Burns v. Adler

• Decision Date: 28 July 2015
• Docket Number: Nos. 34565,35005.,s. 34565
• Citation: 120 A.3d 555,158 Conn.App. 766
• Parties: James E. BURNS, Jr. v. David Y. ADLER et al.
• Court: Connecticut Court of Appeals

158 Conn.App. 766

120 A.3d 555

James E. BURNS, Jr.

v.David Y. ADLER et al.

Nos. 34565

35005.

Appellate Court of Connecticut.

Argued Jan. 20, 2015.

Decided July 28, 2015.

David N. Rosen, with whom were James Maguire and David Hunter Smith, and, on the brief, Steven D. Ecker, New Haven, and M. Caitlin S. Anderson, for the appellants in AC 34565 and the appellees in AC 35005 (named defendant et al.).

William C. Franklin, Litchfield, for the appellee in AC 34565 and the appellant in AC 35005 (plaintiff).

SHELDON, MULLINS and SCHALLER, Js.

Opinion

SHELDON, J.

These appeals arise from an action by the plaintiff, James E. Burns, Jr., doing business as Jim Burns Handyman, to foreclose on a mechanic's lien he had filed against a parcel of real property owned by the defendant David Adler, in Salisbury, and to recover damages from Adler, on grounds of breach of contract and unjust enrichment, for unpaid work he had performed at the property on the defendant's home.¹ In the first part of a bifurcated trial, the court focused exclusively on the plaintiff's claims for damages, together with the defendant's special defenses to those claims and parallel counterclaim for damages, based principally upon the plaintiff's alleged noncompliance with certain provisions of the Home Improvement Act (act), General Statutes § 20–418 et seq. The trial court ordered the defendant to pay restitution to the plaintiff for the value of his unpaid work, despite the plaintiff's noncompliance with the act, due to the defendant's bad faith conduct toward the plaintiff, as pleaded in avoidance of the special defenses in the plaintiff's reply. In the second part of the trial, which focused exclusively on the plaintiff's claim for foreclosure of his mechanic's lien on the defendant's property, the court rendered judgment in favor of the plaintiff pursuant to a stipulation of the parties, but denied the plaintiff's subsequent motion for a supplemental judgment, insofar as it sought attorney's fees under General Statutes § 52–249(a) in connection with his prosecution of the foreclosure claim. These appeals followed. In AC 34565, the defendant claims error in the judgment of the trial court awarding restitution to the plaintiff under the bad faith exception to the act. In AC 35005, the plaintiff claims error in the supplemental judgment of the trial court denying his request for attorney's fees in connection with the foreclosure of his mechanic's lien. We affirm the judgments of the trial court.

FACTUAL AND PROCEDURAL HISTORY

The following facts and procedural history, as found by the trial court in its memorandum of decision, are relevant to our resolution of these appeals. “The plaintiff ... is a high school graduate who began carrying out sophisticated building projects in 2000. Most of his work was based on oral agreements with his customers. In September, 2007, the plaintiff had conversations with [the defendant] about renovations and remodeling on a ‘weekend’ home that [the defendant] and his wife ... Amie R. Weitzman, planned to buy in Lakeville.... [The defendant] earned a law degree in 1988, passed the bar [examination] in 1990, and, thereafter, practiced law until he became an investment banker. [The defendant] also had prior experience supervising renovation projects on his other properties. Weitzman is a professional interior designer.

“The preliminary talks between the parties were very general in nature. [The defendant] wanted substantial demolition in the Lakeville house, the addition of a second floor, and he wanted to expand the house's footprint, but most of all, he wanted the work to be done as quickly as possible so that the [defendant and Weitzman], whose primary residence is in New York City, could use the house during the summer of 2008. When the project was completed, the [defendant] had made payments to the plaintiff in the amount of $985,000. However, the plaintiff alleges that the [defendant] declined to pay him the balance due, which, the plaintiff alleged in his complaint, is $214,039.09.

“On December 2, 2008, the plaintiff brought suit against the [defendant] and Weitzman, as well as the Salisbury Bank and Trust Company. The operative complaint is a revised complaint filed on February 17, 2009. It alleges that the plaintiff entered into an agreement with the [defendant] to effect improvements to a home located at 135 Interlaken Road [in] Salisbury.... The plaintiff claims that he performed the services requested, but that he was only partially paid for his efforts. The complaint is in three counts seeking foreclosure of a mechanic's lien, and alleging breach of contract and unjust enrichment, respectively.

“The [defendant] denied the allegations of the complaint and raised six special defenses. The [defendant] also filed a four count counterclaim, in which [he] alleged a violation of the Connecticut Unfair Trade Practices Act (‘CUTPA’) [General Statutes § 42–110a et seq. ], negligence, breach of contract and unjust enrichment. The plaintiff, in turn, denied the allegations of the counterclaim and raised two special defenses.

“The parties agreed that the issue of foreclosure of the mechanic's lien would be bifurcated from the primary trial and, if necessary, addressed in a separate hearing. Furthermore, both parties sought attorney's fees, but agreed that this issue would also be bifurcated from the primary trial and, if necessary, addressed in a separate hearing.

“This matter was first tried to the court on October 27, 2011. The trial continued on November 2, 3, 4 and 10, 2011. The parties filed simultaneous posttrial briefs on January 6, 2012, and simultaneous reply briefs on January 17, 2012.

“At the time of the preliminary discussions, the [defendant] did not have any formal plans to show to the plaintiff. The [defendant] closed on the Lakeville property on or about October 4, 2007, and, absent plans, the plaintiff immediately began work demolishing the interior. Thereafter, the plaintiff's immediate tasks were to reconfigure some of the rooms and plan for the addition of a second story.

“The record reflects three significant issues that were manifest throughout the project and ultimately helped bring about this litigation. First, the project evolved continuously from beginning to end. Second, the parties shared a mutual disregard for the provisions of [the act] and for documentation, in general. Third, the [defendant and Weitzman] were so focused on completing the project expeditiously that they made expense, quality control and personal responsibility for the project all subordinate to the goal of completing the project on time. [The defendant] testified that he knew that making ‘speed’ a priority would make the project more expensive, but he did not think that such a focus would have a significant impact on the cost of the project or that the nine month time frame reflected a tight schedule. The record reveals, however, that [the defendant] knew little about the details of construction and renovation, and so he had no legitimate basis for reaching the latter conclusions.

“The record reflects that the plaintiff and [the defendant] entered into a very rudimentary general contract dated October 5, 2007, that had a ‘start date’ of October 11, 2007.... The contract was a time and materials contract providing for payment at the rate of ‘$45 per man plus any expenses....' The contract required a twenty thousand dollar deposit, which the [defendant] paid. It does not reflect a completion date for the project because there were no final plans when the contract was signed; indeed, it does not appear that the plans were ever truly finalized. Despite the [defendant's] claims to the contrary, the record does not support the conclusion that the parties ever entered into a fixed price contract.

“The October 5, 2007 contract reflects the plaintiff's effort to conform to the requirements of the [act], a law with which the plaintiff was personally unfamiliar, but which had been mentioned to him by his attorney. The two page contract carries [the defendant]'s signature on page two along with the date of October 9, 2007. [The defendant] is the only signatory on the contract offered into evidence; there is no evidence that Weitzman ever entered into a written contract with the plaintiff. The contract carries three copies of the ‘Notice of Cancellation,’ as required by the [act]. The copies of the cancellation notice indicate that they are for the customer, the customer's files and the contractor. Bizarrely, [the defendant], in addition to signing the contract, also signed all three copies of the cancellation notice and dated each of them ‘October 9, 2007.’ ... The plaintiff, understandably puzzled, called [the defendant] to determine his true intentions with regard to the project.

“[The defendant] testified that he reviewed the contract carefully, but that he did not read the cancellation notices closely, and he ‘didn't know what the purpose of the cancellation notice was.’ ... [The defendant] also testified that he did not notice that the contract lacked a completion date. Nonetheless, throughout his testimony, [the defendant] continued to imply that he had read the contract carefully. The court finds that [the defendant]'s testimony on this issue is not credible. In addition to the foregoing inconsistencies, the record also reflects an e-mail [dated October 10, 2007] from [the defendant], purportedly explaining why he signed the cancellation notices, with the subject line: ‘Sorry I had my assistant print it out and just signed everything.’ ... In response to that e-mail, the plaintiff requested a new contract or a letter stating that the original contract was still in effect. [The defendant] never sent a new contract, nor did he send the letter that the plaintiff requested. The plaintiff testified that he signed the contract and gave a copy to the [defendant], but no such copy was introduced at the time of trial.

“The [defendant claims] that [he] never...