Judith Craven v. CBCC (2011)

MEMORANDUM OF DECISION

The plaintiff, Judith Craven, sues the defendant, CBCC Connecticut Building Contractors & Consultants LLC, for breach of a new home construction contract and violations of the Connecticut Unfair Trade Practices Act (CUTPA).   The defendant counterclaims for breach of contract, unjust enrichment, and foreclosure of a mechanic's lien.   The court received evidence at a bench trial conducted on April 12, 13, and 14, 2011, and makes the following findings and rulings of law.

The plaintiff owned around eighteen acres of raw land in Hebron, Connecticut and wished to build a new home on that parcel.   She and her husband hoped to reside at this home for the rest of their lives.   In contemplation of possible, future infirmities, the plaintiff wanted a house with handicap access and the ability to facilitate handicap modifications should the need arise.   She chose to construct a modular home and sought prospective modular house plans.   Eventually, she selected a modular plan of a colonial style designed by Excel Homes of Pennsylvania.   The modular house components and delivery cost $175,000.

The sales representative for Excel Homes suggested that the plaintiff contact the defendant to perform the ground work preliminary to the delivery and installation of the modules, the “buttonup” work to complete the construction for occupancy, the installation of a driveway, and the grading and seeding of the lawn adjacent to the house.

Timothy Foreman owns the defendant LLC and was the person with whom the plaintiff and the modular home company interacted regarding the new house.   Foreman had participated in the construction of several modular houses previously, including a few projects where he prepared the foundation to receive the modules.   The plaintiff and Foreman met on numerous occasions to discuss the project early in 2008.   The plaintiff informed Foreman that she desired a turnkey process, occupancy by the fall of 2008, handicap accessibility, and a total maximum construction cost of $400,000.

On February 25, 2008, Foreman produced an estimate for the defendant's portion of the work of $246,814.80.   The plaintiff rejected this estimate as too expensive.   A second estimate was proffered on March 18, 2008, with a price of $209,453 30.   About a week later, on March 26, 2008, a third estimate was prepared with a cost of $249,475.05.   On April 9, 2008, Foreman submitted a fourth estimate at $227,154.30.   The first estimate incorporated a three-car garage while the latter two estimates included a four-bay garage built on two levels with two bays on each level.

Neither party produced a written contract, and both parties maintain that they never signed any written agreement.   Therein lies the problem which later plagued this enterprise.

I

Breach of Contract Claims

The plaintiff contends that the estimate dated March 18, 2008, was the operative plan which established the contractual obligation between the parties.   On the other hand, Foreman insists that the last estimate, dated April 9, 2008, embodied the agreement.   There is evidence which supports both views.

The March 18, 2008 estimate was the only one which fit within the $400,000 upper limit for the turnkey project.   But that estimate was followed by two more estimates, and the construction which ensued included the four-bay, two level garage present in the later estimates.   The court finds both the plaintiff and Foreman credible as to their respective understandings as to which estimate governed.

Consequently, the court also concludes that there never was a meeting of the minds when the plaintiff told Foreman to begin work and when Foreman engaged in extensive labor on the site.   To form an enforceable contract there must be a definite, unequivocal, and mutual understanding of the terms of the putative contract, Bridgeport Pipe Engineering Company, Inc. v. DeMatteo Construction Co., 159 Conn. 242, 246 (1970);  Cheverie v. Ashcraft & Gerel, 65 Conn.App. 425, 439 (2001).   Acceptance of an offer must be “based on an identical understanding by the parties.”  Id. (emphasis added).   In order to create a binding agreement, the two sides “must assent to the same thing in the same sense.”  Hess v. Dumouchel, 154 Conn. 343, 347 (1966).

The meeting of the minds of the parties must exist before contractual duties are imposed.  Hoffman v. Fidelity & Casualty Co., 125 Conn. 440, 443 (1939).  “The court cannot supply an agreement which was never made, for it is its province to enforce contracts, not to make or alter them.”  Id. “If there has been a misunderstanding between the parties, or a misapprehension by one or both so that their minds have never met, no contract has been entered into ․” Id., 443–44.

When a contract cannot form unless the parties assent to its terms and obligations, that assent may be made manifest through written or spoken words or by actions or inactions.  Bartomeli v. Bartomeli, 65 Conn.App. 408, 414 (2001).   Terms can be ascertained through express statements or by implication.  Id. Complete or partial performance may furnish the specific terms and requirements which would otherwise be obscure.  Id. Also, regardless of intent, if the offeree's conduct reasonably leads the offeror to conclude that certain terms are being accepted, acceptance is imposed as a matter of law.  Pleines v. Franklin Construction Co., 30 Conn.App. 612, 617 (1993).

In the present case, the court finds that no contract was formed.   Each party believed that a different proposal with a different scope of work to be performed for a different price appertained.   The actions and inactions of the parties reinforce this disparity rather than reconcile the purported duties and obligations so that a definite and certain agreement had been concluded.   The plaintiff instructed Foreman to commence work with her understanding that the second estimate, dated March 18, 2008, was the object of the construction;  whereas Foreman began work under the belief that the fourth estimate, dated April 9, 2008, established the parties' agreement.

The activity progressed to the point that the defendant had cleared vegetation from the construction site, a 1000 feet of driveway layout had been cut, an electric utility conduit trench of comparable length had been dug, a culvert had been installed, and several inches of gravel packed over the driveway route.   The defendant also excavated the foundation footprint, the septic tank, and leaching field, and formed and poured the foundation.   Also, the defendant installed the septic liner and tank.   The defendant obtained drawings from the surveyor and architect and secured permits from the municipality and utility company.   The excavation for the foundation necessitated hiring a blasting company.

Animosity between the plaintiff and Foreman flared on September 8, 2008, precisely because the plaintiff was unwilling to pay any additional money for invoices which the defendant had submitted to her.   She had already paid $110,000 to the defendant even though less than half the work she expected to be performed was done.   The parties' disagreement as to the contract price and which estimate was to be effectuated came to light as a result.   No behavior by the parties manifest mutual assent inferentially in this case.   To the contrary, each side proceeded ignorant of the other's position until this incident.

The plaintiff avers that Foreman quit the job because the plaintiff was reluctant to remit additional payments toward the invoices which the defendant submitted to her.   Foreman asserts that the plaintiff ordered him off the site because she felt that the project was proving too costly.   The court finds that the plaintiff's version of events is the more credible on this point.   However, that finding bolsters the court's conclusion that no meeting of the minds ever occurred with respect to which proposal was being accepted.

Without mutual assent there was no binding contract, and, therefore, no breach of contract could have occurred by either party.   The burden is on the plaintiff to prove, by a preponderance of the evidence, that an alleged contract existed as a result of a meeting of the minds of the plaintiff and the defendant.  Bridgeport Pipe Engineering Company, Inc. v. DeMatteo Construction, Co., supra, 246;  Cheverie v. Ashcraft & Gerel, supra, 439.   Likewise, the burden is on the defendant, in its counterclaim, to prove the existence of the contract which was purportedly breached by the plaintiff.   Each party has failed to satisfy its burden of proving that the other side assented to its version of an agreement.   Consequently, judgment enters for the defendant on the first count of the plaintiff's revised complaint and for the plaintiff on the first counterclaim.

II

Cutpa Violations

The second count of the plaintiff's revised complaint alleges violations of CUTPA by failing to comply with the Connecticut New Home Construction Contractors Act, General Statutes Chapter 399a, (CNHCCA), and by Foreman's misrepresenting himself as qualified to perform the work necessary to complete a modular home project at a given price.

A.

As to the CUTPA claim based on noncompliance with the CNHCCA, General Statutes § 20–417g deems a violation of the CNHCCA to be an unfair or deceptive trade practice.   The plaintiff specifically alleges that the contract between the parties failed to contain the provisions mandated by General Statutes § 20–417d, viz, an absence of notice of the defendant's new home builder's registration number, the lack of signatures of both parties on the contract, and the failure of the contract to include start and completion dates.

“Contract” is defined by the CNHCCA to mean “any agreement between a new home construction contractor and a consumer for the construction or sale of a new home or any portion of a new home prior to occupancy, General Statutes § 20–417a(3).   As found above, however, no actual contract ever existed between the parties.  Section 20–417d only imposes the enumerated requirements if a new home contract is consummated and not as to mere proposals.

Also, to prevail on a CUTPA claim, the plaintiff must prove, by a preponderance of the evidence, that the unfair or deceptive trade practice caused her to sustain an ascertainable loss, General Statutes § 42–110g(a).   The plaintiff must demonstrate that “the prohibited act was the proximate cause of a harm to the plaintiff.”  Scrivane v. Vallombroso, 99 Conn.App. 645, 651–52 (2007).

An “ascertainable loss” is one “capable of being discerned, observed or established.”  Artie's Auto Body, Inc. v. Hartford Fire Ins. Co., 287 Conn.2008, 218 (2008).   An ascertainable loss embraces negative impact which is broader than that connected by the word “damages.”  Id. No specific dollar amount need be proven.  Id. The loss, however, must be measurable even though imprecise.  Id.

The court discerns no measurable loss caused by the absence of disclaimer notices under § 20–417d(a)(a).   The plaintiff has failed to prove that, but for the noncompliance with § 20–417d, she would not have embarked on exactly the same course of conduct as she did.   The nonexistence of a contract, ipso facto, eliminates the requirement that the contract be signed by both parties and contain start and completion dates.   The absence of these things did not cause the plaintiff to proceed as she did in the sense that their presence would have deterred her from the path she eventually took.

B.

The second basis for her CUTPA claim is that Foreman, on behalf of the defendant, “held himself out to be a qualified builder who could perform the work necessary to install the Plaintiff's home on the site in Hebron within a very specific budget”;  that this representation was false;  and that this false representation was made to induce the plaintiff to enter the contract.

As explained above, the court has determined that the plaintiff failed to prove that the defendant agreed to perform the project for the price that the plaintiff claims.   Neither has she proven that Foreman was unqualified to complete the construction of the modular home.   Her dissatisfaction with the aspects of the work is not the equivalent to a lack of qualifications to take on such a project.   Also, there is no proof that Foreman knew he was unqualified to complete the work and misrepresented himself to be otherwise.

The court enters judgment in favor of the defendant as to the second count of the revised complaint.

III

Unjust Enrichment

In the second count of its counterclaim, the defendant asserts that the plaintiff was unjustly enriched by the work performed by the defendant.   The court determines that the defendant has failed to meet its burden of proving this claim by a preponderance of the evidence.

The defendant only completed about one-half of the work necessary to install the modular home to a turnkey condition.   The defendant was already paid $110,000 by the plaintiff when the relationship between the parties terminated.   This sum reasonably approximates the fair market value of the work performed even using the defendant's estimate of April 19, 2008, as a guide.   The plaintiff has expended large additional amounts of money to finish the construction and experienced significant delays necessitated by the hiring of new contractors to complete the work which the defendant had abandoned.

IV

Mechanic's Lien Foreclosure

The third count of the counterclaim seeks foreclosure of a mechanic's lien based on the plaintiff's refusal to pay $61,153.76 beyond the $110,000 which she had already given to the defendant.   The court has decided that the defendant failed to prove a cause of action for breach of contract or unjust enrichment which would obligate the plaintiff to pay any additional payment to the defendant.

Also, the defendant never introduced evidence regarding the levy of the lien in this case.   The burden of proving statutory compliance in a mechanic's lien foreclosure action is on the foreclosing lienor.  First Constitution Bank v. Harbor Valley Ltd. Partnership, 230 Conn. 807, 821 (1994).

Therefore judgment enters in favor of the plaintiff on the third count of the counterclaim.

In summary, the court decides in favor of the defendant on the plaintiff's claims and in favor of the plaintiff on the defendant's counterclaims.

Sferrazza, J.

Sferrazza, Samuel J., J.