Opinion
No. WWM CV07 5001025-S
April 1, 2010
MEMORANDUM OF DECISION
The plaintiffs, Ward E. Walker and Kristin D. Walker, bring this action in four counts against the defendant, Paul R. Lehto, alleging breach of contract, unjust enrichment and violation of the Connecticut Unfair Trade Practices Act (two counts). The defendants deny the material allegations, assert special defenses to the first two counts and counterclaim that the plaintiffs have been unjustly enriched. The plaintiffs in turn deny the material allegations of each of the special defenses and of the counterclaim.
The matter came before the court over two days in October and December 2009 for a trial on the merits. In addition to the plaintiff, Ward Walker, and the defendant, Paul Lehto, witnesses included Stuart Norman, Jr., Donald Aubrey and Gary Kuchy. The court finds the testimony of Walker, Norman and Aubrey to be generally credible and the testimony of the defendant and Kuchy to be generally not credible although factually accurate as to a few details. The court has reviewed and considered the testimony, the exhibits and the parties' memorandum of law. After applying the law to the facts, judgment enters for the plaintiffs on the complaint and on the counterclaim.
The plaintiffs have failed to present any evidence or to brief their CUTPA claim alleging a violation of the Home Solicitation Sales Act. Accordingly, the court considers this claim abandoned. Even if not abandoned, this claim suffers from the same infirmity as the plaintiffs' Home Improvement Act claim brought under CUTPA. Cf. § III of this opinion, infra.
The defendant counterclaimed in unjust enrichment, but has failed to present any evidence as to the value of his work. He has also failed to brief this claim. Accordingly, the court considers this claim abandoned. Even if not abandoned, on November 28, 2004, the plaintiffs paid the defendant their $10,000 escrow from lot #4 and the defendant retained his $10,000 escrow from the sale of lot #4. Thus the defendant has been paid $20,000 for his partial completion of work under the contract.
FINDINGS OF FACT
In 2003, the defendant was the owner and developer of a five-lot subdivision on Searles Road in Pomfret. As a condition of approval, the town required that the defendant construct paved driveways for each lot in the subdivision. The specifications and the exact location of each driveway were set out on the subdivision maps approved by the town.
On December 5, 2003, the parties to the present action entered into a contract for sale of lot #3, a parcel consisting of approximately thirty-seven acres. The closing was held on January 30, 2004. At that time the parties additionally entered into a separate driveway easement and maintenance agreement which obligated the defendant to install the driveway for lot #3 by January 15, 2005. To ensure compliance with the agreement, the parties each placed $10,000 in escrow to be held by Norman. The driveway for lot #3 was to be located off Searles Road in the right of way of an abandoned town road. Additionally the first 650 feet of the driveway was intended to be held in common with lot #4.
After a period of time, the plaintiffs decided to purchase lot #4 from the defendant. Accordingly, the parties entered into an oral agreement by which the defendant would convey lot #4 to the plaintiffs for the sum of $120,000. The closing for lot #4 was held on August 26, 2004. There was no written agreement regarding the driveway for lot #4, but the parties orally agreed that each of them would hold $10,000 in escrow to ensure the driveway's completion.
In 2004, the defendant additionally sold lot #5 to an unnamed party. As 2004 wore on, the purchasers of lot #5 constructed a house thereon. In November 2004, when the house was ready for occupancy, the purchasers were unable to obtain a certificate of occupancy due to the defendant's failure to complete the driveway for lot #5. At the behest of the attorney for lot #5's purchasers, the defendant and his paving contractor, Kuchy, urgently expended considerable time and effort to construct the driveway for lot #5. By December 16, 2004, Kuchy had laid the first layer of pavement and over the next couple of days, he completed it.
By November 2004, the defendant had partially installed the utilities and had installed the drainage required for lot #3. The defendant and Kuchy had planned to pave the plaintiffs' driveway immediately after lot #5, but the seasonal shutdown of the asphalt plants prevented this. In separate conversations with Walker and Aubrey in mid December, the defendant represented to each of them that he intended to complete the lot #3 drive by the spring, 2005. Photographs taken by Aubrey on December 16, 2004 show that the driveway for lot #3 was not, at that time, in a suitable condition for paving.
Archer Surveying had certified that these installations were in accordance with the subdivision plans.
Sometime in April 2005, the defendant informed the plaintiff, Ward Walker, that he was ready to complete the driveway for lot #3 and that he had been able to secure the same price as had been quoted in December. In the interim, however, the plaintiffs had commenced construction on their house. Thus Walker told the defendant not to build the driveway as it would interfere with his construction timetable. The defendant did not object to the delay and complied with Walker's request. At the same time, the defendant also requested that Walker obtain an estimate to install the driveway from Walker's contractor, Kobyluck Construction Company.
Walker testified that he expected the defendant to install the driveway 4-5 months later, but did not communicate this timetable to the defendant. Conversely, the defendant never asked Walker when the site would be available for the installation of the driveway.
In August or September 2005, Walker gave the defendant Kobyluck's estimate of $49,950 to install and finish the driveway. The defendant told Walker that Kobyluck's estimate was too high and that he would not pay it. In an effort to resolve the impasse, Walker, the defendant and Norman met in November 2005. At that meeting, Walker insisted that as required by the agreement, the defendant install the driveway to lot #3. The defendant responded that he had been willing to install it in the spring but Walker had prevented that and in the interim, the costs of the materials had risen. Thus the defendant believed Walker should bear any costs in excess of $32,000. Walker refused to contribute to the costs and the defendant responded that he would not perform the work. The parties remained at an impasse until the completion of the plaintiffs' house in May 2006. At that point, Walker made a final demand that the defendant install the driveway by June 15, 2006. The defendant agreed subject to Walker's payment of the excess costs. Rather than accede to this demand, Walker hired his own paving contractor who installed the driveway at a cost of $45,616. Thereafter, Norman remitted to the plaintiffs the $20,000 held in escrow and the plaintiffs commenced this action.
Additional facts will be discussed as necessary.
DISCUSSION I. BREACH OF CONTRACT
In the first count of the complaint, the plaintiffs claim that the defendant agreed to install a driveway on their property but he has neglected and refused to do so. The defendant admits the existence of an agreement to install a driveway but counters that the actions of the plaintiff rendered performance impossible, that the agreement was modified and the modified agreement has not been breached, that any delay in performance was the fault of the plaintiffs, that the plaintiffs repudiated the contract and that the parties mutually rescinded the contract. The plaintiffs deny each special defense in turn.
A.
"A contract is to be construed as a whole and all relevant provisions will be considered together . . . In giving meaning to the terms of a contract . . . [it] must be construed to effectuate the intent of the contracting parties . . . The intention of the parties to a contract is to be determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction . . . In interpreting contract terms . . . the intent of the parties is to be ascertained by a fair and reasonable construction of the written words and that 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 . . ." (Citations omitted; internal quotation marks omitted.) Barnard v. Barnard, 214 Conn. 99, 109-10, 570 A.2d 690 (1990).
"Where time for performance is stated in an agreement, a party's tender of performance within a reasonable time thereafter will be considered substantial performance unless the parties intend that time for performance be of the essence." Mihalyak v. Mihalyak, 11 Conn.App. 610, 616, 529 A.2d 213 (1987). What is a reasonable time is a question of fact under all of the circumstances. Galasso v. Cowles, 137 Conn. 111, 75 A.2d 46 (1950). Where an agreement does not specifically state that time is of the essence, it is presumed not to be unless the parties have expressed a contrary intent. Kakalik v. Bernardo, 184 Conn. 386, 392-93, 439 A.2d 1016 (1981). "Deadline dates are often liberally applied in [construction and real estate] contracts because performance is often controlled by factors outside a party's complete control; and because the material aspect of the parties' agreement often involves the performance itself and not the exact time of performance." (Emphasis added.) Raymond Marketing Corp. v. Cary, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 95 0322740 (December 17, 1996, Stevens, J.) [ 18 Conn. L. Rptr. 480].
"Even in the absence of an express covenant, there is an implied one that the contractor shall be permitted to proceed with his construction in accordance with the contract and that he shall be given possession of the premises to enable him to do so . . . A delay caused by the owner may constitute a breach excusing performance as required by the contract." (Citations omitted; internal quotation marks omitted.) Hartford Electrical Applicators of Thermalux, Inc. v. Alden, 169 Conn. 177, 182-83, 363 A.2d 135 (1975).
"Where there has been a material breach that does not indicate an intention to repudiate the remainder of the contract, the injured party has the election of continuing or ceasing performance . . . An election by a party to perform notwithstanding a breach, and thus waiving the breach is conclusive, in the sense of depriving that party of any excuse for ceasing performance, with the result that the party at fault may require the other party to perform. Thus a party may waive a breach by the other party and then be liable for his or her own subsequent breach." 17A Am.Jur.2d, Contracts § 715 (2004). "Waiver involves the intentional relinquishment of a known right . . . Waiver does not have to be express, but may consist of acts or conduct from which waiver may be implied . . . In other words, waiver may be inferred from the circumstances if it is reasonable to do so . . . Furthermore, whether a waiver has occurred is a factual question for the trier . . ." (Citations omitted; internal quotation marks omitted.) BanksBuilding Co., LLC v. Malanga Family Real Estate Holding, LLC, 102 Conn.App. 231, 239, 926 A.2d 1 (2007).
In the present case, on January 30, 2004, the parties entered into an agreement for the installation of a driveway. Paragraph four of the agreement required that the defendant complete the driveway no later than January 15, 2005. The defendant commenced his performance under the contract in the fall of 2004. By late November, he had partially installed the utilities, had installed the drainage, had set the catch basins and had rough graded the road bed. The defendant then switched his efforts to completing the driveway for lot #5. By the time that job was finished in mid December 2004, the asphalt plants had shut down for the season. The defendant thus informed Walker he would complete the driveway for lot #3 in the spring of 2005. Walker did not voice an objection nor did he in any way express his dissatisfaction with this arrangement. Moreover, there is no evidence that the plaintiffs had ever previously requested or demanded that the defendant begin work prior to the fall of 2004. In mid April 2005, the defendant returned to the property and informed Walker that he was ready to complete the driveway. Walker, however, requested that the defendant defer finishing the driveway and the defendant acceded to this request. Notably, no discussion was had between the parties as to a mutually agreeable time for completion or who bore the responsibility for any cost increases.
The plaintiff testified that he immediately consulted with his attorney, Stuart Norman. Neither the plaintiff or Norman ever testified as to the contents of that conversation.
In August 2005, Walker contacted the defendant and requested that the driveway be installed. In the interim, the cost of asphalt had substantially increased. Accordingly, the defendant agreed to complete the driveway only on condition that the plaintiffs pay the cost differential. The plaintiffs refused to do so and a stand-off ensued throughout the remainder of 2005 and into 2006. The plaintiffs' house was completed in May 2006, but they could not obtain a certificate of occupancy until the driveway was finished. Walker made a last request of the defendant who continued to insist that as a condition precedent to the defendant's work, the plaintiffs agree to pay the differential. This request was unacceptable to the plaintiffs. Consequently the plaintiffs hired a contractor who completed the driveway at a cost of $45,616.
The provisions of the written driveway agreement combined with the parties' course of conduct lead the court to conclude that their contract did not contain a time is of the essence provision and that they never intended time be of the essence. Accordingly the defendant had a reasonable time after January 15, 2005 in which to perform his obligations. The asphalt plants opened for the 2005 season in April. Under these circumstances, the court finds that mid April 2005 was within the parameters of a reasonable time for performance and that the defendant was ready, willing and able to perform at that time.
The evidence additionally shows that the plaintiffs breached the parties' contract when they prevented the defendant's performance in mid April. The defendant did not, however, insist on his right to the premises or protest this delay in any way. The defendant also did not inform the plaintiffs that he was terminating the contract, rather the defendant acceded to the plaintiffs' request and left the premises. The court finds, therefore, that the defendant waived the plaintiffs' breach. As a result of the defendant's waiver, the contract remained in full force and effect with all of its rights and obligations binding upon the parties, including the defendant's obligation to complete the driveway.
The plaintiffs requested performance in August 2005, but the defendant refused without additional compensation. There is no provision in the contract which provided for reimbursement to the defendant in the event the cost to perform was greater than he had anticipated. Accordingly, the defendant's refusal to complete the driveway was wrongful and unexcused. The defendant has thus breached the parties' contract and the plaintiffs are entitled to be compensated for that breach unless the defendant prevails on one of his special defenses.
The defendant has asserted five special defenses which he claims excuse his breach. Three of those special defenses — that the parties modified the contract, that the contract was mutually rescinded and that the plaintiffs rejected the defendant's choice of paving contractor thus relieving the defendant of his obligations under the contract — rely upon the defendant's and Kuchy's versions of the parties' interactions which this court finds not credible. Stated differently, there is no credible evidence in this case which proves that the parties' contract was modified or rescinded or that the plaintiffs rejected the defendant's contractor of choice. As to the first and third special defenses which allege that the actions of the plaintiffs rendered performance impossible or more difficult, the court finds the defendant waived these defenses by acceding to the plaintiffs' request that he delay paving the driveway.
B.
The plaintiffs claim that as a result of the defendant's breach of the contract, they have been damaged by incurring costs to complete the driveway. "In an action for breach of contract, the general rule is that the award of damages is designed to place the injured party, so far as can be done by money, in the same position as that he would have been in had the contract been performed." (Internal quotation marks omitted.) Flater v. Grace, 291 Conn. 410, 426 n. 11, 969 A.2d 157 (2009).
In the present case, the contract between the parties required that the defendant install a paved driveway for lot #3, that he install the initial public utilities for this lot and that he provide the town with an as-built plan. The precise specifications for the driveway including its location were set out on the subdivision map approved by the town and were implicitly made a part of the agreement. At the trial, the defendant testified his obligations under the contract included installation of the utility lines and drainage including setting the catch basins, provision of a two-inch base course over a twelve-inch gravel base, installation of a curb for 500 feet and vegetation and grading of the area adjacent to the drive. Prior to stopping work in December 2004, the defendant had partially installed the utility lines, had installed the drainage, had set the catch basins and had rough graded the road bed. The plaintiffs obtained two bids to complete the work required of the defendant and ultimately they hired the low bidder.
Walker credibly testified that the plaintiffs paid $20,115 for the labor and materials necessary to install the curb and to install the driveway to the required specifications. Additionally they expended $17,508 to excavate and grade, $1,498 to finish the installation of the utilities and $2,225 to rake and seed each side. Thus the total cost to complete the driveway was $41,346. Once the driveway was completed, the plaintiff made demand of and received from Norman the $20,000 held in escrow. Accordingly the present out-of-pocket loss to the plaintiffs is $21,346.
The plaintiffs paid $45,616 to complete the driveway. The difference between that amount and their claimed damages is accounted for by the fact that the driveway was paved to a depth of three inches and the contract required only two inches of asphalt.
The plaintiffs also claim that they are entitled to repayment of $10,000 which they paid to the defendant on November 28, 2004. The court disagrees. At the time of the closing on lot #4, the plaintiffs and the defendant agreed to each hold $10,000 in escrow to ensure construction of the driveway. As noted above, in the fall, 2004, the defendant had partially completed his performance. Thereafter, the plaintiffs paid him the money which they held in escrow and the defendant presumably paid his own escrow to himself. Neither party adduced any evidence as to the value of the improvements made by the defendant. Presumably if the plaintiffs did not believe the value of the defendant's work exceeded $20,000, they would not have turned over their escrow. The court finds, therefore, that the plaintiffs' $10,000 payment was intended to compensate the defendant for his part performance and the plaintiffs are not entitled to repayment.
The plaintiffs next claim that pursuant to paragraph seven of the driveway agreement, they are entitled to interest, courts costs and attorneys fees. Paragraph seven of the driveway agreement states, in relevant part, "[i]n the event the owner(s) of any said lots shall fail to contribute his, her or their share of any agreed maintenance or repair item as required herein, the owner(s) of the other lot(s) may pay such amount, whereupon, such amount shall constitute a lien upon the property of the defaulting owner enforceable by the contributing owner(s). The defaulting owner(s) shall be liable to the contributing owner(s) also for interest on the unpaid amount at the rate of 15% per annum plus costs of collection including court costs and a reasonable attorneys fee and said lien shall secure said items as well as the unpaid amount."
At the time the parties entered into this agreement, the plaintiffs owned lot #3 and the defendant still owned lot #4. The plain language of paragraph seven indicates that its intent is to protect each of the owners of lots #3 and 4 from the other's default in failing to contribute to shared maintenance and repair costs. There is nothing in the plain language of paragraph seven which suggests or which would lead one to believe that it was intended to cover the defendant's default in the original construction of the driveway. Moreover, once the defendant sold his interest in lot #4 in August 2004, any obligation which he had as the owner of lot #4 was extinguished. The claim by the plaintiffs for interest, court costs and attorneys fees arose well after the defendant sold lot #4. They are, therefore, not entitled to recover these costs pursuant to the contract.
The plaintiffs next claim that they are entitled to an award of statutory interest pursuant to Gen. Stat. § 37-3a which provides, in relevant part, that "interest at the rate of ten percent a year . . . may be recovered and allowed in civil actions . . . as damages for the detention of money after it becomes payable." The present case is indistinguishable from Foley v. Huntington Co., 42 Conn.App. 712, 739-42, 682 A.2d 1026, cert. denied, 239 Conn. 931, 683 A.2d 297 (1996) in which the Court stated "[S]ection 37-3a provides a substantive right that applies only to certain claims . . . It does not allow prejudgment interest on claims that are not yet payable, such as awards for punitive damages . . . or on claim that do not involve the wrongful detention of money, such as personal injury claims . . .
"Personal injury claims seek to make persons whole by monetarily compensating them for a loss negligently caused by others. Damages are typically uncertain and the purpose of the damages is to restore the injured, as nearly as money can, to the status they were enjoying and would have continued to enjoy prior to the negligent act . . . Such claims do not seek to regain money detained by another . . .
"The damages for the breach of contract in this case are similar to damages in a personal injury claim where a party is seeking to be made whole for the loss caused by another. The damages claimed and awarded to the plaintiff were for the loss of the benefit of his bargain . . . § 37-3a does not apply to these facts and . . . therefore, the plaintiff was not entitled to an award of prejudgment interest pursuant to that statute." (Citations omitted.) Foley v. Huntington Co., supra, 42 Conn.App. 739-42. Like the plaintiff in Foley, the plaintiffs in the present case seek damages solely for the loss of the benefit of their bargain. They are, therefore, are not entitled to statutory interest.
II. UNJUST ENRICHMENT
In the second count of the complaint, the plaintiffs allege that the defendant was unjustly enriched in that he received full payment, less $20,000, of the sales price of lots #3 and 4 and he failed to install and complete the driveway. The defendant denies these allegations.
"Unjust enrichment applies wherever justice requires compensation to be given for property or services rendered under a contract, and no remedy is available by an action on the contract." (Internal quotation marks omitted.) Vertex, Inc. v. Waterbury, 278 Conn. 557, 573, 898 A.2d 178 (2006). See Rossman v. Morasco, 115 Conn.App. 234, 974 A.2d 1, cert. denied, 293 Conn. 923, 980 A.2d 912 (2009). "[A party] cannot be held liable simultaneously for breach of an express contract and an implied in law contract governing the same subject matter." Laser Contr., LLC v. Torrance Family Ltd. P'ship, 108 Conn.App. 222, 229, 947 A.2d 989 (2008); See Meaney v. Connecticut Hospital Association, Inc., 250 Conn. 500, 517, 735 A.2d 813 (1999) ("As Professor E. Allan Farnsworth has observed: `It is often said that an express contract between the parties precludes recognition of an implied-in-law contract governing the same subject matter.' 1 E. Farnsworth, Contracts (2d Ed. 1998) Sec. 2.20, p. 176 . . .").
In the first part of this opinion, the court found that the defendant breached the parties' express contract and that the plaintiffs were entitled to damages therefor. This finding precludes recovery by the plaintiffs on a separate claim of unjust enrichment.
III. VIOLATION OF THE CONNECTICUT HOME IMPROVEMENT ACT AND OF THE CONNECTICUT UNFAIR TRADE PRACTICES ACT
In the third count of the complaint, the plaintiffs allege that the defendant engaged in an unfair trade practice when he held himself out as a contractor and offered to make a home improvement without a certificate of registration from the commissioner of consumer protection. The defendant denies the allegations and avers that the Home Improvement Act does not create a cause of action for a homeowner and, moreover, the plaintiffs have failed to prove that any violation of the Connecticut Unfair Trade Practices Act (CUTPA) proximately caused them injury.
The Home Improvement Act (HIA) provides, inter alia, that "[n]o person shall hold himself out to be a contractor or salesman without first obtaining a certificate of registration from the commissioner of consumer protection as provided in this chapter . . ." Gen. Stat. § 20-420(a) and further that "[n]o person shall . . . offer to make . . . any home improvement without having a current certificate of registration . . ." Gen. Stat. § 20-427(b)(5). A contractor is "any person who owns and operates a home improvement business or who undertakes, offers to undertake or agrees to perform any home improvement . . ." Gen. Stat. § 20-419(3). Home improvement "includes but is not limited to . . . the construction . . . [or] installation . . . of driveways." Gen. Stat. § 20-419(4). Thus, the driveway to be installed by the defendant constitutes a home improvement unless its installation represented "the construction of a new home" under § 20-419(4)(A).
The defendant argues that irrespective of whether the HIA applies to the parties' transaction, the plaintiffs can only use the HIA as a shield and not as a sword. Although neither the Supreme Court nor the Appellate Court have decided the issue, numerous Superior Court decisions have held that the Home Improvement Act, General Statutes § 20-420 et seq. does not create an independent cause of action for a homeowner against a contractor. See, Mastroanni v. Frankson Fence Co., Superior Court, judicial district of New Haven, Docket No. CV 04 400598 (July 25, 2007, Jones, J.); Bekic 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., Superior Court, judicial district of Fairfield, Docket No. CV 03 0408122 (July 11, 2005, Radcliffe, J.) [ 39 Conn. L. Rptr. 618]; 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]; LaRoche v. Kaylor, Superior Court, judicial district of Litchfield, Docket No. CV 02 0086757 (May 22, 2002, Walsh, J.); Liguori v. GVA, Inc., Superior Court, judicial district of New Haven, Docket No. CV 0446483 (September 19, 2001, Zoarski, J.) [ 30 Conn. L. Rptr. 448]; 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]; 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]. The plaintiffs in the present case have not, however, brought this action as a free standing claim under the HIA. Rather they have brought this action under CUTPA alleging that the defendant's failure to comply with the HIA constitutes an unfair trade practice.
The plaintiffs rely on Rizzo Pool Company v. DelGrosso, 232 Conn. 666, 657 A.2d 1087 (1995) to support their claim that the requirements of the HIA apply to the driveway in the present case in that the driveway was a home improvement and not part of the construction of a new home. In Rizzo the defendant homeowners, contemporaneous with the construction of their new home, entered into a contract for the construction of an in-ground swimming pool. When the defendants refused to allow the plaintiff access to the property, the plaintiff sued to recover under the liquidated damages clause of the contract. The defendants asserted noncompliance with the HIA as a special defense. The trial court determined that the construction of the pool was a part of the construction of a new home and thus precluded this defense.
The Supreme Court reversed and directed judgment in favor of the defendants stating "[i]n the circumstances of this case . . . the planned pool installation was not a part of `[t]he construction of a new home.' The pool installation contract was completely separate and distinct from the defendants' home construction contract, and the two contracts were to be performed by entirely different and unrelated contractors. Moreover, the documents that comprise the contract for the construction of the swimming pool contain no indication that the pool was to have been installed at any particular stage of the new home construction, or even that it was to have been installed prior to the completion of the new home . . . Thus . . . the record does not support the conclusion that the swimming pool installation and the new home construction were so interrelated, temporally or otherwise, that the installation of the pool constituted an integral part of `[t]he construction of a new home' under § 20-419(4)(a)." Rizzo Pool Company v. DelGrosso, supra, 232 Conn. 677-78.
In addition to civil and criminal penalties, the HIA provides that a violation of any of its provisions "shall be deemed an unfair or deceptive trade practice under subsection (a) of section 42-110b [CUTPA]." Gen. Stat. § 20-427(c)."To prevail on a CUTPA claim, the plaintiffs must prove that (1) the defendant engaged in unfair or deceptive acts or practices in the conduct of any trade or commerce; General Statutes § 42-110b(a); and (2) each class member claiming entitlement to relief under CUTPA has suffered an ascertainable loss of money or property as a result of the defendant's acts or practices. General Statutes § 42-110g(a). The ascertainable loss requirement is a threshold barrier which limits the class of persons who may bring a CUTPA action seeking either actual damages or equitable relief . . . Thus, to be entitled to any relief under CUTPA, a plaintiff must first prove that he has suffered an ascertainable loss due to a CUTPA violation . . .
"A plaintiff also must prove that the ascertainable loss was caused by, or `a result of,' the prohibited act. General Statutes § 42-110g(a) . . . When plaintiffs seek money damages, the language `as a result of' in § 42-110g(a) requires a showing that the prohibited act was the proximate cause of a harm to the plaintiff . . . [P]roximate cause is [a]n actual cause that is a substantial factor in the resulting harm . . . The question to be asked in ascertaining whether proximate cause exists is whether the harm which occurred was of the same general nature as the foreseeable risk created by the defendant's act . . ." (Citations omitted; internal quotation marks omitted.) Artie's Auto Body, Inc. v. Hartford Fire Ins. Co., 287 Conn. 208, 217-19, 947 A.2d 320 (2008). See also, Scrivani v. Vallombroso, 99 Conn.App. 645, 652, 916 A.2d 827, cert. den. 282 Conn. 904, 920 A.2d 309 (2007) (to prevail under CUTPA, plaintiff must show both that the defendant engaged in a prohibited act and that the prohibited act was the proximate cause of harm to the plaintiff).
This court need not decide whether the HIA covers the parties' driveway contract, nor need it decide whether an HIA claim brought under the penumbra of CUTPA creates a cause of action for the plaintiffs. In the present case, the plaintiffs have wholly failed to show that any violation of the HIA was the proximate cause of their loss. Stated differently, there is no evidence that the mere failure of the defendant to obtain a registration certificate caused any actual injury to the plaintiffs, or that their knowledge of the defendant's noncompliance would have caused them to have acted any differently. Thus the CUTPA claim fails.
CONCLUSION
For the foregoing reasons, the court enters judgment on the complaint in favor of the plaintiffs in the amount of $21,346. Accordingly, the court orders the defendant, Paul R. Lehto, to pay $21,346 to the plaintiffs.