The Bridgeport Garden Apartments, Inc. v. LLC (2010)

MEMORANDUM OF DECISION

This is an action seeking money damages arising out of the defendant's alleged breach of a contract to construct improvements to property owned by the plaintiff.

On March 18, 2008, the plaintiff, Bridgeport Garden Apartments, Inc. commenced this action against the defendant, Villa Gesell Construction, LLC. The plaintiff filed a two-count complaint in which it alleges the following facts.   The plaintiff acquired title to the property upon which the Bridgeport Garden Apartment cooperative lies, including the buildings and land, by a warranty deed dated December 3, 1954.   The defendant is a home improvement contractor registered with the Connecticut Consumer Protection Department.   On or about September 16, 2005, the plaintiff and the defendant contracted to have the defendant construct improvements to six porches at the plaintiff's complex for a total contract price of $10,400.

The plaintiff's first count, alleging breach of contract, states that on or about September 19, 2006, the plaintiff paid a deposit to the defendant in the amount of $8,000.   Despite the payment of this deposit, the defendant never performed all the work for which it was contracted, and the plaintiff retained another contractor to complete the work.   The second count, alleging a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., states that the contract between the plaintiff and the defendant failed to comply with the Home Improvement Act, General Statutes § 20-419 et seq., in that it was not signed by either party, failed to contain a starting or completion date for the work and failed to include notice of the right to cancel.   Because a violation of the Home Improvement Act (act) is deemed an unfair or deceptive practice under § 42-110b, the plaintiff argues, the defendant's violation of the act is a per se violation of CUTPA.   Pursuant to both counts, the plaintiff seeks money damages, interest and other relief, and as to the second count only, attorneys fees and costs under § 42-110g(a).

On October 9, 2008, the defendant filed amended special defenses and an amended counterclaim, in which it alleged that the plaintiff had breached a separate maintenance contract with the defendant by failing to pay the defendant for services rendered.   The plaintiff filed an answer and special defenses in response to the counterclaim on October 24, 2008.   On June 10, 2009, the plaintiff filed a motion for summary judgment which was denied by the court (Arnold, J.) on August 31, 2009.   The case was tried to the court on testimony from the plaintiff's witness, Kingsley McAlpine, and the defendant's witness, Abel Chaparro.

FINDING OF FACTS

“It is well established that in cases tried before courts, trial judges are the sole arbiters of the credibility of witnesses and it is they who determine the weight to be given specific testimony ․ It is the quintessential function of the fact finder to reject or accept certain evidence ․” (Citations omitted;  internal quotation marks omitted.)  In re Antonio M., 56 Conn.App. 534, 540, 744, A.2d 915 (2000).  “The sifting and weighing of evidence is peculiarly the function of the trier [of fact].”  Smith v. Smith, 183 Conn. 121, 123, 438 A.2d 842 (1981).  “[N]othing in our law is more elementary than that the trier [of fact] is the final judge of the credibility of witnesses and of the weight to be accorded to their testimony.”  (Citation omitted;  internal quotation marks omitted).  Toffolon v. Avon, 173 Conn. 525, 530, 378 A.2d 580 (1977).  “The tier is free to accept or reject, in whole or in part, the testimony offered by either party.”  Smith v. Smith, supra, 183 Conn. 123.   “That determination of credibility is a function of the trial court.”   Heritage Square, LLC v. Eoanou, 61 Conn.App. 329, 333, 763 A.2d 199 (2001).   The trial court's function as the fact finder “is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.”  (Citation omitted;  internal quotation marks omitted.)  In re Christine F., 6 Conn.App. 360, 366, 505 A.2d 734, cert. denied, 199 Conn. 808, 508 A.2d 769 (1986).

“While a plaintiff is entitled to every favorable inference that may be legitimately drawn from the evidence, and has the same right to submit a weak case as a strong one, the plaintiff must still sustain the burden of proof on the contested issues in the complaint and the defendant need not present any evidence to contradict.  Id. Lukas v. New Haven, 184 Conn. 205, 211, 439 A.2d 949 (1981).   The general burden of proof in civil actions is on the plaintiff, who must prove all the essential allegations of the complaint.   Id.” Gulycz v. Stop & Shop Cos., 29 Conn.App. 519, 615 A.2d 1087 (1992).

The standard of proof in summary process actions, a fair preponderance of the evidence, is “properly defined as the better evidence, the evidence having the greater weight, the more convincing force in your mind.”  (Internal quotation marks omitted.)  Cross v. Huttenlocher, 185 Conn. 390, 394, 440 A.2d 952 (1981).”

The following facts were proved by a fair preponderance of the evidence at trial.

Bridgeport Garden Apartments is a cooperative housing association consisting of 216 individual units in several apartment buildings, 215 of which are separately owned and occupied by individual owners.   The cooperative is run by a board of directors consisting of unit owners who are elected at an annual meeting.   The board has the responsibility of entering into contracts with companies to perform management, maintenance and repair services.

In June or July of 2004, the board engaged the services of the defendant, a limited liability corporation specializing in government, commercial and residential construction, to perform garbage service and regular maintenance work at the apartments.   Although the defendant's responsibilities were set forth in a written proposal submitted by the defendant and accepted by the board, the agreement was not reduced to a written and signed contract.   Notwithstanding the absence of any such contract, for the following fourteen months the defendant submitted weekly invoices for services performed and the board timely paid them.

In or around July of 2005, a committee of the board arranged to have the defendant renovate six enclosed porches attached to one apartment building of the cooperative.   The defendant submitted a remodeling proposal for the porches on July 21, 2005, which was later accepted by the board.   A check in the amount of $8,000 was issued to the defendant on or about September 16, 2005, which the defendant deposited on September 19.   Upon depositing the check, the defendant commenced work on the renovation project.

On October 1, 2005, the board brought on a new management company to take over the defendant's maintenance responsibilities.   The new management company, Hi-Value Property Management, LLC, placed a telephone call to the defendant on October 1 or October 2 informing the defendant that its maintenance contract had been terminated.   By a letter dated October 9, 2005, and sent to the defendant, the board informed the defendant that Hi-Value would henceforth manage the maintenance and financial affairs of the plaintiff.

The defendant at some point departed and never returned to the porch renovation project, leaving it in an incomplete state.   The defendant did not refund any portion of the $8000 it had received from the plaintiff.   The defendant did continue to perform some maintenance duties at the cooperative until early October of 2005, with the final two weekly invoices submitted on October 3, 2005, for work performed between September 26 and September 30, and on October 10, for work performed between October 3 and October 7. These bills, each in the amount of $2,400, were never paid by the plaintiff.

The court proceeds to address the plaintiff's claims and the defendant's counterclaim, and additional facts will be discussed as necessary.

DISCUSSION

I-Breach of Contract

The plaintiff first claims that the defendant breached its contract with the plaintiff by failing to complete the porch remodeling project, as it had agreed to do, and seeks money damages.   The defendant admits the existence of an agreement between the parties, the payment of an $8,000 deposit and its own failure to complete the agreed-upon work or return the deposit, but claims in its special defenses that the plaintiff breached the contract by failing to allow the defendant onto the property to complete the work, and by not authorizing the defendant to complete the work.

“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.)  Pelletier v. Galske, 105 Conn.App. 77, 81, 936 A.2d 689 (2007), cert. denied, 285 Conn. 921, 943 A.2d 1100 (2009).  “Where no time for the performance of a contract is contained within its terms, the law presumes that it is to be performed within a reasonable time ․ What is a reasonable length of time is ordinarily a question of fact for the trier.”  (Citations omitted;  internal quotation marks omitted.)  Putnam Park Associates v. Fahnestock & Co., 73 Conn.App. 1, 11, 807 A.2d 991 (2002).   The materiality of a contractual breach is also question of fact.   See 669 Atlantic Street Associates v. Atlantic-Rockland Stamford Associates, 43 Conn.App. 113, 128, cert. denied, 239 Conn. 949 (1996).   Factors to be considered in determining whether a party's failure to render performance is a “material” breach of contract include:  a) the extent to which the injured party will be deprived of the benefit which he reasonably expected;  b) the extent to which the injured party can be adequately compensated for the part of the benefit of which he will be deprived;  c) the extent to which the party failing to perform will suffer forfeiture;  d) the likelihood that the party failing to perform will cure his failure;  and d) the extent to which the behavior of the party failing to perform comports with standards of good faith and fair dealing.  Id., 126, citing 2 Restatement (Second), Contracts § 241 (1981).

“As a general rule, in awarding damages upon a breach of contract, the prevailing party is entitled to compensation which will place [it] in the same position [it] would have been in had the contract been properly performed ․ Such damages are measured as of the date of the breach ․ For a breach of a construction contract involving defective or unfinished construction, damages are measured by computing either (I) the reasonable cost of construction and completion in accordance with the contract, if this is possible and does not involve unreasonable economic waste;  or (ii) the difference between the value that the product contracted for would have had and the value of the performance that has been received by the plaintiff, if construction and completion in accordance with the contract would involve unreasonable economic waste ․ The court may consider evidence demonstrating that repairs undertaken by [a] plaintiff were necessary to restore the facility to the condition that it would have been in had it been constructed as warranted.”  (Citation omitted;  internal quotation marks omitted.)  Naples v. Keystone Building and Development Corp., 295 Conn. 214, 224, 990 A.2d 326 (2010).   The plaintiff has the burden of proving the extent of the damages suffered ․ Although the plaintiff need not provide such proof with [m]athematical exactitude ․ the plaintiff must nevertheless provide sufficient evidence for the trier to make a fair and reasonable estimate ․ [T]he determination of damages is a matter for the trier of fact ․” Id., 224-25.

In the present case, there is no dispute between the parties that they formed an agreement under which the defendant would perform remodeling work to several porches on the defendant's property in exchange for monetary compensation.   Further, there is no dispute that the plaintiff paid the defendant an $8,000 deposit, no portion of which was returned to the plaintiff.   It is also undisputed that the defendant never completed the porch project.   The plaintiff's witness credibly testified that the plaintiff was compelled to pay another company the sum of $9,600 to complete the unfinished work on the porches.   The testimony of the parties' witnesses did, however, reveal a dispute as to the amount of the project each claimed to have been completed, with the plaintiff's witness claiming ten percent completion, and the defendant's witness claiming fifty percent.   The court concludes that the weight of the evidence favors the plaintiff's contention that the defendant completed approximately ten percent of the work on the remodeling project before departing the property.¹  There is an additional dispute as to the total amount the defendant was to have been paid for completing the work.   On this point, the court concludes that the credible testimony of the plaintiff's witness and evidence contained within the porch remodeling proposal support the plaintiff's contention that the total contract price was $10,400.

The plaintiff has thus shown the existence of an agreement between the parties, has shown that it performed by providing the defendant with an $8,000 deposit in expectation that the plaintiff would perform its duties under the agreement, but that the defendant completed only ten percent of the work it had agreed to do.   The court finds that the defendant's failure to complete the work deprived the plaintiff of the benefit it reasonably expected from the payment of its deposit, and that the plaintiff has therefore shown that the defendant materially breached the contract.

The plaintiff has also provided sufficient evidence to permit the court to make a determination of damages.   In consideration of the findings that the plaintiff paid the defendant the sum of $8,000, that the plaintiff paid another company the reasonable sum of $9,600 to complete the remainder of the project, and that the total cost of the porch remodeling project was $10,400, the court finds that the plaintiff sustained damages in the amount of $7,200 ($9,600 + $8,000 = $17,600;  $17,600-$10,400 = $7,200), the amount necessary to place the plaintiff in the same position as had the contract been performed according to its terms.²

The defendant, however, argues that the plaintiff and/or its agents breached the contract by repeatedly failing to allow the defendant onto the property to complete the work between December 2005 and March 2006, and by not authorizing the defendant to complete the work.   The court concludes that the defendant has failed to show, by a preponderance of the evidence, that the plaintiff breached the agreement.   The defendant's witness offered no testimony as to whether the defendant had been refused access to the property during the December 2005 through March 2006 time period.   Further, the court does not find the testimony of the defendant's witness claiming that the plaintiff's management company had told the defendant to cease work on the porches to be credible.   The only documentary evidence on this issue appears to be a letter from the plaintiff to the defendant dated October 9, 2005, which, although it apparently addresses a termination of the plaintiff's maintenance contract, is silent as to the porch remodeling contract, and a letter from the defendant to the plaintiff, dated October 11, 2005, referring to a voicemail message from the plaintiff's new management company purportedly informing the defendant “not to show up for work” the following Monday.   The second letter, again, does not specifically mention anything said or done by the plaintiff with regard to the porch contract.   In all, the defendant has not shown that the plaintiff did not allow the defendant onto the property to complete the work, or that the plaintiff did not authorize the defendant to complete it.

Accordingly, the court concludes that the plaintiff is entitled to recover the sum of $7,200 from the defendant as a remedy in damages for the defendant's breach.³

II-CUTPA

The plaintiff further seeks money damages and attorneys fees pursuant to CUTPA, as codified in General Statutes § 42-110a et seq.   Specifically, the plaintiff argues that a failure to comply with the Home Improvement Act, codified in General Statutes § 20-418 et seq., is a per se violation of CUTPA.   The defendant, in response, argues that the act is not applicable because the plaintiff is not an “owner” as defined in the act, because the act does not apply to dwellings containing more than six units.

The act “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).  “As a general rule, a home improvement contract is not enforceable against a homeowner unless the contract complies with the writing requirements of the [act], General Statutes § 20-429.” ⁴  Laser Contracting, LLC v. Torrance Family Ltd. Partnership, 108 Conn.App. 222, 226, 947 A.2d 989 (2008).  “[U]nder General Statutes § 20-427(c), any violation of the [act] is a per se violation of CUTPA.”  Hees v. Burke Construction, Inc., 290 Conn. 1, 13-14, 961 A.2d 373 (2009).  “Once a violation of the act has been established ․ homeowners still must prove that they have suffered an injury or actual loss in order to recover damages under CUTPA.”  Id., 14.

The court must first address the question of whether the plaintiff qualifies as an “owner” under § 20-419.   An “owner,” as defined under the act, “means a person ⁵ who owns or resides in a private residence and includes any agent thereof ․” General Statutes § 20-419.   In turn, “ ‘[p]rivate residence’ means a single family dwelling, a multifamily dwelling consisting of not more than six units, or a unit, common element or limited common element in a condominium ․ or in a common interest community, as defined in section 47-202.”  General Statutes § 20-419.   A cooperative is a common interest community.  General Statutes § 47-202(10).  “ ‘Common elements' means ․ in the case of ․ [a] cooperative, all portions of the common interest community other than the units ․” General Statutes § 47-202(4).   A “unit” means “a physical portion of the common interest community designated for separate ownership or occupancy ․” General Statutes § 47-202(4).

The defendant argues that because the cooperative contains 216 units, it is not a “private residence,” as § 20-418 does not apply to multifamily dwellings containing more than six units.   Addressing this question requires a brief foray into statutory construction.   In doing so, the court is guided by well established principles of statutory interpretation.  “[T]he interpretation of a statute, as well as its applicability to a given set of facts and circumstances, involves a question of law ․ In seeking to determine [the] meaning [of a statute], General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes.   If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.”  (Internal quotation marks omitted.)  Saunders v. Firtel, 293 Conn. 515, 525, 978 A.2d 487 (2009).

The plain language of § 20-418, in defining “private residence,” does not apply the six-unit limitation to condominiums or common interest communities, notwithstanding the fact that a condominium or cooperative may be composed of multi-unit structures.   Although this interpretation could potentially allow a corporate board of a building consisting of hundreds of units to avail itself of the protections of the act, while such protection would be denied to an individual owner of an eight-unit apartment building, it cannot be said that this result is absurd or unworkable.   To the extent that ambiguity remains, the legislative history of Public Acts 1991, No. 91-325, § 4, which amended the definition of “private residence” to include cooperatives and condominiums, reveals an awareness and intent on the part of legislators that the revised definition could encompass boards of large residential complexes.⁶

Upon the basis of documentary evidence and trial testimony, it is apparent that the plaintiff is a cooperative, and therefore qualifies as a “common interest community” under § 20-419.   The testimony of the two witnesses as well as relevant exhibits further reveal that portions of the property, other than the units, are owned by the plaintiff.   For example, the plaintiff's witness testified that one of the units on the property is not designated for separate ownership, but rather is owned by the cooperative and used as an office.   The testimony of the defendant's witness made reference to other areas on the property which are evidently not among the 215 separately-owned units, including a boiler room and “green areas” adjacent to the buildings.⁷

Thus, under the plain language of § 20-419 and in light of the court's findings of fact, the plaintiff qualifies as a “person” who owns a “private residence,” and is therefore an “owner” pursuant to § 20-419(6).   The work agreed to be performed by the defendant, furthermore, qualifies as “home improvement” work under § 20-419(4), which explicitly encompasses work performed on porches.⁸  The court therefore concludes that § 20-429 applies to the agreement between the plaintiff and the defendant.   There is no dispute between the parties that no written and signed contract for the porch remodeling project existed between the plaintiff and defendant.   The parties also do not dispute that no starting or completion date for the project was ever put into writing.   The undisputed facts therefore show that the defendant failed to comply with the required contract provisions enumerated in § 20-429a.

A violation of the act is a per se violation of CUTPA.   See Hees v. Burke Construction, Inc., supra, 290 Conn. 13-14.  “To recover damages under CUTPA, however, the defendant must prove more than a violation of the statute.   A party seeking to recover damages under CUTPA must meet two threshold requirements.   First, he [or she] must establish that the conduct at issue constitutes an unfair or deceptive trade practice ․ Second, he must present evidence providing the court with a basis for a reasonable estimate of the damages suffered.”  (Internal quotation marks omitted.)  MacMillan v. Higgins, 76 Conn.App. 261, 279, 822 A.2d 246, cert. denied, 264 Conn. 907, 826 A.2d 177 (2003).   As part of the second requirement, moreover, a party must also demonstrate that the CUTPA violation was the proximate cause of the loss or harm suffered.  Scrivani v. Vallombroso, 99 Conn.App. 645, 653, 916 A.2d 827, cert. denied, 282 Conn. 904, 920 A.2d 309 (2007).

In the present case, although the court concludes that the plaintiff has established that the defendant's failure to comply with § 20-429a constitutes a violation of CUTPA, the plaintiff has failed to prove that this violation was the proximate cause of the harm suffered by the plaintiff.   The plaintiff presented no evidence to show how the failure of the contract to contain a notice of right to cancel, starting date and completion date or any other defect caused the plaintiff to suffer damages.   Although the plaintiff contends in its post-trial brief that “damages clearly flow[ed]” from the lack of a written contract with a starting and ending date, since “[t]he [p]laintiff would not have had to wait around wondering when, or if, the [d]efendant was going to finish the porch work,” the record does not show that any such delay period attributable to the absence of a completion date caused damages to the plaintiff.   Accordingly, the plaintiff has failed to establish any entitlement to an award of damages under the CUTPA count, except for an award of nominal damages in the amount of $10.   See Richey v. Main Street Stafford, LLC, 110 Conn.App. 209, 222, 954 A.2d 889 (2008).   The plaintiff in its post-trial brief also seeks punitive damages.   The court declines to award such damages as the plaintiff has not shown that the defendant acted with reckless indifference to the rights of the plaintiff or committed an intentional and wanton violation of the plaintiff's rights.   See Votto v. American Car Rental, Inc., 273 Conn. 478, 485-86, 871 A.2d 981 (2005).

Although the plaintiff has not proven monetary damages, CUTPA provides that where there is no monetary recovery, the court has the discretionary authority to award the plaintiff costs and reasonable attorneys fees.   See MedValUSA Health Programs, Inc. v. Member Works, Inc., 109 Conn.App. 308, 315, 951 A.2d 26 (2008) (“Awarding ․ attorneys fees under CUTPA is discretionary ․”);  see also New England Irrigation v. Zima, Superior Court, judicial district of Hartford, Docket No. CV 08 4036128 (September 11, 2008, Satter, J.T.R.);   Sousoulas v. Home Improvement Service, Inc., Superior Court, judicial district of New Haven, Docket No. CV 08 5017603 (May 2, 2008, Hadden, J.T.R.);   Pisani v. Pinto, Superior Court, judicial district of Waterbury, Docket No. CV 05 5001723S (February 7, 2007, Upson, J.);   Trantalis v. Fisher, Superior Court, judicial district of New London, Docket No. 124386 (September 16, 2002, Hurley, J.T.R.).

Though having determined that there was, in fact, a CUTPA violation, under all the circumstances, the court finds that an award of reasonable costs and attorneys fees under § 42-110g(d) is not appropriate in the present case as the defendant's actions were not egregious.  [The plaintiff submitted an affidavit of attorneys fees claiming a total of $7,042 for services provided, and an affidavit of attorney's costs seeking an additional $295.80.   Upon review of the affidavits provided, the court concludes that the amounts sought are fair and reasonable.]   Accordingly, the plaintiff is entitled to a total of $10.00 in attorney fees and costs on its CUTPA claim and $7,200 on its breach of contract claim.

III-Defendant's Counterclaim

The defendant, in its revised counterclaim, alleges that an oral contract existed between the plaintiff and the defendant under which the defendant agreed to supply labor and the plaintiff agreed to supply materials necessary to maintain the plaintiff's property.   In consideration of this agreement, the plaintiff agreed to pay the defendant the reasonable value of its labor.   Between September 22, 2005, and October 10, 2005, the defendant alleges that, at the request of the plaintiff, it supplied labor to the plaintiff reasonably worth $4,800, an amount which was not paid by the plaintiff and which remains due and owing to the defendant.   The plaintiff does not dispute that it did not pay the $4,800 requested by the defendant.   Rather, in its special defenses, the plaintiff argues that the defendant is barred from enforcing any alleged contract on the ground that the alleged contract failed to comply with the General Statutes § 20-419 et seq.   Further, the plaintiff argues that the defendant's violation of the act is a per se violation of CUTPA.

For the reasons discussed in section II, the court concludes that the plaintiff qualifies as an “owner” pursuant to § 20-419, and, therefore, that no home improvement contract will be enforceable against it unless the contract complies with the requirements of § 20-429.   See Laser Contracting, LLC v. Torrance Family Ltd. Partnership, supra, 108 Conn.App. 226.   The issues to be resolved, therefore, are whether the alleged contract was a “home improvement contract,” and secondly, whether the alleged contract complied with the statutory requirements for home improvement contracts.   A home improvement contract “means an agreement between a contractor and an owner for the performance of a home improvement.”  General Statutes § 20-419(5).   A “home improvement,” in turn, means “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, or the construction, replacement, installation or improvement of driveways, swimming pools, porches, garages, roofs, siding, insulation, sunrooms, flooring, patios, landscaping, fences, doors and windows and waterproofing in connection with such land or building or that portion thereof which is used or designed to be used as a private residence ․” General Statutes § 20-419(4).

In the present case, the testimony of the defendant's witness revealed that, among the defendant's duties on the property was the replacement of window sashes, repairs for water damage, as well as drywall work and repair of hardwood floors.   As these types of work fall within the ambit of § 20-419(5), and were performed on “private residences,” the court concludes that the alleged agreement was the for the performance of home improvements.   Additionally, the court concludes that the alleged contract failed to comply with § 20-429 in that it was not in writing, nor did it contain any of the additional elements required by § 20-429.⁹  Because the alleged contract was for the performance of a home improvement, and because the contract failed to comply with § 20-429, the court concludes that the contract is neither valid nor enforceable against the plaintiff.   Accordingly, the defendant is not entitled to recover on its counterclaim.

CONCLUSION

For the foregoing reasons, judgment may enter in favor of the plaintiff and against the defendant in the amount of $7,200 on the plaintiff's breach of contract claim, and $10.00 in attorneys fees and costs on the plaintiff's CUTPA claim.   Accordingly, the court orders the defendant to pay a total of $7,210.00 and costs to the plaintiff.

COCCO, J.T.R.

FOOTNOTES

FN1. The testimony of the defendant's witness demonstrated that the defendant completed, at most, two of the ten proposed tasks on the defendant's porch remodeling proposal, which was admitted into evidence, on only three out of the six porches that were to be remodeled.   Thus, the testimony of the defendant's witness as to the actual work performed is largely in accordance with the contention of the plaintiff's witness that approximately ten percent of the project was completed..  FN1. The testimony of the defendant's witness demonstrated that the defendant completed, at most, two of the ten proposed tasks on the defendant's porch remodeling proposal, which was admitted into evidence, on only three out of the six porches that were to be remodeled.   Thus, the testimony of the defendant's witness as to the actual work performed is largely in accordance with the contention of the plaintiff's witness that approximately ten percent of the project was completed.

FN2. Although the defendant in its post-trial brief seeks credit for amounts allegedly spent for labor and supplies for the project, any such amounts are not relevant to the present calculation of damages, which is intended to place the prevailing party, here the plaintiff in the same position as had the contract been properly performed according to its terms.   See Naples v. Keystone Building and Development Corp., supra, 295 Conn. 224.   In the present case such damages are equivalent to the difference between the total amount spent by the plaintiff to complete the agreed-upon work and the original contract price of $10,400.   The amount spent by the defendant in performing contractual work is not relevant in this context inasmuch as the defendant made no allegation in its counterclaim orFN⌑3.  Although the plaintiff in its complaint also sought relief in the form of interest, this claim was not raised at trial, was not addressed in the plaintiff's post-trial brief, and the plaintiff has neither supplied the legal ground on which it seeks interest nor has it submitted evidence as to an amount sought.   Accordingly, the court considers the claim for interest abandoned.   See Brunswick v. Inland Wetlands Commission, 29 Conn.App. 634, 638, 617 A.2d 466 (1992) (“Claims mentioned but not adequately briefed are deemed abandoned.”).  FN2. Although the defendant in its post-trial brief seeks credit for amounts allegedly spent for labor and supplies for the project, any such amounts are not relevant to the present calculation of damages, which is intended to place the prevailing party, here the plaintiff in the same position as had the contract been properly performed according to its terms.   See Naples v. Keystone Building and Development Corp., supra, 295 Conn. 224.   In the present case such damages are equivalent to the difference between the total amount spent by the plaintiff to complete the agreed-upon work and the original contract price of $10,400.   The amount spent by the defendant in performing contractual work is not relevant in this context inasmuch as the defendant made no allegation in its counterclaim orFN⌑3.  Although the plaintiff in its complaint also sought relief in the form of interest, this claim was not raised at trial, was not addressed in the plaintiff's post-trial brief, and the plaintiff has neither supplied the legal ground on which it seeks interest nor has it submitted evidence as to an amount sought.   Accordingly, the court considers the claim for interest abandoned.   See Brunswick v. Inland Wetlands Commission, 29 Conn.App. 634, 638, 617 A.2d 466 (1992) (“Claims mentioned but not adequately briefed are deemed abandoned.”)

FN4. Section 20-429a of the act 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 ․ (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 ․” (Emphasis added.).  FN4. Section 20-429a of the act 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 ․ (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 ․” (Emphasis added.)

FN5. A “ ‘[p]erson’ means an individual, partnership, limited liability company or corporation.”  General Statutes § 20-419..  FN5. A “ ‘[p]erson’ means an individual, partnership, limited liability company or corporation.”  General Statutes § 20-419.

FN6. Indeed, this consequence of the amendment was major topic of debate in the legislature.   See 34 H.R. Proc., Pt. 16, 1991 Sess., p. 6020-21 (“Rep. Ward:  ․ I ․ will now have to oppose the amendment.   I think if it were limited to a unit, I would have absolutely no problem with it because that would truly be a consumer transaction.   When it does go to the common elements ․ you may well have a large condominium complex with professional management, with legal counsel entering into a contract with a small contractor on the other side ․ I think you now have bootstrapped in potentially the consumer being the large sophisticated individual, the contractor being the unsophisticated and yet still have all the harsh results that flow from a violation of the consumer protection laws.   Rep. Fox:  ․ With all due respect, I have to disagree.   You cannot assume that because you are dealing with a condominium association which is usually a group of laymen that run a given entity, that they are somehow or in some way at an advantage over a contractor.”)..  FN6. Indeed, this consequence of the amendment was major topic of debate in the legislature.   See 34 H.R. Proc., Pt. 16, 1991 Sess., p. 6020-21 (“Rep. Ward:  ․ I ․ will now have to oppose the amendment.   I think if it were limited to a unit, I would have absolutely no problem with it because that would truly be a consumer transaction.   When it does go to the common elements ․ you may well have a large condominium complex with professional management, with legal counsel entering into a contract with a small contractor on the other side ․ I think you now have bootstrapped in potentially the consumer being the large sophisticated individual, the contractor being the unsophisticated and yet still have all the harsh results that flow from a violation of the consumer protection laws.   Rep. Fox:  ․ With all due respect, I have to disagree.   You cannot assume that because you are dealing with a condominium association which is usually a group of laymen that run a given entity, that they are somehow or in some way at an advantage over a contractor.”).

FN7. Although the plaintiff and defendant devoted considerable argument as to whether the porches at issue were “common elements” or part of the residential units, the court need not resolve this question.   This is so because the plain language of § 20-419 does not require that home improvement work be performed on common elements for the owner of the elements to avail itself of the protections of § 20-429 of the act.   Rather, § 20-419(5) defines a “home improvement contract” as “an agreement between a contractor and an owner for the performance of a home improvement.”   Nowhere does the statute require that the home improvement be performed on property owned or occupied by the owner.   Nonetheless, the evidence reveals that, at least in part, the porches at issue in the present case could be considered common elements as well:  for example, the plaintiff's porch remodeling proposal contains mention of “latticework” at the “bases of porches,” as well as gutters not obviously associated with a particular unit..  FN7. Although the plaintiff and defendant devoted considerable argument as to whether the porches at issue were “common elements” or part of the residential units, the court need not resolve this question.   This is so because the plain language of § 20-419 does not require that home improvement work be performed on common elements for the owner of the elements to avail itself of the protections of § 20-429 of the act.   Rather, § 20-419(5) defines a “home improvement contract” as “an agreement between a contractor and an owner for the performance of a home improvement.”   Nowhere does the statute require that the home improvement be performed on property owned or occupied by the owner.   Nonetheless, the evidence reveals that, at least in part, the porches at issue in the present case could be considered common elements as well:  for example, the plaintiff's porch remodeling proposal contains mention of “latticework” at the “bases of porches,” as well as gutters not obviously associated with a particular unit.

FN8. Statutes § 20-419(4) provides in relevant part that home improvement includes “construction, replacement, installation or improvement of driveways, swimming pools, porches, garages, roofs, siding, insulation, sunrooms, flooring, patios, landscaping, fences, doors and windows and waterproofing in connection with such land or building or that portion thereof which is used or designed to be used as a private residence..  FN8. Statutes § 20-419(4) provides in relevant part that home improvement includes “construction, replacement, installation or improvement of driveways, swimming pools, porches, garages, roofs, siding, insulation, sunrooms, flooring, patios, landscaping, fences, doors and windows and waterproofing in connection with such land or building or that portion thereof which is used or designed to be used as a private residence.

FN9. 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, and (9) includes a provision disclosing each corporation, limited liability company, partnership, sole proprietorship or other legal entity, which is or has been a home improvement contractor pursuant to the provisions of this chapter or a new home construction contractor pursuant to the provisions of chapter 399a, in which the owner or owners of the home improvement contractor are or have been a shareholder, member, partner, or owner during the previous five years.”.  FN9. 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, and (9) includes a provision disclosing each corporation, limited liability company, partnership, sole proprietorship or other legal entity, which is or has been a home improvement contractor pursuant to the provisions of this chapter or a new home construction contractor pursuant to the provisions of chapter 399a, in which the owner or owners of the home improvement contractor are or have been a shareholder, member, partner, or owner during the previous five years.”

Cocco, Leonard, M., J.T.R.