Tang v. Bou-Fakhreddine

• Decision Date: 04 March 2003
• Docket Number: (AC 21539).
• Citation: 815 A.2d 1276,75 Conn. App. 334
• Court: Connecticut Court of Appeals
• Parties: EDWARD TANG v. MALEK BOU-FAKHREDDINE.

75 Conn. App. 334

815 A.2d 1276

EDWARD TANG v. MALEK BOU-FAKHREDDINE.

(AC 21539).

Appellate Court of Connecticut.

Argued October 18, 2002.

Officially released March 4, 2003.

Flynn, West and Hennessy, Js.

Edward Tang, pro se, the appellant (plaintiff).

Opinion

WEST, J.

The pro se plaintiff, Edward Tang, appeals from the judgment of the trial court, rendered following a hearing in damages, after the defendant, Malek Bou-Fakhreddine, was defaulted for failing to attend a pretrial conference. On appeal, the plaintiff claims that the court improperly (1) concluded that he failed to meet his burden of proof on those counts of his amended complaint alleging violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., reckless indifference and unintentional infliction of emotional distress, (2) failed to award $5855 in damages on the basis of a finding that he had testified that part of that sum was duplicative of other damages awarded, (3) failed to award prejudgment interest, (4) failed to award damages for negligence, (5) precluded him from submitting affidavits as evidence of damages for inconvenience, mental duress, suffering and anguish, and (6) failed to award $286.85 and $512 for storm windows and electrical work, respectively. We reverse in part the judgment of the trial court. The following facts are relevant to our disposition of the plaintiff's appeal. In 1994, the plaintiff entered into a written contract with the defendant for certain renovations to the plaintiff's residence. Under that contract, the defendant, a registered home improvement contractor, was to add a full dormer to the rear of the plaintiff's residence. To ensure that the plans and specifications for that work complied with the local building codes, the parties attended a number of meetings with the Fairfield building department. Those meetings eventually culminated in the issuance of a building permit following the submission and approval of plans and specifications dated September 4, 1994.

The approved building plans specified, inter alia, that the dormer structure was to be supported by cantilevered beams eight feet in length, with a two foot overhang beyond the existing footprint of the residence. In contravention of those specifications, and without notice either to the plaintiff or to the building department, the defendant installed cantilevered beams six feet in length. In the course of installing those beams, the defendant caused significant damage to the building's first floor ceiling.

The plaintiff first filed a complaint in this action on May 20, 1996. The plaintiff's fifth, and final, amended complaint was filed on April 22, 1999. In that complaint, the plaintiff alleged breach of contract, violation of CUTPA, reckless indifference, unintentional infliction of emotional distress and negligence.

On April 23, 1999, the court rendered a judgment of default against the defendant for his failure to attend a pretrial conference. On October 27, 2000, following a hearing in damages, the court issued its memorandum of decision, awarding the plaintiff $21,291.35 on the basis of the negligence and breach of contract claims. The court found, however, that the plaintiff had not satisfied his burden of proof with respect to his claims of fraudulent concealment, recklessness, unintentional infliction of emotional distress and CUTPA. The plaintiff sought an articulation of the court's memorandum of decision. This court ordered the trial court to articulate why it had not awarded the plaintiff damages for certain items and services, and why it had not awarded prejudgment interest. The court articulated its decision by way of an amended memorandum of decision in which it awarded an additional $1780 to the plaintiff for some of the remaining items. The court, however, affirmed its previous denial of prejudgment interest. This appeal followed.

I

We first address the plaintiff's claim that the court improperly concluded that he had failed to meet his burden of proof with respect to those counts of his amended complaint alleging a violation of CUTPA, reckless indifference and unintentional infliction of emotional distress.¹ Our review of the legal sufficiency of pleadings is plenary. Saunders v. Stigers, 62 Conn. App. 138, 142, 773 A.2d 971 (2001).

"A default admits the material facts that constitute a cause of action . . . and entry of default, when appropriately made, conclusively determines the liability of a defendant." (Citation omitted; internal quotation marks omitted.) Skyler Ltd. Partnership v. S.P. Douthett & Co., 18 Conn. App. 245, 253, 557 A.2d 927, cert. denied, 212 Conn. 802, 560 A.2d 984 (1989). If the allegations of the plaintiff's complaint are sufficient on their face to make out a valid claim for the relief requested, the plaintiff, on the entry of a default against the defendant, need not offer evidence to support those allegations. Carothers v. Butkin Precision Mfg. Co., 37 Conn. App. 208, 209, 655 A.2d 799 (1995). Therefore, the only issue before the court following a default is the determination of damages. Id. A plaintiff ordinarily is entitled to at least nominal damages following an entry of default against a defendant in a legal action. Melfi v. Danbury, 70 Conn. App. 679, 691, 800 A.2d 582, cert. denied, 261 Conn. 922, 806 A.2d 1061 (2002).

We turn now to an examination of each count to determine whether the allegations of the plaintiff's complaint are sufficient on their face to make out a valid claim for the relief requested.

A The CUTPA Claim

In the present case, the plaintiff's complaint alleges CUTPA violations based on the defendant's installation of insufficiently long cantilever beams in violation of the approved design specifications, concealment of the defective installation of those beams and failure to supervise properly and to pay his subcontractors, resulting in incomplete and unfinished work. The complaint also alleges that the contract provided by the defendant violates public policy in that it fails to meet the requirements of the Home Improvement Act, General Statutes § 20-418 et seq. The complaint alleges that the contract did not contain the starting and completion dates, notice of the homeowner's cancellation rights or the defendant contractor's address.

General Statutes § 20-429 (a) provides in relevant part: "No 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 in accordance with the provisions of chapter 740, (7) contains a starting date and completion date, and (8) is entered into by a registered salesman or registered contractor. . . ." Pursuant to General Statutes § 20-427 (c), any violation of the Home Improvement Act is deemed to be an unfair or deceptive trade practice and constitutes a per se violation of CUTPA. Meadows v. Higgins, 49 Conn. App. 286, 296, 714 A.2d 51 (1998), rev'd on other grounds, 249 Conn. 155, 733 A.2d 172 (1999).

The material facts regarding the deficiencies of the construction contract as set forth in the plaintiff's fifth amended complaint are sufficient to establish a violation of the Home Improvement Act and, consequently, are also sufficient to justify an award of damages pursuant to CUTPA. See Kronberg Bros., Inc. v. Steele, 72 Conn. App. 53, 59-60, 804 A.2d 239 (defective notice of cancellation rights in contract sufficient for award under CUTPA), cert. denied, 262 Conn. 912, 810 A.2d 277 (2002).

Once a violation of CUTPA has been established, evidence that the defendant has acted with reckless indifference to the rights of the plaintiff or has committed an intentional and wanton violation of those rights is a necessary prerequisite to the award of punitive damages. Gargano v. Heyman, 203 Conn. 616, 622, 525 A.2d 1343 (1987); Tanpiengco v. Tasto, 72 Conn. App. 817, 821, 806 A.2d 1080 (2002). Such an award, however, is discretionary, and "the exercise of such discretion will not ordinarily be interfered with on appeal unless the abuse is manifest or injustice appears to have been done." Gargano v. Heyman, supra, 622.

The plaintiff's allegations in support of his CUTPA count consist of little more than a recitation of the facts establishing the CUTPA violation, as set forth in the previous count of the complaint, with the necessary boilerplate characterization of the defendant's actions as "outrageous," "intentional" or "wilful" appended to each paragraph of the count. Nevertheless, in light of the defendant's default, they are sufficient to establish liability for the purpose of awarding punitive damages. Accordingly, we conclude that the court abused its discretion in failing to award at least nominal damages under CUTPA for the defendant's violations of the Home Improvement Act, and his wilful and wanton violation of the plaintiff's contractual rights.

B Unintentional Infliction of Emotional Distress

To prevail on a claim of negligent infliction of emotional distress, the plaintiff must demonstrate that the defendant should have realized that his conduct involved an unreasonable risk of causing emotional distress and that such distress, if it were caused, might result in bodily harm or illness. Shaw v. Shell Oil Products Co., 119 F. Sup. 2d 62, 70 (D. Conn. 2000); Montinieri v. Southern New England Telephone Co., 175 Conn. 337, 341, 398 A.2d 1180 (1978). We conclude that the allegations of the plaintiff's complaint are sufficient on their face to make out a valid claim of negligent infliction of emotional distress.

Count four of the plaintiff's operative complaint sets forth his claim of unintentional infliction of emotional distress and contains the following recitation:

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