198 Conn.App. 792
Conn. App. Ct.2020Background:
- In 2012 plaintiff Winakor contracted with Golden Hammer to build a new home but separately hired defendant Savalle (Sept. 1, 2012 written contract, $50,000) to perform site work originally in the GH contract (excavation, septic, ledges, retaining walls, driveway, propane and well work).
- Defendant began work in 2012; the house received final CO in Jan. 2014 but defendant had not completed or properly performed several site tasks; plaintiff terminated defendant in April 2014 and hired Lindo to remediate and finish the work at additional cost.
- Plaintiff sued (May 2015) asserting breach of contract, unjust enrichment, New Home Construction Act, Home Improvement Act violations, and CUTPA; defendant counterclaimed for unpaid work.
- Trial court found breach of contract, concluded defendant violated the Home Improvement Act (form/notice/registration defects), treated that as a per se CUTPA violation, and awarded plaintiff $100,173.32 in damages; later awarded $126,126.91 in attorney’s fees and $2,412.05 in costs.
- On appeal the court (AC 42306) held the site work was part of new home construction and thus exempt from the Home Improvement Act, reversed the Improvement Act and CUTPA-based rulings and the attorney’s fees award, but affirmed the breach of contract judgment and damages.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicability of Home Improvement Act (and therefore CUTPA predicate) | Winakor: site work is a "home improvement" because statute includes improvements to land "designed to be used as a private residence." | Savalle: his site work was integral to new home construction and thus excluded by §20-419(4)(A). | Held: work was part of new home construction and exempt; Improvement Act inapplicable; CUTPA finding reversed. |
| Entitlement to attorney’s fees | Winakor: fees justified by CUTPA violation and are intertwined with breach claim so apportionment impracticable. | Savalle: no contractual fee provision; no CUTPA liability so no statutory fee basis. | Held: no CUTPA liability and no contractual fee clause, so attorney’s fees award vacated. |
| Breach of contract causation and damages | Winakor: testimony and expert evidence (Lindo, others) showed improper techniques (rock backfill, septic and retaining wall failures) caused remedial and replacement costs. | Savalle: causation speculative; other possible intervening causes; insufficient proof. | Held: sufficient evidence supported the trial court’s factual findings on causation and damages; breach judgment and damages affirmed. |
Key Cases Cited
- Rizzo Pool Co. v. Del Grosso, 232 Conn. 666 (Conn. 1995) (tests whether work is "part of" new home construction based on interrelation/temporal connection and effect on habitability).
- Laser Contracting, LLC v. Torrance Family Ltd. Partnership, 108 Conn. App. 222 (Conn. App. 2008) (services that make a modular/new home habitable fall within the new home construction exception).
- Drain Doctor, Inc. v. Lyman, 115 Conn. App. 457 (Conn. App. 2009) (contrast where work repaired an existing home component and thus did not implicate new home exception).
- Hees v. Burke Construction, 290 Conn. 1 (Conn. 2009) (discussing §20-429(a) and legislative history; Improvement Act functions as a shield against contractor claims).
- Scrivani v. Vallombroso, 99 Conn. App. 645 (Conn. App. 2007) (noting that failure to comply with Improvement Act is treated as a per se CUTPA violation via §20-427(c)).