Opinion
CV156024218S
08-21-2018
Lee WINAKOR v. Vincent SAVALLE
UNPUBLISHED OPINION
OPINION
Frechette, J.
In this action, the plaintiff, Lee Winakor, alleges poor workmanship by the defendant, Vincent Savalle, in the construction work at plaintiff’s property in North Stonington, Connecticut. The case was tried before the court in a nine-day trial beginning on March 6, 2018. The plaintiff submitted his post-trial brief on April 17, 2018. The defendant submitted his post-trial brief on May 7, 2018. The plaintiff filed his reply on May 18, 2018. After considering the witness’ testimony, the exhibits, and other evidence, the court issues the following decision.
FINDINGS OF FACT
The court finds the following facts by a preponderance of the evidence. The plaintiff owned land at 217 Legend Wood Road, North Stonington (now known as 24 Island Road). In 2008, he began to develop the land for his single-family home. Preliminary construction began around that time, but the plaintiff did not begin the project in earnest until in 2012, when he began seeking bids for contractors to clear the site and develop the property. In mid-2012, the plaintiff met the defendant and discussed the general scope of the site work. The plaintiff asked the defendant in multiple discussions to prepare a written contract, but the defendant never did. Consequently, the plaintiff drew up a contract that required the defendant to: purchase and supply all supplies needed, clear the lot, remove stumps, dig the foundation hole and well trenches, purchase and install a septic tank, build a wall along the edge of the lakeside, build two retaining walls, build two driveways, reclaim asphalt for the driveway, grade the driveway at 8 percent, install footing drains and backfill foundation, finish the grade, seed the lawn, and conduct any blasting. The contract price was $50,000, including all materials, and required the defendant to complete the project within one year of the start date. The parties signed the contract on September 1, 2012.
The defendant began working on the site that same month. He hammered out a ledge for the foundation, installed a septic tank, constructed retaining walls, began site work, installed a propane tank and gas lines (which he later agreed to do), installed the well electrical line, and partially finished the driveway. However, the defendant was unable to complete the work by September 1, 2013. Yet, he continued to work on the property and, on January 18, 2014, signed another contract with the plaintiff to complete the work by April 1, 2014 for $10,000. At this point, the plaintiff had paid the defendant $53,000. The defendant left the site in April 2014, with his work incomplete and improper, as the plaintiff soon discovered.
First, the defendant did not properly backfill the foundation, using large rocks and boulders instead of dirt to support the foundation. Using rocks as backfill can cause the foundation walls and land around them to set unevenly and lean. Additionally, the footing drains for the foundation were improperly installed, causing flooding in the basement of the house.
Second, the defendant improperly installed the septic system because it was backfilled with rocks instead of sand and too close to the surface, making it more likely it could be crushed. That is exactly what happened in 2014, when the defendant crushed the top of the tank, requiring another tank to be installed in April 2014. This tank too was deficient and required replacing because the line running from it to the house had a break in it. The D box was also crushed. The defendant admitted in his post-trial brief that he crushed the septic tank.
Third, the defendant improperly constructed the retaining walls in the front and back of the house because they leaned, contained gaps, and washed out due to improper backfilling.
Fourth, the defendant improperly installed the patio. Although not specified in the contracts, the defendant agreed to construct the patio. Yet, his installation used rocks instead of sand as backfill, causing the patio to settle improperly.
Fifth, the defendant did not grade and seed the property when he left the site in April 2014. Instead, he left the property a mess with materials scattered around the property, trees knocked down, and rocks located throughout the site.
Sixth, the defendant improperly installed the propane tank. Although not specified in the contracts, the defendant agreed to install and backfill the tank. Yet again, he used rocks rather than sand as backfill for the tank and pipe, causing the propane to leak from the pipe and damaging the tank. After inspection, the entire tank and pipe were replaced.
Seventh, the defendant improperly installed the well electrical line, using rocks instead of sand as backfill. Consequently, the electric line failed and needed replacement.
Eighth, the defendant did not properly reclaim or grade the driveway. The driveway was at a grade higher than 8 percent, causing the plaintiff to regrade it. Further, the lower half of the driveway was not reclaimed with asphalt because it was left as dirt.
The plaintiff also claims the defendant damaged the electrical conduit on the driveway. Yet, the plaintiff did not produce sufficient evidence to show the defendant damaged the conduit. It was installed in 2008 and 2009 and the driveway was used by other suppliers and contractors, all of which could have damaged the conduit well before the defendant began working at the site. Thus, no damages will be awarded to the plaintiff for the electrical conduit.
As a result on the defendant’s improper work, the plaintiff paid $50,714.46 to finish the defendant’s work and $60,508.86 for corrective work, resulting in a total claim of $111,223.32. The defendant counterclaimed $26,709.00 for his work done on the site. However, he was unable to prove at trial, by a preponderance of the evidence, how he calculated that amount, or that the claimed work was properly done. There was insufficient evidence to show what the amount was specifically for and insufficient proof to show the plaintiff detained payment from the defendant that the defendant was entitled to. In fact, the plaintiff meticulously showed the receipts of cash he paid to the defendant during his work, disputing the defendant’s claim for compensation. Moreover, the defendant never reduced his costs in writing. Thus, there is insufficient evidence to conclude the defendant proved his counterclaim.
LAW
The plaintiff’s complaint alleges five counts: (1) breach of contract; (2) unjust enrichment; (3) violation of the Home Improvement Act (HIA), General Statutes § 20-417a et seq.; (4) another violation of the HIA, General Statutes § 20-418 et seq.; and (5) violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110b et seq.
Breach of Contract
The plaintiff’s first count alleges breach of contract by the defendant. "The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages." (Internal quotation marks omitted.) Chiulli v. Zola, 97 Conn.App. 699, 706-07, 905 A.2d 1236 (2006). Additionally, the plaintiff must prove the defendant’s breach caused the plaintiff’s claimed damages. Meadowbrook Center, Inc. v. Buchman, 149 Conn.App. 177, 186, 90 A.3d 219 (2014).
In the present case, the court finds that the plaintiff, by a preponderance of the evidence, proved this claim. There were multiple contracts signed by the plaintiff and defendant, performance by the plaintiff when he continually paid the defendant for his work, and breach of the agreement by the defendant by not completing the project on time; see Romano v. East Coast Custom Builders, LLC, Superior Court, judicial district of New Haven, Docket No. CV-08-5017668-S (September 29, 2010, Frechette, J.); and using improper techniques and methods to satisfy the contract, such as using rocks rather than sand as backfill for many of the projects. Due to the defendant’s breach, the plaintiff incurred additional expenses to repair and finish the work the defendant was contractually required to do.
The defendant argues at length that he never signed the contract. The evidence at trial, however, showed otherwise. First and foremost, the defendant’s own handwriting expert, James Streeter, concluded that the signature was more likely than not the defendant’s. Further, Golden Hammer Builders, LLC, another contractor the plaintiff hired, would subtract $55,000 from its $425,300 contract with the plaintiff if the plaintiff used a separate contractor for excavation, which the plaintiff did. More, the defendant told Brian Mawdsley, the general contractor for Golden Hammer, that he "ripped [the contract] up and threw it on the ground" when the plaintiff gave him the contract. Lastly, and most importantly, the defendant admitted that he signed another contract with the plaintiff in 2014 to finish the work that was described in the 2012 contract. Therefore, the court finds that, after considering all the evidence, the defendant signed the 2012 and 2014 contracts.
Accordingly, the court finds for the plaintiff on count one of his complaint.
Unjust Enrichment
The plaintiff’s second count alleges unjust enrichment by the defendant. Unjust enrichment "is a doctrine based on the postulate that it is contrary to equity and fairness for a defendant to retain a benefit at the expense of the plaintiff." Gagne v. Vaccaro, 255 Conn. 390, 401, 766 A.2d 416 (2001). "The doctrine’s three basic requirements are that (1) the defendant was benefitted, (2) the defendant unjustly failed to pay the plaintiff for the benefits, and (3) the failure of payment was to the plaintiff’s detriment." Id., 409.
In the present case, the court finds that the plaintiff, by a preponderance of the evidence, proved this claim. The defendant was benefitted by the receipt of funds that the plaintiff paid for his work, the defendant unjustly failed to pay the plaintiff for those funds with his poor construction, and the plaintiff suffered financial loss of hiring other contractors to repair and finish much of the defendant’s work.
However, a "lack of a remedy under the contract is a precondition for recovery based upon unjust enrichment." Gagne v. Vaccaro, supra, 255 Conn. 401. Thus, because the plaintiff has a remedy under the contract, he may not recover under the second count.
HIA
The plaintiff’s third and fourth counts allege violations of the HIA, and the parties dispute: (1) whether the act applies, and (2) whether the defendant was a general contractor. The court concludes the act applies and the defendant was a general contractor.
The HIA "is a consumer protection statute which provides for the registration of contractors and salespersons engaged in home improvement and sets forth requirements for contracts entered into between contractors and their customers." D. Rosengren, 13 Connecticut Practice Series: Construction Law (2005) § 8.1, p. 159. "The HIA is a remedial statute that was enacted for the purpose of providing the public with a form of consumer protection against unscrupulous home improvement contractors ... The aim of the statute is to promote understanding on the part of consumers with respect to the terms of home improvement contracts and their right to cancel such contracts so as to allow them to make informed decisions when purchasing home improvement services." (Citation omitted.) Wright Bros. Builders, Inc. v. Dowling, 247 Conn. 218, 231, 720 A.2d 235 (1998). The requirements of the HIA "are mandatory and ... a contractor is precluded from enforcing a home improvement contract that does not satisfy [those] requirements." Id., 228. These requirements state the contract between the homeowner and the contractor must (I) be in writing, (ii) signed by the homeowner and the contractor, (iii) contain their entire agreement, (iv) contain the date of the transaction, (v) contain the name and address of the contractor and the contractor’s registration number, (vi) contain a notice of the owner’s cancellation rights, (vii) contain a starting date and completion date, (viii) be entered into by a registered contractor, and (ix) include a provision disclosing any other legal entities the contractor is involved with. General Statutes § 20-429. "[T]he burden to ensure compliance with the act is on the contractor." MacMillan v. Higgins, 76 Conn.App. 261, 275, 822 A.2d 246, cert. denied, 246 Conn. 907, 826 A.2d 177 (2003). Any violations of the HIA are per se violations of CUTPA. General Statutes § 20-427. However, the act may not be used by a homeowner offensively against a contractor except where the homeowner asserts an affirmative CUTPA claim against the contractor. Hees v. Burke Construction, Inc., 290 Conn. 1, 13, 961 A.2d 373 (2009).
By its own terms, the HIA does not apply to the construction of a new home. General Statutes § 20-419(4)(A). Nevertheless, the HIA applies to home improvements made during the construction of a new home so long as the improvements are completely separate and distinct from the new home construction. Rizzo Pool Co. v. Del Grosso, 232 Conn. 666, 677, 657 A.2d 1087 (1995).
In the present case, the HIA applies. Although this was the construction of a new home, the defendant’s work related to the groundwork and landscaping of the house, not the construction of the home itself. See Rizzo Pool Co. v. Del Grosso, supra, 232 Conn. 677. The act applies to the improper backfill of the foundation; § 20-419(4); improper installation of electrical for the well; id. ; the improper construction of the driveway; id. ; improper construction of the retaining walls as landscaping; Weber’s Nursery, Inc. v. Prior, 71 Conn.App. 433, 437-38, 802 A.2d 206 (2002); improper grading and seeding the yard as landscaping; id. ; and improper installation and repairs of the propane and septic tanks and lines. Drain Doctor, Inc. v. Lyman, 115 Conn.App. 457, 464, 973 A.2d 672 (2009).
Accordingly, because the HIA applies, the court finds that the contract did not comply with the act. It did not contain the name and address of the contractor and the contractor’s registration number, did not contain a notice of the owner’s cancellation rights, and did not disclose whether the defendant worked as a sole proprietor, and did not contain the entire agreement (e.g., the propane tank installation). Although the contract was drafted by the homeowner, the burden of complying with the act rests with the contractor. See MacMillan v. Higgins, supra, 76 Conn.App. 275. In fact, most of the disputes in this action could have been avoided had the defendant complied with the HIA. Because the defendant brazenly and willfully admitted that he never used contracts in his work, the defendant acted unscrupulously in failing to comply with the act. See Wright Bros. Builders, Inc. v. Dowling, supra, 247 Conn. 231. Accordingly, he violated the HIA and committed a per se CUTPA violation.
Additionally, the defendant would not be entitled to recover the reasonable value of services had he proved that he had properly done the work pursuant to § 20-429(f) because the contract did not contain a notice of the owner’s cancellation rights and did not disclose whether the defendant worked as a sole proprietor.
The defendant also argues he was not a contractor, rather, a subcontractor, under the HIA. The act applies to contractors; General Statutes § 20-420(a); and " ‘[c]ontractor’ means any person who owns and operates a home improvement business or who undertakes, offers to undertake or agrees to perform any home improvement." § 20-419(3). The act, however, does not apply to subcontractors. Meadows v. Higgins, 249 Conn. 155, 166, 733 A.2d 172 (1999). Whether a home improvement service provider is a contractor or a subcontractor is a question of fact. MJM Landscaping, Inc. v. Lorant, 268 Conn. 429, 437, 845 A.2d 382 (2004).
In the present case, the defendant is a contractor. Testimony at trial showed that he worked on his own and directly interacted with the plaintiff during the construction. He reported to the plaintiff, directly billed him, and received his compensation from him. Further, the defendant signed the contracts with the plaintiff in his own name without any indication that he was signing on behalf of another person or entity. Lastly, Golden Hammer Builders, LLC, another contractor working on the site, signed a separate contract with the plaintiff that provided the plaintiff with an option to deduct $55,000 from the contract if the plaintiff used another independent contractor for excavation work. The plaintiff did so by hiring the defendant to perform that work. Thus, the defendant was a contractor under the act.
Therefore, the HIA applies, the defendant was a contractor, and the defendant violated the act. The court finds for the plaintiff on counts three and four of his complaint.
CUTPA
The plaintiff’s fifth count alleges a CUTPA violation by the defendant. Any violation of the HIA is a per se CUTPA violation. § 20-427(c). "Once a violation of the act has been established, however, our cases make clear that the homeowners still must prove that they have suffered an injury or actual loss in order to recover damages under CUTPA." Hees v. Burke Construction, Inc., supra, 290 Conn. 14. "Litigants who seek to recover damages under CUTPA must meet two threshold requirements. First, they must establish that the conduct at issue constitutes an unfair or deceptive trade practice. Second, they must present evidence providing a basis for a court to make a reasonable estimate of the damages that they have suffered." New England Custom Concrete, LLC v. Carbone, 102 Conn.App. 652, 666, 927 A.2d 333 (2007). "[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 unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three." (Internal quotation marks omitted.) Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 155, 881 A.2d 937 (2005). "Thus, a violation of CUTPA may be established by showing either an actual deceptive practice ... or a practice amounting to a violation of public policy." (Citation omitted.) Web Press Services Corp. v. New London Motors, Inc., 203 Conn. 342, 355, 525 A.2d 57 (1987).
In the present case, the defendant committed a per se CUTPA violation because he violated the HIA. See § 20-427(c). Further, the plaintiff proved the defendant’s practice was an unfair trade practice and caused damage to the plaintiff. First, the defendant’s practice was unfair because of his egregious performance of the contract coupled with his brazen and admitted refusal to comply with the HIA. The defendant testified it was not his practice to use written contracts with his work, a clear violation of the HIA. Second, the defendant’s practice caused harm to the plaintiff because he had to hire additional contractors to complete and repair the poor work done by the defendant. The plaintiff provided a detailed account of the costs he expended in repairing and completing the defendant’s work (Exhibit 20). Therefore, the court concludes that defendant committed a CUTPA violation. The court finds for the plaintiff on count five of his complaint.
Damages
The plaintiff claims $111,223.32 in damages, absent attorneys fees and costs associated with trial preparation, due to the defendant’s poor construction. Specifically, the plaintiff claims $50,714.46 in damages to finish the incomplete work left by the defendant and $60,508.86 in damages to correct the work done by the defendant.
In determining the damages for a breach of contract, "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 [by the breaching party] ... In determining the proper measure of damages, we are guided by the purpose of compensatory damages, which is to restore an injured party to the position he or she would have been in if the wrong had not been committed." (Citations omitted; internal quotation marks omitted.) Whitney v. J.M. Scott Associates, Inc., 164 Conn.App. 420, 428, 137 A.3d 866 (2016). A plaintiff’s "recovery [is divided] into two components: (1) direct damages, composed of the loss in value to him of the other party’s performance caused by its failure or deficiency ... plus, (2) any other loss, including incidental or consequential loss, caused by the breach ... Traditionally, consequential damages include any loss that may fairly and reasonably be considered [as] arising naturally, i.e., according to the usual course of things, from such breach of contract itself." (Citations omitted; internal quotation marks omitted.) Sullivan v. Thorndike, 104 Conn.App. 297, 303-04, 934 A.2d 827 (2007), cert. denied, 285 Conn. 907, 942 A.2d 415 (2008). "Further, [w]hen damages are claimed they are an essential element of the plaintiff’s proof and must be proved with reasonable certainty ... Damages are recoverable only to the extent that the evidence affords a sufficient basis for estimating their amount in money with reasonable certainty." (Citations omitted; internal quotation marks omitted.) Carrano v. Yale-New Haven Hospital, 279 Conn. 622, 646, 904 A.2d 149 (2006).
As for damages for CUTPA violations, "[t]he plaintiff who establishes CUTPA liability has access to a remedy far more comprehensive than the simple damages recoverable under common law. The ability to recover attorneys fees; General Statutes s 42-110g (d) ... enhances the private CUTPA remedy and serves to encourage private CUTPA litigation." (Footnote omitted.) Hinchliffe v. American Motors Corp., 84 Conn. 607, 617, 440 A.2d 810 (1981).
In the present case, the plaintiff provided a detailed account of the damages he sustained due to the defendant’s poor workmanship, dividing his damages between the money he spent to correct the defendant’s errors and the money he spent to complete the defendant’s promised work. There is sufficient basis to award damages in this action. Thus, the court awards the plaintiff the following in damages:
Corrective Damages:
Repair the septic system
$9,129.00
Repair the retaining walls
$8,319.71
Replace the propane tank
$12,924.18
Replace the well electrical line
$1,000.00
Repair the foundation
$13,265.97
Repair the patio
$800.00
Reclaim and regrade driveway
$4,020.00
Total
$49,458.86
Damages for Completion of Site Work:
Finish front yard work
$19,908.47
Finish rear yard work
$14,724.08
Finish retaining walls
$10,906.91
Finish driveway
$2,425.00
Clear and remove trees
$2,750.00
Total
$50,714.46
The court declines to award $10,500.00 to the plaintiff for repair to the conduit and $550.00 to resurvey the house boundary. The plaintiff did not prove that the defendant was responsible for the damage to the conduit, nor did he prove the resurvey was necessitated by the defendant’s actions. The court further finds that, because the defendant violated CUTPA, the plaintiff is entitled to attorneys fees, the amount of which is to be determined at a subsequent hearing.
CONCLUSION AND JUDGMENT
Therefore, the court finds the plaintiff has proved his case for counts one, three, four, and five of his complaint by a preponderance of the evidence and finds liability against the defendant in the amount of $100,173.32. Judgment may enter against the defendant in that amount. Attorneys fees and other costs will be determined at a subsequent court hearing. Judgment may enter in favor of the plaintiff and against the defendant on the counterclaim.