Opinion
HHDCV176084848S
02-22-2019
Lamont A. QUINITCHET v. Malik JEMISON et al.
UNPUBLISHED OPINION
OPINION
HON. RUPAL SHAH, Judge
The plaintiff, Lamont A. Quinitchet, brings this action in five counts against the defendants: Malik Jemison; Darlene Arter; JN, LLC; and RIM Construction, LLC. The plaintiff brings the following claims in connection with his contract for home improvement with the defendants: (1) violations of the Connecticut Unfair Trade Practices Act (CUTPA), pursuant to General Statutes § 42-110a et seq. and (2) violations of the Home Improvement Act, pursuant to General Statutes § 20-418 et seq.
The only defendant that appeared in the matter is Darlene Arter. The other defendants have failed to appear in the matter and a default judgment shall enter as provided herein. The matter was heard by the court on February 14, 2019. The court received certain documents into evidence and heard the testimony of the plaintiff and the defendant, Ms. Arter. After consideration of all the evidence presented, and for all the reasons provided herein, the court finds for the plaintiff against all the defendants, with the exception of Ms. Arter. With respect to the one appearing defendant, the court finds that the plaintiff failed to meet his burden of proof against her individually.
FINDINGS OF FACT
"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." (Internal quotation marks omitted.) Cavolick v. DeSimone, 88 Conn.App. 638, 646, 870 A.2d 1147, cert. denied, 274 Conn. 906, 876 A.2d 1198 (2005). "It is well established that in cases tried before courts, trial judges are the sole arbiters of the credibility of witnesses and it is they who determine the weight to be given specific testimony ... It is the quintessential function of the fact finder to reject or accept certain evidence." (Internal quotation marks omitted.) In re Antonio M., 56 Conn.App. 534, 540, 744 A.2d 915 (2000). "The sifting and weighing of evidence is peculiarly the function of the trier [of fact]." Smith v. Smith, 183 Conn. 121, 123, 438 A.2d 842 (1981). "[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 their testimony." (Internal quotation marks omitted.) Toffolon v. Avon, 173 Conn. 525, 530, 378 A.2d 580 (1977).
The court has weighed all the evidence and assessed the testimony and credibility of the witnesses and finds the following facts:
1. The parties entered into a written contract on September 30, 2015 (the contract) for the defendant to perform certain home improvement and construction services, including mold remediation, to the plaintiff’s home located at 150 Giddings Avenue, Windsor, Connecticut (the property) for the contract price of $ 13, 850.
2. The plaintiff was unable to reside in the home during the home improvement work and resided at a hotel until April of 2016.
3. On or about March 26, 2016, additional terms and work were added to the contract, for a total charge of $ 23, 152.00.
4. The defendant, Malik Jemison, is a resident of Connecticut and represents himself as a licensed home improvement contractor (Reg. HIC.0637558) doing business as RIM Construction, LLC.
5. The defendant, Darlene Arter, was not involved in the contract entered into by the plaintiff and Mr. Jemison. She had limited involvement and only cashed certain checks on behalf of Mr. Jemison and received one piece of mail for Mr. Jemison.
6. The plaintiff’s only contact for the work was with Mr. Jemison and he was the defendant that started the actual work under the contract.
7. The entire project was to commence on or before October 11, 2015, and be substantially completed on or before November 15, 2015. The completion date was later revised to March 26, 2016.
8. The plaintiff has paid the defendants $ 16, 750, in accordance with the contract.
9. The defendants failed to perform the work provided for in the contract, and such work as was performed was done in a shoddy and unworkman-like manner.
10. The defendants have failed to perform pursuant to said contract, and have not provided any services or material since April 3, 2016.
11. As a result of the defendants’ breach of the contract, the plaintiff has been obligated to hire and employ other contractors to both finish the work contemplated by the contract, and to complete the work obligated under the contract. The plaintiff incurred additional costs of $ 8, 102.72 for labor and materials and $ 390 for the costs of a dumpster.
12. Despite demand, the defendants have refused or neglected to make payments for all of the aforesaid damages and additional costs. In addition to not completing the contract, the defendants failed to complete the contract in a proper and workmanlike manner. Their conduct was an unfair trade practice.
13. The contract entered into between the parties fails to have all terms required by the Home Improvement Act, including but not limited to, a notice regarding the plaintiff’s cancellation rights.
LEGAL STANDARD
"A default admits the material facts that constitute a cause of action ... and entry of default, when appropriately made, conclusively determines the liability of a defendant ... If the allegations of the plaintiff’s complaint are sufficient on their face to make out a valid claim for the relief requested, the plaintiff, on the entry of a default against the defendant, need not offer evidence to support those allegations ... Therefore, the only issue before the court following a default is the determination of damages." (Emphasis original; internal quotation marks omitted.) Whitaker v. Taylor, 99 Conn.App. 719, 725-26, 916 A.2d 834 (2007). The burden of proof for an award of more than nominal damages is a preponderance of the evidence. Id., 735.
"In determining whether a practice violates CUTPA, we are guided by the criteria set out in the Federal Trade Commission’s so-called cigarette rule: (1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise— in other words, it is within at least the penumbra of some common-law, statutory, or other established concept of fairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers, [competitors or other businesspersons] ... All three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three." (Citations omitted; internal quotation marks omitted.) Scrivani v. Vallombroso, 99 Conn.App. 645, 648-49, 916 A.2d 827 (upholding trial court’s finding that home improvement contractor violated CUTPA), cert. denied, 282 Conn. 904, 920 A.2d 309 (2007).
"Our Supreme Court has stated on several occasions that under the first requirement, the failure to comply with the Home Improvement Act is a per se violation of CUTPA by virtue of General Statutes § 20-427(b), which provides that any violation of the Home Improvement Act is deemed to be an unfair or deceptive trade practice." (Internal quotation marks omitted.) Scrivani v. Vallombroso, supra, 99 Conn.App. 652 (further holding that plaintiff must still prove that damages were caused by the violation of the Home Improvement Act to recover under CUTPA).
"The plaintiff who establishes CUTPA liability has access to a remedy far more comprehensive than simply damages recoverable under common law. The ability to recover both attorneys fees; General Statutes § 42-110g(d); and punitive damages; General Statutes § 42-110g(a); enhances the private CUTPA remedy and serves to encourage private CUTPA litigation." (Footnote omitted.) Hinchliffe v. American Motors Corp., 184 Conn. 607, 617, 440 A.2d 810 (1981). General Statutes § 42-110g(a) provides: "Any person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by [General Statutes § 42-110b], may bring an action ... to recover actual damages. Proof of public interest or public injury shall not be required in any action brought under this section. The court may, in its discretion, award punitive damages and may provide such equitable relief as it deems necessary or proper." General Statutes § 42-110g(d) provides in relevant part: "In any action brought by a person under this section, the court may award, to the plaintiff, in addition to the relief provided in this section, costs and reasonable attorneys fees based on the work reasonably performed by an attorney and not on the amount of recovery."
"Awarding punitive damages and attorneys fees under CUTPA is discretionary ... In order to award punitive or exemplary damages, evidence must reveal a reckless indifference to the rights of others or an intentional and wanton violation of those rights ... In fact, the flavor of the basic requirement to justify an award of punitive damages is described in terms of wanton and malicious injury, evil motive and violence." (Citation omitted; footnote omitted; internal quotation marks omitted.) Ulbrich v. Groth, 310 Conn. 375, 446, 78 A.3d 76 (2013). "While the CUTPA statutes do not provide a method for determining punitive damages, courts generally award punitive damages in amounts equal to actual damages or multiples of the actual damages." (Internal quotation marks omitted.) Advanced Financial Services, Inc. v. Associated Appraisal Services, Inc., 79 Conn.App. 22, 34, 830 A.2d 240 (2003).
DISCUSSION
The court finds that the plaintiff has pled sufficient facts to make out a valid claim against the defendants, Malik Jemison, JN, LLC and RIM Construction, LLC, for violations of the Home Improvement Act and CUTPA. The court does not find for the plaintiff against the defendant, Darlene Arter, because he has not proved her involvement.
The plaintiff presented sufficient evidence of the actual damages he incurred as a result of the defendants’ actions. In addition, the plaintiff is awarded punitive damages and attorneys fees under the CUTPA claims.
Accordingly, the court awards the plaintiff the following damages:
1. Actual damages in the amount of $ 25, 242.72; and
2. Punitive Damages in the amount of $ 30, 000.
Upon submission of an affidavit of attorneys fees, the court shall enter an additional award of reasonable attorneys fees.
CONCLUSION
Judgment shall enter as set forth above. So ordered.