Opinion
No. AAN CV05 4003257
January 23, 2008
MEMORANDUM OF DECISION
The plaintiff, Darius Kaczynski, has brought this action for damages against the defendant J. Videira's Paving, L.L.C. for the defective installation of a residential driveway. The action was tried to the court without a jury in November 2007. The court finds the following material facts.
On or about May 21, 2002, the plaintiff and the defendant entered into a written contract in which the defendant agreed to remove an existing deteriorated driveway at the plaintiff's home, and pave a new driveway for the contract price of $7,200. The driveway was approximately 4,500 square feet in area and sloped. Included, though not mentioned in the contract price, was the removal of a fuel tank. The contract was on a form prepared by the defendant and provided in pertinent part: "NEW DRIVEWAY IN EXISTING PLACE REMOVE THE OLD AND REPLACE WITH 4-5" PROCESS AND 3" TO 2" ASPHALT COMPACTED." The plaintiff never inquired of the defendant what the language "3" TO 2" ASPHALT COMPACTED" meant.
The plaintiff was not required to pay a deposit. The work commenced six to eight weeks later and lasted for roughly two to three days. The plaintiff paid the contract price. In April 2004, the plaintiff noticed that the driveway was cracking in spots. In May 2005, he brought this action. He alleges five theories of recovery in his five-count amended complaint.
Additional facts will be set forth as necessary.
I
Count one is for breach of contract and alleges that the defendant "failed to install the contract-required amount of asphalt, and in addition the asphalt is not the required thickness." As a result, the plaintiff claims, he "has failed to receive his full consideration due under the agreement" and "also suffers, as a result of the defendant's actions, damage to his property in that his driveway is cracked, crumbling and is unsightly."
"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.) Whitaker v. Taylor, 99 Conn.App. 719, 728, 916 A.2d 834 (2007). The plaintiff argues that the contract for the driveway required the defendant to "lay down 3 inches of asphalt and compact it down to 2 inches of thickness." The plaintiff also claims that test results in three areas of the driveway showed a pavement depth of less than two inches.
The defendant counters that "[t]he limited evidence concerning the core samples without specific identification of the areas sampled is insufficient to demonstrate that [it] failed to provide what was agreed in the contract." The defendant also asserts that "the areas abutting the rear walkway and side of the driveway demonstrated at least 2 to 3 inches of asphalt." The defendant also points to the testimony of one of its employees that during the paving process "the machine would supply between 3 to 2 inches of asphalt . . . and then it would be compacted." Despite the defendant's assertions, the court agrees with the plaintiff.
Whether or not the defendant breached the contract turns on how the contract language is construed. "A contract must be construed to effectuate the intent of the parties, which is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction . . . [T]he intent of the parties is to be ascertained by a fair and reasonable construction of the written words and . . . the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract . . . Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity. Similarly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party's subjective perception of the terms." (Internal quotation marks omitted.) Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., 252 Conn. 479, 498, 746 A.2d 1277 (2000).
"Contract language is unambiguous when it has a definite and precise meaning about which there is no reasonable basis for a difference of opinion." Paul Revere Life Ins. Co. v. Pastena, 52 Conn.App. 318, 322, 725 A.2d 996, cert. denied, 248 Conn. 917, 734 A.2d 567 (1999), citing CT Page 1159 Levine v. Advest, Inc., 244 Conn. 732, 746, 714 A.2d 649 (1998). A "contract is ambiguous if [the] agreement on its face is reasonably susceptible of more than one interpretation." Middlesex Mutual Assurance Co. v. Vaszil, 279 Conn. 28, 36, 900 A.2d 513 (2006). Here, the contract is ambiguous. The contract language "3" TO 2" ASPHALT COMPACTED" is reasonably susceptible of meaning either (1) two to three inches of asphalt which is then compacted, presumably to a lesser thickness, or (2) two to three inches of asphalt after compaction.
"When an ambiguous term is at issue, the trial court can examine the extrinsic evidence to resolve the question of the parties' intent." (Internal quotation marks omitted.) Larson v. Jacobson, 38 Conn.App. 186, 190, 659 A.2d 753 (1995). Here, the extrinsic evidence — the testimony of the parties — does not significantly illuminate the issue. Simply, the plaintiff understood one thing, the defendant another.
"When there is ambiguity, we must construe contractual terms against the drafter." (Internal quotation marks omitted.) Rund v. Melillo, 63 Conn.App. 216, 222, 772 A.2d 774 (2001). Here, the defendant was the drafter of the contract. Construing the contractual term against the defendant the court finds that the agreement called for asphalt measuring two to three inches after compaction.
The evidence is that after compaction, there was between one and two inches of asphalt, as evidenced by core samples taken in various locations in the driveway. The depth of these samples measured 1 21/32," 1 1/8" and 1 15/32" respectively. Therefore, the defendant breached its contract with the plaintiff.
Turning next to the issue of damages, the plaintiff seeks damages for (1) receiving less asphalt than he bargained for, and (2) the resulting cracking of his driveway.
"It is axiomatic that the burden of proving damages is on the party claiming them . . . When damages are claimed they are an essential element of the plaintiff's proof and must be proved with reasonable certainty . . ." Damages are recoverable only to the extent that the evidence affords a sufficient basis for estimating their amount in money with reasonable certainty . . . (Internal quotation marks omitted.) Lawson v. Whitey's Frame Shop, 241 Conn. 678, 689, 697 A.2d 1137 (1997); see also Wasko v. Manella, 87 Conn.App. 390, 396, 865 A.2d 1223 (2005).
The plaintiff's driveway was approximately 4500 square feet in area. Jack Videira, an employee of the defendant who worked on the driveway, testified that the average charge in 2002, was $1.50 per square foot, but that this included removal of the old driveway. How much of the price was ascribed to removal of the old driveway is not disclosed by the evidence. The plaintiff has not advanced a reasonable basis for the court to award damages for his loss of the full benefit of the bargain and the court finds that the evidence does not afford a basis for a reasonable estimate.
The plaintiff also seeks damages for the premature deterioration of the driveway. The only evidence at trial — and it was from the plaintiff's own expert — was that this was not caused by inadequate asphalt, but from a chronic underground water problem of which the defendant was not apprised and which it was not hired to diagnose and correct. Had there been such an engagement, the contract price would have been higher.
It is generally acknowledged that "in every breach of contract . . . if there has been no actual damage, the injured party may recover nominal damages . . . Nominal damages are generally defined as a trivial sum awarded where a breach of duty or an infraction of the plaintiff's right is shown, but no serious loss is proved." (Footnotes omitted; internal quotation marks omitted.) Brock v. King, 279 Ga.App. 335, 341, 629 S.E.2d 829 (2006), aff'd, 282 Ga. 56, 646 S.E.2d 206 (2007). Therefore, on the first count of the complaint, the plaintiff is awarded $100 nominal damages for breach of contract. See Excelsior Needle Co. v. Smith, 61 Conn. 56, 65, 23 A. 693 (1891); see also Lar-Rob Bus Corp. v. Fairfield, 170 Conn. 397, 409, 365 A.2d 1086 (1976); Royal Parlor Coach Co. v. Susnitzky, 108 Conn. 605, 610, 143 A. 853 (1928); Joseloff Co. v. Spirt, 97 Conn. 447, 451, 117 A. 523 (1922), overruled on other grounds, State v. English, 132 Conn. 573, 582, 46 A.2d 121 (1946); Citizens' Committee of the North End v. Hampton, 19 Conn.Sup. 375, 378-79, 114 A.2d 388 (1955); Hyman v. Nicholson, 14 Conn.Sup. 240, 244 (1946); XL Specialty Ins. Co. v. Carvill America, Inc., Superior Court, complex litigation docket at Middletown, Docket No. X04 CV 04 4000148 (May 31, 2007, Beach, J.) [ 43 Conn. L. Rptr. 536]; Benvenuti Oil Co. v. Foss Consultants, Inc., Superior Court, judicial district of New London, Docket No. CV 01 0485270 (January 25, 2006, Corradino, J.); B. Finder Associates v. Coldform, Inc., Superior Court, judicial district of New Britain, Docket No. CV 03 0520375 (May 5, 2005, Burke, J.) [ 39 Conn. L. Rptr. 342]; Boniface Iheagwara v. Gay, Superior Court, judicial district of New Haven, Docket No. CV 04 4004844 (March 17, 2005, Corradino, J.); Gianetti v. Norwalk Hospital, Superior Court, judicial district of Fairfield, Docket No. CV 84 0214340 (September 9, 1999, Gormley, J.); Levine v. Advest, Inc., Superior Court, judicial district of Hartford, Docket No. CV 94 541857 (June 20, 1996, Corradino, J.) [ 17 Conn. L. Rptr. 90], rev'd on other grounds, 244 Conn. 732, 714 A.2d 649 (1998); CT Page 1161 Shay v. Gallagher, Superior Court, judicial district of Fairfield, Docket No. CV 93 0302341 (January 23, 1995, Levin, J.).
It is a fair question as to whether, in light of Right v. Breen, 277 Conn. 364, 372, 375, 890 A.2d 1287 (2006), nominal damages remain available for breach of contract. In Right v. Breen, the court held a plaintiff was not entitled to nominal damages in a negligence action in which the defendant had admitted liability but where the plaintiff had failed to prove that the negligence caused any injuries or damages. The court expressly overruled "the statement in Keller [v. Carone, 138 Conn. 405, 85 A.2d 489 (1951)], that a defendant's admission of liability in an action for negligence establishes a technical legal injury for which the plaintiff is entitled to at least nominal damages"; id., 376-77; and explained that "conduct that is merely negligent, without proof of an actual injury, is not considered to be a significant interference with the public interest such that there is any right to complain of it, or to be free from it." Id., 377. Thus, the court held, "a plaintiff must establish all of the elements of a negligence claim, inducing causation and actual injury, in order to recover and, therefore, the technical legal injury concept does not apply to a negligence action." Id., 370.
A breach of contract, such as that proven here, is qualitatively different however, than a finding or admission of negligence without a finding that the negligence caused any injury or damage. Here, the parties agreed that the defendant would provide asphalt measuring no less than two inches after compaction. It did not do so. The plaintiff did not receive the benefit of his bargain. In other words, there is no question that the plaintiff proved that the defendant's breach caused the plaintiff a loss. He paid for asphalt that he did not receive. The plaintiff simply failed to prove, as he might have, what this was worth.
This court observes that subsequent to Right v. Breen, supra, 277 Conn. 364, the court in XL Specialty Ins. Co. v. Carvill America, Inc., Superior Court, complex litigation docket at Middletown, Docket No. X04 CV 04 4000148 (May 31, 2007, Beach, J.) [ 43 Conn. L. Rptr. 536], awarded nominal damages for breach of contract. In addition, the defendant has not challenged the plaintiff's entitlement to nominal damages.
II
Count two of the amended complaint asserts in relevant part:
15. The asphalt installed is substantially less than contract specifications.
16. This representation was made to induce the plaintiff into tendering payment.
17. The plaintiff, relying on the defendant's representation, tendered payment to his detriment.
18. As a result of plaintiff's reliance upon the defendant [sic] verbal representations, the plaintiff has been deprived of seven thousand two hundred dollars.
The count bears the heading "MISREPRESENTATION/FRAUD." Looking to the substance of this pleading; see In re Haley B., 262 Conn. 406, 412-13, 815 A.2d 113 (2003); State v. Torres, 206 Conn. 346, 353, 538 A.2d 185 (1988); Fewtrell v. Fewtrell, 87 Conn.App. 526, 532, 865 A.2d 1240 (2005); Jaser v. Jaser, 37 Conn.App. 194, 202, 655 A.2d 790 (1995); Whalen v. Ives, 37 Conn.App. 7, 17, 654 A.2d 798, cert. denied, 233 Conn. 905, 657 A.2d 645 (1995); this count states a claim for fraud, negligent misrepresentation or innocent misrepresentation.
"Fraud consists in deception practiced in order to induce another to part with property or surrender some legal right, and which accomplishes the end designed . . . The elements of a fraud action are: (1) a false representation was made as a statement of fact; (2) the statement was untrue and known to be so by its maker; (3) the statement was made with the intent of inducing reliance thereon; and (4) the other party relied on the statement to his detriment . . ." (Internal quotation marks omitted.) Terry v. Terry, 102 Conn.App. 215, 223, 925 A.2d 375, cert. denied, 284 Conn. 911, 931 A.2d 934 (2007). The plaintiff did not prove fraud because the defendant's statement as to the amount of asphalt to be used was made in good faith. See Dwyer v. Redmond, 103 Conn. 237, 241, 130 A. 108 (1925) ("Fraud cannot be found upon false representations made negligently, or erroneously, but made in good faith and not recklessly").
The Connecticut Supreme Court, however, "has long recognized liability for negligent misrepresentation . . . One who, in the course of his business, profession or employment . . . supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information." (Emphasis added; internal quotation marks omitted.) Updike, Kelly Spellacy, P.C. v. Beckett, 269 Conn. 613, 643, 850 A.2d 145 (2004). Just as, as discussed in part I, the plaintiff failed to prove actual damages for breach of contract, he failed to prove actual damages as a result of any misrepresentation. Moreover, the Supreme Court recently held that in an action for negligence, nominal damages may not be awarded. See Right v. Breen, 277 Conn. 364, 372, 376-77, 890 A.2d 1287 (2006). "Because negligent misrepresentation is a tort sounding in negligence"; Kramer v. Petisi, 91 Conn.App. 26, 35, 879 A.2d 526, cert. granted on other grounds, 276 Conn. 916, 888 A.2d 84 (2005); the plaintiff is not entitled to nominal damages.
Finally, the "court has long recognized liability for innocent misrepresentation. The elements of this cause of action are (1) a representation of material fact, (2) made for the purpose of inducing the purchase, (3) the representation is untrue, and (4) there is justifiable reliance by the plaintiff on the representation by the defendant and (5) damages." (Internal quotation marks omitted.) Matyas v. Minck, 37 Conn.App. 321, 333, 655 A.2d 1155 (1995); see Johnson v. Healy, 176 Conn. 97, 405 A.2d 54 (1978).
Since nominal damages may not be awarded for negligent misrepresentation, it hardly makes sense to award them for innocent misrepresentation. As the Supreme Court recently stated: "Although the rule making actual damage an element of a cause of action in negligence may have originated in the common law distinction between trespass and trespass on the case, we are not inclined to obliterate the distinction between intentional and unintentional conduct in terms of legal consequences which it serves to implement. Where the plaintiff's right has been intentionally invaded, its vindication in a court of law and the award of nominal and even exemplary damages serves the policy of deterrence in a real sense. It is difficult to imagine what purpose would be furthered by permitting anyone who is jostled in a crowd or otherwise suffers some unintended contact with his person or injury to his dignity to set in motion the judicial machinery necessary for a recovery of nominal damages. See 1 Restatement (Second), Torts § 18, comment g [1965]. That judges and juries have more important business to occupy them is as true today as it was in ancient times when the rule originated. There is nothing arcane about the wisdom of not cluttering the courts with trivia." (Internal quotation marks omitted.) Right v. Breen, supra, 277 Conn. 375-76.
Accordingly, judgment may enter for the defendant on this count.
III
The third count of the amended complaint alleges negligence against the defendant. In pertinent part, it alleges:
13. The contract amount of asphalt was not installed, in that it lacks sufficient material, and the required thickness was not produced.
14. As a result of the defendants [sic] actions the plaintiff's driveway has failed, in that it has begun to crack, break apart and is unsightly.
15. The plaintiff suffered and continues to suffer an injury to his property, the loss of his seven thousand two hundred dollars, as well as the unsightly condition of his property.
The "essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury . . ." (Internal quotation marks omitted.) Right v. Breen, supra, 277 Conn. 372. This count fails because, as discussed supra, the plaintiff failed to prove actual damages. Id., 376-77.
IV
Count four of the amended complaint alleges a cause of action for violation of the Home Improvement Act, General Statutes § 20-429. The court agrees with the plaintiff that the contract fails to comply with the Act. "The Home Improvement Act provides that no contract can be enforced against an owner unless the agreement complies with the formalities set forth in the statute." CCMS, LLC v. Hills Condominium Ass'n., Inc., Superior Court, judicial district of Fairfield, Docket No. CV 03 0408122 (July 11, 2005, Radcliffe, J.) [ 39 Conn. L. Rptr. 618]. "The matter is analogous to the statute of frauds as a defense to claims brought without a proper writing or memorandum binding the party to be charged. There, noncompliance is a defense to a lawsuit seeking payment which shields the defendant against the plaintiff's money damages claim." Bossler v. Oliver, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 98 062305 (December 17, 1998, Flynn, J.) ( 23 Conn. L. Rptr. 406). However, although the issue has not been decided by an appellate court, I previously held in Martinez v. Ciuffetelli, Superior Court, judicial district of Fairfield, Docket No. 292068 (February 8, 2000), and do so here, that the Home Improvement Act does not "provide an independent cause of action for a homeowner against a contractor." (Internal quotation marks omitted.). Accord, Mastroanni v. Frankson Fence Co., Superior Court, judicial district of New Haven, Docket No. CV 04 4000598 (July 25, 2007, Jones, J.); Belic v. Cavo, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 05 4004795 (July 26, 2006, Taylor, J.); CCMS, LLC v. Hills Condominium Ass'n., Inc., supra, Superior Court, judicial district of Fairfield, Docket No. CV 03 0408122 (July 11, 2005, Radcliffe, J.); Bossler v. Oliver, supra, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 98 062305 (December 17, 1998, Flynn, J.) ( 23 Conn. L. Rptr. 406, 406-07); LaRoche v. Kaylor, Superior Court, judicial district of Litchfield, Docket No. CV 02 0086757 (May 22, 2002, Walsh, J.); Liguori v. GVA Inc., Supreme Court, judicial district of New Haven, Docket No. CV 0446483 (September 19, 2001, Zoarski, J.T.R.) ( 30 Conn. L. Rptr. 448, 449-50.); Reilly v. Benoit, Superior Court, judicial district of New London, Docket No. 551426 (October 12, 2000, Hurley, J.T.R.) ( 28 Conn. L. Rptr. 390, 391); Faragasso v. DeGeorge Home Alliance, Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 97 0162664 (December 7, 1998, D'Andrea, J.); McClain v. Byers, Superior Court, judicial district of Fairfield, Docket No. CV 93 301761 (April 19, 1995, Hauser, J.) ( 14 Conn. L. Rptr. 99, 100).
V
The final count of the amended complaint alleges a cause of action for violation of the Connecticut Unfair Trade Practices Act based on the defendant's violation of the Home Improvement Act. A violation of the Home Improvement Act is a "per se" violation of the Connecticut Unfair Trade Practices Act. A. Secondino Son, Inc. v. LoRicco, 215 Conn. 336, 343, 576 A.2d 464 (1990). However, "in order to prevail in a CUTPA action, a plaintiff must establish both that the defendant has engaged in a prohibited act and that, 'as a result of' this act, the plaintiff suffered an injury. The language 'as a result of' requires a showing that the prohibited act was the proximate cause of a harm to the plaintiff. See generally Haesche v. Kissner, 229 Conn. 213, 223-24, 640 A.2d 89 (1994)." (Emphasis in original; internal quotation marks omitted.) Stevenson Lumber Co.-Suffield, Inc. v. Chase Associates, Inc., 284 Conn. 205, 214, 932 A.2d 401 (2007); see also Abrahams v. Young Rubicam, Inc., 240 Conn. 300, 306-07, 692 A.2d 709 (1997); cf. Vacco v. Microsoft Corp., 260 Conn. 59, 88, 793 A.2d 1048 (2002) ("notwithstanding the broad language and remedial purpose of CUTPA, we have applied traditional common-law principles of remoteness and proximate causation to determine whether a party has standing to bring an action under CUTPA"); Scrivani v. Vallombroso, 99 Conn.App. 645, 653-54, 653 n. 6, 916 A.2d 827, cert. denied, 282 Conn. 904, 920 A.2d 309 (2007). Suffice it to say that none of the damages which the plaintiff alleges were causally related to the violations of the Home Improvement Act.
Judgment enters for the plaintiff in the amount of $100 nominal damages on the first count for breach of contract. On the remaining counts, judgment enters for the defendant.