DANIEL ONOFRIO ET AL. v. JOSEPH MINERI ET AL.
(AC 43158)
Appellate Court of Connecticut
September 21, 2021
Moll, Alexander and Suarez, Js.
Argued November 30, 2020
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Syllabus
The plaintiffs sought to recover damages from the defendants M, T Co. and G Co. for, inter alia, violations of the Connecticut Unfair Trade Practices Act (
- The trial court properly determined that M was personally liable pursuant to CUTPA, but the court incorrectly determined that T Co. violated CUTPA.
- This court declined to review M and T Co.‘s claim that the trial court‘s conclusion that they violated CUTPA was inconsistent with the judgment the court rendered in their favor on the plaintiffs’ breach of contract, negligent misrepresentation, negligence and fraudulent concealment claims; M and T Co. failed to meaningfully analyze in their brief how the court‘s rendering judgment in their favor on the other claims was necessarily inconsistent with its conclusion that the finding that G Co. violated CUTPA should be applied to them, and, thus, this court deemed the claim abandoned.
- M could not prevail on his claim that the trial court erred in extending CUTPA liability to him on the basis of its finding that G Co. had violated CUTPA; the court found that the evidence established that M effectively controlled the closely held corporations G Co. and T Co. and that he had complete knowledge of the water problems in the basement and the representations or nonrepresentations given to the plaintiffs, and he either directly participated in the wrongful conduct or had the ability to control it.
- The trial court improperly extended to T Co., on the basis of a joint coordination theory, its finding that G Co. violated CUTPA; the court‘s conclusion that Joseph General Contracting, Inc. v. Couto (317 Conn. 565) supported an extension of CUTPA liability to T Co. because it had jointly coordinated its activities with G Co. went beyond the issues considered by our Supreme Court in that case, which had considered only whether liability under CUTPA could be extended to an individual who engaged in unfair or unscrupulous conduct on behalf of a business entity.
- T Co. could not prevail on its claim that the trial court erred in concluding that it was a vendor pursuant to statute (
§ 47-118 (a) ) and, thus, that it violated the implied warranty that the improvement on the plaintiffs’ house was constructed in a workmanlike manner; T Co. was a vendor pursuant to§ 47-116 , as it was engaged in the business of erecting or creating an improvement on real estate, and, pursuant to statute (§ 47-119 ), a vendor who conveys an improvement to an intermediate purchaser to evade liability is liable to a subsequent purchaser, thus, T Co. was liable for a breach of the warranties act notwithstanding the fact that the plaintiffs directly purchased the house from G Co.
Procedural History
Action to recover damages for, inter alia, the defendants’ alleged unfair trade practices, and for other relief, brought to the Superior Court in the judicial district of New Haven where the matter was tried to the court,
Hon. Jon C. Blue, judge trial referee; judgment for the plaintiffs, from which the named defendant et al. appealed to this court. Affirmed in part; reversed in part; judgment directed.
Thomas J. Dembinski, for the appellees (plaintiffs).
Opinion
MOLL, J. In this new home construction dispute, the defendants Joseph Mineri (Mineri) and Timberwood Homes, LLC (Timberwood), appeal from the judgment of the trial court, rendered after a bench trial, in favor of the plaintiffs, Daniel Onofrio and Elsie Onofrio, against (1) Mineri and Timberwood on the plaintiffs’ claim pursuant to the Connecticut Unfair Trade Practices Act (CUTPA),
The trial court found the following facts that are relevant to our resolution of this appeal. “The named defendant . . . Mineri, is one of three brothers who, through their [businesses], work together in the contracting business.” Mineri is a fifty-fifty owner of Timberwood with his brother, Louis. “Timberwood is in the business of building new homes. [Mineri] and one Alan Genn (not a party to this action) are fifty-fifty owners of G & M [Properties, LLC (G & M)]. G & M buys and sells real property. Christopher [Mineri (Christopher)]
The subject property is located at 6 Pine View Drive in North Branford (property). “A previous house at this location was destroyed by fire, leaving a foundation. [Mineri], through one or more of his [businesses] . . . purchased the property with the intention of building a new home on the existing foundation and ‘flipping’ it. Timberwood proceeded to build the home.
“The home was built over the existing foundation. Timberwood also built an adjacent garage, and, in the process of doing so, laid a foundation for the garage. The garage foundation is approximately four feet higher than the existing foundation for the house. In excavating the garage foundation, Christopher (the excavator of the Mineri family) saw water.” Mineri was well aware that Christopher found water. “In addition, in the process of building the home, footings were dug in the existing foundation to hold ‘lolly columns’ to support the home. In digging these footings, [Mineri] saw water. Although it is unclear whether the water in question resulted from a high water table or runoff, [Mineri] was aware that there was a high water table in the neighborhood. In an attempt to resolve the [water] problem, he dug footing drains and waterproofed the foundation. The drains were connected to a cement pit buried in the yard.”
In the fall of 2015, the plaintiffs, looking to buy their dream home, visited the property and decided to pur-chase it. Prior to purchasing the home, the plaintiffs took a walk-through and saw the basement, which was dry at that time. Neither Mineri nor anyone else informed them of the water problems that Mineri and his brother Christopher had observed or of the existence of the high water table in the neighborhood. In the plaintiffs’ view, because they were purchasing a new home, they did not need to employ a home inspector.
The plaintiffs initially executed a contract to purchase the property on December 17, 2015. This contract identified the ” ‘seller’ ” as G & M, but an addendum, identifying repairs that needed to be made, mistakenly identified the ” ‘seller’ ” as Timberwood. On January 15, 2016, after the mistake had been noticed, the plaintiffs executed a substantively identical contract, identifying G & M as the “seller” in the main contract and the addendum. On January 27, 2016, an updated addendum, which identified G & M as the “seller” and which identified additional repairs to be made, was executed. Paragraph 7 of the contract provides: “Buyer represents that Buyer has examined the Real Property and is satisfied with the physical condition subject to the Inspection Contingency if applicable. Neither Seller nor any representative of the Seller or Buyer has made any representation or promise other than those expressly stated herein which Buyer has relied upon in making this Agreement.” On February 4, 2016, the town of North Branford issued a certificate of use and occupancy.
The closing on the plaintiffs’ purchase of the property occurred on February 10, 2016. As part of the closing, the plaintiffs and G & M executed a so-called punch list agreement identifying additional repairs to be made by February 24, 2016, including a repair for ” ‘basement drain pipe leaking.’ ” Within one week of the closing, the plaintiffs saw water in the basement. Daniel Onofrio notified Mineri, and the two met on February 17, 2016. Mineri stated: ” ‘This is my responsibility, and I will take care of this ASAP.’ ” Mineri did not do so, a “lengthy saga of texts” between Daniel Onofrio and the Mineris ensued, and water continued to appear in the basement.
On June 29, 2017, the plaintiffs commenced this action against the defendants. On September 8, 2017, the plaintiffs filed the operative complaint consisting of six counts: (1) breach of contract (count one); (2) negligent misrepresentation (count two); (3) negligence (count three); (4) breach of warranties (count four); (5) fraudulent concealment (count five); and (6) violations of CUTPA (count six). Counts one, two, three, five, and six were directed to Mineri, G & M, and Timberwood. Count four was directed to G & M and Timberwood. The defendants filed an answer and special defenses. The case was tried to the court, Hon. Jon C. Blue, judge trial referee, on March 15, 18 and 19, 2019.
On June 17, 2019, the court issued its memorandum of decision rendering judgment as follows: (1) on count one (breach of contract), in favor of the plaintiffs against G & M in the amount of $22,340 and in favor of Mineri and Timberwood; (2) on count two (negligent misrepresentation), in favor of the plaintiffs against G & M in the amount of $22,340 and in favor of Mineri and Timberwood; (3) on count three (negligence), in favor of the defendants; (4) on count four (breach of warranties act), in favor of the plaintiffs against G & M and Timberwood in the amount of $22,340; (5) on count five (fraudulent concealment), in favor of the defendants; and (6) on count six (CUTPA), in favor of the plaintiffs against the defendants in the amount of $22,340. Although the court declined to award punitive damages under CUTPA, the court awarded costs and reasonable attorney‘s fees pursuant to CUTPA, stating that, by agreement of the parties, the amount of such fees would be addressed at a subsequent hearing. This appeal followed.2 Additional facts and background will be set forth as necessary.
I
Mineri and Timberwood claim that the trial court erred in concluding that they violated CUTPA. Specifically, they contend that the court‘s conclusion that they had violated CUTPA through their ” ‘representations or nonrepresentations’ ” to the plaintiffs cannot stand because it is inconsistent with its finding in their favor on the plaintiffs’ claims for breach of contract, negligent misrepresentation, negligence, and fraudulent concealment. They also contend that the court erred in extending CUTPA liability to them based on its finding that G & M had violated CUTPA. Although Mineri and Timberwood intertwine these arguments in their appellate brief, we distill and address them separately.
A
Mineri and Timberwood argue that the trial court‘s conclusion that they violated CUTPA through their omissions to the plaintiffs is inconsistent with its rendering judgment in their favor on the plaintiffs’
” ‘Both this court and our Supreme Court “repeatedly have stated that [w]e are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . [F]or this court judiciously and efficiently to consider claims of error raised on appeal . . . the parties must clearly and fully set forth their arguments in their briefs. . . . The parties may not merely cite a legal principle without analyzing the relationship between the facts of the case and the law cited.” ’ State v. Buhl, 321 Conn. 688, 724, 138 A.3d 868 (2016); see also Parnoff v. Mooney, 132 Conn. App. 512, 518, 35 A.3d 283 (2011) (‘[i]t is not the role of this court to undertake the legal research and analyze the facts in support of a claim or argument when it has not been briefed adequately . . .‘).” Seaport Capital Partners, LLC v. Speer, 202 Conn. App. 487, 489–90, 246 A.3d 77, cert. denied, 336 Conn. 942, 250 A.3d 40 (2021); see also Practice Book § 67-4.
In the present case, Mineri and Timberwood‘s brief fails to analyze how the court‘s rendering judgment in their favor as to the counts alleging breach of contract, negligent misrepresentation, negligence, and fraudulent concealment is necessarily inconsistent with the court‘s rendering judgment against them as to the count alleging CUTPA violations. That is, Mineri and Timberwood‘s brief contains no meaningful analysis as to how the court‘s treatment of the plaintiffs’ allegations in support of counts one, two, three, and/or five is necessarily inconsistent with its conclusion, vis-à-vis count six, that its finding that G & M violated CUTPA should be applied to each of them. “Adequate briefing is necessary in order to avoid abandoning an issue on appeal. See, e.g., Connecticut Light & Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003).” Seaport Capital Partners, LLC v. Speer, supra, 202 Conn. App. 490. Because we conclude that Mineri and Timberwood have failed to meet their burden with respect to this particular argument, we deem it abandoned.
B
Mineri and Timberwood also contend that the trial court erred in extending CUTPA liability to each of them based on its finding that G & M had violated CUTPA. We disagree as to Mineri and agree as to Timberwood.
By way of background, the court found that the plaintiffs had established a CUTPA violation with respect to G & M. Specifically, the court found that “[t]he acts of nondisclosure by G & M discussed with respect to count one . . . offended public policy as it has been established by the common law. Under all of the circum-stances they were also immoral, oppressive, and unscrupulous. Under well established Connecticut law, the plaintiffs have established a CUTPA violation with respect to G & M. The impact of this finding on the remaining defendants will be discussed . . . .”3 The acts of nondisclosure, as found by the court with respect to count
We turn to the standard of review and the applicable principles of law. “It is well settled that whether a [party‘s] acts constitute . . . deceptive or unfair trade practices under CUTPA, is a question of fact for the trier, to which, on appellate review, we accord our customary deference. . . . [W]here the factual basis of the court‘s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.” (Internal quotation marks omitted.) Pedrini v. Kiltonic, 170 Conn. App. 343, 353, 154 A.3d 1037, cert. denied, 325 Conn. 903, 155 A.3d 1270 (2017).
Our Supreme Court has stated that “[
In Joseph General Contracting, Inc. v. Couto, 317 Conn. 565, 583, 119 A.3d 570 (2015), our Supreme Court considered whether there could be individual liability for a corporate entity‘s violation of CUTPA. Upon analyzing the relevant statutory text, the court first determined that “the plain language of
“An individual‘s status as controlling shareholder or officer in a closely held corporation creates a presumption of the ability to control . . . but is not necessarily dispositive in all cases. . . . On the other hand, an employee who is not an owner or officer may, under some circumstances, possess the requisite authority. . . . Authority to control may be established by evidence of an individual‘s conduct, such as his or her active involvement in business affairs and [participation in] the making of company policy. . . . Evidence that other employees of an entity deferred to the individual also is relevant. . . .
“The knowledge requirement may be established with evidence showing that the individual had actual knowledge of [the entity‘s] material misrepresentations, reckless indifference to the truth or falsity of such misrepre-sentations, or an awareness of a high probability of fraud along with an intentional avoidance of the truth. . . . An individual‘s degree of participation in business affairs is probative of knowledge. . . . [T]he [plaintiff] is not required to show that a defendant intended to defraud consumers in order to hold that individual personally liable. . . . A good faith belief in the truth of a misrepresentation may, however, preclude individual liability under the federal act.
“The requirements of this test will necessarily preclude certain types of liability under CUTPA, namely, liability for merely negligent acts of an individual or the negligent acts of another, subordinate person in service to an entity. In order for any individual liability to attach under CUTPA, someone must knowingly or recklessly engage in unfair or unscrupulous acts, as contemplated by the statute, in the conduct of a trade or business.” (Citations omitted; emphasis in original; footnote omitted; internal quotation marks omitted.) Id., 589–92.
In the present case, with respect to extending CUTPA liability to Mineri on the basis of G & M‘s conduct, the court found that “the evidence establishes that both G & M and Timberwood were closely held corporations and that . . . Mineri effectively controlled both corporations. . . . Mineri also had complete knowledge both of the water issues in the basement in question and of all the representations or nonrepresentations given to the [plaintiffs]. He was personally involved in each of the events (or nonevents) described in this opinion. He ‘either directly participated in the wrongful conduct or, by virtue of his ownership, position, and day-to-day involvement’ in the construction project in question ‘had the ability to control it. Moreover, given the character of the actions at issue, [he] necessarily knew or should have known of their wrongfulness.’ Joseph General Contracting, Inc. v. Couto, [supra, 317 Conn.] 593. . . .
Applying the test adopted by the court in Joseph General Contracting, Inc., described previously in this opinion, and satisfied that the court‘s factual findings are adequately supported by the record, we conclude that the court properly found Mineri personally liable under CUTPA. The court‘s conclusion remained faithful to the principle that an officer of a corporate entity does not incur personal liability for the entity‘s violation of CUTPA merely by virtue of his or her official position. Indeed, the court‘s factual findings support its determination that the test adopted in Joseph General Contracting, Inc.—which requires proof of (1) the entity‘s violation of CUTPA; (2) the individual‘s participation in the acts or practices, or the authority to control them; and (3) the individual‘s knowledge of the wrongdoing at issue—was satisfied. See Joseph General Contracting, Inc. v. Couto, supra, 317 Conn. 589. Accordingly, Min-eri‘s claim on appeal with respect to the judgment against him on count six fails.
With respect to extending CUTPA liability to Timberwood on the basis of G & M‘s conduct, the court stated: “Although the issue of Timberwood‘s CUTPA liability is less directly governed by precedent, the logic of both Joseph General Contracting, Inc., and of CUTPA itself strongly indicates that Timberwood should be held liable here. As mentioned, [the Mineris] own Timberwood on a fifty-fifty basis. [Mineri] effectively controlled both Timberwood and G & M and used them in a common enterprise. CUTPA is intended to protect the rights of consumers such as the [plaintiffs]. It is the express intent of the legislature that CUTPA ‘be remedial and be so construed.’ [
“G & M, [Mineri], and Timberwood jointly coordinated their activities in this case. Those activities . . . violated CUTPA. Law and justice demand that all three defendants be held accountable under CUTPA.”
When the court‘s decision is construed as a whole, it is apparent that the court found Timberwood liable under CUTPA based on a “joint coordination” theory. That is, on the basis of a theory that they jointly coordinated their activities, the court extended to Timberwood its finding that G & M had violated CUTPA. Although the court cited Joseph General Contracting, Inc. v. Couto, supra, 317 Conn. 565, as supporting the foregoing extension of CUTPA liability, such conclusion places weight on that decision that it cannot bear. As explained previously
II
Timberwood also claims that the trial court erred in rendering judgment against it on count four of the operative complaint for violation of the warranties act, specifically, for breach of the implied warranty that the improvement was constructed in a workmanlike manner. See
Whether Timberwood, as the builder of the plaintiffs’ new home, qualifies as a “vendor” for purposes of
Resolving Timberwood‘s claim requires us to interpret various provisions of the warranties act. We begin with the text of
“(b) The implied warranties of subsection (a) of this section shall not apply to any condition that an inspection of the premises would reveal to a reasonably diligent purchaser at the time the contract is signed. . . .
“(d) Neither words in the contract of sale, nor the deed, nor merger of the contract of sale into the deed is effective to exclude or modify any implied warranty; provided, if the contract of sale pertains to an improvement then completed, an implied warranty may be excluded or modified wholly or partially by a written instrument, signed by the purchaser, setting forth in detail the warranty to be excluded or modified, the consent of the purchaser to exclusion or modification, and the terms of the new agreement with respect to it. . . .” (Emphasis added.)
We note at this juncture that the court found that “[t]he home at issue in this case is an ‘improvement.’ It is a ‘newly constructed single family dwelling unit.’ The preexisting foundation was a ‘structure which [was] made a part of [the newly constructed single family dwelling unit] at the time of construction.’ ” The court also found that G & M is a ” ‘vendor,’ ” as defined in
The question before us, which appears to be an issue of first impression, is whether the implied warranties created by
First, the definition of “vendor,” set forth in
In sum, we conclude that the implied warranties created by
The judgment is reversed with respect to the plaintiffs’ CUTPA claim against Timberwood, and the case is remanded with direction to render judgment in favor of Timberwood on that claim; the judgment is affirmed in all other respects.
In this opinion the other judges concurred.
Notes
The plaintiffs further argue that Timberwood‘s violation of the warranties act may also support the imposition of CUTPA liability against it, and they suggest that this court hold that a violation of the warranties act is a per se violation of CUTPA. We reject the notion that the judgment against Timberwood as to CUTPA may be affirmed on these grounds. The trial court did not conclude that Timberwood had violated CUTPA by virtue of its violation of the warranties act. Moreover, our Supreme Court rejected such an argument in Naples v. Keystone Building & Development Corp., 295 Conn. 214, 229 n.17, 990 A.2d 326 (2010), stating: “To the extent that the plaintiffs claim that a violation of the warranties act is a per se CUTPA violation, we disagree.” “[A]s an intermediate appellate court, we are bound by Supreme Court precedent and are unable to modify it . . . .” (Internal quotation marks omitted.) Moutinho v. 500 North Avenue, LLC, 191 Conn. App. 608, 616, 216 A.3d 667, cert. denied, 333 Conn. 928, 218 A.3d 68 (2019).