Opinion
No. CV 03 0193723
June 1, 2004
MEMORANDUM OF DECISION
The plaintiff asks this court to grant judgment (1) for money damages pursuant to an oral contract for electrical services performed on behalf of the defendant, Alex Etemadfar, and (2) for foreclosure of a mechanics lien. The defendant admits the contract but contests its terms. Based on the credibility of the witnesses and the exhibits, the court finds the following facts:
The defendant called the plaintiff company, with which he had previously done business, and asked it to perform electrical services at his building at 4 France Street, Norwalk, Connecticut. The building had suffered a fire which caused the electricity to be turned off and the defendant's tenants to be housed in a hotel at considerable expense to the defendant landlord. The building contained six rental apartments. The defendant was anxious to get the electricity restored and to get his tenants back in the building.
Gerard Bach, the owner of Precision Electric, submitted a written proposal (Exhibit C) to the defendant which included billing on a time and material basis. Bach told the defendant on the telephone that he would charge $75.00 per hour: $50.00 per hour for licensed journeymen eletricians, and $25.00 per hour for apprentices. The defendant agreed, although he never signed the proposal. Since the house needed to pass inspection by town officials prior to restoring it to full use, much of the work was required by the fire marshal and the electrical inspector. After oral agreement was reached by the parties, the plaintiff secured two required building permits for the job which consisted of 1) getting power back to the building and getting town officials to agree that it was safe; 2) getting power back to the tenants; and 3) rewiring the third-floor apartment.
The defendant allowed the plaintiff to commence work at the house; indeed he urged the plaintiff to do so since he wanted to get his tenants back into rental status. The defendant admits he came to the job site often and saw the plaintiff's electricians and apprentices working there. He did not tell them to stop working. There is no credible evidence presented by the defendant that the plaintiff's work was not competent. In fact, the work was approved by the city inspector, and this defendant actually paid for a portion of it on two occasions. The first invoice dated November 19, 2001 for $695.00 was paid. On March 15, 2002 a second invoice was sent to the defendant for $7,134.51. Again, he did not ask the plaintiff to stop working. On March 22, 2002 a third invoice was sent for $3,405.17. The defendant then sent the plaintiff a check for $5,000.00 on April 11, 2002, leaving a balance of $5,539.68 which he did not pay. When Mr. Bach contacted the defendant regarding the balance due, the defendant told him the costs were out of control. Significantly, prior to disputing the balance owed, the defendant never complained to the plaintiff about the work or the quality of the work performed.
During the trial, the plaintiff vigorously objected to evidence from the defendant about additional electrical expenses incurred after the plaintiff left the job, because of the defendant's failure to disclose that material as requested. The plaintiff also objected to allowing expert testimony by the defendant on electrical matters. The court, however, has decided to let in all of that testimony and has evaluated the testimony, its weight and its credibility.
I.
In his pleadings, the defendant admits the existence of a contract, but he differs as to its terms. This court, however, concludes there was an oral contract between the parties for electrical work on a time and material basis. The defendant allowed the plaintiff not only to start work but to continue working. Furthermore, the defendant paid for a large portion of the work and material. The court finds that the defendant intended that the plaintiff go ahead with the work of fixing the damaged electrical system in accord with its proposal. He could have complained to the plaintiff or stopped its work at any time. He did not. Clearly, he intended to receive the benefit of the plaintiff's work. His complaints about the plaintiff's work came too late.
Moreover, the court finds that the plaintiff's charges were reasonable. Therefore, the contract was breached and the defendant was unjustly enriched. The court finds for the plaintiff on the second and third counts.
II.
The court, having considered the defendant's special defenses, finds that the defendant failed to prove them by a fair preponderance of the credible evidence. Moreover, after a review of the testimony, the court finds that the defendant failed to prove the essential elements of his counterclaim by a fair preponderance of the evidence.
III.
The amount of the plaintiff's claim is $5,539.68. The plaintiff concedes it did cable and phone wiring to the third-floor apartment that had not been requested. Since Mr. Bach estimated that work to be worth between $300 to $400, the court deducts $350 from the amount claimed.
As to the $750, the defendant claims he paid to another electrician to finish the job, that amount would have had to be paid to the plaintiff, if the plaintiff had been paid for work already completed, and then finished the job. Therefore, this does not merit a deduction. $5,539.68 less $350.00 equals a total amount of $5,189.68 by which the defendant was unjustly enriched.
IV.
Under the Home Improvement Act, if work is done by a licensed electrician who works for a corporation, "the lack of a written contract between the corporation and a home owner does not bar recovery by the corporation for the work performed." Avon Plumbing Heating Co. v. Fey, 40 Conn. App. 351, 358, 670 A.2d 1318 (1996). But all the work and services covered by the definitions in § 20-330, Conn. General Statutes, are to be performed by persons licensed for the work under Chapter 393 which covers electricians. See, § 20-337, Conn. General Statutes.
General Statutes § 20-337 provides: "Nothing in this chapter shall require that the ownership or control of a business engaged in providing the work or services licensed under the provisions of this chapter be vested in a person licensed under this chapter, but all the work and services set forth in section 20-330 shall be performed by persons licensed for such work or occupation under this chapter."
Our Supreme Court, in discussing the Home Improvement Act, has never applied § 20-249(a) "so as to require perfect ritualistic compliance as a condition precedent to recovery by a contractor." Wright Brothers Builders, Inc. v. Dowling, 247 Conn. 218, 229, 720 A.2d 235 (1988). Indeed, the court concluded "that a construction that would require technically perfect compliance . . . is inappropriate. Rather, an interpretation of that section that acknowledges and furthers the remedial purposes of the statute is in order." Id., 231.
"The purpose of the act is to ensure that home improvements are performed by qualified people. That purpose will not be subverted by allowing businesses with a corporate structure that hire licensed plumbers for the performance of their plumbing work to be exempt from the necessity of a written contract." Avon Plumbing Heating Co., Inc. v. Fey, supra, 40 Conn. App. 358. The same is true of electricians. Nor will the purpose of the act be subverted by allowing apprentices to work on a job under the supervision of a licensed electrician who is in charge of, and responsible for, the work being done. This complies with state regulations on employment of apprentices. Regulations, Conn. State Agencies, § 20-332-15a. Moreover, this court notes that tellingly, the legislature chose in the definition section, General Statutes § 20-330, to define contractor, electrical work and apprentice in the same section, thus indicating that it expected apprentices to be utilized in the context of electrical contractors' work.
"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 done by an unlicensed worker. O'Donnell v. Rindfleisch, 13 Conn. App. 194, 535 A.2d 824, cert. denied, 207 Conn. 805, 540 A.2d 373 (1988)." Avon Plumbing Heating Co. v. Fey, supra, 40 Conn. App. 358 n. 10. A review of the court's reasoning in O'Donnell, emphasizes the correctness of the Appellate Court's reasoning in Avon Plumbing: "It is clear from the legislative record that the registered contractor was intended to be the person liable for the actions of persons he hires, employs or engages as a subcontractor to work on a homeowner's improvement project." O'Donnell v. Rindfleisch, supra, 13 Conn. App. 204. Therefore, under the facts of this case, the plaintiff may charge for the work of its registered apprentices, all of whom were supervised by licensed electricians.
V.
In Wright Brothers Builders v. Dowling, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. CV94 0136604 (September 27, 1999, Lewis, J.), concerning a breach of contract action and a mechanics lien, after finding the amount of damages, the court stated that the case should "be claimed by the plaintiff to the foreclosure short calendar so that the proper method of foreclosure, date thereof, value of the premises and other considerations may be decided at that time. The matter of attorneys fees pursuant to General Statutes § 52-249(a) may also be considered at that time . . ." The court added that "there is no statutory or other authority to award attorneys fees to a prevailing party in connection with an underlying breach of contract action. Attorneys fees are based on General Statutes § 52-249(a) and pertain exclusively to the foreclosure aspect of the action." Id.
In another Stamford case, MJM Landscaping, Inc. v. Lorant, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. CV99 0174738 (April 4, 2002, Karazin, J.), aff'd, 268 Conn. 429, 845 A.2d 382 (2004), the court held that § 52-249 "does not provide that in every foreclosure of a lien attorneys fees are awarded. It says in Section 52-249:
. . . (a) the plaintiff in any action of foreclosure of a mortgage or lien, upon obtaining judgment of foreclosure, when there has been a hearing as to the form of judgment or the limitation of time for redemption, shall be allowed the same costs, including a reasonable attorneys fee, as if, there had been a hearing on an issue of fact . . . (Emphasis added.)
This statutory language spells out the two circumstances wherein attorneys fees may be obtained and the underlying breach of contract action is not one of them.
Moreover, Darien Asphalt Paving, Inc. v. Giordano, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. CV90 0107529, 24 Conn. L. Rptr. 267 (March 24, 1999, Lewis, J.), holds that "[a]ttorneys fees should be limited to the time expended in connection with the actual foreclosure proceedings themselves."
However in Repaci v. McPike, Superior Court, judicial district of Stamford/Norwalk at Stamford (Docket No. CV 97 0161745 (June 23, 1999, D'Andrea, J.), the court citing the Darien Asphalt Case, held that: "the amount of such [attorneys] fees should be set by the court at the hearing on the type of foreclosure, setting of a sale day or of law days, and the awarding of other costs. Whether attorneys fees should be awarded for the trial of the underlying contract action is a matter which should be determined by the foreclosure judge . . . The plaintiff should claim the matter for the foreclosure short calendar for that purpose."
The Appellate Court has since adopted the tone of Repaci v. McPike, supra, Superior Court, Docket No. CV 97 0161745: "Section 52-249(a) mandates that the plaintiff in a foreclosure action shall be allowed reasonable attorneys fees when there has been a hearing as to the form of the judgment during the foreclosure action . . . We therefore hold that the court in the foreclosure action must determine whether a party is entitled to attorneys fees pursuant to § 52-249 that were incurred in the litigation of the underlying action." Original Grasso Construction Co. v. Shepherd, 70 Conn. App. 404, 419, 799 A.2d 1083, cert. denied, 261 Conn. 932, 806 A.2d 1065.
It is clear from the precedents that the foreclosure aspects of this case must go to the foreclosure short calendar, and that the question of attorneys fees for the underlying action is solely for the foreclosure judge.
VI.
"[T]he determination of whether interest pursuant to [General Statutes] § 37-3a should be awarded is a question for the trier of fact." Foley v. Huntington Co., 42 Conn. App. 712, 738, 682 A.2d 1026, cert. den., 239 Conn. 931, 683 A.2d 397 (1996). "Prejudgment interest pursuant to § 37-3a has been applied to breach of contract claims for liquidated damages, namely, where a party claims that . . . a sum to be determined by the terms of the contract owed to that party, has been detained by another party." Id., at 740. Equitable considerations appear to favor an award of interest. However, "[i]n Sears Roebuck Co. v. Board of Tax Review, 241 Conn. 749, 765-66, 699 A.2d 81 (1997), the [Supreme Court] held "that the 10 percent interest rate set forth in § 37-3a is not a fixed rate, but rather the maximum rate . . . that a trial court, in its discretion, can award." Gianetti v. Meszoros, 268 Conn. 424, 426, 844 A.2d 851 (2004). In the recent and present low interest rate climate, a rate of six percent is fair and reasonable.
Accordingly, the court finds the defendant breached the oral contract and was unjustly enriched in the amount of $5,189.68. The plaintiff is also entitled to costs associated with the underlying contract action. The amount of counsel fees should be set by the court hearing the foreclosure docket at short calendar, as part of the hearing which sets the type of foreclosure, the setting of a sale date or law days, and the awarding of other foreclosure costs. The plaintiff also may at that time request costs incurred with regard to its mechanics lien. Whether attorneys fees should be granted for the trial of the underlying contract action is a matter for determination by the foreclosure judge. See Repaci v. McPike, supra, Superior Court, Docket No. CV97 0161745. The plaintiff should claim the matter for the foreclosure calendar for that purpose.
Judgment may enter for the plaintiff for damages in the amount of $5,189.68, with interest from May 22, 2002 at the rate of six percent.
S. Freedman, J.T.R.