. Additionally, the defendant neglected to commence the following projects: repairing heater covers, replacing a window and installing stove pipe in the kitchen; and installing a wood stove in the living room. 19. The defendant has failed to commence any of the exterior work on the home, except for the installation of two doors and chimney repairs. The construction of a front porch, siding of the entire house, and most significantly, construction of the two-story garage never commenced beyond initial sketches of the agreed-upon construction. 20. As a result of the defendant's near complete failure to complete agreed-upon terms of the Contract, the plaintiff was left with a home in a state of significant disrepair and, in some cases, dangerous for its inhabitants and ill prepared for the coming winter months. 21. The plaintiff experienced significant hardship and distress as a result of the defendant's continued failure to meet expected deadlines and consistent attempts to renegotiate terms of the Contract to suit the defendant's own financial needs. 22. The plaintiff is now in a position where she is unable to complete the majority of the home remodeling projects as substantial funds were expended with little to no performance on the part of the defendant. The plaintiff paid the defendant a total of $70,052.56 to the defendant. 23. The plaintiff's home remains unfinished and the cost of hiring a new contractor exceeds $50,000. The plaintiff also incurred costs in the amount of $5,000 to fix work that the defendant had done incorrectly.
LEGAL STANDARD
" A default admits the material facts that constitute a cause of action . . . and entry of default, when appropriately made, conclusively determines the liability of a defendant . . . If the allegations of the plaintiff's complaint are sufficient on their face to make out a valid claim for the relief requested, the plaintiff, on the entry of a default against the defendant, need not offer evidence to support those allegations . . . Therefore, the only issue before the court following a default is the determination of damages." (Emphasis in original; internal quotation marks omitted.) Whitaker v. Taylor, 99 Conn.App. 719, 725-26, 916 A.2d 834 (2007). The burden of proof for an award of more than nominal damages is a preponderance of the evidence. Id., 735.
" '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.' . . . Chiulli v. Zola, 97 Conn.App. 699, 706-07, 905 A.2d 1236 (2006)." Sullivan v. Thorndike, 104 Conn.App. 297, 303, 934 A.2d 827 (2007), cert. denied, 285 Conn. 907, 942 A.2d 415 (2008).
" [D]amages resulting from a breach of contract may be divided into those which flow naturally and usually from the breach itself, or general damages, and those which do not naturally and usually flow from such a breach, but did in this case, or special or consequential damages. As to the former, the parties need not actually have considered the possibility of their occurrence, as long as they may fairly be supposed to have considered them, while, as to the latter, to be recoverable, they must meet the requirements of causation, certainty, and foreseeability, that is, be such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract. Stated another way, when a defendant has reason to know, before entering into the contract in question, of facts indicating that particular, though unusual, damages will follow or may follow the defendant's failure to perform its agreement, the defendant is liable for such damages." (Internal quotation marks omitted.) Milford v. Coppola Construction Co., Inc., 93 Conn.App. 704, 714-15, 891 A.2d 31 (2006).
" 'It is axiomatic that the sum of damages awarded as compensation in a breach of contract action should place the injured party in the same position he would have been in had the contract been performed . . . The injured party, however, is entitled to retain nothing in excess of that sum which compensates him for the loss of his bargain . . . Guarding against excessive compensation, the law of contract damages limits the injured party to damages based on his actual loss caused by the breach . . . The concept of actual loss accounts for the possibility that the breach itself may result in a savings of some cost that the injured party would have incurred if he had had to perform . . . In such circumstances, the amount of the cost saved will be credited in favor of the wrongdoer . . . that is, subtracted from the loss . . . caused by the breach in calculating [the injured party's] damages . . . It is on this ground that . . . when an owner receives a defective or incomplete building, any part of the price that is as yet unpaid is deducted from the cost of completion that is awarded to him . . . Otherwise, the owner would be placed in a better position than full performance would have put him, thereby doubly compensating him for the injury occasioned by the breach.' . . . Argentinis v. Gould, 219 Conn. 151, 157-58, 592 A.2d 378 (1991)." Hees v. Burke Construction, Inc., 290 Conn. 1, 7-8, 961 A.2d 373 (2009). " [I]n the absence of some legal justification for not doing so, the [court] should . . . [subtract] any unpaid amount remaining on the contract from the extra costs incurred [to complete and repair the work] by the plaintiffs, so as to avoid placing the plaintiffs in a better position than they would have been in had the contract been fully performed." Id., 8-9.
" [I]t is well settled that the essential elements of fraud are: (1) a false representation was made as a statement of fact; (2) it was untrue and known to be untrue by the party making it; (3) it was made to induce the other party to act upon it; and (4) the other party did so act upon that false representation to his injury." (Internal quotation marks omitted.) Leonard v. Comm'r of Revenue Servs., 264 Conn. 286, 296, 823 A.2d 1184 (2003). " All of these ingredients must be found to exist; and the absence of any one of them is fatal to a recovery . . . Additionally, [t]he party asserting such a cause of action must prove the existence of the first three of [the] elements by a standard higher than the usual fair preponderance of the evidence, which higher standard [is] described as clear and satisfactory or clear, precise and unequivocal." (Internal quotation marks omitted.) Harold Cohn & Co. v. Harco International, LLC, 72 Conn.App. 43, 51, 804 A.2d 218, cert. denied, 262 Conn. 903, 810 A.2d 269 (2002). " Generally, misrepresentations must relate to an existing or past fact. A promise to do something in the future is not actionable unless the promise is coupled with a present intention not to fulfill the promise." (Internal quotation marks omitted.) New Horizon Financial Services, L.L.C. v. First Financial Equities, Inc., 175 F.Supp.2d 348, 352-53 (D.Conn. 2001).
" In determining whether a practice violates CUTPA, we are guided by the criteria set out in the Federal Trade Commission's so-called cigarette rule: '(1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise in other words, it is within at least the penumbra of some common-law, statutory, or other established concept of fairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers, [competitors or other businesspersons].' . . . Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 155, 881 A.2d 937 (2005), cert. denied, 547 U.S. 1111, 126 S.Ct. 1913, 164 L.Ed.2d 664 (2006). 'All three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three.' . . . Id." Scrivani v. Vallombroso, 99 Conn.App. 645, 648-49, 916 A.2d 827 (upholding trial court's finding that home improvement contractor violated CUTPA), cert. denied, 282 Conn. 904, 920 A.2d 309 (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(b), which provides that any violation of the Home Improvement Act is deemed to be an unfair or deceptive trade practice.' A. Secondino & Son, Inc. v. LoRicco, [215 Conn. 336, 343, 576 A.2d 464 (1990)]; see also Woronecki v. Trappe, 228 Conn. 574, 579, 637 A.2d 783 (1994); see Jacques All Trades Corp. v. Brown, [42 Conn.App. 124, 130, 679 A.2d 27 (1996), aff'd, 240 Conn. 654, 692 A.2d 809 (1997)]." Scrivani v. Vallombroso, supra, 99 Conn.App. 652 (further holding that plaintiff must still prove that damages were caused by the violation of the Home Improvement Act to recover under CUTPA).
" The plaintiff who establishes CUTPA liability has access to a remedy far more comprehensive than simply damages recoverable under common law. The ability to recover both attorneys fees; General Statutes § 42-110g(d); and punitive damages; General Statutes § 42-110g(a); enhances the private CUTPA remedy and serves to encourage private CUTPA litigation." (Footnote omitted.) Hinchliffe v. American Motors Corp., 184 Conn. 607, 617, 440 A.2d 810 (1981). Section § 42-110g(a) provides: " Any person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42-110b, may bring an action in the judicial district in which the plaintiff or defendant resides or has his principal place of business or is doing business, to recover actual damages. Proof of public interest or public injury shall not be required in any action brought under this section. The court may, in its discretion, award punitive damages and may provide such equitable relief as it deems necessary or proper." Section § 42-110g(d) provides in relevant part: " In any action brought by a person under this section, the court may award, to the plaintiff, in addition to the relief provided in this section, costs and reasonable attorneys fees based on the work reasonably performed by an attorney and not on the amount of recovery."
" Awarding punitive damages and attorneys fees under CUTPA is discretionary; General Statutes § 42-110g(a) and (d) . . . In order to award punitive or exemplary damages, evidence must reveal a reckless indifference to the rights of others or an intentional and wanton violation of those rights . . . In fact, the flavor of the basic requirement to justify an award of punitive damages is described in terms of wanton and malicious injury, evil motive and violence." (Footnote omitted; internal quotation marks omitted.) Ulbrich v. Groth, 310 Conn. 375, 446, 78 A.3d 76 (2013). " While the CUTPA statutes do not provide a method for determining punitive damages, courts generally award punitive damages in amounts equal to actual damages or multiples of the actual damages." (Internal quotation marks omitted.) Advanced Financial Services, Inc. v. Associated Appraisal Services, Inc., 79 Conn.App. 22, 34, 830 A.2d 240 (2003).
" The elements of unjust enrichment are well established. Plaintiffs seeking recovery for unjust enrichment must prove: '(1) that the defendants were benefitted, (2) that the defendants unjustly did not pay the plaintiffs for the benefit, and (3) that the failure of payment was to the plaintiffs' detriment.' Bolmer v. Kocet, 6 Conn.App. 595, 612-13, 507 A.2d 129 (1986)." Ayotte Bros. Construction Co. v. Finney, 42 Conn.App. 578, 581, 680 A.2d 330 (1996). " '[T]he measure of damages in an unjust enrichment case ordinarily is not the loss to the plaintiff but the benefit to the defendant.' Hartford Whalers Hockey Club v. Uniroyal Goodrich Tire Co., [231 Conn. 276, 285, 649 A.2d 518 (1994)]." Noyes v. Antiques at Pompey Hollow, LLC, 144 Conn.App. 582, 593, 73 A.3d 794 (2013).
" Although the 'lack of a remedy under the contract is a precondition for recovery based upon unjust enrichment'; Gagne v. Vaccaro, 255 Conn. 390, 401, 766 A.2d 416 (2001), on appeal after remand, 80 Conn.App. 436, 835 A.2d 491 (2003), cert. denied, 268 Conn. 920, 846 A.2d 881 (2004); the existence of a contract, in itself, does not preclude equitable relief which is not inconsistent with the contract. See Polverari v. Peatt, 29 Conn.App. 191, 200, 614 A.2d 484, cert. denied, 224 Conn. 913, 617 A.2d 166 (1992)." Rent-A-PC, Inc. v. Rental Management, Inc., 96 Conn.App. 600, 605-06, 901 A.2d 720 (2006).
DISCUSSION
The court finds that the plaintiff has pled sufficient facts to make out a valid claim against the defendant for breach of contract, fraud and violations of CHIA and CUTPA. The court does not find for the plaintiff on the unjust enrichment claim since the court has found for the plaintiff on the breach of contract claim. See Gagne v. Vaccaro, supra, 255 Conn. 401.
The plaintiff presented sufficient evidence of the actual damages and consequential damages she incurred as a result of the defendant's actions. In addition, the plaintiff is awarded punitive damages and attorneys fees under the CUTPA and CHIA counts.
Accordingly, the court enters judgment for the plaintiff and awards the plaintiff the following:
1. For Count I, fraud, damages are awarded in the amount of $60,000;
2. For Count II, breach of contract, actual damages are awarded in the amount of $58,961; and
3. For Counts IV and V, CHIA and CUTPA, punitive damages are awarded in the amount of $117,922, and attorneys fees and costs are awarded in the amount of $2,500.
CONCLUSION
Judgment shall enter as set forth above. So ordered.