Chaz, Inc. v. Don Fish (2010)

MEMORANDUM OF DECISION

I

PROCEDURAL BACKGROUND

On January 31, 2008, the plaintiff, Chaz, Inc., filed a two-count complaint against the defendant, Don Fish, seeking to recover monies claimed due for the installation of fencing around portions of the defendant's property.   The first count sounds in breach of contract, and the second count sounds in unjust enrichment.   The defendant has filed four special defenses and a four-count counterclaim.   Collectively, the special defenses address violations of the Home Solicitations Sales Act (HSSA), General Statutes § 42-135a et seq., and the Home Improvement Act (HIA), General Statutes § 20-418, et seq.   The counterclaim alleges a breach of contract, unjust enrichment, violation of the HIA and a violation of the HSSA, respectively.   The last two counts also allege that the violation of the respective statutes also constitutes a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq.   The matter was tried to the court over two days, during which the parties were heard and presented evidence and testimony relative to their claims and defenses.

II

FACTS

From the testimony and evidence provided at trial, the court finds the following facts.   In the spring of 2007, the plaintiff, doing business as Litchfield Hills Fence Company, was asked by the defendant to repair and/or replace portions of fencing on defendant's property.   The defendant operated a commercial dairy farm on 211 acres in Bolton, Connecticut, which offered dairy products to the public at a store on the property.   The primary purpose of the fencing was to keep the defendant's dairy cows on the property.   The plaintiff had installed the existing fencing for the defendant some fifteen to twenty years ago, and the work to be done was on that same fencing.   The plaintiff had also done some other fence work on the property not long before the most recent request from the defendant, and the plaintiff had completed that work to the defendant's satisfaction.

The anticipated work involved fencing with high tensile wiring, split rails, posts, gates and other necessary parts.   Many areas of the existing fencing were broken and had become overgrown with trees and bush.   Plaintiff's Exhibit 12-14.   The parties agreed that the plaintiff could do the work, but the plaintiff, through its officer and owner, Joseph LaGanga, indicated that an initial price quotation could not be given until the trees and brush were cleared.   The plaintiff therefore proposed that it would be best to have the work done on a time and materials basis.   This was relayed to the defendant and his employee, Steven Boyer, who acted as a farm manager.   Thereafter, the defendant had the brush cleared in some of the areas, and the plaintiff commenced work.   As the work progressed, the defendant would, often through Steven Boyer, request that additional work be done on various other parts of the fence.   Invoices for the work were issued periodically by the plaintiff between May 23, 2007, and August 21, 2007, when the work was ultimately completed.   The defendant paid the first seven invoices as received, but then withheld payment of the last two invoices for $15,510.95 and $3840, respectively, on the belief that they were excessive.¹  Plaintiff's Exhibits 1-9.

Prior to the commencement of the work, the plaintiff and defendant had at least one face to face meeting to discuss the possible scope, cost and nature of the work to be done.   At this meeting, the plaintiff gave the defendant a Litchfield Hills Fence Company pre-printed informational brochure about types of slipboard fences.   Notations were made on the brochure that arose out of the conversation.   These notations included “M & L 10.00 per ft, add gate and gate post.”   It also had a reference “5.00 M & L Hiten 3 wire.”   Defendant's Exhibit C. The document was undated and unsigned by the parties and contained no other information as to the scope or nature of the work or of the materials to be used.   Additionally, the document lacked a commencement or completion date, a notice of any right to cancellation or a provision for default, etc.   From the parties' testimony, the references to “M & L” were for material and labor, while the numeric references were likely intended to represent costs per linear foot relative to the repair and/or installation of high tensile wiring on the fence.   In fact, the defendant noted that while the notation “5.00 M & L Hiten 3 wire” likely referred to a high tensile 3-wire fence, he acknowledged that no 3-wire tensile was used in the repair or replacement of his fence.   Also, at that time, there were no maps, schematics or layout sketches reviewed to document what portions of fence were to be fixed.   Both the plaintiff and defendant acknowledged that no formal written agreement was ever executed by the parties.

The work that was done was evidenced by a layout sketch and work orders that were submitted by a subcontractor, Shaban Sadriu, who was hired by the plaintiff for the job and who had consistently worked with the plaintiff on other jobs for at least six years.   Plaintiff's Exhibits 11 and 13.   He testified credibly as to the amount of time spent working on the property, the nature of the work, the materials used and the approximate cost of the work billed to the plaintiff.   Plaintiff's Exhibits 11 and 13.   He also acknowledged that some of the old tensile wire and posts were used, but that most of the repair and replacement involved 7, 10 and 11-tensile wire.   As to what section of the fence was to be worked on, those instructions came not from the defendant, but rather, from Steven Boyer.

Other facts will be recited as necessary.

III

THE PLAINTIFF'S COMPLAINTABreach of Contract

Both parties have alleged a breach of contract as to their respective first counts.   Generally, “[t]he 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).

At trial, both parties acknowledged that there was no written agreement between them.   Therefore, in order to prevail on this count, the plaintiff has the burden of establishing that there was an oral agreement in place sufficiently definite and certain as to its terms and requirements.   Electrical Wholesalers, Inc. v. M.J.B. Corp., 99 Conn.App. 294, 302, 912 A.2d 1117 (2007).   After careful consideration of the parties' testimony and the exhibits submitted, the court cannot find by a preponderance of the evidence that the parties ever formed such an agreement relative to the installation and/or repair of the fence.   There was insufficient evidence of any specific meeting of the minds of the parties.

“[I]t is the [fact finder's] right to draw logical deductions and make reasonable inferences from the facts proven ․” (Internal quotation marks omitted.)  Coble v. Maloney, 34 Conn.App. 655, 671, 643 A.2d 277 (1994).   Accordingly, judgment may enter for the defendant as to this count.

B

Unjust Enrichment

The second count of plaintiff's complaint alleges unjust enrichment as an alternative ground for recovery.   The elements of a claim for unjust enrichment are well established.  “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 [plaintiff's] detriment.”  (Internal quotation marks omitted.)  New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 433, 451-52, 970 A.2d 592 (2009).  “Unjust enrichment is a very broad and flexible equitable doctrine that has as its basis the principle that it is contrary to equity and good conscience for a defendant to retain a benefit that has come to him at the expense of the plaintiff.”  Gagne v. Vaccaro, 255 Conn. 390, 409, 766 A.2d 416 (2001).   In reviewing a claim under this theory, it is noted that “[t]he lack of a remedy under a contract is a precondition to recovery based on unjust enrichment or quantum meruit.”  United Coastal Industries, Inc. v. Clearheart Construction Co., 71 Conn.App. 506, 513, 802 A.2d 901 (2002);  see also David M. Somers & Associates, P.C. v. Busch, 283 Conn. 396, 408-10, 927 A.2d 832 (2007).   Since the court has found that there was no agreement between the plaintiff and defendant for the work that was done, and therefore no other remedy available to the plaintiff under the law, the claim for unjust enrichment against the defendant is viable.   The court can reasonably find that the defendant knew of the work being done on the premises as a result of having spoken to the plaintiff directly and having observed some of the work.   He also was aware of the plaintiff's work, indirectly, through his discussions with Steven Boyer, his own employee.   In fact, much of the instruction on what work was to be done was given by Boyer.   The defendant knowingly benefitted from that work to the detriment of the plaintiff.   Under these circumstances, the law can imply a legal obligation upon the defendant to make payment for the services rendered as well as the materials and supplies provided.

“[A]n implied in law contract is not a contract, but an obligation which the law creates out of the circumstances present, even though a party did not assume the obligation ․ It is based on equitable principles to operate whenever justice requires compensation to be made ․ An implied in law contract may arise due to one party being unjustly enriched to the detriment of the other party ․ Accordingly, an implied in law contract is another name for a claim for unjust enrichment.”  (Citation omitted;  internal quotation marks omitted.)  Vertex, Inc. v. Waterbury, 278 Conn. 557, 574, 898 A.2d 178 (2006).  “A right of recovery under the doctrine of unjust enrichment is essentially equitable, its basis being that in a given situation it is contrary to equity and good conscience for one to retain a benefit which has come to him at the expense of another ․ With no other test than what, under a given set of circumstances, is just or unjust, equitable or inequitable, conscionable or unconscionable, it becomes necessary in any case where the benefit of the doctrine is claimed, to examine the circumstances and the conduct of the parties and apply this standard.”  (Internal quotation marks omitted.)  Id., 573.

In this instance, the court finds that the circumstances are such that it would be unjust, inequitable and unconscionable to allow the defendant to retain the benefit of the plaintiff's services without paying for them.   Despite this, the defendant has raised several special defenses based on the HIA and the HSSA that must be addressed.   For the reasons set forth below in parts IVC and IVD of this opinion, the court finds that the defendant has failed to prove the applicability of those special defenses to the plaintiff's claims.   Accordingly, the plaintiff has met its burden of proof as to the second count for unjust enrichment.

IV

THE DEFENDANT'S COUNTERCLAIMSABreach of Contract

In the first count of his counterclaim, the defendant alleges that he entered into an agreement with the plaintiff “to repair and install wire fencing at a cost of $5.00 per linear foot, which sum included labor and materials.”   For the reasons set forth in part IIIA above, the court finds that no agreement as to these terms existed between the parties.   Therefore, the defendant cannot prevail on this claim.   Judgment shall enter for the plaintiff as to this count.

B

Unjust Enrichment

The court has previously found that the plaintiff has proven its claim for unjust enrichment.   The defendant has failed to establish his claim on this legal theory.   Accordingly, judgment shall enter in favor of the plaintiff on the second count of defendant's counterclaim.

C

The Home Improvement Act

In the third count of his counterclaim, the defendant claims damages based on violations of the HIA ² and CUTPA.   Specifically, the defendant alleges that the plaintiff failed to:  (1) provide to the defendant a home improvement registration number in its advertisements;  (2) state that it was a registered home improvement contractor;  and (3) provide a notice of right of cancellation.

Section 20-419(4) of the HIA, defines “home improvement” as “the repair, replacement, remodeling, alteration, conversion, modernization, rehabilitation or sandblasting of, or any 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, or the construction, replacement, installation or improvement of ․ fences ․ in connection with such land or building ․ in which the total cash price for all work agreed upon between the contractor and owner exceeds two hundred dollars.”   A review of the credible testimony of both parties establishes, cumulatively, that the fencing was installed on a commercial dairy farm of approximately 211 acres for the purpose of keeping dairy cattle on the premises.   While the defendant's home is also on the premises, none of the fence work done by the plaintiff involved any fencing around the home, nor was any of the work specifically intended to benefit the residence.   In fact, the defendant conceded at trial, on direct examination, that the work was a commercial project and did not involve his home.   With this testimony, along with the other evidence presented as to the location of the work and the type of fencing put in, it is clear that the HIA is inapplicable to the defendant's claims and the facts of this case.³  E.g., Plaintiff's Exhibit 11;  Defendant's Exhibits M, O-Y.

Since the defendant has failed to establish the applicability of the HIA, any CUTPA claims associated with the HIA must also fail.   Accordingly, judgment may enter in favor of the plaintiff as to the defendant's third count.

D

The Home Solicitation Sales Act

In his fourth count, the defendant alleges that the plaintiff violated the HSSA in that, among other deficiencies, it failed to provide a written agreement that contained a notice of cancellation and other required language.

Under § 42-134a of the HSSA, a “home solicitation sale” is defined as a “sale, lease or rental of consumer goods or services, whether under single or multiple contracts, in which the seller or his representative personally solicits the 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.”   The HSSA further defines “consumer goods or services” in § 42-134a(b) as “goods or services purchased, leased, or rented primarily for personal, family, or household purposes, including courses of instruction or training regardless of the purpose for which they are taken.”   (Emphasis added.)   As noted above, the defendant testified that the fence work was for a commercial project, none of the work involved any fencing around the home and that none of the work was intended to benefit the defendant's personal residence.   There was no other evidence before the court to compel the conclusion that the fence work was done for personal, family or household purposes.

Under these circumstances, the court finds that the HSSA is inapplicable.   Accordingly, the defendant has failed to prove the fourth count of his counterclaim, and judgment shall enter for the plaintiff.

V

DAMAGES

Since the plaintiff has proven its claim of unjust enrichment as set out in the second count of its complaint, the court turns to the issue of damages.   The testimony presented at trial left no question that of the nine invoices submitted to the defendant by the plaintiff, the first seven were paid and the last two were not.   Plaintiff's Exhibits 1-9.   The last two invoices were for $15,510.95 and $3,840, respectively.   Plaintiff's Exhibits 8 and 9. The defendant had previously assented to the first seven invoices and paid them without protest.   He testified that he did not dispute the last two invoices but rather was simply shocked by the total.   He acknowledged that the same methodology had been used to calculate all of the invoices, including the last two.   The defendant had no particular disagreement with the parts, labor or materials referenced, as he had no way of knowing what was required.   Since he assumed most of the work would be repair work, he conceded that he did not expect a price quote from the plaintiff since neither party knew the extent of the materials or work that would be needed.   Ultimately, the defendant's expectation that the cost would be less than that of brand new fencing led him to the belief that the last two bills were too high.   This also resulted in his refusal to pay them.

To support his claim, the defendant presented Daniel Maltby as an expert witness on the installation of fences.   He testified that the reasonable cost of the job should have been about $6.00 per linear foot and that the plaintiff had “way overcharged” the defendant.   He estimated the total cost of the job should have been $41,840.   Although Maltby took measurements of the fence and provided estimates of the number of linear feet of wiring required for the job, he provided no testimony as to what the job consisted of and what time and materials were required to do the exact job the plaintiff had done.   He did submit a written estimate to support his position.   Defendant's Exhibit AA (admission limited to the purpose of supporting cost estimate).   A review of the estimate, however, reveals that it does not make an “apples to apples” comparison of the work that was done.   For example, as noted above, the actual work consisted of the installation of various lengths of 7, 10 and 11-high tensile wire.   The estimate provided in Defendant's Exhibit AA references only the use of “7-strand High-Tensile” wire.   He also acknowledged that the estimated linear footage of wire used was not necessarily accurate, since up to approximately 1000 linear feet of wire may have been wrapped around poles and, as a result, would have been unaccounted for in his estimate.   For these reasons, the court finds the testimony of the expert, Daniel Maltby, to be material to the proceedings, but of little weight.   The credibility of witnesses is left to the trier of fact.  Keeney v. Buccino, 92 Conn.App. 496, 513, 885 A.2d 1239 (2005).   A trial court is free to discredit even uncontroverted testimony.  Stewart v. King, 121 Conn.App. 64, 74, 994 A.2d 308 (2010).

The court finds that the plaintiff has established by a preponderance of the evidence that the invoices reflected on Plaintiff's Exhibits 8 and 9 are due and payable by the defendant.   Damages are awarded to the plaintiff in the amount of $19,350.95.

VI

CONCLUSION

Judgment shall enter for the defendant on the first count of plaintiff's complaint.   Judgment shall enter in favor of the plaintiff in the amount of $19,350.95 on the second count of plaintiff's complaint.   Finally, judgment shall enter in favor of the plaintiff on each of the four counts of defendant's counterclaim.

So ordered.

BY THE COURT

Shaban, J.

FOOTNOTES

FN1. The total of all nine invoices came to $113,772.81..  FN1. The total of all nine invoices came to $113,772.81.

FN2. Section 20-429(a) in effect at the time of the alleged acts had specific requirements in order for a home improvement contract to be valid.   It requires, in relevant part, that the contract:  “(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, and (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.”In reviewing the statute, our Supreme Court has held that “[a]s remedial legislation, the HIA must be afforded a liberal construction in favor of those whom the legislature intended to benefit.”  Rizzo Pool Co. v. Del Grosso, 232 Conn. 666, 678, 657 A.2d 1087 (1995)..  FN2. Section 20-429(a) in effect at the time of the alleged acts had specific requirements in order for a home improvement contract to be valid.   It requires, in relevant part, that the contract:  “(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, and (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.”In reviewing the statute, our Supreme Court has held that “[a]s remedial legislation, the HIA must be afforded a liberal construction in favor of those whom the legislature intended to benefit.”  Rizzo Pool Co. v. Del Grosso, 232 Conn. 666, 678, 657 A.2d 1087 (1995).

FN3. Regardless of the status of the property, the defendant also cannot prevail on his counterclaim for a violation of the HIA because that statute does not provide a private cause of action for its violation.   While the court recognizes that there is a split of authority in the Superior Court decisions on the issue, it finds an absence of statutory language authorizing a right of action on the behalf of a homeowner.   Kaczynski v. J. Videira's Paving, LLC, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 05 4003257 (January 23, 2008, Levin, J.);   McClain v. Byers, Superior Court, judicial district of Fairfield, Docket No. CV 93 0301761 (April 19, 1995, Hauser, J.) (14 Conn. L. Rptr. 98);  see also, Pereira v. DeLeon, Superior Court, judicial district of Danbury, Docket No. CV 04 4000637 (August 5, 2005, Bellis, J.) (39 Conn. L. Rptr. 723).   Moreover, the Supreme Court has recently indicated in dicta its support for the proposition that there is no private cause of action under the HIA. See Hees v. Burke Construction, Inc., 290 Conn. 1, 13-15, n.10, 961 A.2d 373 (2009).Despite this, however, an action for a violation of the HIA may be brought as a CUTPA claim for failure to comply with the requirements of the HIA. See generally Scrivani v. Vallombroso, 99 Conn.App. 645, 916 A.2d 827, cert. denied, 282 Conn. 904, 920 A.2d 309 (2007).   Our courts have allowed recovery under the CUTPA only when the party seeking to recover damages meets the following two requirements:  “First, they must establish that the conduct at issue constitutes an unfair or deceptive trade practice.   Second, they must present evidence providing the court with a basis for a reasonable estimate of the damages suffered ․ There is no automatic entitlement to damages.”  (Citation omitted.)  New England Custom Concrete, LLC v. Carbone, 102 Conn.App. 652, 666, 927 A.2d 333 (2007);  A. Secondino & Son, Inc. v. LoRicco, 215 Conn. 336, 343, 576 A.2d 464 (1990).   As to the first requirement, the claim of a breach of contract does not, alone, create a viable CUTPA claim.  Paulus v. Lasala, 56 Conn.App. 139, 152-53, 742 A.2d 379 (1999), cert. denied, 252 Conn. 928, 746 A.2d 789 (2000).   A violation of the HIA is, however, a per se violation of the CUTPA.  New England Custom Concrete, LLC v. Carbone, supra, 102 Conn.App. 666;  see also General Statutes § 20-427(c)..  FN3. Regardless of the status of the property, the defendant also cannot prevail on his counterclaim for a violation of the HIA because that statute does not provide a private cause of action for its violation.   While the court recognizes that there is a split of authority in the Superior Court decisions on the issue, it finds an absence of statutory language authorizing a right of action on the behalf of a homeowner.   Kaczynski v. J. Videira's Paving, LLC, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 05 4003257 (January 23, 2008, Levin, J.);   McClain v. Byers, Superior Court, judicial district of Fairfield, Docket No. CV 93 0301761 (April 19, 1995, Hauser, J.) (14 Conn. L. Rptr. 98);  see also, Pereira v. DeLeon, Superior Court, judicial district of Danbury, Docket No. CV 04 4000637 (August 5, 2005, Bellis, J.) (39 Conn. L. Rptr. 723).   Moreover, the Supreme Court has recently indicated in dicta its support for the proposition that there is no private cause of action under the HIA. See Hees v. Burke Construction, Inc., 290 Conn. 1, 13-15, n.10, 961 A.2d 373 (2009).Despite this, however, an action for a violation of the HIA may be brought as a CUTPA claim for failure to comply with the requirements of the HIA. See generally Scrivani v. Vallombroso, 99 Conn.App. 645, 916 A.2d 827, cert. denied, 282 Conn. 904, 920 A.2d 309 (2007).   Our courts have allowed recovery under the CUTPA only when the party seeking to recover damages meets the following two requirements:  “First, they must establish that the conduct at issue constitutes an unfair or deceptive trade practice.   Second, they must present evidence providing the court with a basis for a reasonable estimate of the damages suffered ․ There is no automatic entitlement to damages.”  (Citation omitted.)  New England Custom Concrete, LLC v. Carbone, 102 Conn.App. 652, 666, 927 A.2d 333 (2007);  A. Secondino & Son, Inc. v. LoRicco, 215 Conn. 336, 343, 576 A.2d 464 (1990).   As to the first requirement, the claim of a breach of contract does not, alone, create a viable CUTPA claim.  Paulus v. Lasala, 56 Conn.App. 139, 152-53, 742 A.2d 379 (1999), cert. denied, 252 Conn. 928, 746 A.2d 789 (2000).   A violation of the HIA is, however, a per se violation of the CUTPA.  New England Custom Concrete, LLC v. Carbone, supra, 102 Conn.App. 666;  see also General Statutes § 20-427(c).

Shaban, Dan, J.