Meadows v. Higgins, 17533

• Decision Date: 30 June 1998
• Docket Number: No. 17533,17533
• Citation: 49 Conn.App. 286,714 A.2d 51
• Court: Connecticut Court of Appeals
• Parties: Michael MEADOWS, v. Harrison Scott HIGGINS et al.

Page 51

714 A.2d 51

49 Conn.App. 286

Michael MEADOWS, v. Harrison Scott HIGGINS et al.

No. 17533.

Appellate Court of Connecticut.

Argued April 27, 1998.

Decided June 30, 1998.

Williams A. Phillips, Greenwich, for appellants (named defendant et al.).

Jerome A. Mayer, Bethel, with whom, on the brief, was Peter S. Olson, Bridgeport, for appellee (plaintiff).

Before FOTI, SCHALLER and DUPONT, JJ.

FOTI, Judge.

The defendants, Harrison Higgins and Linda Higgins, ¹ appeal from the judgment of the trial court rendered in favor of the plaintiff, Michael Meadows, doing business as Paper Pro, as to the complaint and as to the defendants' counterclaim. On appeal, the defendants claim that the trial court improperly (1) determined that the Home Improvement Act, General Statutes § 20-418 et seq., does not apply to the transaction between the plaintiff and the defendants and (2) awarded attorney's fees to the plaintiff pursuant to General Statutes § 52-249, which provides for such fees in foreclosure actions. We agree with the first of the defendants' claims and, therefore, reverse the judgment of the trial court.

An attorney trial referee found the following facts. The defendants are the owners of a parcel of residential property located in the town of Greenwich. Sometime prior to November, 1992, the defendants entered into a written contract with BCS Construction, Inc. (BCS), pursuant to which BCS agreed to serve as a consultant to the defendants on a project to renovate the defendants' single-family home. In accordance with that contract, Bruce Simon, a principal of BCS and a registered home improvement contractor, was designated the construction manager for the project. Simon subsequently arranged to have the plaintiff provide painting and wallpapering services to the defendants. There was no document or writing setting forth the terms of the agreement pursuant to which the plaintiff provided services and materials to the defendants. On January 15, 1993, the plaintiff had completed approximately 90 to 95 percent of the painting and wallpapering work when he was directed by the defendants to stop all work and leave the premises. The reasonable value of the services and materials provided by the plaintiff to the defendants is $29,255. The defendants have paid the plaintiff $12,840.

On April 6, 1993, the plaintiff filed a certificate of mechanic's lien with the Greenwich town clerk, claiming a lien on the defendants' property in the amount of $16,415. On January 3, 1994, the plaintiff filed a one count complaint seeking, inter alia, foreclosure of the mechanic's lien, damages and attorney's fees pursuant to § 52-249. On October 25, 1994, the defendants filed an answer, five special defenses and a two count counterclaim. The special defenses to the foreclosure action were that (1) the mechanic's lien was invalid because it allegedly was not filed within ninety days of the last date of any work performed by the plaintiff, ² (2) the plaintiff is a contractor within the meaning of the Home Improvement Act, who performed work on the defendants' home without having obtained a certificate of registration, (3) the plaintiff failed to advise the defendants of their cancellation rights, (4) any contract pursuant to which the plaintiff provided materials and services to the defendants was not entered into by a registered salesman or registered contractor and (5) there was no written contract signed by the plaintiff and the defendants. In the first count of their counterclaim, the defendants sought damages for the plaintiff's allegedly unsatisfactory, defective and negligent work. In the second count of their counterclaim, the defendants alleged that the plaintiff's actions constitute an unfair or deceptive trade practice in violation of the Connecticut Unfair Trade Practices Act (CUTPA), ³ and sought, inter alia compensatory and punitive damages, attorney's fees and interest.

The case was tried to an attorney trial referee, who concluded that the mechanic's lien was timely filed and that the provisions of the Home Improvement Act do not apply to the transaction between the plaintiff and the defendants. He also concluded that the defendants failed to meet their burden of proof on the allegations of unsatisfactory work performance and that the CUTPA violations alleged in the defendants' counterclaim were based on the Home Improvement Act, which does not apply to this case. The attorney trial referee recommended that the court render judgment in favor of the plaintiff as to the complaint, with reasonable attorney's fees pursuant to § 52-249, and as to both counts of the defendants' counterclaim.

On February 26, 1997, the trial court, Lewis, J., rendered judgment in accordance with the attorney trial referee's report. The trial court found that the provisions of the Home Improvement Act do not apply to the transaction between the plaintiff and the defendants because the plaintiff was acting as a subcontractor to Simon, who was a general contractor, and, therefore, there was no contract between the plaintiff and the defendants. The trial court concluded that "as to the plaintiff's complaint, judgment is entered in favor of the plaintiff to foreclose his mechanic's lien and the amount of the debt due the plaintiff at this time is established at $16,415. As to the defendants' counterclaim, judgment is entered in favor of the plaintiff. This case should now be claimed for the foreclosure motion or short calendar to rule on the specifics of such foreclosure, including the amount of the debt with interest, the type and date of foreclosure, the value of the premises, etc."

On March 17, 1997, the defendants appealed from the judgment of the trial court. On June 25, 1997, this court dismissed the defendants' appeal for lack of a final judgment. On August 11, 1997, the trial court, Mintz, J., held a hearing on the plaintiff's motion for judgment of strict foreclosure. The trial court rendered judgment of strict foreclosure in favor of the plaintiff and set a law day of September 9, 1997. The trial court also determined the amount of the debt, $16,415, the appraisal fee, $450, and the title search fee, $150, and awarded the plaintiff attorney's fees of $8295. On August 19, 1997, the defendants filed this appeal. ⁴

The defendants claim that the trial court improperly determined that the Home Improvement Act does not apply to the transaction between the plaintiff and the defendants. We agree.

"We begin by setting forth the applicable standards of review. Attorney trial referees are empowered to hear and decide issues of fact. Spears v. Kerars Realty Co., 171 Conn. 699, 702-703, 372 A.2d 121 (1976). It is axiomatic that 'a reviewing authority may not substitute its findings for those of the trier of the facts.' Wilcox Trucking, Inc. v. Mansour Builders, Inc., 20 Conn.App. 420, 423, 567 A.2d 1250 (1989), cert. denied, 214 Conn. 804, 573 A.2d 318 (1990). The trial court, as the reviewing authority, may render whatever judgment appropriately follows, as a matter of law, from the facts found by the attorney trial referee. Dills v. Enfield, 210 Conn. 705, 713, 557 A.2d 517 (1989)." Romano v. Derby, 42 Conn.App. 624, 626, 681 A.2d 387 (1996). "Where legal conclusions are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts found by the [attorney trial] referee. See Bowman v. 1477 Central Avenue Apartments, Inc., 203 Conn. 246, 256, 524 A.2d 610 (1987)." (Internal quotation marks omitted.) Kallas v. Harnen, 48 Conn.App. 253, 257, 709 A.2d 586, cert. denied, 244 Conn. 935, --- A.2d ---- (1998).

"The question of whether a particular statute ... applies to a given state of facts is a question of statutory interpretation.... Plastic Distributors, Inc. v. Burns, 5 Conn.App. 219, 225, 497 A.2d 1005 (1985). Statutory interpretation presents a question of law for the court. Robinson v. Unemployment Security Board of Review, 181 Conn. 1, 6, 434 A.2d 293 (1980); Pascale v. Board of Zoning Appeals, 150 Conn. 113, 116, 186 A.2d 377 (1962)." (Internal quotation marks omitted.) Rivera v. Fox, 20 Conn.App. 619, 621, 569 A.2d 1137, cert. denied, 215 Conn. 808, 576 A.2d 538 (1990).

General Statutes § 20-427(b) provides that "[n]o person shall ... (5) offer to make or make any home improvement without having a current certificate of registration under this chapter...." Persons found to be in violation of the foregoing provision are subject to both criminal and civil penalties. ⁵ In addition, General Statutes § 20-429(a) provides that "[n]o home improvement contract shall be valid or enforceable against an owner unless it: (1) Is in writing, (2) is signed by the owner and the contractor, (3) contains the entire agreement between the owner and the contractor, (4) contains the date of the transaction, (5) contains the name and address of the contractor, (6) contains a notice of the owner's cancellation rights ... (7) contains a starting date and completion date, and (8) is entered into by a registered salesman or registered contractor...." "A violation of any of the provisions of [the Home Improvement Act] shall be deemed an unfair or deceptive trade practice under subsection (a) of section 42-110b." General Statutes § 20-427(c).

The trial court accepted the attorney trial referee's finding that, at the time the plaintiff provided services and materials to the defendants, he was not a registered home improvement contractor and did not have a written contract with the defendants that complied with the Home Improvement Act. Nevertheless, the trial court concluded, on the basis of the facts found by the referee, that the act did not apply to the transaction between the plaintiff and the defendants, as a matter of law, because the plaintiff was acting as a subcontractor to Simon, who was a general contractor and, therefore, there was no "home improvement contract" between the plaintiff a...