John Copes et al. v. Edmund Webber dba Tolland Tile & Bath (2014)

MEMORANDUM OF DECISION

I

INTRODUCTION

This is an action for damages arising out of claims by John and Diana Copes (“Plaintiff”) concerning renovation performed by Edmund Weber, d/b/a Tolland Tile and Bath (“defendant”) on property located at 25 Grant Farm Road, Manchester, Connecticut.   The plaintiff commenced this case by filing complaint against the defendant on June 25, 2012.   The Plaintiff amended his complaint on October 23, 2012 which sounds in three counts.   The essence of the plaintiff's claim is that the defendant breached the contract for renovation at 25 Grant Farm Road by installing the tile floor over the existing vinyl floor.   The defendant failed to make sure that a proper sub-floor was present and/or installed prior to the installation of the tile and trim.   The defendant failed to perform his work in a workmanlike manner, violated the Home Improvement Act, General Statutes § 20–418 et seq., and is liable under CUTPA.   The plaintiff seeks an award of compensatory, punitive damages and attorneys fees under the relevant statutes.   This case was tried before the court on November 19, 2013.

The pleadings upon which the case was tried are the Amended (Substituted) Complaint, October 23, 2012, and Answer of the defendant, January 14, 2013.   The plaintiff also relies on her expert disclosure, filed on September 4, 2013.

Count one sounds in breach of contract.   Count two alleges violation of Home Improvement Act The third count sounds in negligence.

The plaintiff also alleges that the defendant violated Home Improvement Act (HIA), C.G.S. § 20–418 et seq., specifically, the contract did not contain a notice of cancellation;  did not contain start and completion date;  and the oral agreement of the parties.   Additionally, the plaintiff contends that the defendant's conduct as alleged in this count, constitutes a deceptive act or practice within the meaning of Connecticut General Statutes § 42–110b(a) et seq., the defendant's conduct amounted to material misrepresentation which offends public policy.

On January 14, 2013, the defendant filed an answer and denied all material allegations of the complaint.

II

FACTUAL FINDINGS

The court, having carefully heard testimony and accepted documentary evidence at trial, makes the following findings of fact.

The plaintiff entered into a contract with the defendant to install a tile floor in his kitchen and surrounding area at 25 Grant Farm Road, Manchester, for the amount of one thousand five hundred dollars ($1,500.00).   The defendant was a registered home improvement contractor with the State of Connecticut, under registration # 558341, on March 22, 2011, at the time the parties entered into home construction contract.   The defendant was doing business as Tolland Tile and Bath. The defendant agreed to provide labor and materials for the renovation services.   The agreement states all work was to be completed in a substantial workmanlike manner.  (Plaintiff's Exhibits 1 and 4.)

The defendant has been installing tile floors for about 25 years, but since December 2012 he is no longer in the tile installation business.   The plaintiff made a payment of five hundred ($500.00) to the defendant on March 28, 2011.   Also a payment of twelve hundred eighty-six dollars and twenty-seven cents ($1,286.27) was made on April 6, 2011.   The amount of two hundred eighty-six dollars and twenty cents was for payment of tiles purchased by the defendant on behalf of the plaintiff.  (Plaintiff's Exhibits 5, 6 and 2.)

There is a one-page computer generated printed form which has been referred to and accepted by both parties as a contract/agreement.   The agreement is dated March 22, 2011.   This has been admitted as a full exhibit.   The agreement is not signed by the plaintiff and does not specify the start or completion date.  (Plaintiff's Exhibit 4.)

On March 8, 2011, the plaintiff purchased tiles from Tile America, a division of Standard Tile NHN, located in Manchester, Connecticut.   The plaintiff received a contractor referral list from Tile America.   The defendant's name is listed on the subject referral list.   The plaintiff consulted other contractors from the referral list before consulting and finally selecting the defendant to perform the construction work at his home.   The work was completed and total payment was made.

On April 12, 2011, the plaintiff wrote a letter to Allan Joyner, Manager, Tile America.   The letter reads:  “that defendant's performance was flawless.   We were immediately impressed with Ed's professionalism, personality, honesty, down to earth style, attention to every detail and the time he spent with us to address all our questions at our initial meeting.”  (Defendant's Exhibit A.)

Shortly after the installation job was finished, the plaintiff started to observe cracking of tiles in and around the kitchen area.   The plaintiff incidently ran into the defendant at a gas station in Manchester and advised him about the cracking of the tiles.   The defendant offered to take a look and find out what was the cause of the cracking.   After that gas station encounter, the defendant did not hear from the plaintiff until he contacted him by phone and finally went over to his home to inquire about the problem.   The defendant offered to re-grout the tiles which was not acceptable to the plaintiff.

On January 2, 2012, the plaintiff obtained two estimates from New England Builders and paid a sum of six hundred dollars ($600.00) for these estimates.   The first estimate describes how to return the current tile floor in the kitchen and dining area to its original state of vinyl floor covering.   The amount of the estimate is ten thousand three hundred eighty dollars and fifteen cents ($10,380.15).   The second estimate describes the labor and material to remove the failed tile, vinyl and sub floor in the kitchen and dining area, to install new sub floor over new structural framing and install new tile floor in the same area.   The amount of the estimate is $20,366.84.  (Plaintiff's Exhibits, 9 and 10.)

Tony Krzesicki was called to testify as an expert by the plaintiff.   He testified that at the request of the plaintiff he inspected/viewed the premises and provided two estimates, as noted above.   He opined that the defendant did not install the tile floor in a workmanlike manner.   Krzesicki was specifically critical of the method of installation used by the defendant.   He testified that the tile floor should not be installed directly over a cushioned vinyl floor, as the defendant did in the present case.   However, during cross examination he conceded he has never installed a tile floor himself.   Rather he subcontracted this work to someone else.   He only performed general contracting work but had observed and assisted the subcontractor in preparation of sub floors for tile installation.   Also he had never been accepted as an expert witness in court.   Additionally, he conceded that the defendant's performance of laying the tile floor “appearance of tiles” was done in a professional manner.   The court notes that the plaintiff's expert is the same person who provided the two estimates.   The court finds his testimony on the issue of tile installation could have been more helpful.

At trial the plaintiff presented evidence of cracks in the grout between the tiles.   There are nineteen (19) pictures submitted as full exhibits indicating different locations of cracking on the 200 square foot floor.   None of these pictures show the entire area of the 200 square foot floor.

The court heard testimony of the defendant and finds him to be credible.   The defendant testified that he did not install the tile directly over the vinyl but in fact had applied a “skim coat” of cement over the vinyl floor before laying the tile.   The defendant testified that he had done this over one hundred other floors and never had a problem.   The defendant's testimony revealed that framing issues and various remedial measures to fix such issues below the kitchen floor was brought to the plaintiff's attention prior to the commencement of work.   Furthermore, the defendant testified that the plaintiff was advised to have an additional beam installed by lollicolumns, which was not accepted by the plaintiff.   The addition of floor joists was also not acceptable to the plaintiff.   During cross examination the defendant admitted that “he had no idea why the tile cracked.”

The plaintiff, John Copes, testified at trial.   The court found his testimony could have been more credible.   He testified that he prepared questions and issues which needed to be discussed with the potential vendor prior to awarding the contract.   Before selecting the defendant for this project, he sought referrals and consulted with other contractors.   His testimony, on the point that he was not advised to have additional beam installed by lally columns and the addition of floor joists, is not persuasive.   The court noted that during the cross examination the plaintiff was asked whether he consulted with other contractors beside the defendant.   His initial response was that he did not.   The defense counsel pursued this issue further.   The plaintiff was presented with exhibit A, which specifically stated that ․ “We chose Ed, Tolland Tile and Bath after meeting with two other candidates from your preferred vendor list.”   The court finds him to be selective in his testimony, not completely forthright.

The evidence was presented that the project was completed and plaintiff wrote a letter of commendation to the defendant.   Additionally, the plaintiff offered no evidence that the defendant acted in deceptive manners.   From the facts presented, the court finds that HIA has been violated.   The contract lacks the start date, completion date and does not have all of the cancellation provisions required by C.G.S. § 20–427.¹  Additional facts will be provided as deemed necessary.

III

TILE COMPLAINT & THE LAWACount One:  Breach of Contract & Count Three:  Negligence

The plaintiff in his complaint, brief and by trial testimony has raised issues, inter alia, that the defendant breached his agreement with the plaintiff by installing the tile floor over the existing vinyl floor;  failed to make sure that proper support was present under the sub-floor;  and failed to perform his work in a workmanlike manner.

Workmanlike manner:

“It is an implied condition of every service contract that the service will be performed in a workmanlike manner.”  Ferrigno v. Pep–Boys–Manny, Joe & Jack of Delaware, Inc., 47 Conn.Sup. 580, 582, 818 A.2d 903 (2003).  “No authority has been found in which an implied warranty to perform the services in a workmanlike manner has been given status as an independent cause of action;  rather, such a claim has been viewed as a breach of contract.   Moreover, where breach of service contract claims and negligence claims have been asserted in the same action, our courts have combined such claims into one negligence claim.”   New Hampshire Insurance v. Hartford Sprinkler, Superior Court, judicial district of Hartford, Docket No. CV 054007221 (March 10, 2008, Wagner, J.T.R.) (45 Conn. L. Rptr. 177).

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).

“A party may be liable in negligence for the breach of a duty which arises out of a contractual relationship ․ Even though there may not be a breach of contract, liability may arise because of injury resulting from negligence occurring in the course of performance of the contract.”  (Internal citations omitted.)  Johnson v. Flammia, 169 Conn. 491, 497, 363 A.2d 1048 (1975).

“The plaintiff is entitled to recover all damages proximately caused by the [defendant's] negligent performance of the contract whether or not the results were reasonably to be anticipated.”  (Internal citations omitted.)  Mattegat v. Klopfenstein, 50 Conn.App. 97, 104, 717 A.2d 276 (1998).   The plaintiff claims that he suffered damages as a result of the defendant's negligence.   “When proximate cause exists for damage to real estate, [t]he basic measure of damages for injury to real property is the resultant diminution in its value.   Such diminution in value may be determined ․ by the cost of repairing the damage as long as that cost does not exceed the former value of the property and the repairs do not enhance the value of the property over what it was prior to the damage.”  Id., 106.

The defendant counter argues that during his consultation with plaintiff, prior to the beginning of the tile work the plaintiff was apprised and advised about various options.   The plaintiff chose the least expensive one.   The court finds this argument of the defendant rings hollow.   The defendant had the option to refuse to undertake a job which was contrary to the industry standards.

From the totality of circumstances surrounding this case, the court draws a logical and reasonable inference that if the tiles were installed in a workman like manner they should not have cracked in such a short time.   The court is also mindful that the plaintiff through his trial testimony presented himself well-informed and knowledgeable.   He selected and purchased the tiles prior to awarding a contract to a particular individual.   He had prepared questions/issues to be addressed during consultations with the potential contractors.   He consulted at least two other contractors prior to meeting with the defendant.   The plaintiff was methodical in his approach.   It is reasonable to draw an inference that plaintiff was quite aware of the problems pertaining to the basement.   Despite knowing of the situation, he contributed to the fact by awarding the contract to be performed for the least expensive price.   For all of the foregoing reasons set forth, the court finds that the defendant was negligent in his execution of the service contract.   Although, the plaintiff chose the least expensive price, it is the defendant who breached the contract.

B

Count Two:  Home Improvement Act Violation

The second count is brought pursuant to § 20–418 et seq. of the Connecticut General Statutes, better known as the Home Improvement Act. Connecticut General Statutes § 20–419(3) defines a home improvement contractor as “one who owns and operates a home improvement business or who undertakes, offers to undertake or agrees to perform any home improvement.”   From the facts found, the court finds that defendant was operating as a home improvement contractor.   As such, he was obliged to comply with the provisions of Connecticut General Statutes § 20–429 of the Connecticut General Statutes which “explicitly requires, inter alia, that a home improvement contract be in writing and signed by the owner and contractor in order to be valid or enforceable against an owner.”  Economos v. Liljedahl Brothers, Inc., 279 Conn. 300, 309, 901 A.2d 1198 (2006).   Because the contract did not contain a cancellation clause, start or completion date and plaintiff's signature on it.

Defendant never provided a written contract to the plaintiff, he violated the provisions of the Home Improvement Act.

C

CUTPA

The plain language of § 20–427(b) and Supreme Court's decision in A. Secondino & Son, Inc. v. LoRicco, 215 Conn. 336, 576 A.2d 464 (1990) leads to conclude that the failure to comply with the HIA “is a per se violation of CUTPA by virtue of § 20–427(b), which provides that any violation of the Home Improvement Act is deemed to be an unfair or deceptive trade practice.”   Id. at 343.

“A party seeking to recover damages under CUTPA must meet two threshold requirements.   First, he must establish that the conduct at issue constitutes an unfair or deceptive trade practice ․ Second, he must present evidence providing the court with a basis for a reasonable estimate of the damages suffered.”  (Internal citations omitted.)  A. Secondino & Son, Inc. v. Loricco, 215 supra.   The court finds that the plaintiff has clearly met the first requirement.  “The ․ undisputed failure to comply with the Home Improvement Act's written contract requirement is a per se violation of CUTPA by virtue of General Statutes § 20–427 as noted above.

The next issue is whether the plaintiff's evidence met the second requirement.  “Under Connecticut law, [t]he ascertainable loss requirement is a [threshold] barrier which limits the class of persons who may bring a CUTPA action seeking either actual damages or equitable relief ․ Whether a party has suffered an ascertainable loss is a factual determination.”  (Internal quotation marks omitted;  internal citations omitted.)  Francis T. Zappone v. Plymouth Commons, 99 Conn.App. 175, 178 (2007).

“[L]oss has been held synonymous with deprivation, detriment, and injury.”   (Internal quotation marks omitted.)  267 Conn. 524, 531, 839 A.2d 1250 (2004).   An ascertainable loss is one 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 ascertainable loss ․ A plaintiff need not prove a specific amount of actual damages in order to make out a prima facie case under CUTPA.”  (Citations omitted, internal quotation marks omitted.)  Service Road Corp. v. Quinn, 241 Conn. 630, 638, 698 A.2d 258 (1997).   The plaintiff must establish, however, that she suffered some ascertainable loss of income or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by the Act. “[T]he [plaintiff] must show that it is more likely than not that [she] suffered ․ a loss as a result of the challenged practice.”  Id., at 644.

In the present case, the plaintiff asserts that the contract in question is limited to exhibit 4, as admitted by the defendant.   The contract lacks the start date, completion date and does not have all of the cancellation provisions required by C.G.S. § 20–427.

The plaintiff in his post-trial brief asserts that the “finding of a violation of Home Improvement Act and C.G.S. § 42–110b of the CUTPA is critical to the plaintiff's ability to secure payment from the Home Improvement Guaranty Fund.”

The defendant counters that the plaintiff has not presented any evidence to support his claim that he suffered damages and losses because of the right of recession clause was not in the written contract.   Also no evidence was offered through testimony or through documents showing losses due to the lack of a written start and finish date in the contract.   There is no evidence that work was not performed in a timely manner or the lack of signature has to do anything with defendant's work.   The defendant claims the plaintiff is invoking the violation of Home Improvement Act in bad faith.

Additionally, the plaintiff 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 his brief asserts that he did not engage in any deceptive or misleading conduct.   As noted above, the court heard the testimony of defendant who was credible, persuasive and his testimony was credited by the court.   However, the court is mindful that violation of HIA is per se a violation of CUTPA, deceptive and improper business practice.

“[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's 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 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).

IV

DAMAGES

The court, having found in favor of the plaintiff on count one, two and three of the complaint, 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).   In this case, the defendant has not filed any special defenses.

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 plaintiff on count one, two and three, the court awards to the plaintiff $1,500.00 the contract price plus $10,380.15 to restore the floor to its original condition.

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 defendant'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 MedvalUSA Health Programs, Inc. v. 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).

V

CONCLUSION

For the foregoing reasons, judgment will enter in favor of the plaintiff on count one, two and three of the complaint for $11,880.15.   Taking into account the circumstances, and harm suffered by the plaintiff, the punitive damages and attorney fees are neither warranted nor awarded.

BY THE COURT,

M. Nawaz Wahla,

FOOTNOTES

FN1. (a) Each person engaged in making home improvements shall (1) exhibit his certificate of registration upon request by any interested party, (2) state in any advertisement the fact that he is registered, and (3) include his registration number in any advertisement. (b) No person shall:  (1) Present or attempt to present, as such person's own, the certificate of another, (2) knowingly give false evidence of a material nature to the commissioner for the purpose of procuring a certificate, (3) represent himself or herself falsely as, or impersonate, a registered home improvement contractor or salesman, (4) use or attempt to use a certificate which has expired or which has been suspended or revoked, (5) offer to make or make any home improvement without having a current certificate of registration under this chapter, (6) represent in any manner that such person's registration constitutes an endorsement of the quality of such person's workmanship or of such person's competency by the commissioner, (7) employ or allow any person to act as a salesman on such person's behalf unless such person is registered as a home improvement salesman, or (8) fail to refund the amount paid for a home improvement within ten days of a written request mailed or delivered to the contractor's last known address, if no substantial portion of the contracted work has been performed at the time of the request and more than thirty days has elapsed since the starting date specified in the written contract, or more than thirty days has elapsed since the date of the contract if such contract does not specify a starting date..  FN1. (a) Each person engaged in making home improvements shall (1) exhibit his certificate of registration upon request by any interested party, (2) state in any advertisement the fact that he is registered, and (3) include his registration number in any advertisement. (b) No person shall:  (1) Present or attempt to present, as such person's own, the certificate of another, (2) knowingly give false evidence of a material nature to the commissioner for the purpose of procuring a certificate, (3) represent himself or herself falsely as, or impersonate, a registered home improvement contractor or salesman, (4) use or attempt to use a certificate which has expired or which has been suspended or revoked, (5) offer to make or make any home improvement without having a current certificate of registration under this chapter, (6) represent in any manner that such person's registration constitutes an endorsement of the quality of such person's workmanship or of such person's competency by the commissioner, (7) employ or allow any person to act as a salesman on such person's behalf unless such person is registered as a home improvement salesman, or (8) fail to refund the amount paid for a home improvement within ten days of a written request mailed or delivered to the contractor's last known address, if no substantial portion of the contracted work has been performed at the time of the request and more than thirty days has elapsed since the starting date specified in the written contract, or more than thirty days has elapsed since the date of the contract if such contract does not specify a starting date.

Wahla, M. Nawaz, J.