Cindy A. Crowley v. Scott Morrow dba Tomorrow's Carpentry (2011)

MEMORANDUM OF DECISION

FACTS

The Plaintiff, Cindy A. Crowley, claims to have entered into an agreement with the Defendant, Scott Morrow, d/b/a Tomorrow's Carpentry, concerning the construction of a new roof on a dwelling located at 17 Seneca Road, Shelton.   She claims that the Defendant agreed to perform the work, as outlined in a written proposal (Exhibit 2).

At the time the proposal was tendered by the Defendant, the dwelling at 17 Seneca Road was not occupied, and was in a state of disrepair.

Prior to the submission of Exhibit 2, the Defendant had performed work for Cindy Crowley on her residence, 23 Kanugum Trail, Shelton

Prior to contacting the Defendant, Scott Morrow, the Plaintiff engaged another contractor, DiGiorgi Roofing & Siding, Inc., to perform the roof replacement at a contract price of $8,715.  (Exhibit 4.) When DiGiorgi began the job, the Plaintiff was informed that due to the integrity of the house framing, it would not be possible to honor the contract price.   DiGiorgi offered to conclude the work, at a $17,000 cost.

The Plaintiff testified that she could not afford to pay the $17,000 price quoted by DiGiorgi, and contacted the Defendant, Scott Morrow.   Morrow prepared a writing, Exhibit 2, in which he stated that the cost of installing a new roof would be $10,000.

The $10,000 figure was written in the middle of the one-page document, after the initial seven lines.   Below the $10,000 quote, Morrow wrote:  “Inspect wall framing after removal of wall material to check for rotten wood.   Plum all walls and brace.   He also stated “labor for garbage supplied by homeowner.”

Exhibit 2 was never signed or initialed by Cindy A. Crowley.   However, following receipt of the document, and a meeting conducted at 17 Seneca Road, she gave Scott Morrow a check in the amount of $7,000.  (Exhibit 1.) The Defendant admits to receiving the check, which was dated January 25, 2007.

Following receipt of the cheek, Scott Morrow began work at 17 Seneca Road. He removed the existing roof, cleared garbage and debris from the inside of the structure, and exposed the wood framing.

The Defendant claims that he informed the Plaintiff that the framing was not sufficient to hold the new roof, and that the installation of beams would be required in order to provide adequate support.   He claims that the Plaintiff agreed, orally, to pay him $1,100 to install the beams, and that he purchased material for that purpose.   The beam work was completed.  (Exhibit 13.)

The Defendant claimed that he engaged a helper to assist him in removing the garbage and debris from the interior of the 17 Seneca Road structure.   He claims that he paid the laborer $90 per hour, and that 104 hours were expended, in order to accomplish the task.

Although he provided no time cards, employment records, or other documentation, the Defendant claims that the cost of removing the garbage and debris was $9,360.   The person assisting with the work was not called to testify.

During the. course of his work at 17 Seneca Road, Scott Morrow expended monies for supplies and materials.   These costs were verified at trial (Exhibits G through O.)

When the plaintiff allegedly refused to pay him the $1,100 he claims she had agreed to pay for the beam work, the Defendant refused to perform any additional work on the roof, and left the job.   He testified that he had completed 90 percent of the work required by Exhibit 2, when he left the project unfinished.

The Plaintiff, faced with an unfinished project, engaged Extreme Construction to complete the roof work, and received a $6,000 estimate.  (Exhibit C.) The Plaintiff claims to have paid the $6,000 cost of Extreme Construction, although she did not produce any cancelled check, or other documentation of payment.   No contract was signed with Extreme Construction.

Cindy Crowley claims that the job was completed and the roof was installed in two days, after the payment of the $6,000 fee.  (Exhibit A.)

The Plaintiiff instituted this action, by way of a seven-count complaint.   Count one claims that the Defendant, Bruce Morrow, d/b/a Tomorrow's Carpentry, breached the contract to install a new roof, while count two, in the alternative, is a claim for unjust enrichment.

Count three alleges negligent misrepresentation, and Count four claims fraudulent misrepresentation by the Defendant.   Counts five and six involve claims that the Defendant violated the Connecticut Unfair Trade Practices Act (CUTPA), and count seven is a claim for negligent infliction of emotional distress.

The Defendant responded with a counterclaim, in a pleading dated June 27, 2008.   He claims, in Count one of the counterclaim that he is entitled to recover the value of the work and services performed under a theory of quantum meruit, while the second count involves a claim for unjust enrichment.

The Plaintiff and the Defendant were the only witnesses who testified at trial.

Following the testimony, a directed verdict was granted as to the Plaintiff's claims of fraudulent misrepresentation (Count four), and negligent infliction of emotional distress (Count seven).

EXHIBIT 2 IS A CONTRACT BETWEEN CINDY A. CROWLEY AND SCOTT MORROW, D/B/A TOMORROW'S CARPENTRY, CONCERNING 17 SENECA ROAD, SHELTON

Exhibit 2 was signed by Scott Morrow on stationery bearing the heading “Tomorrow's Carpentry.”   He lists the property which is the subject of his proposal as 17 Seneca Road, and names the Plaintiff, Cindy A. Crowley, as the party requesting the proposal.

He describes the work to be performed, and quotes a figure of $10,000 on the document.

The elements of a breach of contract action are the formation of an agreement, performance by one party, and breach of the agreement by the other party resulting in damages Sullivan v. Thorndike, 104 Conn. 297, 303 (2007);  Rosato v. Mascardo, 82 Conn.App. 396, 411 (2004);  Bouchard v. Sundberg, 80 Conn.App. 180, 198 (2003).

Whether a contract has been undertaken, is ultimately a question of the intention of the parties.  Hughes v. Contemporary Mission, Inc., 180 Conn. 150, 152 (1980).   The intention of the parties, as manifested by their words and acts, is essential to determining whether a contract has been entered into, and, if so, what its terms are.  Hydro–Hercules Corporation v. Gary Excavating, Inc., 166 Conn. 647, 652 (1974).   There must be a bargain, in which there is manifested a mutual exchange between the parties.  Ubysz v. DiPietro, 185 Conn. 47, 51 (1981);  Hess v. Dumouchel Paper Co., 154 Conn. 343, 347 (1966).

It is found, that Exhibit 2, which was signed and completed by Scott Morrow, and presented to the Plaintiff, Cindy Crowley, constituted an offer to make a contract concerning the installation of a new roof at 17 Seneca Road, Shelton.

It is further found, that the payment of $7,000 (Exhibit 4) by the Plaintiff, represented an acceptance of the offer by the Plaintiff.

The Defendant claims that $10,000 represented only the cost of the roof, and covered only that portion of Exhibit 2 which is written above the $10,000 figure.

The Plaintiff, on the other hand, claims that $10,000 represents the total contract price, including that which is written below the $10,000 figure, and involves potential beam work.

If the language of a contract is subject to more than one reasonable interpretation, then the contract is ambiguous.  Lopinto v. Haines, 185 Conn. 527, 538 (1981).   In that event, the determination of the parties, and what they intended to encompass in their contractual agreement, is a question of fact, which requires the trier of fact to draw inferences based upon the circumstances surrounding the transaction.  Gaudio v. Griffin Hospital Services Corp., 249 Conn. 523, 533 (1999).

It is found that the $10,000 figure listed in Exhibit 2 did not cover the additional costs incurred after the wood was exposed, and the need for a supporting beam became clear.   The parties could not know if the wood was rotten, until the area was exposed, and examined.   Only then did the Defendant realize that additional work would be required.

It is found that the agreement, Exhibit 2, anticipated that additional costs might be incurred, and that the $1,100 for beam work was not encompassed within the $10,000 price.

It is further found that the beam work was essential, if the structure was to be adequately prepared to accommodate a new roof.   The Defendant claims that the Plaintiff did not pay him the additional $1,100, and that he was therefore justified in refusing to perform additional work.   This claim is not well taken.

In the absence of a written promise to pay the $1,100 by a date certain, it is found that the failure of the Plaintiff, Cindy A. Crowley, to tender the $1,100 upon request did not constitute a breach of the agreement.   The fact that $7,000 had been advanced, represents an additional reason why continued performance of the agreement by the Defendant is not excused.

Furthermore, the Defendant presented no written claim for the payment of expenses incurred in clearing the house of debris and garbage, and failed to substantiate any payments to a third person at the time of trial.

After the Defendant breached the agreement by refusing to perform additional work, the Plaintiff engaged a substitute contractor, Extreme Construction, to complete the roofing job.   The cost claimed by the Plaintiff is $6,000.

It is found, that the Plaintiff was justified in engaging a substitute contractor, and thus mitigating any damages chargeable to the Defendant, based upon his breach of the agreement contained in Exhibit 2.

The Plaintiff is entitled to recover, from the Defendant Scott Morrow, d/b/a Tomorrow's Carpentry, damages for the breach of the agreement.

THE PLAINTIFF HAS FAILED TO PROVE ANY VIOLATION OF THE CONNECTICUT UNFAIR TRADE PRACTICES ACT (CUTPA)

The Plaintiff maintains that the Defendant Scott Morrow, d/b/a Tomorrow's Carpentry, violated the provisions of the Connecticut Unfair Trade Practices Act (CUTPA).  Section 42–110b(a) of the General Statutes reads:

No person shall engage in unfair methods of competition, and unfair or deceptive acts or practices in the conduct of any trade or commerce.

The defendant, at the time in question, was a registered home improvement contractor, having registered with the Connecticut Department of Consumer Protection (Exhibit 7).

The transaction involving the parties to this action was governed by the provisions of the Connecticut Home Improvement Act, in that the work contemplated by Exhibit 2 qualified as a “Home Improvement,” pursuant to Section 20–419(4) of the General Statutes.   That statute defines a “Home Improvement” as:

․ the repair, replacement, remodeling, alteration, conversion, modernization, improvement, rehabilitation or sandblasting of, or in addition to any land or building or that portion thereof which is used or designed as a private residence, dwelling place or residential real property ․

Section 20–429 of the General Statutes 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 and completion date ․ Each change in the terms and conditions of a contract shall be in writing and shall be signed by the owner and contractor ․

On its face, Exhibit 2 does not comply with the provisions of the Connecticut Home Improvement Act. It is not signed by the Plaintiff, Cindy Crowley, does not contain a notice of the owner's right of cancellation, does not set forth the proposed starting and completion date, and is undated.

Section 20–427(c) of the General Statutes provides:  “A violation of any of the provisions of this chapter shall be deemed an unfair or deceptive trade practice under subsection (a) of section 42–110b.”

It is therefore found that the failure of Exhibit 2 to comply with the provisions of the Act, represents a per se violation of CUTPA.  Secondino & Sons, Inc. v. LoRicco, 215 Conn. 336, 343 (1990)

However, merely because a per se violation of the Connecticut Unfair Trade Practices Act (CUTPA) is found, based upon the violations of the Connecticut Home Improvement Act, does not mean that the Plaintiff necessarily prevails.   In order to prevail in a CUTPA action, a plaintiff must establish both that the Defendant has engaged in a prohibited act, and that, as a result of the prohibited act, the plaintiff suffered injury.   The violation must be the proximate cause of harm to the plaintiff.  Abrahams v. Young & Rubicam, Inc., 240 Conn. 300, 306 (1997);  Scrivani v. Vallombroso, 99 Conn.App. 645, 652 (2007).   Based upon the evidence presented, none of the violations of the Home Improvement Act caused the Plaintiff, Cindy Crowley, to sustain any damages.   It is therefore found that the Plaintiff cannot prevail based upon the per se CUTPA violations brought about by the Defendant's failure to adhere to the terms of the Connecticut Home Improvement Act.

Nor has the Plaintiff proven that the Defendant violated the Connecticut Unfair Trade Practices Act (CUTPA), independent of the per se violations.

A party seeking recovery under CUTPA must meet two requirements:  1) he must establish that the conduct at issue constitutes an unfair or deceptive trade practice, and 2) he must provide a reasonable estimate of the damages suffered—that is, he must prove that he has suffered ascertainable loss.   Beverly Hills Concepts, Inc. v. Schatz, Schatz, Ribicoff & Kotkin, 247 Conn. 48, 78–79 (1998);  Reader v. Cassarino, 51 Conn.App. 292, 298–99 (1998).   In order to prove that ascertainable loss has been sustained, it is not necessary to prove the precise amount of the loss.  Hinchcliffe v. American Motors Corp., 184 Conn. 606, 614 (1981).

In determining whether a practice violates CUTPA, Connecticut has adopted the criteria set forth in the so-called “cigarette rule,” a three-fold test:  1) does the practice offend public policy, within a common law, statutory or other concept of fairness, 2) is it immoral, unethical, oppressive or unscrupulous, and 3) does it cause substantial injury to consumers.  Hartford Electric Supply Co. v. Allen–Bradley Co., 250 Conn. 334, 367–68 (1999).   It is not necessary for a plaintiff to satisfy all three criteria.   A practice may be determined to be unfair, because of the degree to which it meets one of the criteria, or all three criteria.  Willow Springs Condominium Assoc., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 43 (1998).

Whether a practice is unfair, and violates CUTPA, presents a question of fact.  DeMotses v. Leonard Scbwartz Nissan, Inc., 22 Conn.App. 464, 466 (1990).

The court declines the invitation to transform a breach of contract claim into a violation of the Connecticut Unfair Trade Practices Act.

It is found that the actions of the Defendant, while constituting a breach of the agreement between the parties, were not oppressive, unscrupulous or unethical, and did not offend public policy.

The Plaintiff has a remedy, in the form of a breach of contract claim.

PLAINTIFF IS ENTITLED TO RECOVER DAMAGES FOR BREACH OF CONTRACT

The award of damages for breach of contract should place the injured party in the same position she would have been, had the contract been performed.   O'Hara v. State, 218 Conn. 628, 642 (1991);  West Haven Sound Development Corporation v. West Haven, 207 Conn. 308, 317 (1988);  Keefe v. Norwalk Cove Marina, Inc., 57 Conn.App. 601, 610 (2000).   Damages for breach of contract are determined as of the time of the occurrence of the breach.  Kevin Roche–John Dinkeloo & Associates v. New Haven, 205 Conn. 741, 749 (1988);  Colby v. Burnham, 31 Conn.App. 707, 721 (1993).

The Plaintiff, Cindy Crowley, contracted with the Defendant to install a new roof for $10,000, exclusive of additional and unanticipated costs.   She expended a total of $13,000 to complete the roof.

Although the Plaintiff failed to provide proof of her payment of $6,000 to Extreme Construction, in the form of a cancelled check or other receipt, the court is able to find that payment was made, based upon the exhibits supplied, and the completion of the roof after Extreme Construction was on the job.

The Defendant claims that he had completed 90 percent of the job, at the time he walked off the job, in breach of his agreement with the Plaintiff.   While this claim, standing alone, might appear suspect, the fact that the roofing work was completed in two days, lends credibility to the Defendant's claim.

It is therefore found, that 90 percent of the work to be performed pursuant to Exhibit 2 had been completed by the Defendant, when he breached the agreement.

It is further found that he completed the work to be covered by the $1,100, as shown in Exhibit 13.

The Defendant offered no proof of damages concerning the clearing of the structure of debris and garbage, and any claim for compensation has not been demonstrated.

It is found that the Plaintiff expended $13,000 to complete the roof at 17 Seneca Road, Shelton, and that the Defendant has performed 90 percent of the services required by Exhibit 2, or $9,000, plus $1,100 for the beam work, a total of $10,100.

It is further found that the Plaintiff, Cindy A. Crowley may recover of the Defendant, Scott Morrow, d/b/a Tomorrow's Carpentry, the sum of $2,900 based upon her breach of contract claim.

CONCLUSION

Judgment may enter in favor of the Plaintiff, Cindy A. Crowley, in the amount of $2,900.

Judgment may enter in favor of the Defendant, on all other Counts raised in the Plaintiff's complaint.

Judgment may enter in favor of the Plaintiff, Cindy A. Crowley, as defendant on the counterclaim, and against the Defendant, in his capacity as Plaintiff on the two-count counterclaim.

Costs are awarded to the Plaintiff.

Radcliffe, J.

Radcliffe, Dale W., J.