Opinion
No. NNI-CV-054003598
June 21, 2007
MEMORANDUM OF DECISION
This litigation arises from disputes over the nature and quality of home improvement services performed by Donald Boucher, D/B/A D D Builders (Boucher), without a written contract, at residential property owned and occupied by Henry McCaffrey and Cheryl McCaffrey (McCaffreys). Boucher claims that the McCaffreys owe him monies due according to the terms of an unwritten contract, and because they have retained the benefit of his work without payment, rendering them unjustly enriched. He argues that the McCaffreys cannot access the protections of Connecticut's Home Improvement Act, General Statutes § 20-418 et seq. (the HIA), because they served as the general contractors for the work performed at their residence. In response, the McCaffreys contend, inter alia, that they are protected by the applicable legislation. They counterclaim that Boucher is liable to them as he performed his home improvement work in a negligent and unprofessional manner, in violation of their oral contract, and that he was unjustly enriched by their payments to him.
The court finds that Boucher cannot meet his burden of proof on the allegations brought in either count one or count two of his complaint, sounding respectively in breach of contract and unjust enrichment. As to those counts, the McCaffreys have met their burden of proving their special defense alleging that Boucher's failure to comply with the HIA bars him from receiving the relief he requests. The court further finds that the McCaffreys have partially met their burden proving counts one, two and three of their counterclaims, sounding in breach of contract, negligence, and unjust enrichment, and thus awards them such money damages as are fair and reasonable under the circumstances of this case.
I. PROCEDURAL HISTORY
On June 7, 2005, Boucher brought a detailed, comprehensive two-count complaint against the McCaffreys, generally alleging that they had failed to make payment due to him for construction services he had rendered at their home, 1317 Barnes Road in Wallingford, Connecticut (the residence). As relief, Boucher claims entitlement to money damages; legal fees and costs; interest; and such other relief as the court deems necessary.
Count One of the complaint is based on breach of contract theories; Count Two is based on claims of unjust enrichment. In Count One, Boucher specifically alleged: that the defendants owned the property located at 1317 Barnes Rd. in Wallingford; that on November 19, 2003, that the McCaffreys, serving as general contractors in charge of making improvements to their property, had engaged Boucher to serve as a sub-contractor to perform particular services for them an agreed-upon price of $56,200; and that Boucher owed the McCaffreys a credit of $4200 related to his provision of siding, that the McCaffreys paid Boucher $25,000, but that the McCaffreys neglected and refused to make payment for the remaining $27,000 due to him. In Count Two, based on unjust enrichment, Boucher specifically alleged that he had performed services at the request and direction of the McCaffreys; that they benefitted from Boucher's provision of these services; that this benefit came to the McCaffreys at Boucher's expense and to his detriment; and that the McCaffreys were thereby unjustly enriched.
In their July 29, 2005 answer to the complaint, the McCaffreys denied the operative allegations of the complaint and filed a special defense asserting that because Boucher had failed to comply with the HIA, his claims are unenforceable under Connecticut law. (#101.) Through this pleading, the McCaffreys submitted three detailed and comprehensive counterclaims against Boucher. On August 25, 2005, Boucher denied each and every allegation contained in the McCaffreys' special defense, and further denied the operative allegations of each of the three counts of the counterclaim.
In Count One of the counterclaim, sounding in negligence, the McCaffreys allege that beginning in November 2003, Boucher performed home improvement services at the property; that Boucher performed these services in an "unprofessional and negligent manner; " and that "[a]s a result of Boucher's negligence," the McCaffreys were damaged, and were required to use and expend money to repair and replace Boucher's work. Counterclaim, #101. In Count Two of the counterclaim, sounding in breach of contract, the McCaffreys allege that Boucher performed these services pursuant to a contract with them; but he to perform the services of a professional and work like manner, thereby breaching his contract; and that as a result of the breach of contract, the McCaffreys have suffered damages including the cost to repair or replace Boucher's work. In Count Three of the counterclaim, sounding in unjust enrichment, the McCaffreys allege that they paid Boucher an amount that exceeded the value of a work performed and that, as a result, Boucher was unjustly enriched.
This matter was tried to the court. Both Boucher and the McCaffreys were well-represented by able, experienced counsel who submitted thorough, well-researched and well-constructed trial briefs in lieu of oral argument (#108, 109). While the counterclaim pleading presents no separate prayer for relief, the McCaffreys presented substantial evidence in support of their damage claims, without formal objection from Boucher. Accordingly, the court has considered this aspect of the McCaffreys' claims in the course of resolving the matter.
In considering this aspect of the evidence, the court notes that Boucher has claimed no surprise or other form of prejudice due to the absence of a formal prayer for relief from the McCaffreys. See Wexler v. DeMaio, 280 Conn. 168, 186 n. 13, 905 A.2d 1196 (2006). As described in footnote 2, the counterclaim clearly asserts the nature and extent of the damages the McCaffreys ostensibly have suffered. See Pettit v. Hampton and Beech, Inc., 101 Conn.App. 502, 510 (2007), ("[T]he modern trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically"). Moreover, in a case such as this, where the evidence so clearly supports the homeowner/counterclaimants' allegations of damages, depriving them of the opportunity for recovery based on a perceived requirement for amendment of the pleadings would offend the lessons of "[o]ur Supreme Court [which] has repeatedly `eschewed applying the law in such a hypertechnical manner so as to elevate form over substance.' " Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 34, 848 A.2d 418 (2004). State v. Smith, 99 Conn.App. 116, 135, 912 A.2d 1080 (2007).
II. FACTUAL FINDINGS
The parties presented abundant testimonial evidence from Donald Boucher, Henry McCaffrey, Cheryl McCaffrey, and Donald Dietle; each witness was subjected to extensive direct and vigorous cross-examination. In addition, the parties proffered a significant quantity of demonstrative evidence. The court utilized the applicable legal standards in considering the totality of this evidence. Upon deliberation, the court finds the following relevant facts to have been proved by a preponderance of the evidence.
The demonstrative evidence included: an exhaustive series of photographs; a number of proposals prepared by Boucher related to construction work at the residence; a set of building, plumbing and electrical permits; a proposal and contract for work at the residence prepared by Donald Dietle of Dietle Construction, LLC; an estimate for work at the residence prepared by Bigfoot Decorative Concrete, Inc.; Boucher's HIA contractor's license; preconstruction drawings; and a letter from the McCaffreys' attorney to Boucher.
"It is an abiding principle of our jurisprudence that `[t]he sifting and weighing of evidence is peculiarly the function of the trier [of fact]. [N]othing in our law is more elementary than that the trier [of fact] is the final judge of the credibility of witnesses and of the weight to be accorded to their testimony. . . The trier has the witnesses before it and is in the position to analyze all the evidence. The trier is free to accept or reject, in whole or in part, the testimony offered by either party.' (Citations omitted; internal quotation marks omitted.) Smith v. Smith, 183 Conn. 121, 123, 438 A.2d 842 (1981). The determination of the credibility of the witnesses is a function of the trial court. . ." Welsch v. Groat, 95 Conn.App. 658, 664, 897 A.2d 710 (2006). "The [fact-finding] function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties. . .'[i]t is the right and the duty of the [trier of fact] to draw reasonable and logical inferences from the evidence.' (Internal quotation marks omitted.) Russell v. Russell, 91 Conn.App. 619, 642, 882 A.2d 98, cert. denied, 276 Conn. 924, 925, 888 A.2d 92 (2005). `In considering the evidence introduced in a case, [triers of fact] are not required to leave common sense at the courtroom door. . . nor are they expected to lay aside matters of common knowledge or their own observations and experience of the affairs of life, but, on the contrary, to apply them to the facts in hand, to the end that their action may be intelligent and their conclusions correct.' (Internal quotation marks omitted.) In re Kristy A., 83 Conn.App. 298, 316, 848 A.2d 1276, cert. denied, 271 Conn. 921, 859 A.2d 579 (2004)." Welsch v. Groat, supra, 95 Conn.App. 666-67. "The probative force of conflicting evidence for the trier to determine. . ."0 (Internal quotation marks omitted; external citation omitted.) Anderson v. Whitten, 100 Conn.App. 730, 740, 918 A.2d 1056 (2007).
Additional facts will be found throughout, as required.
Donald Boucher has long been licensed as home improvement contractor in this state, doing business as D D Carpentry; his license remained in effect through November 30, 2004. (Exhibit 1; Testimony of D.B.) Henry and Cheryl McCaffrey have long occupied the residence at issue. Neither Henry nor Cheryl McCaffrey has building or construction skills, although Henry McCaffrey is capable of installing some electrical wiring. (Testimony of H.M., C.M.) During the fall of 2003, the McCaffreys desired to improve their residence, and engaged Boucher to perform a substantial portion of the related construction work. (Testimony of D.B., C.M.)
Cheryl McCaffrey's father, who formerly resided at 1317 Barnes Rd., has significant knowledge of the building trades. (Testimony of C.M.)
The parties entered into an oral contract calling for Boucher to perform home improvement construction work at the residence. There were no express, specified terms to this oral contract. At trial, neither Boucher nor the McCaffreys provided sufficient evidence at trial from which the court could reasonably and logically determine the particulars of the parties' expectations with regard to design, choice of materials, or even schedules for completion of the anticipated home improvement work. While Boucher prepared and presented the McCaffreys with several rough sketches intended to represent the general nature of the work he intended to perform, these designs lack detail and specificity. Some of the oral contract's general terms were reflected in written proposals prepared by Boucher and delivered to the McCaffreys during the fall of 2003; those proposals were signed by the contractor but remained unsigned by the homeowners. The proposals remained in the homeowners' possession up until the time of trial. (Exhibits 2, 3, 5, 23, 24, 25; Testimony of D.B., H.M., C.M.)
Taken as a whole, the evidence permits the inference of some general terms related to the parties' oral contract, including some aspects of the agreed-upon consideration. The McCaffreys originally promised to pay Boucher $56,200 for the entirety of his unspecified work at the residence; because Boucher extended the homeowners a $4,200 credit related to siding that others would install, the parties subsequently agreed to a lesser payment of $52,000 upon completion of the construction. In exchange, Boucher promised to build the McCaffreys a 20 x 30-square foot sunroom addition with an unspecified ceiling height, and to provide the labor and materials related to the framing, roofing, siding, insulation, sheet rocking, windows, doors and trim for this structure. Boucher further promised to build the McCaffreys a 25 x 36-square foot addition to an existing detached two-bay garage at the residence, and to provide the framing, roofing, windows, door, and roofing related to the enlarged structure. Boucher also promised to modify an entryway to the basement at the residence. (Exhibits 2, 3, 5, 23, 24, 25; Testimony of D.B., H.M., C.M.)
Although originally contemplated by the parties, the siding aspect of Boucher's work of the garage was subsequently eliminated from their oral contact. This led to the $4,200 credit against the price proposed for Boucher's overall construction, as previously mentioned. (Testimony of D.B., C.M.)
The McCaffreys made some payments to Boucher. On September 26, 2003, they paid $5,000 toward construction of the sunroom addition; they paid another $5,000 for like purpose on September 29, 2003. On October 17, 2003, the McCaffreys paid $10,000 toward construction of the garage; they paid $5,000 for like purpose on October 27, 2003. On November 19, 2003, Boucher acknowledged having received $25,000 from the homeowners; the contractor then claimed that the McCaffreys owed him a total of $27,000 as the "balance due" for his work. (Exhibits 2, 3, 4, 5; Testimony of C.M.)
The McCaffreys paid the entirety of the $25,000 to Boucher in the form of $100 bills. (Testimony of C.M.)
Boucher never provided the homeowners with a written contract designating the proposed nature and extent of his construction services, the start or end dates, or the other details required by the HIA for such agreements. (Testimony of D.B., H.M., C.M.) However, each of Boucher's written proposals for improvements at the residence included the following language: "All work to be completed in a workmanlike manner according to standard practices." (Exhibits 2, 3, 4, 5.) Even in the absence of specific, written descriptions of the construction work he intended to perform at the residence, then, the presence of this language upon Boucher's proposals impels the inference that the contractor had agreed to accept $52,000.00 from the McCaffreys for professional services that were "completed in a workmanlike manner according to standard practices." (Exhibits 2, 3, 4, 5.) Furthermore, even in the absence of specific, written descriptions of the construction work they intended Boucher to perform at the residence, the language upon the proposal forms supports the further inference that the McCaffreys, as homeowners, rightfully expected that the contractor's work would meet the stated standard. (Exhibits 2, 3, 4, 5.)
The requirements of the HIA are discussed in Part III. A.1., below.
Boucher commenced and continued his work at the residence during the fall of 2003. The homeowners played a limited role in the construction process. Cheryl McCaffrey attended zoning board meetings, securing requisite variances, and, at Boucher's express suggestion, procured construction permits from the town of Wallingford. (Testimony of D.B., C.M.) Boucher referred the McCaffreys to an individual whom they could pay to perform electrical work for the sunroom and garage additions; as this individual was not a licensed electrician, Henry McCaffrey and a friend performed this work instead. (Exhibit AA; Testimony of H.M., C.M.)
On August 21, 2003, Cheryl McCaffrey made certain representations to the town's building department regarding the nature of materials to be used and the type of construction planned for the sunroom addition, thereby procuring a building permit for that project. (Exhibit 6.) On September 25, 2003, she made certain representations to that building department regarding the nature of materials to be used in construction planned for the garage addition, thereby procuring a building permit for that project. (Exhibit 7.) On September 8, 2003, she procured a plumbing permit (Exhibit 8); on October 9, 2003, she procured an electrical permit (Exhibit 9); and on December 4, 2003, she procured a second electrical permit (Exhibit 10). On the plumbing and electrical permits, Cheryl McCaffrey entered the name of Henry McCaffrey and the address at the residence into the space allocated for "contractor's name and address" upon the form. However, upon each form, she further identified the "Homeowner" or "H/O" in the space upon the form allotted for entry of the "Contractor's license number" or "license number." (Exhibits 8, 9, 10.)
During the course of the construction process, the relationship between the parties became discordant and deteriorated. The McCaffreys found Boucher unwilling or unable to follow their oral instructions related to expectations for nature, extent and schedule for the home improvement work. The McCaffreys asked for the work to be completed by a particular date in the fall of 2003, but Boucher did not comply. The McCaffreys had expected Boucher to provide windows for the sunroom addition, but he required the homeowners to purchase these items and thereby to incur an additional cost of $820.44. The McCaffreys objected to Boucher's failure to remove the old windows and door within the exterior wall that would form a wall of the sunroom addition; nonetheless, the builder sheet rocked over one window, and left others in place, partially visible. The McCaffreys complained to Boucher about leaving construction areas unprotected and open to the elements, so that water entered the cellar. In November 2003, the McCaffreys noticed a "bubbling" or "buckling" condition of the plywood walls that Boucher had erected on the back part of the garage addition. The McCaffreys informed Boucher of this condition, and he unsuccessfully attempted to remedy the condition by installing cross-members to pull the plywood into place. When Henry McCaffrey advised Boucher that these conditions persisted, Boucher removed and replaced some of the buckled plywood. Boucher performed this work in mid-November 2003; after this, the contractor never returned to the construction site. (Exhibits B, C, D, F; Testimony of D.B., H.M., C.M.)
Although Boucher then considered his work to have been essentially completed, the homeowners disagreed, finding many areas of his construction to be incomplete or inadequate in quality. As Boucher had left the work site and did not return, the McCaffreys refused to make the additional $27,000 payment the builder requested. (Exhibit 21; Testimony of D.B., C.M.)
Prior to his departure from the work site, in addition to communicating about the plywood-related conditions noted above, the McCaffreys had advised Boucher of the other work that they determined to have been left uncompleted or improperly completed with regard to the sunroom, basement entry and garage projects. The McCaffreys complained that Boucher had designed and constructed the garage addition in such a manner that its front was not positioned flush or lined up to match the front of the original garage, leaving a 1 1/2" differential between the old and new facades. (Exhibit 11; Testimony of C.M.) The McCaffreys complained that Boucher's design and construction of the garage roof allowed ice and water leaks to occur and to damage the addition itself. (Exhibits F, G, H, I, J, K, L, M, N, Q, R, S; Testimony of C.M.) The homeowners complained that Boucher's design and construction techniques left the floor of the sunroom addition at a level different from the floor of the house, even though they had requested him to eliminate any need for a step down when entering the new structure. They complained that Boucher's design and construction techniques for the sunroom addition's subfloor had caused the overlaid tile floor to crack. They complained that Boucher's design and construction techniques left rake overhangs marring the exterior juncture of the addition and the existing house. They complained that Boucher's installation techniques for sheetrock in the sunroom addition caused plaster to pop off in the area where fasteners were used. They complained that Boucher's design and construction techniques left too little headroom at the ceiling of the sunroom, and allowed rainwater to leak into and damage the addition. They complained that Boucher had failed to insulate the sunroom floor notwithstanding his agreement to do so. The McCaffreys also complained that Boucher had failed to follow their instructions for construction of the cellar entranceway. (Exhibits 14, B, CC, DD, N, O, P, T, U, V, W, X, Y, Z; Testimony of C.M.)
At trial, Cheryl McCaffrey provided exhaustive testimony, largely without objection, concerning the conditions that she observed and complained of at the residence during and following Boucher's construction work at that location. For clarity, the court has found facts related to this aspect of her testimony. However, as discussed in Part IV. A., below, the homeowner's observations and complaints concerning Boucher's work are not sufficient to support the counterclaims based on negligence, breach of contract or unjust enrichment; expert testimony is a requisite to proof of those claims. Accordingly, the court finds this aspect of the homeowner's testimony relevant to the only extent that it presents this witness's observations of, but not opinions concerning the quality of, the construction work in question. See Vanliner Co v. Fay, 98 Conn.App. 125, 135-36, 907 A.2d 1220 (2006); see also Pettit v. Hampton and Beech, Inc., supra, 101 Conn.App. 514-15.
Boucher had engaged the services of other construction personnel to assist in his work at the residence. Acting for or on behalf of Boucher, some of these persons walked upon and caused damage to a cement area in front of the garage that had been newly poured; permanent imprints of the bottoms of rugged-soled shoes were thus left to mar the new cement installation. (Exhibit FF; Testimony of C.M.) Boucher himself caused permanent, scarifying indentations and damage to a recently-poured and installed hand-stamped cement sidewalk at the residence when he folded up scrap aluminum siding while standing on that area, pressing the aluminum with his feet to compact it during the folding process, and thereby permanently scarifying the new pathway. (Exhibit EE; Testimony of C.M.) On May 19, 2004, the McCaffreys received an estimate from Bigfoot Decorative Concrete, Inc. for removal of the previously poured and installed concrete work, and repouring and installation of new concrete to replace the damaged areas. The cost for this replacement work is $3,950. (Exhibit GG; Testimony of C.M.)
In December 2003, Cheryl McCaffrey contacted Donald Dietle (Dietle) and requested that he examine the siding work that had been performed at the residence. (Testimony of C.M., D.D.) Dietle is a construction expert who has accumulated twenty-three years of hands-on experience in the residential building business, starting as a carpenter, working as a foreman and as a supervisor, then operating his own building company. A graduate of a two-year post-high school architectural drafting program, he has been involved in the construction of several thousand residential projects as a subcontractor, contractor, and in sales of new homes. (Testimony of D.D.) Cheryl McCaffrey told Dietle she wanted him to perform to remedy conditions that Boucher had caused. On December 8, 2003, Dietle presented a written proposal for this work and then performed some construction at the residence. (Exhibit 22; Testimony of C.M., D.D.)
The proposal described initial specifications and cost estimates for repair and remediation of multiple aspects work that Boucher had previously performed upon the interior and exterior of the home and garage at 1317 Barnes Rd. At the time, his proposal for the interior repairs in the sunroom addition, including: the cost of removing the kitchen windows and trimming them with pine to create one opening; removing the living room window and similarly trimming it in pine; removing the back window and trimming it in pine with shelves and a finished back; and retrimming the kitchen door; was estimated to total $1060. For the exterior repairs, the cost of removing the plywood installed by Boucher from the walls of the garage and replacing it with new plywood; building out the front of the garage to line up with the existing garage construction; and applying "Tyvek or equal" to the new plywood was estimated to total $2000. (Exhibit 22.)
III. BOUCHER'S COMPLAINT A. COUNT ONE: BREACH OF CONTRACT CLAIMS AND THE EFFECT OF THE SPECIAL DEFENSE
In Count One, Boucher alleges that the McCaffreys engaged him "as a sub-contractor to perform specific services" for them, and that they failed to comply with their contractual obligation to pay $27,000.00 that remains "due and payable" to him. As a special defense, the McCaffreys cite Boucher's failure to comply with the requirements of the HIA, asserting that this legislation renders the builder's contract claim invalid and unenforceable. (#101.) "The fundamental purpose of a special defense, like other pleadings, is to apprise the court and opposing counsel of the issues to be tried, so that basic issues are not concealed until the trial is underway." (External citations omitted; emphasis added.) Almada v. Wausau Business Co., 274 Conn. 449, 456, 876 A.2d 535 (2005). In effect, "[a] special defense generally permits a defendant to prove that, notwithstanding any negligence on their part, he or she should not be held liable as a matter of law." Lamothe v. Midstate Medical Center et al., Superior Court, judicial district of New Haven at Meriden, Docket No. CV 05 4002893 (October 4, 2006, M. Taylor, J.) [42 Conn. L. Rptr. 139]. The party alleging a special defense bears the burden of proving the claims thus raised. Zhang v. Omnipoint Communications Enterprises, Inc., 272 Conn. 627, 645-46, 866 A.2d 588 (2005); McManus v. Roggi, 78 Conn.App. 288, 301, 829 A.2d 1275 (2003). The court finds that this special defense defeats Count One of Boucher's complaint. As the McCaffreys have met their burden of proving the special defense, the court resolves Count One of Boucher's complaint in their favor.
1. REQUIREMENT OF A WRITTEN HOME IMPROVEMENT CONTRACT
The facts found in Part II. clearly establish that Boucher and the McCaffreys never entered into a written contract for the provision of home improvement services at the residence. Such a written agreement was a critical, albeit absent, prerequisite for Boucher's breach of contract claims against the homeowners. Contracts for home improvement are governed by General Statutes § 20-429(a) of the HIA, which provides that " [n]o 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 and the contractor's registration number, (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. Each change in the terms and conditions of a contract shall be in writing and shall be signed by the owner and contractor, except that the commissioner may, by regulation, dispense with the necessity for complying with the requirement that each change in a home improvement contract shall be in writing and signed by the owner and contractor." (Emphasis added.) Even if the court determines that it would be inequitable to deny recovery to a home improvement contractor who has provided construction services, § CT Page 11159 20-429(f) only allows an action to be brought against a homeowner for "recovery of payment for work performed based on the reasonable value of services which were requested by the owner" in cases where the contractor has complied with the obligation for provision of a written contract, appropriately signed by all parties, which contains the requisite notice of cancellation, sets forth a start and end date, and is entered into by a registered contractor, as required by § 20-429(a)(1), (2), (6), (7) and (8). Notwithstanding the effectiveness of Boucher's license, as found in Part II., the requisite written contract, signatures of the owners and other statutory criteria are not present in this case, so that even § 20-429(f) cannot provide the builder with relief he requests.
General Statutes § 20-419(5) defines a "home improvement contract" as "an agreement between a contractor and an owner for the performance of a home improvement." General Statutes § 20-419(6) provides the following definition of an "owner": " `Owner' means a person who owns or resides in a private residence and includes any agent thereof. An owner of a private residence shall not be required to reside in such residence to be deemed an owner under this subdivision." General Statutes § 20-419(3) provides the following definition of a "contractor": " `Contractor' means any person who owns and operates a home improvement business or who undertakes, offers to undertake or agrees to perform any home improvement. `Contractor' does not include a person for whom the total cash price of all of his home improvement contracts with all of his customers does not exceed one thousand dollars during any period of twelve consecutive months."
General Statutes § 20-429(f) provides as follows: "Nothing in this section shall preclude a contractor who has complied with subdivisions (1), (2), (6), (7) and (8) or subsection (a) of this section from the recovery of payment for work performed based on the reasonable value of services which were requested by the owner, provided the court determines that it would be inequitable to deny such recovery."
"The HIA is a remedial statute that was enacted for the purpose of providing the public with a form of consumer protection against unscrupulous home improvement contractors. . . The aim of the statute is to promote understanding on the part of consumers with respect to the terms of home improvement contracts and their right to cancel such contracts so as to allow them to make informed decisions when purchasing home improvement services. . . 22 S. Proc., Plaintiff-tenant. 17, 1979 Sess., p. 5797, remarks of Senator Audrey P. Beck." (Citations omitted.) Wright Bros. Builders, Inc. v. Dowling, 247 Conn. 218, 231, 720 A.2d 235 (1998). "[C]ompliance with the act is mandatory in order for a contractor to recover on a home improvement contract. . . Nevertheless. . . that does not mean, however, that the noncomplying contractor is not entitled to payment when the homeowner, for whose benefit the act's prophylactic provisions were enacted, does not seek the protection of the act, and agrees that the contractor has done the work and should be paid. The act is for the benefit of the consumer, and compliance with its terms may be waived by the consumer, either explicitly or by nonassertion." (Citations omitted; internal quotation marks omitted.) Gagne v. Vaccaro, 255 Conn. 390, 410, 766 A.2d 416 (2001).
In this case, however, the homeowners have not waived their rights as established by the HIA but, in fact, rely upon that legislation to establish their special defense to Boucher's attempted breach of contract action. Under the HIA, in the absence of a written agreement for his provision of construction services at this residential property, Boucher has no right or privilege permitting him to prevail in such an action against the homeowners. "In construing § 20-429(a), [the Supreme Court] consistently has held that the requirements of that section are mandatory and that a contractor is precluded from enforcing a home improvement contract that does not satisfy its requirements. See Rizzo Pool Co. v. Del Grosso, 232 Conn. 666, 680, 657 A.2d 1087 (1995) (enforcement precluded because contract did not provide commencement and completion dates); Wadia Enterprises, Inc. v. Hirschfeld, 224 Conn. 240, 247-48, 618 A.2d 506 (1992) (enforcement precluded because contract did not provide notice of homeowners' cancellation rights); Habetz v. Condon, 224 Conn. 231, 235-36, 618 A.2d 501 (1992) (same); Sidney v. DeVries, 215 Conn. 350, 354, 575 A.2d 228 (1990) (enforcement precluded because no complete written agreement existed); Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 349-50, 576 A.2d 149 (1990) (same); A. Secondino Son, Inc. v. LoRicco, 215 Conn. 336, 340, 576 A.2d 464 (1990) (same); Barrett Builders v. Miller, 215 Conn. 316, 328, 576 A.2d 455 (1990) (enforcement precluded because contract did not contain entire agreement); Caulkins v. Petrillo, 200 Conn. 713, 717, 513 A.2d 43 (1986) (enforcement precluded because no written agreement existed)." (Emphasis added.) Wright Bros. Builders, Inc. v. Dowling, supra, 247 Conn. 228. "[I]n concluding that the requirements of § 20-429(a) are mandatory, [the Supreme Court] ha[s] twice used `strict compliance' language; see Rizzo Pool Co. v. Del Grosso, supra, 232 Conn. 680; Barrett Builders v. Miller, supra, 215 Conn. 326." Id., 229.
Anticipating Boucher's claim that the parties had entered into an oral contract for provision of construction services, our Supreme Court has "observed that the remedial purposes of the [HIA] legislation would be significantly undermined if oral contracts could be enforced" in actions brought by a home improvement contractor against a consumer. Wright Bros. Builders, Inc. v. Dowling, supra, 247 Conn. 229. "In Barrett Builders v. Miller, supra, 215 Conn. 320-22, [the Supreme Court] declined to allow [even] quasi-contractual recovery with respect to work performed under a home improvement contract that did not comply with several of the requirements of § 20-429 in effect at that time, [as] [t]he contract did not contain the entire agreement between the contractor and the homeowner, did not contain a starting date or a date of completion, and did not contain any notice of the homeowner's cancellation rights." Id. Thus, absent the existence of a valid written contract as contemplated by the HIA, Boucher cannot prevail against the McCaffreys on Count One of his complaint.
2. MCCAFFREYS' STATUS AS HOMEOWNERS
As part of his claim that he is entitled to contract damages in this case, Boucher has argued, however, that the McCaffreys are not protected by the HIA. He asserts that because they served as their own general contractors in the construction process at the residence, the McCaffreys cannot rely upon his failure to comply with the act's terms as a special defense. Notwithstanding the vigor of Boucher's claim, the court declines to accept this aspect of his argument. Overall, the case presents insufficient legal or factual basis for concluding that such involvement as the McCaffreys had in building process serves to relegate these homeowners to the status of general contractors outside the protection of the HIA.
In reaching this determination, the court acknowledges the findings set forth in Part II., reflecting that the McCaffreys independently engaged the services of other construction workers such as ceramic tile, foundation, cement and siding installers to perform services at the residence, and that Henry McCaffrey helped to install electrical wiring for the additions. The court further acknowledges the findings that Cheryl McCaffrey procured a zoning variance and a number of construction permits related to the projects. However, the court declines to accept Boucher's apparent invitation to draw the inference that Cheryl McCaffrey acted as a general contractor for the residential project because she provided inaccurate information when applying for the variance and/or permits, or because she intended to mislead the town officials into assigning a lesser fee for the permits than that required by law. Rather, the court finds that Cheryl McCaffrey's provision of a lesser estimated cost of the sunroom project was an indication of her naivet É and/or of her reliance on recommendations she received from Boucher, not that she possessed any particular skill or experience in the construction field when she applied for the permits at issue. Moreover, a careful review of each of the permits for which McCaffrey replied indicates that, when called for, Cheryl McCaffrey accurately identified the applicant as a "homeowner," a designation with which the town was apparently satisfied, as is the court. Such conduct does not warrant the assignment of a general contractor's status to Cheryl or to Henry McCaffrey.
This aspect of the court's conclusion is consistent with the HIA, which anticipates that a professional builder may seek to pursue contract claims against homeowners who have, in some part, helped facilitate the construction process at their residence. The clear and unambiguous language of the HIA indicates that a homeowner contracting for residential improvements is not considered to be a contractor for HIA purposes. The legislature's defines an "owner" as "a person who owns or resides in a private residence and includes any agent thereof." (Emphasis added.) § 20-419(6). On the other hand, the term " `Contractor' means any person who owns and operates a home improvement business or who undertakes, offers to undertake or agrees to perform any home improvement." § 20-419(3). While the persons whom the McCaffreys engaged to perform tile, foundation, cement, siding and even electrical services may have been their "agents" within the meaning of § 20-419(6), there is no evidence from which the court could reasonably include that the homeowners owned or operated a home improvement business by engaging these assistants. As such, the HIA's definitions definitively exclude the McCaffreys from here being designated as home improvement contractors.
See footnote 14.
Thus, whatever title or classification Boucher may seek to impose upon the McCaffreys, under the circumstances of this case they could not reasonably be found to have assumed the mantle of general contractors with regard to the construction work at the residence, nor could Boucher reasonably be identified as a subcontractor working under the McCaffreys' direction with regard to construction work at their home. Given the applicable legislation and case law construing the HIA and its relation to homeowners, such as the McCaffreys, Boucher cannot prevail through his argument that the homeowner's procurement of contracts with other construction vendors or installers, including himself, renders them unprotected by the HIA.
Formally, "[t]here is no statutory, administrative, regulatory or judicial authority making subcontractors subject to the registration and other requirements of the Home Improvement Act." O'Donnell v. Rindfleisch, 13 Conn.App. 194, 199, 535 A.2d 824, cert. denied, 207 Conn. 805, 540 A.2d 373 (1988). "Nowhere in the legislative consideration [of the HIA] is there revealed an intent to include subcontractors within the registration requirement. Its aim was targeted only at contractors who deal directly with property owners. That is evident in these words of its proposer, Representative Candelori: `[T]he act requires that every home improvement contract as defined in this piece of legislation be in writing, contain the entire agreement between the owner and contractor, and each party must have a completed copy of contract at the time the contract is executed.' " Id., 203-04. "The contract between the contractor and the subcontractor is not within the purview of the act, and need not be under its purpose and premise, for by its terms the contractor is responsible to the consumer and the commissioner of consumer protection for whatever the subcontractor may do. The level of the act's protection does not reach the contractor in his relationship with a subcontractor. In such a business relationship, the contractor is not a consumer. It is clear from the legislative record that the registered contractor was intended to be the person liable for the actions of persons he hires, employs or engages as a subcontractor to work on a homeowner's improvement project." (Internal quotation marks omitted.) Meadows v. Higgins, 249 Conn. 155, 166, 733 A.2d 172 (1999). "[I]n all of the cases to which [the Supreme] court and the Appellate Court have applied the act, the relationship that generated the dispute was that of contractor and owner, and in each, the contractor was attempting to enforce an agreement with the owner to perform home improvements. . . The outcome in each of these cases resulted from a failure to comply with the act by the target of the act, that is, the contractor who had dealt directly with the homeowner and who had been the party ultimately responsible for the subcontractor." (Citations omitted.) Id., 166-67.
Like reasoning led to the apt decision in Santos Construction, Inc. v. Savino, Superior Court, judicial district of New Haven, Docket No. CV 03 0481020 (June 29, 2004, Hadden, J.T.R.). There, the trial court found that although a homeowner hired several contractors to work on his home, the owner was still an "owner" as defined in General Statutes § 20-419(6) and did not become a "contractor" as defined in General Statutes § 20-419(3) and the contractors did not become subcontractors under the HIA. The court stated: "Although in this case the defendant owner chose to enter into several contracts with contractors, including the plaintiff, in connection with the construction work at his home, this fact situation does not change the defendant's status from owner to contractor, or the status of the plaintiff from contractor to subcontractor. The plaintiff is still an `owner,' the defendant is still a `contractor,' and the home improvement contract they entered into must comply with the provisions of the Home Improvement Act." Id.
3. HOMEOWNERS' ALLEGED BAD FAITH
In a further effort to support his breach of contract claim, Boucher asserts that the McCaffreys are not entitled to the protections offered by the HIA because they demonstrated "bad faith" in their dealings with him. In submitting this assertion, Boucher relies upon the premise that "a home improvement contractor, in suing for breach of a contract that violates 20-429, can avoid the normal bar to his pursuit of such a cause of action by proving that the homeowner invoked, in bad faith, the contractor's statutory violation as a basis for his own repudiation of the contract. A. Secondino Son, Inc. v. LoRicco, [ supra, 215 Conn. 336]; Sidney v. DeVries, [ supra, 215 Conn. 350]; Liljedahl Bros., Inc. v. Grigsby, [ supra, 215 Conn. 345]." Habetz v. Condon, supra, 224 Conn. 236. The facts of this case do not, however, support Boucher's allegations of bad faith on the part of the homeowners and, accordingly, he cannot rely upon this premise to avoid the HIA's constraints.
"Whether a party has acted in bad faith is a question of fact. . ." Renaissance Management Co., Inc. v. Connecticut Housing Finance Authority, 281 Conn. 227, 240, 915 A.2d 290 (2007). "It is the burden of the party asserting the lack of good faith to establish its existence and whether that burden has been satisfied in a particular case is a question of fact." Habetz v. Condon, supra, 224 Conn. 237 n. 11. "Bad faith in general 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." (Internal quotation marks omitted.) De La Concha of Hartford, Inc. v. Aetna Life Co., 269 Conn. 424, 433, 849 A.2d 382 (2004).
Here, Boucher has failed to meet his burden of proving that the McCaffreys acted in bad faith, or that they lacked good faith in their conduct toward him with regard to the construction projects at the residence. De La Concha of Hartford, Inc. v. Aetna Life Co., supra, 269 Conn. 433. As discussed in Parts II. and III. A. 2., taken as a whole, the evidence establishes that the McCaffreys were relatively naive consumers of home improvement services, even though Henry McCaffrey was able to perform electrical work at his residence, and although Cheryl McCaffrey was able to successfully participate in zoning hearings and procure building permits. Instead, the evidence supports the clear inference that the McCaffreys justly relied on Boucher's representations that he would build their sunroom, garage addition, and sunroom "in a workmanlike manner according to standard practices," according to the terms set forth on the proposal forms he extended to the homeowners apparently in lieu of the formal, written contract required by § 20-429(a). (Exhibits 2, 3, 4, 5.) Anderson v. Whitten, supra, 100 Conn.App. 740; Welsch v. Groat, supra, 95 Conn.App. 666-67; Russell v. Russell, 91 Conn.App. 642.
Having failed to meet his burden of proving bad faith or lack of good faith on the homeowners' part, the home improvement contractor remains governed by the mandatory terms of the HIA. In the absence of a written home improvement contract, as discussed in Part III. A., Boucher cannot recover from the McCaffreys on a breach of contract theory.
B. COUNT TWO: UNJUST ENRICHMENT AND THE EFFECT OF THE SPECIAL DEFENSE
In Count Two of his complaint, Boucher again alleges that the McCaffreys engaged him "as a sub-contractor to perform specific services" for them, and that they failed to comply with their obligation to pay the $27,000.00 that remains "due and payable" to him, but newly asserts that the homeowners thereby remain unjustly enriched as the result of the work he performed at their residence without compensation. As a special defense to this second count, the McCaffreys have again asserted that Boucher's failure to comply with the requirements of the HIA, thus rendering this aspect of his claim unenforceable. For the reasons set forth in Part III. A., the court finds the McCaffreys' special defense to be dispositive, and resolves this issue in their favor.
In reaching this determination, the court has considered Boucher's unjust enrichment claims in the context of the law generally affecting such matters, notwithstanding the clear applicability of the HIA. See Practice Book § 64-1(a). " `A right of recovery under the doctrine of unjust enrichment is essentially equitable, its basis being that in a given situation it is contrary to equity and good conscience for one to retain a benefit which has come to him at the expense of another. . . Unjust enrichment is, consistent with the principles of equity, a broad and flexible remedy. . . Plaintiffs seeking recovery for unjust enrichment must prove (1) that the defendants were benefitted, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs' detriment. . . [T]he determinations of whether a particular failure to pay was unjust and whether the defendant was benefitted are essentially factual findings for the trial court. . .' (Internal quotation marks omitted; external citations omitted." Jo-ann Stores v. Property Operating Co., 91 Conn.App. 179, 194, 880 A.2d 945 (2005), citing Hartford Whalers Hockey Club v. Uniroyal Goodrich Tire Co., 231 Conn. 276, 282-83, 649 A.2d 518 (1994); see also Gagne v. Vaccaro, supra, 255 Conn. 409.
Practice Book § 64-1(a) provides, in pertinent part, that: "(1) in rendering judgments in trials to the court in civil and criminal matters,. . . [t]he court's decision shall encompass its conclusion as to each claim of law raised by the parties and the factual basis therefor."
Accordingly, to prevail on his unjust enrichment claim in the present case, Boucher is required to prove that the McCaffreys "received a benefit at his expense under circumstances that would otherwise make it unjust for [them] to retain the benefit." Gagne v. Vaccaro, supra, 255 Conn. 409. Boucher is unable to meet his burden of proof in this case, however, as any claim against the homeowner is barred by the application of the spirit and principles of the HIA. As discussed in Part II. A., the public policy purpose underlying the HIA is founded upon "consumer protection against unscrupulous home improvement contractors." Wright Bros. Builders, Inc. v. Dowling, 247 Conn. 231. The critical requirement that the contractor provide the homeowner with a written contract is to allow persons, such as the McCaffreys, "to make informed decisions when purchasing home improvement services." Id. Moreover, as discussed in Part III. A. 1., the HIA has specifically contemplated circumstances under which it would be inequitable for a homeowner to retain the benefit of the contractor's work without payment therefore, but mandates the existence of a written contract as a predicate to recovery of such payment. § 20-429(f).
The very purpose served by the HIA would be foiled if, in a case such as this, a home improvement contractor was allowed to escape the legislation's mandatory written contract provisions by successfully pursuing an equitable claim against a homeowner who had become a party to a agreement for the performance of construction services in a manner that violated the act and its underlying public policy. To allow the contractor to prevail under such circumstances would effectively eviscerate the function and purpose of the HIA. Barrett Builders v. Miller, supra, 215 Conn. 324-25.
Moreover, as previously discussed, the operation of the HIA is such that it prohibits a contractor from recovery on quantum meruit grounds except when he has complied with specific statutory provisions, including § 20-429(f)'s mandatory requirement for a written contract. See Part III. A. 1; see also Barrett Builders v. Miller, supra, 215 Conn. 324-25; Dinnis v. Roberts, 35 Conn.App. 253, 257, 644 A.2d 971, cert. denied, 231 Conn. 924, 648 A.2d 162 (1994). Application of the principles of unjust enrichment, here promoted by Boucher in Count Two, requires measurement of the degree to which the McCaffreys may have benefitted from his work without payment, and the degree to which that failure to make payment caused a detriment to the home improvement contractor. See Gagne v. Vaccaro, supra, 255 Conn. 409; Hartford Whalers Hockey Club v. Uniroyal Goodrich Tire Co., supra, 231 Conn. 282-83; Jo-ann Stores v. Property Operating Co., supra, 91 Conn.App. 194. Those measures are essentially similar to the elements of a claim based on quantum meruit, which, as "[o]ur Supreme Court has explained. . .'literally means as much as he has deserved. . .' (Internal quotation marks omitted.) Shapero v. Mercede, 262 Conn. 1, 7, 808 A.2d 666 (2002). It `is the form of action which has been utilized when the benefit received was the work, labor, or services of the party seeking restitution.' (Internal quotation marks omitted; external citation omitted.) Chiulli v. Zola, 97 Conn.App. 699, 707-08, 905 A.2d 1236 (2006). Even as public policy prohibits a home improvement contractor from prevailing against a homeowner on quantum meruit grounds unless he has met the mandatory criteria of § 20-429(f), then, our law prohibits him from recovering against the consumer on a theory of unjust enrichment. Barrett Builders v. Miller, supra, 215 Conn. 328; Dinnis v. Roberts, supra, 35 Conn.App. 253.
Boucher may argue that, as a general rule "[r]ecovery for partial or full performance of a contract that is unenforceable under the statute of frauds is based upon principles of restitution. . . It is hornbook law that a party whose agreement is unenforceable under the Statute of Frauds or because of indefiniteness is generally entitled to restitution." (Citations omitted; internal quotation marks omitted.) Barrett Builders v. Miller, supra, 215 Conn. 322. This principle is inapposite to the present case, however, as the HIA's written contract requirement, without exception, also applies to quasi contract claims. Id., 323. "[The Supreme Court's] conclusion in Caulkins [v. Petrillo, supra, 200 Conn. 718-19,] that the legislature `intended no exceptions' to the written contract requirement, even for restitution when a contractor has fully performed its obligations under the invalid agreement. . . applies with equal force to [Boucher's] claim for quasi contractual recovery. . ." Id., 322.
The statute of frauds, as set forth in General Statutes § 52-550, does not apply to an agreement to perform services unless it is an agreement "that is not to be performed within one year from the making thereof." General Statutes § 52-550(a)(5). The statute of frauds is clearly inapplicable to the circumstances presented in this case, notwithstanding Boucher's failure to comply with the requirements of § 20-429(a)(7) of the HIA, necessitating establishment of the start and end dates for home improvement contractors' services.
Moreover, "Connecticut law has long recognized that restitution is not available for performance rendered pursuant to a contract that is unenforceable on public policy grounds. . . As long ago as 1849, this court stated that if a plaintiff cannot support his claim without relying upon an unlawful agreement between himself and the defendant, he must fail." (Citations omitted; internal quotation marks omitted.) Barrett Builders v. Miller, supra, 215 Conn. 323-24. This principle relies on the premise "that a person who does not comply with the statutory requirements will not be given the assistance of the courts in enforcing contracts within the provisions of the regulatory statute because such enforcement is against public policy. . . and that [t]o permit a recovery on a quantum meruit would defeat and nullify the statute." (Citation omitted; internal quotation marks omitted.) Id., 324-25.
The argument that "fairness requires that [the court] allow recovery in quasi contract" because "a homeowner is unjustly enriched if allowed to reap the benefits of home improvements without making restitution for those benefits"; Barrett Builders v. Miller, supra, 215 Conn. 325, "ignores the concern that. . . if recovery is permitted despite the fact that the underlying home improvement contract is invalid, a contractor could unilaterally expand the scope of the project beyond the contemplation of the invalid agreement, without the homeowner's consent, and recover for the unwanted work. . . [I]f a home improvement contractor could, without a written contract, perform certain work and then allege an oral agreement for precisely the same work alleged to have been fully performed, the purpose and clear intent of § 20-429 would be thwarted. . . The remedial purpose of § 20-429 would be placed in even greater jeopardy if a contractor could recover by merely demonstrating that services had been rendered, without even alleging that there was some sort of agreement for the work." (Citations omitted; quotation marks omitted.) Id.
In reaching this determination, the court remains aware that "there is not a good fit between the policy of the statute and any readily available measure of recovery in quasi contract. . . As a minimum, the import of § 20-429 is that [the homeowner] was privileged, in the absence of an allegation of bad faith, to repudiate an agreement in violation of the statute. Since it is only an unwarranted repudiation that permits a party to recover the reasonable value of the services rendered in an action in quantum meruit. . . the [contractor] is not entitled to that measure. . . Alternatively, the [contractor] might conceivably retreat to a measure of damages, according to the principles of unjust enrichment, that looks to the benefit it has conferred on the [homeowner] rather than the loss that the plaintiff has suffered. . . What benefit, however, has a homeowner received by getting unwanted goods and services? Judicial assessment of such a `benefit' would necessarily be so speculative as to undermine the objectives that the statute sought to achieve." (Citations omitted; internal quotation marks omitted.) Barrett Builders v. Miller, supra, 215 Conn. 327-28. Moreover, the rule in Barrett, supra, 215 Conn. 328, has been limited by the 1993 amendment which added subsection (f) to General Statutes § 20-429. Economos v. Liljedahl Bros., Inc., 279 Conn. 300, 310, 901 A.2d 1198 (2006). "[T]he amendment was intended to allow quantum meruit claims by contractors who had performed work and had not been paid, provided they satisfied the listed elements of § 20-429(a)." (Emphasis added.) Id., 310-11 n. 14.
Therefore, "[t]he only exceptions to this blanket denial of a right to recover are when the noncompliance with the act is of a `minor and highly technical nature'; Wright Bros. Builders, Inc. v. Dowling, [ supra, 47 Conn. 232]; or when the consumer has acted in bad faith in his dealings with the contractor. Habetz v. Condon, [ supra, 224 Conn. 231]. 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." Pools by Murphy Sons, Inc. v. Dept of Consumer Protection, 48 Conn. SUPERIOR COURT. 248, 253, 841 A.2d 292 (2003).
Despite the comprehensive nature of his trial brief, Boucher has failed to provide the court with any statutory or common-law authority to support this aspect of his claim. See Plaintiff's Brief filed January 22, 2007 (#109). The McCaffreys have, however, raised the implications of a potential finding that the homeowners had acted in "bad faith" so as to insulate them from the protections provided by the HIA; the court has addressed this issue as is required by Practice Book § 64-1(a). See Defendant/Counterclaimants' Post-Trial Memorandum filed January 17, 2007 (#108). As found in Parts II. and III. A. 3., the court has examined the evidence presented in its entirety at trial, and has found no evidence that the McCaffreys acted in "bad faith" under the circumstances of this case. Accordingly, Boucher's failure to comply with the clear and explicit provisions of the HIA, through his failure to provide the McCaffreys with a written contract for his home improvement services and/or with the opportunity for canceling their agreement, prohibits his recovery against the homeowners based on unjust enrichment.
Boucher may expect the court to rely upon his opinion that as of mid-November 2003, he considered his work at the residence to have been essentially completed, thus implicating the principles of Pettit v. Hampton and Beech, Inc., supra, 101 Conn.App. 508 (permitting a builder to recover from the homeowner if there has been substantial compliance with the contract, even though minor details remain to be corrected). Such reliance would be unfounded, however, as the Pettit facts disclose the parties' entry into applicable written contracts for construction of the new home at issue in that case. Id., 505. Although Boucher may claim he substantially completed the project at the McCaffreys' residence, the HIA prohibits his recovery from the homeowners due to the lack of a written contract as mandated by § 20-429(a).
IV. MCCAFFREYS' COUNTERCLAIMS A. NEGLIGENCE
In Count One of their counterclaim, the McCaffreys allege that Boucher performed home improvement services at their residence, "in an unprofessional and negligent manner." Thereby, the McCaffreys claim, they "were damaged as they were required to expend money to repair and replace Boucher's work." (#101.) The court finds this issue, in part, in favor of the counterclaimants, in accordance with the evidence through which they have met the requisite elements of liability and damages for their negligence claims. As the McCaffreys have, in part, met their burden of proof on the first count of the counterclaim, the court awards such fair and reasonable damages as are called for under the circumstances of this case.
1. LIABILITY
For Count One of the counterclaim, "establishing a claim of negligence requires proof that the defendant owed a duty of care to the plaintiff and that his or her failure to meet the standard of care proximately caused the damages sustained by the plaintiff." Anderson v. Whitten, supra, 100 Conn.App. 739. The existence of the home improvement contractor's duty to the homeowner is well established, and is appropriately assigned to Boucher under the circumstances of this case. "A builder is under a duty to exercise that degree of care which a skilled builder of ordinary prudence would have exercised under the same or similar conditions. Id., 381; Scribner v. O'Brien, Inc., 169 Conn. 389, 400, 363 A.2d 160 (1975)." Calderwood v. Bender, 189 Conn. 580, 584, 457 A.2d 313 (1983). "In terms of the nature of the duty owed, our Supreme Court has noted that [a] builder is under a duty to exercise that degree of care which a skilled builder of ordinary prudence would have exercised under the same or similar conditions." (Citation omitted; internal quotation marks omitted.) Anderson v. Whitten, supra, 100 Conn.App. 739. Moreover, "a party may be liable in negligence for the breach of a duty that arises out of a contractual relationship. . . Even though there may not be a breach of contract, liability may arise because of injury resulting from negligence occurring in the course of performance of the contract." Bonan v. Goldring Home Inspections, Inc., 68 Conn.App. 862, 870, 794 A.2d 997 (2002); see also Neiditz v. Morton S. Fine Associates, Inc., 199 Conn. 683, 688, 508 A.2d 438 (1986). Where negligence is alleged in a counterclaim such as this, "[t]o establish causation, the plaintiffs were required to demonstrate that the defendants' conduct was a cause in fact and the proximate cause of the plaintiffs' damages. `The test for cause in fact is [w]ould the injury have occurred were it not for [the defendant's] negligent. . . conduct. . .? Proximate cause is defined as [a]n actual cause that is a substantial factor in the resulting harm. . . The substantial factor test, in truth, reflects the inquiry fundamental to all proximate cause questions; that is, whether the harm which occurred was of the same general nature as the foreseeable risk created by the defendant's negligence.' (Internal quotation marks omitted.) Boone v. William W. Backus Hospital, 272 Conn. 551, 571, 864 A.2d 1 (2005)." Heller v. D.W. Fish Realty Co., 93 Conn.App. 727, 733, 890 A.2d 113 (2006). "Recovery of damages in negligence requires proof by a fair preponderance of the evidence that the actor owed a duty of care to the victim, which was breached by the actor's failure to meet the standard of care arising therefrom and that the breach was the proximate cause of actual harm suffered by the victim." (Internal quotation marks omitted.) Anderson v. Whitten, supra, 100 Conn.App. 734.
As found in Part I., the counterclaimants have not requested an award of noneconomic damages in this case. Accordingly, the court declines to consider such an award.
In most aspects of this case, breach of the builder's duty, requisite to establishing damages, must be founded upon expert testimony. In Part II., the court recounted the McCaffreys' multiple and sincere complaints concerning the nature and quality of the work performed by Boucher at the residence As previously found, the McCaffreys have limited experience, skill or knowledge related to the subject of building and construction, although Henry McCaffrey can perform some electrical work. In fact, they have, in part, defended Boucher's claims by establishing that they were not serving as general contractors with regard to the construction projects at their residence. With their lack of "special skill or knowledge" directly applicable to the fundamental issue of whether Boucher was negligent in failing to provide them with workmanlike building services performed in accordance with standard practices, they cannot serve as experts for purposes of assisting the trier of fact in ascertaining the breach of duty element. Pettit v. Hampton and Beech, Inc., supra, 101 Conn. 738.
"It is well established that `expert testimony is required' when the question involved goes beyond the field of the ordinary knowledge and experience of judges or jurors. Latham Associates, Inc. v. William Raveis Real Estate, Inc., 218 Conn. 297, 301, 589 A.2d 337 (1991), quoting Bader v. United Orthodox Synagogue, 148 Conn. 449, 454, 172 A.2d 192 (1961)." Kenney v. Mystic Valley Hunt Club, Inc., 93 Conn.App. 368, 375, 889 A.2d 829 (2006). "Generally, expert testimony is admissible if (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court. . . in considering the issues." (Internal quotation marks omitted; external citation omitted.) Anderson v. Whitten, supra, 100 Conn.App. 737; see also Pettit v. Hampton and Beech, Inc., supra, 101 Conn.App. 513-14. Generally, then, expert testimony is a requisite to establishing a breach of the standard of care owed by a builder or a home improvement contractor to the homeowner-client for whom services are performed. Id., 736-37. " `There is an exception to this rule, however, where there is such an obvious and gross want of care and skill that the neglect is clear even to a [layperson].' (Internal quotation marks omitted.) Dubreuil v. Witt, 80 Conn.App. 410, 420-21, 835 A.2d 477 (2003), aff'd, 271 Conn. 782, 860 A.2d 698 (2004). Thus, where the defendant's performance constituted such an obvious and gross want of care and skill as to fall within the exception to the expert witness requirement, the plaintiff is not required to present expert testimony to establish the proper standard of professional skill and care. . . As our Supreme Court has stated, `[a]lthough expert testimony may be helpful in many instances, it is required only when the question involved goes beyond the field of ordinary knowledge and experience of the trier of fact. . . The trier of fact need not close its eyes to matters of common knowledge solely because the evidence includes no expert testimony on those matters.' (Internal quotation marks omitted.) State v. Smith, 273 Conn. 204, 211, 869 A.2d 171 (2005)." Vanliner Co. v. Fay, 98 Conn.App. 125, 137-38, 907 A.2d 1220 (2006) (no expert testimony required to establish calendar dates upon which late workers' compensation reports were filed).
Thus, except where matters of common knowledge are concerned, the McCaffreys were required to present extrinsic expert testimony to support and to prevail on their claims that Boucher deviated from the standard of care applicable to builders in a like situation, and that Boucher's negligence caused some or all of the multiple areas of defect that they observed in the areas where he had performed his work, entitling them to an award of economic damages. Pettit v. Hampton and Beech, Inc., supra, 101 Conn. 738-39; Anderson v. Whitten, supra, 100 Conn.App. 734, 737; Vanliner Co. v. Fay, supra, 137, 907 A.2d 1220 (2006); Kenney v. Mystic Valley Hunt Club, Inc., supra, 93 Conn.App. 368. As the McCaffreys' complaints, even though based on the homeowners' observations of existing conditions, are not sufficient to establish each alleged breach of the building contractor's duty and proximate cause of their damages, the counterclaimants' damage awards are in most instances limited to the scope of expert testimony sufficient to establish the legal basis for Boucher's liability.
"Although the [McCaffreys may] argue that their claims are of ordinary, and not professional, negligence. . . expert testimony was [generally] necessary in this case because [Boucher] was rendering specialized professional service" to the homeowners. Kenney v. Mystic Valley Hunt Club, Inc., 93 Conn.App. 368. See also Anderson v. Whitten, supra, 100 Conn.App. 734, 737.
In assessing the degree to which the McCaffreys have met their burden of proving that Boucher deviated from the standard of care owed by a builder to a homeowner, the court has acknowledged Boucher's own expressed acceptance of his duties in performing work at the residence; as stated on his own proposal forms, he intended that "[a]ll work [was to be] to be completed in a workmanlike manner according to standard practices." (Exhibits 2, 3, 4, 5.) The law imposes no lesser burden upon the home improvement contractor. See Calderwood v. Bender, supra, 189 Conn. 584; Anderson v. Whitten, supra, 100 Conn.App. 739.
Here, the court concludes that through their tender of the fully credible testimony from Dietle, their proffered construction expert at trial, and through reference to the evidence as a whole, the counterclaimants have met their burden of proving Boucher's duty to them as homeowners and the applicable standard of care he owed to them; they have also met, in part, their burden of proving Boucher's deviation from that standard of care and the resultant damages. Some of Boucher's negligence and the consequential damages can be ascertained by reliance on common knowledge, as described in Part IV. A. 2., below. However, where expert testimony was required to establish elements of liability and damages related to the McCaffreys' allegations of Boucher's negligence with regard to home improvement matters, Dietle possessed the " `special skill or knowledge [that] is not common to the average person,' " sufficient to render him qualified to serve as an expert witness on the counterclaimants' behalf. Anderson v. Whitten, supra, 100 Conn. 737-38. Unlike the homeowners' global criticisms, the expert identified only specified areas in which Boucher's construction constituted deviations from the duty to provide construction services in a workmanlike manner according to standard practices. As to these areas, the McCaffreys met their burden of proving, through expert testimony, that portions of the work performed by Boucher "failed to comply with that degree of care which a skilled builder of ordinary prudence would have exercised under the same or similar conditions." Anderson v. Whitten, supra, 100 Conn.App. 739. Moreover, taken together with the entirety of the evidence, this expert's testimony further establishes that Boucher's negligence in performing certain aspects of his work "proximately caused the damages sustained" by the McCaffreys in this case. Id., citing Coburn v. Lenox Homes, Inc., supra, 196 Conn. 732.
In reaching this determination, the court acknowledges that Dietle has a business relationship with the McCaffreys; that they have paid him for performing some work in the past; and that they may well engage his construction services in the future. The court has further noted Dietle's failure to agree with certain aspects of the McCaffreys' complaints concerning the quality of Boucher's work, such as the basement entryway. See Anderson v. Whitten, 100 Conn.App. 740; Welsch v. Groat, supra, 95 Conn.App. 666-67; Russell v. Russell, 91 Conn.App. 642.
In reaching its determination as to the sufficiency of Dietle's expert testimony in support of the McCaffreys' negligence claims, that court has assessed the evidence as a whole, acknowledging that "[w]e do not require that certain `magic words' be used, and therefore, `[w]e reject the proposition that certain formulaic words are essential when an expert renders an opinion. . . A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used. Towne v. Eisner, 245 U.S. 418, 425, 38 S.Ct. 158, 62 L.Ed. 372 (1918). As long as it is clear that the opinion of the expert is expressed in terms of probabilities, the opinion should be submitted into evidence for a jury's consideration. (Citation omitted.) Struckman v. Burns, supra, 555; see also State v. Weinberg, 215 Conn. 231, 245, 575 A.2d 1003, cert. denied, 498 U.S. 967, 111 S.Ct. 430, 112 L.Ed.2d 413 (1990) (`[a]n expert witness is competent to express an opinion, even though he or she may be unwilling to state a conclusion with absolute certainty, so long as the expert's opinion, if not stated in terms of the certain, is at least stated in terms of the probable, and not merely the possible' [internal quotation marks omitted]); Aspiazu v. Orgera, 205 Conn. 623, 632-33, 535 A.2d 338 (1987) (`[w]hile we do not believe that it is mandatory to use talismanic words or the particular combination of magical words represented by the phrase reasonable degree of medical certainty [or probability]. . . there is no question that, to be entitled to damages, a plaintiff must establish the necessary causal relationship between the injury and the physical or mental condition that he claims resulted from it' [citation omitted; internal quotation marks omitted])." (Internal quotation marks omitted in part.) State v. Nunes, 260 Conn. 649, 672-73, 800 A.2d 1160 (2002).
The evidence establishes that Dietle generally noticed "problems" with the sunroom and garage additions as soon as he came upon the residence; overall, Dietle's professional opinion was that Boucher's work presented a "lack of detail" and that it was not what Dietle would consider "good." (Exhibits A, 22; Testimony of D.D.) Specifically, on the walls of the garage addition, Dietle saw that the plywood installed by Boucher had developed "bubbles," was warped, and was pulling out and away from the studs. Dietle also noted the presence of horizontal 2' x 4's used as "blocking" between the studs, which Boucher had installed in an unsuccessful effort to remedy this problem with the plywood. (Exhibits C, D.) To fix the plywood problem, Dietle recommended removal and replacement of the plywood Boucher had installed. This process would cost $2,000. (Exhibit A.) However, there was insufficient evidence from which the court could reasonably conclude that Boucher had either used inappropriate plywood in this aspect of construction, or that his method of installation deviated from the standard of workmanlike construction practices. Accordingly, the McCaffreys are not entitled to an award of damages for this aspect of Boucher' s construction, as they have failed to establish the requisite elements of a negligence claim.
Dietle also credibly opined as to errors in Boucher's construction of the roof on the garage addition. The court adopts the expert's conclusion that this roof was built so that it was "very low pitched," and "pretty flat" in contradiction to standard practices for construction of such roofs, enhancing the likelihood of precipitation pooling on top of the structure. Proper roofing construction also employs the use of a product called "water and ice shield" to seal each and every nail hole upon such a roof, thereby preventing "ice damming and water backing up" on the structure. Dietle did not notice water damage in the garage in December 2003 or early 2004. However, in December 2005, Dietle did notice that there was water leaking from the roof into the garage area, consistent with the demonstrative evidence. (Testimony of D.D.) From this leakage, although he had not yet inspected the garage roof for its presence, Dietle reasonably inferred that Boucher had not installed a proper water and ice shield upon that structure; the court finds this inference to be reasonable and logical under the totality of the circumstances. Anderson v. Whitten, 100 Conn.App. 740; Welsch v. Groat, supra, 95 Conn.App. 666-67; Russell v. Russell, 91 Conn.App. 642. Remediation of this situation requires removal of the roof that Boucher had installed, and replacement of this roof with a proper pitch, and with the added installation of water and ice shielding in the process, at a reasonable cost to the McCaffreys of $8,680. (Exhibit A; Testimony of D.D.)
The court further credits and adopts Dietle's credible opinions as to errors in Boucher's failure to construct the garage addition to "line up" with the original garage, leaving an unnecessary and inappropriate 1 1/2" differential on the face of the structures. Boucher could have avoided this condition by following a customary builder's practice of adjusting the construction of the front wall for the garage outward, hanging over the foundation, to "square up the building." (Testimony of D.D.) Remediation of this condition requires furring out the front of the garage addition so it will line up with the existing garage. Taken as a whole, the evidence is sufficient to support the inference that in designing and constructing the front of the garage addition, Boucher failed to comply with standard and workmanlike practices, thus deviating from the standard of care and causing conditions that required repair and remediation. The total cost of replacing the plywood, as described above, and for remedying the deviating front portions of the garage construction is reasonably established to be $2,000. (Exhibit A; Testimony of D.D.) The court reasonably and logically infers that a minimum of one third of the total, or $667, is properly allocated to the labor and materials needed to remedy the conditions attributable to Boucher's failure to follow the customary practices in designing and constructing the front of the garage addition. Anderson v. Whitten, 100 Conn.App. 740; Welsch v. Groat, supra, 95 Conn.App. 664; Russell v. Russell, 91 Conn.App. 642. Accordingly, this amount is properly assigned as a part of the counterclaimants' damage award.
In the face of insufficient supporting evidence, the court declines to accept Boucher's suggested inference that this condition was caused by the manner in which others had poured the foundation for the garage addition. (Testimony of D.B.)
The court credits and adopts Dietle's credible opinions as to Boucher's design and construction errors in the sunroom addition, as well. Boucher's construction had resulted in height discrepancies at two separate entries, one requiring an approximately 2 1/2" step down when entering the new sunroom, and another requiring an approximately 1 1/2" step down to enter the new addition; this differential resulted, in part, due to Boucher's improper determination to leave an original exterior threshold in place. Dietle described the area of the 2 1/2" height discrepancy as "a tripper step," such that "you would trip walking from one room to the next." (Testimony of D.D.) In proper, workmanlike construction of such an area, to match floor heights, and to minimizing the risk of tripping in threshold locations, the height discrepancy should either be larger or nonexistent. Correction of this hazardous construction result would require removal of the trim that Boucher had installed to the existing doorways, re-trimming the doorways with new cased openings, and provision of new thresholds. Taken as a whole, the evidence is competent to support the inference that in constructing "tripper step" Boucher failed to adhere to workmanlike standards, thereby causing another condition that required repair and remediation at the residence. Anderson v. Whitten, 100 Conn.App. 740; Welsch v. Groat, supra, 95 Conn.App. 664; Russell v. Russell, 91 Conn.App. 642.
The court further credits and adopts Dietle's credible opinion that Boucher had improperly allowed a window, previously allowing exterior access, to remain buried within the wall that was common to of the sunroom addition and an existing bathroom. As retained, the window permitted an interior view of the lathing and the back side of the sheetrock Boucher had installed. Correction of the obvious construction defects caused by Boucher's retention of the window in this location would most reasonably be achieved through removal of the window and creation of storage space within the previous frame. (Testimony of D.D.) Taken as a whole, the evidence supports the court's determination that in constructing this aspect of the sunroom addition, leaving that buried window in place and in such a location as to allow the occupant to view the structures described above, Boucher failed to adhere to workmanlike standards, thereby causing another condition that required repair and remediation at the McCaffreys' property. Anderson v. Whitten, 100 Conn.App. 740; Welsch v. Groat, supra, 95 Conn.App. 664; Russell v. Russell, 91 Conn.App. 642.
Dietle also recommended removal of another window that Boucher had left in place; he further recommended trimming of a new cased opening he would create in this area, so as to provide a "pass through" from the existing home into the new room, instead of having a double hung window in place. (Testimony of D.D.) However, there was insufficient evidence from which the court could reasonably conclude either that Boucher's retention of this particular window constituted a deviation from the standard of care. As such, the McCaffreys have failed to meet their burden of proof on this aspect of their claims.
Remediation of the doorway step height discrepancies, removal of the window that Boucher had partially enclosed in the wall of the sunroom addition with creation of storage space within the frame, and removal of the second retained window with application of trim would reasonably cost the McCaffreys $1560. (Exhibit A; Testimony of D.D.) The evidence was sufficient to establish that the conditions related to the doorway height discrepancies and the retained bathroom window were proximately caused by Boucher's failure to adhere to workmanlike standards. The court reasonably and logically concludes that a minimum of two thirds of that total price, or $1,045, is properly allocated to the labor and materials needed to remedy these aforementioned conditions proximately caused by Boucher's failure to follow standard practices in these aspects of his construction work at the residence. (Exhibit A; Testimony of D.D.)
The court further credits and adopts Dietle's testimony establishing the basis for inferring Boucher's negligent construction of the roof for the sunroom addition and requisite remediation. Dietle noted the presence of metal flashing that runs up underneath the siding, apparently without the protection of a water and ice shield as described above; he has witnessed and noticed water leaking into the sunroom, consistent with the demonstrative evidence. (Exhibits BE, CC; Testimony of D.D.) From this leakage and Dietle's credible testimony concerning like conditions upon the garage addition roof, the court reasonably and logically infers that Boucher had not adhered to standard building practices by failing to install a proper water and ice shield upon the sunroom addition's roof structure; thereby, he caused these conditions that required repair and remediation. Correction of the defective conditions caused by Boucher's construction of the sunroom addition roof necessitates removal of this roof and replacement of a new roof with proper water and ice shield installation, at a reasonable cost of $2000 to the homeowners. (Exhibit A; Testimony of D.D.)
The court credits Dietle's opinion that removal of the sunroom addition roof would be required to determine whether, in addition to the visible damage from the leak, there has been damage to the insulation, or the sheetrock and/or whether any mold had formed in that area. Proper construction practices requires the removal of these building products and installation of replacement products if such damage had occurred; however, Dietle's expert opinion was insufficient to establish that such damage was present or if had probably been caused by Boucher's negligence, rendering this aspect of damages too speculative to warrant an award. Moreover, in extending his proposals for amendment of the conditions Boucher's negligence proximately caused to the sunroom structure, Dietle affirmatively responded to the McCaffreys' request for provision of additional ceiling height in that location. The court received insufficient evidence from which it could reasonably determine that this design and resultant ceiling height constituted a deviation from standard workmanlike practices. Accordingly, the McCaffreys are not entitled to an award of damages for this aspect of their negligence claim.
The finished ceiling that Boucher constructed in the sunroom addition was "very low," in Dietle's opinion, measuring approximately 7' 2" in height. (Testimony of Dietle.)
Dietle's other proposals for general repairs to the interior of the sunroom addition also included costs for painting, additional trim work, and repair of nail pops, for which there is insufficient evidence upon which the court could conclude that negligence led to these conditions. The total cost of remediating these interior aspects of the sunroom is $9,500.00. (Exhibit A; Testimony of D.D.) Given the speculative nature of the supposed damage to insulation and the non-visible components of the sunroom walls, and complexity of the work as proposed including costs for painting and creation of a vaulted ceiling, the court finds there is insufficient evidence to support a finding that any particular portion of the $9500 figure proposed for this overall work could reasonably be attributed to Boucher's negligence. Thus, the evidence related to the McCaffreys' claimed losses affecting the interior of the sunroom addition was too uncertain to support an award of any particular amount of money damages.
At trial, without attributing these conditions to any particular negligence on Boucher's part, Dietle acknowledged the McCaffreys' objections to certain aspects of the exterior of the sunroom addition, such as conditions related to rakes and areas of the siding. However, as the court received insufficient evidence from which it could reasonably determine whether these conditions and the proposed remedies were proximately caused by Boucher's failure to adhere to workmanlike construction standard, the McCaffreys are not entitled to any award of damages with regard to these elements of his work at the residence.
These conditions included those present on the following aspect of the exterior of the sunroom: a region Dietle described as "Blend in siding from existing house to new addition (step); " "existing rake and overhang on exterior from existing house below new additions rake (2); and (See Exhibit AA, Testimony of Dietle.)
In addition to the evidence of negligence and causation supported by Dietle's expert testimony, however, the court fully credits the testimony of Cheryl McCaffrey with regard to Boucher's negligent conduct and the damage caused thereby to the two cement installations at the residence, as described in Part II. No expert testimony is required to establish that common standards of reasonable and prudent conduct required Boucher's agents to refrain from stepping on the freshly poured cement facing in front of the garage addition or that these agents failed to meet this standard of care; no expert testimony is required to establish that the imprints from the bottoms of rugged-soled shoes caused permanent marring of the surface of this new cement structure, entitling the homeowners to remediation of this condition. (Exhibit FF; Testimony of C.M.) See Vanliner Co. v. Fay, supra, 98 Conn.App. 137-38. Similarly, no expert testimony is required to establish that common standards of reasonable and prudent conduct required Boucher himself to refrain from creating permanent, scarifying indentations in the new hand-stamped sidewalk at the residence; Cheryl McCaffrey's credible testimony is sufficient to permit the court's finding that Boucher acted in a negligent manner when utilizing the new cement structure as a staging area for folding aluminum siding; that he caused damage to the sidewalk; and that the homeowners are entitled to damages for remediation of this condition. (Exhibit EE; Testimony of C.M.) Id. As previously found, remediation of the cement areas will cost the McCaffreys $3,950. (Exhibit GG; Testimony of C.M.)
2. DAMAGES
As noted, the McCaffreys' counterclaim alleged that as the result of Boucher's negligence in performance of home improvement work at the residence, "they were required to expend money to repair and replace" the work he had done. Insofar as the element of damages is concerned in this case, the McCaffreys have met their burden of proving that Boucher "knew, or should have known, that the numerous instances of substandard and incomplete work. . . would result in the foreseeable harm that resulted, i.e., the need to incur the cost of repairs. This conclusion is well supported by the evidence. . . [and are sufficient] for the court to hold [Boucher] liable on the basis of a theory of common-law negligence." (Internal quotation marks omitted." Anderson v. Whitten, supra, 100 Conn.App. 741.
It is axiomatic that "a tortfeasor is liable for all damages proximately caused by its negligence. See Neiditz v. Morton S. Fine Associates, Inc., [ supra, 199 Conn. 689 n. 3]." First Fed Sav. Ln. A., Rochester v. Charter App., 247 Conn. 597, 604, 724 A.2d 497 (1999). "It is axiomatic that the plaintiff who establishes tort liability is entitled to fair, just and reasonable compensation for his injuries. Herb v. Kerr, 190 Conn. 136, 139, 459 A.2d 521 (1983); Hulk v. Aishberg, 126 Conn. 360, 362, 11 A.2d 380 (1940)." Leabo v. Leninski, 2 Conn.App. 715, 726, 484 A.2d 239 (1984). "A trial court has wide discretion, in cases involving torts, to establish that amount which gives a plaintiff fair, just, and reasonable compensation for his injuries. Conaway v. Prestia, 191 Conn. 484, 494, 464 A.2d 847 (1983)." Leabo v. Leninski, 9 Conn.App. 299, 303, 518 A.2d 667 (1986). A complainant "is `entitled to recover all damages proximately caused by the [adversary's] negligent performance of the contract whether or not the results were reasonably to be anticipated.' Johnson v. Flammia, 169 Conn. 491, 499, 363 A.2d 1048 (1975); see also Neiditz v. Morton S. Fine Associates, Inc., [ supra, 199 Conn. 689 n. 3]." Mattegat v. Klopfenstein, 50 Conn.App. 97, 104-05, 717 A.2d 276 (1998).
Thus, insofar as it has been proved with reasonable probability, the amount of the McCaffreys' cost for remediating the conditions at the residence that were caused by Boucher's failure to adhere to the applicable builder's standard of care provide the appropriate measure of the homeowners' damages. "The cost of correcting this faulty situation, as reflected in the repair bill[s], may be utilized as proof of the measure of the [McCaffreys'] loss proximately resulting from the defendant's negligence. Scribner v. O'Brien, Inc., supra, 405." Calderwood v. Bender, supra, 189 Conn. 584-85. In determining the amount of damages to be awarded on the counterclaim sounding in negligence, the court has fully considered the fact that although Boucher expended certain sums for labor and materials in the course of his construction at the residence, he has no legal grounds for recovering any damages from the homeowners as the result of the applicable HIA legislation. The court has further considered that, and that as the result of Boucher's negligence, the homeowners face the consequent costs of repairing conditions he caused through his negligence.
The damages suffered by the McCaffreys, proved to have been proximately caused by Boucher's negligence, are as follows:
Labor and materials for removal, repair $ 8,680 and re-roofing of garage addition Labor and materials for repair and $ 667 reconstruction of front of garage addition Labor and materials for removal, repair $ 1,045 and reconstruction of doorway step height discrepancies and window partially enclosed in sunroom addition Labor and materials for removal, repair $ 2,000 and re-roofing of sunroom addition Labor and materials for removal, repair $ 3,950 and reconstruction of garage driveway apron and hand-stamped sidewalk TOTAL $16,342B. BREACH OF CONTRACT
In Count Two of their counterclaim, the McCaffreys admit that they were parties to a contract with Boucher for the performance of home improvement services at the residence. (#101.) The McCaffreys further claim, however, that "Boucher failed to perform the services in a professional and workmanlike manner, constituting a breach of his contract" with them. (#101.)
The McCaffreys additionally assert that "[a]s a result of Boucher's breach, [they] have suffered damages including, but not limited to, the cost to repair and replace Boucher's work." (#101.)
1. LIABILITY
The court has considered the McCaffreys' contract claims in the context of the law generally affecting such matters, notwithstanding the clear applicability of the HIA. See Practice Book § 64-1(a). As found in Part III. A., the HIA clearly prevents a contractor from enforcing an oral agreement for provision of home improvement against the homeowner. However, Boucher has failed to provide any authority, in law or in reason, that would preclude the McCaffreys, as homeowners, from presenting against him a common-law claim based on breach of an oral contract.
There is no pertinent appellate level law that provides guidelines for determining whether or not a party has proved the terms of an oral contract; accordingly, reference to contracts in general, and the facts of this particular case, must serve as the court's reference point. Generally, "[t]he existence of a contract is a question of fact to be determined by the trier on the basis of all the evidence.' (Internal quotation marks omitted.) John M. Glover Agency v. RDB Building, LLC, 60 Conn.App. 640, 643, 760 A.2d 980 (2000)." Hudson United Bank v. Cinnamon Ridge Corp., 81 Conn.App. 557, 572, 845 A.2d 417 (2004). " `The 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.' (Internal quotation marks omitted.) Chiulli v. Zola, [ supra, 97 Conn.App. 706-07]." Whitaker v. Taylor, 99 Conn.App. 719, 728, 916 A.2d 834 (2007). "The parties' intentions manifested by their acts and words are essential to the court's determination of whether a contract was entered into and what its terms were." (Internal quotation marks omitted.) Aquarion Water Co. of Connecticut v. Beck Law Products Forms, LLC, 98 Conn.App. 234, 239, 907 A.2d 1274 (2006). The "[p]arties are bound to the terms of a contract even though it is not signed if their assent is otherwise indicated." (Internal quotation marks omitted.) Aquarion Water Co. of Connecticut v. Beck Law Products Forms, LLC, supra, 98 Conn.App. 239. " `The doctrine of consideration is of course fundamental in the law of contracts, the general rule being that in the absence of consideration an executory promise is unenforceable. In defining the elements of the rule, we have stated that consideration consists of a benefit to the party promising, or a loss or detriment to the party to whom the promise is made. . . An exchange of promises is sufficient consideration to support a contract.' (Citations omitted; internal quotation marks omitted.) Osborne v. Locke Steel Chain Co., 153 Conn. 527, 530-31, 218 A.2d 526 (1966)." Keefe v. Norwalk Cove Marina, Inc., 57 Conn.App. 601, 606, 749 A.2d 1219, cert. denied, 254 Conn. 903, 755 A.2d 881 (2000). "In order for an enforceable contract to exist, the court must find that the parties' minds had truly met. . . If there has been a misunderstanding between the parties, or a misapprehension by one or both so that their minds have never met, no contract has been entered into by them and the court will not make for them a contract which they themselves did not make. . . [A]n agreement must be definite and certain as to its terms and requirements. (Citations omitted; internal quotation marks omitted.) Fortier v. Newington Group, Inc., 30 Conn.App. 505, 510, 620 A.2d 1321, cert. denied, 225 Conn. 922, 625 A.2d 823 (1993)." Electrical Wholesalers v. M.J.B. Corp., 99 Conn.App. 294, 301, 912 A.2d 1117 (2007). In other words, "[o]ur case law requires definite agreement on the essential terms of an enforceable agreement." (Internal quotation marks omitted.) 111 Whitney Avenue, Inc. v. Commissioner of Mental Retardation, 70 Conn.App. 692, 699, 802 A.2d 117 (2002).
Moreover, even where no such specific terms have been expressed, our jurisprudence permits the court to impute into any oral contract for construction-related services an implicit element requiring those services to be performed in a workmanlike manner. Bonan v. Goldring Home Inspections, Inc., supra, 68 Conn.App. 879 (in an action for negligent performance of an oral contract for inspection of real property, the defendant's negligence in failing to perform the inspection in a "workmanlike manner" was impliedly incorporated into the parties' oral contract). Thus, in cases such as this, particularly where the home improvement contractor has proffered proposals presenting like language, "[a] contracting party may be bound by the terms of the contract to perform it in a good and workmanlike manner. Moreover, as a general rule, there is implied in every contract for work or services a duty to perform it skillfully, carefully, diligently, and in a workmanlike manner." Sutera v. Washton, Superior Court, judicial district of New London, Docket No. CV 00 0556177 (March 14, 2003, Corradino, J.) (34 Conn. L. Rptr. 388, 391.) "Failure to comply with this implied duty to perform in a skillful and workmanlike manner may not only defeat recovery but may entitle the other party to damages resulting from the unskillful and unworkmanlike performance. . . With respect to the skill required of a person who is to render services, it is a well-settled rule that the standard of comparison or test of efficiency is that degree of skill, efficiency and knowledge which is possessed by those of ordinary skill, competency and standing in the particular trade or business for which he. . . is employed." Id., 391.
"[W]here evidence as to terms of oral contract is conflicting, it is for the trier of fact to pass upon the facts and determine the terms of the contract. 11 R. Lord, A Treatise on the Law of Contracts (1999) § 30:8, p. 95." (Internal quotation marks omitted.) A M Towing Recovery, Inc. v. Guay, Superior Court, judicial district of Hartford, Docket No. CVH 7221 (May 15, 2006, Bentivegna, J.). "In giving meaning to the terms of a contract, [the Appellate Court] ha[s] said that [a] contract must be construed to effectuate the intent of the contracting parties. . . In ascertaining intent, we consider not only the language used in the contract but also the circumstances surrounding the making of the contract, the motives of the parties and the purposes which they sought to accomplish." (Citations omitted; internal quotation marks omitted.) Schlicher v. Schwartz, 58 Conn.App. 80, 85, 752 A.2d 517 (2000).
In our state, contracts may be enforceable even if they are oral, unless otherwise restricted by law as in the case of the HIA's prohibition of a contractor's right to enforce an unwritten contract against a homeowner, as fully discussed in Parts III. A. and B. "Parties are bound to the terms of a contract even though it is not signed if their assent is otherwise indicated." (Internal quotation marks omitted.) Aquarion Water Co. of Connecticut v. Beck Law Products Forms, LLC, 98 Conn.App. 234, 239, 907 A.2d 1274 (2006). "It is a fundamental principle of contract law that the existence and terms of a contract are to be determined from the intent of the parties. . . The parties' intentions manifested by their acts and words are essential to the court's determination of whether a contract was entered into and what its terms were. . . Whether the parties intended to be bound without signing a formal written document is an inference of fact for the trial court. . ." (Internal quotation marks omitted.) MD Drilling and Blasting, Inc. v. MLS Construction, LLC, 93 Conn.App. 451, 454-55, 889 A.2d 850 (2006). "In order for an enforceable contract to exist, the court must find that the parties' minds had truly met. . . If there has been a misunderstanding between the parties, or a misapprehension by one or both so that their minds have never met, no contract has been entered into by them and the court will not make for them a contract which they themselves did not make." (Internal quotation marks omitted.) Id., 456.
It is well established that "the negligent performance of a contract may give rise to an action and recovery in both tort and breach of contract. See 57A Am.Jur.2d Negligence §§ 119-25 (1989). To sustain an action in both tort and contract, however, on the basis of negligent performance of a contract, the plaintiff must allege facts and damages sufficient to maintain those causes of actions separately." (Emphasis added.) Bonan v. Goldring Home Inspections, Inc., 68 Conn.App. 862, 872 n. 7, 794 A.2d 997 (2002).
In this case, the court finds that the McCaffreys and Boucher had made numerous but inchoate efforts to communicate with each other concerning the exact nature and extent of construction services the homeowners requested, and the builder intended to perform, at the residential property in question. Applying the legal principles enunciated above, however, the homeowners can only enforce their contractual rights to the extent that the can prove they had entered into a valid oral contract for the performance of certain, specified construction services. Taken as a whole, the court finds that an enforceable contract exists insofar, but only insofar, as the preponderant evidence establishes that "the parties' minds had truly met" on certain subjects, such as the McCaffreys' agreement to pay Boucher for his provision of "work to be completed in a workmanlike manner according to standard practices." Those aspects of the construction for which valid, enforceable oral contracts have been proved to exist, under the circumstances of this case, include the agreements for: workmanlike installation of the roof upon the garage addition; workmanlike alignment of the front walls of the garage addition; workmanlike construction of the threshholds and level flooring in the sunroom addition, along with the proper removal and restoration of the area in which the bathroom window had existed on the common wall with the sunroom addition; workmanlike construction of the roof upon the sunroom addition; and workmanlike preservation of the homeowners' newly poured and installed cement structures in front of the garage and in the area of the sidewalk. (Exhibits 2, 3, 4, 5.) See Electrical Wholesalers v. M.J.B. Corp., supra, 99 Conn.App. 301; MD Drilling and Blasting, Inc. v. MLS Construction, LLC, supra, 93 Conn.App. 454-55.
Insofar as these particular aspects of the construction project at the residence was concerned, the parties' "exchange of promises is sufficient consideration to support a contract." (External citation omitted.) Keefe v. Norwalk Cove Marina, Inc., supra, 57 Conn.App. 606. Moreover, as fully discussed in Part II., the McCaffreys paid consideration to Boucher, fulfilling their part of the contract; they even attempted to communicate with the builder in an effort to obtain remediation directly from him, although instead, Boucher elected to leave the job as of mid-November 2003. Incorporating the discussion of negligence set forth in Part IV. A., above, the court finds that the builder further failed to comply with his explicit and implicit oral contract to complete the aforementioned aspects of the home improvement projects "in a workmanlike manner according to standard practices." (Exhibits 2, 3, 4, 5; Testimony of D.D., C.M.) Instead, Boucher breached these contractual obligations and agreements through the negligent conduct described in Part IV. A., thereby causing damages to the homeowners as a result of each breach. See Whitaker v. Taylor, supra, 99 Conn.App. 728.
The McCaffreys may argue that their oral contract with Boucher extended to the performance of numerous other construction projects, consistent with Cheryl McCaffrey's testimony as described in Part II., above. They may, for instance, argue that they had an enforceable contract with Boucher for the construction of a certain ceiling height in the sunroom addition, for the creation of a subfloor that would prevent cracking of ceramic tile laid on top; for the excision and casing of a pass-through opening between the kitchen and the sunroom addition, for the construction of a particular type of entryway into the cellar, among other things. However, the evidence presented in this case is insufficient to support even the inference that the parties' minds ever met on any subjects other than those addressed already determined to be a part of the valid, enforceable oral contract. At the least, as to the other areas of the McCaffreys' complaints with Boucher's work, "there has been a misunderstanding between the parties, or a misapprehension by one or both so that their minds have never met, [so that] no contract has been entered into by them and the court will not make for them a contract which they themselves did not make. . ." (External citation omitted.) Electrical Wholesalers v. M.J.B. Corp., supra, 99 Conn.App. 301. The evidence, taken as a whole, fails to support the existence of definite certainty as to any other aspects of the oral contract's terms and requirements, beyond those described in Parts IV. A. 1. and 2., rendering any other element of the McCaffreys' breach of contract claims unenforceable in this case. Id., 301; see also 111 Whitney Avenue, Inc. v. Commissioner of Mental Retardation, supra, 70 Conn.App. 699.
2. DAMAGES
The measure of damages for breach of contract is, in a case such as this, similar to the premise for the award of damages where one party's negligence has caused harm to another, as described in Part IV. A. 2. "As a general rule, contract damages are awarded to place the injured party in the same position as he would have been in had the contract been fully performed. Fuessenich v. DiNardo, 195 Conn. 144, 153, 487 A.2d 514 (1985). General contract damages are allowable whenever they arise directly from and as a natural consequence of the breach." (Internal quotation marks omitted; internal and external citations omitted.) Barry v. Posi-Seal International, Inc., 36 Conn.App. 1, 27 (1994). " `Damages are recoverable only to the extent that the evidence affords a sufficient basis for estimating their amount in money with reasonable certainty.'. . . Lawson v. Whitey's Frame Shop, 241 Conn. 678, 689-90, 697 A.2d 1137(1997)." Dent v. Lovejoy, 85 Conn.App. 455, 470-71, 857 A.2d 952 (2004). See also Expressway Associates II v. Friendly Ice Cream Corp. of Connecticut, 218 Conn. 474, 477, 590 A.2d 431 (1991). Moreover, " `[i]t is axiomatic that the burden of proving damages is on the party claiming them. Gargano v. Heyman, 203 Conn. 616, 620, 525 A.2d 1343 (1987); Conaway v. Prestia, 191 Conn. 484, 493-94, 464 A.2d 847 (1983); Dixon v. Trubisz, 17 Conn.App. 216, 217-18, 551 A.2d 1259 (1988)." 24 Leggett Street Limited Parts. v. Beacon Industries, 239 Conn. 284, 308, 685 A.2d 305 (1996).
Adopting and incorporating the measure of damages set forth in Part IV. A. 2., above, the court finds that the McCaffreys are entitled to an award of $16,342 as damages for Boucher's breach of their oral contract. However, notwithstanding the fact that the McCaffreys have met their burden of proving liability and damages on their breach of contract counterclaim, they are prohibited from duplicating the recovery to which they are entitled as the result of their success on the negligence counterclaims. See Bonan v. Goldring Home Inspections, Inc., supra, 68 Conn.App. 865. They may recover from Boucher the sum of $16,342 in its entirety, but no more than once, as a plaintiff is "not entitled to recover twice for the same elements of damage. . . growing out of the same transaction, occurrence or event. . . Put another way, the plaintiff cannot twice suffer damage. . . from. . . one transaction. Thus, he should not twice recover damages." (Internal quotation marks omitted.) Id., 870.
In Bonan v. Goldring Home Inspections, Inc., supra, 68 Conn.App. 865, the homeowner sued the home inspector for, inter alia, both negligence and breach of an oral contract. On review, the Appellate Court explained that "despite invoking separate theories of liability, the plaintiff cannot recover twice for expending `considerable sums to correct and repair the problems with the premises. . .' " (Emphasis added.) Id., 870.
C. UNJUST ENRICHMENT 1. LIABILITY
In Count Three of their counterclaim, the McCaffreys allege that they "paid Boucher an amount that exceeded the value of the work he performed" and that thereby "Boucher has been unjustly enriched." The legal elements of a cause of action sounding in unjust enrichment are set forth in Part III. B., above: the "right of recovery under the doctrine of unjust enrichment is essentially equitable, its basis being that in a given situation it is contrary to equity and good conscience for one to retain a benefit which has come to him at the expense of another. . . The Plaintiff seeking recovery for unjust enrichment must prove (1) that the defendants were benefitted, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs' detriment. . ." (External citations omitted.) Jo-ann Stores v. Property Operating Co., supra, CT Page 11184 91 Conn.App. 194; see also Gagne v. Vaccaro, supra, 255 Conn. 409.
Applying the foregoing principles of law to the facts of this case requires a somewhat inverted analysis. The findings and conclusions set forth in Parts II., IV. A. and B. establish that Boucher benefitted from the McCaffreys' payment to him of $25,000 for construction services; that it will cost the McCaffreys $16,342 to remedy the defective conditions caused by Boucher's negligence and/or breach of contract in the course of his work at the residence; and that if Boucher fails to return to the homeowners the remedial portion of the $25,000 they previously paid him, the McCaffreys will be adversely affected, to their detriment. See Jo-ann Stores v. Property Operating Co., supra, 91 Conn.App. 194; Gagne v. Vaccaro, supra, 255 Conn. 409. "[T]he measure of damages in an unjust enrichment case ordinarily is not the loss to the plaintiff but the benefit to the defendant. Hartford Whalers Hockey Club v. Uniroyal Goodrich Tire Co., [ supra, 231 Conn. 285]." Ramondetta v. Amenta, 97 Conn.App. 151, 165, 903 A.2d 232 (2006). In determining whether to award damages upon a claim of unjust enrichment, " `[w]ith no other test than what, under a given set of circumstances, is just or unjust, equitable or inequitable, conscionable or unconscionable, it becomes necessary in any case where the benefit of the doctrine is claimed to examine the circumstances and the conduct of the parties and apply this standard.' Cecio Bros., Inc. v. Greenwich, 156 Conn. 561, 564-65, 244 A.2d 404 (1968)." Id., 166.
2. DAMAGES
Taking the evidence as a whole, and using a strict application of the legal foundations for the theory of unjust enrichment, the evidence is sufficient to establish that the counterclaimants have met their burden of proof on this count. By paying Boucher $25,000, the home improvement contractor "received a benefit at [the McCaffreys'] expense under circumstances that would otherwise make it unjust for him to retain the benefit" in its entirety, without paying the costs established to be $16,342, necessary and reasonable for remediation of the defective conditions he created at their residence. Gagne v. Vaccaro, supra, 255 Conn. 409. The value of Boucher's unjust enrichment, established by the preponderant evidence relevant to the third count, is thus established to be $16,342.
However, as discussed in Part IV. B. 2., above, although the McCaffreys have met their burden of proving liability and damages on their negligence and breach of contract counterclaims, they are prohibited from multiplying the recovery to which they are entitled as the result of their success. See Bonan v. Goldring Home Inspections, Inc., supra, 68 Conn.App. 865. Similarly, even though the counterclaimants have brought a third count sounding in unjust enrichment, having prevailed against Boucher on the first, negligence count, and having also prevailed on their second, breach of contract count, although a measure of damages may be determined for the third, unjust enrichment count, only a single award of damages may be assigned to the McCaffreys. Whitaker v. Taylor, supra, 99 Conn.App. 729 n. 7, citing M.D. Drilling Blasting, Inc. v. MLS Construction, LLC, supra, 96 Conn.App. 804.
In reaching this determination, the court acknowledges that McCaffreys' counterclaims have raised distinct factual circumstances giving rise to each cause of action brought forward. Separately considering these claims, the McCaffreys have presented proof that they have suffered damages, in the alternative, as the result of Boucher's conduct in breaching their oral contract, in performing some work in a substandard fashion, and/or in retaining the homeowners' payments in an amount that exceeded the value of the home improvement services he provided to them. The McCaffreys have made no claim, however, that they are entitled to a separate award of damages equal to the amount of financial loss they have suffered as the result of Boucher's conduct in each of the three ways alleged. Rather, they claim to be entitled to recover the amount of financial loss they have proved to have been directly and consequently caused by Boucher's conduct, without any multiplier applied to that amount even though they may have prevailed on one or more of the counts brought against the contractor.
V. CONCLUSION
Here, the court has found that Boucher is precluded from recovery against the McCaffreys by operation of the HIA. The court has further found that the McCaffreys have met their burden of proving each of the three counterclaims presented. The court awards damages equivalent to the amount of financial loss they have proved themselves to have sustained, in the full amount of $16,342, without duplication or multiplication, in full compliance with the spirit and letter of Bonan v. Goldring Home Inspections. Inc., supra, 68 Conn.App. 872 n. 7 and Whitaker v. Taylor, supra, 99 Conn.App. 729 n. 7.
WHEREFORE, judgment on the Complaint brought by Boucher shall enter in favor of the defendants Cheryl McCaffrey and Henry McCaffrey.
AND WHEREFORE, judgment on Count One of the counterclaim shall enter in favor of the counterclaim plaintiffs and against the counterclaim defendant Boucher; judgment on Count Two of the counterclaim shall enter in favor of the counterclaim plaintiffs and against the counterclaim defendant Boucher; and judgment on Count Three of the counterclaim shall enter in favor of the counterclaim plaintiffs and against the counterclaim defendant Boucher;
AND WHEREFORE, the court hereby orders the counterclaim defendant Boucher to pay the sum of $16,342 in money damages to the counterclaim plaintiffs, Cheryl McCaffrey and Henry McCaffrey, but without further award of any costs or fees not expressly allotted to the prevailing party pursuant to statute or rule of court, in the absence of a prayer for relief.