Opinion
No. 391537
December 3, 2003
MEMORANDUM OF DECISION
The plaintiff, Rizzo Construction Co., brings the present action in two counts, breach of contract and unjust enrichment. The first count alleges that the plaintiff entered into contracts with the defendants, Stewart and Sheryl Riefler, to complete the construction of a swimming pool, deck and certain extras at the defendants' home for a total contract price of $44,140.00. The plaintiff further alleges that the defendants paid the plaintiff the sum of $38,098.10, thereby leaving a balance due and owing to the plaintiff of $6,041.90. The second count alleges that the reasonable value of the labor and materials supplied by the plaintiff is $44,140.00 and that the defendants have been unjustly enriched in the amount of $6,041.90.
The defendants answered the complaint and interposed a special defense alleging that the plaintiff engaged in unfair and deceptive trade practices in the course of dealing with the defendants, in violation of General Statutes § 42-110a et seq., the Connecticut Unfair Trade Practices Act (CUTPA). The defendants also filed a two-count counterclaim, alleging that the plaintiff breached its contract with the defendants and engaged in unfair and deceptive trade practices in violation of CUTPA.
The case was tried to the court without a jury on July 22, 2003. Thereafter, the parties filed post-trial briefs. The court having heard the evidence, examined the exhibits and reviewed the parties' briefs, finds the following facts.
In 2000, the defendants hired a contractor, Ed Carter, to construct a swimming pool at their Westport home. Carter constructed the "shell" for the pool and certain other items. However, the contractual relationship between the parties broke down the same year, long before the pool was substantially completed.
In October 2000, Carter died.
The defendant contacted the plaintiff in September 2000. Richard Langley, a design consultant employed by the plaintiff, was the person with whom the defendants dealt throughout the relationship. On November 11, 2000, the parties executed two written contracts. In one contract, the plaintiff agreed to finish the construction of the swimming pool for $38,750. In the second contract, the plaintiff agreed to construct a pool deck for $11,242. On November 17, 2000, the parties executed addenda to these contracts whereby two items, including most electrical work, were removed from the pool contract and the contract price was reduced to $32,458.00. The price for the deck remained the same. The addenda required the defendants to make progress payments as the plaintiff completed certain specified items.
Hereinafter, the defendant Stewart Riefler is referred to as the defendant.
The pool contract called for the plaintiff to perform the following work:
1. Pressure test and mark all line flow pool to equipment pad.
2. Install equipment pad, install
A. Filter sta-rite modular media Cartride
B. Sta-Rite pump 2 H.P.
C. Install raypak RPwq00 electronic ignition 405000 BTU propane pool/spa cobo heater
D. Connect all equipment to plumbing lines.
3. Install and connect Polaris 380 . . .
4. Install automatic water fill line in spa.
5. Install blower motor within 12 feet of spa.
6. Tile bench, steps, swimout and seat in spa at edge with 1" tile.
7. Install lights in pool and one in spa.
8 Acid wash tile grouting, then seal tile and grouting to minimize any bleeding into white plastered pool.
9. Plaster pool and spa with diamond coat marbilite plaster in color white. CT Page 13475
10. Dig hole and bury home owners propane tank.
Although some other work was included in the pool contract, it is not relevant to the issues raised.
The contract included the following payment schedule: 10 percent was payable on the signing of the contract; 50 percent of the balance on the contract was due on completion of items 1 though 5; the next 20 percent was due on the completion of items 6 through 8; the next payment of 20 percent was due on the completion of items 9 and 10; and the final payment of 10 percent was due on the starting of the equipment.
The entire payment on the deck contract was due on the pouring on the deck.
The plaintiff commenced work in November 2000, and, as the parties contemplated, suspended work in December 2000, for the winter. On January 2, 2001, the defendant sent the plaintiff a check for $20,000 together with a letter expressing, inter alia, that he was pleased with the work done to date, though he observed that the blower and the lights in the pool had not yet been installed. The defendant also notified the plaintiff that he had chosen "lite dove grey" for the color of the deck.
The plaintiff resumed work in March or April 2001. Work was delayed because the plaintiff had some difficulty with subcontractors. In early April, the harmonious relationship between the parties began to deteriorate over an incident involving tiles in the spa originally installed by Carter. On April 4, 2001, an employee of the plaintiff observed that one tile, or a small number of tiles, had fallen off. Suspecting that other tiles were loose and had not been properly installed, the employee tapped on other tiles to ascertain if the tiles were, in fact loose. The employee tapped off over twenty tiles that either fell or, were determined to be loose.
The defendant was upset that the plaintiff's employee had done this in his absence and without his permission. He also was upset that the tiles became loose and fell off because water had gotten behind them after he had paid the plaintiff to have them sealed the previous year. He expressed these concerns in a letter to the plaintiff. In the same letter he changed his color selection for the deck from lite dove grey to dove grey.
The plaintiff indicated that the entire spa wall should be re-tiled, for which the cost would be $2,462.00. The defendant opted to replace only tiles that had fallen or been removed, for which the plaintiff charged $250.
By May, the defendants had paid the plaintiff $38,098.10 of the total contract price and refused to pay the remaining $6,042.40. In part, this was based on the defendant's inadvertent miscalculation as to the percentage of the job for which the defendants had already paid, as the defendant admitted at trial. The defendants believed in May and June 2001, that they had paid the plaintiff 89.2 percent of the contract price when, in fact they had paid only 86.3 percent. They also incorrectly believed that the deck constructed by the plaintiff was undersized. However, the defendants also were dissatisfied with the work. Langley met with the defendants to resolve their issues. Following a telephone conversation with the defendant in late May 2001, Richard Langley wrote to the defendant enumerating the defendant's list of concerns. Those concerns were: (1) temporary fence not erected, (2) blower motor not connected on spa, (3) tile wall only half sealed, (4) one piece of tile missing on swimout, (5) Stegmeir form under deck in pool was an undesirable color, white, (6) the Polaris system was not hooked up, (7) a leak in the plumbing line at the Polaris pump, (8) the deck color not dove grey but light dove grey, and (9) two rakes belonging to the defendants had been damaged.
Langley explained the plaintiff's position on those items. Langley stated that of the $6,042 balance on the contracts, $3,200 was past due and that after the defendants made that payment the plaintiff would (1) reattach the temporary fence, (2) connect the blower for the spa, (3) reseal the tile on the spa wall, and (4) repair the leak in the plumbing line.
In a letter dated June 4, 2001, the defendant responded that he did not owe the plaintiff any further monies and, in fact, was ahead of his payments. He asserted that he would pay the balance on the contracts when the pool was "up and running to my satisfaction." He also accused the plaintiff of having deliberately and unjustifiably delayed the work.
In an attempt to resolve their impasse, Rizzo met with the defendant on the morning of June 19, 2001. At the meeting the defendant presented the plaintiff with a document entitled "Punchlist/Agenda." The document had three subheadings: "punchlist," "major issues" and "minor issues."
Major issues listed were: 1. part of tile wall torn down without authorization; 2. file strip available in grey, 3. unjustified suspension of work as of 5/5/01 (-blower, -polaris, -jandy -skimmers, -fence, -dirt adhering to plaster).
At the meeting, the "punchlist" presented by the defendant contained eleven items: 1. autofills defective, 2. spa-side switch not level, 3. old spa-side switch tubing exposed, 4. polaris valve defective, 5. nose caps exposed, 6. nose caps uneven, 7. file strip uneven, 8. tile wall not restored as was, 9. rough spots in plaster, 10. return covers not installed, and 11. spa light (and maybe pool light) too hot.
The plaintiff responded to these items by letter dated June 20, 2001, as follows: "1. We will repair the two automatic water fills, so that they work efficiently. 2. We will chip out and even the spa side switch. 3. We will chip, plug and cover with Kool deck. 4. Replace with new 3/4" Polaris valve. 5. Cover with Dove Grey Kool deck. 6. There is nothing we can do now [about uneven nose caps], they are in allowable variances. 7. [Tile strip] can be painted to match the Kool deck, with Kool deck restorer. 8. Acid wash tile on spa/pool separation wall and reseal. 9. Will send a diver down, you must be there and he will rub out spots with rubbing stone. 10. Six directional flows will be supplied and installed by us, for the return lines. 11. The lights are as they are supposed to be."
The plaintiff's position on the major issues was that any apparent imperfection in the plaster was not dirt, but trowel marks in the plaster that created variances in color. The plaintiff offered to try to rub them out when it sent a diver down.
"This is the work that we can do to help satisfy you," wrote the plaintiff's president, Albert Rizzo, to the defendants. He concluded his letter stating, "I would like, any balance owed, before the official start up to be paid, and the ending balance paid upon completion of this work and official start up." The court finds that the phrase "any balance owed," referred to the sum of $3,200 and that the words "ending balance" referred to the sum of $2,800.
By letter dated July 3, 2001, the defendant notified the plaintiff that because of a serious illness in his family he would be unable to give the plaintiff's June 20 letter proper attention. However, he stated that the plaintiff's offer appeared unsatisfactory.
In fact, the defendant's father had suffered a tragic stroke.
By letter dated August 14, 2001, the defendant wrote to the plaintiff rejecting the offer. The defendant protested that the tile strip in the pool was not the correct color and had been installed imperfectly, that the deck was not dove grey but lite dove grey, that he had replaced the spa light which, at 250 watts, was far too hot and which should have been 1100 watts, and that he had to perform considerable work himself — including installation of the Polaris, the fence, blower, skimmer doors and program a device known as a Jandy. He demanded that the plaintiff remove the existing deck and replace it with one in the color he had selected. The defendant also demanded that in place of the white tile strip, the plaintiff install a grey tile strip as "straight and even and as perfect as reasonably possible" with grey nose caps. The defendant represented that he would place $2,760 in escrow — the amount the defendant estimated was the difference between the contract balance and the value of the work he had done to finish the job — to secure his performance and the plaintiff would place in escrow not less than $15,000 to secure its performance. Not surprisingly the plaintiff did not accept this proposal.
On October 18, 2001, the plaintiff commenced this action against the defendants for breach of contract and unjust enrichment.
I A.
At the outset, the court addresses the burden of proof in a breach of contract action where the defendant has filed a special defense alleging that the plaintiff breached the contract.
"Under our practice, when a defendant pleads a special defense, the burden of proof on the allegations contained therein is on the defendant. Together with other states, our cases provide for an exception to this rule in suits on insurance policies. It is our established practice that one suing upon an insurance policy may allege in general terms compliance with all the obligations it imposes upon him, that the defendant insurer must then allege any breach of the terms of the policy upon his part upon which it proposes to rely, but that such an allegation does not shift the burden of proof, the plaintiff being bound to prove performance as regards the breach alleged . . . This rule of pleading serves a consideration of convenience, namely, the avoidance of pleading and proving at length the performance of manifold conditions as to which there will probably be no issue . . . Such a rule is, in our opinion, advisable and desirable in building contract cases such as the present one. The requirement . . . that where the plaintiff pleads performance of a building contract the defendant is required to plead specially any claim of defect, impropriety or unsuitability in the work must be observed. It is manifestly unfair, however, to place the burden of proof on the defendant. The burden of proof remains on the plaintiff to prove performance concerning the matters recited in the special defense." (Citations omitted.) DuBose v. Carabetta, 161 Conn. 254, 262, 287 A.2d 357 (1971).
In response to the plaintiff's complaint the defendant has specially pleaded that the plaintiff "engaged in unfair or deceptive trade practices in the course of dealing with defendant[s], in violation of [Connecticut General Statutes] 42-110a et seq., the Connecticut Unfair Trade Practices Act, in a myriad of ways. "`CUTPA creates an essentially equitable cause of action' Associated Investment Co. v. Williams Associates IV, 230 Conn. 148, 155, 645 A.2d 505 (1994). Several Superior Court decisions have indicated that `CUTPA is a remedial statute that gives rise to a cause of action and is not properly raised as a special defense.' SNETCO v. Guardian Systems, Inc., Superior Court, judicial district of New Haven, Docket No. 358590 (January 23, 1995, Martin, J.); see also Stanley Works v. Halstead New England Corp., Superior Court, judicial district of New Britain, Docket No. 506367 (May 18, 2001, Shapiro, J.).
"Although the end result may be the same, in the view of this court the appropriate analysis is not to look at to CUTPA label which the defendants incorporate into their special defense but to look at the substance of the allegations in that defense. Courts generally look past such labels, or at least do not bind parties to them, and examine the substance of what is alleged or to the relief sought." Law Offices of Ira Charmoy v. Lockery, Superior Court, judicial district of Fairfield at Bridgeport, Docket Nos. 380135, 382937 (January 21, 2003).
To the extent practicable, the court therefore examines the defendants' CUTPA defense in an effort to cull out claims of breach of contract. "[S]light linguistic ambiguity in the pleadings should not, under modern pleading rules, deprive parties of the opportunity to provide proof on issues adequately raised in the pleadings and of which the parties are apprised." (Internal quotation marks omitted.) Buckley v. Lovallo, 2 Conn. App. 579, 587, 481 A.2d 1286 (1984).
The defendants allege, and have briefed, that the plaintiff failed to install and connect the "Polaris" pool cleaner. The Polaris is a vacuum cleaner for swimming pools. This item is item 3 in the pool contract. The plaintiff delivered the Polaris but did not install it. Rizzo estimated that it would have taken two to three hours, at $60 an hour, to install the Polaris. Rizzo also testified that "installation" of the motor involved "slipping it on," work that would take less than an hour.
Next, the defendants allege, and brief, that the plaintiff failed to install the blower motor for the spa. This was item 5 in the pool contract. Again, the motor was delivered but not installed. The plumbing had been completed and the installation of the motor would have taken less than an hour.
The defendants claim that the plaintiff failed to program and activate the "Jandy" pool controller which, they claim, is referable to item 15 of the pool contract. While this work was not done, under the addenda to the contract, it was not due to be performed until the defendants had paid the entire pool contract price.
The defendants claim that the plaintiff failed to install pool skimmer doors. They argue in their brief that "[w]hile it was not specifically enumerated as an [step], it was impliedly part of the pool completion contract."
"The law is clear that a contract includes not only what is expressly stated therein but also what is necessarily implied from the language used . . . No special form of words, but that the promise appears upon a fair interpretation, is the essential. Not only then may promises exist . . . where the language is in terms that of promise, but also where the agreement shows that the parties . . . have intended an obligation though they failed so to state in clear terms . . . If it can be plainly seen from all the provisions of the instrument taken together, that the obligation in question was within the contemplation of the parties when making their contract, or is necessary to carry their intention into effect — in other words, if it is a necessary implication from the provisions of the instrument — the law will imply the obligation and enforce it." (Citations omitted; internal quotation marks omitted.) Leventhal v. Stratford, 121 Conn. 290, 295, 184 A. 587 (1936).
The court agrees that the installation of skimmer doors was an implied term of the contract. Indeed the plaintiff did not deny this at trial. In essence, what the defendants bargained for was a properly functioning swimming pool. Cf. Osborne v. Locke Steel Chain Co., 153 Conn. 527, 531, 218 A.2d 526 (1966); Duffy v. Woodcrest Builders, Inc., 2 Conn. Cir. Ct. 137, 140, 196 A.2d 606 (App. 1963) (plaintiff property owner had right to rely on defendant home builder's doing everything necessary to provide an adequate sewage disposal system). However, because the installation of skimmer doors is not referable to a specific item in the contract and hence not referable to the payment schedule, the court cannot find that the plaintiff was bound to perform this work before the defendants paid the entire contract price. Since the defendants made it quite clear that they would not, under any reasonable condition, make the remaining contract payments, the plaintiff was not in breach for failing to install pool skimmer doors.
The same may be said with respect to the re-installation of the safety fence. First, this item is not referable to a specific term of the contract. Second, it was not even raised by the defendants in the "punchlist/agenda" of June 19, 2001. Third, even assuming that the plaintiff was required to perform such work, performance was not due until the defendants had paid the entire, or substantially the entire, contract price. Fourth, the plaintiff offered to re-install the fence.
Having found that the plaintiff failed to install the Polaris for the pool and the blower motor for the spa, it must next be determined whether the plaintiff materially breached the contract.
"In Bernstein v. Nemeyer, 213 Conn. 665, 672, 570 A.2d 164 (1990), our Supreme Court approved the multifactor standards for materiality contained in the 2 Restatement (Second), Contracts' 241 (1981). "`In determining whether a failure to render or to offer performance is material, the following circumstances are significant: (a) the extent to which the injured party will be deprived of the benefit which he reasonably expected; (b) the extent to which the injured party can be adequately compensated for the part of that benefit of which he will be deprived; (c) the extent to which the party failing to perform or to offer to perform will suffer forfeiture; (d) the likelihood that the party failing to perform or to offer to perform will cure his failure, taking account of all the circumstances including any reasonable assurances; [and] (e) the extent to which the behavior of the party failing to perform or to offer to perform comports with standards of good faith and fair dealing." 2 Restatement (Second), [ supra, 241]. 669 Atlantic Street v. Atlantic-Rockland Stamford Associates, 43 Conn. App. 113, 125-26, 682 A.2d 572 (1996).
"The standards of materiality `[are] to be applied in light of the facts of each case in such a way as to further the purpose of securing for each party his expectation of an exchange of performances. [Section 241] therefore states circumstances, not rules, which are to be considered in determining whether a particular failure is material.' 2 Restatement (Second), supra, 241, comment (a)." Strouth v. Pools By Murphy Sons, Inc., 79 Conn. App. 55, 60, 829 A.2d 102 (2003).
The failure to install the Polaris visited slight inconvenience on the defendants. The failure to install the blower motor on the spa, however, would have deprived them of the use and enjoyment of the spa. The defendants installed the Polaris themselves and had someone else install the blower motor for the spa. Curiously, the defendants had the blower motor installed by another party on or about May 7, 2001, well before the relationship between the parties had completely broken down. But for their failure to adduce persuasive evidence of their damages, the defendants could have been adequately compensated for the plaintiff's failure to timely install these items.
However, the plaintiff clearly offered to perform this work, and made repeated offers to resolve these matters with the defendants. The plaintiff's behavior generally comported with standards of good faith and fair dealing. The defendant's responses were not in good faith and were not rationally fashioned to procure the performance to which the defendant was entitled. He was obstinate, unreasonable and hypertechnical. Although, because the defendants made progress payments of $38,098.10, any forfeiture suffered by the plaintiff would not be large, the court finds that the plaintiff did not materially breach its contracts with the defendants.
The court briefly addresses other claims alleged in the defendants' special defense, although they have not been adequately briefed. The defendants allege that the "Plaintiff advertised, and repeatedly stated to defendants that it would build a `perfect' swimming pool but failed to do so." The court does not find that the plaintiff "stated" to the defendants that it would build them a perfect pool. It is true that in its advertising, the plaintiff uses the motto, "perfection is our tradition." This, of course, is mere puffing and formed no part of the contract. See Web Press Services Corp. v. New London Motors, Inc., 205 Conn. 479, 483, 533 A.2d 1211 (1987); Web Press Services Corp. v. New London Motors, Inc., 203 Conn. 342, 351-52, 525 A.2d 57 (1987); Davies v. General Tours, Inc., 63 Conn. App. 17, 36-37, 774 A.2d 1063 (2001); Vezina v. Nautilus Pools, Inc., 27 Conn. App. 810, 816, 610 A.2d 1312 (1992); Gold v. University of Bridgeport School of Law, 19 Conn. App. 379, 384, 562 A.2d 570 (1989). Moreover, the defendant, a corporate lawyer who practices in New York, is sophisticated in the law and presumably knew that the plaintiff's motto was puffing. See Fishman v. Smartserv Online, Inc., Superior Court, judicial district of Stamford, Complex Litigation docket, No. X05 CV 0172810 (February 11, 2003, Rogers, J.).
Practice Book § 5-2 provides: "Any party intending to raise any question of law which may be the subject of an appeal must either state the question distinctly to the judicial authority in a written trial brief under Section 5-1 or state the question distinctly to the judicial authority on the record before such party's closing argument and within sufficient time to give the opposing counsel an opportunity to discuss the question. If the party fails to do this, the judicial authority will be under no obligation to decide the question."
While the issue in the Web Press and Vezina cases was decided under the UCC, Connecticut courts "have, on a number of occasions . . . looked to the [UCC] as a fruitful source of analogy." Steelcase, Inc. v. Crystal, 238 Conn. 571, 586, 680 A.2d 289 (1996).
The defendants claim that the plaintiff unjustifiably suspended work on the projects because, according to the plaintiff, the defendants had not paid the plaintiff pursuant to the contract. The defendants claim that, in fact, they prepaid the plaintiff despite its inadequate and unsatisfactory completion of all relevant steps enumerated in the contract. The plaintiff has successfully refuted this claim.
The defendants claim that the "plaintiff willfully or negligently disregarded billing adjustments contained in the defendants' letter dated January 2, 2001, thus exacerbating the payment dispute that occurred in the beginning of May 2001 and which allegedly was the reason for the work stoppage." This claim also was not proven. It was defendants' unilateral miscalculation that was the genesis of the billing dispute.
The defendants contend that "plaintiff wilfully or negligently informed defendants that tile stripping used to separate pool tile from concrete decking was available only in the color white and not in grey (as were plastic expansion joints) when in fact tile stripping was available in grey." In support of this claim, which is not strictly a claim of breach of contract, the defendants submitted a 2001 catalogue of Stegmeier Corporation, the company that makes the tile strip. It reflects that the tile strip was available in grey. However the contract was made in 2000, the catalogue does not have a copyright date, nor was evidence presented demonstrating the date on which the catalog was distributed to retailers such as the plaintiff. This claim was not proven.
The defendants complain that "plaintiff wilfully or negligently poured concrete decking so that white plastic pieces (tile striping and nose caps) were uneven and glaringly imperfect, ruining the pool's aesthetics and impairing defendants' enjoyment of their pool." "Expert testimony is required to support a claim of a breach of a duty if the determination of the standard of care that governs the duty requires knowledge that is beyond the experience of [the] fact finder"; (Internal quotation marks omitted.) Roach v. Ivari International Centers, Inc., 77 Conn. App. 93, 101, 822 A.2d 316 (2003); be it judge or jury. Marquardt Roche/Meditz Hackett, Inc. v. Riverband Executive Center, Inc., 74 Conn. App. 412, 425, 812 A.2d 175 (2003); LePage v. Horne, 262 Conn. 116, 125, 809 A.2d 505 (2002); Bader v. United Orthodox Synagogue, 148 Conn. 449, 454, 172 A.2d 192 (1961). "Generally, expert testimony is required to establish both the standard of care to which the defendant is held and the breach of that standard." (Internal quotation marks omitted.) Marchell v. Whelchel, 66 Conn. App. 574, 582, 785 A.2d 253 (2001).
The defendants adduced no expert testimony in support of their claim. Even if expert testimony were not required on this issue; cf. Porter v. The Pequonnoc Manufacturing Co., 17 Conn. 243, 255-58 (1845) (lay opinion on sufficiency of dam permitted); the lay opinion of the defendant, standing alone, is not persuasive. Rizzo explained that the tile strip acts, in effect, as a ball bearing, creating space and a cushion between the deck, which will move somewhat, and the top of the pool wall. As a result of the deck's movement and the tile strip's function, it will not be uniform.
In the absence of expert testimony to support the defendants' claim, the court cannot find that the tile strip is so excessively "uneven and glaringly imperfect" that it was improperly installed. The defendants contend that the "plaintiff wilfully and deliberately applied a lighter shade of gray than . . . defendants had requested with respect to the color of the concrete decking."
As discussed supra, the defendants first selected "Lite Dove Grey" for the color of their deck. In January 2001, they changed their choice to "Dove Grey." After the deck was poured, the defendant questioned whether the color was Dove Grey. According to the defendant, the cement mixer told him that the color was light grey; the foreman said that the color was "sand" and told the defendant that it was the color the defendant wanted. When the defendant questioned Langley, he said that he knew the color was Lite Dove Grey because it was a special order. When the defendant subsequently met with Rizzo, he said that the concrete was a stock item.
When Rizzo examined the deck with the defendant, he put down an exemplar of Dove Grey and Lite Dove Grey. According to Rizzo, the deck matched the exemplar of Dove Grey, and the defendant said nothing.
An exemplar of the various colors in which the deck was available, including Lite Dove Grey and Dove Grey, was admitted into evidence. The difference between Dove Grey and Lite Dove Grey is almost imperceptible.
"The weight to be given to the evidence and to the credibility of witnesses is solely within the determination of the trier of fact . . . If there is conflicting evidence . . . the fact finder is free to determine which version of the event in question it finds most credible." (Citation omitted; internal quotation marks omitted.) Hart v. Carruthers, 77 Conn. App. 610, 617, 822 A.2d 366 (2003). "In a case that is tried to the court . . . the judge is the sole arbiter of the credibility of witnesses, and the weight to be given to their specific testimony." (Citations omitted; internal quotation marks omitted.) Jackson v. Commissioner of Correction, 68 Conn. App. 190, 194, 791 A.2d 588 (2002).
While it is a close question, based on the credibility of the respective witnesses, the court finds that the plaintiff provided the defendants with the color deck they requested. This claim is discussed further in part II.
The defendants also argue that the "plaintiff, without defendants' permission, willfully and deliberately removed 22 tiles from the outside wall of the spa, and then tried to make defendants pay extra to re-apply the tiles." Finally, the defendants allege that the plaintiff negligently destroyed their new rake and failed to inform them of that destruction. These claims are not claims of breach of any contract between the parties and are discussed with respect to the defendants' counterclaim, under part II.
The court finds that the plaintiff did not materially breach the contract. The defendants have breached their contract.
B.
Turning to the issue of damages, "[i]t is axiomatic that the sum of damages awarded as compensation in a breach of contract action should place the injured party in the same position as he would have been in had the contract been performed . . . The injured party, however, is entitled to retain nothing in excess of that sum which compensates him for the loss of his bargain . . . Guarding against excessive compensation, the law of contract damages limits the injured party to damages based on his actual loss caused by the breach . . . The concept of actual loss accounts for the possibility that the breach itself may result in a saving of some cost that the injured party would have incurred if he had had to perform . . . In such circumstances, the amount of the cost saved will be credited in favor of the wrongdoer . . . that is, subtracted from the loss . . . caused by the breach in calculating [the injured party's] damages Otherwise, the owner would be placed in a better position than full performance would have put him, thereby doubly compensating him for the injury occasioned by the breach." Argentinis v. Gould, 219 Conn. 151, 157-58, 592 A.2d 378 (1991) (Citations omitted; internal quotation marks omitted); see Sabo v. Strolls, 148 Conn. 504, 506, 172 A.2d 609 (1961) (limiting owner's damages for builder's breach by default in performance to cost of completion less outstanding balance of contract price); Parker v. Slosberg, 73 Conn. App. 254, 265-66, 808 A.2d 351 (2002) (law of contract damages guards against excessive compensation).
At the time of the defendants' breach in August 2001, they owed the plaintiff approximately $5,891.90 for work covered by the contracts. The defendant claims that it took between fifteen and twenty hours to complete this work. Extrapolating from Rizzo's testimony that it cost him $60 per hour to perform the work, the court finds that the cost to the plaintiff of completing the contract would have been, at most, $1,200.00. Rizzo also conceded that he would owe the defendant an $180.00 credit for the broken Polaris valve.
The plaintiffs damages for the defendant's breach of contract is $4,511.90.
C. CT Page 13486
The second count of the plaintiff's complaint incorporates the allegations of the first count, represents that the plaintiff substantially completed the work for which the reasonable value is $44,140.00 and for which the defendants have failed to pay a balance of $6,041.90. The plaintiff alleges that if it is not paid the defendants will be unjustly enriched.
"Both unjust enrichment and quantum meruit are doctrines allowing damages for restitution, that is, the restoration to a party of money, services or goods of which he or she was deprived that benefited another . . . Quantum meruit is usually a remedy based on implied contract and usually relates to the benefit of work, labor or services received by the party who was unjustly enriched, whereas unjust enrichment relates to a benefit of money or property . . . and applies when no remedy is available based on the contract . . . The lack of a remedy under a contract is a precondition to recovery based on unjust enrichment or quantum meruit. It would be contrary to equity and fairness to allow a defendant to retain a benefit at the expense of the plaintiff." (Citations omitted.) United Coastal Industries, Inc. v. Clearheart Construction Co., Inc., 71 Conn. App. 506, 512-13, 802 A.2d 901 (2002). Because the plaintiff had express contracts with the defendants and because the plaintiff has an available remedy for breach of those contracts, the remedy of unjust enrichment is not available to the plaintiff for the work included within those contracts.
One item of work not included, in the contracts that is in contention, however, is the plaintiff's re-installation of tile in the pool. The following additional facts are necessary to the determination of this issue.
The tiles in the pool had been installed by Carter, the previous contractor. In November or December of 2000, the plaintiff acid washed the pool and sealed the tiles in an attempt to keep moisture from gathering behind them.
In the spring, an employee of the plaintiff noticed that one of the tiles in the pool had fallen off. The foreman informed Rizzo of this by telephone. The foreman or employee then "tapped" on other tiles in the area of the one that had fallen off and found that they were unusually hollow. Some tiles may have fallen off during this process but others were removed by the plaintiff no doubt with varying degrees of effort. The tiles were found to have been improperly installed by the previous contractor who had only "buttered" the corners of the tiles with adhesive. The better practice is to cover 95% of the tile with the adhesive.
A "tap test" had not been performed the previous November or December. Thus, at that time the parties did not know that some tiles were loose.
At this point, the foreman discussed the matter with the defendant's wife who was in the house. From exhibit 10A, the court infers that both she, as well as the defendant (when he learned what had happened), were very unhappy that the plaintiff had tapped off tiles. The defendant's wife instructed the plaintiff to prepare a proposal to correct the improperly installed tiles. The defendants were even more upset when the plaintiff presented them with a proposal to remove and replace substantially all of the tiles in the pool at a cost of $2458.00. The defendants rejected this proposal and, faced with the fait accompli of the tiles having been removed, opted simply to have the plaintiff reapply the tiles that had fallen off or were removed by the plaintiff. However, the parties failed to reach a meeting of the minds as to the cost of doing the work. The plaintiff performed this work and billed the defendants $250.00. Due to the plaintiff's use of different adhesive or grout, this area of the pool is visibly darker than adjacent areas. The plaintiff should not have removed any tile from the pool without the defendants' prior approval. This work was not expressly or impliedly within the ambit of the contract. The plaintiff's actions are not justified by its contention that the tiles, having been improperly installed, would have fallen off at some indefinite time in the future. However, the defendants have not proved that the plaintiff was negligent in its re-installation of the tiles.
"A plaintiff seeking damages under either a claim for breach of contract, unjust enrichment, or quantum meruit must establish that the defendant received a benefit . . ." Morgan Buildings Spas, Inc. v. Dean's Stoves Spas, Inc., 58 Conn. App. 560, 563, 753 A.2d 957 (2000). "In an unjust enrichment case, damages are ordinarily not the loss to the plaintiff, but the benefit to the defendant, for which the fact finder may rely on the plaintiff's contract price when the benefit is too difficult to determine." United Coastal Industries, Inc. v. Clearheart Construction Co., supra, 71 Conn. App. 515.
"Ordinarily where one requests another to furnish articles or perform services in the usual course of the latter's business, a sufficient basis exists to render the former liable to the latter for their reasonable value. The basis of that liability is an inference that the person rendering the services expected to be paid for them and the other accepted them intending to pay for them." Clark v. Diefendorf, 109 Conn. 507, 510, 147 A. 83 (1929).
The court finds that the defendants were unjustly enriched by the plaintiff's work in the amount of $100.
II
The defendants have filed a two-count counterclaim, alleging claims for breach of contract and violation of CUTPA. "The general rule is that the burden of proving a counterclaim is on the defendant[s]." Ruscito v. F-Dyne Electronics Co., 177 Conn. 149, 166, 411 A.2d 1371 (1979); see Hedderman v. Robert Hall of Waterbury, Inc., 145 Conn. 410, 413, 144 A.2d 60 (1958).
A.
In the first count the defendants allege that plaintiff failed to honor its contractual obligations in the following ways:
"a. it failed to complete work it was obligated to do, to wit: start-up of pool and equipment connect and activate pool cleaner, repair pool cleaner broken valve, install and activate spa blower, install return covers, install missing tile, install skimmer doors, program pool controller, replace `hot' spa light, replace defective autofills, replace defective pool light, and re-install safety fence; and
b. it performed the following work in an unsatisfactory manner: installation of decking, re-application of tiles on spa wall, and spa-side switch."
Certain of these matters have already been discussed in part I. Other work was, in fact not done; however, the plaintiff was willing to do it, and so represented to the defendants, upon assurance of payment which the plaintiff never received. The defendant was unwilling to give such assurance except on the most outlandish conditions. The defendants have not proven that the plaintiff performed any work negligently or in accordance with the contract, except that the spa light the plaintiff installed was of excessive wattage and had to replaced by the defendants at their expense. Also, even in light of the evidence presented, the court cannot find that the pool cleaner valve was improperly installed; it was found to be broken.
With respect to the removal and re-application of tiles, discussed supra, "[u]nder [their] counterclaim, the defendant[s] had the burden of proving actionable negligence in order to recover even nominal damages . . . To recover compensatory damages, the defendant[s] had the further burden of proving the nature and extent of the damage proximately caused by the plaintiff['s] negligence and the reasonable amount of the losses resulting therefrom . . . It is true that mathematical exactitude in the proof of damages is often impossible, and that all that can be required is that the evidence, with such certainty as the nature of the particular case may permit, lay a foundation which will enable the trier to make a fair and reasonable estimate . . . But he who seeks to recover damages . . . must establish a reasonable probability that . . . [the] injury [to the property] did bring about a loss . . . and must afford a basis for a reasonable estimate by the trier, court or jury, of the amount of that loss." (Citations omitted; internal quotation marks omitted.) Hedderman v. Robert Hall of Waterbury, Inc., supra, 145 Conn. 413-14. The defendants have proved neither actionable negligence with respect to the plaintiff's re-installation of tiles nor damages.
The court credits the defendants' lay opinion that the spa light was far too hot, and awards them $100 nominal damages for its replacement and installation.
B.
The second count of the defendants' counterclaim asserts a claim under CUTPA.
"[I]n determining whether a practice violates CUTPA we have adopted the criteria set out in the cigarette rule by the federal trade commission for determining when a practice is unfair: (1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise — in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers, [competitors or other businesspersons] . . . All three criteria do not need to be satisfied to support a finding of [a violation of CUTPA]." (Internal quotation marks omitted.) Macomber v. Travelers Property Casualty Corp., 261 Conn. 620, 644, 804 A.2d 180 (2002).
"[T]he first prong, standing alone, is insufficient to support a CUTPA violation, at least when the underlying claim is grounded solely in negligence." A-G Foods, Inc. v. Pepperidge Farm, Inc., 216 Conn. 200, 217, 579 A.2d 69 (1990). Thus, a CUTPA claim may not be premised on a simple breach of contract, that is, one in which there are no aggravating factors under parts two or three of the cigarette rule. See Lane v. First Union National Bank, Superior Court, judicial district of New Haven, Docket No. CV 01 0446552 (April 19, 2002); Charlesworth v. SBC Communications, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV 01 076399S (February 3, 2003); Pollock v. Panjabi, 47 Conn. Sup. 179, 197-98, 781 A.2d 518 (2000). "The burdens and risks inherent in contract formation would be intolerably increased if every simple breach of contract claim were to be made the basis of a CUTPA violation. But it is also true that the same facts that establish a breach of contract claim may be sufficient to establish a CUTPA violation. Lester v. Resort Campgrounds International, Inc., 27 Conn. App. 59, 71, [ 605 A.2d 550] (1992). In other words, a breach of contract claim can make out a legally sufficient CUTPA claim where `substantial aggravating circumstances' exist. Cf. Emlee Equip. Leasing Corp. v. Waterbury Transmission, Inc., 41 Conn. Sup. 575, [ 595 A.2d 575], 3 Conn. L. Rptr. 711 (1991) . . ." Production Resources v. Dist. Media, judicial district of Waterbury, Complex Litigation docket, No. X06 CV 01 0170391 (February 25, 2003).
The court finds that the defendants have not sustained their burden of proving that the plaintiff committed a violation of CUTPA.
In conclusion, judgment may enter for the plaintiff in the amount of $4,511.90 on the first count of the complaint and for the defendants on the second count of the complaint. Judgment may enter for the defendant in the amount of $100 nominal damages on the first count of their counterclaim and for the plaintiff on the second count of the counterclaim.
As the parties agreed, the issue of an award to the plaintiff of attorneys fees under the pool contract will be addressed in a subsequent proceeding.
BY THE COURT
BRUCE L. LEVIN, JUDGE OF THE SUPERIOR COURT.