Opinion
No. CV 05-4003534 S
February 23, 2007
MEMORANDUM OF DECISION
The plaintiff homeowners ("Blacker") have brought a three (3) count complaint against a home remodeling/building contractor ("Crapo") for breach of contract, violation of the Connecticut Unfair Trade Practices Act (CUTPA), and trespass. The defendant has denied the material allegations of the plaintiff's complaint and has asserted a "setoff/counterclaim" in which he has pled Blacker's unilateral breach of contract which caused him (Crapo) damages he seeks to recover. The case was tried by the court on January 18 and 23, 2007. The court heard testimony, weighed the credibility of the witnesses, and has examined both the exhibits (to include a deposition transcript) and the applicable law.
The parties offered diverse versions regarding the dates on which events occurred, the way in which their agreement was breached, and their intent. What is not disputed is that Blacker hired Crapo to add a sunroom with screened windows to his home, to replace some siding, and to install certain windows and doors. It is not disputed that, when the parties first met in mid-April of 2004, Blacker indicated he wanted the work to start that June, nor is it disputed that, approximately one week after the signing of the contract in June of 2004, the Blackers paid a deposit of $23,000 on an agreed price of $84,758.00. It is not disputed that Crapo specifically requested the deposit be made by three (3) separate checks in the amounts of $8,000, $8,000, and $7,000. It is additionally not disputed that those checks — all of which were dated June 23, 2004 — were cashed separately by Crapo at the Blackers' bank — the first on June 23, 2004, the second on June 24, 2004, and the third on June 29, 2004 (despite Crapo having a business account at another bank in the same town). Nor is it disputed that, on each such occasion, Crapo took the amount received to his home — as opposed to depositing it in an account of his own. It is agreed that, on May 3, 2005 — when none of the work under the June 2004, agreement (Plaintiff's Exhibit #1) had yet commenced, the parties executed an "Additional Work Authorization/Change Order" (Plaintiff's Exhibit #3) which called for the power washing and staining of the home, the installation and painting of new garage doors, the removal of an existing deck, and the installation of new gable end vents. Finally, it is agreed that no work on the plaintiffs' property was undertaken until Monday, July 18, 2005, when Crapo and his employee (Ryan Basso) appeared at the Blacker home without prior notice and, as per Crapo's directive to Basso, began ripping shingles off the roof. Mr. Blacker had, some day prior to July 18, 2004, consulted an attorney with regard to Crapo's failure to commence work under the June 2004, contract and Crapo's retention of the $23,000 deposit. Counsel for the Blackers had mailed to Crapo — both by regular and certified mail — a letter dated July 15, 2004, stating: a) the Blackers considered him to have breached their agreement; b) the Blackers were demanding the return of the deposit; and c) there would be no further communications between the parties and any entry by Crapo onto the Blackers' property would be considered a trespass warranting further action. The deposit has not yet been returned.
These change orders are also provided on p. 2 of Plaintiff's Exhibit #1 which is signed by the Blackers and dated May 3, 2005. The defendant's signature does not appear thereon nor does there appear any reference to price. It specifically references the June 12, 2004 contract. Curiously, however, Plaintiff's Exhibit #3 — also captioned "Additional Work Authorization/Change Order" — is signed by Crapo and both Blackers on May 3, 2005, calls for the construction of a new deck and the upgrading of shingles, makes no reference to the June 12, 2004, agreement but does provide that, to a "previous contract amount of $84,758" is added $18,928 for the shingle upgrade and construction of a new deck. Thus the total amount of all work then to be done by Crapo was $103,686.00.
Plaintiff's Exhibit #12 pp. 10 (l. 9-11, 23-25); 12 (l. 21-23), p. 23 (l. 18-20).
The parties' credibility is largely determinative of the court's findings and Order. Mr. Blacker (who dealt primarily with Crapo) is a quiet, unassuming, soft-spoken man who demonstrated good recall of the events giving rise to his claim. When his memory failed, documents refreshed it. He presented as honest, guileless, and patient to a fault. While Mr. Blacker responded naturally and credibly to questions, Mr. Crapo was evasive and not at all credible. He frequently responded to questions only after sometimes uncomfortably long pauses accompanied by side glances at the court and often with contradictory responses that began with such disclaimers as, "You've got to understand that . . ." "It's difficult to explain but . . ." "I don't know if I can answer that question . . ." etc. He presented as untruthful, evasive, and manipulative of both facts and people. Few of his explanations for his conduct were believable. For example, he concedes he received a $23,000 deposit from Mr. Blacker a week or so after the Blackers signed the June 2004, contract and that he specifically requested that amount be in three (3) checks. Plaintiff's Exhibit #7. His explanation for not wanting to accept a single check for $23,000 was that he would "cash checks as received" and would use the funds to satisfy the needs of both his business and his family. He testified this was a "safer" practice than presenting a single check for $23,000 and walking away from the bank with $23,000 in cash on his person. That, however, totally ignores what he as a business person with eighteen (18) years experience surely knew — which is that he could have presented a check for $23,000 to his own bank in the same town in which the Blackers had their account, taken away in cash whatever amount he desired, and deposited the remainder. Asked why he did not do that, he had no response. Clearly, he wanted to avoid presenting $23,000 to his own bank whether by way of a single check or three (3) checks. The three (3) checks were all written on June 23, 2004, and all of them contained in the memo portion a legend reading "For Work on Home." His denial his actions had anything to do with his avoidance of tax obligations is simply not believable when one considers his implausible explanation, the fact that he has yet to file his 2005 federal tax return, that his 2003 federal return declared gross business receipts of $70,651, business expenses of $44,721, and net profits of $16,562 (Plaintiff's Exhibit #15, Schedule C), and that his 2004 federal return declared gross business income of $68,022, business expenses of $36,858, and net profits of $20,786 (Plaintiff's Exhibit #14, Schedule C). Both his 2003 and 2004 returns were prepared and filed on March 20, 2006. None of this is inconsistent with Crapo's hiring of Ryan Basso to work odd jobs with him and his paying of Basso in cash without withholding any amount for social security or medicare purposes. Clearly Crapo's preference was for dealing in cash which he took in small amounts in an effort to avoid his obligations under both state and federal law.
In fact he did not even cash the three checks on the same day. He made three (3) trips to the Blackers' bank, cashing one (1) check for $8,000 on June 23, 2004, a second check for $8,000 on June 24, 2004, and the third check for $7,000 on June 29, 2004. Thus, he had the full benefit of the plaintiffs' deposit for more than a year before beginning any work on their home.
Crapo's lack of honesty so permeated his testimony that the court disbelieves all of his testimony regarding the date of the original contract, that it was "O.K." with the Blackers that he not begin work on their home until July 18, 2005, or his explanation of different "start" and "completion" dates on various versions of the contract and change orders. He was unable to point to any contracts he had with other customers, which contracts he had entered into prior to his contract with the Blackers and which called for work to be performed before he committed to beginning the work for the Blackers. The court believes, as the Blackers testified, the contract was executed on June 12, 2004. Plaintiff's Exhibit #1 bears the original signature of Mr. and Mrs. Blacker and of Crapo on that date. The contract called for work to start in August of 2004 but that notation was at some point in time struck and added — through use of an entirely different ballpoint pen — was a start date of "On or around June 15th at the soonest" and "July 1st 2005." Those notations were accomplished later than the contract signed on June 12, 2004, that contract containing the Blackers' signature in blue fountain pen and Crapo's signature in black ballpoint ink. No other explanation exists for the added start date of July 1, 2005. Mr. Blacker's testimony was that he made known he wanted the work started as soon as possible with most of it completed before winter — an entirely reasonable expectation given the date and amount of the deposit required. The court rejects any suggestion that Plaintiff's Exhibit #2 was the original agreement. Nowhere on page 1 of that exhibit is there any signature by the Blackers despite that page calling for a deposit of $23,000 on a contract price of $84,758.00 and nowhere on page 2 of Plaintiff's Exhibit #2 is there either any signature by Crapo or any price for the additional work (the power washing and staining of the house, the installation of new garage doors and gable end vents, and removal of the existing deck).
June 12, 2004, was a Saturday when Mrs. Blacker, a school aide would have been at home to sign the contract — as she did.
The contract dated June 12, 2004, did not provide the Notice of Cancellation required by this state's Home Solicitation Sales Act. This was a sale of consumer goods and services and was, as provided by C.G.S. § 42-134a(a), a "home solicitation sale" requiring a Notice of Cancellation as dictated by C.G.S. § 42-135a(2). The two-line notice provided in the shaded section of Plaintiff's Exhibit #1 did not advise the Blackers that which they were required to execute and to deliver to Crapo if they wished to cancel nor did it advise them that there would be a full return of their deposit upon timely cancellation. Mr. Blacker's testimony that no Notice of Cancellation was left with him in June of 2004 was also a violation of the statute.
Despite the execution of the change order in May of 2005, no work had yet begun when Blacker saw his attorney on July 15, 2005. The court finds, Crapo's protestation to the contrary, that Crapo received counsel's letter by regular mail either on Saturday, July 16, 2005 (when Blacker received his copy) or early on the morning of Monday, July 18, 2005. She finds no other explanation for his sudden appearance at the Blacker home (without any prior notice to them) on Monday, July 18, 2005, to start the job — one week prior to his plan to travel to Latvia the week of July 25th to attend the wedding of his wife's sister. That he received the letter of the 15th that weekend was corroborated by the deposition testimony of Basso (his co-worker) who testified Crapo told him more than once before arriving at the Blacker residence on Monday the 18th that, immediately upon arrival, they were to get on the roof and start ripping off shingles because he (Crapo) felt the homeowner wanted to back out of the contract and that, once the job was started, Blacker could no longer do that. Plaintiff's Exhibit #12, pp. 10-11, 15. When Blacker came out of the house on the 18th telling them to get off the roof and the property and that he (Blacker) had seen an attorney who had written him a letter, Crapo and Basso continued to work. Upon Blacker's call to police, police arrived to find the men on the roof and Blacker yelling at them to get down. Crapo denied getting a letter from Blacker's counsel and said he had remained at work after Blacker told him to stop because there was "weather coming in" and he had a "job to do." Plaintiff's Exhibit #5. Blacker told the officer he did not want Crapo arrested but that he was not to continue ripping shingles and was only to cover the then unprotected roof area he had opened up before leaving. Two (2) hours later, Blacker made another call to the police to advise police Crapo was still working on the roof and had removed a lot more shingles. Id. The following day, Blacker called the police again to tell them Crapo had not left on the 18th "until dark" and had left on his property equipment which the reporting officer had noted was still on Crapo's truck when the officer left on the 18th. Plaintiff's Exhibit #6. Crapo came to the home when he did knowing Blacker believed him in breach of the contract and, once convinced Blacker's patience had finally been exhausted, Crapo's refusal to stop work was an effort to "save" a contract Blacker no longer wished to honor. Crapo and his wife testified they did not receive the letter sent by certified mail until Crapo called his wife on the 18th to tell her to pick up the letter at the post office. That is not believable in view of his conduct that day, his failure to give Blacker prior notice he intended to start the job on the 18th, his instructions to Basso, his ignoring both Blacker's and the police officer's instruction to leave the property, and the fact that he was going to be out of the country the following week. Crapo left the piles of debris on the lawn. Crapo testified he did not rent a dumpster on the 18th because it was easier to unload the material onto his truck which could have been — but in fact was not — parked in the driveway as he had done on other jobs. The fact the Blackers had a circular drive (as opposed to a side driveway) should have suggested the need for a dumpster if in fact Crapo had intended to remain on site until the work was completed.
It is also instructional that Crapo consistently testified the Blacker job — given the change order of May 3, 2005 — would take eleven (11) weeks to complete. He, thus, could not have completed the job by August of 2005 (See Plaintiff's Exhibit #1) or September 30, 2005 (See Plaintiff's Exhibit #2), given his plan to be out of the country for a week.
He testified he called the Blackers on Friday the 15th and asked that they call him. The Blackers did not do so. Crapo testified he did not leave a message telling them he intended to start on Monday the 18th but had no explanation for not doing what should have been obvious.
The defendant has argued — correctly — that, in building contracts, time is ordinarily not of the essence and cites to Miller v. Bourgoin, 28 Conn.App. 491, 498 (1992). Miller, however, goes on to state:
The resolution of whether it is part of the contract involves a question of the intent of the parties, to be determined, as a matter of fact, from the language of the contract, the circumstances attending its negotiation, and the conduct of the parties in relation thereto.
It is nevertheless so that, even in the absence of a specified time within which to comply ( not here the case), the law presumes performance shall be within a reasonable time. Christophersen v. Blount, 216 Conn. 509, 513 (1990). What is a "reasonable" time is a question of fact. Id. The test for reasonableness is external — not subjective; that is, the question is how would a person of ordinary prudence in such a situation have behaved, not how did the defendant in fact behave. Aubin v. Miller, 64 Conn.App. 781, 787 (2001). So too is the materiality of a contractual breach a question of fact. 669 Atlantic Street Associates v. Atlantic-Rockland Stamford Associates, 43 Conn.App. 113, 128 (1996), certification denied 239 Conn. 949 (1996), certification denied 239 Conn. 950 (1996). Factors to be considered in determining whether a party's failure to render performance is a "material" breach of contract includes: a) the extent to which the injured party will be deprived of the benefit which he reasonably expected; b) the extent to which the injured party can be adequately compensated for the part of the benefit of which he will be deprived; c) the extent to which the party failing to perform will suffer forfeiture; d) the likelihood that the party failing to perform will cure his failure; and d) the extent to which the behavior of the party failing to perform comports with standards of good faith and fair dealing. Id., at 126, citing to 2 Restatement (Second), Contracts § 241 (1981).
When Blacker signed the original contract in June of 2004, it was his express intent the bulk of the work under that agreement be completed before winter of that year — and that was known by Crapo. See Plaintiff's Exhibit #1 which was executed by all parties and indicated "August 2004" as the start date. This court finds that date was struck by Crapo after the parties agreed on the change order of May 3, 2005; it was then that a "June-July 2005" start date and an "August 2005" completion date were inserted — and those changes were made because no work had yet begun. The plaintiffs had every reason to expect that, having paid the defendant $23,000.00 in June of 2004, the work would have been begun within a reasonable time thereafter and the bulk of it completed before that winter. Crapo's trial explanation that he could not have begun work at all in 2004 because of his commitments to other clients was, as the evidence showed with reference to those other contracts, both untruthful and unreasonable given his retention of the deposit. To suggest — as the defendant did at trial — that it was somehow appropriate that work not commence before July 18, 2005, because the plaintiffs didn't pay the deposit until a week after signing the agreement of June 12, 2004, is patently absurd and devoid of any business scruples. The Blackers can only be made whole as a result of Crapo's breach of conduct by returning to them the full amount of the deposit. Applying any objective standard the time within which to cure had long since expired, by July 18, 2005, and forfeiture of this sum under these circumstances is required. Crapo's breach was, under all of these circumstances, a material breach.
There was no evidence Crapo ever told the plaintiffs either the cost of the work or the deposit required until the very day the agreement was signed. Mr. Blacker said that, between April and June of 2004, he kept asking the defendant how much the work would cost but got no answer before the date of the signing. That is consistent with the defendant's conduct and entirely credible.
The Connecticut Unfair Trade Practices Act (CUTPA) prohibits "unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." C.G.S. § 42-110b(a). In determining whether a practice violates CUTPA, our Supreme Court has adopted the test set out by the Federal Trade Commission for determining when a practice is unfair: (1) whether, without necessarily having been previously considered unlawful, the practice offends public policy as established by statutes, the common law, or otherwise; (2) whether it is immoral, unethical, oppressive, or unscrupulous; or (3) whether it causes substantial injury to consumers. Janusauskas v. Fichman, 264 Conn. 796, 808 (2003), citing to Macomber v. Travelers Property Casualty Corp., 261 Conn. 620, 644 (2002). CUTPA provides a wide range of legal and equitable remedies; in fact § 42-110g expressly contemplates plaintiffs' judgments which do not include an award of money damages. It provides the ability to award both attorneys fees (§ 42-110g[a]) and punitive damages (§ 42-110g[a]). The same facts that establish a breach of contract claim may establish a CUTPA violation. Lester v. Resort Camplands International, Inc., 27 Conn.App. 59, 71 (1992). Usually, however, there is either some kind of fraudulent behavior or aggravating circumstances. That requirement is satisfied here in a variety of ways. The defendant's breach of contract was accompanied by conduct which deceived the plaintiffs into believing the work would be done on a time schedule acceptable to them at the contract signing when it didn't begin until thirteen (13) months later; it has additionally deprived them of monies still being withheld when they have had to hire another contractor to complete the roof the defendant opened up despite the homeowner's protestations. The initial contact between the parties came about by way of the plaintiff's responding to Crapo's advertisement; the subject transaction was a "home solicitation sale" as defined by C.G.S. § 42-134a(a) and is governed by this state's Home Solicitation Sales Act. Crapo's failure to furnish the Blackers a Notice of Cancellation which comports with § 42-135a(2) was in violation of that legislation. This transaction is also subject to the provisions of the Home Improvement Act (§ 20-418 et seq.) and the agreement between the parties was a "home improvement contract" under C.G.S. § 20-419(5). The defendant violated this Act when he failed to return the Blackers' deposit within ten (10) days of their written request for same on July 15, 2005. The purpose of both statutes is to protect the consumer against unscrupulous business practices. The defendant's conduct in violating both statutes and in failing to return the deposit is offensive to this state's expressed commitment to shielding consumers from the deceitful and high-handed, high-pressure tactics Crapo demonstrated on July 18, 2005. In all of the ways here earlier referenced, the defendant has acted in complete contravention of the Connecticut Unfair Trade Practices Act, the Home Solicitation Sales Act, and the Home Improvement Act.
Under C.G.S. § 42-110g(a), the court may in her discretion award punitive damages. In Willow Springs Condominium Association, Inc. v. Seventh BRT Development Corporation, 245 Conn. 1 (1998), our Supreme Court iterated its prior conclusion that, under this section, recovery of actual damages, attorneys fees, and punitive damages for a violation of CUTPA is permitted. Id. at 40, citing to Freeman v. Alamo Management Co., 221 Conn. 674, 680, n. 6 (1992). At trial, the court inquired of counsel the whereabouts of his statement for services rendered since legal fees were requested. Counsel's response such documentation was unnecessary is not persuasive since, in the absence of knowing the fee arrangement between counsel and his clients or the number of hours worked, the hourly rate, and the services rendered, the award of such fees would be entirely speculative. Should counsel request a further hearing, the court will consider the same. The court does, however, award the plaintiffs punitive damages and costs to deter future such conduct by the defendant and to discourage repeated statutory violations.
The plaintiffs, in the Third Count, assert a common-law action in trespass as a result of the defendant's "entry onto the property." ¶ 23. A fair reading of the Third Count makes clear the plaintiffs base their cause of action in trespass on the defendant's refusal to leave the property once requested to leave by both Mr. Blacker and the investigating officer. ¶¶ 19, 21. Thus, the essentials of an action quare clausum fregit are stated. Trespass is a possessary remedy; the plaintiff need show possession — actual or constructive. Here, the plaintiffs have pled title (¶ 1) and the evidence established actual possession. Defendant has argued the plaintiffs may not, however, prevail on this count in the absence of any showing of direct injury and he cites to Avery v. Spicer, 90 Conn. 576 (1916). The court is not persuaded. The Avery Court's reference to "direct injury" was dicta resulting from the recitation of the allegations of the complaint before it. "The complaint sounds in trespass. It alleges the plaintiff's possession of the land, an unlawful entry by the defendants and acts done thereon by them to its direct injury by force." Id., at 579. That Court went on to state that, where there has been a violation of a right, the injured person is entitled to an action Id. at 584. Actual damages have not been established with regard to this count; there was, for example, no evidence what amount, if any, the plaintiffs were required to pay to clean up the unsightly mess on the lawn the defendant left. The Blackers have established Crapo invaded their right to sole possession of their property in the absence of any permission to the defendant to invade that right. They are therefore entitled to recover nominal damages on this count.
It picks up the same language on p. 581 with reference to a "Practice Act" which no longer governs.
At argument, defense counsel referred the court to Abington Limited Partnership v. Heublein et al., (in which Talcott Mountain Science Center was also a named defendant) as additional authority for the need to establish a direct injury. Two (2) such cases have been decided by our Supreme Court — neither of which are here either applicable or helpful. Both involved an action to quiet title brought as a result of the defendant Science Center's holding of an easement over a private roadway. The case reported at 246 Conn. 815 (1998) had as its sole inquiry whether the trial judge's conduct violated the Code of Judicial Conduct. At issue in 257 Conn. 570 (2001) was whether that easement extended to a parcel acquired by the Science Center after the original easement was created. Neither is applicable to the case before this court.
The defendant has asserted his own claim in a pleading entitled "By Way of Setoff and Counterclaim." That pleading does not in fact, assert a setoff but does aver the plaintiffs unilaterally terminated the agreement of June 12, 2004, "without valid excuse, justification or consent" (¶ 9) and "have refused to pay Crapo any of the sums to which he is entitled under the provisions of the contract." (¶ 8.) The short answer to this claim is that the Blackers had more than sufficient cause and justification to order Crapo off the property, Crapo is neither entitled to additional sums under the contract, the Blackers were not in breach of the contract, and any damages sustained by Crapo were as a result of his own undertaking of the roof work when told he was to leave the property, conduct that was wilful and unprofessional.
ORDERS
On the first count, there is judgment for the Blackers in the amount of $23,000 plus statutory interest of ten percent (10%) from July 16, 2005 (when the court has found the defendant first learned of the plaintiffs' demand for the same) until the date such sum is paid.
On the second count, judgment enters for the Blackers and punitive damages in the amount of ten thousand dollars ($10,000) is awarded as are costs.
Though interest is requested with regard to the second count, no statutory authority for same is either provided the court nor known. Nor is interest applicable to the recovery permitted on the Third Count.
Judgment for the plaintiffs enters on the Third Count. $1.00 in nominal damages is assessed.
Judgment for the plaintiffs enters on the defendant's counterclaim.