Steven Bednaz v. New England Stampcrete, Inc. (2011)

MEMORANDUM OF DECISION RE OBJECTIONS TO FACT FINDER'S REPORT

This case arises out of an agreement between the plaintiff, Steven Bednaz, and the defendant, New England Stampcrete, Inc., for the defendant to install a patio and outdoor steps at the plaintiff's residence.¹  Pursuant to Practice Book § 23–53 and General Statutes § 52–549n,² the matter was referred to a fact finder after the pleadings were closed.   The operative counts of the complaint, dated July 23, 2010, allege that the defendant failed to perform in conformance with the agreement and refused, failed and neglected to return to the plaintiff's premises to remedy conditions caused by him in breach of their contract (count three) and that the defendant's conduct constituted a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42–110a et seq. (count four).   A hearing was held before Fact Finder Kirk Tavtigian who issued his report on June 6, 2011.³  The report recommended judgment for the plaintiff in the amount of $14,523 on count three for breach of contract, and, in favor of the defendants on the CUTPA count.   Both parties have filed objections to the fact finder's report.⁴  The objections were heard at short calendar on July 25, 2011 and August 22, 2011.⁵  At the July 25, 2011 hearing, but not before, the plaintiff claimed that the defendant's objection was untimely.

I

Timeliness of Defendant's Objection

Practice Book § 23–57 provides, in relevant part:  “(a) A party may file objections to the acceptance of a finding of facts ․ (b) Objections must be filed within fourteen days after the filing of the finding of facts.”   See also General Statutes § 52–549s.   The plaintiff's objection to the fact finder's report was filed on the fourteenth day, June 20, 2011, and the defendant's objection was filed seven days later, on June 27, 2011.   On July 25, 2011, both objections were heard at short calendar.   In his rebuttal to the defendant's argument, the plaintiff's counsel noted for the first time that the defendant's objection was filed seven days late.   Thereafter, in a memorandum filed at the request of the court, the plaintiff argued that the late filing of the defendant's objection deprived the court of jurisdiction.⁶  This claim does not merit much discussion.

The Appellate Court has held that a party who does not file an objection to a fact finder's report cannot challenge the finding after the trial court has rendered judgment thereon.   See Gordon Hoyt Associates, Inc. v. Statewide Ins. Corp., 7 Conn.App. 115, 117, 507 A.2d 528 (1986).   Nevertheless, in that case, the Appellate Court also stated, “[w]e do not suggest, however, that the absence of a timely written objection to the finding of facts compels a court to render judgment thereon.   Since the act of rendering judgment is that of the court and not that of the fact finder, the court is free, upon ‘review of the finding of facts' ․ to take any of the ․ actions listed in ․ [Practice Book § 23–58] which it deems appropriate, where there is a clear indication in the record before it that judgment is inappropriate.”  (Citation omitted;  emphasis in original.)  Gordon Hoyt Associates, Inc. v. Statewide Ins. Corp., supra, 7 Conn.App. 117.   Earlier in the same case, the Appellate Court also remarked that “[t]he purpose of Practice Book § [23–57] is to provide the adverse party and the court with adequate advance notice of the basis of the objection to the finding, so that an informed decision may be made.”  Id. See also Murillo v. John's Gutter Cleaning, Superior Court, judicial district of Hartford, Docket No. CV 08–5018320 (April 15, 2011, Peck, J.).   While the court may decline to hear an untimely objection, it is not required to do so.   Therefore, the court may consider an untimely objection within its discretion.   Accordingly, because the defendant's objection was filed in time to give both the plaintiff and the court adequate advance notice of its claims, despite the late filing, the court has opted to consider it so that a fully informed decision may be made.   In addition, “the late filing of an objection to a fact finder report is a procedural defect which may be waived by the failure of the opposing party to raise it.”  Id. Finally, because the untimeliness of the defendant's objection was not brought to the court's attention prior to the hearing on the objections of both parties, the court finds that any issue relating to the timeliness of the defendant's objection has been waived.

II

Standard of Review

“[A] reviewing authority may not substitute its findings for those of the trier of the facts.   This principle applies no matter whether the reviewing authority is the Supreme Court ․ the Appellate Court ․ or the Superior Court reviewing the findings of ․ attorney trial referees.   This court has articulated that attorney trial referees and factfinders share the same function ․ whose determination of the facts is reviewable in accordance with well established procedures prior to the rendition of judgment by the court.”   (Internal quotation marks omitted.)  Shapero v. Mercede, 262 Conn. 1, 5, 808 A.2d 666 (2002).  “The factual findings of a [trial referee] on any issue are reversible only if they are clearly erroneous ․ [A reviewing court] cannot retry the facts or pass upon the credibility of the witnesses ․ A finding of fact is clearly erroneous when there is no evidence in the record to support it ․ or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.”  (Internal quotation marks omitted.)  Id., 6. Moreover, “the trial court must review the referee's entire report to determine whether the recommendations contained in it are supported by findings of fact in the report.   It is also true that the trial court cannot accept an attorney trial referee's report containing legal conclusions for which there are no subordinate facts.”  (Internal quotation marks omitted.)  Killion v. Davis, 257 Conn. 98, 102, 776 A.2d 456 (2001).   A fact finder's recommendation should be accepted when “there is nothing that is unreasonable, illogical or clearly erroneous in the finding of the fact finder and the reasonable inferences that may be drawn therefrom.”  Wilcox Trucking, Inc. v. Mansour Builders, Inc., 20 Conn.App. 420, 425, 567 A.2d 1250 (1989), cert. denied, 214 Conn. 804, 573 A.2d 318 (1990).  Practice Book § 23–58 provides in relevant part:  “(a) After review of the findings of facts and hearing on any objections thereto, the judicial authority may take the following action:  (1) render judgment in accordance with the finding of facts;  (2) reject the finding of facts and remand the case to the fact finder who originally heard the matter for a rehearing;  (3) reject the finding of facts and remand the matter to another fact finder for rehearing;  (4) reject the finding of facts and revoke the reference;  (5) remand the case to the fact finder who originally heard the matter for a finding on an issue raised in an objection which was not addressed in the original finding of facts;  or (6) take any other action the judicial authority may deem appropriate.”   See also General Statutes § 52–549s(a).   “Since the act of rendering judgment is that of the court, and not that of the fact finder, the court is free, upon review of the finding of facts ․ to take any of the ․ five actions [found in Practice Book § 23–58] ․ which it deems appropriate, where there is a clear indication in the record before it that judgment is inappropriate.”  (Internal quotation marks omitted.)   Gordon Hoyt Associates, Inc. v. Statewide Ins. Corp., supra, 7 Conn.App. 117.

III

Findings

The fact finder herein made the following findings.   On or after October 1, 2005, the parties entered into an oral agreement where the defendant agreed to provide a patio and outdoor steps and to improve certain existing steps at the plaintiff's residence for the price of $5,877.   The agreement between the plaintiff and defendant failed to comply with the Connecticut Home Improvement Act (HIA), General Statutes § 20–418 et seq., because it was not in writing.⁷  The plaintiff paid the defendant the sum of $1,500.   The defendant breached the agreement in that its work was not performed as agreed upon and the finished product was not installed in a professional or workmanlike manner and was unsatisfactory.   Although the plaintiff requested that the defendant return to complete the work and repair the defective work, the defendant did not return.   Besides the initial payment of $1,500, the defendant never requested further payment.   The cost to repair all of the work was $18,900.   Prior to trial, the plaintiff sold the property, without making or paying for any repairs thereto.   The plaintiff did not specifically disclose the defects to the buyers of the property.   No evidence was offered as to whether the sales price was affected one way or another by the work performed by the defendant.

Because the parties agreed that Shelansky, individually, was not party to the contract, the fact finder recommended that judgment enter in favor of Shelansky as to counts one (breach of contract) and two (CUTPA).   As to count three (breach of contract against New England Stampcrete), the fact finder found in favor of the plaintiff.   He found further that the plaintiff incurred damages of $14,523, “which is the diminution of value, as measured by the cost of repair, $18,900, less the unpaid balance due on the original contract price, $4,377 (the difference between the original contract price of $5,877 and the payment made by plaintiff, $1,500),” as a result of the breach.

As to the fourth count (CUTPA against New England Stampcrete), the fact finder noted that the plaintiff's “CUTPA violation is based on alleged violations of the [HIA], including [the] defendant's failure to provide a written contract in accordance with the HIA.” The fact finder explained that, “[a]lthough violation of the HIA is a per se violation of CUTPA, I find that [the] plaintiff has failed to prove that plaintiff suffered an ascertainable loss as a result of the alleged HIA/CUTPA violations.   The HIA/CUTPA violations did not proximately cause [the] plaintiff's damages.   Rather, [the] plaintiff's damages were caused by the defendant's breach of contract.”   Therefore, the fact finder recommended that judgment enter for the defendant on count four.

IV

Objections to the Fact Finder's Report

The plaintiff objects to the fact finder's findings on the following grounds:  1) The fact finder erred in recommending judgment for the defendant on the fourth count, which alleged a CUTPA violation, because the fact finder previously found that the defendant violated the HIA and the plaintiff was therefore entitled to recover at least nominal damages;  2) The fact finder made no finding as to the fairness and reasonableness of the attorneys fees that the plaintiff consistently claimed he was entitled to recover, and such fees are appropriate if the plaintiff recovers nominal damages for his CUTPA claim;  and, 3) The fact finder erred in not making any finding as to whether the plaintiff was entitled to recover interest on his breach of contract damages under General Statutes § 37–3a.   On the merit of these objections, the plaintiff requests that the court reject the finding of fact as to the recommended judgment as to count four of the complaint and enter judgment in his favor and award nominal damages, attorneys fees and punitive damages.   Further, the plaintiff requests that the court remand the matter to the fact finder for findings as to interest on the damages awarded for count three.

The defendant objects to the acceptance of the fact finder's report on the following grounds.   Although the defendant agrees with the fact finder that the proper measure of damages is diminution in value, the amount of damages determined by the fact finder “is in no manner related to any evidence regarding diminution of the value of the property”;  no evidence was presented regarding the increase or decrease to the property's value;  the difference between the contract price ($5,877) and the cost of repair found by the fact finder ($18,787.50), is far greater than other cases where the court found that diminution of value was the proper measure of damages;  the recommended damage award is a windfall as the defective work was not disclosed to the buyer of the subject property;  the plaintiff sought only costs to replace and/or repair the concrete work and did not claim damages for diminution in value;  therefore, no such damages may be awarded.

A

Plaintiff's Objection1. NOMINAL DAMAGES UNDER CUTPA

The plaintiff seeks nominal damages, attorneys fees, and punitive damages pursuant to CUTPA.   The plaintiff argues that since the fact finder found that the defendant's failure to comply with the HIA is a per se violation of CUTPA, the fact finder should therefore have recommended judgment in favor of the plaintiff for at least nominal damages even though he did not prove that he incurred further specific damages as a result of the violation.   If he recovers nominal damages pursuant to this claim, the plaintiff further requests attorneys fees and punitive damages.

The fact finder's conclusion that the defendant violated the HIA is consistent with the general rule that the HIA requires that “home improvement contracts be in writing.”  Caulkins v. Petrillo, 200 Conn. 713, 718, 513 A.2d 43 (1986).   Moreover, “[o]ur Supreme Court has stated on several occasions that ․ the failure to comply with the Home Improvement Act is a per se violation of CUTPA ․” (Internal quotation marks omitted.)  Scriviani v. Vallombroso, 99 Conn.App. 645, 652, 916 A.2d 827, cert. denied, 282 Conn. 904, 920 A.2d 309 (2007).   In fact, General Statutes § 20–427(c) expressly provides in relevant part:  “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.”

Nevertheless, “[t]o recover damages under CUTPA ․ the defendant must prove more than a violation of the statute.”  MacMillan v. Higgins, 76 Conn.App. 261, 279, 822 A.2d 246, cert. denied, 264 Conn. 907, 826 A.2d 177 (2003).   “A party seeking to recover damages under CUTPA must meet two threshold requirements.   First, [the party] must establish that the conduct at issue constitutes an unfair or deceptive trade practice ․ Second, [the party] must [allege facts] providing the court with a basis for a reasonable estimate of the damages suffered.” ⁸  (Internal quotation marks omitted.)  Marinos v. Poirot, 132 Conn.App. 693 (2011).   Therefore, “[o]nce a violation of the [Home Improvement] act has been established ․ homeowners still must prove that they have suffered an injury or actual loss in order to recover damages under CUTPA.”  Hees v. Burke Construction, Inc., 290 Conn. 1, 14, 961 A.2d 373 (2009).  “[M]oreover, a party must also demonstrate that the CUTPA violation was the proximate cause of the loss or harm suffered.”   Bridgeport Garden Apartments, Inc. v. Villa Gesell Construction, LLC, Superior Court, judicial district of Fairfield, Docket No. CV 08–5014794 (July 16, 2010, Cocco, J.T.R.) [50 Conn. L. Rptr. 414].

In the present case, the fact finder clearly found that the plaintiff failed to prove that he suffered an ascertainable loss as a result of the defendant's HIA/CUTPA violation.   Rather, the fact finder concluded the plaintiff's damages were caused by the defendant's breach of contract.   The plaintiff does not dispute these findings.   Moreover, there is nothing in the record indicating that the plaintiff's damages resulted from the defendant's alleged HIA violations and no evidence demonstrating that the plaintiff's loss was caused by other CUTPA violations.   As a result, the fact finder's findings were not clearly erroneous on these issues.   Accordingly, the finding that the defendant violated the HIA is not inconsistent with his conclusion that judgment should enter in favor of the defendant on the plaintiff's CUTPA claim.

This also resolves the plaintiff's contention that he is entitled to nominal damages for his CUTPA claim regarding this issue.   In certain specific circumstances, a party who proves that he has suffered a legal injury but is unable to prove the amount of damages he incurred, is entitled to an award of nominal damages.  Beverly Hills Concepts, Inc. v. Schatz & Schatz, Ribicoff & Kotkin, 247 Conn. 48, 78 n.12, 717 A.2d 724 (1998) (“Generally proof of a legal injury entitles a plaintiff to, at least, token or nominal damages even if no specific actual damages are proven”).   Indeed, the Appellate Court has applied this principle to CUTPA claims in cases in which a plaintiff has properly alleged all the elements of such a claim and has obtained a default judgment on the claim.  Whitaker v. Taylor, 99 Conn.App. 719, 733–34, 916 A.2d 834 (2007).⁹

This principle does not apply to the present case because, as noted above, the fact finder properly determined that the plaintiff failed to prove that he was entitled to a judgment against the defendant on his CUTPA claim due to his failure to prove that he suffered an ascertainable loss proximately caused by the HIA violation.   As the Appellate Court has stated, “litigants seeking CUTPA relief must present evidence of damages they have suffered ․ There is no automatic entitlement to damages.”  (Citation omitted;  internal quotation marks omitted.)  Campagnone v. Clark, 116 Conn.App. 622, 633, 978 A.2d 1115 (2009).¹⁰  Since an award of attorneys fees and punitive damages are premised on the success of the CUTPA claim, an award as to each of these items must also fail.

2. PREJUDGMENT INTEREST PURSUANT TO GENERAL STATUTES § 37–3A

The plaintiff requests that the court remand the matter to the fact finder for a decision as to whether he is entitled to recover prejudgment interest pursuant to § 37–3a on the damages that the fact finder determined he was entitled to recover for his breach of contract claim under count three.   In its report, the fact finder found the plaintiff incurred damages of $14,523, but did not address the issue of interest.

General Statutes § 37–3a provides in relevant part that “interest at the rate of ten per cent a year, and no more, may be recovered and allowed in civil actions ․ as damages for the detention of money after it becomes payable.”   “[P]rejudgment interest is awarded in the discretion of the trial court to compensate the prevailing party for a delay in obtaining money that rightfully belongs to him ․ The detention of the money must be determined to have been wrongful ․ Its detention can only be wrongful, however, from and after the date on which the court, in its discretion, determines that the money was due and payable.”  (Internal quotation marks omitted.)  Tang v. Bou–Fakhreddine, 75 Conn.App. 334, 347, 815 A.2d 1276 (2003).  “Prejudgment interest pursuant to § 37–3a is appropriate only where the essence of the action itself involves the wrongful withholding of money due and payable to the plaintiff.   The prejudgment interest statute does not apply when the essence of the action is the recovery of damages to compensate a plaintiff for injury, damages or costs incurred as a result of a defendant's negligence.   It ordinarily does not apply to contract actions in which the plaintiff is not seeking the recovery of liquidated damages or the recovery of money advanced under a contract and wrongfully withheld after a breach of that contract.”  Id., 349.

“The prejudgment interest statute does not apply to such actions because they do not advance claims based on the wrongful withholding of money, but rather seek damages to compensate for losses incurred as a result of the defendant's negligence.   Moreover, such damages are not considered due and payable until after a judgment in favor of the plaintiff has been rendered.”  Id. Further, “[a] plaintiff's burden of demonstrating that the retention of money is wrongful requires more than demonstrating that the opposing party detained money when it should not have done so.   The fact that an award of such interest is discretionary and subject to equitable considerations, rather than automatic, reflects the reality that not all improper detentions of money are wrongful.”  (Internal quotation marks omitted.)  Kovacs Construction Corp. v. Water Pollution & Control Authority, 120 Conn.App. 646, 665, 992 A.2d 1157, cert. denied, 297 Conn. 912, 995 A.2d 639 (2010).

In his breach of contract claim action, the plaintiff was not seeking the return of the funds that he paid to the defendant.   Rather, he sought damages for the cost of repairing the damage caused by the defendant's alleged breach of contract.   Moreover, the plaintiff's complaint did not allege that the defendant wrongfully withheld funds from him.   Therefore, the fact finder's decision not to award prejudgment interest was not erroneous.

B

Defendant's Objection

The defendant argues that the fact finder's report should not be accepted because the fact finder miscalculated the damages it awarded to the plaintiff on his breach of contract claim.

Our Supreme Court has explained the method of calculating damages based on a breach of construction contract.  “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 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.”  (Internal quotation marks omitted.)  Naples v. Keystone Building & Development Co., 295 Conn. 214, 224, 990 A.2d 326 (2010).  “Where, however, expectation damages greatly exceed the diminished value of the property, the award of damages is limited to the diminished value of the property.  Levesque v. D & M Builders, Inc., 170 Conn. 177, 181, 365 A.2d 1216 (1976).   The purpose of this rule is to avoid unreasonable economic waste ․ Levesque involved a buyer who wanted to relocate a house misplaced on a building lot.  [The Supreme Court] refused to permit relocation costs of $10,800 to be awarded for breach of contract and warranty, when the original contract price had been $22,600 ․ Levesque adopts a rule that limits damages to the diminished value of the building whenever the cost of repairs is dramatically larger than is the difference in value ․ Although the costs of repair may more precisely place the injured party in the same physical position as full performance, policy dictates limitation to diminution in value to avoid unreasonable economic waste.  Johnson v. Healy, 176 Conn. 97, 105, 405 A.2d 54 (1978).   In Johnson, the plaintiff had sought $27,150 as costs in constructing a new foundation for a house originally purchased for $17,000.   In concluding that the proper test for damages was the difference in value between the property had it been as represented and the property as it actually was, the Johnson court noted that the price discrepancy between reconstruction cost and contract price was even larger than it was in Levesque.”   (Citations omitted;  internal quotation marks omitted.)  Vezina v. Nautilus Pools, Inc., 27 Conn.App. 810, 821–22, 610 A.2d 1312 (1992).

In Vezina, the plaintiffs contracted with the defendant to install a swimming pool with a “bowled center” on their property “at the cost of over $7,000.”  Id., 812.   The pool that the defendant installed did not, however, have a “bowled center.”  Id., 814–15.  “The defendant offered testimony that the cost of providing a bowled center at the time the pool was installed would have been approximately $200 to $300.   The plaintiffs offered evidence that to create a bowled center in the existing pool would cost $5,694.78.”  Id., 822–23.   The court found, “[n]o evidence was presented regarding the value of the pool with a bowled center and the value of the pool without a bowled center.   In this case, the cost of repair was nearly the same as the purchase price of the pool.   The award of such damages clearly involves an unreasonable economic waste.”  Id., 823.   Further, the court determined, “[b]ecause the cost of rectifying the defendant's omission is so great in comparison to the cost of the purchase of the pool itself, the proper measure of damages is the diminished value of the plaintiffs' pool.”   Therefore, the court remanded the case to the trial court to “conduct a hearing to determine the proper award of damages based on the diminished value of the plaintiff's pool.”  Id.

“The injured party ․ is entitled to retain nothing in excess of that sum which compensates him for the loss of his bargain ․ Guarding against excessive compensation, the law of contract damages limits the injured party to damages based on his actual loss caused by the breach ․ The concept of actual loss accounts for the possibility that the breach itself may result in a saving of some cost that the injured party would have incurred if he had to perform ․ In such circumstances, the amount of the cost saved will be credited in favor of the wrongdoer ․ that is, subtracted from the loss ․ caused by the breach in calculating [the injured party's] damages.”  (Internal quotation marks omitted.)  FCM Group, Inc. v. Miller, 300 Conn. 774, 804, 17 A.2d 40 (2011).  “It is on this ground that ․ when an owner receives a defective or incomplete building, any part of the price that is as yet unpaid is deducted from the cost of completion that is awarded to him ․ Otherwise, the owner would be placed in a better position than full performance would have put him, thereby doubly compensating him for the injury occasioned by the breach.”  (Internal quotation marks omitted.)  Hees v. Burke Construction, Inc., supra, 290 Conn. 8.

“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.”   (Internal quotation marks omitted.)  Twin Oaks Condominium Assn., Inc. v. Jones, 132 Conn.App. 8, 15 (2011).  “It is undisputed that homeowners are qualified to testify as to their personal opinion regarding the value, or diminution in value, of their properties.”  Tessmann v. Tiger Lee Construction Co., 228 Conn. 42, 47, 634 A.2d 870 (1993).   Further, “[r]easonable costs of repair may therefore sometimes furnish a reasonable approximation of diminished value.”  Johnson v. Healy, 176 Conn. 97, 106, 405 A.2d 54 (1978).  “[S]uch diminution in value may be determined by the cost of repairing the damage, provided, of course, that that cost does not exceed the former value of the property and provided also that the repairs do not enhance the value of the property over what it was before it was damaged ․” (Internal quotation marks omitted.)  Centimark Corp. v. Village Manor Associates Ltd. Partnership, 113 Conn.App. 509, 529–30, 967 A.2d 550, cert. denied, 292 Conn. 907, 973 A.2d 103 (2009).

According to Practice Book § 23–58(a), “[a]fter review of the finding of facts and hearing on any objections thereto, the judicial authority may ․ (5) remand the case to the fact finder who originally heard the matter for a finding on an issue raised in an objection which was not addressed in the original finding of facts.”

In the present case, the fact finder determined that as a result of the defendant's breach of contract, the plaintiff incurred, “damages of $14,523, which is the diminution in value, as measured by the cost of repair, $18,900, less the unpaid balance due on the original contract price, $4,377 (the difference between the original contract price of $5,877 and the payment made by plaintiff, $1,500).”   Nevertheless, the fact finder has not articulated the evidentiary basis upon which he made this determination, nor his rationale.   Further, it is not clear to the court why specific findings as to diminished value were not made.   According to the case law, while there may be circumstances when diminution in value may be measured by the cost of repair, without further findings, it appears that the recommended damage award constitutes economic waste.   As previously explained, as a general rule, in assessing damages for incomplete or faulty construction projects, damages are calculated based either on the reasonable cost of completion or repair, if that would not involve unreasonable economic waste;  or, based on the difference between the value of the structure as built and as contracted for, if completion would involve unreasonable economic waste.   See Naples v. Keystone Building and Development Co., supra, 295 Conn. 224;  Johnson v. Healy, supra, 176 Conn. 106 (“The proper test for damages was the difference in value between the property had it been as represented and the property as it actually was”).

In the present case, the original price contracted for was $5,877.   The cost to repair determined by the fact finder was $18,900, an amount almost three times greater than original contract price.   The award of such damages suggests unreasonable economic waste and a windfall for the plaintiff.   See Vezina v. Nautilus Pools, Inc., supra, 27 Conn.App. 823.   Although diminished value may be measured by the diminished value to the owner by reason of the defects as of the date of the breach, no finding whatsoever was made as to diminution of value.   See Levesque v. D & M Builders, Inc., supra, 170 Conn. 181–83.   No finding was made by the fact finder regarding the value of a completed patio and outdoor steps, as contracted for, and the value of the defective patio and outdoor steps, as built by the defendant.   As a result, the court is unable to accept the fact finder's recommended damage award without further articulation of the subordinate facts which support such an award.   See Killion v. Davis, supra, 257 Conn. 102.   Accordingly, the matter must be remanded to the fact finder to consider further evidence, as may be required, and to make further findings so as to satisfy the court that the proper measure of damages was applied.

CONCLUSION

For all the foregoing reasons, the plaintiff's objection to the fact finder's report is hereby overruled.   The defendant's objection to the fact finder's report is hereby sustained in part.   Further, pursuant to Practice Book § 23–58(a)(5), the case is remanded to the fact finder, as directed herein, for further findings concerning the damage award as to count three.

Peck, J.

FOOTNOTES

FN1. The other defendant, Ira Shelansky, is the president of New England Stampcrete, Inc. At trial, the plaintiff stipulated and agreed that Shelansky was not a party to the contract that is the subject of this lawsuit.   Accordingly, the claims against him in counts one and two were not pursued.   Therefore, all references to the defendant refer to New England Stampcrete, Inc..  FN1. The other defendant, Ira Shelansky, is the president of New England Stampcrete, Inc. At trial, the plaintiff stipulated and agreed that Shelansky was not a party to the contract that is the subject of this lawsuit.   Accordingly, the claims against him in counts one and two were not pursued.   Therefore, all references to the defendant refer to New England Stampcrete, Inc.

FN2. Practice Book § 23–53 provides in relevant part:  “The court ․ may refer to a fact finder any contract action pending in the superior court ․ in which money damages only are claimed, which is based upon an express or implied promise to pay a definite sum, and in which the amount, legal interest or property in controversy is less than $50,000, exclusive of interest and costs.”   See also General Statutes § 52–549n..  FN2. Practice Book § 23–53 provides in relevant part:  “The court ․ may refer to a fact finder any contract action pending in the superior court ․ in which money damages only are claimed, which is based upon an express or implied promise to pay a definite sum, and in which the amount, legal interest or property in controversy is less than $50,000, exclusive of interest and costs.”   See also General Statutes § 52–549n.

FN3. The fact finder hearing was conducted over four days:  June 7, 2010, August 16, 2010, September 27, 2010 and November 1, 2010..  FN3. The fact finder hearing was conducted over four days:  June 7, 2010, August 16, 2010, September 27, 2010 and November 1, 2010.

FN4. Practice Book § 23–57(a) provides:  “A party may file objections to the acceptance of a finding of facts on the ground that conclusions of fact stated in it were not properly reached on the basis of the subordinate facts found, or that the fact finder erred in ruling on evidence or in other rulings on evidence or in other rulings, or that there are other reasons why the finding of facts should not be accepted.”   See General Statutes § 52–549s(a)..  FN4. Practice Book § 23–57(a) provides:  “A party may file objections to the acceptance of a finding of facts on the ground that conclusions of fact stated in it were not properly reached on the basis of the subordinate facts found, or that the fact finder erred in ruling on evidence or in other rulings on evidence or in other rulings, or that there are other reasons why the finding of facts should not be accepted.”   See General Statutes § 52–549s(a).

FN5. The plaintiff filed an objection and a memorandum in support on June 20, 2011 (# # 136 and 137).   The defendant filed an objection on June 27, 2011 (# 138) and a corrected objection on August 12, 2011 (# 142).   The defendant also filed a corrected post-trial memoranda on August 12, 2011 which this court does not consider because it seeks to correct a memorandum which predates the Fact Finder's Report, and therefore, has no bearing on the objections now pending before this court.   The parties also filed additional memoranda on the issue of the defendant's late filing at the request of the court.   The substantive aspect of the objections were argued on both dates and the issue of timeliness was argued on August 22, 2011..  FN5. The plaintiff filed an objection and a memorandum in support on June 20, 2011 (# # 136 and 137).   The defendant filed an objection on June 27, 2011 (# 138) and a corrected objection on August 12, 2011 (# 142).   The defendant also filed a corrected post-trial memoranda on August 12, 2011 which this court does not consider because it seeks to correct a memorandum which predates the Fact Finder's Report, and therefore, has no bearing on the objections now pending before this court.   The parties also filed additional memoranda on the issue of the defendant's late filing at the request of the court.   The substantive aspect of the objections were argued on both dates and the issue of timeliness was argued on August 22, 2011.

FN6. After first claiming at short calendar that the late filing by the defendant deprived the court of subject matter jurisdiction, in his subsequently filed memorandum filed August 3, 2011, the plaintiff did not frame his argument in terms of subject matter jurisdiction..  FN6. After first claiming at short calendar that the late filing by the defendant deprived the court of subject matter jurisdiction, in his subsequently filed memorandum filed August 3, 2011, the plaintiff did not frame his argument in terms of subject matter jurisdiction.

FN7. General Statutes § 20–429(a), which is part of the HIA, provides in relevant part:  “(a) No home improvement contract shall be valid or enforceable against an owner unless it ․ [i]s in writing ․ is signed by the owner and the contractor ․ contains a notice of the owner's cancellation rights ․ contains a starting date and completion date ․”.  FN7. General Statutes § 20–429(a), which is part of the HIA, provides in relevant part:  “(a) No home improvement contract shall be valid or enforceable against an owner unless it ․ [i]s in writing ․ is signed by the owner and the contractor ․ contains a notice of the owner's cancellation rights ․ contains a starting date and completion date ․”

FN8. General Statutes § 42–110g(a) provides in relevant part:  “Any person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42–110b may bring an action in the judicial district ․ to recover actual damages.”.  FN8. General Statutes § 42–110g(a) provides in relevant part:  “Any person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42–110b may bring an action in the judicial district ․ to recover actual damages.”

FN9. In Whitaker v. Taylor, the plaintiff's CUTPA count included factual allegations of fraudulent behavior by the defendants and set forth “a reasonable estimate of the plaintiff's damages.”  Id., 733.   The court determined that “in light of the defaults entered against [the defendants], we conclude that the allegations are sufficient to establish liability ․” Whitaker v. Taylor, Supra, 99 Conn.App. 734.   Accordingly, the court held that “the [trial] court abused its discretion in failing to award at least nominal damages on the plaintiff's CUTPA count.”  Id..  FN9. In Whitaker v. Taylor, the plaintiff's CUTPA count included factual allegations of fraudulent behavior by the defendants and set forth “a reasonable estimate of the plaintiff's damages.”  Id., 733.   The court determined that “in light of the defaults entered against [the defendants], we conclude that the allegations are sufficient to establish liability ․” Whitaker v. Taylor, Supra, 99 Conn.App. 734.   Accordingly, the court held that “the [trial] court abused its discretion in failing to award at least nominal damages on the plaintiff's CUTPA count.”  Id.

FN10. In this way, a CUTPA claim is somewhat similar to a cause of action for interference with business relations, which, as the Supreme Court has explained, is “[u]nlike other torts in which liability gives rise to nominal damages even in the absence of proof of actual loss ․ [in that] it is an essential element of the tort of unlawful interference with business relations that the plaintiff suffered actual loss.”  (Citation omitted;  internal quotation marks omitted.)  American Diamond Exchange, Inc. v. Alpert, 302 Conn. 494, 510 (2011)..  FN10. In this way, a CUTPA claim is somewhat similar to a cause of action for interference with business relations, which, as the Supreme Court has explained, is “[u]nlike other torts in which liability gives rise to nominal damages even in the absence of proof of actual loss ․ [in that] it is an essential element of the tort of unlawful interference with business relations that the plaintiff suffered actual loss.”  (Citation omitted;  internal quotation marks omitted.)  American Diamond Exchange, Inc. v. Alpert, 302 Conn. 494, 510 (2011).

Peck, A. Susan, J.