Opinion
No. CV02 0282451-S
March 21, 2005
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #113.50
I PROCEDURAL HISTORY
On October 18, 2002, the plaintiff, As-Pro Management Service, Inc., filed a two-count collections action against the defendants, Dorothy Majors and the Linden Shores Association, Inc. (Linden Shores), respectively, alleging that the defendants failed to pay the plaintiff in full for the repairs it made to Majors' condominium unit in connection with a ruptured water pipe. The unit is located within a condominium development that is administered by Linden Shores.
In its complaint, the plaintiff alleges the following pertinent facts. On or about July 2, 2000, a water pipe located in Majors' condominium unit ruptured, flooding the unit and damaging carpets, floors and walls. The damage was reported to Linden Shores, which, in turn, notified A S Property Management, the company responsible for managing the condominium development. Acting as the agent, servant or employee of Linden Shores, A S Property Management hired the plaintiff to repair Majors' unit. Upon completion of the requested repair work, the plaintiff was paid only a portion of the total amount due. The plaintiff alleges that approximately $50,000 remains unpaid, despite its demands.
On April 12, 2004, Majors, with permission of the court, filed a motion for summary judgment with respect to the claim against her in count one of the complaint. In response, on July 30, 2004, the plaintiff submitted a memorandum of law in opposition to the defendant's motion. The court heard oral argument on the defendant's motion at short calendar on December 6, 2004.
The plaintiff's memorandum in opposition includes argument relating to a prior motion for summary judgment filed by Linden Shores on March 22, 2004, and denied by the court, Frazzini, J., on October 10, 2004. That motion is not relevant here.
II DISCUSSION
Practice Book § 17-49 "provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . ." (Citations omitted; internal quotation marks omitted.) Barrett v. Montesano, 269 Conn. 787, 791-92, 849 A.2d 839 (2004). "[T]he moving party . . . has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue. Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . ." (Citations omitted; internal quotation marks omitted.) Allstate Ins. Co. v. Barron, 269 Conn. 394, 405-06, 848 A.2d 1165 (2004). The court may consider not only the facts presented by the parties' affidavits and exhibits, but also the "inferences which could be reasonably and logically drawn from them . . ." United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 381, 260 A.2d 596 (1969).
As a preliminary matter, the court notes that Majors has submitted the following documentary evidence in support of her motion for summary judgment: (1) an excerpt from the uncertified transcript of the deposition of Stephen Cacioli, (2) an unauthenticated copy of a check made payable in the amount of $26,686.69 to Linden Shores Association, Inc. and Biller associates from the Gulf Insurance Group, dated March 28, 2001, and (3) an excerpt from the certified transcript of the deposition of Dorothy Majors. The plaintiff, in support of its memorandum in opposition, has submitted a signed and notarized affidavit of Richard Lee, the president of As-Pro Management Services, Inc.
In its submission, the plaintiff included with the deposition transcript a certification page, however, the page has not been signed. The deposition transcript, therefore, has not been properly certified.
Generally, "[o]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." (Internal quotation marks omitted.) Great Country Bank v. Pastore, 241 Conn. 423, 436, 696 A.2d 1254 (1997). "[T]he trend in the Superior Courts is to consider certified but not uncertified deposition testimony when ruling on a motion for summary judgment . . . Courts following this trend for the reason that the court cannot consider . . . uncertified deposition testimony for the purposes of [a] motion for summary judgment because the transcript is not independently admissible as evidence and it fails to comply with the requirements of the Practice Book." (Internal quotation marks omitted.) Shapiro v. Hillside Village Condominium Assn., Superior Court, judicial district of New Haven at Meriden, Docket No. CV 00 0274597 (March 7, 2003, Wiese, J.) ( 34 Conn. L. Rptr. 262, 263 n. 1). This court follows this trend. Id. Similarly, "[u]ncertified copies of documents to which no affidavit exists attesting to their authenticity do not constitute proof or documentary evidence." (Internal quotation marks omitted.) Wright v. Infinity Ins. Co., Superior Court, judicial district of Hartford, Docket No. CV 02 0820231 (December 4, 2003, Booth, J.). The deposition transcript of Stephen Cacioli submitted by Majors is not certified. Nor has the copy of the check submitted by Majors been properly authenticated. Accordingly, the court, in ruling on the defendant's motion for summary judgment, will not consider them.
In her motion, Majors argues that the plaintiffs' claim against her is barred by General Statutes § 20-429(a) of the Home Improvement Contractor's Act (HIA) because there was no written agreement between her and the plaintiff. The plaintiff does not contend that HIA does not apply, but counters that Majors cannot assert the defense of the HIA because she was benefitted by the repair work.
The parties do not dispute that the plaintiff completed repairs on Majors' unit in connection with the ruptured water pipe. Under the HIA, General Statutes §§ 20-418 et seq., the term "home improvements" is defined to include "the repair . . . of, or addition to any land or building or that portion thereof which is used or designed to be used as a private residence, dwelling place or residential rental property . . . in which the total cash price for all work agreed upon between the contractor and owner exceeds two hundred dollars." General Statutes § 20-419(4). The term "private residence" is defined in relevant part as "a single-family dwelling, . . . or a unit, common element or limited common element in a condominium, as defined in section 47-68a . . ." General Statutes § 20-419(8). Thus, it is clear that the work performed by the plaintiff on Majors' unit was covered by the HIA.
The HIA requires that agreements between contractors and an owner of a private residence for home improvements must be signed and in writing. General Statutes § 20-429(a). As a general rule, "a contractor who fails to comply with the act is prohibited from recovery under either a breach of contract claim or quasi-contractual methods of recovery, such as unjust enrichment or quantum meruit." MacMillan v. Higgins, 76 Conn.App. 261, 270, 822 A.2d 246, cert. denied, 264 Conn. 907, 826 A.2d 177 (2003); see also Barrett Builders v. Miller, 215 Conn. 316, 322, 576 A.2d 455 (1990).
General Statutes § 20-429(a) provides in relevant part "No home improvement contract shall be valid or enforceable against an owner unless it: (1) Is in writing, (2) is signed by the owner and the contractor, (3) contains the entire agreement between the owner and the contractor, (4) contains the date of the transaction, (5) contains the name and address of the contractor, (6) contains a notice of the owner's cancellation rights in accordance with the provisions of chapter 740, (7) contains a starting date and completion date, and (8) is entered into by a registered salesman or registered contractor."
With respect to the existence of a written contract, Majors testified in her deposition that she never signed a contract and that the plaintiff never asked her to sign a contract. The plaintiff does not dispute this testimony. In fact, Richard Lee, the plaintiff's president, stated in his affidavit that "pursuant to [his] agreement with AS, [he] sent [his] contractors to [the unit] where they cleaned the area and re-built the damaged portion of the condominium." Thus, it is clear that there is no evidence of a written agreement or contract between the plaintiff and Majors. Accordingly, the requirements of § 20-429(a) were not satisfied.
The Supreme Court has recognized two circumstances in which noncompliance with the HIA will not bar a contractor from recovery. In Wright Brothers Builders, Inc. v. Dowling, 247 Conn. 218, 231, 720 A.2d 235 (1998), the Supreme Court determined that minor or technical deviations from the HIA did not bar recovery for a contractor. Here, however, there is no written contract. This is clearly not a minor deviation from the act which would trigger the exception discussed in Wright. Pools By Murphy Sons, Inc. v. Dept. of Consumer Protection, 48 Conn.Sup. 248, 253 841 A.2d 292 (2003) ("The complete absence of a written contract that complies with the act, or at the very least a written and signed memorialization of the changes in the terms and conditions of the original contract, as required by § 20-429(a), cannot be deemed a `minor and highly technical' deviation from the act").
In addition, where the requirements of the § 20-429(a) of the HIA have not been met, a contractor may also recover under a quasi-contractual theory, such as unjust enrichment or quantum meruit upon a showing that the homeowner acted in bad faith. CT Page 4831 Habetz v. Condon, 224 Conn. 231, 237, 618 A.2d 501 (1992). Generally, "[b]ad faith implies both actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one's rights or duties, but by some interested or sinister motive . . . Bad faith means more than mere negligence; it involves a dishonest purpose." (Citation omitted; internal quotation marks omitted.) Id. "The central element giving rise to this exception is the recognition that to allow the homeowner who acted in bad faith to repudiate the contract and hide behind the act would be to allow him to benefit from his own wrong, and indeed encourage him to act thusly." Id.
Although the existence of bad faith is typically a question of fact left to the jury; id., n. 11; in the present case, neither the complaint, nor the affidavit submitted by the plaintiff in opposition to Majors' motion allege or even suggest that Majors has acted in bad faith.
Majors has sustained her burden of demonstrating the absence of any genuine issue of material fact. Because there is no written agreement between the plaintiff and Majors regarding the repairs made to the condominium unit and because there are no allegations of bad faith on the part of Majors, pursuant to the HIA, any agreement is not valid or enforceable against Majors. Accordingly, Majors is entitled to judgment as a matter of law.
III CONCLUSION
For all the reasons stated the defendant's motion for summary judgment is granted. So Ordered.
BY THE COURT
Wiese, Judge