Opinion
CV166064392S
04-11-2018
J & N ELECTRIC, INC. v. Gabriela BHARATLALL et al.
UNPUBLISHED OPINION
Corradino, Judge
A
The complaint in this matter lies in three counts. The first count lies in contract, the second count makes a claim for unjust enrichment, and the third count lies in quantum meruit. The first and second paragraph of each count make the following allegations:
1. On or about and after August 30, 2012 through November 21, 2013 the plaintiff, a Connecticut corporation with its principal place of business in East Haven, Connecticut, provided licensed electrician services and materials to and for the defendants, individuals residing in Milford, Connecticut.
2. The said services were requested by the defendants.
The contract count goes on to allege that the services requested by the defendants were performed by the plaintiff and the defendants therefore now owe the plaintiff $5,752.33 for the services and materials provided plus statutory interest and costs.
The unjust enrichment count claims the following:
3. The value of the services and materials provided by the plaintiff is substantial.
4. A benefit was conferred upon the defendants through the services and materials provided by the plaintiff.
5. The defendants unjustly failed to pay the plaintiff for said benefit.
6. The lack of payment for said benefit was detrimental to the plaintiff.
7. The defendants have been unjustly enriched by virtue of their failure to pay for the said benefit.
The Third Count is entitled (" Quantum Meruit As Alternative To Contract" ) and alleges the following:
3. The defendants knowingly accepted the plaintiff’s services and materials.
4. The defendants represented to the plaintiff that the defendants knew they were expected to pay for said services and materials.
5. The parties’ course of conduct implied a promise to pay for said services and materials.
6. The plaintiff is entitled to restitution from the defendants for said services and materials.
The plaintiff’s claim of monetary damages is based on its position that it has not been reimbursed for the wiring of the pool at the home of the defendants. As will be discussed this work was separate and distinct from another agreement to provide a 200 amp connection to the home which has been paid for in full. The defendants deny the plaintiff’s claim regarding the rewiring of the pool and argue that the $13,200 sum they paid to the plaintiff included an understanding that the plaintiff would do the work on the pool.
The complaint then alleges by way of judgment money damages, statutory prejudgment interest up to 10% per Section 37-3a of the general statutes, costs, postjudgment interest up to 10%; and any other relief deemed appropriate.
The court will discuss the facts in more detail after it briefly tries to set forth the general law. The factual setting of the case and therefore the appropriate analysis is somewhat complicated because the work on the defendant’s home involved the completion of two separate tasks performed separately.
B
(i)
In 17 Am.Jur.2d, there is a lengthy article on " Contracts." Section 1 defines the concept in two ways: " (1) a contract has been defined as an agreement to do or refrain from doing a particular thing upon sufficient consideration" (2) " A contract is an obligation which arises from- actual agreement of the parties manifested by words, oral or written, or by conduct. The term ‘contract’ has been held to include every description, agreement or obligation, whether verbal or written, by which one party becomes bound to another to pay a sum of money to perform or commit to do a certain thing." The section cites Willamette Management Associates, Inc. v. Palczynski, 134 Conn.App. 58, 72 (2012).
There are basically three types of contracts, an express contract, and implied contract which are true contracts and a so-called implied in law contract which is created by the courts to avoid unjust enrichment. In 17 Am.Jur.2d, " Contracts" at Section 12, page 48 it states: " A contract is express if its terms are stated by the parties either orally or in writing, and it is implied if its terms are not so stated. In other words, an implied contract is one in which some or all of the terms are inferred from the conduct of the parties and the circumstances of the case, though not expressed in words," cf. Vertex, Inc. v. Waterbury, 278 Conn. 557, 571 (2006), Auto Glass Express v. Hanover Ins. Co., 293 Conn. 218, 233 (fn.7). In Janusauskas v. Fichman, 264 Conn. 796, 804 (2003), the court quoted from an earlier case and said " Whether (a) contract is styled express or implied involves no difference in legal effect, but lies merely in the mode of manifesting assent ... A true implied (in fact) contract can only exist (however) where there is no express one" ; this reflects the general law, see 17 Am.Jur.2d " Contracts," at Section 17, pp. 52-53; as said in Section 17 which cited Janusauskas ... " if there is an express contract, no recovery can be had on the theory of implied contract ... However, implication may be necessary and proper to determine the full and exact meaning of an express or oral contract," id. at pp. 52-53. Janusauskas quotes an earlier case, Rahmati v. Mehri, 188 Conn. 583 (1982), where the court said: " It is not fatal to a finding of an implied contract that there were no express manifestations of mutual assent if the parties by their conduct, recognized the existence of contractual obligations," 188 Conn. at page 587, see also Coruveau v. Jenkins Brothers, 144 Conn. 383, 387 (1957). It should be emphasized that " a contract implied in fact, like an express contract, depends on actual agreement," Reynolds v. Chrysler First Commercial Corp., 40 Conn.App. 705, 730 (1996). In other words " the test is whether the conduct and acts of the parties show an agreement," Brighent v. New Britain Shert Corp., 167 Conn. 403, 406 (1974). Also it should be kept in mind that, for example: " If A telephones a plumber to come to A’s house to fix a broken pipe, it may be inferred that A has agreed to pay the plumber a reasonable fee for the plumber’s services although the parties did not talk about compensation. The contract is partly express and partly implied in fact," Calamari & Perillo On Contracts, 6th ed., § 1.8, page 19. In other words " to establish the existence of an implied in fact contract, the plaintiff must prove that it rendered services with the reasonable expectation that the defendant would pay for the services and that the defendant accepted those services in a manner that reasonably would lead the plaintiff to believe that the defendant intended to pay for the services," Connecticut Light and Power Company v. Proctor, 158 Conn.App. 248, 255-56 (2015). As said in Williston on Contracts 4th ed., Vol 1, Section 1.6 an implied contract in fact is said to arise from a " mutual agreement and intent to promise when the agreement and promise have simply not been expressed in words."
(ii)
The court will discuss the concept of unjust enrichment. In Levinson v. Lawrence, 162 Conn.App. 548 (2016) the court quoting from earlier cases said that " ‘Unjust enrichment is a legal doctrine to be applied when no remedy is available pursuant to a contract ...’ A right of recovery under the doctrine of unjust enrichment is essentially equitable ... With no other test than what, under a given set of circumstances, is just or unjust, equitable or unequitable, conscionable or unconscionable, it becomes necessary in any case where the benefit of the doctrine is claimed, to examine the circumstances and the conduct of the parties and apply this standard," id. at page 558.
An older case, Monarch Accounting Supplies, Inc. v. Prezioso, 170 Conn. 659, 665-66 (1976) was a case dealing with the retention of property but its reasoning applies to a situation where one has received services from another. The court said that: " The doctrine of unjust enrichment is based upon the principle that one should not be permitted unjustly to enrich himself at the expense of another but should be required to make restitution of or for the property received, retained or appropriated ... It is not necessary, in order to create an obligation to make restitution or to compensate, that the party unjustly enriched should have been guilty of any tortuous or fraudulent act. The question is: Did he, to the detriment of someone else, obtain something of value to which he was not entitled."
Perhaps more simply put in 66 Am.Jur.2d, " Restitution and Implied Contracts" at Section 15, page 612 it says that: " To establish unjust enrichment the plaintiff must show that the defendant voluntarily accepted a benefit which would be inequitable to retain without payment. Otherwise stated, an essential prerequisite to unjust enrichment liability is the acceptance by the one sought to be charged of the benefits rendered under circumstances as are reasonable to notify them that the one performing the services expected to be compensated for them." Also at Section 10 of the Am.Jur. article it states that it is fundamental that for a person to be entitled to restitution, there must not only be unjust enrichment but also the person sought to be charged must have wrongfully secured a benefit, or passively received one which it would be unconscionable to retain.
Finally two points should be made. Unjust enrichment is, as noted, an equitable doctrine and as noted in Polverari v. Peatt, Jr. et al., 29 Conn.App. 191, 200 (1992) " One who seeks to prove that he is entitled to the benefit of equity must first come before the court with clean hands, Cohen v. Cohen, 182 Conn. 193, 201 ... (1980); Sachs v. Sachs, 22 Conn.App. 410, 416 ... (1990). The party seeking to invoke the clean hands doctrine to bar equitable relief must show that his opponent engaged in wilful misconduct with regard to the matter in litigation, DeCecco v. Beach, 174 Conn. 29, 35 ... (1977). The trial court enjoys broad discretion in determining whether the promotion of public policy and the preservation of the court’s integrity dictate that the clean hands doctrine be invoked. Id. " Finally, the doctrine of unjust enrichment due to equitable demands and concerns has been described as " a very broad and flexible doctrine," Gagne v. Vaccaro, 255 Conn. 390, 409 (2001). On the other hand, providing less comfort to the trier of fact, the court in Cecio Brothers, Inc. v. Town of Greenwich, 156 Conn. 561, 564 (1968) referring to an observation in a treatise said: " The doctrine of unjust enrichment has been described as a doctrine ‘which is so broad as to include almost any case in which unfair dealing appears and so vague as to give no help in solving cases as they arise ...’ "
(iii)
The theory of recovery under quantum meruit and that of unjust enrichment can be confusing in our case law when considered as separate concepts in relation to each other. Our court has admitted in Walpole Woodworkers, Inc. v. Manning, 307 Conn. 562 (2012) that: " We recognize that this court has used quantum meruit and unjust enrichment interchangeably, or as equivalent terms for recovery in restitution," see footnote 10. Earlier in the footnote the court cleared up any confusion by saying:
In addressing cases for restitution under the act, " this court has collectively referred to theories of quasi contract, quantum meruit and unjust enrichment as quasi contract claims or restitution." Habetz v. Condon, supra, 224 Conn. at 236 n.9, 618 A.2d 501; Barrett Builders v. Miller, supra, 215 Conn. at 317 n.1, 576 A.2d 455. We take this opportunity to clarify these closely related terms. Quantum meruit and unjust enrichment are noncontractual means of recovery in restitution. Quantum meruit is a theory of recovery permitting restitution in the context of an otherwise unenforceable contract. In contrast, recovery under a theory of unjust enrichment applies in the absence of a quasi-contractual relationship. See 66 Am.Jur.2d, Restitution and Implied Contracts § 33 (2011).
Section 33 of the Am.Jur.2d article referred to states that " the designation ‘unjust enrichment’ has been used interchangeably with quantum meruit is an equitable doctrine with ‘unjust enrichment’ termed as the modern designation. However, while unjust enrichment and quantum meruit are similarly based on an inequity in allowing a person to retain a benefit without having to pay for it, the two doctrines are not interchangeable as unjust enrichment applies only in the absence of any quasi contractual relationship; quantum meruit requires proof that services were rendered under circumstances consistent with contract relations. ‘Quantum meruit’ is a theory of recovery, not a cause of action; it is a claim independent of an assertion for damages under the contract although both claims have the contact as a common basis," see also discussion in 42 CJS: " Implied and Constructive Contracts," Sections 8, 9, 25, 26 which in some respects agrees with the observations in the Walpole Woodworkers case but in other respects reflects the confusion that Justice Rogers cleared up in her footnote 10 to Walpole Woodworkers.
C
Having tried to examine the law applicable to the facts of this case the court will now try to apply that law to the facts of this case as presented through testimony and exhibits.
First generally speaking both sides in argument took the position that the credibility of the parties was the decisive issue in this case. Credibility can be an emotionally charged and sometimes elusive concept. The issue of who to believe does not necessarily have to be premised on having to decide whether a witness is consciously and purposefully lying. This trial took place at least three to four years after the events in question. People often become confused or even defective in their memory of events upon finding out they did not understand the consequences of their action or learning after the fact that serious mistake was made by them in pursuing a course of action years before. Also when someone lies in a matter only tangentially related to the factual situation before the court, does not mean his or her testimony on issues central to the case must be disbelieved. Surrounding circumstances must be examined and the way in which the false action was revealed have importance.
In any event, certain matters in this case are not in dispute. Two separate jobs or work assignments were done on the plaintiff’s home unrelated to each other (1) installation of a new 200 amp service for the home which was to be underground which involved a new 200 amp panel to replace the existing one. Pipes were to run from a street pole to the home for phone and cable service (2) wiring for the inground pool in the yard of the home. A bill was sent for $13,200 to the defendants which was paid in two installments.
In an October 14, 2013 letter to the defendants, the plaintiff stated the original invoice for the 200 amp work quoted a price of $12,500 " minimum" but the price was increased by $700 " due to higher than expected material costs."
Very basically the defendants claim that it was the understanding between the parties that the agreement to pay $12,500 was to cover the 200 amp connection to the house and the work on the pool. The plaintiff has taken the position that the $13,200 figure quoted and paid for by the defendants encompassed only the work on the 200 amp job.
There are basic and convincing problems with the defendant’s present position, which a simple review of certain correspondence between the parties underlines.
The defendants actually purchased the home and property at which the work was done on July 22, 2013. The pool was installed after they moved into the Milford address. As intelligent people versed in the construction industry in New York long before the actual purchase of the house, they began planning on what work they wanted done. In a May 1, 2013 letter to Mr. Carusone, Mrs. Bharatlall wrote the following: " As per our telephone conversation, the scope of work for the property that we are purchasing is the following: (1) File all required permits with City of Milford (2) Liaison with IU (3) Upgrade to 200 amps (4) Feed from street must remain underground (5) Rewire interior lines as required (6) Relocate 1939 sub-panel down about 48" on wall in order to eliminate the partition (7) Add additional outlets in some rooms." She then gave Carusone the location of the property. There is only reference to the 200 amp work and understandably no mention of work on the pool which as noted was not even installed until after the July purchase.
The point of the foregoing is that the contemplated scope of work as being confined to 200 amp work is underlined in an August 14, 2013 letter to the defendants, which is consistent with the May 1, 2013 letter from Mrs. Bharatlall, in Carusone wrote:
August 14, 2013
In reference for the installation of a new 200 amp single phase service, service is to be underground. New 200 amp panel and the replacement of the existing subpanel. To 2 inch pipes from pole on street to house for phone and cable services.
Price to be a minimum of $12,500. It may slightly be adjusted based on the total cost of the material. The down payment of $6,000 can be wired to my banking account at:
People’s United Bank
Trolley Square Stop & Shop
370 Hemingway Ave
East Haven, CT 06512
203-468-8012 Account # - 2077000325
Not responsible for any digging, back filling, patching and concrete work to be done by others.
Contact me with any further questions, Nicola Carusone
At trial when Mrs. Bharatlall was questioned by her attorney in reference to the letter, the following occurred:
Q. So when did Mr. Carusone first present you with a proposal?
A. Um, it was in Aug- on August 14
Q. Okay; and did you read it?
A. Um. Should have read it more carefully
Q. I mean, did you read it?
A. No. I saw the amount-
Q. Mm-hm
A. - and I told my husband. It was twelve thousand five hundred for the work.
If she had read the August 14, 2013 letter it would have been clear to her that work on the pool was not included in any pricing set forth in the letter which clearly only billed for work on the 200 amp job. The court finds it difficult however, to accept Mrs. Bharatlall’s testimony that she did not read the letter. She struck the court as a highly intelligent woman involved in business affairs who was directly involved in the work to be done on the house she and her husband bought. The letter contains one introductory paragraph of two sentences with three other short comments following the first paragraphs. The first paragraph, second line down has " 200 amp" in it and the words in the next short paragraph says $12,500 minimum only three lines below the " 200 amp" reference. If one is reading the letter for the price how could one not see the " 200 amp" reference. The August 14, 2013 letter is perfectly in line with the May 1, 2013 letter discussed previously, which Bharatlall wrote to Carusone. It also is consistent with an October 14, 2013 letter Carusone wrote to Bharatlall saying " regarding the subject work" the price would be $13,200, not the original price, because of " higher-than expected" material costs.
Two other aspects of our case law are relevant to the discussion even if somehow one could accept the testimony of Mrs. Bharatlall that she did not read the August 14, 2013 letter. Under our law there is an operative presumption that one has read a contract he or she has signed, see, Calamari & Perillo On Contracts, 6th ed., § 9.41, page 342, Pimpinello v. Swift Co., 170, N.E. 530, 531 (N.Y. 1930). Also under the mailbox rule a properly stamped and addressed letter placed in a mailbox raises a rebuttable presumption that it was received, 29 Am.Jur.2d " Evidence," § 262, see Tyler E. Lyman, Inc. v. Lodrini, 63 Conn.App. 739, 747 (1994). Of course these doctrines are not directly on point to the scienter issue now before the court. However, they are crucial to the orderly conducting and fairness of contractual relations. In the two circumstances set forth (1) a person cannot say he or she was not aware of the obligation of a contractual relationship set forth in contract documents (2) an individual cannot claim ignorance, without more of notice provisions required in contractual or other legal relations if a letter was mailed to him or her providing notice- i.e. if he or she received it, per the presumption, he or she must be presumed to have read the letter providing notice. What else is the point of the presumption of receipt? It seems to the court that correspondence between parties- one who is to do work, the other to receive its benefits- it should be the case that there is a presumption the correspondence was received and read by the party to whom it is addressed. The August 14, 2013 letter is not a contract but it sets forth the work one party agreed to do for another and the minimum price for such work and the last sentence reads " Contact me with any further questions." There was no evidence presented that Mrs. Bharatlall contacted Carusone after the August 14, 2013 or October 14, 2013 letter with complaint or observation that the $12,500 figure or later $13,200 figure was incorrectly attributable only to work on the 200 amp job and did not include the cost of wiring the pool. Mrs. Bharatlall seems to have been well aware that two work projects were involved. The pool work was discussed according to her testimony before receipt of the August 14 letter and work on the pool only began at the end of August. She sent an email to Carusone on August 28, 2013 saying the lighting for the pool would be ready for hookup " after this Friday."
Mrs. Bharatlall’s testimony is confusing at best. At trial she said she did not read the August 14th letter but said she saw the amount $12,500, for the work. But if one examines the exhibit it is apparent that there is reference only to the pool work in two sentences directly above the " price." The words " 200 amp" appear twice and there is no reference to pool work- 200 amp can only refer to the electrical connection to the house.
Thus, the defendant cannot conveniently put aside the fact that she received a letter on August 14, 2013 claiming the price for doing the 200 amp work and the connection of the wires to the house was to be $12,500- But what then is the defendants’ argument. (1) the only undisputed evidence is a letter setting a price for 200 amp work with no mention of the pool but both sides knew the price included the prospective work on the pool or (2) the work on the pool was to be a gift? To ask the question provides the answer. Why would Carusone send a letter, the one dated August 14th, wherein the contract price of $12,500 is set forth but only mention of the 200 amp job is made. He would have to assume Mrs. Bharatlall would read the letter. Mrs. Bharatlall also testified she was " shocked" when on July 23, 2014 she received a letter from Carusone requesting an additional $5,000 for work on the pool. But how can she fairly claim to have been shocked after receiving the August 14 letter and the October 14, 2013 letter which referred to the " subject work" in the August 14th letter where it was confined to the 200 amp work specified in the earlier letter? Her testimony at pp. 173-74 is also interesting regarding the being shocked claim. She underlines the defendants already paid $13,200 and " that’s a lot more than you would pay in New York City" and ‘there’s no way’ we owed " any more money for additional work." But then she agreed to the court’s statement of her position that when she first entered into a contractual relationship with Carusone " part of the deal" was that for the thirteen thousand dollars, Carusone was going to do the pool. In fact, she also replied " the amount of money supports that." This is a fair point but given the correspondence between the parties and the dates thereof as discussed by the court, her initial reaction of " that’s a lot more money than you would pay in New York City" seems to suggest the defendant’s position is really based on a belief that they had entered into a bad business deal which exposed them to excessive monetary claims and they now wanted to correct that mistake by getting the pool work done without having to pay for it.
Another matter should be discussed. As noted Carusone’s testimony is that two different jobs were involved, one involving installation of a 200 amp underground service, the other wiring for the inground pool. Permits had to be pulled for each job. Mr. Carusone testified the process of getting a permit by going to the city offices takes three or four hours. Yet he got two separate permits, each one procured at different times in the month of August 2013. If there had been an agreement that both jobs were to be done before the permits were procured, why would Carusone not have gotten them at the same time since it takes several hours for issuance of a permit? It is true that the 200 amp job was done on the basis of a quoted price while the pool wiring was not and was based on labor and material and was a type of job he had never worked on before. But why would that necessitate getting each permit on a different date?
From the foregoing discussion it seems to the court that there was an implied contract for the wiring of the pool which was separate and distinct from the contract between the parties for the 200 amp work on the house. Mrs. Bharatlall must have specifically indicated to Carusone what the work she wanted done on the pool consisted of and to this day there is no claim the work was not done or was not done in a workmanlike manner. Carusone evidenced his agreement to Bharatlall’s offer by commencing and completing the work and Bharatlall accepted his agreement to do the work by letting him finish it. The prerequisites for a finding of an implied contract in fact appear to have been established as discussed earlier in this opinion, see reference to comment in Calamari & Perillo On Contracts in Connecticut Light and Power Company v. Proctor, supra . In light of that, as previously discussed, a claim of unjust enrichment will not lie. But a claim of quantum meruit would apply if although a quasi contractual relationship has been established, the implied contract were found to be unenforceable. But there is nothing to indicate the implied contract here would not be enforceable.
Arguments or positions taken by the defendants arguing against a separate agreement theory, at least to the court are not convincing. At a post-trial hearing on this matter where the attorneys addressed a series of questions the court sent to each side, defense counsel thoroughly raised the issue of Mr. Carusone’s credibility. The defense position at trial was that there was no separate agreement to do work on the pool but the agreement between the parties included the plaintiff’s agreement to do the 200 amp work and the pool wiring work as part of the same job. Their $13,200 check was in full payment of this agreement. Carusone testified that there was an agreement to do the 200 amp work on the house for which there was a quoted price and a separate agreement to wire the pool which would entail an added financial obligation on the part of the defendants.
The credibility issue arose as follows: on direct conducted by plaintiff’s counsel, Mr. Carusone stated it was his practice to underestimate the cost of a job he is required to put on the city permit required for his company to start working on a job. He did so in this case- on the 200 amp job he wrote on the permit the value of the job was $8,900, on the pool wiring permit he valued the job at $1,900. The permit fee therefore to be paid to the City of Milford was $111.00. The pool wiring permit listed the value of the job at $1,900 with a fee of $27.00. In fact, Carusone claimed at trial the charge for the 200 amp job was $13,200 and the defendants were billed $5,752.33. The figures listed on the permits were substantially less than the $18,952 for both jobs that Carusone claimed was owed to him. Apparently, the permit fee was the responsibility of the homeowner for whom the plaintiff did the work. By not putting the actual value of the job but a lessor value the city would be deprived of the full fee that the city was owed. Carusone said this was his general practice to underestimate job costs he put on permits and the reason he did so (to use the vernacular) was to give the customers a break on the fee that would have to be paid to the town. The amounts involved in this case would not be great- for example on the 200 amp job if the correct amount of $12,500 had been put down the city would have gotten only forty or fifty dollars more. But Carusone’s testimony indicated he underestimated his charges to his customers on the permit form on all the jobs he did depriving the city of more substantial sums of money.
When the permit on the 200 amp was filled out, the quoted price for the job was $12,500, the added $700 was incurred as a result of more as in cost of material making the price for the job $13,200.
Defense counsel used the foregoing to claim that it established a general lack of veracity which cast doubt on his credibility as to his claim that the $13,200 payment sent to him was to be the charge for only the 200 amp and not the pool wiring jobs and also that his almost $19,000 demand for doing the work on both jobs was inflated in any event.
The question of how a witness’s veracity may be challenged usually arises in the context of what rules the court should apply in permitting a line of questioning on cross examination. But the comments made by commentators and the cases in this context on what questioning can appropriately lead a trier to question veracity are generally instructive. Thus the lack of credibility issue came up in this case is somewhat unusual in that plaintiff’s counsel himself first elicited Carusone’s testimony about his practice of lowering the value of a job on a permit form which the court will discuss later.
In any event, the comments in Vogel v. Sylvester, 148 Conn. 666 (1961) at pages 675-76 are instructive. There the court said: " Whether particular acts of misconduct are relevant to lack of veracity depends on whether they have a logical tendency to indicate a lack of veracity." As said in Vol. 1 of McCormick on Evidence at § 41 page 247 ... " the majority of courts limit the cross examination attack on character to acts which have a significant relation to the witness’s credibility." Citing Vogel v. Sylvester, supra . In Tait’s Handbook of Connecticut Evidence, 5th ed., Tait & Prescott at § 6.32.2, page 397 says: " A witness may be impeached by specific acts of misconduct that evidence, a lack of veracity citing several Connecticut cases including Vogel v. Sylvester. Such conduct must relate to lack of veracity and not merely to general bad character." (Citing Vogel v. Sylvester, again.)
Finally, the court would note that in Martyn Administratrix v. Donlin, 154 Conn. 402, 408 (1964) the court cited the Vogel v. Sylvester case and said that: " In an attack on his credit, inquiry may be made in the discretion of the court as to particular acts of misconduct tending to show a lack of veracity, even though such evidence might be irrelevant to the issues in the case." First, it would be hard to conclude that the lack of veracity evidence here is relevant to the specific issues in this case. No matter what figures for job cost Carusone put on each of the permits, the fact remains that there were two separate permits and Carusone in making the false entries was not benefitting himself but according to his testimony, the defendants- small amounts of saved fees were involved in any event.
There was some indication, at least to the court, that the defense was attempting to show that the lower cost figures put on the permits support the notion that the $13,200 actually paid was the fair price and even agreed price for both the 200 amp and pool wiring job. But the total permit price is $10,800 for both jobs lower than the $13,200 the defendants paid to the plaintiff.
If in fact the lack of veracity evidence might be irrelevant to the issues in the case, a court, per Vogel, would have discretion to not even let the evidence in. If that is so, how could it be argued that such evidence in a case like this would necessarily control the court’s ultimate decision on the merits when the evidence actually does come into the case? But even if the court is incorrect in concluding this evidence is not directly related to the actual issues in the case, and a court could not exercise its discretion to keep such evidence out, the court is not aware of any case law suggesting that where a party is impeached by acts of veracity or even a felony conviction of perjury, this dictates that an adverse verdict must be rendered against that party. It only means that the evidence is considered with all the evidence in the case to determine the final result of litigation.
Finally, the issue of veracity in this case is subject to a certain common sense evaluation. It is certainly true that Carusone in this case and apparently others according to him, put false information as to cost of jobs for work on permits which he needed to submit to the City of Milford to begin work. But the fact remains that he admitted to this not after cross examination but volunteered it upon questioning by his company’s lawyer. Why was this done? Perhaps it was done to explain away the low prices he put on the permits in a case where he or his counsel might expect a challenge might be made to the amount he billed the defendants for doing the work that is the subject of this suit. But the fact remains, the filing on the permits at the town hall is a different event (four years earlier) than the delivery of testimony in court under oath. His candor at trial about past acts underlying a lack of veracity could be said to support a finding of veracity as to his trial testimony.
Something was also made of the fact that according to Carusone’s records the last work his company did on the pool was October 31, 2013. A final inspection by the town was held on November 21, 2013 and Carusone was informed that a ground fault electrical outlet had to be installed within 20 feet of the pool. The invoice was not sent to the defendants for work on the pool until over seven months after the plaintiff last worked on the pool. The late sending of the bill for the pool indicates it is argued, that in fact there was no separate agreement to work on the pool separate from the 200 amp work to the house. Carusone said he told Mrs. Bharatlall about the problem but did not address it since winter was at hand and he decided it could be done in the spring. In the invoice, Exhibit 9, he noted that he told her about the outlet that had to be installed and she could have someone else do the work or he could come back to do it. The late bill is a valid consideration but the court does not consider it a reason to conclude that it is proof positive that work on the pool was part and parcel of an agreement the plaintiff entered into to do the 200 amp house work. There would be understandable hesitation about sending a bill when the usage of the pool had to be delayed until the outlet could be installed near the pool. Also the court concludes the other evidence it has discussed and the trial testimony clearly indicate two separate jobs were involved in this case with an implied contract for work on the pool. When all is said and done, Carusone sent the defendant a bill in August 2013 clearly defining the agreed on work for the house which was later increased because of greater expenses for material- all of this before the November 21, 2013 pool inspection which noted an outlet had to be installed and before Exhibit 9, setting forth the cost of the pool work was sent to the defendants.
In any event an implied contract to do the work separately on the pool has been established. The defendants asked that the work be done on the pool and the plaintiff did the work, see the discussion at page 4 of this opinion. For example Connecticut Light and Power Co. v. Proctor supra states there is an implied contract and the defendant accepted them that would lead the plaintiff to believe he would be paid, also see quote from Calamari and Perillo on Contracts on page 4 which is even more on point.
The court also concludes a defense to this claim is not barred by the Home Improvement Act. Even if a contract between the parties for the pool work existed and was separate and legally distinct from the contractual agreement between the parties, there can be no contractual enforcement of the plaintiff’s claim if there was a violation of the Home Improvement Act as set forth in Sections 20-418 through Section 20-432 of the general statutes. The defendants were self-represented at the initial stages of this litigation and filed a special defense to the effect there had not been compliance with the act. In Barrett Builders v. Miller, 215 Conn. 316 (1990) the court held a contract could not receive from a homeowner for work done on a quasi contract or unjust enrichment theory for work done under a contract which violated the requirements of the act. In Andy’s Oil Service, Inc. v. Hobbs, 125 Conn.App. 708 (2010) the court discussed the act and its purposes at pp. 714-15:
As our Supreme Court has found, the act " is a remedial statute that was enacted for the purpose of providing the public with a form of consumer protection against unscrupulous home improvement contractors ... 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." (Citation omitted.) Wright Bros. Builders, Inc. v. Dowling, 247 Conn. 218, 231, 720 A.2d 235 (1998). Therefore, to advance this purpose, the act provides that a home improvement contract is not enforceable against a homeowner, either by way of an action for breach of contract or for unjust enrichment, unless the contract complies with the mandatory writing requirements of General Statutes § 20-429(a).
The court in Barrett Builders v. Miller, 215 Conn. 316, 327 (1990) also said the purpose of the act is also to protect homeowners from substandard work ... However, in this case the court finds that the act cannot be relied upon by the defendants to bar the plaintiff’s claim for several reasons.
As said in the Andy Oil Service, Inc. v. Hobbs, case at page 715.
Although the act generally prohibits a plaintiff from pursuing a claim for unjust enrichment on a home improvement contract if the act’s requirements are not satisfied, proof of bad faith on the part of the homeowner is an exception to this restriction. Dinnis v. Roberts, supra, 35 Conn.App. 257. The bad faith exception precludes " the homeowner from hiding behind the protection of the act." (Internal quotation marks omitted.) Id., 258. " 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." (Internal quotation marks omitted.) Id., 257-58. " It is the burden of the party asserting the lack of good faith to establish its existence ..." (Internal quotation marks omitted.) Lucien v. McCormick Construction, LLC, 122 Conn.App. 295, 300, 998 A.2d 250 (2010).
A judicially created bad faith exception to the Home Improvement Act was first set forth in Habetz v. Condon, 224 Conn. 231 (1990). At page 240 the court said: " To deny the contractor an opportunity of recovery after he has completed his end of the bargain if he has persuaded the trier of fact that a statutory remedy is being invoked by the homeowner in bad faith would be to countenance a gross injustice and indeed to encourage its perpetration and insure its success."
In this case the August 14, 2013 letter sent to Mrs. Bharatlall made clear that the 200 amp work would at a minimum cost $12,500 with the final price dependent on the " total cost of material." The court cannot accept Mrs. Bharatlall’s testimony that she did not read the letter which made clear that any work on the pool would not be included in the final $13,200 payment demand. Even if one could accept her testimony that she did not read the August letter, an October 14, 2013 letter would have alerted this highly intelligent woman to examine the contents of the August 14 letter or ask that a copy be forwarded to her. The point is the August 14, 2013 letter was sent before the plaintiff even started working on the pool- under the foregoing circumstances, the defendants should not be able to reap the benefits of the pool rewiring without having to pay for it.
Even if the court is incorrect in its just mentioned reasoning, there is another reason why the act should not apply to bar the plaintiff’s claim. Section 20-428 sets forth that the act does not apply to ... " (4) any person holding a current professional or occupational license issued pursuant to the general statutes ... provided such person engages only in that work for which such person is licensed or registered." J & N Electric, Inc. is the plaintiff, Mr. Carusone is the president of the corporation. He testified that he is a licensed electrician as is his partner in the business, Giovanni Conte. This was not contested. It is true that two other men worked for the company, Giovanni Zacconi who has been an electrician for over twenty years but had not taken the test yet necessary for licensing and Pietro Pinelli who is not a licensed electrician but is a certified helper. In Avon Plumbing & Heating Co. v. Fey, 40 Conn.App. 351 (1996) at page 358, the court in footnote 10 cites an earlier case O’Donnell v. Rindfleisch, 13 Conn.App. 194, cert. denied 207 Conn. 805 (1988). For the following: " 10. If work performed on premises is done pursuant to an oral contract by an unlicensed worker, there may be no violation of the act if a licensed contractor is responsible for any poor performance by an unlicensed worker." Here the company, J & N Electric Inc., run by two licensed electricians would be responsible for any poor performance that might be alleged.
But there is another reason that the act should not apply in a situation where unlicensed individuals work for a company operated by licensed owners. The ameliorative purpose of the act is to protect homeowners against home improvement contractors and to promote understanding by consumers of the terms of these contractors and their right to cancel them. The licensed partners would be the ones who would initiate contract formation and would explain contract terms. This would not be the responsibility of unlicensed helpers- it would have been an impossible task in this case since Mrs. Bharatlall said both Zacconi and Pinelli spoke Italian. Perhaps more to the point, Exhibit 8 was introduced into evidence which lists who was on the job of rewiring the pool. An objection was made to putting this document into evidence because of a failure to comply with the Business Record Exception under § 52-180. This will be discussed later in the opinion but even if the objection to the introduction into evidence of Exhibit was well taken as to its substantive contents- hours worked as a basis for part of the damage claim- Mr. Carusone prepared the document based on his examination of the business records. The Exhibit indicates that when actual work was done on the pool rewiring job on September 4, and October 30 of 2013, Mr. Carusone and his licensed partner were there to work along with unlicensed helpers on September 4, 2013 and on October 30, 2013 his partner worked with an unlicensed helper. If one of the purposes of the act is to protect consumers from substandard work, the presence of licensed electricians on the job site offers that protection. Any other result would impose an impossible reading of Section 20-428 and too narrowly confine the purposes sought to be achieved by its enactment. Would the presence of unsupervised apprentice workers destroy the exemption? How would apprentices be able to learn the ropes (to coin a phrase) of doing these jobs- is a class room setting the only answer? To ask these questions, at least for the court provides the answers.
In any event the court concludes there was an implied contract to do separate work on the pool and a defense under the Home Improvement Act will not lie.
D
The court will now discuss the issue of damages. The plaintiff calculates his damages for wiring the pool job at $5,752.33 with $4,500 for labor costs and $1,252.33 for materials. The bill for these services was sent to Mrs. Bharatlall on July 14, 2014. Over objection Exhibit 8 came into evidence. Mr. Carusone stated that he prepared the exhibit from reviewing time cards filed by people on the job. The exhibit indicates he spent 3 hours applying for a permit on August 30, 2013, and being present for inspections that took place on September 10, October 1, and November 13, 2013. Actual work on the pool job occurred on September 4, 2013, October 30, 2013, and October 31, 2013. He arrived at the $4,500 figure for labor by setting the hourly rate at $75 per hour and multiplying it by 60 hours which Exhibit 8 indicates. Defense counsel objected to receipt of Exhibit 8 into evidence arguing it did not meet the requirements of the Business Records section of the Code of Evidence § 8-4. The test for admitting such evidence is that the (1) record was made in the regular course of business (2) that it was the regular course of business to make such a record and (3) that the record was made at the time of the act described in the report, or within a reasonable time thereafter, Bell Food Services, Inc. v. Sherbacow, 217 Conn. 476, 485 (1991).
The hours on Exhibit 8 add up to 63 hours but Carusone rounded out the figure for 60 hours of labor.
The Code of Evidence embodies verbatim the language of Section 52-180 of the general statutes.
Interpreting the statutory language, the courts have held that all the three separate elements must be proven; if any one element is not established the record cannot come in under the business record exception, Weller v. Fish Transport Company, 123 Conn. 49, 60 (1937), State v. Perry, 176 Conn. 170, 180 (1978). Tait’s Handbook On Connecticut Evidence, 5th ed., Tait and Prescott cites the Bell Food Services case supra for the proposition that Section 52-180 " recognizes that the trustworthiness of business records is derived from the fact that such records are used for business purposes and not for litigation" 217 Conn. at pp. 185-86. It also cites Hartford Division, Emhart Industries v. Amalgarinated, Local Union, 376 UAW, 190 Conn. 371 (1983) where the court said: " We have held that the statute should be liberally interpreted ... In part, this is due to the fact that the statute recognizes that the trustworthiness of such documents comes from their being used for business purposes and not for litigation, id., pp. 388-89. It should be noted that in Jefferson Garden Associates v. Greene, 202 Conn. 128, 141 (1987) the court referring to the Emhart Industries case said that ... " we have not thereby mandated the exclusion of multipurpose documents that have ancillary utility in subsequent litigation. We have emphasized instead: that § 52-180 should be liberally construed ...; that the essential hallmark of admissibility under § 52-180 is the trustworthiness of the document ..."
The court will now try to apply the foregoing discussion to the facts of this case. For the court at least a difficult question is presented on the issue of whether Exhibit 8, which listed the labor expenses and material expenditures for the work on the pool, could properly be admitted as a business record under Section 52-180 of the general statutes. On the one hand it appears to be the case that Exhibit 8 itself was not prepared at or near the time the work was done. The bill which would have included a charge for labor costs dependent on hours work was not sent for months after J & N Electric completed work on the pool. But it was prepared from time cards submitted near the time the work was done by people who actually worked on the job. Such preparation was necessary to determine salaries and for ascertaining bills to be sent to customers- clearly business purposes. Section 803.6 of the Federal Rules of Evidence regarding business records is similar to ours and Gass v. U.S., 416 F.2d 767, 772 fn 19 CDC Ar, 1969, indicates the information on time cards would be the type of information permitted under the business records exceptions.
But the fact remains that the time cards were not introduced but only a purported summary of them- an after the fact summary. In his discussion of the business records exception McCormick in McCormick on Evidence, Section 287 addresses this. It states:
Under the common-law exemption, the entries were required to be original entries and not mere transcribed records or copies. This restriction was based on the assumption that the original entries were more likely to be accurate than subsequent copies or transcriptions. In business practice, however, daily transcriptions, such as sales or services rendered, are customarily noted upon slips, memorandum books, or the like by the person most directly concerned. Someone then collects these memoranda and from them makes entries in a permanent book, such as a journal or ledger. In these cases, the entries in the permanent record sufficiently comply with the requirement of originality. They would certainly be admissible if the slips or memoranda disappeared and should be admissible as the original permanent entry without proof as to the unavailability of the tentative memoranda. This practice also serves the interest of convenience, since it is much easier to use a ledger or similar source than slips or temporary memoranda when the inquiry concerns the state of an entire account. Of course, the slips or memoranda would also be admissible if they should be offered.
Even if the court erred in allowing Exhibit 9 into evidence to establish the plaintiff’s damages there is another reason that would warrant the introduction of the specific damage claim here into evidence. It is the general rule that " the value of services may be proved by opinion evidence and the one who has rendered the services is qualified to express an opinion as to their worth ... and to give his reasons for the opinion he expresses" : Builders Steel Co. v. Commissioner of Internal Revenue, 179 F.2d 377, 379 (CA 8, 1950), Somers v. Cooley Chevrolet Company, Inc. et al., 146 Conn. 627, 630 (1959) which cites the Builders Steel Company case, Rizzo v. Cunningham et al., 303 Mass. 16, 25 (1939). J & N Electric is a small business with two partners, both licensed electricians and two certified helpers. On the pool job Carusone was present one of the days when work was done and had been in the business for at least twenty years. It would seem fair under the case law that he would be able to put a value on his services and that of his partner and the two certified helpers. As to the cost of materials, there was no production of bills paid by Carusone but that he paid the claimed amount for materials was not directly questioned. Interestingly enough, the defendants’ Exhibit B, which the court will try to address later in this opinion, states that the appropriate price for materials on the pool job should have been $1,009.36 which is only $242.97 more than what Carusone claims for material. But again Exhibit B only appears to be an argument he would have only have had to pay $1,009.36 for material not that Carusone did not pay the higher amount.
The substantive objection offered by the defendants to the amount of damages claimed is set forth in Exhibit B. Exhibit B is a budget estimate prepared by the defendant Ken Bharatlall for the electrical work done at the home, including work for the 200 amp connection to the house and the separate work on the pool. Using a " means" book he purports to list cost of materials and hours of labor that would be appropriate for both of the jobs at issue- the estimate conveniently adds up to $13,200. He testified that he has a degree in engineering and a masters degree in construction management. He owns a construction company in New York City. He said he spend 25% of his time doing estimating; his company does " commercial projects ... a few residential." The projects range from around five thousand to thirty million dollars. He gives estimates for general construction including mechanical, electrical, and plumbing. He’s worked as an estimator for twenty-five years. He did estimates for work done in Connecticut but did not identify how many, if any, were for work on residential property, when such estimates were prepared, and whether they involved electrical work. In fact he testified he did no residential estimates in Connecticut. Mr. Bharatlall said in making an estimate he relied on something called a " means" book. The " means" book suggests a price for a job but there is a " modifier." He uses a " base city" and " from that the percentage goes down depending on the location."
In December 2014 Mrs. Bharatlall e-mailed Mr. Carusone to the effect that " our estimator has prepared a breakdown of work that was performed by your firm." This was done before the defendants retained counsel and the " estimator" who turned out to be the defendant Mr. Bharatlall was not disclosed as an expert pursuant to Practice Book § 13-4 prior to the April 2017 trial. The defendant’s Exhibit B was entered as an exhibit apparently through agreement of the parties but this cannot be construed as a waiver of any objection to opinion evidence in the Exhibit especially in light of lack of formal disclosure under the practice book rule. As said in Wyszomierski v. Siracusa, 290 Conn. 229, 234 (2009), " The purpose of Practice Book § 13-4(f) is to assist the parties in the preparation of their cases, and to eliminate unfair surprise by furnishing the opposing parties with the essential elements of a party’s claim." Plaintiff’s counsel said he first saw Exhibit B on the day of trial, defense counsel claimed the exhibit was sent to opposing counsel before then. In any event there was no disclosure of Bharatlall testifying as an expert until he took the stand.
At trial defense counsel argued that Mr. Carusone was allowed to give his opinion as to the value of his services therefore despite the foregoing observations Mr. Bharatlall should also be allowed to render an opinion on the value of the work performed on his own home. However, the situations are different as a cursory reading of Section 7.2.2 of Tait’s Handbook of Connecticut Evidence and also Sections 7.1.1 and 7.2.1 make clear. As discussed earlier, cases like Somers v. Cooley Chevrolet Co., 146 Conn. 627 (1959) hold that a lay witness can put a value on his own services even though he is not testifying as an expert. Here Mr. Bharatlall does not purport to testify as to the value of his services but on the appropriate value of the services of others. He candidly admitted he was not even present, except for maybe once, while Carusone worked on his home and never testified whether that one time concerned work on the pool or the 200 amp connection to the house.
Even if the court erred in not allowing to give an expert opinion- although the transcript indicates he was allowed to do so to establish a record- the court can evaluate his testimony. It was never explained at least to the court’s satisfaction, what a " means" book is and how it would be applied to particular jobs. Does it simply offer suggested prices for work or are the prices mandated. It is generally accepted as an appropriate guide to costs or as the only way to estimate costs. The " means" book was never offered into evidence, particular applicable sections were not discussed, and the methods used by Bharatlall to apply it to particular aspects of this pool work were not explained. It was never explained how he arrived at the estimates indicated on the last two pages of Exhibit B by use of the means book. Does the means book explicitly deal with electric work on pools? Mr. Carusone himself testified that the " means" book is not used for smaller jobs like the work done on the pool.
Perhaps more to the point the court would add that it has no doubt as to the professional accomplishments and expertise of Mr. Bharatlall in his own area of work. But the court does question his level of expertise regarding residential properties and particularly electrical work on them- specifically as regards electrical work on pools. How can the court accept his " estimate" when these concerns have not been addressed, especially concerning as to how they should affect his use of the " means" book?
Finally the court would add that the last page of Exhibit B where estimates are given is difficult to understand, at least for the court. As to work on the pool it states the cost is $2,200 then it says:
1 men x 1 day @ 45.83/hr & 1 men x 1 day @ 103/hr plus $1,009.36 FOR material- (Median Hourly Rate in Milford CT is of $23/hr most experienced- ALLOWANCE FOR PRINCIPAL PERFORMING THE WORK @ $103/hr).
Is this saying only one man should have worked on the job- then why is " men" used. What does " $23/hr most experienced" mean? Is it saying " principal" need not have worked on the job- Exhibit 8 indicates the two licensed partners worked on the job on September 4, 2013 and one on October 30 and 31, 2013.
In any event for all the foregoing reasons the court enters judgment for the plaintiff in the amount of $5,752.33- $4,500 for labor and $1,252.33 for material. Interest is awarded on the amount of $1,922.69 and the Bill of Costs is granted in the amount of $499.