228 Conn. 574 | Conn. | 1994
This appeal involves the right of a homeowner to recover compensatory damages and attorney’s fees from a home improvement contractor pursuant to: (1) the Connecticut Unfair Trade Practices Act (CUTPA); General Statutes § 42-110a et seq.; for a violation of the registration requirement of General Statutes (Rev. to 1989) § 20-427 (b)
The relevant facts are as follows. The defendant owned a thirty-five acre tract of residential property located in Somers, on which were located two houses, a pasture and a horse barn. In April, 1990, the parties entered into an oral agreement whereby the plaintiff was to grade a portion of the defendant’s property, clear brush from the pasture and spread a pile of horse manure. The plaintiff commenced the work on April 19, 1990. A number of disputes arose concerning the scope of the job, the price of the job and alleged damage to the defendant’s property. After working for three days, the plaintiff left the property without having completed the projects and never returned. Subsequently, the plaintiff sent a bill to the defendant in the amount of $2300 for the work that he had completed. At the bottom of the bill the plaintiff had typed: “U/2% Interest will be charged per month on unpaid balance.” After receiving only $205 from the defendant,
The plaintiff initiated the present action to foreclose the mechanic’s lien and recover the balance allegedly due under the oral agreement. The defendant denied liability on the ground that the plaintiff’s failure to comply with the registration requirement of the HIA invalidated the lien and thereby precluded any recovery. In
The trial court concluded that the services that had been performed by the plaintiff fell within the purview of the HIA, and that the plaintiff had not been “registered as a home improvement contractor at the time the work was performed.” On the basis of our decision in Barrett Builders v. Miller, 215 Conn. 316, 576 A.2d 455 (1990), the trial court concluded that the plaintiff could not recover for any home improvement services rendered because he was not registered as required by the HIA. Accordingly, the trial court rendered judgment for the defendant on the complaint and ordered that the mechanic’s lien be discharged.
The trial court also rejected each count of the defendant’s counterclaim.
On appeal, the defendant first argues, and the plaintiff has conceded, that the trial court could not simultaneously have ruled that the plaintiff’s actions violated the HIA, but did not result in a violation of CUTPA. The defendant correctly observes that the plain language of § 20-427 (b) and our decision in A. Secondino & Son, Inc. v. LoRicco, 215 Conn. 336, 576 A.2d 464 (1990), control the disposition of this case. In A. Secondino & Son, Inc., we concluded that the failure to comply with the HIA “is a per se violation of CUTPA by virtue of General Statutes § 20-427 (b), which provides that any violation of the Home Improvement Act is deemed to be an unfair or deceptive trade practice.” Id., 343. Because the trial court found that the plaintiff’s actions had violated the HIA, it was thus bound to render judgment for the defendant with respect to the CUTPA count of her counterclaim.
The defendant next argues that the trial court improperly rendered judgment for the plaintiff with respect to count five of the defendant’s counterclaim in which she applied for the discharge of the mechanic’s lien pursuant to § 49-51. The defendant argues that, as a result of the trial court’s ruling on the complaint, she had met all of the requirements of § 49-51, and that the trial court, therefore, was compelled to find in her favor on this counterclaim as a matter of law. “Section 49-51 permits any person having an interest in any real estate ‘described in any certificate of lien which lien is invalid but not discharged of record’ to give notice to the lienor to discharge the lien and, if such request is not complied with in thirty days, to bring his complaint to the court which would have jurisdiction of the foreclosure of such lien, if valid, claiming
Although the defendant presented evidence that she had sent the proper notice to the plaintiff, the trial court did not make a factual finding to that effect. Instead, the record reveals that the trial court found for the plaintiff on this count because, as it stated in its memorandum of decision, “the relief sought (discharge of the lien) was hereinbefore ordered.” In light of this statement, it is clear that the trial court did not consider the merits of this claim. It is axiomatic that the trial court must consider and dispose of all of the issues properly raised that are material to the resolution of the case. Joyce v. Templeton, 57 Md. App. 101, 106, 468 A.2d 1369 (1984); Blackstone Valley Gas & Electric Co. v. Rhode Island Transmission Co., 64 R.I. 204, 230, 12 A.2d 739 (1940). On remand, therefore, the trial court must determine whether the plaintiff met the statutory requirements for relief under § 49-51.
The defendant finally claims that if judgment is rendered for her on her counterclaim, then she is entitled, on remand, to damages and attorney’s fees under CUTPA and § 49-51 (a).
The amount of a damage award is a matter peculiarly within the province of the trier of fact, in this case, the trial court. A-G Foods, Inc., v. Pepperidge Farm, Inc., 216 Conn. 200, 218, 579 A.2d 69 (1990); Mather v. Griffin Hospital, 207 Conn. 125, 138, 540 A.2d 666 (1988); Herb v. Kerr, 190 Conn. 136, 139, 459 A.2d 521 (1983). Furthermore, the awarding of attorney’s fees under both CUTPA and § 49-51 (a) is delegated by stat
The judgment is reversed with respect to the counterclaim and the case is remanded for further proceedings in accordance with this opinion.
In this opinion the other justices concurred.
General Statutes (Rev. to 1989) § 20-427 (b) provides: “No person shall: (1) Present or attempt to present, as his own, the certificate of another, (2) knowingly give false evidence of a material nature to the commissioner for the purpose of procuring a certificate, (3) represent himself falsely as, or impersonate, a registered home improvement contractor or salesman, (4) use or attempt to use a certificate which has expired or which has been suspended or revoked, (5) offer to make or make any home improvement without having a current certificate of registration under this chapter, (6) represent in any manner that his registration constitutes an endorsement of the quality of his workmanship or of his competency by the commissioner, (7) employ or allow any person to act as a salesman on his behalf unless such person is registered as a home improvement salesman, or (8) fail to refund the amount paid for a home improvement within ten days of a written request mailed or delivered to the contractor’s last known address, if no substantial portion of the contracted work has been performed at the time of the request and more than thirty days has elapsed since the starting date specified in the written contract. In addition to any other remedy provided for in this chapter, any person who violates any provision of this subsection shall be fined not more than five hundred dollars or imprisoned for not more than one year or be both fined and imprisoned. A violation of any of the provisions of this chapter shall be deemed an unfair or deceptive trade practice under subsection (a) of section 42-110b.”
General Statutes § 49-51 provides: “discharge of invalid lien. (a) Any person having an interest in any real or personal property described in any certificate of lien, which lien is invalid but not discharged of record, may give written notice to the lienor sent to him at his last-known address by registered mail or by certified mail, postage prepaid, return receipt requested, to discharge the lien. Upon receipt of such notice, the lienor shall discharge the lien by sending a release sufficient under section 52-380d, by first class mail, postage prepaid, to the person requesting the discharge. If the lien is not discharged within thirty days of the notice, that person
“(b) When a lien on real property is adjudged invalid or is otherwise discharged by the court, a certified copy of the judgment of invalidity or discharge recorded on the land records of the town where the certificate of lien was filed fully discharges the lien. If such a discharged or invalid lien is a lien filed on personal property pursuant to section 52-355a, a release of lien in the form prescribed by subsection (c) of section 52-380d, certified to by a clerk of the superior court, with reference to and the date of the court order of discharge or invalidity, fully discharges the lien on filing with the secretary of the state.”
The defendant also filed four other special defenses, not at issue in this appeal, denying liability on the grounds that: (1) all payments due the plaintiff had been satisfied in full; (2) no valid contract had ever existed between the parties; (3) the plaintiff had “performed his services in an unsatisfactory and unworkmanlike manner, and failed to fulfill the terms of the ‘agreement’ ”; and (4) the plaintiff’s demands constituted “fraud, unfair and deceptive trade practice and unjust enrichment.”
The counterclaim also included claims for damages for breach of contract, negligence and breach of warranty. These claims are not involved in this appeal.
The defendant remitted the $205 with a note stating that it was her understanding that the price upon which they had agreed was $1700. The note further stated that the $205 reflected the difference between the damage allegedly done by the plaintiff to the defendant’s property and the agreed price.
The trial court concluded that the defendant had failed to carry her burden of proof on her claims that the plaintiff had damaged her property and had not completed the job in a workmanlike manner. Accordingly, the trial court ruled for the plaintiff on the defendant’s counterclaim alleging breach of contract, negligence and breach of warranty. These rulings are not at issue in this appeal.
Both CUTPA and General Statutes § 49-51 provide that damages and attorney’s fees may be awarded at the discretion of the court. Under
In addition, § 49-51 (a) provides that, in conjunction with the discharge of a lien, “[i]f the court is of the opinion that such certificate of lien was filed without just cause, it may allow, in its discretion, damages to any person aggrieved by such failure to discharge, at the rate of one hundred dollars for each week after the expiration of such thirty days, but not exceeding in the whole the sum of five thousand dollars or an amount equal to the loss sustained by such aggrieved person as a result of such failure to discharge the lien, which loss shall include, but not be limited to, a reasonable attorney’s fee, whichever is greater.”