A. Secondino and Son, Inc. v. LoRicco

• Decision Date: 12 June 1990
• Citation: 215 Conn. 336,576 A.2d 464
• Court: Connecticut Supreme Court
• Parties: A. SECONDINO AND SON, INC. v. Richard A. LoRICCO et al. 13773.

Page 464

576 A.2d 464

215 Conn. 336

A. SECONDINO AND SON, INC. v. Richard A. LoRICCO et al.

13773.

Supreme Court of Connecticut.

Argued Feb. 6, 1990.

Decided June 12, 1990.

[215 Conn. 337] Richard B. Cramer, New Haven, for appellant-appellee (plaintiff).

Paul M. Sabetta, New Haven, for appellee-appellant (named defendant).

Clarine Nardi Riddle, Atty. Gen., and Robert M. Langer, Stephen R. Park and Neil G. Fishman, Asst. Attys. Gen., submitted a brief on behalf of the state, as amicus curiae.

Before PETERS, C.J., and SHEA, CALLAHAN, GLASS and HULL, JJ.

PETERS, Chief Justice.

The principal issues in this case are: (1) the right of a home improvement contractor who has failed to comply with the written contract requirement of the Home Improvement Act; General Statutes § 20-429; ¹ to recover damages, under theories of quasi contract, for completed home improvements; and (2) the right of a homeowner to recover compensatory and punitive damages pursuant to the Connecticut Unfair Trade Practices Act (CUTPA); General Statutes § 42-110a et seq.; for violation of the Home Improvement Act. The plaintiff, A. Secondino & Son, Inc., initiated this action for damages under theories of breach of contract, quantum meruit and unjust enrichment against the defendant The trial court found the following undisputed facts. The defendant, an experienced lawyer, requested the plaintiff, a building contractor principally engaged in commercial work, to come to the defendant's home to discuss certain home improvements. ⁵ The parties orally agreed that the plaintiff would construct a garage and driveway and install a heating system, flooring and kitchen countertops, for which the defendant would pay at the rate of cost plus fifteen percent. No written contract existed between the parties and the defendant never received notice concerning any right that he might have to cancel the contract. Prior to completion of the project, the defendant discontinued progress payments and the plaintiff stopped work. The total billings for the project amounted to $43,062.70, for which the plaintiff claims a balance due of $17,062.70.

                Richard A. LoRicco, 2 who filed an answer claiming, inter alia, that [215 Conn. 338] recovery was barred by the Home Improvement Act. 3  The defendant also filed a counterclaim alleging that the plaintiff's conduct was an unfair trade practice under CUTPA. 4  The trial court ruled in favor of the defendant on the complaint and in favor of the plaintiff on the counterclaim.   The plaintiff appealed to the Appellate Court and the defendant filed a cross appeal;  we transferred this case to ourselves pursuant to Practice Book § 4023.   We affirm the judgment of the trial court
                

The plaintiff initiated the present action to recover the balance allegedly due under the oral agreement, or, in the alternative, for the reasonable value of its services and materials under a theory of quantum meruit or of unjust enrichment of the defendant. The defendant denied liability on the ground that the plaintiff's failure to comply with the written contract requirement of the Home Improvement Act precluded any recovery. In addition, the defendant filed a counterclaim alleging that the plaintiff's failure to provide a written contract containing notice of the defendant's cancellation rights violated the Home Improvement Act, the Home Solicitation Sales Act; General Statutes § 42-134a et seq.; and the federal Trade Regulation Rule Concerning a Cooling-Off Period for Door-to-Door Sales; 16 C.F.R. 429; and that, as a consequence, he was entitled to compensatory and punitive damages under CUTPA.

The trial court held that the plaintiff's failure to comply with the written contract requirement of § 20-429 barred the quantum meruit and unjust enrichment claims as well as the claim for breach of contract. The trial court also rejected each of the defendant's counterclaims. The court held that the defendant had failed to sustain his burden of proof in establishing that the plaintiff should be liable for untimely performance, since nothing in the oral agreement specified that time was of the essence, and concluded that the plaintiff had justifiably repudiated the contract due to the defendant's failure to make the payments due for completed work. The court further found that the defendant had failed to prove that the plaintiff had caused the alleged defects in materials and workmanship.

                Finally, the court concluded that the defendant had not demonstrated that the plaintiff's conduct constituted an unfair [215 Conn. 340] or deceptive trade practice, and, furthermore, that the defendant had failed to present any evidence demonstrating that he had sustained damages as a result of the alleged violation.   In response to a motion for articulation, the court noted that "[t]he facts of this case ... [do] not fall within the Home Solicitation Act and [fall] within the exceptions of § [42-134a(a)(4) ]." 6
                

On appeal, the plaintiff argues that the trial court mistakenly interpreted the Home Improvement Act to bar recovery for his quantum meruit and unjust enrichment claims. While conceding that failure to comply with the written contract requirement of § 20-429 precludes recovery for breach of the oral agreement, he contends that the legislature did not intend to abrogate the common law restitutionary causes of action by which a party may recover for materials and for services performed despite the absence of an enforceable contract. We have fully addressed this issue in Barrett Builders v. Miller, 215 Conn. 316, 576 A.2d 455 (1990), which we have also released today. After a full examination and discussion of the merits of such a claim by a contractor similarly situated to the plaintiff, we concluded that, absent proof of bad faith on the part of the homeowner, § 20-429 permits no recovery in quasi contract by a contractor who has failed to comply with the statute's written contract requirement. Id., 215 Conn. at 323, 576 A.2d 455. Accordingly, we conclude that the trial court correctly rejected the plaintiff's quantum meruit and unjust enrichment claims. ⁷

In his cross appeal, the defendant asserts two arguments in support of his contention that the trial court wrongly concluded that he is not entitled to compensatory and punitive damages under CUTPA. The defendant first argues that the trial court should have found the Home Solicitation Sales Act applicable to the transaction in this case. According to the defendant, the court mistakenly relied upon an exception contained in that statute for transactions in which the contractor visits the home at the homeowner's request. See General Statutes § 42-134a(a)(4). That exception, the defendant argues, applies only to transactions involving the repair or maintenance of personalty, and is thus inapplicable to the present agreement for the renovation of real property. Secondly, the defendant contends that the plaintiff's failure to provide the defendant with a signed and dated written contract containing notice of the defendant's right to cancel the contract within three days after entering into the agreement amounted to a violation of the Home Solicitation Sales Act, ⁸ the A party seeking to recover damages under CUTPA must meet two threshold requirements. First, he must establish that the conduct at issue constitutes an unfair or deceptive trade practice. Web Press Services Corporation v. New London Motors, Inc., 205 Conn. 479, 481-84, 533 A.2d 1211 (1987); Conaway v. Prestia, 191 Conn. 484, 492-93, 464 A.2d 847 (1983). Second, he must present evidence providing the court with a basis for a reasonable estimate of the damages suffered. Barco Auto Leasing Corporation v. House, 202 Conn. 106, 120-21, 520 A.2d 162 (1987); Conaway v. Prestia, supra, 191 Conn. at 494, 464 A.2d 847; Hinchliffe v. American Motors Corporation, 184 Conn. 607, 619, 440 A.2d 810 (1981).

                [215 Conn. 342] federal Trade Regulation Rule Concerning a Cooling-Off Period for Door-to-Door Sales and the Home Improvement Act.   Violation of these statutes, the defendant contends, constitutes an unfair trade practice[215 Conn. 343]  under CUTPA, and thus entitles him to compensatory and punitive damages.   On the present record, we are not persuaded
                

The first element of the threshold test for CUTPA recovery is satisfied in this case, although not on the theory advanced at trial. The plaintiff's undisputed failure to comply with the Home Improvement Act's written contract requirement is a per se violation of CUTPA by virtue of General Statutes § 20-427(b), which provides that any violation of the Home Improvement Act is deemed to be an unfair or deceptive trade practice. ⁹ We therefore need not consider the defendant's contention that the trial court mistakenly concluded that the Home Solicitation Sales Act and the federal Trade Regulation Rule Concerning a Cooling-Off Period for Door-to-Door Sales do not apply to the home improvement transaction in this case. ¹⁰ The defendant has not, however, satisfied the second threshold requirement for CUTPA recovery. The trial court expressly found that "the defendant has failed to present any damages arising from the alleged [CUTPA] violations," a factual determination that the defendant has not challenged in this appeal. While CUTPA damages need not be proven with absolute precision, the failure to present any evidence concerning the nature and extent of the injury sustained precludes recovery under the statute. We therefore conclude that the trial court correctly rendered judgment for the plaintiff on the CUTPA counterclaim.

The judgment is affirmed.

In this opinion GLASS and HULL, JJ., concurred.

SHEA, Associate Justice, with whom CALLAHAN, Associate Justice, joins, dissenting.

This case is a vivid illustration of how the majority's denial of the availability of restitution for a contract violating General Statutes § 20-429 has provided a homeowner with a device for avoiding payment...