Catrock Nominee Trustee v. Frank Cascarella, dba Remodeling by Frank (2010)

Memorandum of Decision

This memorandum of decision disposes of claims and counterclaims tried before the court on September 29, 2010.   The case arises out of the performance of a home improvement contract involving remodeling of a residence located at 59 Cat Rock Road in Cos Cob. Despite the relative routine nature of the dispute certain aspects of the case are unusual.   The first issue to confront the court was the identification of the proper plaintiff.   The summons lists the plaintiff as “Catrock Nominee Trustee.”   However, the heading of the complaint lists the plaintiff as “Catrock Nominee Trust.”

In Defendant's Compliance with Trial Management Order, the defendant noted that under Connecticut law a trust is not a proper party in litigation.   In view of the named plaintiff's lack of standing the defendant stated his intention to file a motion to dismiss the plaintiff's case.   However, no such motion was filed by the plaintiff.   Instead, on the first day of trial the plaintiff and the defendant made a joint oral motion to substitute Wayne Jervis as the plaintiff.   Counsel for the plaintiff explained that Wayne Jervis was a beneficiary of the Catrock Nominee Trust.   Before granting the joint motion the court expressed reservations as to whether a beneficiary would have standing to pursue the claims set forth in the complaint.   The court noted that, in most cases, claims of a trust can only be prosecuted by a trustee.   See 76 Am.Jur.2d, Trusts § 612 (2005).   After a brief recess, the plaintiff and the defendant amended their oral motion and jointly moved to substitute Patricia Toogood, trustee of the Catrock Nominee Trust, as plaintiff.   The court granted the amended motion.   Immediately thereafter, an appearance was filed on behalf of Toogood by plaintiff's counsel.

The substitute plaintiff did not testify at trial.   No evidence was offered by either party as to the nature or terms of the trust.   The plaintiff's principal witness was Wayne Jervis.   Jervis stated that Toogood was his mother-in-law, that the trust owned residential real estate located at 59 Cat Rock Road in Cos Cob, which was being renovated to serve as a residence for Jervis and his wife.   In addition to being a beneficiary of the trust, Jervis testified that he was an “agent” for the trust.   No evidence was offered to show the nature and extent of Jervis' agency.   However, counsel for both parties treated Jervis as if he was fully empowered to act on behalf of the trustee.

Jervis testified that he drafted the contract with the defendant, dated February 26, 2008.  (Ex. 1.) Although the document states that it is a contract between “Cat Rock Nominee Trust” ¹ and the defendant, it was signed by Jervis as “owner.”   The contract provided for certain work to be performed by the defendant at the residence located at 59 Cat Rock Road. Paragraph 5 of the contract identified three “phases” of the work to be performed by the defendant.   Phase 1 consisted of “Painting:  $34,000.00;  Venetian Plaster dining room:  $3,300.00 is optional based on owner;  Mantel:  $2,800.”   Phase 2 consisted of “Deck:  $7,400.00;  Mechanical Room:  $1,200.00;  Mechanical Room Doors:  $500.00.” Phase 3 was “Basement:  $21,500.00.” That paragraph further provides:  “Deposits will be made 1/3 for each phase upon the beginning that phase of work.   Progress payments will be made each week.   Completion payment of $5,953.00 will be made upon completion of these items to owner's satisfaction and successful inspection of the contracted work by Town of Greenwich Building Department.”

Paragraph 6 of the contract provides, in relevant part:  “All work is to be done to the Specification of the plans for Proposed Renovation for the Jervis Residence, 59 Cat Rock Road, Greenwich, CT as drawn by Richard Kotz, Architect revised 10/24/07.²  Additionally, for any Phase of work, all exposed wood for all trim, brick-face, new doors, new windows and any other type/location of wood shall be primed.   Specifically, new doors and windows shall be primed upon the later of delivery date or 2/26/07 [sic].”

Paragraphs 8 (containing a starting date), 9 (providing for a labor rate of $40 an hour for extra work, 10 (stating standards for door installation) and 11 (setting forth a completion date) were crossed out.   Paragraph 12 through 23 cover painting specifications.   The most relevant provisions are in Paragraph 16 which states:  “The work is to be defect free:  this is to include but not be limited by dings/chips/cracks in walls and trim are to be repaired, drip marks are to be sanded down, screw heads are to puttied, nail heads are to be replaced with screws where they are visible, gaps are to be caulked if <1/8” or built up with plaster if >1/8 inch, holes in walls are to be patched, flecks in the paint or dirt or dust on the painted surface are to be removed so that the painted surface is smooth, damaged caused by the flooring and other contractors is to be touched up.”

Jervis testified that the trustee was aware of the contract and that he was authorized to enter into and administer the contract on her behalf.   The defendant started work in the contract work in late February 2008.   Jervis explained that he would monitor the defendant's progress in performing the contract, obtain checks from the trustee and deliver them to the defendant on a weekly basis.   After some preparatory work was done on the installation of the deck, Jervis directed the defendant to concentrate his efforts on finishing the painting of the interior of the residence so that it could be occupied by the Jervis family.

During the course of defendant's performance of the contract, Jervis and the defendant agreed that certain extra work should be performed by the defendant.   This work included repairing the dining room ceiling which had been improperly installed by another contractor and the installation of an HVAC unit in the basement.   Uniquely, Jervis and the defendant documented their agreement with respect to the basement HVAC unit in writing.  (Ex. 10.)

Exhibit 4 reflects that between February 28, 2008 and April 28, 2008, the defendant received nine checks totaling $58,867.19.   Each of the checks was drawn on an account entitled:  “Patricia D. Toogood Nominee Trustee,” was signed by Patricia Toogood, and was payable to either the plaintiff or “Remodeling by Frank.”   The first check in the amount of $13,367.00, dated February 28, 2008 contains a notation which includes the word “deposit.”   The last check in the amount of $1,500.00, dated April 28, 2008 bears the notation “Deposit HVAC.” ³ The seven remaining checks bearing dates between March 6, 2008 and April 25, 2008 have no notations.   These checks were given to the defendant on a more or less weekly basis.⁴  There was no evidence that the defendant submitted any invoices, requests for payment or progress reports to either Jervis or to Toogood.

A disagreement between Jervis and the defendant arose out of the painting of new windows which had been installed in the residence by another contractor.   After the defendant had painted several of the windows, Jervis pointed out that the surfaces of the grids on the windows appeared uneven.   The defendant pointed out that the unevenness resulted from the inexpensive windows chosen by Jervis and the poor millwork of the manufacturer.   The defendant claimed that the substandard millwork on the windows could only be remedied by hand sanding, a labor intensive operation.   In addition, the defendant claims that due to sloppy work performed by pervious painting contractors employed by the plaintiff, he was obliged to remove paint from window and door hardware and replace weather striping on windows which had been spotted with paint.   Both the defendant and Jervis agree that the defendant's work force spent many hours sanding window grids and performing other pre-painting work.   However, Jervis claims that such work was part of the contract, while the defendant claims that the time spent was an “extra” for which he was entitled to additional compensation.   After delivering the April 25, 2008 payment to the defendant, Jervis and the plaintiff withheld further payments from the defendant.   The defendant requested payments from Jervis, stating that it was costing him $2,500 a week to keep his workers on the job.   After receiving no further payments the defendant wrote to Jervis and his wife on May 27, 2008, explaining his position that the contract did not require him to repair the inferior mill work on the windows and that Jervis' insistence on the extra work had slowed the progress of the work and resulted in additional charges.  (Ex. 6.) The letter requesting a payment of $14,000 for the extra work performed to date.   On the same day the plaintiff wrote a second letter to Jervis and his wife providing a quote for work on the exterior of the house at 59 Cat Rock Road. (Ex. 7.)

When the defendant did not receive any additional funds from Jervis or hear from him for two weeks, the defendant wrote a letter, dated June 10, 2008, to the Town of Greenwich Building Department requesting that his name be removed as a contractor for the work being done on the residence.  (Ex. 2.) When the defendant ceased work on the property he had completed between 40% (Jervis's estimate) ⁵ and 60% (defendant's estimate) of the painting.   The court notes that Jervis' estimate is based upon the square footage of the rooms which were painted compared to the total square footage of rooms to be painted under the contract.   This estimate might be more credible if only floors or ceilings were to be painted.   However, it is clear that most of the painting required under the contract was for walls, windows and doors.   Neither party provided any estimates of job completion which actually took into account the nature of the work required under the contract.

Prior to his departure from the job, the defendant completed work on the Venetian plaster in the dining room, and the mantel ⁶ included in “Phase 1.” The defendant started work on the deck and had procured materials to complete the deck, but did not proceed with that work when Jervis instructed him to give priority to the interior painting.   The defendant completed the balance of “Phase 2” of the contract.   The defendant did some work to prepare for the installation of an air conditioning unit in the basement, but did not purchase or install the unit as outlined in Exhibit 10.   The defendant did little or no work on the completion of the basement.

In late June, Jervis, apparently acting on behalf of the Plaintiff, hired a new painter, Gilberto Marin, to complete work on the residence.   Apparently, there was no written contract with Marin who performed his work on a time and materials basis with labor being billed at $30 an hour.⁷  The plaintiff produced checks showing that Marin was paid a total of $55,379.55.  (Ex. 5.) Jervis and Marin testified that Marin's crew not only painted the rooms which the defendant had not finished, but also repainted the rooms which the defendant had finished.   There was no testimony that the work actually completed by the defendant failed to conform to the requirements of the contract and the plaintiff's counsel, in final argument waived any claims of defective workmanship.

The plaintiff claims for damages include:  1) $20,467 that she claims she overpaid the defendant for the work he performed;  2) $33,227.52 representing 60% of Mann's charges; ⁸  and 3) $2,652 for the cost to complete the acquisition and installation of the basement air conditioning unit.⁹  On his counterclaim the defendant claims damages of $14,000 representing the value of the extra work which Jervis and the plaintiff never paid him.

DISCUSSION

PLAINTIFF'S COMPLAINT

Having considered the evidence the court finds that the extensive work performed by the defendant in preparing the windows for painting to Jervis' satisfaction, was not within the scope of the work set forth in the contract.   The court further finds that Jervis made progress payments to the defendant based on the extra work as well as the work detailed in the contract.   Jervis' explanation that he had inadvertently authorized overpayments to the defendant lacks credibility.   The court further finds that the plaintiff's failure to continue to make weekly progress payments to the defendant after April 25, 2008 constituted a material breach of her obligations under the contract entitling the defendant to cease performing his obligations under the contract until the plaintiff's breach was cured.   The court further finds that the evidence shows that the defendant was not overpaid by the plaintiff for the work he actually performed;  the $58,867.19 paid by the plaintiff to the defendant represented both progress payments for the completed portion of the work covered by Exhibit 1 as well as payments for a substantial portion of the extra work performed by the defendant.   The court further finds that the plaintiff is not entitled to damages of the costs she incurred to complete the work specified in the contract.   Her breach of the contract precludes her recovery of such damages.   The court further finds that the plaintiff did prove that she had paid the defendant $1,500 toward the additional work outlined in Exhibit 10.   The evidence shows that the reasonable value of the work performed by the defendant on that work was approximately $348.   In light of these findings of fact the court finds the issues on the complaint for the defendant in all regards, except with respect to the extra work set forth in Exhibit 10.   The court finds that the plaintiff is entitled to damages in the amount of $1,152 representing the amount advanced ($1,500) less the value of the work performed ($348).   Judgment may enter on the plaintiff's complaint in favor of the plaintiff in the amount of $1,152.00.

DEFENDANT'S COUNTERCLAIM

The evidence shows that the defendant was a licensed home improvement contractor.   However, the contract under which the plaintiff claims damages in his counterclaim fails to comply with the requirements of the Home Improvement Act in a many regards.  General Statutes § 20-429(a) requires that, no home improvement contract shall be valid or enforceable “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.   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.”   Exhibit 1 manifestly fails to comply with subsections (5), (6), (7) and (9).   Moreover, it appears that with the possible exception of the A/C unit in the basement documented in Exhibit 10, no changes in the work were reduced to writing and signed by the parties.

General Statutes § 20-429(f) allows a contractor who has complied with subsections (1), (2), (6), (7) and (8) to recover the reasonable value of his work if the court determines it would be inequitable to deny such a recovery.   In this case, it is clear that the defendant's failure to comply with subsections (6) and (7) bars him from any recovery from the plaintiff.

In oral argument, the defendant argued that the “bad faith” exception to the Home Improvement Act, recognized by the Supreme Court in Habetz v. Condon, 224 Conn. 231 (1992), would allow the defendant to recover damages, notwithstanding its failure to comply with the Home Improvement Act. The court finds that the defendant neither pled nor proved any bad faith on the part of the plaintiff or her agents in connection with the formation or performance of the contract in question.   The court finds the issues on the defendant's counterclaim for the plaintiff.

Judgment may enter in accordance with memorandum of decision.

David R. Tobin, J.

FOOTNOTES

FN1. No evidence was presented as to whether the trust was named “Catrock Nominee Trust” or “Cat Rock Nominee Trust.”   Other than testimony identifying Jervis and his wife as beneficiaries, the terms and objects of the trust were not in evidence.   The name of the grantor or settlor of the trust was never mentioned in testimony..  FN1. No evidence was presented as to whether the trust was named “Catrock Nominee Trust” or “Cat Rock Nominee Trust.”   Other than testimony identifying Jervis and his wife as beneficiaries, the terms and objects of the trust were not in evidence.   The name of the grantor or settlor of the trust was never mentioned in testimony.

FN2. Kotz's plans and specifications were admitted in evidence as Exhibit 9..  FN2. Kotz's plans and specifications were admitted in evidence as Exhibit 9.

FN3. This deposit clearly relates to the extra work outlined in Exhibit 10..  FN3. This deposit clearly relates to the extra work outlined in Exhibit 10.

FN4. The third check bears the date March 29, 2008, a Saturday.   The next four checks were dated April, 4, 2008, April 11, 2008, April 18, 2008 and April 25, 2008-all Fridays..  FN4. The third check bears the date March 29, 2008, a Saturday.   The next four checks were dated April, 4, 2008, April 11, 2008, April 18, 2008 and April 25, 2008-all Fridays.

FN5. To support Jervis' claim, the plaintiff introduced a copy of the floor plans on which Jervis had highlighted the rooms painted by the defendant and the rooms which he did not finish painting.  (Ex. 8.) Prior to the trial, the parties marked a package of eight photographs as a full exhibit.  (Ex. 3.) These photos show the interior of a structure, presumably the residence at 59 Cat Rock Road. No testimony was offered as when the photos were taken or what they purported to depict.   The court finds the photographs to have no evidentiary value..  FN5. To support Jervis' claim, the plaintiff introduced a copy of the floor plans on which Jervis had highlighted the rooms painted by the defendant and the rooms which he did not finish painting.  (Ex. 8.) Prior to the trial, the parties marked a package of eight photographs as a full exhibit.  (Ex. 3.) These photos show the interior of a structure, presumably the residence at 59 Cat Rock Road. No testimony was offered as when the photos were taken or what they purported to depict.   The court finds the photographs to have no evidentiary value.

FN6. The defendant testified that he completed the mantel in accordance with the plans and photographs provided to him by Jervis.   The mantel was approved by the plaintiff and by Jervis' wife.   However, Jervis was dissatisfied with the result and requested that the mantel be modified in accordance with his directions.   After agreeing to a price of $640 for the modifications, Jervis told the defendant he would only pay $320 for the work.   Jervis offered no evidence to contradict the defendant's claims regarding the mantel..  FN6. The defendant testified that he completed the mantel in accordance with the plans and photographs provided to him by Jervis.   The mantel was approved by the plaintiff and by Jervis' wife.   However, Jervis was dissatisfied with the result and requested that the mantel be modified in accordance with his directions.   After agreeing to a price of $640 for the modifications, Jervis told the defendant he would only pay $320 for the work.   Jervis offered no evidence to contradict the defendant's claims regarding the mantel.

FN7. The defendant testified that Marin's charges of $30 per hour per painter were excessive and that the normal wage rate would have been $15 to $20 per hour.   Moreover the defendant claimed that it took Marin an excessive amount of time to complete the painting in light of the extensive preparation work which the defendant had performed prior to leaving the job..  FN7. The defendant testified that Marin's charges of $30 per hour per painter were excessive and that the normal wage rate would have been $15 to $20 per hour.   Moreover the defendant claimed that it took Marin an excessive amount of time to complete the painting in light of the extensive preparation work which the defendant had performed prior to leaving the job.

FN8. Reducing the plaintiff's claim by 40%, apparently in recognition of the lack of an evidentiary basis for claiming compensation for duplicating that portion of the work which the defendant had performed satisfactorily..  FN8. Reducing the plaintiff's claim by 40%, apparently in recognition of the lack of an evidentiary basis for claiming compensation for duplicating that portion of the work which the defendant had performed satisfactorily.

FN9. This claim apparently values the preparation work completed by the defendant at $348 and ignores the fact that the plaintiff only paid the defendant a deposit of $1,500 rather than paying for the work in full..  FN9. This claim apparently values the preparation work completed by the defendant at $348 and ignores the fact that the plaintiff only paid the defendant a deposit of $1,500 rather than paying for the work in full.

Tobin, David R., J.