LEE WINAKOR v. VINCENT SAVALLE
(AC 42306)
Connecticut Appellate Court
July 7, 2020
Prescott, Moll and Harper, Js.
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Syllabus
The plaintiff, who had hired the defendant to perform certain home construction site work in conjunction with the construction of a new home, sought to recover damages for breach of contract and for violation of the Connecticut Unfair Trade Practices Act (CUTPA) (
- The trial court improperly determined that the defendant was liable under CUTPA on the basis of its finding that the defendant violated the Home Improvement Act, as the work performed by the defendant was part of new home construction and, thus, fell within the statutory exception contained in
§ 20-419 (4) , and as such, the defendant‘s services did not constitute home improvement and there existed no home improvement contract that the defendant violated under the act: contrary to the plaintiff‘s claim, interpreting the definition of home improvement to include work performed on land regardless of whether there is an existing building would render the clause providing for an exception to new home construction meaningless; furthermore, as the defendant did not violate CUTPA and without any contractual provision on which properly to base an award of attorney‘s fees, there was no basis for the plaintiff‘s recovery of any attorney‘s fees and costs in connection with the alleged CUTPA violation. - The defendant could not prevail on his claim that the trial court improperly rendered judgment in favor of the plaintiff on his breach of contract claim because the trial court‘s findings were clearly erroneous, the plaintiff never having proved beyond reasonable speculation that the defendant‘s conduct caused damage to the plaintiff‘s property; the record provided sufficient evidence to support the trial court‘s finding of a breach of contract claim, the trial court was free to credit the testimony of the plaintiff‘s witnesses in concluding that the defendant‘s conduct caused the damages suffered by the plaintiff, and the defendant‘s argument that there were other possible causes for the plaintiff‘s damages was inconsistent with the standard by this court must review the trial court‘s findings, which is not whether there were other conceivable causes but, rather, whether there was evidence to allow the court to find that the defendant‘s conduct was the cause.
Argued March 3—officially released July 7, 2020
Procedural History
Action to recover damages for breach of contract, and for other relief, brought to the Superior Court in the judicial district of New London and tried to the court, Frechette, J.; judgment in part for the plaintiff, from which the defendant appealed to this court; thereafter, the trial court granted the plaintiff‘s motion for attorney‘s fees, and the defendant amended his appeal. Reversed in part; judgment directed.
Patrick J. Markey, for the appellant (defendant).
Paul M. Geraghty, with whom was Jonathan Friedler, for the appellee (plaintiff).
Opinion
The following facts, as found by the court in its memorandum of decision or as undisputed in the record, and procedural history are relevant to the defendant‘s claims. In 2005, the plaintiff purchased real property located at 217 Legend Wood Road in North Stonington. In 2012, he entered into a contract with Golden Hammer Builders, LLC (Golden Hammer), through its principal, Brian Mawdsley, to construct a new single-family home on the property (GH contract). The GH contract contemplated site work and construction of the home for $425,300 and permitted the plaintiff to find another contractor to perform the site work and to subtract the cost of such work, $55,000, from the total cost.1
In mid-2012, the plaintiff met with the defendant to consider hiring him to perform the site work. After meeting with the plaintiff to discuss the scope of the site work, the defendant submitted a bid for $50,000, which was $5000 less than the $55,000 it would have cost the plaintiff under the GH contract. As a result, the plaintiff hired the defendant to perform the site work. The plaintiff drafted a contract pursuant to which the defendant would purchase materials and provide a variety of services that originally were included in the GH contract.2 The parties subsequently signed a written contract on September 1, 2012, in which the plaintiff agreed to pay the contract price of $50,000 for the site work, and the defendant agreed to complete the contract within one year of the start date. Subsequently, Mawdsley applied, on the plaintiff‘s behalf, for a new home building permit on September 17, 2012, under his new home construction contractor‘s license. The building permit was issued on January 28, 2013.
The defendant began working at the site in September, 2012. The trial court found that “[h]e hammered out a ledge for the foundation, installed a septic tank, constructed retaining walls, began site work, installed a propane tank and gas lines (which he later agreed to do), installed the well electrical line, and partially finished the driveway.” In December, 2013, Golden Hammer finished building the house, and the plaintiff received a partial certificate of occupancy. In January, 2014, a full certificate of occupancy was issued for the house.
At that time, however, the defendant had not yet completed his work in accordance with his contract with the plaintiff. The Planning and Zoning Commission of the Town of North Stonington (town) issued a letter to the plaintiff indicating that the house substantially conformed to its zoning regulations and would be approved for zoning compliance on the conditions that, among other things, “the final grading, landscaping, and soil stabilization be completed within [six] months” and the driveway be widened.
Over time, it became apparent that there were problems associated with the quality of the defendant‘s work.3 Due to the plaintiff‘s dissatisfaction with the defendant‘s workmanship and the defendant‘s failure to complete the project according to schedule, the plaintiff terminated his relationship with the defendant in April, 2014. Subsequently, the plaintiff hired another contractor, Charles Lindo, to remedy the flaws in the work that the defendant had completed and to finish the work that the defendant had failed to complete. Lindo ultimately completed the project at additional cost to the plaintiff. In October, 2014, the town notified the plaintiff that his new residence fully complied with its zoning regulations.
On May 28, 2015, the plaintiff commenced this action against the defendant. The operative amended complaint asserted five separate counts: breach of contract (count one); unjust enrichment (count two); violations of the New Home Construction Contractors Act (New Home Act),
The case was tried before the court, Frechette, J., over nine days, beginning on March 6, 2018. Subsequently, the parties submitted posttrial briefs.
In a memorandum of decision issued on August 21, 2018, the court found that the defendant had breached his contract with the plaintiff by not completing the project on time and by “using improper techniques and methods to [perform] the contract . . . [causing] the plaintiff [to incur] additional expenses to repair and finish the work the defendant was contractually required to do.” Having found a breach of an enforceable contract, the court concluded that the plaintiff was not entitled to recover for unjust enrichment. See Gagne v. Vaccaro, 255 Conn. 390, 401, 766 A.2d 416 (2001) (lack of remedy under contract is precondition for recovery under unjust enrichment theory). The court further determined that the defendant violated the Improvement Act by failing to comply with certain statutory requirements regarding the form of the contract. Specifically, it found that the contract did not contain the name, address, and registration number of the contractor; did not include a notice of the homeowner‘s cancellation rights; did not disclose whether the defendant worked as a sole proprietor; and did not contain the entire agreement by not including, for example, provisions regarding the propane tank installation. Finally, the court concluded that, on the basis of the Improvement Act violations, the defendant committed a per se CUTPA violation. Accordingly, the court rendered judgment in favor of the plaintiff on counts one, three, four, and five of the complaint and awarded the plaintiff compensatory damages totaling $100,173.32. Subsequently, the defendant filed a motion to reargue, challenging, among other things, the court‘s findings regarding the applicability of the Improvement Act, the existence of a contract, and the damages awarded to the plaintiff. The motion was denied, and the defendant‘s appeal followed.
After judgment was rendered, the plaintiff also filed a motion seeking an award of attorney‘s fees on the basis of the CUTPA violation. On August 19, 2019, the court held a hearing on the plaintiff‘s motion for attorney‘s fees. Thereafter, on September 4, 2019, the court issued an order awarding the plaintiff $126,126.91 in attorney‘s fees and $2412.05 in costs. The defendant amended his appeal to challenge the court‘s order regarding attorney‘s fees.
I
We first address the defendant‘s claim that the court improperly rendered judgment in favor of the plaintiff on the CUTPA count on the basis of its finding that the defendant violated the Improvement Act.5 The defendant primarily asserts that
We begin by setting forth the standard of review applicable to this claim.
“CUTPA provides that [n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce. . . . It is well settled that whether a defendant‘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.” (Citation omitted; internal quotation marks omitted.) Landmark Investment Group, LLC v. Chung Family Realty Partnership, LLC, 125 Conn. App. 678, 699, 10 A.3d 61 (2010), cert. denied, 300 Conn. 914, 13 A.3d 1100 (2011). Whether a defendant is subject to CUTPA and its applicability, however, are questions of law. Id., 700. “[If] a question of law is presented, review of the trial court‘s ruling is plenary, and this court must determine whether the trial court‘s conclusions are legally and logically correct, and whether they find support in the facts appearing in the record.” (Internal quotation marks omitted.) Id., 701.
“Our courts have interpreted [General Statutes] § 42-110g (a) to allow recovery only when the party seeking to recover damages meets the following two requirements: First, he must establish that the conduct at issue constitutes an unfair or deceptive trade practice. . . . Second, he must present evidence providing the court with a basis for a reasonable estimate of the damages suffered. . . . Our Supreme Court has stated on several occasions that under the first requirement, the failure to
A
The defendant argues that the plaintiff failed to satisfy the first requirement of proving his CUTPA claim because he failed to establish that the defendant‘s conduct constitutes an unfair or deceptive trade practice. Specifically, he argues that the court‘s determination that he violated the Improvement Act—which served as the sole basis for establishing CUTPA liability—was legally flawed because the Improvement Act is not applicable under the facts of this case, as there was no “home improvement contract” between him and the plaintiff, as contemplated by
Resolution of this claim necessarily involves interpretation of the Improvement Act. The applicability of a statute to a given situation is a matter of statutory construction. “Issues of statutory construction raise questions of law, over which we exercise plenary review. . . . The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case, including the question of whether the language does so apply. . . .”
“When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. . . . General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes.” (Footnote omitted; internal quotation marks omitted.) Western Dermatology Consultants, P.C. v. VitalWorks, Inc., 146 Conn. App. 169, 199, 78 A.3d 167 (2013), aff‘d, 322 Conn. 541, 153 A.3d 574 (2016). “A fundamental tenet of statutory construction is that statutes are to be construed to give effect to the apparent intention of the lawmaking body. . . . Where the words of a statute are clear, the task of a reviewing court is merely to apply the directive of the legislature since where the wording is plain, courts will not speculate as to any supposed intention because the question before a court then is not what the legislature actually intended but what intention it expressed by the words that it used. . . . When two constructions [of a word] are possible, courts will adopt the one which makes the statute effective and workable . . . . [Further, a] statute should be construed so that no word, phrase or clause will be rendered meaningless.” (Citations omitted; internal quotation marks omitted.) Verrastro v. Sivertsen, 188 Conn. 213, 220–21, 448 A.2d 1344 (1982).
The trial court found that the defendant violated the Improvement Act because he did not comply with con- tract requirements prescribed by
Our starting point is the broad language of
The defendant argues, among other things, that his work for the plaintiff does not fall within any of the types of work included within the definition of home improvement and, in fact, falls within the explicit new home construction exemption. In particular, he contends that new home construction is not confined to the physical building itself but can apply to site work that accompanies the building of the new home. The plaintiff, on the other hand, argues that the defendant‘s work was “home improvement” under
Although new home construction is not defined within the Improvement Act, our Supreme Court previously has held that determining whether work constitutes new home construction is dependent on whether the particular work and the construction of the home “were so interrelated, temporally or otherwise, that the [work] constituted an integral part of the construction of a new home . . . .” (Internal quotation marks omitted.) Rizzo Pool Co. v. Del Grosso, 232 Conn. 666, 678, 657 A.2d 1087 (1995) (Rizzo). In determining whether construction work is sufficiently connected to new home construction, this court has considered whether the services furthered the goal of completing the home and whether they were required to make the home habitable. See Laser Contracting, LLC v. Torrance Family Ltd. Partnership, 108 Conn. App. 222, 227-29, 947 A.2d 989 (2008).
Relying primarily on Rizzo and also citing to Drain Doctor, Inc. v. Lyman, 115 Conn. App. 457, 973 A.2d 672 (2009), the trial court determined that the defendant‘s work, which “related to the groundwork and landscaping of the house,” was separate and distinct from the new home construction, thereby constituting home improvement and implicating the [Improvement Act]. The cases cited by the
In Drain Doctor, Inc., the defendant homeowner contracted with the plaintiff corporation to fix a broken sewer line at his home. Drain Doctor, Inc. v. Lyman, supra, 115 Conn. App. 459. The nature of the construction work involved the plaintiff‘s repair to an existing component of a home that had already been built. This is in direct contrast to the present matter where no septic system had existed at the time the defendant began performing his contractual duties.
In Rizzo, the defendants, while their new home was under construction, signed a contract with the plaintiff to install a swimming pool at the new home. Rizzo, supra, 232 Conn. 669. “Although the defendants anticipated that the pool would be installed prior to the completion date of their new home, the contract did not contain either a starting date or a completion date.” Id. After a dispute regarding when to begin construction of the pool ensued, the plaintiff initiated an action for breach of contract. Id., 670. The trial court precluded the defendants from asserting a special defense under the Improvement Act, holding that the Improvement Act was inapplicable to the contract because the construction of the pool was part of the construction of a new home. Id., 672-73.
On appeal in Rizzo, our Supreme Court concluded that the pool installation was not part of the construction of the new home. In particular, it held that the “pool installation contract was completely separate and distinct from the defendants’ home construction contract . . . . Moreover, the documents that comprise the contract for the construction of the swimming pool contain no indication that the pool was to have been installed at any particular stage of the new home construction, or even that it was to have been installed prior to the completion of the new home. In fact, the contract documents make no reference whatsoever to the construction of the defendants’ new home.” (Footnote omitted.) Id., 677-78. Concluding that the pool installation and the new home construction were not “so interrelated, temporally or otherwise, that the installation of the pool constituted an integral part of [t]he construction of a new home under
Key differences exist in the circumstances surrounding the contract between the parties in Rizzo and those in the present case. First, unlike the contract in Rizzo, which was entirely independent from the new home construction contract and did not make reference to the construction of the new residence, the contract between the plaintiff and the defendant in the present case required the defendant to perform various projects originally set forth in the GH contract and, thus, the contract was linked directly to the new home construction contract. Furthermore, unlike in Rizzo, the contract in the present case specified that the defendant was to complete his work within one year of its signing. The fact that the construction of the home was completed in December, 2013, a little more than one year from the date the defendant signed the contract, September, 2012, temporally links the defendant‘s work to the completion of the home and bolsters the argument that it was sufficiently “interrelated, temporally or otherwise” with the home construction. See id., 678.
The most significant consideration, in our view—and the one that most starkly
In Laser Contracting, LLC v. Torrance Family Ltd. Partnership, supra, 108 Conn. App. 227-29, this court directly addressed this consideration by holding that if the contracted services contribute to making a new home habitable that otherwise would be uninhabitable without such services, the work falls within the new home construction exception to the Improvement Act. The principal issue in Laser Contracting, LLC, was whether installing a modular home7 at a new site and in making improvements to the newly installed home were services that fell within the ambit of the Improvement Act‘s new home construction exception, thus rendering the Improvement Act‘s requirements inapplicable to the contract in that case. Id., 227. In that case, this court agreed with the trial court‘s conclusion that “the modular house was uninhabitable and in need of electrical, plumbing and heating services. A new basement, septic system, well, garage and driveway were constructed where none previously had existed. In sum, the project involved the construction of a new home . . . .” Id., 227-28.
Furthermore, in Laser Contracting, LLC, this court held that even the specific “repairs, alterations and upgrades” to the modular home qualified as new home construction under the criteria employed by our Supreme Court in Rizzo. Id., 228-29. This court noted that in Rizzo, “the pool installation contract involved services that were physically separate and distinct from the new home construction, and performed by separate unrelated contractors. . . . In addition, the pool contract contained no indication that the pool was to be installed at any particular stage of the new home construction or even that it was to have been installed prior to the completion of the new home. . . . By contrast, the record in [Laser Contracting, LLC] shows that the plaintiff‘s services . . . were not separate and distinct from the underlying project of reassembling and preparing a modular home for resale at a new location. . . . Unlike the situation in [Rizzo], then, not only was the contractor always the same entity, but the services it performed consistently served the parties’ common goal of completing the house for resale.” Id.
Having employed the analysis set forth in Rizzo and Laser Contracting, LLC, we conclude that the defendant‘s services for the plaintiff were part and parcel of the construction of the plaintiff‘s new home. Although there was more than one contractor involved in the construction work here, the defendant‘s work was originally contemplated as part of the GH contract to construct a new residence and took place simultaneously with Golden Hammer‘s
The inapplicability of the Improvement Act to the parties’ contract in this case is also supported by other definitions within that act, particularly the definition of “owner” as it applies to a home improvement contract.
The plaintiff‘s argument that “home improvement” includes work performed on the land, regardless of whether there is an existing building, would render the very clause providing for an exception to new home construction meaningless. Under the plaintiff‘s logic, all site work related to new home construction would always constitute “home improvement” and, thus, fall within the purview of the Improvement Act. It further would render the definition of “private residence” meaningless, if no dwelling needs to exist for work to constitute home improvement. If different interpretations of a statute are possible, we must adopt the one that creates workable results and does not render any words or phrases meaningless. See Verrastro v. Sivertsen, supra, 188 Conn. 220–21. In the present matter, the defendant‘s proposed interpretation of “home improvement” creates workable results and is supported by our case law; on the contrary, the plaintiff‘s proposed interpretation creates unworkable results.
In light of the foregoing, we conclude that the work performed by the defendant was a part of new home construction and, thus, falls within the statutory exception contained in
The defendant also claims that the court abused its discretion by awarding attorney‘s fees to the plaintiff. Specifically, he argues that no attorney‘s fees should have been awarded because (1) the contract he allegedly breached did not provide for the recovery of attorney‘s fees and (2) he did not violate CUTPA, which permits recovery of attorney‘s fees only on a finding that CUTPA liability exists.10
In contrast, the plaintiff argues that the court did not abuse its discretion in awarding attorney‘s fees not only on the CUTPA claim but also with respect to the breach of contract claim. He contends that because the two claims are inextricably related, it would have been impracticable to segregate and apportion the fees. We agree with the defendant that the court improperly awarded attorney‘s fees to the plaintiff.
Before addressing this claim, we first set forth the relevant legal principles concerning a court‘s award of attorney‘s fees for breach of contract and CUTPA claims. “[U]nder the American rule,11 the plaintiff ordinarily cannot recover attorney‘s fees for breach of contract in the absence of an express provision allowing recovery . . . .” (Footnote in original.) Aurora Loan Services, LLC v. Hirsch, 170 Conn. App. 439, 453, 154 A.3d 1009 (2017). In the present matter, the contract between the plaintiff and the defendant did not expressly authorize the nonbreaching party to recover attorney‘s fees. Accordingly, the plaintiff may not recover attorney‘s fees for his breach of contract claim.
CUTPA, however, specifically allows the court to award legal fees associated with an action brought pursuant to the act. Specifically,
Turning to the present case, the trial court, regarding attorney‘s fees, stated in its memorandum of decision: “Having found a violation of CUTPA here, the court found the plaintiff was entitled to recover attorney‘s fees and costs.” It further concluded that “the plaintiff should be awarded his fees for establishing his breach of contract claims . . . .”
Given our conclusion that the defendant did not violate CUTPA, there is no basis for the plaintiff‘s recovery of any attorney‘s fees in the present case. Having reversed the court‘s judgment on the CUTPA count, and without any contractual provision on which properly to base an award of attorney‘s fees, we accordingly reverse the court‘s judgment awarding the plaintiff $126,126.91 in attorney‘s fees and $2412.05 in costs in connection with the CUTPA violation.
Lastly, the defendant claims that the court improperly rendered judgment in favor of the plaintiff on his breach of contract claim. In particular, the defendant argues that the court‘s finding that his breach of contract caused the plaintiff‘s damages was clearly erroneous. We disagree and, accordingly, affirm the court‘s judgment on the plaintiff‘s breach of contract claim.
As a preliminary matter, the plaintiff contends that the defendant has not adequately challenged the court‘s judgment as to the breach of contract count but, instead, “only appears to [attack] the findings on [a] cursory level.” The defendant responds that, although he did not expressly label them as such, his general arguments that the court‘s determinations were based on speculation and insufficient evidence sufficiently challenge the court‘s findings with respect to causation as it relates to the breach of contract count. Even if we assume for purposes of argument that the defendant had adequately briefed his challenge to the court‘s finding of causation, we still conclude that he is not entitled to relief on this claim.
We begin by setting forth the standard of review and legal principles relevant to this claim. “It is well established that [t]he elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages. . . . Although this court has intimated that causation is an additional element thereof . . . proof of causation more properly is classified as part and parcel of a party‘s claim for breach of contract damages.” (Citations omitted; internal quotation marks omitted.) Meadowbrook Center, Inc. v. Buchman, 149 Conn. App. 177, 186, 90 A.3d 219 (2014). “Under Connecticut law, the causation standard applicable to breach of contract actions asks not whether a defendant‘s conduct was a proximate cause of the plaintiff‘s injuries, but rather whether those injuries were foreseeable to the defendant and naturally and directly resulted from the defendant‘s conduct.” Theodore v. Lifeline Systems Co., 173 Conn. App. 291, 306 n.5, 163 A.3d 654 (2017).
“Causation [is] a question of fact for the [fact finder] to determine . . . and, thus, is governed by the clearly erroneous standard of review.” (Citations omitted; internal quotation marks omitted.) Meadowbrook Center, Inc. v. Buchman, supra, 149 Conn. App. 193. Under this standard, “we overturn a finding of fact when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Naples v. Keystone Building & Development Corp., 295 Conn. 214, 225, 990 A.2d 326 (2010).
Here, the court found that the plaintiff proved all elements of his breach of contract claim. On the issue of damages, the court stated in its memorandum of decision that “the plaintiff provided a detailed account of the damages he sustained due to the defendant‘s poor workmanship,” finding that “[a]s a result [of] the defendant‘s improper work, the plaintiff paid $50,714.46 to finish the defendant‘s work and $60,508.86 for corrective work . . . .”
On appeal, the defendant argues that the court‘s finding of damages is clearly erroneous because the plaintiff never proved beyond speculation that the defendant‘s conduct caused damage to the plaintiff‘s property. He contends that “[t]he intervening period of time between [his] conduct and the appearance of any defective condition, the lack of a definitely identified cause for the defective conditions,
The defendant‘s arguments can be best characterized as an assertion that there were other possible causes for the plaintiff‘s damages. This contention, however, is inconsistent with the standard by which we must review the court‘s finding—it is not whether there are other conceivable causes but, rather, whether there was evidence to allow the court to find that the defendant‘s conduct was the cause. “Proof of a material fact . . . need not be so conclusive as to exclude every other hypothesis. It is sufficient if the evidence produces in the mind of the trier a reasonable belief in the probability of the existence of the material fact.” Rockhill v. Danbury Hospital, 176 Conn. App. 39, 44, 168 A.3d 630 (2017).
The plaintiff, on the other hand, argues that there was adequate evidence to show that the defendant‘s work caused his damages, particularly in the form of testimony from multiple witnesses, including Charles Lindo. We agree.
Lindo served as a fact witness and as an expert witness12 in the areas of site work, excavation, septic installation, and site preparation; he testified as to various problems that arose as a result of, among other things, the defendant‘s repeated use of rocks instead of sand as backfill.13 Other witnesses who testified regarding
“[I]t is the exclusive province of the trier of fact to weigh . . . conflicting evidence, determine the credibility of witnesses and determine whether to accept some, all or none of a witness’ testimony.” Rockhill v. Danbury Hospital, supra, 176 Conn. App. 44. The trial court, as the trier of fact, was free to credit the testimony of the plaintiff‘s witnesses in concluding that the defendant‘s conduct caused the damages suffered by the plaintiff. We conclude, therefore, that the court‘s findings were not clearly erroneous and there was evidence in the record to support the breach of contract judgment rendered in favor of the plaintiff.
The judgment is reversed as to counts three, four, and five, and as to the award of attorney‘s fees, and the case is remanded with direction to render judgment in favor of the defendant on those counts; the judgment is affirmed in all other respects.
In this opinion the other judges concurred.