Opinion
No. CV 044001380
October 12, 2005
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #107
On November 15, 2004, the plaintiff, Kury Holyst as H.Q. Landscaping, filed a two-count complaint for breach of contract and unjust enrichment against the defendant. The complaint alleges that per agreement of the parties, the plaintiff built walls, patios, sidewalks, planted numerous shrubs and trees, raised the level of a patio, and delivered several loads of topsoil at the residence of the defendant. The complaint further alleges that the defendant did not pay for these services.
In a special defense pertinent to the motion for summary judgment before the court, the defendant alleges that any alleged agreement is unenforceable as a matter of law under General Statutes § 20-418 et seq., the Home Improvement Act (HIA). In support of the motion, the defendant submitted a memorandum, an affidavit of the defendant, and the plaintiff's response to the defendant's request for admissions. The plaintiff filed a memorandum in opposition to the motion accompanied by an affidavit of the plaintiff and an affidavit of Silvia Sikorski, the plaintiff's employee.
The defendant contends the oral agreement in this case is unenforceable under the HIA, as a matter of law. The plaintiff argues the agreement is enforceable despite any deficiencies because the HIA incorporates all provisions, including the exclusionary provisions, of the Home Solicitation Sales Act (HSSA), General Statutes § 42-134a et seq. Specifically, the plaintiff relies on averments in the employee's affidavit as to the circumstances and location of the formation of the agreement and on § 42-134a(a)(1), which provides in relevant part: "`Home solicitation sale' means a sale . . . of consumer goods or services, whether under single or multiple contracts, in which the seller or his representative personally solicits the sale, including those in response to or following an invitation by the buyer, and the buyer's agreement or offer to purchase is made at a place other than the place of business of the seller. The term `home solicitation sale' does not include a transaction: (1) Made pursuant to prior negotiations in the course of a visit by the buyer to a retail business establishment having a fixed, permanent location where the goods are exhibited or the services are offered for sale on a continuing basis." The plaintiff claims the agreement is not a home solicitation sale, as defined in the HSSA, and therefore it is not subject to either the HSSA or the HIA.
"The [HIA] is a remedial statute . . . The aim of the statute is to promote understanding on the part of consumers with respect to the terms of home improvement contracts and their right to cancel such contracts so as to allow them to make informed decisions when purchasing home improvement services." (Internal quotation marks omitted.) MJM Landscaping, Inc. v. Lorant, 268 Conn. 429, 435, 845 A.2d 382 (2004).
The HIA defines a "[h]ome improvement contract" as "an agreement between a contractor and an owner for the performance of a home improvement." General Statutes § 20-419(5). A "[h]ome improvement" is defined, in relevant part, as the "construction, replacement, installation or improvement of . . . patios, landscaping, [and] fences." General Statutes § 20-419(4). In the present case, the plaintiff has admitted in response to a request for admission that the agreement in this case is an oral one. Further, the services performed under the agreement can be characterized as landscaping and fall squarely within the HIA. See, e.g., Weber's Nursery, Inc. v. Prior, 71 Conn.App. 433, 802 A.2d 206 (2002) (applying HIA to agreement for landscaping services).
The HIA provides in relevant part that "[n]o home improvement contract shall be valid or enforceable against an owner unless it . . . [i]s in writing." General Statutes § 20-429(a). "[I]n contrast to the statute of frauds, the [HIA] does not provide an exception to the requirement that home improvement contracts be in writing." (Internal quotation marks omitted.) Barrett Builders v. Miller, 215 Conn. 316, 321, 576 A.2d 455 (1990). Further, "a contractor who fails to comply with the [HIA] is prohibited from recovery under either a breach of contract claim or quasi-contractual methods of recovery, such as unjust enrichment or quantum meruit." MacMillan v. Higgins, 76 Conn.App. 261, 270, 822 A.2d 246, cert. denied, 264 Conn. 907, 826 A.2d 177 (2003).
There is, however, a bad faith exception implied within § 20-429(a) that allows for the enforcement of an otherwise invalid agreement under the HIA. Habetz v. Condon, 224 Conn. 231, 237 n. 11, 618 A.2d 501 (1992) ("It 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"). In Dinnis v. Roberts, CT Page 13594 35 Conn.App. 253, 260-61, 644 A.2d 971, cert. denied, 231 Conn. 924, 648 A.2d 162 (1994), the Appellate Court affirmed the granting of a motion for summary judgment by the homeowner, finding that the trial court "properly concluded that by simply referring to the allegations of the complaint and by failing to submit supporting documents that tended to show bad faith on the part of the defendants, the plaintiffs failed to establish a factual basis to raise a genuine issue of fact as to the defendants' bad faith." In the present case, the plaintiff has failed to submit documentation tending to show bad faith and has not even alleged generally that the defendant has acted in bad faith.
Our Supreme Court has noted that "the legislature . . . specifically addressed the relationship between the [HIA] and the [HSSA] in a 1988 amendment to the [HIA] providing that `[e]ach home improvement contract entered into shall be considered a home solicitation sale.' . . . One of the principal consequences of the applicability of the HSSA to home improvement transactions is that contractors are now required to provide homeowners with written notice of their right to cancel the home improvement contract within three days after executing the contract." (Citations omitted; emphasis added.) A. Secondino Son, Inc. v. LoRicco, 215 Conn. 336, 343-44 n. 10, 576 A.2d 464 (1990). Further, our Supreme Court has consistently held that the HIA requirements for enforcement of an agreement are mandatory. See, e.g., Rizzo Pool Co. v. Del Grosso, 240 Conn. 58, 60, 689 A.2d 1097 (1997) ("the requirements of the HIA are mandatory and must be strictly construed").
The effect of incorporating the HSSA provisions into the HIA is to create additional requirements for the enforcement of agreements under the HIA not as the plaintiff argues to create exclusions or exemptions from enforcement under the HIA. The Supreme Court's treatment of the HSSA and the HIA in A. Secondino Son, Inc. v. Loricco, supra, 215 Conn. 339-40, indicates that the acts may operate separately to make an agreement unenforceable. The court affirmed the trial court, in that case, finding that an agreement for improvements entered into at the defendant's residence fell outside the HSSA but was unenforceable under HIA. Id., 340. General Statutes § 20-429(e) provides in relevant part, "[e]ach home improvement contract entered into shall be considered a home solicitation sale pursuant to chapter 740 and shall be subject to the requirements of said chapter regardless of the location of the transaction or of the signing of the contract." (Emphasis supplied.) The plain language of the statute indicates only that the HIA shall be subject to the "requirements" of the HSSA. The statute does not state that the HIA is subject to the "exemptions" or "exclusions" of the HSSA. The phrase "regardless of the location of the transaction or of the signing of the contract" dictates otherwise.
The agreement of the parties is subject to the requirements of the HIA; the agreement of the parties is not in writing; the agreement of the parties does not comply with the requirements of the HIA and it is unenforceable.
Accordingly, the defendant's motion for summary judgment is granted.
BY THE COURT
Tanzer, J.