6712 | Conn. App. Ct. | Jun 13, 1989
This appeal involves a counterclaim in which the defendant sought payment for materials and services supplied by the defendant
The defendant claims that the trial court erred (1) in rendering judgment for the plaintiffs on the basis of the defendant’s noncompliance with General Statutes § 20-429 (a) and (c) of the Home Improvement Act, when the plaintiffs had not pleaded noncompliance as a special defense, and (2) in finding that the act precluded the defendant from recovery under a theory of quantum meruit.
The defendant’s amended counterclaim consisted of four counts, three of which are involved in this appeal.
Concluding that the defendant failed to comply with General Statutes § 20-429 (a) and (c) of the Home Improvement Act, the trial court rendered judgment for the plaintiffs on the defendant’s counterclaim. In its memorandum of decision, the court did not comment directly on the plaintiffs’ failure specially to allege a violation of the act by the defendant. It did, however, state that the evidence that supported a finding that the act was violated was either introduced by the defendant or not objected to by the defendant. The defendant claims that the court could not render a judgment for the plaintiffs on the basis of noncompliance with the act because it is a special defense and one not encompassed in the plaintiffs’ general denial. The plaintiffs claim that the court could consider the act even though they only alleged a violation of the Home Solicitation Sales Act as a special defense.
In order to determine the effect of the plaintiffs’ failure specially to allege a violation of the act as a defense, we must examine certain facts. On the fourth day of the trial, the court and the plaintiffs’ counsel engaged in a colloquy concerning the act.
On appeal, the defendant argues that the plaintiffs’ failure specially to plead the Home Improvement Act violates Practice Book § 109A which provides in pertinent part: “When any claim made in a complaint, cross complaint, special defense, or other pleading is grounded on a statute, the statute shall be specifically identified by its number.” The plaintiffs contend that Practice Book § 109A provides authority for the rule that a statute may be denominated numerically when it is relied upon in a party’s pleading. We agree with the plaintiff’s view. The word “when” as used in § 109A connotes a condition or a contingency; see Ballentine’s Law Dictionary (3d Ed.); and may be equated with the word “if.” The purpose of § 109A is to allow the defending party to be aware of the precise statute upon which
The question here, however, is not whether a statute was correctly identified by its number but whether a statute should have been specially pleaded as a defense. Section 164 of the Practice Book addresses whether a defense must be specially pleaded. The defendant implicitly relies on § 164 in his brief, and we will address his claim under this section. Section 164 of the Practice Book provides: “No facts may be proved under either a general or special denial except such as show that the plaintiffs statements of fact are untrue. Facts which are consistent with such statements but show, notwithstanding, that he has no cause of action, must be specially alleged. Thus, accord and satisfaction, arbitration and award, coverture, duress, fraud, illegality not apparent on the face of the pleadings, infancy, that the defendant was non compos mentis, payment (even though nonpayment is alleged by the plaintiff), release, the statute of limitations and res judicata must be specially pleaded, while advantage may be taken, under a simple denial, of such matters as the statute of frauds, or title in a third person to what the plaintiff sues upon or alleges to be his own.” The purpose of § 164 is “to apprise the court and opposing counsel of the issues to be tried, not to conceal basic issues until the trial is under way . . . .” DuBose v. Carabetta, 161 Conn. 254" court="Conn." date_filed="1971-06-03" href="https://app.midpage.ai/document/dubose-v-carabetta-1953920?utm_source=webapp" opinion_id="1953920">161 Conn. 254, 261, 287 A.2d 357 (1971).
In his counterclaim, the defendant relied upon facts that supported an oral contract.
The plaintiffs claim that the defendant waived any deficiency in the pleadings by failing to object to evidence admitted under the Home Improvement Act. It is well established that a failure to allege a special defense is waived if evidence relating to that special defense is admitted without objection. Pepe v. New Britain, 203 Conn. 281" court="Conn." date_filed="1987-04-21" href="https://app.midpage.ai/document/pepe-v-city-of-new-britain-7839993?utm_source=webapp" opinion_id="7839993">203 Conn. 281, 286, 524 A.2d 629 (1987); Presnick v. DeRosa, 12 Conn. App. 554" court="Conn. App. Ct." date_filed="1987-11-10" href="https://app.midpage.ai/document/presnick-v-derosa-7852559?utm_source=webapp" opinion_id="7852559">12 Conn. App. 554, 556, 532 A.2d 1309 (1987); see also Lo Sacco v. Young, 210 Conn. 503" court="Conn." date_filed="1989-03-28" href="https://app.midpage.ai/document/lo-sacco-v-young-7840789?utm_source=webapp" opinion_id="7840789">210 Conn. 503, 509, 555 A.2d 986 (1989).
Our scrutiny of the transcript of the proceedings before the trial court indicates that the evidence introduced by the plaintiffs could have been admitted under either the Home Solicitation Sales Act or the Home Improvement Act. The evidence that related solely to the Home Improvement Act, namely, that which established that the writings submitted did not contain the entire agreement of the parties; General Statutes § 20-429 (a); was not objected to by the defendant and was, in part, introduced by the defendant. The defendant, therefore, waived the plaintiffs’ failure to specially plead the Home Improvement Act.
The question remains whether the trial court properly found for the plaintiffs on the defendant’s counterclaim. The court relied entirely on the Home Improvement Act in rendering judgment for the plaintiffs on the defendant’s counterclaim. The court found
“It is well established that appellate courts will not retry facts or pass upon the credibility of witnesses and the weight to be accorded the evidence. ... We are limited in our review to determining whether the judgment of the trial court was clearly erroneous, or if the judgment was contrary to law.” (Citations omitted.) Golfin v. Plymouth Industrial Development Corporation of Connecticut, Inc., 15 Conn. App. 804" court="Conn. App. Ct." date_filed="1988-05-24" href="https://app.midpage.ai/document/golfin-v-plymouth-industrial-development-corp-of-connecticut-inc-7852982?utm_source=webapp" opinion_id="7852982">15 Conn. App. 804, 543 A.2d 287 (1988). The facts found by the trial court were sufficient for the court to have concluded that the agreement between the parties fell within the Home Improvement Act and that the defendant’s counterclaim, relying on an oral contract, was barred by General Statutes § 20-429 (a). The facts found are not clearly erroneous, and the conclusion based upon those facts is legally and logically correct. The trial court did not err, therefore, in finding for the plaintiffs’ on the defendant’s counterclaim.
There is no error.
In this opinion the other judges concurred.
The action was withdrawn as to the named defendant Philip N. DeVries. The word “defendant” as used in this opinion refers to Rex K. Collum, a general contractor.
The plaintiffs brought suit against the defendant, claiming improper and defective completion of a contract for the remodeling of their home, and seeking damages. The court rendered judgment for the defendant on the plaintiffs’ complaint. The plaintiffs have not appealed from that judgment.
The fourth count alleged that the plaintiffs slandered and defamed the reputation, business ability and skill of the defendant.
The following discussion took place between the court and the plaintiffs’ counsel:
“Mr. Febbroriello: You know, again — again, Your Honor, I think I have to object, under the circumstances. You know—
“The Court: Well, you claim now that this being within the Home Improvement Act must be in writing?
“Mr. Febbroriello: That would be my position, Your Honor.” (Emphasis added.)
Practice Book § 302 provides: “If, on the trial of any issue of fact in a civil action tried to the court, the plaintiff has produced his evidence and rested his cause, the defendant may move for judgment of dismissal, and the court may grant such motion, if in its opinion the plaintiff has failed to make out a prima facie case. The defendant may offer evidence in the event the motion is not granted, without having reserved the right to do so and to the same extent as if the motion had not been made.”
The defendant also relied upon facts that supported his theory of recovery under quantum meruit.
General Statutes § 20-429 (the Home Improvement Act) provides in pertinent part: “(a) No home improvement contract shall be valid unless it is in writing and unless it contains the entire agreement between the owner and the contractor.”
General Statutes § 42-135a (the Home Solicitation Sales Act) provides in pertinent part: “No agreement of the buyer in a home solicitation sale shall be effective if it is not signed and dated by the buyer . . . .”
Relying on Caulkins v. Petrillo, 200 Conn. 713" court="Conn." date_filed="1986-08-05" href="https://app.midpage.ai/document/caulkins-v-petrillo-7839739?utm_source=webapp" opinion_id="7839739">200 Conn. 713, 716 n.4, 513 A.2d 43" court="Conn." date_filed="1986-08-05" href="https://app.midpage.ai/document/caulkins-v-petrillo-7839739?utm_source=webapp" opinion_id="7839739">513 A.2d 43 (1986), the plaintiffs contend that the § 20-429 (a) of the Home Improvement Act falls within the statute of frauds exception to Practice Book § 164. Caulkins, however, did not address the pleading problem at issue in this case, but rather addressed whether the Home Improvement Act, General Statutes § 20-429 (a), barred recovery under the doctrine of full performance, a common law exception to the provisions of the statute of frauds. General Statutes § 52-550.
Even if the court had decided the case based on the special defense to the counterclaim of the Home Solicitation Sales Act, the result would have