Opinion
No. CV07-5006216 S
Memorandum Filed March 27, 2007
Contracts — Home Improvement Act — Exclusions — Exclusions for Appliances Which Are Removable Without Material Alteration to a Home Applies to a Contract for the Sale and Installation of a Home Audio and Video System. The exclusion of the Home Improvement Act for "appliances . . . which are designed for and are easily removeable from the premises without material alteration thereof," CGS § 20-419(4)(D), applies to a contract for the sale and installation of a home audio and video system that includes in-wall wiring, at least where the system's key components can be removed without making "material alterations" to the walls of the home. The opinion grants a prejudgment remedy on the seller's breach of contract claim.
Before the court is an application for a prejudgment remedy in an action for services rendered and equipment furnished by the plaintiff, Westfair TV, LLC, for the defendants, Salvatore Nastro and Stephanie Nastro, in connection with the sale and installation of home audio and video equipment (system). The application was filed on January 5, 2007, along with a draft complaint alleging damages for breach of contract.
On February 5, 2007, the court held a hearing on the application. The court heard from the plaintiffs owner and operator, Glenn Levinson, and from Stephanie Nastro testifying on behalf of the defendants. Levinson testified to the following. On October 10, 2005, the plaintiff provided the defendants with an estimate for the proposed installation of the system in the defendants' home. Nastro accepted the proposal on that date and installation commenced on November 1, 2005. After the system was installed, the defendants expressed dissatisfaction with certain aspects of its operation. Following several attempts to correct the problem, the parties reached a stalemate. Because the defendants had withheld payment, the plaintiff voided all warranty work and remotely disabled the system, offering to reactivate it upon payment in full.
The October 10 estimate was later supplemented by revised estimates.
Nastro testified that she was unable to access her music library on the system's touchscreen, that upon learning that the system had been disabled, she refused to make payments that the plaintiff claimed were due and that she hired another company, Electronic Design Group, Inc., to rewire and reprogram the system.
At the conclusion of the hearing, the court ordered the parties to submit briefs on whether the sale and installation of the system constitutes a "home improvement" as set forth in General Statutes § 20-419(4) of the Home Improvement Act, General Statutes § 20-418 et seq., and thereby prevents the plaintiff's recovery on the contract.
The hearing revealed that the plaintiff is not registered as a home improvement contractor, which may be fatal to the alleged contract's enforceability under the act's requirements for a valid home improvement contract; see General Statutes § 20-429(a)(8); and may also prevent any quasi-contractual relief. Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 349-50, 576 A.2d 149 (1990); Barrett Builders v. Miller, 215 Conn. 316, 320-29, 576 A.2d 455 (1990). For the defendants to challenge the plaintiff's recovery successfully, however, the court must first determine whether the act even applies to the present case.
On February 16, 2007, the plaintiff submitted its brief, arguing that the system's sale and installation falls outside the purview of § 20-419(4) and that the act does not apply to the contract. The plaintiff argues that since it can be easily removed, the system is analogous to appliances specifically excluded from the act under § 20-419(4)(D), which could be removed "by simply unplugging . . . and disconnecting any wires." On that same date, the defendants submitted their brief, arguing that the system in the present case is akin to a home security system in that the system's installation required "extensive wiring inside the walls and throughout the internal structure of the home . . . [which] preclude[s] easy removal . . . [Such removal] would leave damage to the internal structure of the home." Notably, neither party's brief was able to cite any controlling authority on the narrow issue presently before the court.
DISCUSSION
A prejudgment remedy "means any remedy or combination of remedies that enables a person by way of attachment, foreign attachment, garnishment or replevin to deprive the defendant in a civil action of, or affect the use, possession or enjoyment by such defendant of . . . his property prior to final judgment . . ." General Statutes § 52-278a(d). A prejudgment remedy is available upon a finding by the court that "there is probable cause that a judgment in the amount of the prejudgment remedy sought, or in an amount greater than the amount of the prejudgment remedy sought, taking into account any defenses, counterclaims or set-offs, will be rendered in the matter in favor of the plaintiff . . ." General Statutes § 52-278d(a)(1).
General Statutes § 52-278d(a) provides in relevant part: "The defendant shall have the right to appear and be heard at the hearing. The hearing shall be limited to a determination of (1) whether or not there is probable cause that a judgment in the amount of the prejudgment remedy sought, or in an amount greater than the amount of the prejudgment remedy sought, taking into account any defenses, counterclaims or set-offs, will be rendered in the matter in favor of the plaintiff, (2) whether payment of any judgment that may be rendered against the defendant is adequately secured by insurance, (3) whether the property sought to be subjected to the prejudgment remedy is exempt from execution, and (4) if the court finds that the application for the prejudgment remedy should be granted, whether the plaintiff should be required to post a bond to secure the defendant against damages that may result from the prejudgment remedy or whether the defendant should be allowed to substitute a bond for the prejudgment remedy. If the court upon consideration of the facts before it and taking into account any defenses, counterclaims or set-offs, claims of exemption and claims of adequate insurance, finds that the plaintiff has shown probable cause that such a judgment will be rendered in the matter in the plaintiffs favor in the amount of the prejudgment remedy sought and finds that a prejudgment remedy securing the judgment should be granted, the prejudgment remedy applied for shall be granted as requested or as modified by the court."
The court's role in considering an award of a prejudgment remedy is well established. "Pursuant to our prejudgment remedy statutes . . . the trial court's function is to determine whether there is probable cause to believe that a judgment will be rendered in favor of the plaintiff in a trial on the merits . . . The hearing in probable cause for the issuance of a prejudgment remedy is not contemplated to be a full scale trial on the merits of the plaintiffs claim. The plaintiff does not have to establish that he will prevail, only that there is probable cause to sustain the validity of the claim . . . The court's role in such a hearing is to determine probable success by weighing probabilities." (Citations omitted; internal quotation marks omitted.) Bank of Boston Connecticut v. Schlesinger, 220 Conn. 152, 156, 595 A.2d 872 (1991); see also J.K. Scanlan Co. v. Construction Group, Inc., 80 Conn.App. 345, 349-50, 835 A.2d 79 (2003). "Moreover, this weighing process applies to both legal and factual issues." Bank of Boston, Connecticut v. Schlesinger, supra, 156; see also Doe v. Rapoport, 80 Conn.App. 111, 117, 833 A.2d 926 (2003).
"[P]rejudgment remedy proceedings pursuant to the provisions of [ § 52-278d] are not involved with the adjudication of the merits of the action brought by [a] plaintiff or with the progress or result of that adjudication. They are only concerned with whether and to what extent [that] plaintiff is entitled to have property of the defendant held in the custody of the law pending adjudication of the merits of that action." (Internal quotation marks omitted.) Hartford Accident Indemnity Co. v. Ace American Reinsurance Co., 279 Conn. 220, 230, 901 A.2d 1164 (2006).
For purposes of the prejudgment remedy, the probable cause standard has been defined as "a bona fide belief in the existence of facts essential under the law for the action and such as would warrant a [person] of ordinary caution, prudence and judgment, under the circumstances, in entertaining it . . . Probable cause is a flexible common sense standard. It does not demand that a belief be correct or more true than false." (Citation omitted; internal quotation marks omitted.) Solomon v. Aberman, 196 Conn. 359, 363, 493 A.2d 193 (1985); see also J.K. Scanlan Co. v. Construction Group, Inc., supra, 80 Conn.App. 350.
General Statutes § 20-419(4) defines "home improvement," providing in relevant part: "`Home improvement' includes, but is not limited to, the repair, replacement, remodeling, alteration, conversion. modernization, improvement, rehabilitation or sand-blasting of, or addition to any land or building or that portion thereof which is used or designed to be used as a private residence, dwelling place or residential rental property, or the construction, replacement, installation or improvement of driveways, swimming pools, porches, garages, roofs, siding, insulation, solar energy systems, flooring, patios, landscaping, fences, doors and windows and waterproofing in connection with such land or building or that portion thereof which is used or designed to be used as a private residence, dwelling place or residential rental property . . ." The act does not apply, inter alia, to "the sale of appliances, such as stoves, refrigerators, freezers, room air conditioners and others which are designed for and are easily removeable from the premises without material alteration thereof . . ." General Statutes § 20-419(4)(D).
No Connecticut court has determined that the sale and installation of a stereo system constitutes a "home improvement." Further, no evidence was presented at the hearing to demonstrate that the system was wired in the defendants' home in such a way that would render its removal so difficult as to necessitate a material alteration of the premises. The New York decision of Innovative Audio Video v. Friedman, 7 Misc.3d 383, 789 N.Y.S.2d 417 (2005), involved a similar factual pattern and legal issue. In Innovative, the court denied the defendant's motion for summary judgment, which was premised on the claim that the plaintiffs installation of extensive stereo and video equipment constituted a home improvement as defined by statute. The court stated: "The court has not found any case law to support [the] defendant's position concerning the need for a license by [the] plaintiff and is unwilling to analogize a video and stereo installation, even one as sophisticated as the one at issue appears to be, to a communications system or an alarm system." Id., 387.
Section 20-386(2) of the Administrative Code of New York City is substantially similar to General Statutes § 20-419(4) and provides: "`Home improvement' means the construction, repair, replacement, remodeling, alteration, conversion, rehabilitation, renovation, modernization, improvement, or addition to any land or building, or that portion thereof which is used or designed to be used as a residence or dwelling place and shall include but not be limited to the construction, erection, replacement, or improvement of driveways, swimming pools, terraces, patios, landscaping, fences, porches, garages, fallout shelters, basements, and other improvements to structures or upon land which is adjacent to a dwelling house. `Home improvement' shall not include (i) the construction of a new home or building or work done by a contractor in compliance with a guarantee of completion of a new building project, (ii) the sale of goods or materials by a seller who neither arranges to perform nor performs directly or indirectly any work or labor in connection with the installation of or application of the goods or materials, (iii) residences owned by or controlled by the state or any municipal subdivision thereof, or (iv) painting or decorating of a building, residence, home or apartment, when not incidental or related to home improvement work as herein defined. Without regard to the extent of affixation, `home improvement' shall also include the installation of central heating or air conditioning systems, central vacuum cleaning systems, storm windows, awnings or communication systems."
The common purpose of both statutes is to protect home-owners from unscrupulous contractors. See Administrative Code of New York City § 20-385; D'Angelo Development Construction Co. v. Cordovano, 278 Conn. 237, 245-46, 897 A.2d 81 (2006).
CONCLUSION
The court finds that there is probable cause that a judgment will be rendered in favor of the plaintiff in the amount of $36,000.