Opinion
No. CV 06 5001652
July 8, 2008
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #115
The plaintiff, Boyd Building, commenced this action by service of process on the defendant, Laura Brewster, on August 9, 2006, seeking a foreclosure of the mechanic's lien. In its second amended complaint, the plaintiff alleges breach of contract (count one), unjust enrichment (count two) and wrongful retention of monies (count three). On October 18, 2007, Brewster filed a set off and a six-count counterclaim against Boyd Building, and on November 8, 2007, Brewster filed a six-count third-party complaint against the third-party defendants, Jeffrey Boyd and Thomas Boyd. In her counterclaim and the third-party complaint, Brewster sets forth claims for breach of contract (count one), violation of New Home Construction Contractors Act (NHCCA), General Statutes § 20-417b (count two), violation of NHCCA, General Statutes § 20-417d(b) (counts three and four), violation of CUTPA, General Statutes § 42-110a et seq. (count five) and violation of CUTPA pursuant to General Statutes § 20-417g (count six).
Boyd Building filed an original complaint alleging a breach of contract on August 22, 2006. It amended its complaint on July 13, 2007, adding claims for unjust enrichment and wrongful retention of monies. On February 21, 2008, after Brewster filed her motion for summary judgment, Boyd Building filed a request to amend its amended complaint changing the date on which the parties entered into contract from March 31, 2005, to July 12, 2005. Brewster objected to Boyd Building's request to amend on March 5, 2008. The court, Martin J., granted Boyd Building's request to amend on June 6, 2008. Therefore, Boyd Building's second amended complaint, filed on February 21, 2008 is an operative complaint.
On February 6, 2008, Brewster filed a motion for summary judgment, #115, as to counts two, three, four and six of her counterclaim against Boyd Building and as to counts two, three, four and six of her third-party complaint against Jeffrey Boyd and Thomas Boyd. On March 5, 2008, Boyd Building, Thomas Boyd and Jeffrey Boyd filed a memorandum in opposition to Brewster's motion for summary judgment.
DISCUSSION
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law." (Internal quotation marks omitted.) Mazurek v. Great American Ins. Co., 284 Conn. 16, 26-27, 930 A.2d 682 (2007). "[T]he trial court does not sit as the trier of fact when ruling on a motion for summary judgment . . . [Its] function is not to decide issues of material fact, but rather to determine whether any such issues exist." (Internal quotation marks omitted.) Barasso v. Rear Still Hill Road, LLC, 81 Conn.App. 798, 803, 842 A.2d 1134 (2004).
I COUNTS TWO, THREE AND FOUR
In her motion, Brewster argues, inter alia, that she is entitled for summary judgment on counts two, three and four because neither Boyd Building, Jeffrey Boyd nor Thomas Boyd were registered with the department of consumer protection as new home construction contractors prior to the March 31, 2005 contract and because the contract failed to include the various notices required by NHCCA. Boyd Building, Jeffrey Boyd and Thomas Boyd counter that because NHCCA does not provide for direct cause of action, Brewster is limited to commencing an action on a CUTPA claim, as she has done in count six, and is not entitled to compensatory or punitive damages under NHCCA. They also argue that there are issues of material fact as to the ownership and responsibilities of Boyd Building as it relates to Jeffrey Boyd and Thomas Boyd; as to when the parties entered into a contractual relationship; and as to whether Boyd had a license when the contract was executed.
"The New Home Construction Contractors Act, which took effect on October 1, 1999, regulates the activities of new home construction contractors. The act requires a contractor to obtain a certificate of registration from the commissioner of consumer protection (commissioner) before he or she may `engage in the business of new home construction or hold himself or herself out as a new home construction contractor . . .' General Statutes § 20-417b(a) . . . Other provisions of the act affirmatively regulate the conduct of new home construction contractors, prohibit new home construction contractors from engaging in certain activities and set forth various requirements as to the format and content of new home construction contracts." (Citation omitted.) D'Angelo Development Construction Co. v. Cordovano, 278 Conn. 237, 243-44, 897 A.2d 81 (2006). "The act further provides three distinct penalties for a violation of its provisions. First, the act empowers the commissioner to impose a civil penalty on, among others, `any person who engages in or practices the work for which a certificate of registration is required by [the act] . . . without having first obtained such a certificate of registration' or any person who `violates any of the provisions of [the act] . . .' General Statutes § 20-417f. Second, the act provides that `any person who violates any provision of subsection (d) of section 20-417d shall be guilty of a class A misdemeanor.' General Statutes § 20-417e. Finally, the act provides that a violation of any of its provisions `shall be deemed an unfair or deceptive trade practice under subsection (a) of section 42-110b'; General Statutes § 20-417g; thereby exposing the violator to a private lawsuit under the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq." Id., 244-45. "Whereas the imposition of civil or criminal penalties on a person who violates the act will not inure to the benefit of the aggrieved consumer, any consequent liability under CUTPA directly benefits the consumer and is correlated to the consumer's loss." Id., 250. "However [the] act is devoid of any language providing a [direct] private right of action to consumers. In fact the text of the act provides a right of action only by reference to the Connecticut Unfair Trade Practices Act (CUTPA) . . ." (Citation omitted.) Sturm v. Harb Development, LLC, Superior Court, judicial district of New Britain, Docket No. CV 07 6001058 (January 2, 2008, Pittman, J.). "[The Supreme] [C]ourt previously has considered the existence of [the] alternative remedies and procedures for the enforcement of a statute as strong, if not conclusive, evidence of legislative intent not to create additional implied remedies under the statute . . . This is so because the existence of express remedies within a statute indicates that the legislature knows how to create remedies under the statute and, more importantly, that the legislature would have provided the remedy sought by the plaintiff if it had intended to do so. See, e.g. . . . Hatt v. Burlington Coat Factory, 263 Conn. 279, 295, 819 A.2d 260 (2003) (applying `tenet of statutory construction known as expressio unius est exclusio alterius, translated as the expression of one thing is the exclusion of another' . . .); Bridgeport Hospital v. Commission on Human Rights Opportunities, 232 Conn. 91, 101, 653 A.2d 782 (1995) (`[u]nless there is evidence to the contrary, statutory itemization indicates that the legislature intended the list to be exclusive' . . .)." (Citations omitted; emphasis in original.) Rollins v. People's Bank Corp., 283 Conn. 136, 150-52, 925 A.2d 315 (2007).
Accordingly, in the present case, the court must assume that if the legislature had intended to create a direct right of action under NHCCA, it would have done so explicitly. For the foregoing reasons, Brewster's right of action is limited to a CUTPA claim and her motion for summary judgment as to counts two, three and four of the counterclaim and third-party complaint is denied.
"[I]t is an elemental canon of statutory construction that where a statute expressly provides a particular remedy or remedies, a court must be chary of reading others into it." (Internal quotation marks omitted.) Meghrig v. KFC Western, Inc., 516 U.S. 479, 488, 116 S.Ct. 1251; 134 L.Ed.2d 121 (1996).
II COUNT SIX
Brewster argues that she is entitled to a summary judgment on count six of her counterclaim and third-party complaint because Boyd Building, Jeffrey Boyd and Thomas Boyd violated NHCCA and their violations constitute a per se violation of CUTPA under General Statutes § 20-417g. General Statutes § 20-417g provides: "A violation of any of the provisions of sections 20-417a to 20-417j, inclusive, shall be deemed an unfair or deceptive trade practice under subsection (a) of section 42-110b." In the present case, Brewster claims that Boyd Building, Thomas Boyd and Jeffrey Boyd violated NHCCA, § 20-417b, in that they failed to obtain new home construction contractor license required by the statute, prior to entering into contract on March 31, 2005, and in that they failed to comply with the requirements set out in the statute. Boyd Building, Thomas Boyd and Jeffrey Boyd counter that the contract was entered into on July 12, 2005, after Jeffrey Boyd obtained a required license. Thomas Boyd further argues that he has never been a party to the agreement as he has retired from construction business prior to the time Brewster first contacted him. The evidence submitted by the Boyd Building, Thomas Boyd and Jeffrey Boyd creates issues of fact as to when the party entered into contract (Boyd's Exhibits A, B, D G) and as to whether Thomas Boyd has ever been a party to the contract (Boyd's Exhibit A). Boyd Building, Thomas Boyd and Jeffrey Boyd do not dispute that they failed to provide a statement as required by § 20-417d. Nevertheless, even if they violated NHCCA, thereby violating CUTPA, Brewster is not entitled to a summary judgment on count six because she failed to demonstrate that the violations of NHCCA proximately caused her loss.
"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) . . ." (Citation omitted; internal quotation marks omitted.) Stevenson Lumber Co-Suffield, Inc. v. Chase Associates, Inc., 284 Conn. 205, 213-14, 932 A.2d 401 (2007). "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." (Emphasis in original.) Id., 214. Furthermore, "[t]he 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 . . . Although the issue of causation generally is a question reserved for the trier of fact . . . the issue becomes one of law when the mind of a fair and reasonable person could reach only one conclusion . . ." (Citations omitted; internal quotation marks omitted.) Id.
"The ascertainable loss requirement is a threshold barrier which limits the class of persons who may bring a CUTPA action seeking either actual damages or equitable relief . . . Thus, to be entitled to any relief under CUTPA, a plaintiff must first prove that he has suffered an ascertainable loss due to a CUTPA violation." (Internal quotation marks omitted.) Artie's Auto Body, Inc. v. Hartford Fire Ins. Co., 287 Conn. 208, 217-18 (2008).
In the present case, it cannot be said that the mind of a fair and reasonable person could reach only one conclusion regarding whether the alleged violations of NHCCA proximately caused Brewster's loss; and Brewster failed to meet her burden of demonstrating that the alleged violations of NHCCA, which would, if proven, constitute a per se violation of CUTPA, proximately caused her an ascertainable loss. Accordingly, Brewster's motion for summary judgment as to count six is denied.
CONCLUSION
For the foregoing reasons, Brewster's motion for summary judgment, #115, is denied.