207 Conn.App. 630
Conn. App. Ct.2021Background
- Timberwood Homes, LLC (Timberwood) built a new house on an existing foundation; G & M Properties, LLC (G & M) (owned by Mineri and a partner) sold the completed home to the plaintiffs.
- During excavation and construction Mineri and his brother observed water and a high water table; Mineri installed footing drains and a buried cement pit but did not disclose the condition to the purchasers.
- Plaintiffs closed in February 2016 (punch list noted a leaking basement drain). Water appeared in the basement within a week; Mineri promised repairs but remediation was delayed and incomplete, a sump pump was later installed and only activated after further flooding.
- Plaintiffs sued Mineri, G & M, and Timberwood asserting breach of contract, negligent misrepresentation, negligence, breach of the New Home Warranties Act, fraudulent concealment, and CUTPA violations. The trial court found for plaintiffs on CUTPA (against all defendants) and on the warranties claim (against G & M and Timberwood); other counts were mixed.
- The trial court found Mineri effectively controlled both G & M and Timberwood and knew of the water problem and the nondisclosures; it extended G & M’s CUTPA violation to Mineri and Timberwood (the latter on a “joint coordination” theory).
- On appeal the court affirmed judgment against Mineri under CUTPA and affirmed Timberwood’s liability under the New Home Warranties Act, but reversed the CUTPA judgment as to Timberwood and remanded for entry of judgment in Timberwood’s favor on that claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Mineri and Timberwood violated CUTPA based on nondisclosure/omissions and whether the trial court could extend G & M’s CUTPA violation to them | Plaintiffs: defendants’ representations/nonrepresentations were unfair or deceptive and should be applied to all defendants | Mineri/Timberwood: trial court’s CUTPA finding is inconsistent with its favorable rulings on other counts; G & M’s liability cannot automatically be imputed to them | Mineri: affirmed—trial court properly found him personally liable under the Joseph test (participation/control + knowledge). Timberwood: reversed—trial court improperly extended G & M’s CUTPA finding to Timberwood via a joint coordination theory; defendants’ inconsistency claim was abandoned for inadequate briefing |
| Whether Timberwood (the builder) is a "vendor" under the New Home Warranties Act and thus liable to the original purchaser despite an intermediate seller (G & M) | Plaintiffs: the builder qualifies as a vendor and owes implied warranties to the original purchaser | Timberwood: not a selling vendor and therefore not liable to purchaser under the warranties act | Held: affirmed—Timberwood is a “vendor” as a person engaged in erecting an improvement; §47-119 prevents a builder/vendor from evading implied warranty liability through an intermediate transfer, so Timberwood is liable to the original purchaser |
Key Cases Cited
- Joseph General Contracting, Inc. v. Couto, 317 Conn. 565 (Conn. 2015) (individual liability under CUTPA requires participation or authority to control and knowledge of wrongdoing)
- Harris v. Bradley Memorial Hospital & Health Center, Inc., 296 Conn. 315 (Conn. 2010) (adoption of FTC’s cigarette rule factors for determining CUTPA unfairness)
- Federal Trade Commission v. Colgate-Palmolive Co., 380 U.S. 374 (U.S. 1965) (FTC has broad discretion in fashioning remedies and addressing unfair trade practices)
- Northern Securities Co. v. United States, 193 U.S. 197 (U.S. 1904) (corporate structures cannot be used to evade public-interest regulation)
- Naples v. Keystone Building & Development Corp., 295 Conn. 214 (Conn. 2010) (violation of the warranties act is not a per se CUTPA violation)