Rizzo Pool Co. v. Del Grosso

• Decision Date: 11 April 1995
• Docket Number: Nos. 14973,14974,s. 14973
• Citation: 232 Conn. 666,657 A.2d 1087
• Court: Connecticut Supreme Court
• Parties: RIZZO POOL COMPANY v. Daniel DEL GROSSO et al.

Page 1087

657 A.2d 1087

232 Conn. 666

RIZZO POOL COMPANY v. Daniel DEL GROSSO et al.

Nos. 14973, 14974.

Supreme Court of Connecticut.

Argued Nov. 1, 1994.

Decided April 11, 1995.

Shelley M. Weiss, Groton, for appellants (defendants).

David L. Gussak, Hartford, for appellee (plaintiff).

Before PETERS, C.J., and CALLAHAN, BERDON, KATZ and PALMER, JJ.

PALMER, Associate Justice.

The principal issue raised by this appeal is whether a certain contract between the plaintiff, Rizzo Pool Company, and the defendants, Daniel Del Grosso and Jo-Ann Del Grosso, for the installation of a swimming pool on the defendants' property is subject to the provisions of the Home Improvement Act (HIA). ¹ The plaintiff commenced this action for breach of contract when the defendants refused to allow the plaintiff to install the pool pursuant to the contract. The case was tried to a jury, which returned a verdict for the plaintiff. The trial court rendered judgment for the plaintiff in accordance with the jury verdict, and the defendants appealed. ² We reverse in part the judgment of the trial court.

The record reveals the following facts. The defendants, a married couple who resided in New London, began construction of a new home on property that they owned in Waterford. In the spring of 1988, while their new home was under construction, the defendants contacted the plaintiff for information regarding the installation of a swimming pool on the Waterford site. The plaintiff's sales representative, James Keenan, made several visits to the defendants' Waterford property to take various measurements and to discuss the possible pool installation with the defendants. Because the defendants' property abutted a pond, one of the issues discussed by Keenan and the defendants was the effect of the water level of the pond on the cost of the pool construction.

On July 15, 1988, the parties signed a contract in the amount of $37,810 for the installation of a swimming pool at the defendants' new home. ³ The contract expressly provided that in the event of cancellation of the contract by the defendants, the plaintiff would be entitled to liquidated damages of 20 percent of the contract price, plus costs of collection and reasonable attorney's fees. Although the defendants anticipated that the pool would be installed prior to the completion date of their new home, the contract did not contain either a starting date or a completion date.

In October, 1988, the town of Waterford temporarily lowered the water level of the pond adjacent to the defendants' property. The plaintiff urged the defendants to authorize the immediate installation of the swimming pool in order to avoid an increase in the contract price once the water level of the pond was returned to normal. ⁴ The defendants, however, refused to allow the plaintiff to commence construction of the pool at that time.

In the spring of 1989, the defendants instructed the plaintiff to proceed with the installation of the swimming pool. The plaintiff agreed to do so, but informed the defendants that the price of the pool had increased by approximately $5000 due to the return to normal of the pond's water level. ⁵ The defendants, however, refused to allow the plaintiff to install the pool at a price higher than the contract price, claiming that the parties had not contemplated a price increase due to a change in the water level of the pond. The plaintiff then initiated this action for breach of contract, seeking damages, interest and attorney's fees.

The defendants filed an answer, a counterclaim and several special defenses. The defendants' counterclaim alleged, in three counts, that the plaintiff had: (1) fraudulently induced the defendants to agree to purchase the swimming pool by quoting them a contract price that the plaintiff knew to be lower than that required to construct the pool; (2) violated the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., by virtue of its fraudulent misrepresentations regarding the price of the pool; and (3) breached the swimming pool installation contract. The defendants' special defenses claimed, inter alia, that the contract was an unenforceable "home improvement contract" under the HIA ⁶ because it failed to contain a commencement date or a completion date, or the signatures of both of the defendants as owners of the property. ⁷ The defendants moved for summary judgment on their special defenses under the HIA. The trial court, Austin, J., denied the defendants' motion on the ground that the exemption under the HIA for new home construction ⁸ rendered the act inapplicable to the contract. ⁹

The defendants thereafter filed certain additional special defenses, alleging that the swimming pool contract violated the provisions of the Home Solicitation Sales Act (HSSA). ¹⁰ Specifically, the defendants claimed that the notice of cancellation required by the HSSA was printed in smaller typeface than that mandated by the statute, that the cancellation notice did not contain a place where it could be signed and dated in accordance with the statutory requirements, and that the page of the contract containing the notice was not easily detachable from the other contract provisions. ¹¹ The plaintiff filed a motion in limine seeking an order precluding the introduction at trial of any evidence relating to the special defenses asserted by the defendants under the HIA and the HSSA. Prior to the commencement of trial, the trial court, R. O'Connell, J., granted the plaintiff's motion, concluding that the defendants' special defenses under the HIA were barred by Judge Austin's earlier determination, rendered in connection with his ruling on the defendants' motion for summary judgment, that the HIA was inapplicable to the contract, ¹² and that the HSSA was also inapplicable to the contract on the ground that "[t]he purpose of the ... [HSSA] does not fit the facts as the court has seen them and as they've been outlined ... by the pleadings here."

At the close of the evidence, ¹³ the trial court granted the plaintiff's motion for a directed verdict on the fraud and CUTPA counts of the defendants' counterclaim, concluding, as to the first count, that the defendants had failed to adduce evidence sufficient to establish the plaintiff's fraud and, as to the second count, that the defendants had failed to introduce any evidence of an ascertainable loss of money or property as required under CUTPA. ¹⁴ The jury returned a verdict for the plaintiff on its complaint in the total amount of $26,292.80, awarding the plaintiff $7562 in damages, $3250.80 in interest, and $15,480 in attorney's fees. The jury also returned a verdict for the plaintiff on the third count of the defendants' counterclaim. This appeal followed.

On appeal, the defendants claim that the trial court improperly: (1) precluded them from establishing their special defenses under the HIA and the HSSA; (2) directed a verdict for the plaintiff on the fraud and CUTPA counts of their counterclaim; (3) failed to instruct the jury as to the essential factual allegations of the third count of their counterclaim for breach of contract; and (4) permitted counsel for the plaintiff to make inflammatory and prejudicial comments about Daniel Del Grosso during the trial. ¹⁵ We agree with the first claim and, accordingly, we reverse in part the judgment of the trial court.

I

The defendants first contend that the trial court improperly prohibited them from asserting their special defenses under the HIA and the HSSA on the ground that neither act was applicable to the parties' contract. We agree with the defendants and, for the reasons that follow, we conclude that the trial court should have directed a verdict in their favor on the complaint.

A

A contract is subject to the requirements of the HIA if it constitutes "an agreement between a contractor and an owner for the performance of a home improvement." General Statutes § 20-419(5). Under the HIA, "home improvement" includes, among other things, the construction, replacement, installation or improvement of a swimming pool in connection with any land or building used or designed to be used as a private residence. General Statutes § 20-419(4). ¹⁶ Among the activities expressly excluded from the definition of "home improvement," however, is "[t]he construction of a new home." General Statutes § 20-419(4)(A). The trial court concluded that the parties' contract was exempt from the requirements of the HIA because the pool was to be installed in conjunction with the construction of the defendants' new home.

In construing the HIA, "[o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature.... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter." (Citations omitted; internal quotation marks omitted.) State v. Metz, 230 Conn. 400, 409, 645 A.2d 965 (1994); Fleming v. Garnett, 231 Conn. 77, 91-92, 646 A.2d 1308 (1994). Application of these well established principles of statutory construction persuades us that the parties' pool installation contract is subject to the requirements of the HIA.

Our starting point is the broad language of § 20-419(4), which defines "home improvement" to include the installation of a swimming pool for use at a private residence. Although construction of the defendants' new home had not been completed at the time the parties contracted for the installation of the pool, it is undisputed that the new dwelling was designed and intended for use as the defendants' private residence. Thus, the pool to be constructed by the plaintiff constituted a "home improvement" as defined by § 20-419(4) unless its installation...