Opinion
No. CV 06 5001464
April 30, 2010
MEMORANDUM OF DECISION ON PLAINTIFF'S MOTION FOR COSTS AND ATTORNEYS FEES
I. Statement of the Case
This is an action brought by the plaintiff against Randy Brown, Randy Brown d/b/a Clearwater Construction/Home Improvement and Clearwater Home Improvement, Inc., a Connecticut Corporation (hereinafter the defendant). Plaintiff's amended complaint of June 1, 2007, set forth her claim in three separate counts. The first count alleged breach of contract, the second count alleged a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110b in that defendant violated the new home construction contract act, General Statutes § 20-417 et seq. and that plaintiff suffered damages as a result of such violation. The third count alleged unjust enrichment. By memorandum of decision, dated March 31, 2008, the court found for plaintiff and against defendant on the first and second counts. On the first count, damages in the amount of $12,407.74 were awarded. On the second count, it was stated that plaintiff could move for a hearing on costs and attorneys fees. On April 8, 2008, plaintiff moved for a hearing in accordance with the memorandum of decision with a payment of costs and attorneys fees in accordance with Connecticut General Statutes § 42-110g(d). On April 18, 2008, defendant appealed the decision to the Appellate Court. On May 5, 2008, defendant filed a motion to stay any hearing on plaintiff's motion for costs and attorneys fees until such time that a decision was rendered by the Appellate Court. This motion was granted on May 28, 2008.
By order dated March 19, 2009, the Appellate Court ordered the trial court to determine and/or articulate whether plaintiff/appellant suffered any ascertainable loss of money or property pursuant to Connecticut General Statutes § 42-110g(a) as a result of defendant's violation of Connecticut General Statutes § 20-417d and to submit a written determination. By supplemental memorandum of decision dated April 7, 2009, the court found that the plaintiff suffered no ascertainable loss of money or property as a result of defendant's violation of the statute.
On August 25, 2009, the Appellate Court dismissed the appeal on the grounds that it was not an appealable final judgment. Plaintiff moved for a re-hearing which was denied and for certification to appeal to the Supreme Court which was denied on December 1, 2009. The matter is now before the court on plaintiff's revised motion for costs and attorneys fees.
II. Attorneys Fees
Plaintiff has three separate claims for attorneys fees: 1) under Connecticut General Statutes § 42-110g(a), 2) under Connecticut General Statutes § 42-150bb and under a clause in the contract between the parties. Defendant denies that plaintiff is entitled to attorneys fees under § 42-110g(a) because she has suffered no ascertainable loss as a result of the violation. It is also claimed that plaintiff has waived any claim for attorneys fees under § 42-150bb and under the contract.
The basic principle that governs the award of attorneys fees is the "American Rule." "The general rule of law known as the American Rule is that attorneys fees and other expenses and burdens of litigation are not allowed to the successful party absent a contractual or statutory exception." Rizzo Pool Co. v. DelGrosso, 240 Conn. 58, 73 (1997).
Analysis 1.
Plaintiff claims attorneys fees under the provisions of § 42-11g(a) which provides that "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 § 42-110b, . . ." It was found that defendant violated the provisions of this section because of a violation of § 20-417g. It was also determined that the plaintiff suffered no ascertainable loss of money or property as a result of this violation.
In order to prevail on a CUTPA claim, the plaintiff must demonstrate that she has suffered an actual loss of money or property as a result of the violation. Stearn Wheeler v. Kowalsky Brothers, 289 Conn. 3, 12 (2008). In this case, it was determined that plaintiff suffered damages as a result of defendant's breach of contract. However, she suffered no ascertainable loss as a result of defendant's breach of § 20-417d, the New Home Construction Contractor's Act. The violations of the act resulted from defendant's indifferent conduct but caused no ascertainable loss to the plaintiff. (See supplemental memorandum of decision dated April 7, 2009.)
In considering a claim for attorneys fees, from a violation of § 20-429(a), the Home Improvement Contractor's Act, the remedial purpose of which is similar to § 20-417d, the Supreme Court considered the legislative history of the Act. In so doing, the court determined that there was "not a single instance in the legislative history of § 20-429(a) in which the drafters even contemplated that the statute could or should be used by a homeowner to enhance his own damages award." Hees v. Burke Construction, Inc., 290 Conn 1, 13 (2009). Since plaintiff suffered no ascertainable loss as a result of the violation, attorneys fees cannot be awarded on account of the violation of § 42-110(g)(a).
2.
Plaintiff claims attorneys fees under the provisions of Connecticut General Statutes § 42-150bb which provides for attorneys fees to a consumer who prosecutes or defends an action based upon a consumer contract. This statute provides, in part, "[w]henever any contract or lease entered into . . . to which a consumer is a party provides for attorneys fees of the commercial party to be paid by the consumer, an attorneys fee shall be awarded as a matter of law to a consumer who successfully prosecutes or defends an action . . . based upon the contract or lease." The contract by the parties in this case has a provision concerning attorneys fees which reads as follows:
If a legal action is brought to enforce any provision of this Agreement, the prevailing party, including a broker who is made a party to such actions and who has not significantly contributed to the default, shall be entitled court costs and reasonable attorneys fees.
Section 42-150bb provides that "[t]he provisions of this section shall apply only to contracts or leases in which the money, property or service which is the subject of the transaction is primarily for personal, family or household purposes."
Section 42-151(b) which follows in sequence § 42-150bb but is in a separate chapter defines consumer contracts. The statute provides that a consumer contract must be a written agreement with two qualifications. The first qualification repeats the language of § 42-150bb that the agreement be "primarily for personal, family or household purposes." The second qualification in subparagraph (B) limits such contracts to situations where the consumer "agrees to pay up to twenty-five thousand dollars to buy or lease personal property or services from a person who is acting in the ordinary course of business." Section 42-151(b) by definition then limits consumer contracts to written agreements involving personal property or leases involving claims up to $25,000.
The contract between the parties here, however, was for the purchase of real property not personal property and the amount to be paid exceeded $25,000. Under the definition of consumer contract found in § 42-151(b), the contract between plaintiff and defendant for the sale of real property would not be (a) consumer contract and the provisions of § 42-150bb would not apply.
In Liapes v. Beaulieu, 18 Conn.App. 329 (1989), there was a question as to whether the trial court ordered attorneys fees under the provisions § 42-150aa which, like § 42-150bb, applied to consumer contracts. The underlying transaction involved in the case was a contract for the sale of real estate. Id., 330, fn.2. In determining it was error for the trial court to proceed under § 42-150aa, since the agreement was not a consumer contract, the court relied on the definition of consumer contract found in § 42-151 and stated "it is clear that the transaction between the parties does not fall within the meaning of the definition of the term consumer contract." Id., 331, fn.3.
Rizzo Pool Co. v. DelGrosso, supra, 240 Conn. 58, decided by the Supreme Court eight years after Liapes involved an action by Rizzo Pool Company to recover on a contract for the installation of a swimming pool. In Rizzo, the court held that § 42-150bb had its own definition of the type of contract for which attorneys fees may be recovered with no reference to the next chapter (742 Consumer Contracts) and the first section of § 42-151 stated that the definition in this section "shall apply in this chapter." The court then stated that "[w]e find no reason under the facts or circumstances of this case to look beyond § 42-150bb to define its scope or limit its applications." Id., 71.
In the case at bar, then it must be determined whether or not the agreement between the parties for the sale of real property is a consumer contract as defined by § 42-150bb. In so doing, the court cannot rely solely on the definition found in § 42-151.
With the exception of Liapes and Rizzo, there are no Connecticut Appellate decisions on the subject. The only trial court case found was Ameriquest Mortgage Co. v. Sievers, judicial district of New London, Docket No. CV 05-4002637 (January 5, 2010). This was a mortgage foreclosure case in which the court (Leuba, J.) decided that the mortgage was not a consumer contract and, therefore, § 42-150bb did not apply. No other Connecticut cases have been found in which contracts for the sale of real property were considered consumer contracts. Numerous Appellate cases from other jurisdictions involving consumer contracts were reviewed. None of these cases involve contracts for the sale of real property.
Although § 42-150bb and § 42-151 are in separate chapters, the language used in § 42-150bb limiting its applicability to transactions, primarily for personal, family or household purposes is identical to that found in § 42-151 which defines consumer contracts.
"[I]t is well-settled that the legislature is always presumed to have created a harmonious and consistent body of law . . . this tenet of statutory construction requires this court to read statutes together when they relate to the same subject matter . . . Accordingly, in determining the meaning of a statute . . . we look not only at the provisions at issue, but also at the broader statutory scheme to insure coherency of our construction." (Internal quotation marks omitted.) Felician Sisters of St. Francis of Connecticut, Inc. v. Historic District Commission, 284 Conn. 838, 350 (2008).
Consistency then requires a finding that the contract for the sale of real property here was not a consumer contract. While all of the provisions of § 42-151(b) might not be applicable, it is doubtful that the legislature intended that there should be two types of consumer contracts, one limited to personal property and one without this limitation. It must then be found that the contract between plaintiff and defendant was not a consumer contract and that plaintiff cannot receive attorneys fees under the provisions of § 42-150bb.
Even if the contract were to be considered a consumer contract, there is a question as to whether or not § 42-150bb applies. The statute covers situations where the contract "provides for attorneys fees of the commercial party to be paid by the consumer." The purpose of the statute is to make the award of attorneys fees reciprocal so that the consumer, as a successful litigant could recover attorneys fees even though the contract only provides that the commercial party should recover. Jacobs v. Healey Ford-Subaru, 231 Conn. 707, 730 (1995).
See the legislative history, comments in the Senate by Senator Santaniello on May 3, 1979, and in the House by Representative Tulisano on May 15, 1979.
Under the provisions of the contract above-quoted, there is no need for the reciprocity provided under § 42-150bb. The provision in the contract itself could enable plaintiff, defendant or the broker to recover costs and reasonable attorneys fees.
Plaintiff cannot recover attorneys fees under the provisions of § 42-150bb.
3.
Plaintiff claims attorneys fees under the following clause in the contract:
If a legal action is brought to enforce any provision of this Agreement, the prevailing party, including a Broker who is made a party to such actions and who has not significantly contributed to the default, shall be entitled to court costs and reasonable attorneys fees.
Defendant claims that plaintiff has waived any claim for attorneys fees under the contract.
Plaintiff stated her case in the amended complaint filed June 1, 2007. The complaint set forth plaintiff's claims in three counts. The first count alleged a breach of contract. There was no claim in this count, or anywhere else in the complaint alleging that defendant was liable for attorneys fees under the contract or that plaintiff was seeking such attorneys fees. The demand for relief section of the complaint requested compensatory damages and other items including attorneys fees pursuant to Connecticut General Statutes § 42-110a, et seq. There was no request for attorneys fees under the contract.
The issue of attorneys fees under the contract was not brought up by either party during the trial. Although the contract was admitted into evidence, there was no claim for attorneys fees under the provisions of the contract made by either party. No evidence was introduced concerning this provision of the contract.
Judgment was rendered in favor of the plaintiff in the amount of $12,407.74 on March 31, 2008, but no finding with respect to attorneys fees under the contract was made. As a part of the judgment, plaintiff was invited to move for a hearing on costs and attorneys fees under the second count of the complaint which concerned the violation of CUTPA allegation. On April 8, 2008, plaintiff filed a motion for a hearing concerning costs and attorneys fees under CUTPA in accordance with the memorandum of decision. No request for attorneys fees under the contract was made as required by P.B. § 11-21.
On April 18, 2008, a judgment file was duly entered by the clerk. This document did not state that it had been adjudged that plaintiff should recover attorneys fees under the contract.
After the denial of defendant's request for certification to the Supreme Court, plaintiff again moved for a hearing on the payment of costs and attorneys fees. The motion requested attorneys fees under the CUTPA claim and under the provisions of § 42-150bb, both previously discussed. In this motion, for the first time, plaintiff moved for attorneys fees under the contract.
In her claim that she is entitled to attorneys fees under the contract, plaintiff cites Jones v. Ippoliti, 52 Conn.App. 199, 209 (1991). This case, however, differs from the case at bar. In Jones, the plaintiff's complaint set forth a claim for attorneys fees under the contract. Id., 202. The trial court, as a part of its judgment, awarded attorneys fees in accordance with the contract. Id., 209.
In this case, plaintiff never alleged in the complaint that she was seeking attorneys fees under the contract. "The purpose of the complaint is to limit the issues to be decided at the trial of a case and is calculated to prevent surprise." Landry v. Spitz, 102 Conn.App. 34, 41 (2007). "It is fundamental to our law that the right of a plaintiff to recover is limited to the allegations of [its] complaint . . . The purpose of the complaint is to limit the issues to be decided at the trial of a case and is calculated to prevent surprise . . ." Trumbull v. Palmer, 104 Conn.App. 498, 502 (2007).
Since plaintiff never alleged that she was seeking attorneys fees under the contract, the validity of this claim was never put at issue. There was no testimony concerning the clause and no determination as to its validity was made by the court. This is particularly important here since the agreement relied upon was a standard purchase and sale contract for the sale of real estate prepared by the agent with construction details being separate. Where the property was purchased and sold for the contract price, defenses may have existed to the award of attorneys fees under the contract.
Where plaintiff failed to allege in the complaint a claim for attorneys fees under the contract or to litigate such claim and did not file the claim within the time allowed by P.B. § 11-21, she cannot recover such attorneys fees at this time.
III. Costs
Plaintiff's bill of costs in the amount of $3,621.83 is approved.
IV. Conclusion
In accordance with the above, plaintiff will not recover attorneys fees. Plaintiff shall recover costs in the amount of $3,621.83.