CEVERN, INC., Appellant, v. Robert FERBISH, et al., Appellees.
No. 93-CV-216.
District of Columbia Court of Appeals.
Argued Dec. 21, 1994. Decided Sept. 21, 1995.
Placing particular emphasis on the adoptee‘s attachment to the foster mother,18 the trial court concluded that the evidence “on balance” favored granting the foster mother‘s adoption petition. If the mother had expressed no preference, that ruling, on this record, may well have been within the acceptable range of the court‘s exercise of discretion. See In re Baby Girl D.S., 600 A.2d at 82. The trial court, however, did not find, and we think from this record, could not find, by clear and convincing evidence, that placement of the child with the great-aunt would be clearly contrary to the child‘s best interest.19 Indeed, the trial court found as fact that the great-aunt was a highly moral and dignified person, with significant experience raising her own children, and who was raising T.J.‘s sister, a well-adjusted twelve-year old.
For all of these reasons we conclude that the trial court erred in rejecting the custodial arrangement selected by the mother. In so concluding, we echo the sentiment expressed in T.J.‘s brief:
T.J. has a family ... that is supportive, that loves him and is willing and able to care for him. In this country, it still means something to have a family with which one shares biological and cultural identity where a child can grow up.
See also In re D.I.S., 494 A.2d at 1324 (under similar circumstances, the trial court granted grandmother‘s adoption petition “because of the extensive support group of relatives available to assist the grandmother“).
VII. Our Resolution of This Appeal
The judgment granting the foster mother‘s adoption petition is therefore reversed, and the case remanded to the trial court to vacate the orders granting adoption and denying custody, and to enter an order granting custody to the child‘s great-aunt.20 See In re L.L., supra, 653 A.2d at 889-90.
Reversed and remanded.
Quentin W. Banks, Washington, DC, for appellees.
Before TERRY, FARRELL and RUIZ, Associate Judges.
Opinion for the court by Associate Judge FARRELL.
Dissenting opinion by Associate Judge RUIZ at p. 24.
FARRELL, Associate Judge:
Once again we confront the situation of a home improvement contractor who accepted progress payments without having obtained the required license to perform work. Once again our decisions compel us to affirm the trial court‘s determination, under the applicable regulations, that the contractor thereby forfeited the right to recover for work performed on either a contract or a quantum meruit theory. Our dissenting colleague invites us down a path we have long since rejected of deciding whether substantial compliance or equitable notions may substitute for the strict obedience to licensing which the legislature has commanded. We decline the invitation.
I.
Cevern, Inc., the appellant, brought an action to establish a mechanic‘s lien on the home of appellees Robert Ferbish and Viola Stanton. Cevern sought to recoup a balance of $10,295.61 it said was owed to it for work performed under a home improvement contract with Thelma Ferbish, also an appellee, who allegedly acted as the owners’ agent. Appellees counterclaimed, alleging that they had expended $43,600 to correct Cevern‘s work.
On August 24, 1992, the scheduled date of trial, counsel for appellees orally moved for summary judgment, asserting that Cevern was not licensed at the time it entered into the home improvement contract. The trial judge granted the motion the next day on the ground that “[Cevern] was not a licensed contractor at the time it received payment on the home improvement contract ... notwithstanding the fact that [Cevern] subsequently received a valid license before the work was completed.” The judge also rejected Cevern‘s claim for recovery in quasi-contract. At appellees’ request, he dismissed without prejudice their counterclaim. On September 3, 1992, Cevern moved for reconsideration of the judgment, which the trial judge denied.
In the trial court, the parties stipulated orally to the following facts:
- Cevern was bonded and insured as of August 8, 1990, as required by District of Columbia regulations;
- Cevern applied for a home improvement contractor license on August 14, 1990;
- The Department of Consumer and Regulatory Affairs approved all of the required certifications for Cevern‘s application on August 20, 1990;
- On August 24, 1990, the investigator for the Department of Consumer and Regulatory Affairs certified that Cevern met all regulatory requirements;
- Cevern and the appellees entered into a home improvement contract on August 27, 1990;
- Cevern received a $7,000 advance payment1 from appellees on August 31, 1990;
- Cevern paid its licensing fee2 and was issued its home improvement license on September 5, 1990.3
Counsel for appellees further represented, and Cevern did not appear to dispute, that appellees paid Cevern an additional $7,000 after September 5, 1990.
In entering judgment for appellees for $14,000 in restitution, the trial judge declared that, under this court‘s decisions, “a contract made in violation of a licensing statute that is designed to protect the public will usually be considered void and unenforceable, and the party violating the statute cannot collect monies due on a quasi-contractual basis.” Therefore, since Cevern accepted an advance payment from appellees on August 31, 1990, in violation of
[T]he purpose of licensing statutes would be frustrated if recovery were permitted for work performed without a license.... [T]h[is] rationale equally applies to situations where the contract is entered before the issuance of a license, or where some of the preliminary work is done before a license is issued, and a balance of the work is completed after the license has issued.... [S]uch a “straddle” arrangement would also run afoul of the underlying rationale for the statutory and regulatory scheme in this area of the law.
II.
In Capital Constr. Co. v. Plaza West Coop. Ass‘n, 604 A.2d 428 (D.C. 1992) (per curiam), this court stated:
In the District of Columbia it is a principle of long standing that an illegal contract, made in violation of a statutory prohibition designed for police or regulatory purposes, is void and confers no right upon the wrongdoer. This rule applies to a breach of
16 DCMR § 800.1 , a prohibitory regulation enacted to protect the pub-lic.... Therefore, we have oft held that receipt of payment by an unlicensed contractor before completion of the work under the contract violates the home improvement regulations and renders the contract void and unenforceable, even on a quasi-contractual basis.
Id. at 429-30 (citations, internal quotation marks, and footnotes omitted). Our decisions rejecting any deviation from this rule span more than a quarter-century. See Marzullo v. Molineaux, 651 A.2d 808, 809-10 & n. 3 (D.C. 1994); Nixon v. Hansford, 584 A.2d 597, 598 (D.C. 1991); Billes v. Bailey, 555 A.2d 460, 462 (D.C. 1989); Woodruff v. McConkey, 524 A.2d 722, 724 n. 1 (D.C. 1987); Erwin v. Craft, 452 A.2d 971, 971-72 (D.C. 1982) (per curiam); Truitt v. Miller, 407 A.2d 1073, 1078 (D.C. 1979); Bathroom Design Inst. v. Parker, 317 A.2d 526, 528 (D.C. 1974); Miller v. Peoples Contractors, Ltd., 257 A.2d 476, 477-78 (D.C. 1969); cf. Saul v. Rowan Heating & Air Conditioning, Inc., 623 A.2d 619, 621 (D.C. 1993) (unlicensed refrigeration and air conditioning contractor); Jackson v. Holder, 495 A.2d 746, 748 (D.C. 1985) (unlicensed master plumber); Family Constr. v. District of Columbia Dep‘t of Consumer & Regulatory Affairs, 484 A.2d 250, 254 (D.C. 1984) (home improvement contractor, not registered as a retail seller, who entered into retail installment contract).
In some, even most, of these cases we have been met with the plea (usually by way of a petition for rehearing en banc) that the nullification of a contract effected by receipt of advance payments alone is harsh and disproportionate, resulting in a windfall to consumers who received good value for their money and then were allowed to keep the money anyway. Our response uniformly has been rejection of this appeal, primarily for two reasons: first, because compliance with the licensing requirement by a qualified contractor is a simple administrative matter; and second, because anything but an unyielding rule would put temptation in the way of unqualified (and unscrupulous) contractors and invite recurrence of the same abuses that underlay enactment of the regulatory scheme. See, e.g., Bathroom Design Inst., 317 A.2d at 529.5 In short, potential unfair applications of the rule at the margins have not persuaded us to sacrifice the benefits of a clear-cut, unmistakable requirement, with equally clear consequences for noncompliance, in this area of consumer protection.
Cevern nevertheless offers two reasons why we should relieve it of the consequences of the rule. First, Cevern argues that it “all but” complied with the regulation by meeting every one of the requirements for licensure except the act of paying for and receiving the license. Second, Cevern eventually—indeed, shortly after being certified by the Department investigator—did obtain the license, and argues that denying it payment for work performed thereafter is a reductio ad absurdum of the rule barring even quasi-contractual recovery. We reject both contentions.
A.
As to the first, Cevern‘s position as one who had met the bonding, insurance and other requirements for licensing, but had not been licensed when it accepted advance payment, distinguishes it only in degree but not kind from others who have felt the full impact of the nullification (“void[ance]“) rule. In Capital Constr. Co., for example, the court required the contractor to disgorge progress payments accepted after its license had lapsed or expired before completion of the work. One assumes, since the contractor still possessed the license at most a few months before it accepted progress payments,6 that at the time it violated the regulation it was in compliance with some if not all of the other licensing requisites; yet this was unavailing. Similarly, in Saul v. Rowan
We do not accept our dissenting colleague‘s distinction between meeting “the regulatory prerequisites for a license” and obtaining the license itself, which she terms a “bare licensing requirement” designed solely to raise revenue. If revenue-raising were the only purpose for issuance of the license as such, much the same end could be achieved by a tax or professional fee. To the contrary, common sense suggests the regulatory importance of the certificate of license itself as the final, formal evidence that the contractor has met the licensing requirements. Others, most particularly but not only the homeowner contracted with, should be able to look to it for simple and sufficient proof of qualification under the regulations, rather than having to inquire of agency officials whether the contractor has substantially (or even wholly) completed the certification process.
Further, even if we agreed that the ultimate step of paying a fee to receive the license is a revenue-raising measure, the purpose of the home improvement licensing requirements as a whole is clearly regulatory. In this regard, the
In deciding whether a party can enforce an agreement in spite of his failure to [obtain a license, to register or to comply with a similar requirement], courts distinguish between requirements that have a regulatory purpose and those that do not. The policy behind a requirement that has a regulatory purpose may be regarded as sufficiently substantial to preclude enforcement, while the policy behind one that is merely designed to raise revenue will not be. In determining whether a measure has a regulatory purpose, a court will consider the entire legislative scheme,7 including any relevant declaration of purpose.
A, an unlicensed plumber, agrees to repair plumbing in B‘s home, for which B promises to pay A $1,000. A state statute, enacted to prevent the public from being victimized by incompetent plumbers and to protect the public health, requires persons doing plumbing to be licensed on the basis of an examination, the posting of a bond, and the payment of a fee, and makes violation a crime. A does the agreed work. A court may decide that the public policy against enforcement of B‘s promise outweighs the interest in its enforcement, and that B‘s promise is unenforceable on grounds of public policy.
The dissent also contends that, where the D.C. Council or an agency to which the Council has delegated authority intends for a professional‘s unlicensed status to bar it from enforcing a contract, the Council or agency expressly so provides. We regard this argument as simply foreclosed by our past decisions. Moreover,
B.
Appellant‘s more sympathetic argument is that, even though acceptance of an advance payment rendered the contract void, Cevern should be able to recover on a theory of unjust enrichment for the work performed after it obtained the license, when its qualification to do the work could no longer be questioned. The court has not yet considered this variation on the theme that quantum meruit should relieve the contractor of at least part of the consequences of accepting payment without a license before completing the job. And rejecting appellant‘s argument does convey somewhat the sense of branding the contractor thereafter with the mark of its original sin. However, the court has been insistent that quantum meruit recovery for performance in return for a promise unenforceable on public policy grounds is forbidden.10 Accepting Cevern‘s argument would run directly across the grain of these decisions.11 Moreover, the trial court aptly de-
The dissent cites Hoffheins v. Heslop, 210 A.2d 841 (D.C. 1965), and Thompson v. Wolfrey, supra note 8, 483 A.2d 636, as support for its view that one who, during contractual performance, obtains a home improvement license may recover quantum meruit for work performed after the licensure. But Hoffheins and Thompson each held only that a person who lacks a home improvement license on the date he enters into a contract, but who accepts no advance payment, may enforce the contract. See Hoffheins, 210 A.2d at 843 (“[The predecessor regulation of
Finally, the dissent invokes two putative exceptions from the rule against quantum meruit recovery in this context. First, it points out analogously that in William J. Davis, Inc. v. Slade, 271 A.2d 412, 416 (D.C. 1970), the court held that a landlord whose contract with a tenant is void because of violations of the housing regulations may still recover the reasonable value of the occupation of the premises. But the relation between Cevern and appellees is that of contractor and customer, not landlord and tenant; and Cevern violated the regulations governing home improvement work, not the housing regulations. This court has never applied Davis beyond the context of the housing code, and—given our consistent denial of recovery for quantum meruit to unlicensed contractors—we are unpersuaded to do so here.
The dissent also believes the general rule should not apply where “denial of restitution would cause a disproportionate forfeiture.” Post at 28 (citing
The judgment of the Superior Court is
Affirmed.
RUIZ, Associate Judge, dissenting:
It is undisputed that at the time Cevern and the homeowners entered into their contract and Cevern accepted an advance payment, Cevern had done everything necessary to obtain its home improvement contractor‘s license, except pay the requisite fee. Most of the work Cevern performed was done after it had obtained its license. Nevertheless, in the name of an “unyielding rule” of its own making, the majority holds that Cevern is entitled to nothing for the effort and resources it expended in performing the contract, even for work performed after it was licensed. To my mind, that unyielding rule not only leads to an unjust result in this case, but also is unnecessary to accomplish the regulatory purposes of the licensing requirement. I believe our job is not to lay down unyielding rules but to decide individual cases on their own merits. Therefore, I respectfully dissent.
I can perceive no consumer protection interest to justify the forfeiture imposed by the majority. On the other hand, I can see a real interest to be protected on the side of the home improvement contractor in this case which, like many other such contractors, is a small business. To make one suffer a forfeiture in a particular case in the name of some theoretical protection for other consumers is precisely the sort of rigidity that gives government regulation a bad name. If the express language of the controlling statute or regulations, or our prior case law, required such result, our hands would be tied. But, notwithstanding the majority‘s assertion to the contrary, that is not the case here. Neither the applicable legislation nor prior case law compel the majority‘s result. Based on the record before us, I would allow Cevern to assert a claim under its contract with the homeowners or for restitution of the value of the benefit it conferred on them.
I.
The majority agrees with the trial court‘s grant of summary judgment against Cevern, the home improvement contractor, because the trial court concluded that a “strict and absolute” approach to the question of voidness was mandated by Miller v. Peoples Contractors, Ltd., 257 A.2d 476, 478 (D.C. 1969), and its progeny. Cevern, Inc. v. Ferbish, 120 Daily Wash.L.Rptr. 2645, 2645 (D.C.Super.Ct. Nov. 18, 1992). I do not believe that we are so compelled. In Miller and subsequent cases, this court has held that an unlicensed home improvement contractor who accepts an advance payment on a contract in violation of
In Miller, the contractor had applied for and been denied a license. 257 A.2d at 476. The contractor had also accepted a $3000 payment from the homeowner before it had completed the work. Id. at 477. The court held that “the Regulations ‘imply a prohibition’ so as ‘to render the prohibited act void‘” and that consequently the contract must be declared void and unenforceable. Id. at 478 (quoting Brown v. Southall Realty Co., 237 A.2d 834, 837 (D.C. 1968) (internal quotation omitted)). This court further found that the contractor “violated the Regulations which were designed for police or
Cevern‘s situation is distinguishable from Miller and its progeny, all of which involved contractors who accepted progress payments and then performed work without a license.2 In the instant case, Cevern had done all that was necessary to qualify for the requisite license, except pay the licensing fee, before it entered into the contract and received any advance payments. Within ten days, Cevern had paid the fee and obtained the license. Cevern performed the bulk of the work
called for by the contract after it had been issued the license.
I believe those are distinctions with a difference. Therefore, I would hold that Cevern‘s contract is not void under our prior decisions as being entered into without the requisite license. Furthermore, even were the contract void, in light of the disproportionate forfeiture Cevern would suffer as the result of merely failing to pay the license fee, I believe that Cevern should be entitled to seek restitution for the work it performed.
II.
Since I do not read our decisions as precluding Cevern from recovering on the contract, I would follow the approach of the Second Restatement of Contracts, which is consistent with our decisions.3 Cf. Ellis v. James V. Hurson Assocs., 565 A.2d 615, 618 (D.C. 1989) (following the Restatement of Contracts in the absence of “any current well-developed doctrine in our jurisdiction“). The restatement states a general rule regarding the unenforceability of contracts on grounds of public policy:
(1) A promise or other term of an agreement is unenforceable on grounds of public policy if legislation provides that it is unenforceable or the interest in its enforcement is clearly outweighed by a public policy against the enforcement of such terms.
(2) In weighing the interest in the enforcement of a term, account is taken of
(a) the parties’ justified expectations,
(b) any forfeiture that would result if enforcement were denied, and
(c) any special public interest in the enforcement of the particular term.
(3) In weighing the public policy against enforcement of a term, account is taken of
(a) the strength of that policy as manifested by legislation or judicial decisions,
(b) the likelihood that a refusal to enforce the term will further that policy,
(c) the seriousness of any misconduct involved and the extent to which it was deliberate, and
(d) the directness of the connection between that misconduct and the term.
Under the Restatement approach, only if the license requirement has a regulatory purpose does the absence of a license make a promise unenforceable. Id., § 181 & cmt. b4; see also Dunn, supra note 3, 104 A.2d at 831-32. In particular, a license requirement that is designed to raise revenue does not preclude enforcement of an agreement made by one who has failed to pay for a required license.
The home improvement regulations implement the Home Improvement Business Bonding Act, Pub.L. No. 86-716, 74 Stat. 815 (Sept. 6, 1960),
The home improvement regulations do not by their terms require that contracts entered into without a license be deemed void in their entirety.6 The majority contends that our prior decisions prevent us from even considering the fact that there is no express provision in the regulations barring recovery. Ante at 23. I disagree. Murphy, supra note 3, which predates the Miller line of cases, makes highly relevant the fact that the home improvement regulations expressly void only contract provisions that are contrary to the regulations, but do not provide for voiding an entire contract:
It should be noted that [one section of the statute regulating real estate brokers] expressly requires that a broker suing for a commission must allege and prove that he was duly licensed. There is a great difference between [that section, and another relied upon by the defendant to bar the broker‘s action for a commission]. One, which covers licenses, prescribes punitive measures which may be invoked by the Real Estate Commission, and also bars a suit for commission by the broker unless he alleges and proves that he was duly licensed. The other, with which we are here concerned, sets out sixteen acts (including offering property for sale without the written consent of the owner) which shall constitute grounds for suspension or
revocation of a license. The section says no more than that. It does not say that a broker who offers property for sale without the owner‘s written consent shall lose his right to a commission. We think we have no right to read such additional punitive provision into the section.
I also do not agree with the majority‘s reliance on legislative inaction since Miller, ante at 22. Our past decisions never dealt with a case such as this in which the consumer protection purpose of the statute had been fully satisfied. There is no reason for the Council to have undertaken to legislate in anticipation of today‘s opinion.
In the present case, the parties stipulated that Cevern had met the regulatory prerequisites for a license before it entered into the home improvement contract. Therefore, it was conceded that at all material times, Cevern was bonded in the amount of $5000, had liability insurance in the amount of $50,000 for personal injury and $10,000 for property damage, had authorized the Mayor to serve as its agent for service of process, and had been determined by the Department of Consumer and Regulatory Affairs to be trustworthy.
This result would not leave the public without a remedy for Cevern‘s failure to pay the required licensing fee. The Act and the regulations provide criminal and civil penalties for any infraction of the regulations.
This court does not lightly infer a forfeiture for failure to comply with licensing requirements. See Beard v. Goodyear Tire & Rubber Co., 587 A.2d 195, 203 (D.C. 1991). In similar contexts, the legislature has specifically provided that there shall be no forfeiture for failure to comply with such bare licensing or registration requirements. See, e.g.,
I agree with the majority‘s acknowledgment that whether Cevern is entitled to restitution is a question of first impression. Ante at 22. Unlike the majority, however, I would hold that even were the contract void, on the record before us Cevern is not barred from seeking restitution for the benefit it conferred on the homeowners while it was licensed. Although the general rule is that restitution is unavailable where a contract is void because of a violation of public policy, there is an exception where the denial of restitution would cause a disproportionate forfeiture.
IV.
In sum, I would hold that on the record before us, the fact that Cevern had not yet been issued a license when it entered into the home improvement contract and accepted an advance payment does not bar Cevern from bringing an action on the contract, or alternatively, for restitution for the work performed after the license was issued. In light of the present posture of the case, I do not address whether Cevern is in fact entitled to contract damages or restitution, or what the measure of its recovery would be; those matters should be decided on remand on the basis of a fuller factual record and in light of legal arguments not yet made in either this court or the trial court.
Notes
No person shall require or accept any payment for a home improvement contract in advance of the full completion of all work required to be performed under the contract, unless that person is licensed as a home improvement contractor or as a licensed salesperson employed by a licensed contractor in accordance with the provisions of this chapter.
Based on what it assumes were the facts in Capital Construction, supra, the majority suggests that Cevern and Capital Construction are in similar positions. In Capital Construction, the contractor entered into the contract, performed part of the contract, and received progress payments while it had a license. 604 A.2d at 429. During the course of its performance, it allowed its license to lapse for unexplained reasons. Id. For all we know, the license may not have been renewed because Capital Construction had been found irresponsible.
After its license lapsed, Capital Construction accepted further progress payments of a disputed amount. Id. at 429, 432. The contractor‘s principal contention on appeal was that the contract did not fall within the regulatory definition of “home improvement” contract. Id. at 430. Hence, the only question presented was whether the contractor could recover under the contract for work performed while not licensed, after accepting advance payments while not licensed. The question of whether the contractor was entitled to restitution for work performed while it was licensed was not raised. In fact, there was apparently no counterclaim for the amount of the progress payments made after the license lapsed. See id. at 429, 432 (reciting that court granted summary judgment in favor of the homeowner, but observing that amount of the progress payments was irrelevant to the case).
In Saul, we did say that the contractor, Rowan, Inc., appeared to meet some of the regulatory requirements. We were also careful, however, to point out that Rowan, Inc. had failed to meet several other requirements for the license and that the facts stated did not establish an adequate substitute:
The requirement that the contracting party obtain the license affords significant protections to the public. First, it assures that no one will engage in the business without supervision by qualified mechanics. Second, the regulations require the contractor to furnish and keep in force a bond, and any person aggrieved by the contractor‘s violation of any law or regulation relating to the licensed business has the right to bring suit against the surety on the bond, in addition to the right to sue the contractor.... There is no similar requirement for one holding a license which only entitles the licensee to supervise or perform the work pursuant to [the regulations]. Thus, we perceive a clear distinction between Mr. Rowan‘s individual license and the type of license which Rowan, Inc. was required to obtain before contracting or performing the work involved. Therefore, Rowan, Inc. did not meet the regulatory licensing requirement and was not entitled to prevail.
Saul, 623 A.2d at 622 (emphasis added) (citations omitted). Thus, the circumstances presented in Saul were substantially different than those in the present case.
No person shall require or accept any payment for a home improvement contract in advance of the full completion of all work required to be performed under the contract, unless that person is licensed as a home improvement contractor or as a licensed salesperson employed by a licensed contractor in accordance with the provisions of this chapter.
4. Section 181 is a special case of the general rule stated by section 178.The majority relies upon illustration 2 to § 181 cmt. c of the Restatement to support its view that failure to pay a licensing fee required by a regulation means that any contract by an unlicensed contractor is void. Ante at 21-22. Its reliance is misplaced for several reasons. First, the illustration does not state the reason for the lack of licensure, only that one of the conditions of licensure is payment of a fee. Moreover, the illustration itself says only that the “court may decide that the public policy against enforcement of B‘s promise [to pay for the work] outweighs the interest in its enforcement,” not that it must. (Emphasis added.)
Furthermore, the reporter‘s notes to the illustration upon which the majority relies cite as contrary analogous authority our decision in Murphy, supra note 3. In Murphy the court declined to forfeit a broker‘s commission because the broker had sold the house without first obtaining a listing in writing. In determining that no forfeiture was required, the court observed that the violation was one for which certain sanctions were provided, but that a bar from recovery of a commission was not among them, although that sanction was specifically available for other violations. Similarly, in the present case, the regulations do not provide for any forfeiture for a contractor‘s failure to pay its licensing fee.
In Marzullo v. Molineaux, 651 A.2d 808, 810 (D.C. 1994), we said, “[T]he sole issue on appeal is whether the trial court erred in ruling that a license was required because the agreement between the parties, to renovate a row house into a two-family dwelling, was a ‘home improvement contract’ within the meaning of the regulations.” The trial court took special note of appellees’ testimony that they specifically desired to hire a home improvement contractor licensed in the District of Columbia, and that they were misled and deceived into believing that appellants were a licensed home improvement contractor. The court subsequently referred to Marzullo‘s misrepresentations as to his status as a licensed contractor as negating any possibility of applying any exception for incidental violations, citing Schloss v. Davis, 213 Md. 119, 131 A.2d 287, 291 (1957). Id. at 809 n. 2.
Therefore, nothing approaching the restitution question presented by Cevern was argued to or decided by the Marzullo court.
In Truitt, supra, the contractor had allegedly relied upon the statement of an employee of the District of Columbia Licensing Division that it did not need a license to do the work it was doing. 407 A.2d at 1076. The contractor did not apply for or receive a license until after the litigation commenced. Id. Thus, Truitt was not in the same shoes as Cevern.
In Bathroom Design, supra, neither the facts nor even the dicta reached the present case. In Bathroom Design, the contractor obtained a bond, but not a license. 317 A.2d at 527. (The opinion does not disclose why the contractor did not obtain a license.) It then failed to waterproof the homeowner‘s basement, as it had agreed, and subsequently became defunct. Id. The homeowners sued the surety on the bond and the trial court awarded them the amount of the contract. Id. at 528. The surety contended that it was liable only for the (lesser) amount necessary to make good on the promise. “The crux of [the surety‘s] argument on measurement of damages is that this is essentially an action for breach of contract. It is not. The contract was void and unenforceable, and because the work was performed in contravention of regulations designed for regulatory purposes in exercise of the police power, there was no equitable base upon which quasi-contractual recovery could be predicated.” Id. (emphasis added) (citations omitted).