Opinion
FSTCV155014844S
10-25-2017
Romeo Fraccaroli dba v. Peter Kusulas, Trustee
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Kenneth B. Povodator, J.
Background
In November 2014, the plaintiff, Peter Kusulas, commenced an action against Romeo Fraccaroli d/b/a FYN Construction, based on a claimed contract that had been executed in August 2013. The underlying contract related to construction of an addition as well as certain renovations to a property located in Greenwich. The defendant filed a counterclaim and several months later, commenced a separate action against the plaintiff and his wife (in their capacities as trustees) seeking to foreclose a mechanic's lien in addition to other relief, which matters were consolidated for purposes of trial. The defendant has been self-represented in these proceedings.
This memorandum of decision addresses both cases. Subject to different captions, a copy of this decision will be filed in both cases.
A trial to the court was conducted over two days in May, and the parties submitted briefs (technically only in the Kusulas file (FST CV14 6023850S), but applicable to both cases).
More particularly, the plaintiff asserted claims of breach of contract, breach of the implied covenant of good faith and fair dealing, violation of CUTPA, and statutory theft. The defendant, in his counterclaim, asserted breach of contract, unjust enrichment, violation of CUTPA, a claim based on the filing of a mechanic's lien (possibly but not clearly, foreclosure of that lien), negligence, nuisance, nondisclosure, " Transgression to Public Act" (seemingly, a violation of the workers' compensation law), fraud in the inducement, and delays.
With respect to the plaintiff's complaint, the defendant filed an answer and also filed 13 special defenses. With respect to the defendant's counterclaim, the plaintiff filed an answer.
In the action commenced by the defendant some nine months later (FST CV15 5014844S), directed both to the plaintiff and his wife, there is a fair degree of duplication of claims. The claims asserted by the defendant against the plaintiff and his wife or breach of contract, breach of the implied covenant of good faith and fair dealing, quantum meruit and quantum valebant, negligence and breach of duty, and foreclosure of the mechanic's lien.
As will be discussed below as necessary, the plaintiff signed the contract without any designation of any representational status; his action identifies him only in an individual/personal capacity. In the defendant's action, however, the plaintiff and his wife are identified as owners of the subject property in a representational capacity, i.e. trustees, and all of the claims appear to be directed to both of them.
Consistent with current practice, the court will refer to the entirety of this claim as a claim of quantum meruit. " Quantum valebant" is the term that historically had been applied to a quantum-meruit-type claim directed to goods rather than services. The court's search of reported Connecticut decisions revealed that the last time the term appears to have been used was in 1822: Inhabitants of Town of Goshen v. Inhabitants of Town of Stonington, 4 Conn. 209, 216 (1822)--and it was not in the body of the opinion of the court. (The context was a reference to the then-modern practice having replaced such a claim.)
The court recognizes that it must construe pleadings in a reasonable manner, and must make allowances--to a degree--with respect to pleadings filed by self-represented parties.
[C]onstruction of a self-represented party's pleading should not focus on technical defects, but should afford the [appellant] a broad, realistic construction of the pleading under review." Macellaio v. Newington Police Department, 145 Conn.App. 426, 431, 75 A.3d 78 (2013) (internal quotation marks and citation, omitted).
Connecticut courts are solicitous of self-represented parties when it does not interfere with the rights of other parties. Our courts allow self-represented parties some latitude, but that latitude is constrained by our rules of practice; the purpose of which is to provide a just determination of every proceeding." Argentinis v. Fortuna, 134 Conn.App. 538, 539, 39 A.3d 1207 (2012) (citations and internal quotation marks, omitted).
Viewing the defendant's claims under this standard, the court must recognize that the plaintiff's wife was not a party to any contract and therefore any claim based directly or indirectly on a contractual relationship cannot apply to her (absent any claimed basis for holding a non-party to a contract responsible for performance of a contract). Therefore, only the quantum meruit and unjust enrichment claims properly are asserted against her. The fact that the plaintiff did not sign the contract as a trustee but rather as an individual is a distinction that the court believes is worthy of note but plays no substantive role and should be disregarded, under the circumstances (particularly given the counterclaims in the plaintiff's action which generally duplicate the contract-based claims in the defendant's action, which do not have that procedural " flaw").
Simplistically, the plaintiff (in a non-representative capacity) and the defendant entered into a contract, and for purposes of the initial proceeding, the issue is whether the contract was performed by either or both parties, and any consequences of any such failure to perform. There is no claim by either party that the plaintiff as an individual was not authorized by the plaintiff as trustee (and/or by his wife as trustee) to sign the contract for improvements, no claim of any issue pertaining to an undisclosed principal, and no identified reason for the court to treat this as a substantial issue, affecting the outcome.
Discussion
Before addressing the specific and detailed claims of the parties, an overview is appropriate. The plaintiff attempted to identify and document seemingly each claimed problem with the defendant's work, by way of testimony and photographs showing incomplete or erroneous or flawed work. The defendant relied on Exhibit C, the package of documents submitted to the Town of Greenwich in support of the application for a building permit--especially the drawings. The defendant repeatedly asked his sole witness, an architect, about the missing specifics in the drawings contained in Ex. C. The court does not recall any credible testimony suggesting that the drawings submitted to the Town for the purpose of a permit application necessarily or even likely would contain the level of detail suggested by the questioning, e.g., the type of shelves to be installed, where shelves were indicated, or the material to be used for gutters and leaders. On cross examination, the defendant's expert witness acknowledged that it was common to have a more detailed set of plans, typically submitted to a contractor for bidding and actual work. As to many omissions in the drawings, he also acknowledged that the specifics often were matters of discussion or price-allowances, with the owner making a final selection of specific windows, doors, etc., as the project progressed.
As suggested above, the plaintiff went through detailed recitations, backed up by photographs, relating to the incomplete or improper or unsatisfactory work done by the defendant. The plaintiff credibly testified that he was required to expend an additional $169,775.25 (Ex. 15 contains a summary/listing) to remedy the incomplete and inadequate work done by the defendant--finishing the project.
The plaintiff also offered the testimony of his son-in-law who occupied the subject premises during construction. At one point in his submissions, the defendant seems to have adopted the position that the testimony was somehow improper, because there was no formal authorization. The ability of a fact witness to testify as to personal observations is not conditioned on any particular status or relationship, and the testimony was not offered as if the witness were a formal representative of the plaintiff.
The plaintiff's son-in-law, as an occupant of the premises, was on site daily. He testified as to the poor level of supervision of the work being performed. Initially, someone had been designated (apparently by the plaintiff's architect) to supervise the work, and appeared to be doing so in a competent manner. However, after a period of time, that supervisor was replaced by the defendant's son, who appeared to have no experience (both as a supervisor and with respect to construction) and was unwilling or unable to exercise any judgment when decisions had to be made (often if not almost always resorting to asking the defendant--his father--for guidance, thereby almost guaranteeing a delay in responses to questions or problems). The evidence was uncontroverted and credible.
The court does not wish to belabor the point, but it is critical in almost mandating the actual outcome. The defendant offered no substantive evidentiary submissions relating to the details of the work to be performed, the work not performed, and the quality of work performed. (The only full exhibit offered on behalf of the defendant was the Town of Greenwich file relating to the building permit.) The only " factual" testimony from any witness submitted or elicited by the defendant was a brief (perhaps 5 minutes) cross examination of the plaintiff's son-in-law, primarily to the effect that he had no first-hand information relating to contract formation or the scope of the contract.
The defendant's sole witness was an expert (an architect) who testified that the plans submitted to the Town lacked certain details, but there was no credible testimony that plans submitted to the Town should have contained the types of detailed information that was missing, and on cross examination the expert acknowledged that there generally would be more precision in documentation provided to a contractor, even for the purpose of submitting a bid on a project. There was no credible evidence that there was any expectation that the plans submitted to the Town were intended to be final working drawings containing all specifications and details needed by the contractor.
There was evidence that the expert viewed the premises in April of 2017, approximately one week before the first day of trial (and the commencement of his testimony). He indicated that more work--in terms of scope--had been performed than shown on the plans submitted to the Town. There was no attempt, however, to link that observation to the possible curing of the inadequacies in the plans as submitted to the Town (inadequacies for actual construction), and there was no attempt to link that observation to the existence of agreed-upon additions to the work (for an agreed price of $70,000--not insubstantial).
There was no evidence offered by the defendant that he had performed any contested work properly or evidence that the defendant had performed work that the plaintiff claimed had not been done. There was no evidence of the value of the work performed, and the only measure of work not performed was reflected by the plaintiff's submission relating to the cost of completion of the project. In the absence of any evidence to the contrary, even minimally-credible evidence would suffice to satisfy a preponderance-of-the-evidence standard, and the plaintiff presented evidence that was more than minimally-credible.
The plaintiff offered into evidence the termination letter sent by the defendant, on June 26, 2014, whereby he claimed that the plaintiff was in default of payments justifying the defendant's termination of the agreement. The court finds that letter not to be a credible statement of the status of the project. The letter asserts that there had been an agreement to make weekly payments of $10,000 (to pay the $70,000 of work added to the project) but there was no documentation reflecting any such agreement for weekly payments (in a mandatory timing sense) nor documentation of any delinquency in making required payments. The last progress payment paperwork prepared by the defendant (early June of 2014) showed a $10,000 payment due, with no apparent delinquency, and did not show the substantial additional charges reflected in the purported notice of termination. The additional charges reflected in that letter, and still further additional charges being claimed in this litigation (increased to $300,000 or more in some places in the pleadings and submissions), have no documented history prior to the termination of the relationship between the parties.
The plaintiff had the burden of proof on his claim, with the applicable standard of preponderance of the evidence. Again, absent any affirmative evidence from the defendant, and absent any meaningful challenge to the plaintiff's evidence other than a claim that the defendant was not required to do certain work based on claimed inadequacies of the plans submitted to the Town, the plaintiff only needed a modest level of credible evidence to prevail, and that modest burden was satisfied. The defendant has not established, by credible evidence, that there was a delinquency in payment justifying his termination of the contract on June 26, 2014.
In addition to the defendant's failure to do certain work or complete certain work or do work in a satisfactory/workmanlike manner, the plaintiff asserts that certain conduct constituted civil/statutory theft. Mentioned on more than one occasion was the $17,800 given to the defendant by the plaintiff, earmarked for an electrician in connection with installation of a back-up generator. Despite the designation of the purpose for the payment (see, Ex. 6), the defendant received the payment from the plaintiff but did not pay the electrician, effectively keeping it for himself. The plaintiff relies on the identified purpose for the payment, with the defendant to act as a conduit, to justify the claim that the defendant effectively stole the money by not transmitting the funds to the intended/designated recipient (on behalf of the plaintiff). In Stuart v. Stuart, 297 Conn. 26, 996 A.2d 259 (2010), our Supreme Court made clear that the appropriate burden of proof for such a claim is preponderance of the evidence rather than clear and convincing evidence.
Implicit in this claim is the contention that in the context of a broader construction-type contract, the owner of the property can earmark a payment under the contract for a designated purpose, upon pain of claim of statutory theft should the money be used for some other purpose deemed more urgent by the contractor, with the sub-issue of whether it might make a difference if the contractor were to accept the funds (or even solicit the funds) designated for such purpose.
What is especially troubling--and tips the balance in favor of a finding of civil theft--is that the defendant never disputed having received the funds in mid-May (check dated May 15, 2014)--not only did he not apply the funds to the designated purpose but also he did not otherwise account for receipt of the funds as a payment " on account" or in some other manner. If defendant did not recognize the ability of the plaintiff to mandate application of the funds in a designated manner, then why is there no record of application of the payment to the then-outstanding balance? Is there any other possible manner in which the funds could be characterized, in terms of accounting? The last payment requisition (form with caption " Conditional Waiver & Release Upon Progress Payment"), signed by the defendant on June 6, 2014, makes no reference to any payment other than the cumulative payment of the original contract price (12 payments of $23,666, totaling $283,992) plus the request for the third payment of $10,000 as against the agreed additional work ($70,000). (Note that in the purported termination letter, the defendant claimed that there were payments totaling $20,000 that were seriously past due, but the $17,800, if not applied as directed by the plaintiff, would have cured one allegedly late payment and substantially satisfied the second.)
The court understands that there might have been some accounting mix-up on the part of the defendant, but there was no evidence of any possible explanation (plausible or otherwise). Given these circumstances, including the claim that payments were substantially past due but without any indication of any prior claim that payments were late (coupled with the claim for a partial week), the court cannot ignore this substantial disappearance of funds. Therefore, the court finds that the plaintiff has proven statutory theft. (General Statutes § 52-564.)
The plaintiff claims that the defendant breached the implied covenant of good faith and fair dealing.
The common-law duty of good faith and fair dealing implicit in every contract requires that neither party [will] do anything that will injure the right of the other to receive the benefits of the agreement . . . Essentially it is a rule of construction designed to fulfill the reasonable expectations of the contracting parties as they presumably intended . . . To constitute a breach of [the implied covenant of good faith and fair dealing], the acts by which a defendant allegedly impedes the plaintiff's right to receive benefits that he or she reasonably expected to receive under the contract must have been taken in bad faith . . . Whether a party has acted in bad faith is a question of fact, subject to the clearly erroneous standard of review. (Citations omitted; internal quotation marks omitted; brackets as in cited case.) Welch v. Stonybrook Gardens Cooperative, Inc., 158 Conn.App. 185, 200-01, 118 A.3d 675 (2015).
This type of claim often (too often?) is asserted in ordinary contract claims, but one aspect of this case at least is suggestive of such a claim. The defendant entered into a contract with the plaintiff in his personal capacity; the defendant now is arguing that the contract is somehow deficient, or he was misled, because the proper owners are the plaintiff and his wife, in representative capacities (trustees). Thus, at times, he argues that the plaintiff was not an owner in his individual capacity, and that at most he was a 50% owner (in a trustee capacity). Related, he argues that the plaintiff identified himself as the general contractor on some of the forms papers to the Town of Greenwich in connection with the permit application. It is not clear whether this approach is an after-the-fact strategy for litigation, or somehow was an underlying position related to the obligation for performance. In other words, it is not clear whether the defendant is arguing that the plaintiff is somehow precluded or limited in his right to pursue his claims, or whether the status issues justify claims of noncompliance with the contract that might otherwise be proven. As noted earlier, there is no direct claim related to contract enforcement or validity, and the mere existence of this discrepancy has not been identified as having any substantial impact on the rights or obligations of the parties. For example, the defendant has not identified any basis on which the outcome of this case might depend on whether Mr. and Mrs. Kusulas, as trustees, implicitly or explicitly authorized Mr. Kusulas in an individual capacity to enter into the contract, or whether the omission of status as trustee might have been an inadvertent omission.
Related is the apparent effort of the defendant to convert his non-compliance with the obligations of the contract into a claim of non-payment by the plaintiff. Although there are implications of a lack of good faith, the conduct does not truly implicate lack of good faith in the Interpretation and application of obligations under the agreement. The conduct may not have been commendable, but the court cannot conclude that this rose (or sank) to the level of a breach of the covenant of good faith and fair dealing.
The plaintiff also seeks a recovery under CUTPA. (General Statutes § 42-110g.) The plaintiff generally refers to the conduct of the defendant, without any great specificity. The mere breach of a contract, without more, is insufficient to warrant an award under CUTPA (Milford Paintball, LLC v. Wampus Milford Associates, LLC, 156 Conn.App. 750, 764, 115 A.3d 1107 (2015)). Therefore, the question is whether there were unethical, unscrupulous, etc., qualities to the defendant's conduct, sufficient to warrant an award under CUTPA. See, e.g., A Better Way Wholesale Autos, Inc. v. Rodriguez, 176 Conn.App. 392, 419, 169 A.3d 292 (2017). The court has concluded that there was such behavior here.
First, there is no question that the defendant is in the construction business, such that the threshold for CUTPA--an activity in the course of a trade or business--is satisfied. As noted above, merely breaching a contract does not rise to the level of a CUTPA violation. The aggravating factors present here include the escalation of claimed contract damages, once the relationship between the parties broke down, the treatment of the $17,800, and other unfair practices.
The payment requisitions, through early June of 2014, reflected an aggregate price of $354,000--the base price of $284,000 plus the agreed costs for additions of $70,000. The last payment requisition submitted by the defendant, dated and signed on 6/6/14, reflected a then-outstanding balance of $40,008, left after the most recent billed installment of $10,000, with no indication of any delinquency. The plaintiff submitted evidence that he paid that installment about a week later, such that the $40,008 figure was the actual amount that was last documented as outstanding.
The claimed termination letter sent by the defendant (Exhibit 7) just weeks later claimed an arrearage of $26,000--$20,000 representing two claimed payments that were supposedly two weeks past due and, seemingly remarkably, " plus $6000 for portion of this week")--plus an additional (rounded off) claim of $89,600 (" [a]dditionally, the following amounts are due: (numbers are rounded off)"). Even assuming that the previously identified $40,008 was fully included in these figures (and not just the $26,000 quoted), the aggregate amount claimed to be due had suddenly ballooned by more than $75,000 ($26,000 plus $89,600 less the earlier claimed $40,008 yields an increase of $75,592).
This was followed by the mechanic's lien filed less than three months later, claiming $307,000 owed to the defendant for work and materials performed, followed by additional bills submitted in connection with the mechanic's lien foreclosure proceeding, claiming an additional $22,410 for design services. So in about 13 months, the amount claimed to be owed--without any claimed additional work much less proven additional work performed--went from just over $40,000 to over $115,000 to just under $330,000. (While it is theoretically possible that additional work might have been performed between the last payment requisition and the termination letter, based on the evidence there was no possible way for any substantial work to have been performed after June 26, 2014.)
The attempt to cover deficient work by a pretextual termination due to claimed materially-late payment (or non-payment) without any antecedent evidence, coupled with the aggressive and unsupported escalation of claimed outstanding amounts due, satisfy any reasonable definition of an unethical or immoral or unscrupulous business practice. The appropriation for his own purposes of $17,800, clearly intended for the cost of a backup generator, only confirms the existence of unfair practices (further compounded by the lack of any accounting for those funds, as previously discussed), and more than satisfies the statutory requirement of an ascertainable loss.
Accordingly, the plaintiff has proven his claims of breach of contract, statutory theft, and violation of CUTPA. Those determinations remain subject to the possible merits of the defenses asserted by the defendant. The court will now address the individual defenses that have been identified by the defendant in his amended answer.
The first two special defenses implicate some of the discussion, above, relating to the status of the plaintiff with respect to the property and the contract. The first special defense states that " Defendant believes that Plaintiff is not the legal owner of the premises at 41 Will Merry Lane, since the building permit #13-2435 on July 3, 2013 was not issued in his name, " and somewhat related, the second special defense states that Plaintiff filed and obtained a permit " as Owner and General Contractor."
In simplistic terms, the plaintiff in an individual capacity entered into a contract with the defendant--the defendant has not explained why the ability of the plaintiff to enforce the contract (in his individual capacity) is dependent upon the technical correctness of him having entered the contract in an individual capacity in the first place. There is no evidence or claim that the " variance" in capacity--plaintiff as individual versus plaintiff as a trustee--had any bearing on the ability of the defendant to perform his obligations under the contract. There is no claim that the plaintiff " hid" behind that legal distinction, e.g., refusing to pay in an individual capacity because the technically-proper parties should have been the trustees. There is no claim that the defendant was denied access to the property because of that distinction, nor does the defendant appear to have an ability to contend that the plaintiff as an individual could not be designated by the plaintiff as trustee as an agent for purposes of signing the contract.
With respect to the application forms submitted to the Town, there is no claim nor evidence that the relevant land-use agencies rely upon the technical distinction between an individual capacity and trustee capacity, and even if there were such reliance, there is no claim or evidence as to how or why that should affect the defendant's liability for nonperformance of his contract.
The third through fifth special defenses all assert the timing of performance: " Plaintiff requested more time before entering into a written contract dated August 24, 2014" and " sometime in November 2013, Plaintiff and Defendant agree to a start date of November 25, 2013 for the construction renovation project [and] Plaintiff and Defendant agree to a completion date for some time in March 2014, for the construction renovation project" and " Plaintiff obtained the approval to construct a basement, by the Building Department of the Town of Greenwich, sometimes in April 2014." None of these allegations alone, or even together, appear to constitute a proper defense--facts establishing that notwithstanding the claims of the plaintiff, the plaintiff is not entitled to a recovery. Indeed, the dates cited in these defenses, consistent with the claim of abandonment of the project in June 2014, do not in any way refute a claim of liability based on such an abandonment.
The sixth special defense asserts that " sometime in March 2014, Plaintiff promised to make seven (7) payments of $10,000.00 to Defendant, over the period of seven weeks [and] Plaintiff was late, by more than one month, on each and every payment." The defendant then recites the dates of payment, starting " on or about May 9, 2014" with three additional payments received, the last having been received " on or about June 13, 2014."
At this juncture, the court must go into somewhat more detail concerning the trial itself. The plaintiff testified by way of deposition that was offered on his behalf; the defendant declined to offer into evidence his cross-examination of the plaintiff via deposition. The only witness called by the defendant was an expert/architect, who, as already noted, primarily testified relating to the drawings that were part of the submission to the Town of Greenwich. (Exhibit C.)
As noted by the court earlier, appellate courts have repeatedly instructed trial courts to be solicitous of self-represented parties, but sometimes explicitly and always implicitly recognizing that the rights of other parties (represented parties) cannot be substantially infringed in so doing. Thus, if a pleading is inartfully worded, but the sense and purpose can be discerned, technical rules of pleading probably should be ignored. The rules of evidence do not lend themselves to such flexibility, particular with respect to what can be considered by the court. Thus, while the court might allow some flexibility in terms of interpreting an objection proffered by a self-represented party, the court cannot supply evidence or consider evidence that is not before the court in the first instance.
Thus, with respect to this specific defense, assuming that it does constitute a defense, the court does not recall any credible evidence that there was a specific commencement date for these payments, or that there was a " time is of the essence" quality to the payments, such that strict compliance with such a timeframe was mandatory. To the contrary, there was evidence that there had been payment of $30,000, and the court does not recall any evidence concerning a failure to make required payments in a reasonably timely manner. To the contrary, prior to the purported termination letter, there was no claimed evidence of any payments being late, and the last of the payment requisitions in June of 2014 made no reference to any then-outstanding (late) payments. There was no document or testimony presented that purported to warn the plaintiff about late payment(s) or otherwise documented the existence of late payments, prior to the purported termination letter.
The defendant contends in the seventh special defense that " [o]n June 26, 2014, Defendant mailed a notice of breach to Plaintiff by certified mail and offered a time to cure the default" but that " Plaintiff declined to cure the default, by ignoring the notice received on June 28, 2014." The court has rejected the bona fides of the June 26, 2014 letter, including the absence of proof of the existence of a material default, and necessarily there was no evidence that the plaintiff declined to cure. As noted already, the claim of late payments came out of nowhere, with no evidence of any rigid deadlines for payment or any prior suggestion that any payment might have been late. To the contrary, the evidence presented reflected three requisitions for payments of $10,000 and each of the requisitions resulted in reasonably-prompt payments. There was no evidence of any requisition beyond those that were paid, thereby negating, in an affirmative sense, any late payments such as claimed in the letter.
Similarly, the eighth special defense asserts that " Plaintiff did not exercise his right of 'OWNER'S RIGHT TO CARRY OUT WORK' by sending a written notice to Defendant." In this regard, the defendant further denies that he did not pay his contractors and did not properly " exercise his option under 'TERMINATION BY OWNER FOR CAUSE, ' if it was true that defendant did not pay his contractors." The burden of proof was on the defendant to establish his defense and there was no evidence with respect to whether the plaintiff had sent a notice under the " owner's right to carry out work" provision. Again, the court has rejected the claim that the June 26, 2014 letter constituted a proper exercise of the " termination by the contractor" provision under the contract. Absent any evidence on these issues, the court cannot find that the defendant sustained his burden of proof (preponderance of the evidence). To the extent that the court has rejected the defendant's purported termination notice, that letter seemingly would constitute a repudiation of obligations under the contract, especially if as seems to be argued by the defendant that the June 26, 2014 letter was the first unambiguous act of either party relating to termination. (The court further notes that the letter attached to the defendant's amended answer, as Exhibit C, although not an evidentiary exhibit, uses language similar to that in the contract relating to the owner's right to terminate--so the defendant's own submission largely negates the premise of his argument).
The ninth special defense asserts that " [Plaintiff's] alleged complaint that Defendant was asked to return and complete the work and that Defendant [refused] is not true. See Exhibit 'C' appended hereto." Putting aside the absence of an evidentiary submission of the exhibit attached to the special defense, this is simply a denial of an allegation of the complaint. A special defense is intended to assert facts that, notwithstanding the allegations of the complaint, establish a defense, and a denial is not a proper special defense.
The tenth special defense is a composite of recitations in the eighth special defense, supplemented by allegations relating to events on and after July 10, 2014 (including assertions relating to communications by then-counsel). Again, there was no evidence relating to these assertions, assuming they constitute a proper defense.
The eleventh special defense relates to the generator: " Defendant [entered] into contract, for the generator, with the Electrical Contractor sometime in January 2014, after receiving an order from Plaintiff [and] the generator location was changed three (3) times, making the final location approximately three (300) hundred feet away from the original location selected, with an additional cost from several trades. [and the permit] to install the Generator was issued on or about June 24, 2014 from town of Greenwich Building Department." Again, there was no evidence of these multiple changes in location, nor was there evidence of the additional costs charged by any or all contractors involved, nor does this refute the claimed misappropriation of $17,800 intended for the electrician.
The twelfth special defense asserts that " [Plaintiffs] construction renovation project became superseded, sometime in December 2013. See attached 'revised construction program, ' authorized by Plaintiff. See Exhibit 'D' appended hereto." The defense then proceeds to identify numerous claimed changes. Again, the document in question was not submitted into evidence, and there was no testimony relating to anything being " superseded." There was testimony that changes/additions were made, resulting in the $70,000 of additional charges, but the existence of such changes do not constitute a defense.
The thirteenth special defense may be summarized as identifying items for which the plaintiff was required to select finishes, select specific plumbing fixtures, etc., accompanied by a claim that none of these selections/elections were completed as of June 26, 2014. There was testimony concerning certain items that had not been completed as of that date, and the court will " assume" for purposes of this discussion that at least some of the items for which there was testimony, were included in the listing in this defense. There was no evidence, however, that the failure to complete these specified items was due to a failure on the part of the plaintiff to make a selection/election as opposed to simply the defendant having failed to follow through on his obligations. Further, there was no evidence that any of the deficiencies identified in this defense were material to the plaintiff's determination that the defendant had effectively abandoned the project or that the situation otherwise warranted termination of the contract for nonperformance.
Accordingly, the court cannot conclude that the defendant has established, by a fair preponderance of the evidence, any potentially-legitimate special defense (in the sense of being an actual defense).
The defendant also has asserted 10 counterclaims. The first count asserts a breach of contract, claiming that the defendant completed the required work, that the plaintiff failed to make progress payments, and that the defendant sustained damages in excess of $300,000. The only evidence before the court, however, was that the defendant did not complete the required work, and that the plaintiff had paid the full base contract price as well as substantial sums for the additional work required. Further, there was no evidence as to the damages sustained by the defendant, based on the alleged breach by the plaintiff.
The second count asserts unjust enrichment. Aside from the inability to assert a claim of unjust enrichment when there is a controlling contract (see, e.g., Hylton v. Gunter, 157 Conn.App. 358, 364-65, 116 A.3d 371 (2015)), there was no evidence of any uncompensated enrichment--there was no evidence that the plaintiff received a benefit that exceeded the amount that had been paid to the defendant.
The third count of the counterclaim asserts a violation of CUTPA. To the extent that this count relies upon the first and second counts of the counterclaim, there is no factual predicate. Further, there is no assertion and no evidence that the plaintiff was engaged in a trade or business, a prerequisite to application of CUTPA. Finally, the court declines to characterize the failure of the plaintiff to distinguish his role as an individual from that as a trustee, as a deceptive practice.
The fourth count asserts that the plaintiff violated General Statutes § 42-158n relating to certain notices that an owner must post on a worksite, that the plaintiff " ordered more than $300,000 in extra and additional work" thereby justifying a mechanic's lien under General Statutes § 49-33(h), and that the " Defendant is entitled to a ten percent (10%) damages because the Plaintiff's bad faith to withheld Defendant notice for payment, under Conn. Gen. Stat. § 49-158j(c)(4)." There is no statute codified as § 42-158j(c)(4). The court eventually was able to identify the proper statute--§ 42-158j(c)(4).
There was no evidence that any required notice had not been posted at the worksite. There was no evidence that the plaintiff had ordered more than $300,000 in extra and additional work. There was no evidence that the notice required in order to trigger interest under § 42-158j(c)(4) had been given, nor was there evidence that any such amount was, in fact, due and owing.
The fifth count asserts that the plaintiff had engaged in reckless and wanton behavior by not informing the defendant that permit required for completion of the project had not been issued, and that the permit that was issued contained several conditions and certifications, all to the damage of the plaintiff in excess of $100,000. Yet again, none of this was established by way of any competent, credible evidence. For example, the court does not recall any evidence whatsoever relating to insufficiency of any permit, nor does the court recall any linkage of any permit condition with any damage to the defendant (nor any relevant proof of damage).
The sixth count of the counterclaim, characterized as sounding in nuisance, incorporates allegations of the first and third counts, claiming that the plaintiff intended to take advantage of the defendant, induced Violi to be part of the devious scheme, that the actions were " cruel, dishonest and scheming, " all to the damage of the defendant in excess of $100,000. The court already has rejected the first and third counts, so to the extent that those counts are predicates to liability under this count, the defendant has not established liability. The court does not understand the allegation of the plaintiff having induced his legal representative to be part of a devious scheme. None of the conduct alleged comes close to anything that might constitute a nuisance, and the court cannot discern any possible basis for liability separate and apart from other claims, that might be intended to be advanced in this count.
The seventh count is characterized as a claim of nondisclosure, incorporating paragraphs 1 through 4 of the third count (which is the CUTPA count), and then asserting that the application for a building permit indicated that the plaintiff was acting as a general contractor. The claim then asserts that the plaintiff signed the contract with the defendant as an individual, whereas the property actually is owned by the plaintiff and his wife in the capacity of trustees. Putting aside the absence of any direct assertion of damages resulting, the court does not discern any damages actually arising from such a discrepancy, separate and apart from all of the other contentions being made. In other words, there is no evidence that the mere misidentification caused the defendant any harm.
The eighth count is characterized as a transgression of a public act, specifying section 4 of Public Act 96-216. The court notes that that provision is codified as General Statutes § 31-286b. The court does not recall any evidence relating to applicable to of this statute, nor was there any evidence relating to the absence of any required compliance with the statute. More importantly, there is no possible relationship between the claimed lack of coverage for workers' compensation and any of the conduct involved in this case, which has nothing to do with such coverage, or injuries to employees, or allocation of responsibility for coverage, etc.
The ninth count asserts fraud in the inducement, claiming that the parties negotiated a 15-week period in which to complete the construction contemplated by the contract. The count contains numerous conclusory statements as to what constitutes fraud, including assertions of actual and constructive fraud, but without any specific facts. There are no statements claimed to have been made by or on behalf of the plaintiff that were full, that induced the defendant to enter into the contract, that the defendant actually relied on the statements, result in harm to the defendant. Rather, rather than identifying any specific statement upon which the defendant allegedly relied, there is simply assertions of reliance, coupled with seemingly irrelevant allegations of disparagement, derogatory information, etc.
The evidence presented to the court did not fill any of these gaps in the pleadings--there was no evidence presented by the defendant relating to any misrepresentations or reliance, and there was no evidence presented in the plaintiff's case that would have satisfied the defendant's burden in this regard.
The tenth count asserts that there were changes in the work required (additions), resulting in conditions that the defendant had not anticipated and therefore resulting in delays. The defendant claims that he is entitled to compensation for " compensable delay" and claims damages in this regard in excess of $100,000. He also claims entitlement to compensation for " concurrent delays, " presumably under the agreement. The defendant explicitly contends that the plaintiff is entitled compensation because he was compelled to do work " in an inefficient or out of sequence manner."
Assuming that the defendant were to be entitled to delay damages under some circumstances, there was no evidence that circumstances warranting delay damages actually existed, particularly prior to the time that the defendant stopped working on the project. The court already has concluded that the plaintiff proved that the defendant effectively abandoned the project such that there was no delay in completion of the project. There was no evidence from which the court could conclude that there were any damages from a delay in performing any subsidiary task, prior to June 26, 2014.
The court now must move on to the lawsuit brought by the defendant contractor in 2015, seeking, inter alia, to foreclose his mechanic's lien. In order to avoid confusion, the court will refer to Romeo Fraccaroli d/b/a FYN Construction as the contractor and will refer to Peter and Irene Kusalas as trustees, as the owners.
In his complaint, the contractor asserts that he was owed $307,000 for the labor, equipment and materials for improvement of the subject property owned by the trustee-owners, and that in addition, he had provided " technical support design services" for that same property, which design services were provided from November 9, 2015 through April 20, 2015 [sic].
Earlier in this decision, the court has not hesitated to make presumed corrections where the corrections were fairly obvious. The court is reluctant to do so, without explanation, in this instance. Attached to the complaint are four invoices prepared by the contractor, relating to these services, all of them dated July 9, 2015. Although there might be a natural inclination to assume that the services were rendered between November 9, 2013 and April 20, 2014, the court cannot ignore that the earliest invoices (the only invoices) available could be consistent with a November 9, 2014 through April 20, 2015 timeframe. Conversely, if the intended timeframe was November 9, 2013 and April 20, 2014, it is not clear why that would not have been part of the overall claim of the contractor against the owners, based on the contract between the contractor and Peter Kusalas (individually).
The first count of this complaint asserts a breach of contract, seemingly against both defendants. As noted earlier, the only identified contract was with Peter Kusalas as an individual. To the extent that the contractor may be claiming that Irene Kusalas may have also entered into an agreement with the contractor, there was no evidence whatsoever concerning her involvement in any discussions with the contractor, much less anything that might be deemed an explicit agreement. There is no evidence before the court that she ever had affirmatively expressed her agreement to be bound by the contract. Therefore, as noted above, the court must treat this purely as a contract between the contractor and Peter Kusalas.
The contractor claims that the defendant breached his agreement by failing to make payments as required, despite the fact that the contractor " performed and completed all conditions, covenants, and promises to be performed under the Agreements, except as excused, hindered, or prevented by Defendants." The court already has determined that the contractor has not proven these allegations, but rather the reverse is true--the contractor failed to perform as required under the contract, thereby negating the premise of this count. Further, even aside from the affirmative finding made in connection with the claims asserted against the contractor, the court notes the absence of evidence presented that the contractor had completed the work, and the absence of evidence indicating that he might have been " excused, hindered or prevented" by the defendant from completion of his work.
The second count asserts a breach of the implied covenant of good faith and fair dealing. There was no evidence of any such breach.
The third count asserts a claim of quantum meruit, as well as the previously mentioned quantum valebant. Aside from the inability to assert such claims in a relationship governed by a contract, there was no evidence of the value of services and materials provided by the contractor, and especially no evidence that the value of services and materials provided by the contractor exceeded the compensation he received for such services and materials.
The fourth count asserts negligence and breach of duty, claiming that the relationship between the parties " involves a special trust, confidence, and reliance" and that it was " negligent to not remunerate" the contractor, resulting in damages to the contractor. To the extent that some of this language is suggestive of fiduciary duty, there is no basis for claiming a fiduciary duty apparent in the relationship between the parties, nor was there any evidence that might support such a relationship.
This is a contractual dispute. The court is obligated to determine the true nature of the dispute, rather than accepting without question a pleading-in-the-alternative approach whereby both tort and contract claims are being asserted as to the same events. See, e.g., Bonan v. Goldring Home Inspections, Inc., 68 Conn.App. 862, 870, 794 A.2d 997 (2002); see, also, Meyers v. Livingston and Pelletier v. Galske, 105 Conn.App. 77, 936 A.2d 689 (2007), cert. denied, 285 Conn. 921, 943 A.2d 1101 (2008), and more recently, Meyers v. Livingston, Adler, Pulda, Meiklejohn and Kelly, P.C., 311 Conn. 282, 87 A.3d 534 (2014). There are instances where both types of claims might be appropriate, but this is not one of them. There is no claim that there was negligence in the performance of duties; rather there is a claim that the owners failed to abide by their contractual obligation to pay the contractor.
The fifth count seeks a foreclosure of the mechanics lien that had been filed by the contractor on or about September 12, 2014, relating to services and materials provided to the owners' property. The contractor has failed to prove that he was not compensated fully for the value of the materials and services provided to the owners; there was no evidence whatsoever as to the actual value of the services and materials that were provided, and therefore no proof that the value of the materials and services provided exceeded the amount of compensation actually paid to the contractor. As discussed earlier, the claim of $307,000 has no identified basis and reflects an amount that is more than seven times the amount the contractor himself had claimed remained outstanding as of the last payment requisition in June of 2014 (just over $40,000), shortly before the relationship between the parties became explicitly adversarial. This increase of more than $265,000 was asserted approximately three months after that payment requisition--and less than three months after an interim (also unsupported by evidence) increase of the amount due (in the June 26, 2014 letter) to over $100,000.
No aspect of the claimed increases, beyond $40,008, is documented in the evidence. The claims must be rejected.
Damages
The parties have each claimed a right to damages. The court has found for the plaintiff, but there is an issue unaddressed by the parties. There is no apparent dispute relating to the fact that the plaintiff only paid $30,000 of the agreed $70,000 for extra work. The defendant may be responsible for the cost of completion and correction, but to the extent that the plaintiff did not pay the full price for the work done (supposed to have been done), he has saved $40,000. In other words, the damages claimed by the plaintiff are the same whether he paid the full $70,000, or the actual $30,000 paid, or nothing towards the extra work--his damages in the sense of needed expenditures were the cost of completion/correction. But if he did not pay for some of the work, then to that extent he was not damaged in a financial sense.
Simplistically, the plaintiff had agreed to pay the base contract price plus the agreed cost of extra work for the finished project, and anything above that amount needed to complete the project would be the responsibility of the defendant as breaching party. To the extent that the plaintiff had not paid the base contract price plus the agreed cost of extra work for the finished project, he was not damaged by the breach. This appears to be the proper manner to calculate damages generally, and is consistent with § 16.2.4 of the agreement between the parties (" If [the costs of finishing the Work] exceed the unpaid balance, the Contractor shall pay the difference to the Owner"). Therefore, the plaintiff's claim of $169,775.25 in damages for breach of contract must be reduced by $40,008, for a net figure--contract damages--of $129,767.25.
There is a further adjustment that appears to be required. There has not been an appropriate accounting/treatment of the $17,800 that was paid to the defendant for the generator that never was paid to the appropriate vendor. It doesn't matter whether this was a cost associated with the original contract, or the $70,000 agreed additional work, or some separate agreement. The plaintiff paid the defendant, and there was no accounting for that amount as a payment on the general contract account or as paid for a specific side-agreement. It was a payment for which the plaintiff received no benefit--no credit and nothing tangible. Therefore, that figure must be added to the calculation above as reducing the amount of the unpaid balance and therefore increasing the net figure accordingly, from $129,767.25 to $147,567.25.
There appears to have been such a separate agreement or arrangement with respect to certain roofing work--there is an invoice from a vendor and payment by the plaintiff in the amount of $21,700 which does not appear to have been treated as part of the base contract or the $70,000 of additional work.
The court has found that the plaintiff established liability under CUTPA. Most of the damages sustained have little nexus with unfair practices, but the $17,800 that was earmarked by plaintiff but never properly transmitted to the ultimate payee intended, and never reflected in any financial/accounting records of the defendant (at least of record), represents damages directly associated with an unfair practice. That figure, to the extent it is an award of actual damages, is part of the contract damages and therefore not separately (duplicatively) recoverable.
The escalating claims of contract damages (including the eventual mechanic's lien) was an additional unfair practice, but did not result in any damages other than increased cost of litigation--which can be addressed through the award of CUTPA attorneys fees, discussed below.
The plaintiff claims attorneys fees based on the right to punitive damages under CUTPA (specifically citing General Statutes § 42-110g), and under General Statutes § 42-150aa(b) and/or § 42-150bb. There are problems with the plaintiff's analysis of both statutory schemes.
In reverse order, and assuming that the reference to § 42-150aa(b) was unintended--it addresses attorneys fees but does not provide direct authorization for a claim of attorneys fees--the plaintiff is claiming a statutory right to attorneys fees under § 42-150bb. Section 42-150bb governs the reciprocal right of a consumer, typically applicable in a situation with an asymmetry as to ability to collect such attorneys fees--the contract authorizes such an award in favor of the commercial party but no authorization is provided for the consumer to recover attorneys fees. However, the court cannot find that this situation satisfies the threshold for applicability--this does not appear to be a consumer contract to which the reciprocal right to attorneys fees attaches.
The statute is applicable to contracts relating to goods and services " primarily for personal, family or household purposes." This property was not the residence of the plaintiff, and improvements to a home not used by the contracting party/owner for any residential or personal purpose (even as a second home) would not seem to come within the intended scope of the statute. The court does not construe the phrase " primarily for personal, family or household purposes" to encompass improvements to a home occupied by the owner's adult daughter and her family (husband and children). Absent the threshold condition for possible applicability (consumer contract), the statute cannot apply.
The burden of proof was on the plaintiff. The only evidence addressing this issue was that the daughter and her family lived on the premises and that the plaintiff and his wife had two non-Connecticut residential addresses (negating any residential connection to the subject property). Although the court has generally deemed the status of the plaintiff (individual versus trustee) in the analysis of the contract-based claims not to be material, that distinction mildly reinforces this result. As an individual, he is not an owner and not an occupant--so on what basis would his contract with the defendant be deemed a consumer contract?
The plaintiff also has somewhat conflated attorneys fees and punitive damages. While claiming both punitive damages and attorney's fees in the complaint, the analysis in the brief suggests a degree of overlap that does not actually exist. (The plaintiff claims a right to punitive damages " at least in the amount of his total attorneys fees.") The statute allows for an award of both attorneys fees and punitive damages, such that the award of punitive damages is separate from the otherwise-applicable concept in Connecticut that (common law) punitive damages are non-taxable costs of litigation which, as a practical matter, is primarily an award of reasonable attorneys fees. Thus, recently, in Ulbrich v. Groth, 310 Conn. 375, 449, 78 A.3d 76, 123 (2013), the court made this point clear: " We conclude that the legislature did not intend to limit punitive damages awards pursuant to § 42-110g(d) to the expenses of bringing the legal action, including attorneys fees, less taxable costs." (Internal quotation marks and citation, omitted.)
The court recognizes that while it is not uncommon to see common-law punitive damages and attorneys fees treated as if they were interchangeable, a more accurate description of the linkage is that common-law punitive damages are the non-taxable costs of litigation which, as a practical matter, primarily consist of (or are chiefly measured by) attorneys fees. The concepts are related but conceptually distinct.
Therefore, the court having found that the plaintiff is entitled to a recovery under CUTPA, the issues then become whether to award attorneys fees, whether to award punitive damages, and if punitive damages are to be awarded, the appropriate amount. (As noted by the plaintiff, if attorneys fees are to be awarded, an evidentiary submission in that regard would be required.)
Under the circumstances of this case, including the contractual asymmetry with respect to availability of attorneys fees, it is appropriate to award attorneys fees to the plaintiff as part of his CUTPA claim.
The plaintiff will be required to attempt to isolate the attorneys fees relating to the CUTPA claim; see, Total Recycling Services of Connecticut, Inc. v. Connecticut Oil Recycling Services, LLC, 308 Conn. 312, 63 A.3d 896 (2013); see, also, Noyes v. Antiques at Pompey Hollow, LLC, 144 Conn.App. 582, 597-99, 73 A.3d 794 (2013). As noted earlier, the increased cost of defending against the escalating contract claims asserted by the defendant (and associated mechanic's lien) likely would come within the scope of attorneys fees attributable to violation of CUTPA, but the precise parameters will require a submission and subsequent opportunity for the defendant to be heard.
With respect to CUTPA punitive damages, the court believes that the conduct of the defendant, in pretextually attempting to cancel the contract when the plaintiff refused to provide additional funds beyond the agreed amounts, the diversion of $17,800 intended for the generator, and then rapidly increasing the claimed amount he was owed as a weapon, warrant an award of statutory punitive damages. Under the circumstances, the figure of $17,800 has both symbolic and financial significance, and the court awards punitive damages in that amount.
The court has concluded that the plaintiff established civil theft in the amount of $17,800. That principal amount itself is already part of the compensatory damages awarded to the plaintiff ($147,567.25). Pursuant to General Statutes § 52-564, the plaintiff is entitled to treble damages, which amounts to an additional award of $35,600 (above and beyond the $17,800 encompassed by the contract damages award).
The plaintiff is only entitled to a single recovery for any element of damages. The existence of multiple claims based on the same element of damages may entitle the plaintiff to judgment on multiple counts, but does not entitle him to multiple (duplicative) recoveries.
The plaintiff has requested postjudgment interest, pursuant to General Statutes § 52-356d(e) and General Statutes § 37-3a. The court construes § 52-356d(e) not as authority to award interest but rather to continue interest even if there is an order of payments (" interest on a money judgment shall continue to accrue under any installment payment order on such portion of the judgment as remains unpaid" (emphasis added)). Section 37-3a does provide for an award of interest, with the rate to be determined by the court, and given prevailing interest rates, the court generally determines that a rate in the 4-6% range is appropriate. See, e.g., Riley v. Travelers Home & Marine Insurance Co., 173 Conn.App. 422, 458-62, 163 A.3d 1246 (2017), noting that trial court in that case had determined that rates in the 3-6% range were typical. The court has determined that a rate of 5% is appropriate here.
The plaintiff also has requested pre-judgment interest. Pre-judgment interest can be appropriate if the amount is ascertainable prior to trial. In recent years, a series of decisions in the case of DiLieto v. County Obstetrics & Gynecology Group have given our Supreme Court an opportunity to discuss, in detail, the operation/application of the statutes governing perhaps-most instances of claims of pre-judgment interest and post-judgment interest. The 2013 decision contained a discussion in footnote 11 that is on point (although presented in the context of a discussion of availability of pre-judgment interest for tort claims):
It is well established that [§ ]37-3a provides a substantive right [to prejudgment interest] that applies only to certain claims. As early as 1814, [this] [c]ourt stated that [prejudgment] interest [under § 37-3a] ought to be allowed only . . . where there is a written contract for the payment of money on a day certain, as on bills of exchange, and promissory notes; or where there has been an express contract; or where a contract can be presumed from the usage of trade, or course of dealings between the parties; or where it can be proved that the money has been used, and interest actually made. Section 37-3a also authorizes prejudgment interest in cases involving tortious injury to property when the damages were capable of being ascertained on the date of the injury. See Sosin v. Sosin, 300 Conn. 205, 235, 14 A.3d 307 (2011) (award of prejudgment interest for damage to property " is limited to cases in which the damage is of a sort [that] could reasonably be ascertained by due inquiry and investigation on the date from which the interest is awarded" [internal quotation marks omitted]). Prejudgment interest is permitted in such cases on the theory that [a] loss of property having a definite money value is practically the same as the loss of so much money; the loss of the use of the property is practically the same as the loss of the use (or interest) of so much money. Thus, [§ 37-3a] does not allow prejudgment interest on claims that are not yet payable, such as awards for punitive damages . . . or on claims that do not involve the wrongful detention of money, such as personal injury claims . . . Prejudgment interest is not permitted on such claims for the simple reason that, until a judgment is rendered, the person liable does not know what sum he owe[s], and therefore cannot be in default for not paying.; see also Travelers Property & Casualty Co. v. Christie, supra, at 764, 916 A.2d 114 (" requests for prejudgment interest [on] personal injury claims do not typically constitute a claim for the wrongful detention of money before the rendering of judgment . . . [because] damages are typically uncertain [until that time]" . . .; Lockard v. Salem, 130 W.Va. 287, 294, 43 S.E.2d 239 (1947) (" unless a claim is liquidated, or readily susceptible of ascertainment by computation, interest is not allowable until there is an ascertainment of the amount due"). Once a plaintiff's damages are known, however, which typically occurs at the time of judgment, they are due and payable for purposes of an award of postjudgment interest under § 37-3a. (Most internal quotation marks and citations, omitted.) 310 Conn. 38, 50, n.11, 74 A.3d 1212, 1219 (2013).
The plaintiff's breach of contract damages were readily ascertainable or knowable, if not from the time of the breach (defendant's failure to complete the project) then at least after the plaintiff had completed the work through alternate sources of material and services. The summary and backup of work and materials to complete the project (Exhibits 15 through 29) reveal that the work was performed mostly in July and August with some work extending well into September. Under the circumstances, an appropriate start date would be October 15, 2014, allowing for billing in early October for work performed in late September (see, Exhibit 29). Pre-judgment interest at 5%, then, is allowed on the contract damages ($147,567.25) from that date. Interest through October 25, 2017 totals $22,337.24, with a per diem thereafter of $20.21.
Conclusion
The court is required to decide a dispute based on the competent evidence presented. The defendant offered virtually no credible evidence going to the merits of his claims and defenses, particularly given his own expert's testimony discounting (if not dismissing) the use of the plans submitted to the Town for a building permit as if they were plans suitable for actually performing the work required under the contract. The court found the claims being made by the defendant (against the owners) not only unworthy of belief but undermining any possible credibility, given the wholly-unsupported and rapidly-escalating clams, going from just over $40,000 in early June, to well over $100,000 in late June to well over $300,000 in September (filing of mechanic's lien), which then was augmented by an additional claim for more than $20,000 for design services, a year later when the separate action was commenced by the defendant. The court's incredulity might not have been as strong if there had been any evidence to support any aspect of these escalating claims (other than paperwork generated by the defendant himself, after the parties already were at odds and work had ceased). Even if the court were to consider the attachments to the defendant's own complaint--ignoring the basic concept that the court can only consider evidence presented during trial (possibly subject to judicially-noticeable facts)--the result would be the same. For example, any attempt to consider the invoices dated in July of 2015 (roughly contemporaneous with the commencement of the lien foreclosure proceeding), presumably relating to design services rendered in 2013 and the first 4 months of 2014, automatically would invite the question: Were there any billing records or invoices generated roughly contemporaneously with the work being performed (and if not, why not)?
The plaintiff presented testimony, photographic evidence, and bills and other financial records, all supporting his contentions of work not done and work not done properly, and he carried his burden of proof. In so doing, he also negated much or most of the defendant's claims, and the defendant failed to present any credible evidence that might have established the merits of his claims and defenses.
One egregious situation was the improper elevation of the construction of a patio, resulting in planned windows being so low relative to the outside that they had to be eliminated.
Accordingly, in Kusulas v. Fraccaroli, judgment enters in favor of the plaintiff (Mr. Kusulas) and against the defendant (Mr. Fraccaroli) on the plaintiff's claims of breach of contract, statutory theft and violation of CUTPA; judgment enters in favor of the defendant (Mr. Fraccaroli) on the claim of breach of the covenant of good faith and fair dealing.
The plaintiff is entitled to compensatory damages of $147,567.25 (and that also includes the $17,800 compensatory damages award for the CUTPA and statutory theft claims), plus an additional $35,600 in statutory theft damages (the trebled damages less the compensatory damages already included) plus CUTPA punitive damages of $17,800, plus attorneys fees to be determined.
Prejudgment interest (5% annually) on the contract damages ($147,567.25) through October 25, 2017 totals $22,337.24, with a per diem of $20.21. Post-judgment interest, also at 5%, is awarded on the full principal amount of damages awarded (($147,567.25 + $17,800 + $35,600 = $200,967.25). Attorneys fees will be determined at a later date.
In Fraccaroli v. Kusulas, judgment enters in favor of the defendants (Mr. and Mrs. Kusulas, as trustees) and against the plaintiff (Mr. Fraccaroli) on all of the plaintiff's claims.
Costs will be taxed by the clerk.