Opinion
No. CV-03-0476657 S
September 1, 2004
MEMORANDUM OF DECISION
The court tried this case under a complaint which in the first count was based on a foreclosure of a mechanic's lien. The second count is made on a quantum meruit theory. The relevant factual basis for the first count is set forth in several paragraphs where it is stated that the defendant owns a condominium and the plaintiff furnished materials and rendered improvements to the condo by way of installation of a new HVAC system pursuant to an agreement with the defendant.
The work was started December 18, 2002 and finished on January 4, 2003; $2,000 was paid by the defendant on account. On February 13th the plaintiff filed a certificate of mechanic's lien to secure the balance of $4,733.86 due under the contract which was recorded on the land records.
The second count in quantum meruit states the foregoing work was done on the condo on the dates mentioned, the reasonable value of the material and services provided by the plaintiff is $6,733.86, $2,000 has been paid and $4,733.86 remains owing which the defendant has refused to pay.
Miss Marko makes two special defenses and two counterclaims which the court will set forth after it reviews the evidence and facts which were presented at the trial.
The first witness called by the plaintiff was John Climie who is employed as a salesman for and does design work on heating and air conditioning systems. His employer is McColl Wade which is a division of the plaintiff corporation. He struck the court as a very candid witness. He testified that the defendant called his office to come to her condo and give an estimate for replacing her HVAC system. McColl Wade never does home solicitation, they do respond to calls. Marko wanted a price and Climie went to her house to look at the equipment she had. He then went back to the office to "generate a written proposal" that was accepted by the defendant and signed by her (Exhibit 1). A deposit by credit card of $2,000 was made before work began on December 18, 2002 and the job was substantially completed by January 4th.
After the work began, on the second day, a problem was noticed; the "refrigeration piping connecting the indoor evaporator section to the outdoor section was leaking." The system does not work without the refrigeration piping being intact. The piping was not included in the original proposal. Climie thought the existing piping would be fine and the defect was not visible. The matter was discussed with Marko who was upset and a price for the piping work was put at $1,500 by the plaintiff which Marko agreed to go ahead with. The work was done on a weekend but Marko was not charged time and a half and she was eventually billed $980 for the installation of the piping, less than the originally quoted figure. The total amount claimed is $4,733.60 after giving the defendant credit for the $2,000 deposit. The thermostat had to be replaced but there were otherwise no complaints about the quality of the bill, the work was passed by the town building inspector. After the work was done, Mr. Climie went to Ms. Marko's home to receive payment on the money owing but she refused to pay the bill. Her basic position was and appears to still be that she should not have been charged for the piping.
On cross-examination of Climie it was emphasized that there was no mention of refrigeration piping on the proposal presented to and signed by Ms. Marko. Mr. Climie again admitted the piping is an integral part of the system and further admitted that when Marko asked for a quote on a system she said she wanted a complete HVAC system. The defense then introduced into evidence a letter written in response to Ms. Marko's complaint to the Better Business Bureau. In the letter Mr. Climie said the quote on the piping was for between $1,500 and $2,000. In the letter Mr. Climie also said: "If there was an error made in this project, it was that I did not identify the potential problem with the old, incorrectly installed refrigeration piping." It was also brought out on cross that when the leak was noticed Marko's old equipment had been removed from the unit and had been disposed of by the workers.
Upon questioning by the court as to what he meant by "error," Mr. Climie said he should probably have taken more time and discovered the piping's exact path to see if it was still viable. The workers discovered the problem when the servicemen started the new system up and "nitrogen came bubbling out of the ground." That could have been done with the old unit before it was replaced but Climie said he was called to replace the unit, not do a "diagnostic or pressure test." If the problem had been discovered, Marko would still have had to pay the extra charge for the new piping. Suffice it to say that before contracting for the system Mr. Climie admitted there had never been any discussion with Marko as to whether refrigeration piping was or was not included.
Miss Marko also testified. She said when the problem with the piping was discovered Climie and the head engineer told her it was an oversight and that they had had problems before in the condominiums where she lived because the pipes corrode since the condo is near the ocean. Her testimony was that they said the piping would cost an additional $1,500 to $2,000. She said she told them she wanted a quote before the work began but was never given one.
Miss Marko further testified that she agreed to have the piping put in after the leaking problem was brought to her attention because she felt if she got an attorney involved the equipment would not be put in properly. In the past she had difficulties with contractors. It was the middle of December when the problem with the leaking pipes came up and it was cold. Her old equipment was pulled out and the new equipment was not hooked up yet.
On redirect Miss Marko elaborated on the making of the contract. She said she called Mr. Climie to come to her house; when he did, he looked at the equipment on the inside and outside of her home and told Marko he would get back to her with a quote for the job. She then got the contract and proposal in the mail and called the company to say she wanted the work to start. She was asked to fax the proposal to Climie with her signature and she apparently also mailed a signed copy to him.
Mr. Climie was then recalled by defense counsel. Mr. Climie agreed on a job like this that there had to be refrigerant piping between the inside of the condominium to the outside. He simply assumed that the existent piping could be used. Climie said that when he went to the Marko residence there was some conversation about the possibility of installing an upgraded system that would have required new piping but Marko chose not to purchase this premium system. He reiterated that he could have ascertained there was a leaking refrigerant pipe problem if he had done a pressure test but he was not called to the house for that purpose. "We were called out to provide a price for new equipment."
Finally in response to the court's question about the corrosion of these pipes in condos along the ocean Climie said it can occur "but typically in beachfront living it takes 100 years to do this."
His lawyer then asked Climie whether it was common to replace a system like Marko's without replacing the piping. Climie said: "Yes, probably fifty percent of the time we will reuse refrigerant piping if it seems to be in good shape." On redirect the following exchange then occurred between defense counsel and Mr. Climie:
Q. I'm just surprised you wouldn't bring this up in the proposal that you mentioned something about the piping that was being revised that's going to be new or it's being reused and maybe it's not going to work and it may be an extra. I'm surprised there is none of that in this proposal.
Mr. Climie quite candidly answered:
A. And well you should be. I probably should have put something down there.
The court has previously mentioned the plaintiff's theories of liability which are based on quantum meruit and basically a contract claim in the mechanic's lien count. The defendant has filed two special defenses and made two counterclaims.
The first special defense is made under the Home Solicitation Sales Act, § 42-134a et seq. Referring to the discovered need to replace the piping the defendant in paragraph 7 makes the following interesting allegation:
7. Since the defendant was first informed of the increased contract price to be charged by the plaintiff for this job after the plaintiff had begun work on the job at the defendant's residence, the contract claimed by the plaintiff was made at the defendant's residence.
The various alleged violations of the act are then set forth and it is claimed that because of the failures to comply with the act "this transaction is violable at the option of the buyer."
The second special defense seems to allege that because the refrigerant piping was an "essential and integral part of the new system" which was to be installed, the plaintiff TEC Corp. by demanding more money to install it "has refused to honor the original contract price."
The counterclaims allege a violation of the Unfair Trade Practices Act, § 42-110b et seq. — first on the basis that by definition violation of the Home Solicitation Sales Act constitutes an unfair deceptive act or practice, second because the conduct of the plaintiff is a deceptive act or practice in that the conduct constituted "a material misrepresentation or omission likely to mislead a consumer acting reasonably under the circumstances." The second counterclaim also alleges an ascertainable loss. Actual damages, punitive damages and attorneys fees are sought.
The court will now attempt to discuss the legal issues presented. Difficult questions are raised, at least in the court's view, because there are equities on both sides of this case. Also there have not been many appellate decisions involving the Home Solicitation Sales Act at least as regards the issues involved here.
I (a)
The court will first address the mechanic's lien count. The court believes the best way to approach this matter is by breaking down the contractual relationship between the parties into two separate parts. The proposal forwarded to Marko, signed by her, and returned to the defendant is the contract document. This document states that "The following proposal is submitted for the replacement of your existing electric heat pump equipment." It then lists various parts or units in several sequential sentences which make no reference to the just quoted language; refrigerant piping is not mentioned. There is no claim made by Marko that the specific items alluded to in the proposal were not installed, did not or have not operated correctly, or in any way did not comply with the contract terms regarding the installation of the specific items referred to in the proposal. The court concludes that the Home Solicitation Sales Act, § 42-134a et seq. (the act), does not apply to this aspect of the relationship between the parties and will try to set forth its reasons. In § 14-134a(a) a "home solicitation sale" means a sale, including those in response to or following an invitation by the buyer, and the buyer's agreement or offer to purchase is made at a place other than the place of business of the seller." Judge Ellen Burns in Associated Credit Co. v. Nogic, 6 Conn. Cir. 745 (1974), in commenting on the act said it showed a "legislative concern for the protection of consumers from high pressure sales tactics." Id. p. 749. In this case Miss Marko solicited the sale. She called several companies to do the work and told them and the plaintiff what she wanted — "My whole heating system replaced and heating and air conditioning system replaced." She was not even quoted a price in her home, a proposal was mailed to her, she signed it in the privacy of her home and it became effective only when it arrived signed at the seller's place of business. The act was apparently enacted to prevent people from being strong-armed to purchase goods at an offered price in their own homes or where they work or otherwise carry on their day-to-day activities. The plaintiff's agent Climie cannot be said to have solicited a sale as set forth in the original proposal in Marko's home — a sale cannot be said to be solicited if at the time of the contact with the consumer the seller does not even quote a price but says it will come in the mail. The court believes that under the facts of this case the plaintiff should be entitled to recover the monies owing under the original proposal.
(b)
The real question for the court as regards the plaintiff's claim is whether it is entitled to recover the sum of $984.06 for installation of the refrigerant piping. On two grounds the court has difficulty in deciding for the plaintiff. The proposal told this lady she was contracting "for the replacement of your existing electric heat pump equipment." The refrigerant pipes were not then alluded to in the rest of the document but Mr. Climie indicated the pipes were an integral part of the system. A reasonable consumer would assume he or she was buying a functioning HVAC system which necessarily included usable piping. No lengthy citation to authority is needed to support the following statement in 17 Am.Jur.2d, "Contracts," § 336 at pp. 323-24.
Common sense and good faith are the leading characteristics of all constructions of contracts, and the rules for the interpretation of contracts are intended for persons of common understanding. The construction of a contract as to its operation and effect will, after all, depend less on artificial rules than on the application of good sense and sound equity to the object and spirit of the contract in the given case. It is the substance of an agreement rather than its form — that is, the spirit and purpose rather than the letter of the agreement — which must control its construction.
All of the foregoing being the case there would be no justification for allowing the plaintiff to receive added consideration for performing work (insuring an operable system which of necessity meant having operable refrigerant pipes) which it had in effect already contracted to perform.
Also in his letter to the Better Business Bureau and in court Mr. Climie, as an honest witness, admitted that the omission of the refrigerant piping in pricing the job was an error. He testified that fifty percent of the jobs required this to be done but he never referenced it in the proposal or clearly brought it up in his discussions with Marko. But as the plaintiff notes, "reformation of a contract is not available when the mistake, if any, is unilateral and is not accompanied by fraud or inequitable conduct on the part of the other party." Harlach v. Metropolitan Property Life Ins. Co., 221 Conn. 185, 190 (1992). It is true that our state adopts the rather liberal doctrine that if an unforeseen or burdensome problem arises on a contracted-for job, and the party seeking more compensation is unwilling to proceed under the original contract "and the other party, as a matter of fair dealing or to get the work done (as here) promises to pay an additional or greater amount, the new promise is not without consideration." 17 Am.Jur.2d, "Contracts," § 504, p. 475, Blakeslee v. Water Commissioners, 106 Conn. 642, 655 (1927). But that doctrine cannot be applied here. The Blakeslee case referring to a Minnesota case said the unforeseen difficulties "must be substantial, unforeseen, and not within the contemplation of the parties when the contract was made." "Inadequacy of the contract price which is the result of an error of judgment, and not of some excusable mistake of fact, is not sufficient." Id. p. 657. The court says the application of the doctrine is based on "good sense and good morals." Id. p. 655. But here Mr. Climie admitted that in fifty percent of the jobs similar to the work done for Miss Marko replacement of this piping was necessary. Yet this was never discussed with Marko who as an ordinary consumer would have no way of appreciating the risks involved. Under such circumstances the Blakeslee doctrine cannot fairly be used to permit compensation for installation of the piping.
It is also true that the transaction to install the refrigerant pipes, considered separately, should be covered by the Home Solicitation Sales Act. This transaction occurred two days into the job and the agreement to do the work took place at Marko's home. Representatives of the plaintiff informed her that new piping had to be installed; she did not solicit them to install the new piping ab initio — she did not know it was necessary and it was never mentioned in the original proposal. The plaintiff argues that the act does not apply because of an exception set forth in subsection (4) of § 42-134a(a). The statute reads: "The term `home solicitation sale' does not include a transaction
(4) in which the buyer has initiated the contact and specifically requested the seller to visit his (her) home for the purpose of repairing or performing maintenance upon the buyer's personal property. If in the course of such a visit, the seller sells the buyer the right to receive additional services or goods other than replacement parts necessarily used in performing the maintenance or in making the repairs, the sale of those additional goods or services shall not come within this exclusion. CT Page 13597
The court concludes that exception does not apply here. The "seller" here did not perform repair or maintenance work at the defendant's home. The defendant contacted the plaintiff company for the purpose of having a new HVAC system installed.
Installing new piping was a part of the job and was installed not in an effort to repair Marko's old HVAC system — that was ripped out — but to service her new system.
It is true that in a sense one can "sell" to another the labor involved in doing repair or maintenance work but the act of repairing something has a distinct meaning. The Random House Dictionary defines repair as follows: "To restore to a good or sound condition after decay or damage: mend." The plaintiff was not repairing Marko's old system in this sense of the word, mending it for example. It contracted to remove the old system and did so. If the foregoing interpretation is not given, why would there be a need to put in the repair and maintenance language in subsection (4) in the first place? One would not be able to distinguish between a repair and maintenance situation and a sale situation. In effect the use of the word "repair" in its ordinary meaning modifies the meaning of "sale" in the act not vice-versa. In other words the legislature did not want to burden the repair industry which sends out a repairman to fix your television or dishwasher with the notice of cancellation provisions of the act — it would not make sense. These repair workers come often for small jobs expected to be performed on the spot. We would have to open adjoining courthouses if the act were to be applied to repair work. Sale of equipment not associated with repairs or whole new systems do not usually present the same problems so the act can and was meant to apply to these transactions. In any event the court concludes the amount of the lien should be reduced by $984.06, the cost to install the new piping. The court further concludes that although it finds a violation of the act as regards the refrigerant piping, this only defeats the plaintiff's claim for installation of that piping and not for the monies still owed on the original contract price. It seems incongruous and unfair to the court to on the one hand conclude that the initial agreement to do the work does not violate the act but then decide the agreement is void ab initio because after work was commenced, equipment and a replacement system ordered and installed, a new agreement between the parties for additional material violated the act. This is especially so in a situation where, as will be discussed later, the court cannot find there was an intent to defraud the customer by intentionally concealing the added cost of new material to complete the job. How could that claim be made when the original quote for the new piping material was $1500 to $2000, the cost was reduced to $984.06 after the plaintiff lowered its ordinary charges to do the work, and admitted to the Better Business Bureau after the dispute arose, but before litigation, that it made an "error" in not taking account of the piping.
The plaintiff has cited Cirelli v. Tradewind Irrigation LLC, CV 02-0813811 (Hartford Judicial District, 2002) (installment of lawn sprinkler system). Court held act does not apply because of subsection (4). Only issue apparently raised was whether buyer solicited the work, repair-sale distinction not discussed.
For the analogous reasons set forth in Barrett Builders v. Miller, 215 Conn. 316, 320 et seq. (1990), the plaintiff's claim in quantum meruit for the $984.06 charge regarding the installation of the refrigerant piping is not viable.
(c)
But the defendant's concerns with the mechanic's lien count are certainly not limited to its amount. In fact the defendant also questions the very validity of the mechanic's lien based on an alleged lack of compliance with the requirements for such a lien set forth in § 49-34 of the statutes. Such a lien must be "subscribed and sworn to by the claimant" which in this case is the defendant corporation. Here the lien is signed by "Patricia Kelly, Admin. Asst." Ms. Kelly is not an officer or shareholder. No written authorization for her to sign the lien was produced nor was a power of attorney offered.
But Ms. Kelly testified that she customarily works with attorneys in preparing and signing these liens. The president of the company authorized her to do this. None of this testimony was disputed. The real question is the authority of the president of the corporation to authorize Ms. Kelly to prepare and sign these mechanic's liens. In Business Organizations, Zolman Vol. 9 it says that "the authority of corporate officers, like that of other agents, may be (1) actual, express or implied (2) apparent (3) inherent (4) based on ratification of the board of directors or shareholders of prior unauthorized acts." Speaking of "actual implied authority" Zolman goes on to say this type of authority "results from either (1) the reasonable construction by the agent of the powers implicit in the express terms of his (her) grant of authority, or (2) past dealings of customary usage related to the express grant and known or understood by the grantor. Actual implied authority is based on the understandings between the principal and the agent, and not between the agent and a third party" (that is, we are not dealing with apparent authority). Id., pp. 108-45, 108-46. IN 18B Am.Jur.2d at § 1320, p. 323 says:
The implied authority of an officer or agent of a corporation includes all such incidental authority as is necessary, usual, and proper to effectuate the main authority expressly conferred. Implied authority may also arise from a course of conduct showing that a principal has repeatedly acquiesced in and adopted acts of the same kind. Accordingly, in some instances authority is implied from a grant of actual authority to conduct the business of the corporation and in other instances it is declared on the basis of the authority actually exercised by the officer in question.
It would seem to be a necessary and proper way to effectuate the responsibilities of the president of a corporation to have that president delegate to his or her administrative assistant the authority to prepare mechanic's liens. Also Ms. Kelly customarily exercised this function — could the corporation be said not to have acquiesced in this course of conduct undertaken for its own benefit and at the direction of its president? The answer would seem to be no. Also, nowhere in the concept of implied authority has the court found any indication that the appropriate delegation of that authority requires a written authorization or power of attorney. Lack thereof may go to the question of whether the delegation of the right to act for the corporation has been proven but here the court finds that burden met though the testimony of Ms. Kelly as to her course of conduct. On the issue of implied authority there are not many Connecticut cases on point but it has been held that the acts of a corporation's president will bind the corporation where "it is shown that his (her) acts are so related to his (her) duties as president that they may reasonably be held to have been done in the prosecution of the business of the corporation and while (the president) was acting within the scope of his (her) employment." Baptist v. Shannon, 145 Conn. 605, 608 (1958); Zarnecki v. Plastics Liquidating Co., 179 Conn. 261, 267 (1979); cf. Mahoney v. Hartford Investment Corp., 82 Conn. 280, 286 (1909).
In any event the mechanic's lien statute and "its provisions should be liberally construed in order to implement its remedial purpose of furnishing security for one who provides services or material." HS Torrington Associates v. Lutz Engineering Co., 185 Conn. 549, 553 (1981).
(d)
The plaintiff also makes a claim for attorneys fees. The issue of attorneys fees under § 52-249 at this point is premature. Although the action in the first count is based on a claim under the mechanic's lien, the court has been trying the validity under the underlying action.
The court adopts the position of Judge Freedman on Precision Electric Corp. v. Etemadfar, 37 Conn. L. Rptr. 184, 2004 Ct.Sup. 8678 (Stamford Judicial District, CV-03-0193723). Judge Freedman referred to a case decided by Judge Karazin who noted that § 52-249 "does not provide in every foreclosure of a lien attorneys fees are awarded." Section 52-249 says:
. . . (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. CV97 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 90 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 Rapaci 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. CT Page 13601
It could thus be argued that the foreclosure aspect of this case must go to the foreclosure short calendar and the question of attorneys fees is solely for the foreclosure judge if the matter proceeds that far.
This issue as to attorneys fees never came up fully in the hearing before the court so that the court will permit further argument on this specific aspect of the case.
II
The court will now discuss the defendant's claims. In the counterclaim complaint two theories are advanced in separate counts, each alleging a violation of the Connecticut Unfair Trade Practices Act, § 42-110b (Connecticut Unfair Trade Practices Act). In the first count it is alleged that Connecticut Unfair Trade Practices Act was violated because of a violation of the Home Solicitations Sales Act (see § 42-141b). In the second count it is alleged that the plaintiff's actions constituted a deceptive act or practice under § 42-110b(a). In the post-trial memorandum the first count theory is not argued and no oral argument was held in this case. Also it should be noted that although the basis of the Connecticut Unfair Trade Practices Act violation in the second count is alleged to be deceptive acts by the plaintiff, the memorandum argues that an unfair trade practice was committed under CUTPA. The distinction is important; as said in Connecticut Unfair Trade Practices Act, Langer, Morgan, and Belt, Vol. I, § 2.3, p. 16: "CUTPA makes deceptive acts or practices unlawful. Deception is a subject of special attention as a subclass of unfairness. All deceptive acts and practices are unfair, but not all unfair acts and practices are deceptive."
(a)
But the court will discuss the merits of a deceptive act claim under CUTPA insofar as it is still being advanced. Basically the defendant argues that the plaintiff agreed to replace the defendant's HVAC system for an agreed-upon contract price. Such a system utilizes refrigerant piping as an integral part of its operation. The plaintiff
(6) . . . removed the old heat pump equipment and began to install the new HVAC equipment (and then) the plaintiff told the defendant that there would be an additional cost of between $1500 to $2000 to replace refrigerant piping that is an essential and integral part of the new system. CT Page 13602
(7) The plaintiff has refused to honor the original contract price agreed to by the parties in this matter.
Paragraph 8 of the second count of the counterclaim alleges that "such conduct constitutes a material misrepresentation of omission likely to mislead a consumer acting reasonably under the circumstances."
There is no evidence to indicate that the plaintiff quoted a low initial contract price to induce the defendant to enter into the contract knowing that the refrigerant piping would have to be replaced, all of this serving as a vehicle to inflate the original contract price. For one thing no evidence has been presented to indicate that the true value of installing this piping was not between the quoted price $1500 and $2000, yet the bill presented to the defendant was for $984.06 — Ms. Kelly said labor costs were reduced. Before litigation commenced Mr. Climie admitted he was in error in not taking account of the possible need to install new piping in a letter he wrote to the Better Business Bureau; he made the same or similar admissions at trial. This hardly qualifies as the ordinary bait and switch operation, the hallmark of deceptive practices. Urich v. Fish, 28 Conn. L. Rptr. 615 (Blue, J.), citing National Trade Publications Service Inc. v. FTC, 300 F.2d 790 (CA 8, 1962); Slaney v. Westwood Auto Inc., 322 N.E.2d 768, 778 (Mass., 1975).
What of the fact that Climie knew in 50 percent of the jobs similar to the one agreed upon for Marko the refrigerant piping had to be replaced, he admitted it was error for him not to mention this or take it into consideration? In Egan v. Hudson Nut Products, 142 Conn. 344 it was held that even at common law there could be actionable misrepresentation where there has been nondisclosure of facts by a party having a duty to disclose them. If the Egan test were to be met a CUTPA violation could be established even though there was no misrepresentation of a past fact. But Egan must be read closely, leaving out the internal cites the court says at 142 Conn. p. 147:
It is of course true that, under certain circumstances, there may be as much fraud in a person's silence as in a false statement . . . Mere nondisclosure, however, does not ordinarily amount to . . . It will arise from such a source only under exceptional circumstances . . . To constitute fraud on that ground there must be a failure to disclose known facts and, in addition thereto, a request or an occasion or a circumstance which imposes a duty to speak . . . To be actionable for fraud, the nondisclosure must be by a person intending or expecting thereby to cause a mistake by another to exist or to continue, in order to induce the latter to enter into or refrain from entering into a transaction.
(Emphasis by this court.)
As just discussed the emphasized portion of this quotation cannot be found to apply here.
(b)
Let us examine the CUTPA claim on a strictly unfair practice basis. In addition to the allegations made in the deceptive practice claim the defendant alleges in her post-trial memorandum that she was badgered by phone calls and home visits in the plaintiff's attempt to collect the increased contract price. A mechanic's lien was threatened then placed on her home and a foreclosure action was brought. All of this, argues the defendant, meets the requirements of the so-called "cigarette rule" which sets forth the criteria for finding an unfair trade practice under CUTPA. Cheshire Mortgage Service, Inc. v. Montes, 223 Conn. 80, 105-06 (1992). But the evidence at trial did not reveal Miss Marko was subjected to oppressive collection tactics. She was called a few times and Ms. Kelly indicated if payment was not received a mechanic's lien would be filed. But no timeframe was given for the calls and no testimony was offered that they were conducted in a threatening or obnoxious manner or at inconvenient hours. Mr. Climie went to her house after the work was done in response to a letter from Marko which he interpreted as representing she would make full payment of the plaintiff's demand, including the $984.06. When he got there she said it was unfair to have to pay the $984.06. True a mechanic's lien was filed and suit was brought to foreclose on the mechanic's lien, but this court has concluded monies are owed to the plaintiff apart from the $984.06 claim. Interestingly enough Miss Marko at trial said she was always willing to pay what was owed but not the $984.06 figure. Under these circumstances how can the court find that the plaintiff's pursuit of its legal rights can be added to the equation which will equal a CUTPA violation?
The court cannot find that CUTPA has been violated.
(c)
But even if the court is not correct in its analysis and there is a CUTPA violation, and leaving aside the ascertainable loss requirement of a CUTPA claim, what can the damages be in this case? The defendant as a result of this transaction received, for all the court knows, a perfectly operating HVAC system. As a result of mistake on the part of the plaintiff she also had piping installed at a claimed price of $984.06, $500 to $1000 less than its cost, and the court has determined she need not pay that because of the operation of another ameliorative statute. It is true that where a CUTPA violation is found, nominal damages should be awarded. Tang v. Bou-Fakhreddine, 75 Conn.App. 334, 340 (2003). But beyond nominal damages the court cannot find here that there was a reckless indifference to Marko's rights even if a CUTPA violation should have been found; the nature of the claimed violation does not support that necessary predicate for punitive damages. Tanpiengco v. Tasto, 72 Conn.App. 817, 820-21 (2002). Attorneys fees even if properly supported in the evidence are discretionary and query what portion of counsel's skilled labor for Miss Marko can properly be attributable to the CUTPA claim.
In any event the court need not reach these latter issues since it has found no CUTPA violation.
Corradino, J.