Opinion
No. CV 02 0187614 S
July 16, 2003
MEMORANDUM OF DECISION
This case, which was tried to an attorney trial referee, involves a dispute over the fees of an architect. The plaintiff homeowners, David Osherow and Cora Osherow, brought this action against the defendant, Roger Diao, an architect seeking a return of all monies paid to the defendant for documents prepared by him pursuant to a purported contract for architectural services for renovations to be made to the plaintiffs' residence at 26 Cedar Gate Road in Darien. In the first count of the complaint, the plaintiffs allege that the defendant was not a licensed architect in the State of Connecticut at the time his architectural services were rendered, in violation of Connecticut General Statutes § 20-290. In the same count the plaintiffs allege that the defendant made representations when the contract was signed which were false and known by the defendant to be false, that the design and construction documents prepared by the defendant were not suited for the purposes for which they were intended, and the plaintiffs paid the defendant $43,600 upon a contract which they claim is void or voidable as a matter of law. In six additional counts on substantially similar facts, the plaintiffs seek damages on other theories including fraud, violation of the Connecticut Unfair Trade Practices Act (CUPTA), negligence, detrimental reliance, breach of the covenant of good faith and fair dealing, and unjust enrichment. The defendant's answer denies the allegations of the plaintiffs' complaint, and includes 13 special defenses.
Following the trial of the case, the attorney trial referee issued his report containing his findings of fact, legal conclusions and recommendations, all pursuant to Practice Book § 19-8. The plaintiffs moved to strike the defendant's uncaptioned document filed in opposition to a motion for acceptance of the report of the attorney trial referee and for judgment in accordance with that report. The plaintiffs claim that the defendant's filing is, among other things, untimely. The court issues this memorandum of decision pursuant to its obligation to rule upon the propriety of the motion for acceptance of the report irrespective of the viability of the defendant's objection. "Although it is true that CT Page 8453-ae when the trial court reviews the attorney trial referee's report, the trial court may not retry the case and pass on the credibility of the witnesses, the trial court must review the referee's entire report to determine whether the recommendations contained in it are supported by findings of fact in the report . . . [W]e note that, because the attorney trial referee does not have the powers of the court and is simply a fact finder any legal conclusions reached by an attorney trial referee have no conclusive effect . . . [T]he reviewing court is the effective arbiter of the law and the legal opinions of an attorney trial referee, like those of the parties, though they may be helpful, carry no weight not justified by their soundness as viewed by the court that renders judgment. Where legal conclusions are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts found by the referee." (Citations omitted; internal quotation marks omitted.) Alliance Partners, Inc. v. Oxford Health Plans, Inc., 263 Conn. 191, 201 (2003).
The attorney trial referee found the following relevant facts. The plaintiffs and the defendant first met in November 1999 at the plaintiffs' home, for the purpose of discussing plans for the renovation of the plaintiffs' residence. The plaintiffs were interested in adding a family room and master bedroom suite, renovating the kitchen and in making other more minor upgrades. The defendant later prepared an agreement and sent it to the plaintiffs, which agreement was entered into as of February 11, 2000 and provided for architectural services to be performed for the plaintiffs at compensation set forth in the agreement. During the course of the year 2000, the defendant presented to the plaintiffs a set of final solution drawings which were the result of a number of meetings and at least one draft set of drawings. In March 2001 the defendant delivered construction plans and a project manual for use in connection with the solicitation of contractors' bids. The plaintiffs made payment to the defendant between February 11, 2000 and January 12, 2001 in a total amount of $43,600. The defendant was not licensed as an architect in Connecticut until on or after May 23, 2001. In October 2001 the plaintiffs advised the defendant in writing that they were not proceeding with the renovations.
The attorney trial referee states that "the two core claims of the plaintiffs are that (1) the design and construction documents prepared by the defendant were not suited for the purpose for which they were intended in that they were not complete, detailed documents capable of being used by the plaintiffs and their contractor for bidding and building purposes, and (2) that the defendant was not a licensed architect in the State of Connecticut at the time the services were rendered." The attorney trial referee concluded that because the CT Page 8453-af defendant failed to hold a license to practice architecture at the time of entering into the agreement with the plaintiff, as well as when he delivered design and construction drawings to them, the defendant was in violation of Connecticut General Statutes § 20-290, rendering the contract between the parties void and unenforceable. The attorney trial referee also concluded that the defendant's activities were not exempt from the licensing requirements under Connecticut General Statutes § 20-298. Because, for the reasons that follow, the court concludes that the activities of the defendant in this case were exempt under Connecticut General Statutes § 20-298 (2), the report must be rejected and the case remanded to the attorney trial referee for further proceedings. "[T]he trial court must review the referee's entire report to determine whether the recommendations contained in it are supported by findings of fact in the report." (Internal quotation marks omitted.) Killion v. Davis, 257 Conn. 98, 102, 776 A.2d 456 (2001). Second, the court must ensure that the report does not contain "legal conclusions for which there are no subordinate facts." (Internal quotation marks omitted.) Id. Third, the report must be reviewed to determine if it is "legally and logically correct." (Internal quotation marks omitted.) Id., 103.
Connecticut General Statutes § 20-290, reads in pertinent part as follows: ". . . no person shall practice architecture in this state, . . . or use the title `architect' or display or use any words, letters, figures, title, sign, seal, advertisement or other devise to indicate that such person practices or offers to practice architecture, unless such person has obtained a license as provided in this chapter."
Connecticut General Statutes § 20-298, reads in pertinent part as follows: "the following activities are exempted from the provisions of this chapter: . . . (2) the construction or alteration of a residential building to provide dwelling space for not more than two families . . . (8) the making of plans and specifications for or supervising the erection of any building, any building addition, or any alteration to an existing building, where the building, including any addition, contains less than 5,000 square feet total area . . ."
In reaching his legal conclusions, the attorney trial referee relies almost entirely on Garten v. Chachkes, Superior Court, judicial district of Stamford/Norwalk at Stamford, docket number CV 870091673 (August 28, 1990, Lewis, J.), 2 Conn.L.Rptr. 308. In that case, summary judgment was granted against the architects because they were not licensed pursuant to Connecticut General Statutes § 20-290, and because the court found that the exemptions of § 20-298 did not apply. The activities engaged in by the architects in Garten involved a residential building as well as a building which was less than 5,000 square feet, meeting the requirements of §§ 20-298 (2) and 20-298 (8). Nevertheless, the court found that the exemptions were inapplicable, citing Design Development, Inc. v. Brignole, 20 Conn. App. 685, 570 A.2d 221 (1990), for the proposition "that once a person practiced as or held himself out as an architect the statute is applicable and the contract becomes illegal, void . . . and unenforceable." Garten v. Chachkes, supra.
Design Development is distinguishable from Garten. In Garten, the issue was whether the § 20-298 exemptions could be invoked on behalf of the architects. Design Development denied the plaintiff's architect recovery because they were not licensed under § 20-290 and the Appellate Court rejected the architects' argument that they should recover in any event because the defendant knew that they were unlicenced and therefore was in pari delicto with the plaintiffs. It is in this context that Design Development was decided and the facts of that case did not implicate any CT Page 8453-ag exemption provision of Connecticut General Statutes § 20-298. The building involved in that case was neither a residential building nor a building less than 5,000 square feet in size. The Appellate Court correctly held that "once [a person] practiced as and held himself out as an architect . . . his contract with [the defendant] was rendered illegal, void as against public policy and unenforceable. (Internal quotation marks omitted; citations omitted.) Design Development Inc. v. Brignole, supra, 20 Conn. App. 688. This court believes that the court in Garten improperly applied the language of Design Development, and should have analyzed the exemption sections of the statute in the context presented.
In interpreting a statute, the court must discern the intent thereof by considering the legislative history of the statute, as well as the words of the statute itself in a reasoned search for the intention of the legislature. State v. Courchesne, 262 Conn. App. 537, 577 (2003). Initially the court notes that the word "exempts" means "to free from an obligation or liability to which others are subject." The Random House Dictionary of the English language, 2nd edition; "an exemption implies special privilege or freedom from imposed requirements." Id. Conn. General Statutes § 20-298 exempts from the requirements of § 20-290 the performance of architectural work on one- or two-family dwellings. There is nothing in the exemption provisions of § 20-298 which excludes architecturally trained individuals from its protection. The clear provisions of the statute exempt certain activities from the license requirements of 20-290, by whomever they are performed. Any other interpretation would prohibit from providing services of an architectural nature, an experienced and trained architect, who for whatever reason does not possess a license in Connecticut at the time he delivers such services, while a total stranger to the profession may perform the same services with impunity, and presumably collect or retain fees therefor. The court cannot recognize such a result. It is a "well established canon of statutory construction that those who promulgate statutes or rules do not intend to promulgate statute or rules that lead to absurd consequences or bizarre results." Hasselt v. Lufthansa German Airlines, 262 Conn. 416, 427, 815 A.2d 94 (2003), citing Hartford Courant Co. v. Freedom of Information Commission, 261 Conn. 86, 801 A.2d 759 (2002); Vibert v. Board Of Education, 260 Conn. 167, 177, 293 A.2d 1076 (2002). In addition, there is nothing in the legislative history of § 20-298 which would suggest that there is any legislative intent to exclude trained or graduate architects from its exemptions.
Although § 20-298 (2) actually exempts "the construction or alteration of a residential building . . ." Declaratory Ruling Number 93-1 of the Connecticut Architectural Licensing Board assumes that the statute is referring to architectural services regarding such buildings. The subsection reads as follows: "subsection [2] of § 20-298 allows a person not licensed as an architect to perform architectural work on: (a) one or two family buildings." Connecticut Architectural License Board Declaratory Ruling Number 93-1, § IIIB. (Exhibit B.)
Accordingly, the court finds that the legal conclusion reached by the attorney trial referee, based upon the facts found in his report, is not logically and legally correct. Killion v. Davis, supra, 257 Conn. 103. CT Page 8453-ah Rather, because the defendant rendered services involving a one- or two-family residence, he was exempt by virtue of § 20-298 (2) from the licensing requirements of § 20-290. Therefore, contrary to the conclusion of the attorney trial referee, the contract between the parties was not void and unenforceable because of the defendant's failure to hold an architect's license.
The attorney trial referee's report is silent on the size of the dwelling and its proposed addition. Since no transcript was provided, the court cannot determine whether the defendant is also exempt under § 20-298 (8). Under this section, architectural services for buildings and CT Page 8453-ai additions less than 5,000 square feet are also exempt activities.
The report of the attorney trial referee is rejected and the case is remanded to the attorney trial referee to determine the claims of the plaintiffs raised in the fourth, fifth, sixth and seventh counts of their amended complaint.
The issues raised by the plaintiffs in these counts were not addressed in the attorney trial referee's report because of his finding that the defendant was required to be licensed, and the attorney trial referee concluded that he was not required to address them. The fourth through seventh counts allege, respectively, negligence, detrimental reliance, breach of the covenant of good faith and fair dealing, and unjust enrichment. The attorney trial referee also found that the plaintiffs failed to present sufficient evidence to sustain their claims of fraud and violation of CUTPA raised in their second and third counts.
BY THE COURT
D'ANDREA, J.T.R.