Opinion
KNLCV175015758S
11-27-2017
Cheikh GEUYE v. Prince OMOTOSHO, et al.
UNPUBLISHED OPINION
OPINION
Bates, J.
I
PROCEDURAL HISTORY
On August 29, 2017, the self-represented plaintiff, Cheikh Geuye, filed an application for a prejudgment remedy application (hereinafter referred to as " the application"), pursuant to General Statutes § 52-278a et seq. in connection with a seven-count proposed complaint against the defendants, Prince Omotosho, Nancy Omotosho, and Nationstar Mortgage, LLC (Nationstar). The plaintiff’s application seeks to attach the property of Prince and Nancy Omotosho on the ground that there is probable cause that a judgment in excess of $49,000 will be obtained against them. On the same date and in furtherance of his application, the plaintiff submitted: a notice of application for prejudgment remedy; a proposed prejudgment remedy hearing order; a proposed summons; a proposed seven-count complaint; and an order to show cause.
It is critical to note that the plaintiff’s application does not seek to attach the property of Nationstar. As a result, Prince and Nancy Omotosho will be hereinafter referred to collectively as the defendants.
The proposed seven-count complaint sounds in breach of contract, anticipatory repudiation, fraud, breach of fiduciary duty, conversion, vexatious litigation, and unfair trade practices. In all seven counts, the plaintiff alleges that " the parties entered into a home improvement contract concerning real property known as 70-72 Montauk Avenue, New London Connecticut. Said contract was reduced to writing and entered into by the parties on or about June 18, 2013." In particular, count one alleges that the parties entered into a home improvement contract, the plaintiff substantially performed according to the contract and suffered damages because the defendants failed " to honor the contract." Count two alleges that the plaintiff substantially performed the contract, but at the time performance came due, the defendants indicated that they would not be performing under the contract. Count three alleges that the defendants fraudulently represented that they would be paying the plaintiff for the contracted materials and services. Count four alleges that Nationstar failed to perform its fiduciary duties owed to the plaintiff in that it contracted to disburse payments to the plaintiff; however, Nationstar sent the last payment to the defendants, who kept it. Count five alleges that Nationstar contracted to disburse payments to the plaintiff; however, Nationstar sent the last payment to the defendants, who kept it. Count six alleges that after the defendants unlawfully denied the plaintiff the benefits of the contract, they filed suit against the plaintiff without probable cause. Count seven alleges that Nationstar’s disbursement of the final payment to the defendants was immoral, oppressive, unscrupulous, and offensive to public policy.
On September 5, 2017, the plaintiff further submitted an affidavit in which he states, inter alia, that he agreed to enter into a home improvement contract with the defendants, who subsequently abandoned the contract and refused to cooperate. Attached to the affidavit is a purported copy of the contract and relevant copies of checks for labor, materials, and expenses. On September 15, 2017, the plaintiff filed a return of service indicating that the defendants and Nationstar were served with the entirety of the application, including the affidavit.
On September 29, 2017, Nationstar filed an objection to the application on the ground that the plaintiff has failed to establish probable cause that any of the proposed claims will be resolved in the plaintiff’s favor. Pursuant to General Statutes § 52-278d(a), a hearing on the application took place on October 2, 2017. On October 3, 2017, Nationstar filed a brief in further support of its objection to the application.
II
LEGAL STANDARD
A " ‘prejudgment remedy’ means any remedy or combination of remedies that enables a person by way of attachment, foreign attachment, garnishment or replevin to deprive the defendant in a civil action of, or affect the use, possession or enjoyment by such defendant of, his property prior to final judgment ..." General Statutes § 52-278a(d). " A prejudgment remedy is primarily designed to forestall any dissipation of assets by the defendant and to bring them into the custody of the law to be held as security for the satisfaction of such judgment as the plaintiff may recover in a manner consistent with the requirements of due process." (Internal quotation marks omitted.) TES Franchising, LLC v. Feldman, 286 Conn. 132, 148, 943 A.2d 406 (2008).
" A prejudgment remedy is available upon a finding by the court that there is probable cause that a judgment in the amount of the prejudgment remedy sought, or in an amount greater than the amount of the prejudgment remedy sought, taking into account any defenses, counterclaims or set-offs, will be rendered in the matter in favor of the plaintiff ... Generally, a trial court [must] make a probable cause determination as to both the validity of the plaintiff’s claim and the amount of the remedy sought ..." (Citations omitted; internal quotation marks omitted.) J.E. Robert Co. v. Signature Properties, LLC, 309 Conn. 307, 338-39, 71 A.3d 492 (2013); General Statutes § 52-278d(a)(1).
" Proof of probable cause as a condition of obtaining a prejudgment remedy is not as demanding as proof by a fair preponderance of the evidence ... The legal idea of probable cause is a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence and judgment, under the circumstances, in entertaining it ... Probable cause is a flexible common sense standard. It does not demand that a belief be correct or more likely true than false ... Under this standard, the trial court’s function is to determine whether there is probable cause to believe that a judgment will be rendered in favor of the plaintiff in a trial on the merits." (Citations omitted; internal quotation marks omitted.) TES Franchising, LLC v. Feldman, supra, 286 Conn. 137.
III
ANALYSIS
The proposed complaint contains seven counts: (1) breach of contract; (2) anticipatory repudiation; (3) fraud; (4) breach of fiduciary duty; (5) conversion; (6) vexatious litigation; and (7) unfair trade practices. The court need not consider whether probable cause exists as to counts four and seven because they are directed only at Nationstar and the plaintiff’s application does not seek to attach the property of Nationstar. If probable cause exists as to any of the remaining five counts, the court must then determine whether the plaintiff has proven that probable cause exists and if it does, whether the plaintiff, if he prevails, would be entitled to a judgment in the amount equal to or greater than $49,000.
A
Plaintiff’s Claims
1
Breach of Contract
Count one of the proposed complaint alleges the following facts. On or about June 18, 2017, the parties entered into a written home improvement contract concerning real property known as 70-72 Montauk Avenue, New London, Connecticut. The plaintiff claims he substantially performed the contract and the defendants locked him out of the house without warning, which denied the plaintiff access to complete a cleanup and participate in a final walkthrough. As a result of the defendants’ failure to honor the contract, the plaintiff claims to have suffered damages and to be presently owed more than $49,000, which he asserts the defendants agreed to pay and have refused and/or neglected to pay.
It is well established that, " [t]he elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages." (Internal quotation marks omitted.) CCT Communications, Inc. v. Zone Telecom, Inc., 324 Conn. 654, 667-68, 153 A.3d 1249 (2017).
The plaintiff bases his claim on the refusal of the defendants to pay for the work in accordance with the contract, including the failure to pass on insurance payments that were delivered to the defendants by the insurance company to pay for renovations of the property by the plaintiff. Instead of endorsing these checks over to the plaintiff in payment for work done, the plaintiff alleges that the defendants retained the funds, claiming them as damages for allegedly shoddy or delayed work on the part of the plaintiff.
Based on the evidence and testimony presented at hearing, the court finds probable cause to hold that the defendants’ unilateral decision not to make agreed-upon payments for work performed and to keep the monies intended as reimbursement for the work done constitute a breach of the understanding between the parties. The defendants may not have been pleased with the timeliness and quality of the work performed, but that displeasure by itself does not give them the authority to withhold $49,632.87 in agreed-upon payments for work actually performed.
Nevertheless, the court’s determination that there is probable cause to find that the defendants breached an alleged contract does not end the court’s inquiry. Because the plaintiff has alleged that the contract was one for " home improvement, " the court must undertake a multistep analysis to determine whether, pursuant to the requirements of the Home Improvement Act, General Statutes § 20-418, et seq. (the Act), the plaintiff can enforce the contract against the defendants. In particular, General Statutes § 20-429(a)(1)(A) provides in relevant part: " No home improvement contract shall be valid or enforceable against an owner unless" it complies with the mandatory writing requirements as set forth in subdivisions (i) through (ix). See Andy’s Oil Service, Inc. v. Hobbs, 125 Conn.App. 708, 714-15, 9 A.3d 433 (2010), cert. denied, 300 Conn. 928, 16 A.3d 703 (2011). Accordingly, the court must determine whether (1) the alleged contract is a " home improvement contract" pursuant to the definitions provided by General Statutes § 20-419; (2) if it is, then whether it complied with the mandatory writing requirements of § 20-429(a); and (3) if it did not, then whether the defendants acted in bad faith.
The court must first determine whether a home improvement contract existed. The phrase " home improvement contract" is defined by the Act to mean " an agreement between a contractor and an owner for the performance of a home improvement." General Statutes § 20-419(5). The Act defines " contractor" as " any person who owns and operates a home improvement business or who undertakes, offers to undertake or agrees to perform any home improvement. ‘Contractor’ does not include a person for whom the total price of all of his home improvement contracts with all of his customers does not exceed one thousand dollars during any period of twelve consecutive months." General Statutes § 20-419(3). Under the Act, " home improvement" is defined as including, but not being limited to, " the repair, replacement, remodeling, alteration, conversion, modernization, improvement, rehabilitation or sandblasting of, or addition to any land or building or that portion thereof which is used or designed to be used as a private residence, dwelling place or residential rental property, or the construction, replacement, installation or improvement of driveways, swimming pools, porches, garages, roofs, siding, insulation, sunrooms, flooring, patios, landscaping, fences, doors and windows, waterproofing, water, fire or storm restoration or mold remediation in connection with such land or building or that portion thereof which is used or designed to be used as a private residence, dwelling place or residential rental property or the removal or replacement of a residential underground heating oil storage tank system, in which the total price for all work agreed upon between the contractor and owner or proposed or offered by the contractor exceeds two hundred dollars." General Statutes § 20-419(4). Based on the foregoing, the court finds that the contract constituted a " home improvement" contract within the meaning of the Act.
Nonetheless, for the plaintiff to enforce the contract against the defendants, the home improvement contract must also comply with § 20-429(a)(1)(A), which provides in relevant part: " No home improvement contract shall be valid or enforceable against an owner unless it: (i) [i]s in writing, (ii) is signed by the owner and the contractor, (iii) contains the entire agreement between the owner and the contractor, (iv) contains the date of the transaction, (v) contains the name and address of the contractor and the contractor’s registration number, (vi) contains a notice of the owner’s cancellation rights ... (vii) contains a starting date and completion date, (viii) is entered into by a registered salesman or registered contractor, and (ix) includes a provision disclosing each corporation, limited liability company, partnership, sole proprietorship or other legal entity ... in which the owner or owners of the home improvement contractor are or have been a shareholder, member, partner, or owner during the previous five years." It is not clear to the court that the plaintiff fulfilled all of these requirements.
However, even if the plaintiff fails to comply with all of the mandatory writing requirements of § 20-429(a), he can still recover " payment for work performed based on the reasonable value of services which were requested by the owner, provided the court determines that it would be inequitable to deny such recovery" if the home improvement contract complied with subdivisions (i), (ii), (vi), (vii), and (viii) of § 20-429(a). General Statutes § 20-429(f). The court finds that to deny recovery in this case, given the allegations and testimony of the plaintiff, would, if proven at trial, be inequitable.
Further, even if the contract fails to comply with the specific requirements of the Act under § 20-429(f), the plaintiff can still enforce the home improvement contract, if there is probable cause that noncompliance was the result of the defendants’ " bad faith" conduct. " The statutory language of the Home Improvement Act does not provide a bad faith exception to compliance with the [A]ct, but our courts have incorporated such an exception into the statute. This exception excuses a contractor’s noncompliance with the [A]ct if the contractor’s failure to comply was caused by the other party’s bad faith." Connecticut Home Health Services, LLC v. Futterleib, 172 Conn.App. 182, 191, 160 A.3d 352, 358 (2017). " [B]ad faith on the part of the homeowner is an exception to what might otherwise be a harsh lesson to the home improvement contractor unable to recover due to a violation of the [A]ct. The central element giving rise to this exception is the recognition that to allow the homeowner who acted in bad faith to repudiate the contract and hide behind the act would be to allow him to benefit from his own wrong, and indeed encourage him to act thusly. Proof of bad faith therefore serves to preclude the homeowner from hiding behind the protection of the [A]ct." Habetz v. Condon, 224 Conn. 231, 237, 618 A.2d 501 (1992).
" Bad faith in general implies both actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one’s rights or duties, but by some interested or sinister motive ... Bad faith means more than mere negligence; it involves a dishonest purpose." (Citation omitted; internal quotation marks omitted.) Id. " [I]t is the burden of the party asserting the lack of good faith to establish its existence and whether that burden has been satisfied in a particular case is a question of fact." Id., 237 n.11. " There is a requirement ... that a contractor prove that the homeowner acted in bad faith. The mere fact that the contractor provided goods and services that the homeowner ultimately did not pay for, in and of itself, is not evidence of the homeowner’s bad faith." Burns v. Adler, 325 Conn. 14, 38 n.16, 155 A.3d 1223 (2017).
In his testimony, the plaintiff stated that in reliance of the agreement with the defendants, he advanced $7,000 to an electric contractor to install a third electric meter as required by the building inspector. (T.13.) The plaintiff also testified that, at the request of the defendants, he plastered a ceiling and " patched out" some walls. (T.5.) He further testified that at the request of the defendants, he sanded hardwood floors. (Id.) He also testified that he was not compensated or reimbursed for these jobs. (Id.)
Further, the plaintiff testified that, at the owners’ request, he purchased a new toilet for which he was not reimbursed. (T.5.) Also, he further stated that in accordance with the defendants’ request, he entered a contract with a subcontractor to provide siding for the building and advanced $3000 for that purpose. (T.6.) Nevertheless, he reported that after the subcontractor had undertaken the job, the defendants stopped the project and did not reimburse him for his advance. (Id.)
Moreover, the plaintiff reported that the defendants, without any notice, changed the locks on the house, barring him from entry. As a result, he claimed he was unable to access his tools and therefore could not perform any other jobs. As a consequence, he testified he had to close down his business, mortgage his house to cover his losses, and begin working as a laborer for other contractors. (T.7.)
The court finds that these allegations, confirmed in the plaintiff’s testimony, amount to " bad faith" conduct on the part of the defendant, meriting a finding of probable cause and the approval of the requested prejudgment remedy in the amount of $49,000.
2
Anticipatory Repudiation
Count two of the proposed complaint incorporates the entirety of the allegations contained in count one and additionally alleges that when performance was due, the defendants indicated that they would not be performing under the contract. " Anticipatory breach of contract occurs when a party communicates a definite and unequivocal manifestation of intent not to render the promised performance at the contractually agreed upon time ... The manifestation of intent not to render the agreed upon performance may be either verbal or non-verbal ... and is largely a factual determination in each instance." (Internal quotation marks omitted.) Andy’s Oil Service, Inc. v. Hobbs, supra, 125 Conn.App. 722. " Its effect is to allow the nonbreaching party to discharge his remaining duties of performance, and to initiate an action without having to await the time for performance." Pullman, Comley, Bradley & Reeves v. Tuck -It-Away, Bridgeport, Inc., 28 Conn.App. 460, 465, 611 A.2d 435, cert. denied, 223 Conn. 926, 614 A.2d 825 (1992).
Based on the assertions of the plaintiff that the defendants intentionally have withheld payment for completed contracted work, as set forth above, the court finds probable cause of proof of anticipatory breach.
IV
CONCLUSION
While the complaint alleges other causes of action and the plaintiff argues that he has established probable cause for each of them, it is not necessary for the court to analyze the remaining counts. A finding of probable cause for two counts of the complaint is sufficient to impose a prejudgment remedy.
For the record, the court does not find probable cause to support the claim of vexatious litigation. See count 5. Therefore, there is no basis to require double damages as part of the prejudgment remedy.
Accordingly, the court finds probable cause to support a judgment in favor of the plaintiff in the amount of $49,000, taking into account any known defenses, counterclaims and set-offs. The court also finds that the property sought to be subjected to the prejudgment remedy is not exempt from execution. Therefore, the prejudgment remedy is granted.
Consequently, it is ordered: (1) The plaintiff may attach real property of the defendants known as 70-72 Montauk Avenue, New London, Connecticut up to the value of $49,000 to secure the interests, goods, effects and estate of the defendants; (2) defendants may substitute a triple A rated Connecticut commercial surety bond for the prejudgment remedy by filing an affidavit in this court, certified to counsel of record, identifying the surety’s name, address, policy number and amount on or before the date of January 15, 2018; and (3) the plaintiff shall not be required to post a bond to secure the defendants against damages that may result from this prejudgment remedy.