Nelson G. Sanchez-Ballesteros dba Jahve Roofing v. Kenneth A. Anderson

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Superior Court of Connecticut.

Nelson G. Sanchez-Ballesteros dba Jahve Roofing v. Kenneth A. Anderson

CV095005382S

Decided: August 3, 2010

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO STRIKE (# 120)

ISSUE

Whether the court should grant the defendant's motion to strike count one for breach of contract, count two for unjust enrichment and count three for quantum meruit of the plaintiff's amended complaint, as well as the associated prayers for relief, on the ground that a violation of General Statutes § 20-429(a)(6) of the Home Improvement Act (“HIA”) (General Statutes § 20-419 et seq.) precludes recovery by a contractor either pursuant to the contract or in quantum meruit or unjust enrichment?

FACTS

On April 5, 2010, the plaintiff, Nelson G. Sanchez-Ballesteros doing business as “Jahve' Roofing,” formerly doing business as “Nelson Remodeling Repairs,” brought his three-count amended complaint against the defendant, Kenneth A. Anderson, seeking damages for unpaid construction work.   In count one for breach of contract, the plaintiff alleges the following facts.   On or about May 10, 2007, the parties entered into a written construction contract for improvements to the defendant's property located at 22 Patch Street, Danbury, a multifamily dwelling consisting of not more than six units.   The defendant breached the agreement by not paying the plaintiff pursuant to the agreement.

In count two for unjust enrichment, the plaintiff further alleges that he conferred a benefit on the defendant when he furnished materials and performed services between on or about January 15, 2004, and on or about April 26, 2007, with a fair and reasonable value of $30,750.   The defendant has been unjustly enriched because the defendant has retained the benefit, but has refused to pay the value of it.

In count three for quantum meruit, the plaintiff further alleges that the defendant is justly indebted to the plaintiff for the fair market value of the unpaid materials and services provided by and performed by the plaintiff in the amount of $30,750.

The plaintiff claims separate money damages in the amount of $15,000, plus interest, for each respective count.

On April 9, 2010, the defendant filed his motion to strike all counts of the plaintiff's amended complaint, accompanied by a memorandum of law.   The sole ground upon which the motion is based is that a violation of General Statutes § 20-429(a)(6) of the HIA precludes recovery by a contractor pursuant to the contract, or in quantum meruit or unjust enrichment.   The plaintiff filed his objection and memorandum in opposition on April 23, 2010, and the defendant filed his reply on May 5, 2010.   The matter was heard on the short calendar on May 17, 2010.

ANALYSIS

“The purpose of a motion to strike is to contest ․ the legal sufficiency of the allegations of any complaint ․ to state a claim upon which relief can be granted.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498 (2003).  “A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court.”  (Internal quotation marks omitted.)  Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., 260 Conn. 766, 771 (2002).  “A motion to strike admits all facts well pleaded;  it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings.”  (Emphasis in original;  internal quotation marks omitted.)   Faulkner v. United Technologies Corp., 240 Conn. 576, 588 (1997).   The role of the trial court in ruling on a motion to strike is “to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action.”  (Internal quotation marks omitted.)  Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378 (1997).  “Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ․ It is fundamental that in determining the sufficiency of a complaint [or a count in a complaint] challenged by a defendant's motion to strike, all well pleaded facts and those facts necessarily implied from the allegations are taken as admitted.”  Doe v. Board of Education, 76 Conn.App. 296, 299-300 (2003).

“Ordinarily, noncompliance with the Home Improvement Act should be pleaded as a special defense by a homeowner being sued on a home improvement contract.   See Sidney v. DeVries, 18 Conn.App. 581, 586-87, 559 A.2d 1145 (1989), aff'd, 215 Conn. 350, 575 A.2d 228 (1990);  K Builders & Remodelers, Inc. v. Curioso, Superior Court, judicial district of New London, Docket No. 559213 (April 18, 2002, Martin, J.) (denying motion to strike based on noncompliance with Home Improvement Act because it was not clear from complaint whether the act applied).

“Nevertheless, ‘a motion to strike may be proper where the allegations of the complaint show dispositively that a case is governed by the [Home Improvement] Act and that the Act's provisions have not been met ․’ Mill Wan Mechanical Contractors v. Elliott, Superior Court, judicial district of Hartford, Docket No. 375971 (January 30, 1992, Hennessey, J.) [5 Conn. L. Rptr. 544], citing Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 348, 572 A.2d 149 (1990).   See also Parvin Group, LLC v. Barry, Superior Court, judicial district of Fairfield, No. CV 06 50030 16 S (Jun. 4, 2007, Hiller, J.) (granting motion to strike based on a contract copy attached to the complaint for improvements to a residence where contract didn't contain a cancellation notice required by § 20-429(a));  Chiulli v. Zola, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 03 0194728 (August 4, 2004, Lewis, J.T.R.) (granting defendant homeowner's motion to strike because complaint had alleged contract was oral, thus not complying with the Home Improvement Act), rev'd on other grounds, 97 Conn.App. 699, 905 A.2d 1236 (2006);  Skovron v. Belgrail Corp., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 90 0108653 (May 8, 1991, Ryan, J.) (17 Conn. L. Rptr. 22) (same;  additionally noting that allegations that contract was to provide ‘landscaping material and services' to defendant homeowner made it clear that contract fell within Home Improvement Act).”   Martinez v. Richmond, Superior Court, judicial district of Fairfield, Docket No. CV 07 5009490 (May 22, 2008, Arnold, J.).

I.

Count One:  Breach of Contract

The defendant argues that the materials and services alleged to be the subject of the contract are within the definition of “home improvement” laid out in the HIA and because the contract contains no required “Notice of Cancellation,” it fails to comply with General Statutes § 20-429(a)(6).   Thus, the defendant argues that the plaintiff is therefore barred from recovering on his contract.   Additionally, the defendant argues that the plaintiff has also failed to meet the requirements of the exception under the HIA to recover for the reasonable value of services apart from contract.

General Statutes § 20-429 provides in relevant part:  “(a) No home improvement contract shall be valid or enforceable against an owner unless it:  (1) Is in writing, (2) is signed by the owner and the contractor, (3) contains the entire agreement between the owner and the contractor, (4) contains the date of the transaction, (5) contains the name and address of the contractor and the contractor's registration number, (6) contains a notice of the owner's cancellation rights in accordance with the provisions of chapter 740, (7) contains a starting date and completion date, (8) is entered into by a registered salesman or registered contractor.   Each change in the terms and conditions of a contract shall be in writing and shall be signed by the owner and contractor, except that the commissioner may, by regulation, dispense with the necessity for complying with the requirement that each change in a home improvement contract shall be in writing and signed by the owner and contractor.”  (Emphasis added.)

According to the definitions section of the HIA, a “ ‘[h]ome improvement contract’ means an agreement between a contractor and an owner for the performance of a home improvement.”  (Emphasis added.)  General Statutes § 20-419(5).   A “ ‘[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.”  General Statutes § 20-419(3).  “ ‘Owner’ means a person who owns or resides in a private residence and includes any agent thereof.   An owner of a private residence shall not be required to reside in such residence to be deemed an owner under this subdivision.”  General Statutes § 20-419(6).   A “ ‘[p]rivate residence’ means a single family dwelling, a multifamily dwelling of not more than six units ․” General Statutes § 20-419(8).   Finally, “ ‘home improvement’ includes, but is not limited to, the repair, replacement, remodeling, alteration, conversion, modernization, improvement, rehabilitation or sandblasting of, or addition to any land or building or that portion thereof which is used or designed to be used as a private residence, dwelling place or residential rental property ․” General Statutes § 20-419(4).

The contract in this case, attached to the plaintiff's amended complaint as Exhibit A, is a home improvement contract subject to the HIA's requirements because it involves the remodeling by the plaintiff, a contractor, of a private residence, in this case, a multifamily dwelling of not more than six units.

According to General Statutes § 20-429(a)(6), the notice of cancellation must be in accordance with chapter 740, or General Statutes § 42-135a, which provides in relevant part:

NOTICE IN SALES AGREEMENT.  NOTICE OF CANCELLATION.  DUTIES OF SELLER.

No agreement of the buyer in a home solicitation sale shall be effective if it is not signed and dated by the buyer or if the seller shall:

(1) Fail to furnish the buyer with a fully completed receipt or copy of all contracts and documents pertaining to such sale at the time of its execution, which contract shall be in the same language as that principally used in the oral sales presentation and which shall show the date of the transaction and shall contain the name and address of the seller, and in immediate proximity to the space reserved in the contract for the signature of the buyer, or on the front page of the receipt if a contract is not used, and in boldface type of a minimum size of ten points, a statement in substantially the following form:

YOU, THE BUYER, MAY CANCEL THIS TRANSACTION AT ANY TIME PRIOR TO MIDNIGHT OF THE THIRD BUSINESS DAY AFTER THE DATE OF THIS TRANSACTION.   SEE THE ATTACHED NOTICE OF CANCELLATION FORM FOR AN EXPLANATION OF THIS RIGHT.

(2) Fail to furnish each buyer, at the time such buyer signs the home solicitation sales contract or otherwise agrees to buy consumer goods or services from the seller, a completed form in duplicate, captioned ‘NOTICE OF CANCELLATION,’ which shall be attached to the contract or receipt and easily detachable, and which shall contain in ten-point boldface type the following information and statements in the same language as that used in the contract:

NOTICE OF CANCELLATION

(Date of Transaction)

YOU MAY CANCEL THIS TRANSACTION, WITHOUT ANY PENALTY OR OBLIGATION, WITHIN THREE BUSINESS DAYS FROM THE ABOVE DATE.

IF YOU CANCEL, ANY PROPERTY TRADED IN, ANY PAYMENTS MADE BY YOU UNDER THE CONTRACT OR SALE, AND ANY NEGOTIABLE INSTRUMENT EXECUTED BY YOU WILL BE RETURNED WITHIN TEN BUSINESS DAYS FOLLOWING RECEIPT BY THE SELLER OF YOUR CANCELLATION NOTICE, AND ANY SECURITY INTEREST ARISING OUT OF THE TRANSACTION WILL BE CANCELLED.

IF YOU CANCEL, YOU MUST MAKE AVAILABLE TO THE SELLER AT YOUR RESIDENCE, IN SUBSTANTIALLY AS GOOD CONDITION AS WHEN RECEIVED, ANY GOODS DELIVERED TO YOU UNDER THIS CONTRACT OR SALE;  OR YOU MAY, IF YOU WISH, COMPLY WITH THE INSTRUCTIONS OF THE SELLER REGARDING THE RETURN SHIPMENT OF THE GOODS AT THE SELLER'S EXPENSE AND RISK.

IF YOU DO MAKE THE GOODS AVAILABLE TO THE SELLER AND THE SELLER DOES NOT PICK THEM UP WITHIN TWENTY DAYS OF THE DATE OF CANCELLATION, YOU MAY RETAIN OR DISPOSE OF THE GOODS WITHOUT ANY FURTHER OBLIGATION.   IF YOU FAIL TO MAKE THE GOODS AVAILABLE TO THE SELLER, OR IF YOU AGREE TO RETURN THE GOODS TO THE SELLER AND FAIL TO DO SO, THEN YOU REMAIN LIABLE FOR PERFORMANCE OF ALL OBLIGATIONS UNDER THE CONTRACT.

TO CANCEL THIS TRANSACTION, MAIL OR DELIVER A SIGNED AND DATED COPY OF THIS CANCELLATION NOTICE OR ANY OTHER WRITTEN NOTICE, OR SEND A TELEGRAM TO ․ (Name of Seller) AT ․ (Address of Seller's Place of Business) NOT LATER THAN MIDNIGHT OF ․ (Date)

I HEREBY CANCEL THIS TRANSACTION.

(Date)

(Buyer's Signature)

(3) Fail, before furnishing copies of the ‘Notice of Cancellation to the buyer, to complete both copies by entering the name of the seller, the address of the seller's place of business, the date of the transaction, and the date, not earlier than the third business day following the date of the transaction, by which the buyer may give notice of cancellation.

The plaintiff argues that the sole ground for the defendant's motion to strike is a typographical error.   He states that the contract signed by the parties complies with the HIA's statutory notice provisions and gives the defendant notice of his cancellation rights because it contains the following language immediately above his signature on the document:  “You, The buyer may cancel this transaction at any time prior to midnight of the third business day after the day of this transition.”   The word “transition,” however, is a misspelling of the word “transaction,” and this minor typographical error is not material to the cancellation notice, he argues.   The plaintiff cites a number of cases where Connecticut courts, by overlooking minor errors, have not required strict compliance with each subdivision of the HIA. He argues that “the agreement did contain a cancellation notice, almost verbatim of the verbiage in the statute, and consistent with the location required.”

Additionally, the plaintiff cites MacMillan v. Higgins, 76 Conn.App. 261, 275, 822 A.2d 246, cert. denied, 264 Conn. 907, 826 A.2d 177 (2003) that there is a “need to protect innocent contractors from manipulative consumers” and further, “the possibility that some inexperienced contractors may encounter homeowners who use [the act] as a sword rather than as a shield.”   In other words, because the defendant is a commercial owner of real estate, the court should not allow him to rely on a technicality to avoid paying on the contract.

While it is true that our courts have allowed plaintiffs to recover on home improvement contracts that have not technically complied with all parts of the HIA, the plaintiff's noncompliance does not qualify as one of those minor technicalities.

In Wright Brothers Builders, Inc. v. Dowling, 247 Conn. 218, 720 A.2d 235 (1998), our Supreme Court stated that “although we have frequently reiterated that compliance with the provisions of § 20-249(a) is mandatory, we previously have not decided that what constitutes compliance under the act must be construed in accordance with a letter-perfect compliance standard.   Furthermore, it does not necessarily follow that whenever a statute is to be strictly construed in the sense that its provisions are mandatory, compliance with the statute's specific requirements must also be construed to require letter-perfect-rather than practical-compliance.”   The court went on to explain that “[t]he 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 ․ While the purposes of the statute are advanced by an interpretation that makes compliance with the requirements of § 20-249(a) mandatory, it does not necessarily follow that advancement of the purposes also requires that the mandatory compliance with each subsection be technically perfect.”  (Citations omitted.)  Id., 231.   It continued “that a construction that would require technically perfect compliance with each subdivision [of the Home Improvement Act] is inappropriate.   Rather, an interpretation of that section that acknowledges and furthers the remedial purposes of the statute is in order.”   Id.

The Wright court ultimately determined that the contract at issue complied with the HIA because even though the plaintiff did not provide a duplicate of the notice of cancellation, he properly advised the defendants of their right to cancel the contract.   In making its determination, the court looked to other cases where mistakes were material enough to preclude recovery under the statute, for example:  the contract “did not set out the scope of the work to be performed or other details necessary to a complete written agreement as required by § 20-429(a);” the home improvement contract was oral, not in writing;  and “the contract did not provide notice to the homeowners of their cancellation rights as required by § 20-249(a)(6).”  (Emphasis added.)   Wright Brothers Builders, Inc. v. Dowling, supra, 247 Conn. 230.

More recently, in Kronberg Brothers, Inc. v. Steele, 72 Conn.App. 53, 59, 804 A.2d 239, appeal denied, 262 Conn. 912, 810 A.2d 277 (2002), the Appellate Court held that a contractor who provided a cancellation notice with numerous defects “amounted to more than a mere technicality;  it [constituted] material noncompliance with the act's requirements.”   The court determined that “the contract did not contain the required cancellation notice in immediate proximity to the space reserved in the contract for the signature of the buyer.   Near the top of the second page of the contract, there was language that notified the defendants of their right to cancel the contract, but the language failed to comply with [General Statutes] § 42-135a in both verbiage and location.”  (Emphasis added.)  Id., 59.

Other Superior Court cases cited by the plaintiff are inapposite because the kind of minor errors in those home improvement contracts were not wholesale failures to include the statutorily prescribed language of a cancellation notice as in the present case.   In I.K. Builders v. Tucci, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 03 0198043 (June 24, 2004, Tobin, J.) (37 Conn. L. Rptr. 337), the court found the plaintiff complied with the HIA and § 20-249(a) where the only “imperfection” was that the home improvement contractor furnished a post office box address instead of a physical address.   In Denscot Swimming Pool & Landscape Services, Inc. v. Herrmann, Superior Court, judicial district of Litchfield, Docket No. CV 04 0092483 (February 15, 2005, Bozzuto, J.), the court found that the contract did not contain the plaintiff's name, address, phone number and signature, and the actual agreement was not signed or dated by the plaintiff but “did include a cancellation notice that contained the required language relating to the terms of the cancellation.”  The court in Denscot found these imperfections were minor, but the additional inclusion of a “waiver of cancellation” amounted to a “material noncompliance with the act's requirements.”

In all of the cited cases, there exists a prerequisite-the notice of cancellation must contain the verbiage set out in General Statutes § 42-135a.   The plaintiff in the present case is mistaken when he argues that “the agreement did contain a cancellation notice, almost verbatim of the verbiage in the statute.”   The contract simply does not contain the precise language of General Statutes § 42-135a set forth above.   Instead, a simple one-liner-” You, the buyer may cancel this transaction at any time prior to midnight of the third business day after the day of this transaction”-appears above the signature line in a very small font.   While this sentence may, in a general sense, notify the defendant that he has the right to cancel, it contains none of the legislatively prescribed language required to properly inform the defendant of his legal rights under the contract.   The language simply does not fulfill the purpose of the statute.

As to the plaintiff's final argument that the court should not allow the defendant, as a commercial party, to rely on the alleged technicality to avoid payment on a contract that was “significantly negotiated” before it was signed-the HIA protects some commercial owners.   As discussed previously, General Statutes § 20-419 defines an “owner” for purposes of the HIA as “a person who owns or resides in a private residence ․ An owner of a private residence shall not be required to reside in such residence to be deemed an owner under the subdivision.”   The defendant here can own but not live in the subject property and still claim the protections of the HIA.

For the foregoing reasons, the court grants the defendant's motion to strike count one of the plaintiff's amended complaint.

II.

Count Two:  Unjust Enrichment & Count Three:  Quantum Meruit

The defendant next argues that the court should strike count two for unjust enrichment and count three for quantum meruit because the plaintiff has not complied with the requirements of General Statutes § 20-429(f).

Our Appellate Court has stated that:

The Home Improvement Act was enacted in 1979 “not only to protect homeowners from substandard work, but also to ensure that homeowners are able to make an informed choice on a decision that has potentially significant financial consequences.”  Barrett Builders v. Miller, 215 Conn. 316, 327, 576 A.2d 455 (1990).   In Barrett, our Supreme Court determined that a contractor could not recover from a homeowner on an unjust enrichment or quasi-contract theory for work done under a contract that violated the Home Improvement Act. Id., 322-23.1

“The legislature added subsection (f) to § 20-429 when it enacted No. 93-215, § 1, of the 1993 Public Acts, in order to address what it considered to be the harsh result of Barrett ... See 36 S. Proc., Pt. 10, 1993 Sess., p. 3451, remarks of Senator Thomas F. Upson (As you know, there was a Supreme Court decision that said if it wasn't in writing and value had been put in ․ the contractor could not get any money back at all So this at least attempts to alleviate partially that situation.);   36 H.R. Proc., Pt. 16, 1993 Sess., p. 5611, remarks of Representative Thomas A. Fox, chairman of the general law committee (discussing Barrett Builders and stating that it is somewhat unfair to require that each I be dotted and t be crossed).”  (Internal quotation marks omitted.)  Economos v. Liljedahl Bros., Inc., 279 Conn. 300, 310, 901 A.2d 1198 (2006).   Subsection (f) of § 20-429 allows quantum meruit recovery in certain cases of partial noncompliance with subsection (a), in which a contractor seeks “payment for work performed based on the reasonable value of services which were requested by the owner, provided the [fact finder] determines that it would be inequitable to deny such recovery.”  General Statutes § 20-429(f).  Thus, if a court determines that the requirements of subsection (f) are met, it may award damages under a theory of unjust enrichment even if all of the requirements of the Home Improvement Act are not met.

(Emphasis added.)  Newtown Pool Construction, LLC v. Errico, 103 Conn.App. 566, 569-70, 930 A.2d 50 (2007).

General Statutes § 20-429(f) provides:  “Nothing in this section shall preclude a contractor who has complied with subdivisions (1), (2), (6), (7) and (8) of subsection (a) of this section from the recovery of payment for work performed based on the reasonable value of services which were requested by the owner, provided the court determines that it would be inequitable to deny such recovery.”  (Emphasis added.)

“The legislative history surrounding House Bill No. 7044, ‘An Act Concerning Recovery of Home Improvement Contractors,’ which became § 20-429(f), indicates the amendment was intended to allow quantum meruit claims by contractors who had performed work and had not been paid, provided they satisfied the listed elements of § 20-429(a).   See 36 S. Proc., supra, p. 3448, remarks of Senator Thomas A. Colapietro (noting that amendment allows home improvement contractors to recover payments for reasonable value of services provided);  36 H.R. Proc., supra, p. 5603, remarks of Representative John Fox (‘[the bill] modifies the existing law to allow a contractor to recover on a theory of quantum meruit for what is reasonable and fair based upon the work that was done, if in fact, certain requirements but not all that are required, are met’).”  Economos v. Liljedahl Bros., Inc., supra, 279 Conn. 310-11 n.14.

Therefore, the plaintiff can look to the exception provided in General Statutes § 20-429(f) for his unjust enrichment and quantum meruit claims set forth in counts two and three, respectively.  “An action brought upon the theory of unjust enrichment is essentially the same as quantum meruit, quasi-contract, and contract implied in law.   It has been said that there is no cause of action for unjust enrichment;  rather, unjust enrichment is a measure of damages or a basis for obtaining restitution.   However, there is also authority to the effect that unjust enrichment is not simply a remedy in contract and tort but can stand alone as a cause of action in its own right.   The essence of unjust enrichment is that one party has received money or benefit at expense of another, and that it is against equity and good conscience to permit the other party to retain what is sought to be recovered.”  42 C.J.S. 8-9, Implied Contracts § 9 (2007).

“Unjust enrichment applies wherever justice requires compensation to be given for property or services rendered under a contract, and no remedy is available by an action on the contract.

The right of recovery for unjust enrichment is equitable, its basis being that in a given situation it is contrary to equity and good conscience for the defendant to retain a benefit which has come to him at the expense the plaintiff ․ Unjust enrichment is, consistent with the principles of equity, a broad and flexible remedy ․ Plaintiffs seeking recovery for unjust enrichment must prove (1) that the defendants were benefitted, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs' detriment.  (Citations omitted.)

Polverari v. Peatt, 29 Conn.App. 191, 200-01 (1992), cert. denied, 224 Conn. 913 (1992).

“These three elements of the quantum meruit form of unjust enrichment have also been described as follows:  ‘Three essential elements must be established in order that a plaintiff may establish a claim based on unjust enrichment.   These elements are:  1. A benefit conferred upon the defendant by the plaintiff 2. An appreciation or knowledge by the defendant of the benefit;  and 3. The acceptance or retention by the defendant of the benefit under such circumstances as to make it inequitable for the defendant to retain the benefit without payment of its value.’  CBS Surgical Group Inc. v. Holt, 37 Conn.Sup. 555, 558 (1981).”  (Emphasis added.)   Norling v. Anthony, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. X05 CV99-0175669 S (January 2, 2001, Tierney, J.).

The exception of General Statutes § 20-429(f), however, plainly requires compliance with General Statutes § 20-429(a)(6) by properly providing a cancellation notice.   Because the plaintiff has failed to do so, his opportunity to recover under subsection (f) is foreclosed.

Therefore, the court grants the defendant's motion to strike both count two and count three of the plaintiff's amended complaint.

CONCLUSION

For the foregoing reasons, the court grants the defendant's motion to strike the plaintiff's complaint in its entirety.

BY THE COURT,

Roche, J.

FOOTNOTES

1.  FN1. The defendant also cites A Secondino & Son, Inc. v. LoRicco, 215 Conn. 336, 340, 576 A.2d 464 (1990), for the proposition that the plaintiff also needed to allege bad faith in order to recover under quasi-contract.   In that case, our Supreme Court discussed its decision in Barrett, stating that “[a]fter a full examination and discussion of the merits of such a claim by a contractor similarly situated to the plaintiff, we concluded that, absent proof of bad faith on the part of the homeowner, § 20-429 permits no recovery in quasi contract by a contractor who has failed to comply with the statute's written contract requirement.  Id., 323.”   However, bad faith need not be alleged here, given that General Statutes § 20-429(f) effectively overruled both Supreme Court cases when it was enacted in 1993.

Roche, Vincent E., J.

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