ML v. Ruth Kabel (2013)

MEMORANDUM OF DECISION

At issue is whether the defendant breached the home improvement contract and invoked the statutory violation of the contractor's unlicensed status in bad faith.

I

NATURE AND PROCEDURAL CONTEXT

On March 22, 2012, Hung Nguyen, (hereinafter referred to as the “plaintiff”) filed a nine-count complaint against Ruth Kabel (hereinafter referred to as the “defendant”).   Count one sounds in foreclosure of mechanic's lien, count two alleges breach of contract, count three asserts unjust enrichment, count four alleges breach of covenant of good faith and fair dealing, count five asserts negligent misrepresentation, count six alleges intentional misrepresentation, count seven sounds in conversion, count eight alleges statutory theft, and count nine asserts a CUTPA claim as per General Statute § 42–110b et seq.

Paragraphs 4 through 11 of the complaint lay out the broad premise relevant to the entire claim.   On February 1, 2012, the defendant, owner of an apartment building located at 429–431 Prospect Street, West Hartford, Connecticut, retained plaintiff to perform repair/construction work.   The agreement is hand written by the defendant on the plaintiff's preprinted Estimate Form. The plaintiff alleges that he furnished nearly 95% of labor, materials and equipment requested by the defendant.   Further, the plaintiff asserts that the work performed by him was approved and accepted by the defendant.   When plaintiff attempted to complete the remaining 5% of the work, the defendant informed him that he was “fired” and was not able to return to the premises.   The plaintiff alleges that an outstanding balance is due and owing for services furnished to the real property.   Despite repeated requests and demands for payment, the defendant has failed to make a payment of the balance due and owing plaintiff.

On March 5, 2012, within ninety (90) days from the time that the plaintiff ceased to furnish labor and materials to the real property, the plaintiff caused a Certificate of Mechanic's Lien to be recorded in the land records for the Town of West Hartford.   On May 14, 2012, the defendant filed an answer and special defenses.   The defendant denied all material allegations of the complaint.   On June 5, 2012, the defendant filed amended counterclaims.

This matter came before the court on July 2, 2013, for a trial on the merits.   The parties submitted post-trial briefs.   Witnesses included Hung Nguyen, Jovanni Rodriguez, Elizabeth Pluchino, Jerry Hansen and Ruth Kable.   The court finds the testimony of Elizabeth Pluchino, Jerry Hansen and Ruth Kable to be credible.   The testimony of Hung Nguyen and Jovanni Rodriguez is totally lacking in credibility and the court attaches no weight to it.   The court after reviewing and considering the testimony, the exhibits and the parties' post-trial briefs enters judgment for the defendant on all counts of the complaint and counterclaim.

II

FACTUAL FINDINGS

1. The plaintiff, Hung Nguyen, doing business as a M–L Hardwood Floor Services, is an individual and resident of the State of Connecticut.   The plaintiff migrated to the United States from his native country of Vietnam.   The plaintiff testified in court with the assistance of a translator.

2. The defendant, Ruth Kabel, owner of an apartment building, located at 429–431 Prospect Street, West Hartford, is an individual and resident of West Hartford, Connecticut.

3. On or about February 1, 2012, the parties entered into an agreement.   The agreement is written on the pre-printed form provided by the plaintiff and is titled as “M–L Hardwood Floor Services Job Estimate.”   The different parts of the one-page pre-printed form are completed by the defendant in her hand writing.   It is signed by the parties.   The contract price is listed as six thousand dollars ($6,000.00).   The agreement is poorly worded and the scope of the work is not amply clear.   The payment is due upon completion of the job.   A deposit of two thousand dollars ($2,000.00) was to be made to the plaintiff on or about the 10th day after the beginning of the project.

4. The defendant wanted the repairs/construction to be completed by the end of February 2012 so that two floors could be rented by March 1, 2012.   The defendant conveyed to the plaintiff that time was crucial for her.   The defendant put in writing that the ‘time is of the essence’ and that there would be a one hundred dollar ($100.00) penalty per day if the repairs were not completed in time.

5. The plaintiff wanted to consult with someone about the agreement before signing it.   That night, he took the agreement home.   The next day, which was the day to begin the project, the plaintiff brought the agreement with him, discussed the agreement with the defendant and was assured that the project would be finished on time.   Upon plaintiff's request, the penalty clause from the agreement was stricken.

6. On January 2, 2012, the defendant paid to the plaintiff two thousand dollars ($2,000.00).   The plaintiff requested that the defendant pay the down payment earlier than the agreed upon date because the plaintiff's helper was in financial disarray.   On January 9, 2012, an additional one thousand dollars ($1,000.00) was paid to the plaintiff.   The plaintiff insisted that payment was always made in cash.

7. On January 1, 2012, the parties met at the premises to discuss and finalize the details of the repair/construction project.   The defendant inquired whether the plaintiff was licensed and insured.   The plaintiff confirmed that he was, but that he did not have the license with him at that moment.   The plaintiff assured the defendant that he would bring the requested license later.

8. Elizabeth Pluchino, special investigator for the Department of Consumer Protection, State of Connecticut, testified that she was familiar with the department's records.   She further testified that her job was to investigate complaints regarding home improvement contractors.   Pluchino testified that the plaintiff on February 1, 2012, the day of signing the contract was not a licensed contractor.  (Trial Transcripts, dated July 2nd, 2012 at page 98.)

9. Pluchino additionally testified that the plaintiff has not been licensed since 2007.   His license expired on 11/30/2007.  (See plaintiff's exhibit–7.)

10. Although he claimed that his license renewal application was pending, even on the day of trial, the plaintiff was neither licensed nor insured.   The plaintiff has failed to maintain a home improvement license in the State of Connecticut under either his name or his business name, ML Hardwood Floor Services, which is mandated by C.G.S. § 20–420 et seq.

11. The plaintiff submitted an additional job estimate, which is hand written by him.   It is titled as “Extra Work” and the amount listed is three thousand four hundred dollars ($3,400.00).   The job estimate has not been signed by either party.

12. On February 17, 2012, the plaintiff fell sick and left work early.   He left behind his helper to continue the work.   The plaintiff did not return to work until February 21, 2012.   By now, the defendant was completely frustrated by the plaintiff's unsatisfactory work and conduct.   The defendant fired the plaintiff.   The plaintiff called the police to retrieve his tools that he had allegedly left at the premises.

13. At the time the plaintiff was fired, he had completed approximately 50% of the work according to the terms of the agreement.   Jerry Hansen, a remodeling and refurbishing contractor, credibly testified at trial that at the request of the defendant he inspected/viewed the premises and provided an estimate to finish the project.   He testified that repair work prior performed by the plaintiff was unsatisfactory and shoddy.

14. The defendant lost rental income for the month of March 2012 due to lack of completion of the work in a timely fashion.   The rental income for an apartment with two floors in West Hartford ranges from two thousand five hundred to three thousand dollars ($2,500.00–3,000.00).

15. The agreement between the plaintiff and the defendant is unenforceable due to the plaintiff's unlicensed status.   The plaintiff is prevented from recovery because of such status.

16. The defendant submitted an affidavit which states in pertinent parts:  “prior to plaintiff's filing the current law suit against me, I never heard of or known about the Home Improvement Act. I had absolutely no knowledge of the substance of the Connecticut Home Improvement Act prior to my attorney explaining the law to me after Nguyen filed suit against me.   The property located at the 431 Prospect Avenue, West Hartford, was the first property which I have owned and rented to tenants ․” The court credits the defendant's affidavit.   In addition, the court heard testimony of the defendant and found her persuasive and credible.

17. The plaintiff did not sustain his burden that the defendant invoked the Home Improvement Act in bad faith.

Additional facts will be provided as deemed necessary.

III

THE COMPLAINT & THE LAWACount One:  Foreclosure of Mechanic's Lien

In count one of the complaint, the plaintiff alleges that on or about February 1, 2012, he was retained by the defendant to perform construction work to improve the real property, owned by the defendant.   The plaintiff also asserts that he furnished nearly 95% of the labor, materials and equipment requested by the defendant to improve the real property.   Additionally, the plaintiff claims that all of the work performed was approved and accepted by the defendant.   Further, when the plaintiff attempted to return to the real property to complete the remaining 5% of the work, he was told that he was “fired” and was not to return to the real property.   The plaintiff alleges that an outstanding balance is due and owing for his services to the said property.   Despite repeated requests and demands for payment, the defendant has failed to make such payment.

On March 5, 2012, within ninety (90) days from the time that plaintiff ceased to furnish labor and materials to the real property, the plaintiff caused a certificate of mechanic's lien to be recorded in the Land Records for the Town of West Hartford.   The defendant denies and counters the claims underlying the mechanic's lien in her answer.   The defendant also filed counterclaim and special defenses.

Our Supreme Court in Thompson and Peck, Inc. v. Division Drywall, Inc., 241 Conn. 370 (1997), decided that to be the subject of a mechanic's lien, the materials for which a lien has been claimed must not merely have been furnished for, or delivered to the site of, the particular building or improvement, but must also have been actually used in its construction.  Lewin & Sons, Inc. v. Herman, 143 Conn. 150 (where some plumbing materials represented by mechanic's lien were used elsewhere, plumber not entitled to full amount claimed by lien).   The rationale for this rule is that it is equitable to grant a lien against property that has increased in value by virtue of the use of materials and, conversely, that it is not equitable to burden the property with a lien to secure the price of materials that were not used to improve such property.   Similarly, we have construed the meaning of “services” to be confined to services that are of a mechanical nature or to those services related to the construction of a building or skilled workmen using tools, machinery and other equipment to improve the land.   See Nickel Mine Brook Associates v. Joseph E. Sakal, P.C., 217 Conn. 367.

In the present case, as noted above, the court finds no credible evidence which supports the claim of a foreclosure of a mechanic's lien.   The defendant credibly testified at trial that she paid three thousand dollars ($3,000.00) to the plaintiff.   She further testified that she was forced to pay Peter Dorey about fourteen hundred dollars ($1,400.00).   Additionally, the court heard the testimony of Jerry Hansen, who was persuasive and credible.   According to his testimony, there were repairs of significant nature pending the renovation work he was asked to complete.   The work done by the plaintiff was completely shoddy.   The court can reasonably draw an inference from Hansen's testimony that plaintiff has completed about 50% of the work, and not 95%, as alleged by the plaintiff.   There is no credible evidence presented either through testimony or otherwise to prove a claim of a mechanic's lien.

Furthermore, the court finds from the foregoing that the plaintiff has failed to prove that he is entitled to recover under a theory of equitable restitution.

B

Count Two:  Breach of contract

The plaintiff in his complaint, briefings and through trial testimony has raised issues, inter alia, that the defendant breached her agreement with the plaintiff by failing or refusing to tender payment for all of amounts due and owing in a timely and reasonable manner in accordance with the terms and condition of the agreement.

The defendant counter argues that she paid the plaintiff half of the contract price and fired him only when she discovered that his work was not only defective, but also that the work was not going to be completed in a timely fashion.

In Connecticut, the essential elements of a breach of contract are that:  (1) the plaintiff and the defendant made a valid contract;  (2) the contract was breached by the defendant;  (3) the plaintiff performed;  and (4) the plaintiff suffered damages as a consequence of the breach.   See Keller v. Beckenstein, 117 Conn.App. 550, 558, cert. denied, 294 Conn. 913 (2009) (citing American Express Centurion Bank v. Head, 115 Conn.App. 10, 15–16 (2009);  Rosato v. Mascardo, 82 Conn.App. 396, 411 (2004).

As noted above, the court finds that the plaintiff has failed to establish by a preponderance of the evidence that the defendant breached the contract.   Rather, the court finds it is the plaintiff who breached the contract and caused damages, i.e., loss of rental income for two months and additional costs to the defendant.

C

Count three:  Unjust enrichment

Unjust enrichment applies wherever justice requires compensation to be given for property or services rendered under a contract, and no remedy is available by an action on the contract.

“A right of recovery under the doctrine of unjust enrichment is essentially equitable, its basis being that it is contrary to equity and good conscience for one to retain a benefit which has come to him at the expense of other.   With no other test than what, under a given set of circumstances, is just or unjust, equitable or inequitable, conscionable or unconscionable, it becomes necessary in any case where the benefit of doctrine is claimed, to examine the circumstances and conduct of the parties and apply this standard ․” Unjust enrichment is, consistent with the principles of equity, a broad and flexible remedy ․ Plaintiff seeking recovery for unjust enrichment must prove (1) that the defendant was benefitted, (2) defendant unjustly did not pay the plaintiff for the benefits, and (3) failure of payment was to plaintiffs' determent.”   (Internal quotation marks omitted.)  Vertex, Inc. v. Waterbury, 278 Conn. 557, 573 (2006).   See also American Express Centurion Bank v. Head, 115 Conn.App. 10, 16 (2009).

In the case of Seaman v. Climate Control Corporation, 181 Conn. 592, 436 (1980), our Supreme Court specifically rejected the argument that a mechanic's lien may be founded on the basis that the owner is unjustly enriched by the improvement of its property.

As previously noted, the court finds that the plaintiff neither by his testimony nor by the record has proved his claim of unjust enrichment.   It is the defendant who has been forced to defend this law suit, lost rental income and incurred additional expenses along with aggravation inflicted upon her by an unlicensed contractor.

D

Count Four:  Breach of covenant of Good Faith and Fair Dealing

The Supreme Court of Connecticut has held that it is not enough for a plaintiff to prove that a defendant was negligent, used bad judgment, and/or made a mistake in order to satisfy this element, stating that:

“Bad faith is defined as the opposite of good faith, generally implying a design to mislead or to deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation not prompted by an honest mistake as to one's rights or duties ․ [B]ad faith is not simply bad judgment or negligence, but rather it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity ․ [I]t contemplates a state of mind affirmatively operating with furtive design or ill will.”

In Connecticut, “[e]very contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement.”   See Warner v. Konover, 210 Conn. 150, 154 (1989).   A party to a contract will violate a duty of good faith and fair dealing where that party impedes on the other party's rights to receive the benefits of that he or she reasonably expected to receive under the contract through acts that are taken in bad faith.   See Landry v. Spitz, 102 Conn.App. 34, 42 (2007).

The term bad faith encompasses a wide range of dishonest behavior, including evasion of the spirit of the bargain.”[W]hether particular conduct violates or is consistent with the duty of good faith and fair dealing necessarily depends upon the facts of the particular case, and is ordinarily a question of fact ․” Id., 47.  “[W]hether a party has acted in bad faith is a question of fact ․” See Harley v. Indian Spring Land Co., 123 Conn.App. 800, 837 (2010).

The plaintiff alleges that the improvement to the defendant's apartment building, which the defendant fully accepted, is in bad faith with the sinister motive of avoiding ever having to pay for those improvements.

As noted above, the court heard the testimony of defendant who was credible, persuasive and her testimony was credited by the court.   The court finds no evidence which is indicative of defendant acting in bad faith.   The defendant credibly testified that she paid half of the contract price to the plaintiff and would have been happy to pay the remaining dues had the job been fully completed.

E

Count Five & Six:  Negligent and Intentional Misrepresentation

“Traditionally, an action for negligent misrepresentation requires the plaintiff to establish (1) that the defendant made a representation of fact (2) that the defendant knew or should have known was false, (3) the plaintiff reasonably relied on the misrepresentation, and (4) pecuniary harm as a result.”  Nazami v. Patrons Mutual Insurance Co., 280 Conn. 619, 626 (2006).  “A claim of ․ negligent misrepresentation is a question of fact.”   (Internal quotation marks omitted.)  Sovereign Bank v. Licata, 116 Conn.App. 483, 502 (2009).

“A claim of reckless or intentional misrepresentation requires the same elements as negligent misrepresentation except that the claimant must prove that the party made the misrepresentation to induce the other party to act upon it.”  Weisman v. Kaspar, 233 Conn. 531, 539, 661 (1995).

Reckless misrepresentation requires [t]he intent to defraud.  DeLuca v. C.W. Blakeslee & Sons, Inc., 174 Conn. 535, 546, 391 (1978).   Studio Zee, LLC v. The Edge Tattoo Co., Docket No. CV 01–0449758 (New Haven J.D., March 15, 2002) (Zoarski, J.T.R.) [31 Conn. L. Rptr. 701].

The court finds that the plaintiff failed to present any evidence either through testimony or otherwise to prove the essential elements of negligent or intentional misrepresentation.   The court further finds that the defendant correctly points out that count five and six of the plaintiff's complaint are in essence based upon quasi-contract theories, not an action in tort.

F

Count Seven & Eight:  Conversion and Statutory Theft

To establish the defendant's liability for conversion, the plaintiff must prove four essential elements by a fair preponderance of the evidence:  (1) that the property at issue belonged to the plaintiff.   In other words, that at the time the defendant took possession of/control over the property, the plaintiff owned/was entitled to take immediate possession of the property;  (2) that the defendant took possession of/exercised control over the plaintiff's property which deprived the plaintiff of the property either permanently or for an indefinite period of time;  (3) that the defendant's conduct was unauthorized.   In other words, the defendant's acts were wrongful, were without the plaintiff's permission, or without any other lawful authority;  and (4) that the defendant's conduct caused harm to the plaintiff.

The plaintiff's claim that his tools were left at the property and he was not allowed to retrieve them is unpersuasive.   The court heard the testimony of the defendant who asserted that the plaintiff was offered to come to the premises accompanied by the police to check and take whatever was left.

G

Count Nine:  CUTPA

The Connecticut Unfair Trade Practices Act 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.”  General Statutes § 42–110b(a).   In construing the statutes, our courts have adopted the following criteria for determining whether a practice is unfair:  (1) whether the practice, without necessarily having been considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise whether, 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;  and (3) whether it causes substantial injury to consumer [competitors or other business men].   See Conway v. Prestia, 191 Conn. 484, 492–93 (1983).

The plaintiff's complaint alleges that the defendant is engaged in trade and commerce in the state of Connecticut, and the defendant's actions are deceptive and misleading in violation of C.G.S. § 42–110 et seq.   Hence, he is entitled to actual damages and also punitive damages, costs and reasonable attorneys fees.

The defendant in opposition, while testifying and in her briefing, asserts that she did not engage in any deceptive or misleading conduct.   As noted above, the plaintiff was unlicensed at all relevant times and his conduct constituted per se unfair trade practice.   The court finds that plaintiff has failed to prove this claim.

IV

AMENDED COUNTER CLAIMACount One:  Plaintiff's Unlicensed Status

The defendant in his amended counterclaim asserts that the plaintiff did not maintain a home improvement license in the State of Connecticut under either his name or the business name, ML Hardwood Floor Service, which is mandated by C.G.S. § 20–420 et seq.   The contract between the plaintiff and the defendant did not comply with the Home Improvement Act written agreement and C.G.S. § 20–429(a).   The plaintiff failed and neglected to complete the work as required under the terms of the contract.   As a result of the acts of the plaintiff, the defendant has suffered economic damages, incidental damages and consequential damages, including additional costs to repair the defective work and to complete the plaintiff's work.

As noted above, the defendant has proved through trial testimony and documentary evidence that the plaintiff was non-compliant with both the C.G.S. § 20–420 et seq. and C.G.S. § 20–429(a).

B

Count Two:  Violation of C.G.S. §§ 42–418;  42–110(a)(4);  20–420(a);  20–419(3);  and 42–110 et seq.

In her second count, the defendant contend that the plaintiff was engaged in a trade and commerce as defined by C.G.S. § 42–110(a)(4).   Furthermore, the defendant asserts that plaintiff has violated several statutory provisions such as, (1) Violation of Home Improvement Act under C.G.S. § 42–418;  (2) At all times relevant hereto, the plaintiff failed to maintain a contractor's certificate of registration from the Commissioner of Consumer Protection as mandated by C.G.S. § 20–420(a);  (3) At all times relevant, the plaintiff represented that he was a home improvement contractor when he knew or should have known that he was not as per C.G.S. § 20–419(3);  (4) The acts of the plaintiff are in violation of Connecticut Unfair Trade Practices Act (CUTPA) under C.G.S. § 42–110 et seq.

In the case of Marinos v. Poirot, 308 Conn. 706 (2013), our Supreme Court states that CUTPA is, on its face, a remedial statute that broadly prohibits “unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.”  General Statutes § 42–110b(a);  see also Associated Investment Co. Ltd. Partnership v. Williams Associates IV, 230 Conn. 148, 155 (1994).   The act provides for more robust remedies than those available under analogous common-law causes of action, including punitive damages;  General Statutes § 42–110g(a);  and attorneys fees and costs, and, “in addition to damages or in lieu of damages, injunctive or other equitable relief.”  General Statutes § 42–110g(d);  see generally Associated Investment Co. Ltd. Partnership v. Williams Associates IV, supra, 148 (describing history, scope and purpose of CUTPA cause of action and remedies).   To give effect to its provisions, § 42–110g(a) of the act establishes a private cause of action, available to “[a]ny 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 ․”

“The ascertainable loss requirement [of § 42–110g] is a threshold barrier which limits the class of persons who may bring a CUTPA action seeking either actual damages or equitable relief ․ Thus, to be entitled to any relief under CUTPA, a plaintiff must first prove that he has suffered an ascertainable loss due to a CUTPA violation.”  (Internal quotation marks omitted.)  Artie's Auto Body, Inc. v. Hartford Fire Ins. Co., supra, 287 Conn. 217–18.   CUTPA, however, “is not limited to providing redress only for consumers who can put precise dollars and cents figure on their loss”;  Hinchliffe v. American Motors Corp., 184 Conn. 607, 618, 440 (1981);  as the ascertainable loss provision “do[es] not require a plaintiff to prove a specific amount of actual damages in order to make out a prima facie case.”  Id., 612–13.   Rather, as we explained in Hinchliffe, “[d]amage ․ is only a species of loss”;  (internal quotation marks omitted) id., 613;  hence “[t]he term ‘loss' necessarily encompasses a broader meaning than the term ‘damage’ “ Id. Accordingly, this court previously has concluded that, for purposes of § 42–110g, an ascertainable loss “is a deprivation, detriment [or] injury that is capable of being discovered, observed or established ․ [A] loss is ascertainable if it is measurable even though the precise amount of the loss is not known ․ Under CUTPA, there is no need to allege or prove the amount of the actual loss.”  (Citation omitted;  emphasis added;  internal quotation marks omitted.)  Service Road Corp. v. Quinn, 241 Conn. 630, 638–39 (1997).

As noted above, the defendant has proved her claims by fair preponderance of the evidence.

V

DISCUSSION

The trier of fact must observe the demeanor of witnesses and draw inferences as to the motives underlying their testimony and conduct.  Christie v. Eager, 129 Conn. 62, 64–65 (1942).  “[T]he trier of fact's assessment of the credibility of ․ witnesses ․ is made on the basis of its firsthand observation of their conduct, demeanor and attitude ․ The weight to be given to the evidence and to the credibility of witnesses is solely within the determination of the trier of fact.”  (Internal quotation marks omitted.)   Machado v. Statewide Grievance Committee, 93 Conn.App. 832, 839, 890 (2006).  “It is well established that [t]he trier of fact may accept or reject the testimony of any witness ․ The trier can, as well, decide what—all, none, or some—of a witness' testimony to accept or reject.”  (Citation omitted;  internal quotation marks omitted.)  Wilson v. Hryniewicz, 51 Conn.App. 627, 633, 724, cert. denied, 248 Conn. 904 (1999).

The court carefully and closely reviewed the plaintiff's demand letter, submitted as a full exhibit, which outlined his claims against the defendant pertaining to the renovation project.   This letter is written by the plaintiff after he was allegedly fired, prepared by someone other than plaintiff and it is not dated.   The pertinent parts of the letter are as follow:

On February 1, 2012, I entered into contract with you to do a renovations to your three family house.   You were very specific about your contractual requirements and requested that I allow you to write it.   The contract stated that for $6,000, I was to complete the following in the three apartments and common areas:  (1) install light fixtures;  (2) install fire and wood doors and hardware;  (3) install kitchen cabinets;  (4) install dishwashers;  (5) install sinks;  (6) install mirrors;  (7) sand and refurnish all floors, stairs and landings with 3 coats of polyurethane;  (8) install trim;  (9) paint trim and walls to match second and third floors;  (10) repair damaged tile, grout and seal;  (11) repairs damaged floors, walls, and stairs.

This work was completed on Tuesday, 2/21/2012 with the exception of painting two doors.   I got very sick with a stomach ache and vomiting and had to leave the job.   I told you I will return when I felt better ․ I was unable to return to work the following morning and called but my phone was not answered.   You called me later that evening and told me I was fired ․ when I told you I would stop by on Thursday to pick up my pay and tools you said, do not come back I am not paying you.   I worked at your house for 20 days including weekends.   You paid me $3,000.00 for materials alone.   The balance due to me is $3,000.00.   You now taken my tools thereby preventing me from working on other jobs ․ including extra jobs such as staining all floors, stairs and landings (3000 sq. ft.), moving furniture and appliances, changing stain color on cabinets, totaling $3,400.00 and keeping my tools and equipment totaling $1,920.00.   The total you now owe is $8,320.00.   Unless the total amount is received at my address within 10 days of this letter, I will initiate litigation against you for this amount plus cost of collection which may include attorney fees.

(See Defendant's Exhibit–A.)

The plaintiff's testimony in part contains the following colloquy.

Q. And were you required under this document, sir, to provide any materials for this job?

A. Yes.

Q. What material?

A. Sandpapers and screens.

Q. White pads?   Are these materials for your floor sanders?

A. Yes

Q. Were those the only materials you were required to provide?

A. Those are the materials for floors only.

(See Transcripts, dated July 2, 2013, pp. 12–113.)

The court finds that plaintiff's testimony is not credible and attaches no weight to it.   The testimony is totally contradictory to his own letter, i.e., exhibit-A.   The question is if the renovation price is six thousand dollars ($6,000.00), will the purchase of the material such as sand paper alone cost three thousand dollars ($3,000.00)?   The reasonable answer is no.   Even, assuming it was true, which is extremely improbable, the plaintiff did not provide any documentary evidence to support his far fetched claim of the cost of materials.   Further review of the plaintiff's own exhibit 3 and 5 reveals that the deposit of three thousand dollars ($3000.00) was for the job and not for the materials.

The plaintiff, next, claims that he was prevented from retrieving his tools and equipment, worth $1,920.00, left at the premises.   The plaintiff asserts that on February 21, 2012, the work was completed with the exception of painting two doors.   If the work was done, as claimed, it is unreasonable for one to keep his tools and equipment at the premises.   The court finds that it is inconsistent with his claim that the tools were left at premises.

The defendant credibly testified that while the plaintiff was working for the defendant, he had found another job and was mostly absent from her premises.

The plaintiff's claim of “extra work” including moving furniture and appliances, changing the stain color of cabinets, which totaled three thousand four hundred dollars ($3,400.00), is also without merit.   In support of this claim, the plaintiff submits page 2 of exhibit 1. The court has carefully reviewed the entire exhibit and concludes that page 2 is not signed by the defendant, and is handwritten by the plaintiff with the assistance of his helper.   The court finds that plaintiff has not presented any credible evidence that the defendant agreed to the plaintiff's moving furniture and appliances, changing stain color of cabinet for the cost of three thousand four hundred dollars ($3,400.00).

Additionally, the plaintiff testified that he signed the contract on the day he met the defendant, i.e., February 1, 2012, at the premises, without anyone's assistance.  (See Trial Transcripts dated July 2, 2013 page 12).   During the cross examination the following colloquy ensued:

Q. And you agree that in the second paragraph, it lists things ․ it is list of things, items you were supposed to perform for Ms. Kabel, correct?

A. Because I gave this piece of paper to the inspector and he looked over and he said that these things are not what you are licensed for.

(See Trial transcripts dated July 2, 2013, page 47.)

The plaintiff's helper, Jovanni Rodriguez, who was instrumental in the preparation of page 2 of exhibit 1 testified at trial.   The court finds his testimony not credible and attaches no weight to it.

Rodriguez testified at trial and following colloquy ensued:

Q. Okay. And the day of the first ․ 21st, that was the last you worked on the property, correct, February 21st?

A. Yes.

Q. And you ․ what time in the morning did you come in to the property?

A. At eight in the morning.

Q. Eight. And at time, when you worked on property, what work needed to be done?

A. That day, the 21st?

Q. Yes.

A. We just was finishing up, touching up paint, and I mean, finishing up what else did we do that day, touch up the paints, we had to put the polyurethane on the ceiling, stain the ceilings, in the hallway, the back hallway, put polyurethane.

I mean the last stuff was painting of the back stairs, because we did not put polyurethane.   We just sanded them and put paint, painted the back stairs all the way down to the basement landing.   I mean, a ton of stuff.

Q. Okay, What other ․ I am asking specifically, what other jobs did you do, other than painting and polyurethane;  do you recall?

A. As of that day?

Q. Yes.

A. Polyurethane the cabinets, that was one of the last things we did, the arrangement of how she wanted the cabinets set on the first floor, because she bought new cabinets for the first floor.   She then over here, this way, that way, then we changed it;  no, this way.

And she wanted us to move the stuff, all the furniture that we agreed to move from the living room to the kitchen, which was very heavy but it was on the first floor, she wanted us move upstairs to the to her ․ it was her furniture, I guess.

And I told Hung I am not doing it;  it was too heavy.   That was big stuff for not getting paid anything extra.   I was like, no, I am not getting paid anything extra.   I was like, no, I am not going to help you with that.   He was like, and she hired two other guys, I guess, that came over and brought the stuff up.

Q. Now, if you recall, exhibit 1, page 2, there is a line that says, moving property, four hundred dollars, correct ․ ?

A.  From the living room to the kitchen ․

Q. That was on February 9th, 2012.

(See Trial Transcripts, dated July 2, 2012, pp 83–86.)

As noted previously, the court did not credit page 2 of exhibit 1. The plaintiff's claim of extra work is contradictory and inconsistent with Rodriguez's testimony.   Page 2 of exhibit 1 states that the moving of furniture cost $400.00.   Rodriguez testifies that they did not move the furniture/appliances, as it was too heavy.

VI

DAMAGES

The court, having found in favor of the defendant, must now address the claim of damages.  “The general burden of proof in civil actions is on the plaintiff, who must prove all the essential allegations of the compliant.”  Gulycz v. Stop & Shop Companies, Inc., 29 Conn.App. 519, 523, 615, cert. denied, 224 Conn. 923 (1992).   The defendant has the burden of proving its special defenses.   See Auto Glass Express, Inc. v. Hanover Ins. Co., 293 Conn. 218, 230 (2009).

As noted above in Hinchlife v. American Motors Corp., supra, the plaintiff is not required to prove actual damages in order to prevail on its CUTPA claims.   The plaintiff needs only to prove that he/she suffered an ascertainable loss, as defined above.   In fact, where the plaintiff has established a CUTPA violation and ascertainable loss, it is reversible error not to award at least nominal damages, even if the plaintiff has failed to prove actual damages.   See Tang v. Bou–Fakhreddine, 75 Conn.App. 334 (2003).

Having found in favor of the defendant on the amended counterclaim of breach of contract, although the dollar amount of damages is not proven with required degree of certainty, the court finds that the defendant has suffered actual loss.   Therefore, the defendant is entitled to an award of nominal damages.

Punitive Damages:  Under CUTPA, the award and the amount of punitive damages are discretionary with the court.   See Grango v. Heyman, 203 Conn. 616, 622, 525 (1987).  “In order to award punitive or exemplary damages evidence must reveal a reckless indifference to the rights of others or an intentional or wanton violation of those rights ․ In fact, the flavor of the basic requirement to justify an award of punitive damages is described in terms of wanton and malicious injury, evil motive and violence.”  Id., 622.

In the present case, the court finds that the plaintiff's conduct does not rise to the level of an award of punitive damages.

Attorneys fees:  The attorneys fees and costs may also be awarded to the prevailing party in a CUTPA case subject to the sound discretion of the court.   See Medval USA Health v. Programs, Inc. Member Works, Inc., 109 Conn.App. 308, 315–16 (2008);  Grango v. Heyman, 203 Conn. 616 (“[a]warding punitive damages and attorneys fees under CUTPA is discretionary”).   The “entitlement to recover attorneys fees stands on a different footing” than the availability of punitive damages in CUTPA case.   See New England Custom Concrete, LLC v. Carbone, 102 Conn.App. 652, 667 (2007).   Also see rule 1.5(a) of the Rules of Professional Conduct and Schoonmaker v. Lawrence Brunoli, Inc., 205 Conn. 210, 259 (2003).

VII

CONCLUSION

For the foregoing reasons, judgment will enter in favor of the defendant and against the plaintiff on the complaint on all counts.   Furthermore, judgment will enter in favor of the defendant on both counts of the counterclaim.   The defendant is entitled to nominal damages.   The court awards the defendant nominal damages in the amount of $1.00.   Taking into account the circumstances, and harm suffered by the defendant, the punitive damages are neither warranted nor awarded.

The defendant may submit a bill of costs as well as its request for attorneys fees with a supporting affidavit.   The plaintiff will have fourteen (14) days following any request of attorneys fees and costs to file its objection and to request a hearing thereon.   If no objection is filed the court shall consider the matter on the papers.

BY THE COURT,

M. Nawaz Wahla, J.

Wahla, M. Nawaz, J.