Catherine D'Amore v. Thomas J. Probert (2012)

MEMORANDUM OF DECISION

This action arises out of a three-count complaint filed by the plaintiff, Catherine D'Amore, against the defendant, Thomas Probert.   In count one, the plaintiff alleges that the defendant breached a contract the parties entered into in relation to the defendant's construction of a multi-level deck on the plaintiff's rental property known as 165 Main Street, Ivoryton, CT. In the first half of count two, the plaintiff alleges that the defendant violated the state's Home Improvement Act by not complying with its provisions with respect to the licensing and other requirements in connection contracts entered into with consumers and that the defendant's failure to comply with said act is a per se violation of the Connecticut Unfair Trade Practices Act (“CUTPA”).   The matter was tried to the court.

After reviewing the plaintiff's proposed findings of fact ¹ as well as all of the testimony offered and exhibits admitted at trial, the court finds that the following facts have been established by a fair preponderance of the evidence.   The plaintiff is the owner of a two-family rental property located at 165 Main Street, Ivoryton, Connecticut (“property”).   In 2010, plaintiff placed an ad on Craig's List to obtain bids for the construction of a two-story deck on said property.   The defendant, doing business as North Arrow Engineering Graphics in Stratford, Connecticut, responded to the ad and advised her that he was ․”putting the tool belt back on because design work is very slow right now.”   The parties negotiated the construction of the deck and other minor projects, for which the plaintiff agreed to pay the defendant $15,550.00.   On or about June 1, 2010, the parties entered into an agreement through an exchange of emails.   The parties did not enter into a form contract signed by either party and the agreement did not indicate the dates by which the construction project would begin or be finished.   On June 30, 2010, the defendant sent the plaintiff an email amending the agreement requiring the plaintiff to pay the defendant in accordance with the following payment schedule:  $7,750.00 to begin the project, $3,875.00 when the project is approximately 50% complete and $3,875.00 when the project was 100% complete.   The plaintiff remitted a check in the amount of $7,750.00 to the defendant pursuant to said schedule but did not sign an amendment memorializing the defendant's modification to the parties' agreement.   The defendant then entered into an agreement with VIP Home Improvement, LLC ² (“VIP”) for VIP's construction of the deck.   The defendant paid VIP $4,000.00 to construct the deck at the property.   After the work commenced, the defendant claimed that the deck was half complete and demanded the second install payment of $3,875.00 from the plaintiff.   The plaintiff disputed this claim and had the deck inspected by the Town of Essex Building Official, who informed the plaintiff that only 1/4 of the deck was completed based upon the design plans.   On August 23, 2010, the defendant provided the plaintiff with an invoice for materials and labor in connection with two change orders in the amount of $1,405.00 and $750.00 and demanded payment from the plaintiff despite the fact that the plaintiff did not sign any change orders with the defendant.

Breach of Contract

“The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages.”  (Internal quotation marks omitted.)  Meyers v. Livingston, Meiklejohn & Kelly, P.C., 134 Conn.App. 785, 790 (2012).  “The existence of a contract is a question of fact to be determined by the trier on the basis of all of the evidence.”  (Internal quotation marks omitted.)  Hawley Avenue Associates, LLC v. Russo, M.D. & Associates Radiology, P.C., 130 Conn.App. 823, 829, 25 A.3d 707 (2011).  “In order for an enforceable contract to exist, the court must find that the parties' minds had truly met ․ 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 by them and the court will not make for them a contract which they themselves did not make.  [A]n agreement must be definite and certain as to its terms and requirements ․ [N]umerous Connecticut cases require definite agreement on the essential terms of an enforceable agreement ․ [Furthermore,] [w]hether a term is essential turns on the particular circumstances of each case.”  (Citations omitted;  internal quotation marks omitted.)  Hawley Avenue Associates, LLC v. Russo, M.D. & Associates Radiology, P.C., supra, 130 Conn.App. 829.

In defining an essential term, the Restatement (Second) of Contracts notes that:  “The terms of a contract are reasonably certain if they provide a basis for determining the existence of a breach and for giving an appropriate remedy ․ The fact that one or more terms of a proposed bargain are left open or uncertain may show that a manifestation of intention is not intended to be understood as an offer or as an acceptance.”   Restatement (Second) Contracts § 33.   In the comment thereto it is noted that, “[i]f the essential terms are so uncertain that there is no basis for deciding whether the agreement has been broken, there is no contract.”

“Whether a contract has been breached ordinarily is a question of fact ․” (Internal quotation marks omitted.)  Lydall, Inc. v. Ruschmeyer, 282 Conn. 209, 242, 919 A.2d 421 (2007).   In general, a party cannot “recover damages under an agreement unless he has fully performed his own obligation under it.”  (Internal quotation marks omitted.)  David M. Somers & Associates, P.C., v. Busch, 283 Conn. 396, 406, 927 A.2d 832 (2007).   See also DiBella v. Widlitz, 207 Conn. 194, 199, 541 A.2d 91 (1988);  Automobile Ins. Co. v. Model Family Laundries, Inc., 133 Conn. 433, 437, 52 A.2d 137 (1947).   Legal excuses justifying nonperformance would include prevention of performance by the other party to the contract, impossibility or impracticability.  Roy v. Stephen Pontiac–Cadillac, Inc., 15 Conn.App. 101, 104, 543 A.2d 775 (1988) (discussing when impossibility and impracticability would excuse performance);  Morehouse v. Bradley, 80 Conn. 611, 613, 69 A. 947 (1908) (excusing performance upon prevention by the other party).  “[T]he general rule with respect to compliance with contract terms ․ is not one of strict compliance, but substantial compliance ․ The doctrine of substantial compliance is closely intertwined with the doctrine of substantial performance.   The doctrine of substantial performance shields contracting parties from the harsh aspects of being held to the letter of the agreements.   Pursuant to the doctrine of substantial performance, a technical breach of the terms of a contract is excused, not because compliance with the terms is objectively impossible, but because actual performance is so similar to the required performance that any breach that may have been committed is immaterial.”  (Internal quotation mark omitted.)  Borelli v. H & H Contracting, Inc., 100 Conn.App. 680, 692, 919 A.2d 500 (2007), appeal dismissed, 285 Conn. 553, 940 A.2d 787 (2008), quoting 15 S.Williston, Contracts (4th Ed. Lord 2002) § 44:52, pp. 217–18, 221–22.   There is no simple test for determining whether substantial performance has been rendered ․ but among the factors to be considered is the degree to which the purpose behind the contract has been frustrated ․” (Internal quotation marks omitted.)   Mortgage Electronic Reg. Systems v. Goduto, 110 Conn.App. 367, 373, 955 A.2d 544 (2008).

“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 trial to make a fair and reasonable estimate ․ As we have stated previously, the determination of damages is a matter for the trier of fact ․” (Citations omitted;  internal quotation marks omitted.)   Willow Springs Condominium Ass'n, Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 65, 717 A.2d 77 (1998).

In the instant matter, despite the apparent shortcomings of their agreement, the court finds the parties did indeed enter into a binding contract.   The parties engaged in the negotiation of its terms through the transmittal of several emails exchanged between each other.   Even though the agreement was not reduced to a traditional form contract that was signed by the plaintiff and despite the fact that the defendant failed to have the plaintiff sign said contract as mandated by the Connecticut's Home Improvement Act,³ for all intents and purposes, there a contract was formed.   And that agreement contained all of the essential elements of a contract.   Read as an integrated whole, the emails exchanged show that there was a meeting of the minds, the terms and conditions agreed to were clear, unambiguous and definitive as to the purpose of the contract, the parties' obligations as well as the $15,500.00 contract price.   On June 30, 2012, the defendant unilaterally modified the agreement to incorporate a payment schedule that was outlined as follows:  $7,750.00 to begin the project, $3,875.00 when the project is approximately 1/2 complete and $3,875.00 when the project is 100% complete.   The defendant did not have the plaintiff sign a document agreeing to this unilateral change, but, nonetheless, the plaintiff obviously acquiesced to said change because she provided him with the first installment payment of $7,750.00 on July 30, 2010 per the agreement as modified.

The present controversy arose when the plaintiff disputed that the deck was 1/2 complete in response to the defendant's August 7, 2010 and August 11, 2010 demands for the plaintiff's payment of the second installment of $3,875.00.   The plaintiff suspected that the deck was not 50% complete and then contacted Keith Nolin, Building Official for the Town of Essex, who inspected the deck construction on August 16, 2010 and subsequently advised the plaintiff that, according to the plans, the project was only approximately 25% complete.   The defendant stopped the project due to the disagreement.   The plaintiff testified that she informed the defendant of Mr. Nolin's opinion and that the defendant subsequently agreed that the second installment payment of $3,875.00 should be paid once VIP completed the second floor decking, constructed the deck's stairs and framed the third floor.   But this never occurred and the defendant abandoned the project once again.

The court finds that the plaintiff proved, by a fair preponderance of the evidence, that there was an agreement reached by the parties in relation to the construct of a two-level deck on her rental property, that the plaintiff substantially performed her contractual obligations by making the first installment payment in accordance with the payment schedule agreed to by the parties, the defendant breached the agreement by failing to perform his obligations thereunder and that she suffered damages as a result of the defendant's breach.

Home Improvement Act

The applicable provision of the Home Improvement Act under Gen.Stat. § 20–420(a) provides that “[n]o person shall hold himself ․ out to be a contractor ․ without first obtaining a certificate of registration from the commissioner ․” As applied to Gen.Stat. § 20–420(a), § 20–419 states that a “contractor” is defined as “any person who owns and operates a home improvement business or who undertakes, offers to undertake or agrees to perform any home improvement” and the definition of “home improvement” “ ․ includes, but is not limited to, the repair, replacement, remodeling ․ to any building or land or that portion thereof ․ which is used ․ as a residential rental property.”   Thus, in the present case, the defendant is a “contractor” and the deck is a “home improvement.”  Gen.Stat. § 20–419(3) and (4).   The Home Improvement Act also 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 ․ (7) contains a starting date and completion date, (8) is entered into by a registered salesman or registered contractor ․ Each change in the terms and conditions of a contract shall be in writing and shall be signed by the owner and the contractor ․” In addition, the Home Improvement Act states that, in subsection (c) of Gen.Stat. § 20–427, “[a] violation of any of the provision of [the Act] shall be deemed an unfair or deceptive trade practice under subsection (a) of section 42–110b [CUTPA].”

In the second half of count two of the operative complaint, the plaintiff alleges that the defendant is in violation of the Home Improvement Act on the grounds that the agreement between the parties was not in writing signed by both parties, did not constitute the entire agreement of the parties, lacked a notice of cancellation provision and that the defendant is neither a registered contractor with the State of Connecticut and nor has a home improvement certificate of registration.   And the exhibits and testimony admitted and offered, respectively, during the trial proved that the defendant failed to meet several of the requirements of the Home Improvement Act in relation to parties' contract.

The plaintiff also alleges in count two of the operative complaint that a violation of the Home Improvement Act is a per se violation of CUTPA.   Under subsection (c) of Gen.Stat. § 20–427 of the Home Improvement Act, “[a] violation of any of the provision of [the Act] shall be deemed an unfair or deceptive trade practice under subsection (a) of section 42–110b [CUTPA].”   Because the plaintiff met her burden of proving that the defendant violated numerous provisions of the Home Improvement Act, the court finds that the defendant's failure to comply with the Home Improvement Act is a per se violation of CUTPA.   However, for the reasons set forth below, the court does not find that the defendant's per se violation of CUTPA was not an unfair or deceptive practice recoverable under CUTPA.

CUTPA

In the second half of count two of the plaintiff's operative complaint, the plaintiff incorporates the same factual allegations from her breach of contract claim in count one and alleges that:

“10. PROBERT'S conduct violates CUTPA in one or more of the following ways:

a. IN THAT a violation of the Home Improvement Act is a per se violation of CUTPA;

b. IN THAT the violations are unlawful and offends public policy;

c. IN THAT the violations are immoral, unethical, oppressive, or unscrupulous;  and

d. IN THAT the violations cause(s) substantial injury to consumers.

11. As a result, D'AMORE has sustained an ascertainable loss.

12. As a result of PROBERT'S violation of CUTPA, D'AMORE is entitled to recover actual as well as punitive damages, as provided by Conn. Gen.Stat. § 42–110g(d), including attorneys fees.”

However, the court takes judicial notice of the fact that the operative complaint contains no specificity about the activities the defendant allegedly engaged in that were fraudulent, deceptive or met any of the other elements set forth in CUTPA.

“CUTPA provides:  No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce ․ It is well settled that in determining whether a practice violates CUTPA [our Supreme Court has] adopted the criteria set out in the cigarette rule by the [F]ederal [T]rade [C]omission for determining when a practice is unfair:  (1)[W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise—in other words, it is within at least the penumbra of some common law, statutory or other established concept of unfairness;  (2) whether it is immoral, unethical, oppressive or unscrupulous;  (3) whether it causes substantial injury to consumers, [competitors or other businesspersons] ․ All three criteria do not need to be satisfied to support a finding of unfairness.   A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three.”  (Citation omitted;  internal quotation marks omitted.)  Naples v. Keystone Bldg. and Development Corp., 295 Conn. 214, 227–28, 990 A.2d 326 (2010).  “In the absence of aggravating unscrupulous conduct, mere incompetence does not by itself mandate a trial court to find a CUTPA violation.”  Id. At 229, 990 A.2d 326 (contractors not liable under CUTPA for unworkmanlike construction because there were no aggravating factors.)  “Although CUTPA is primarily a statutory cause of action;  see General Statutes § 42–110b;  it equally is recognized that CUTPA claims may arise from underlying causes of action, such as contract violations or torts, provided the additional CUTPA elements are pleaded.”  Strum v. Harb Development, LLC, 298 Conn. 124, 139, 2 A.2d 859 (2010).”  “The same facts that establish a breach of contract claim may be sufficient to establish a CUPTA violation.  Lester v. Resort Camplands Intern., Inc., 27 Conn.App. 59, 71, 605 A.2d 550 (1992).  “Not every contractual breach rises to the level of a CUTPA violation.”  Hudson United Bank v. Cinnamon Ridge Corp., 81 Conn.App. 557, 571, 845 A.2d 417 (2004).  “[A] simple breach of contract does not amount to a violation of CUTPA in the absence of substantial aggravating circumstances.”   IN Energy Solutions, Inc. v. Realgy, LLC, 114 Conn.App. 262, 274, 969 A.2d 807 (2009).  “There is a split of authority in Superior Court decisions regarding what is necessary to establish a CUTPA claim for breach of contract, [with] the majority holding that a simple breach of contract, even if intentional, does not amount to a violation of CUTPA in the absence of substantial aggravating circumstances.”  (Citation omitted;  internal quotation marks omitted.)  Greene v. Orsini, 50 Conn.Supp. 312, 315, 926 A.2d 708 (2007).  “When the Superior Courts have permitted a CUTPA cause of action based upon a breach of contract, there generally has been some type of fraudulent behavior accompanying the breach or aggravating circumstances ․ The question therefore becomes whether the plaintiff has alleged in its complaint the substantial aggravating circumstances attending the breach of contract necessary to establish a CUTPA violation.”  (Internal quotation marks omitted.)   Patrician v. Melanson, Superior Court, judicial district of Middlesex, Docket No. CV 05 4004508 (July 10, 2006, Dubay, J.).   “Conduct that has been held to be substantial aggravating circumstances sufficient to support CUTPA claims includes fraudulent representations, fraudulent concealment, false claims ․ and multiple breaches of contract.”   (Citations omitted.)   Reich v. Spencer, Superior Court, judicial district of Hartford, Docket No. CV 07 5012682 (December 10, 2010, Peck, J.).  “A simple contract breach is not sufficient to establish a violation of CUTPA ․ where a count simply incorporates by reference the breach of contract claim and does not set forth how or in what respect the defendant's activities are either, immoral, unethical, unscrupulous or offensive to public policy.”  (Internal quotation marks omitted.)   Eclipse Systems, Inc. v. Harrell, Superior Court, judicial district of Middlesex, Docket No. CV 10 6003857 (May 25, 2011, Wiese, J.).   This court has employed the approach set forth above in analyzing whether breach of contract claims rise to a CUTPA violation.   See Caires v. Bueti Development Corp., Inc., Superior Court, judicial district of Stamford–Norwalk at Stamford, CV 11 6011812 (June 21, 2012, Adams, J.T.R.);   Pete's Plumbing v. Meade, Superior Court, judicial district of Danbury, CV 00 030790 (April 12, 2001, Adams, J.).

Aside from the reference to the Home Improvement Act that provides a violation of any of its requirements is a violation of CUTPA, missing from this section of count two are specific allegations of how the defendant's conduct violated CUTPA to such a degree and extent that said conduct was unlawful and offensive to public policy, immoral, unethical or oppressive or unscrupulous or caused substantial injury to consumers.   And, during the trial, nothing was offered by the plaintiff to prove that there were instances of any aggravating circumstances engaged in by the defendant in connection with the defendant's breach of the agreement.   What the trial record reveals is that the parties entered into an agreement for the defendant's construction of a multi-level deck on her rental property, the agreement did not comply with the majority of the Home Improvement Act's requirements, the plaintiff paid the defendant an initial payment of $7,750.00, the defendant paid VIP $4,000.00 from the $7,750.00 that he received from the plaintiff, the parties had a disagreement concerning how complete the deck after the defendant sought to obtain the second of three payment installments from the plaintiff the defendant instructed VIP to cease construction on the deck as a result of the dispute that arose between the plaintiff and the defendant and that the plaintiff sustained damages.   The defendant's actions, which were both objectionable to the plaintiff and in breach of the terms of the parties' understanding, were, in essence, nothing more than a simple breach of contract irrespective of whether his conduct was intentional.   With the exception of the defendant's per se violation of CUTPA by virtue of his violation of the Home Improvement Act, again the plaintiff offered no proof, by a fair preponderance of the evidence, of any aggravating circumstances involving unfair or deceptive activities on the part of the defendant that would constitute a CUTPA violation.   While the plaintiff satisfied the first prong of the CUTPA test due to the defendant's per se violation of the Home Improvement Act, the plaintiff did not prove, by a fair preponderance of the evidence, that she met the second prong of the test inasmuch as she failed to prove that the defendant's conduct was unfair or that the defendant engaged in a deceptive trade practice.

Based upon the foregoing reasons, the court finds that the plaintiff proved by a fair preponderance of the evidence that the defendant breach their agreement and that she suffered damages as a result of said breach.   The court enters judgment against the defendant and awards judgment in favor of the plaintiff in the amount of total amount of $11,027.00 plus costs and statutory interest in accordance with Gen.Stat. § 37–3a.   Said total amount reflects the following damages sustained by the plaintiff:  $7,750.00 for the initial deposit she paid the defendant, $1,875.00 for payments she made to Mark Reeves, Builder, for the demolition of the deck constructed by VIP, $30.00 paid to the Town of Essex for a demolition permit, $1,372.00 to Homescapes, LLC to remove and backfill the footings installed by VIP.⁴

BY THE COURT

SYBIL V. RICHARDS, JUDGE

FOOTNOTES

FN1. At the conclusion of the trial, the court ordered the parties to exchange and simultaneously file briefs and proposed findings of fact with transcript references within two weeks of receipt of the trial transcript.   The court begins by noting that the plaintiff complied with the court's order but the defendant failed to do so on or before the compliance date ordered by the court.   As a result of the defendant's noncompliance, the plaintiff filed a motion for order precluding the defendant from filing his brief and proposed finding of facts.   J. Gilardi, Superior Court, judicial district of Fairfield at Bridgeport, granted the plaintiff's motion..  FN1. At the conclusion of the trial, the court ordered the parties to exchange and simultaneously file briefs and proposed findings of fact with transcript references within two weeks of receipt of the trial transcript.   The court begins by noting that the plaintiff complied with the court's order but the defendant failed to do so on or before the compliance date ordered by the court.   As a result of the defendant's noncompliance, the plaintiff filed a motion for order precluding the defendant from filing his brief and proposed finding of facts.   J. Gilardi, Superior Court, judicial district of Fairfield at Bridgeport, granted the plaintiff's motion.

FN2. On July 18, 2012, the plaintiff filed a withdrawal form with respect to that portion of the complaint that was filed against VIP..  FN2. On July 18, 2012, the plaintiff filed a withdrawal form with respect to that portion of the complaint that was filed against VIP.

FN3. See the Home Improvement Act's requirements cited herein..  FN3. See the Home Improvement Act's requirements cited herein.

FN4. The plaintiff was seeking damages in the amount of $900 a month multiplied by 24 months for “loss rent” for the second floor unit, but offered no proof of said loss aside from her testimony during the trial.   Therefore, the court disallowed this amount as purely speculative because it was based upon her testimony alone and because the plaintiff failed to prove that she actually sustained said loss.   The plaintiff did provide electricity bills in the amount of $308.66 for said unit, but this too was disallowed because it relates to her claim of “loss rent.”   She testified that she incurred said electricity bill because she had to keep the electricity on to heat the unit while it was unoccupied..  FN4. The plaintiff was seeking damages in the amount of $900 a month multiplied by 24 months for “loss rent” for the second floor unit, but offered no proof of said loss aside from her testimony during the trial.   Therefore, the court disallowed this amount as purely speculative because it was based upon her testimony alone and because the plaintiff failed to prove that she actually sustained said loss.   The plaintiff did provide electricity bills in the amount of $308.66 for said unit, but this too was disallowed because it relates to her claim of “loss rent.”   She testified that she incurred said electricity bill because she had to keep the electricity on to heat the unit while it was unoccupied.

Richards, Sybil V., J.