Taylor v. King

• Decision Date: 11 May 2010
• Docket Number: No. 30471.,30471.
• Citation: 994 A.2d 330,121 Conn.App. 105
• Court: Connecticut Court of Appeals
• Parties: George TAYLORv.David KING.

121 Conn.App. 105

994 A.2d 330

George TAYLORv.David KING.

No. 30471.

Appellate Court of Connecticut.

Argued Feb. 9, 2010.

Decided May 11, 2010.

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Richard J. Pascal, Norwick, for the appellant (defendant).

Ann Grunbeck Monaghan, for the appellee (plaintiff).

GRUENDEL, HARPER and SCHALLER, Js.

SCHALLER, J.

The principal issue in this appeal requires us to determine whether a judgment as to liability and damages that is not final for purposes of appeal, issued within 120 days from the completion date of trial, and a subsequent judgment awarding attorney's fees and costs, which was issued more than 120 days after the completion date of trial, satisfies General Statutes § 51-183b.¹ The question must be answered by determining the date on which the trial was completed. We conclude that, because the completion date of trial was the date on which the court last heard argument on the issues of liability and damages before it rendered judgment on those issues, the trial court fully complied with § 51-183b.

The defendant, David King,² appeals from the judgment of the trial court, rendered after a civil trial to the court, in favor of the plaintiff, George Taylor. On appeal, the defendant claims that (1) the court rendered its decision more than 120 days after the completion date of trial in violation of § 51-183b, (2) the court improperly allowed the testimony of an expert witness, (3) the court improperly found that he was subject to the Home Improvement Act (act), General Statutes § 20-418 et seq., (4) if he was subject to the act, the court improperly failed to find that the plaintiff (a) waived compliance with the act and (b) claimed the act in bad faith, (5) the court's findings that (a) the plaintiff did not assent to the height of the garage at issue and (b) the defendant had substantial work remaining to be done on the project were clearly erroneous, (6) the court improperly awarded damages under the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., because the plaintiff did not plead that the harm caused by the defendant was a result of a CUTPA violation, (7) the court abused its discretion in awarding attorney's fees (a) under CUTPA and (b) for legal services provided on posttrial motions and (8) the court improperly awarded expert witness fees under CUTPA. We reverse the judgment of the trial court as to the award of expert witness fees and affirm the judgment in all other respects.

The defendant's appeal has its genesis in a construction contract dispute between the plaintiff homeowner and the defendant contractor. The trial court found the following pertinent facts. “The plaintiff purchased the property at 307 Ferry Road, Old Lyme, a basic Cape Cod style home, in December, 2003, where he lived with his significant other, Susan Kelly. In 2004, the plaintiff and Kelly decided to do a major renovation and addition to the property. Among other improvements and renovations, the work included adding a full second floor and a garage. The plaintiff had to scale plans drawn up detailing the proposed addition-renovation in August 2004. Al Bond, a local excavator and friend of the Kelly family, recommended the defendant for the framing on the project. The defendant is a registered home improvement contractor with the state of Connecticut, doing business as King Building for over twenty years....

“The parties, including Kelly, had a meeting in mid-October, 2004, to discuss the renovation-addition project. At the meeting, the defendant represented that his crew was knowledgeable, insured and trained to handle this type of project. Subsequent to the meeting, the defendant gave the plaintiff a quote over the telephone for the discussed portion of the project, which the plaintiff accepted. The defendant commenced work on the project on October 28, 2004, a few days later....

“By late December, 2004, the plaintiff discovered that the garage, as framed by the defendant, would not accommodate the eight foot doors contained in the building plans. Around that time, the plaintiff began to discover other deviations from the building plans, which caused him concern about the defendant's workmanship. In January, 2005, the relationship between the parties fell apart. As of January 19, 2005, the date of the last payment made by the plaintiff to the defendant, the plaintiff had paid $50,500 of the contracted amount of $52,425. Approximately only $2000 remained to be paid on the contract, although a lot of the work remained to be completed.”

On December 29, 2006, the plaintiff commenced this action, alleging breach of contract, breach of warranty, negligent infliction of emotional distress, unjust enrichment and a violation of CUTPA. On March 2, 2007, the defendant answered, pleaded seven special defenses, a setoff and alleged a three count counterclaim. The presentation of evidence as to liability and damages began on March 5, 2008, and concluded on March 14 2008. Briefs were filed on April 22, 2008, and argument was held on May 27, 2008. On September 24, 2008, the court rendered judgment as to liability and damages in favor of the plaintiff on all counts, found that the defendant failed to meet his burden of proof with respect to each count of his counterclaim and awarded the plaintiff damages of $110,000 (first decision).³ The court deferred the issues of punitive damages, attorney's fees and costs awardable under CUTPA until a later hearing. Following the filing of supplemental briefs and a hearing on the plaintiff's motion for punitive damages, attorney's fees and costs, the court, on March 30, 2009, rendered its decision as to punitive damages, attorney's fees and costs. The court declined to award punitive damages but awarded the plaintiff $50,498.08 for attorney's fees and $3880.58 for costs (second decision). This appeal followed. Additional facts will be set forth as necessary.

I

The defendant's first claim on appeal is that the court rendered judgment more than 120 days after the completion date of trial in violation of § 51-183b. Specifically, he argues that the completion date of trial was April 22, 2008, more than 120 days prior to the court's issuing its first decision regarding liability and damages, that the court could not have opened the case and that the case was not still open on October 21, 2008, and, even if October 21, 2008, represents the completion date of trial, the court nonetheless violated § 51-183b by not rendering its decision regarding punitive damages, attorney's fees and costs until March 30, 2009. The plaintiff argues that the completion date of trial was January 12, 2009, and also that the defendant consented to the delay by not filing an objection with the court.⁴ Because we conclude that the completion date of trial was May 27, 2008, and that the court's September 24, 2008 memorandum of decision represented a judgment for purposes of § 51-183b, the court complied with the statute.

The following facts are relevant for the resolution of the defendant's claim. The presentation of evidence began on March 5, 2008, and lasted until March 14, 2008, at which time the court requested that briefs be filed and argued. Briefs were filed on April 22, 2008, argument was held on May 27, 2008,⁵ and the court issued its first decision as to liability and damages on September 24, 2008. The court found in favor of the plaintiff but made no ruling on September 24, 2008, as to punitive damages, attorney's fees and costs.

On October 21, 2008, the court held a hearing on the issue of punitive damages, at which time the court suggested that it could open the case, or that the case was still open, as to the issues of punitive damages, attorney's fees and costs because evidence on those issues was not complete and that it had not rendered final judgment for purposes of appeal. The defendant filed a supplemental brief regarding punitive damages, attorney's fees and costs on October 27, 2008. The plaintiff filed his brief on October 31, 2008, and Ann Grunbeck Monaghan, the plaintiff's counsel, filed her affidavit of attorney's fees on November 3, 2008. At some time in January, 2009, fewer than 120 days prior to the issuance of the second decision on March 30, 2009, an argument regarding the plaintiff's motion to compel and for attorney's fees, dated December 1, 2008, took place before the court. Thereafter, on March 30, 2009, the court issued its decision as to punitive damages, attorney's fees and costs, awarding $50,498.08 for attorney's fees and $3880.58 for costs.

The defendant first argues that the completion date of trial was April 22, 2008, the date posttrial briefs were filed and more than 120 days prior to the court's issuing its first decision.⁶ The plaintiff counters that January 12, 2009, was the completion date of trial, as that was the date of the final argument prior to the court's issuing its second, and final, decision. We conclude that both parties have missed the mark and that the completion date of trial for purposes of § 51-183b was May 27, 2008.

Section 51-183b provides in relevant part: “Any judge of the Superior Court ... who has commenced the trial of any civil cause ... shall render judgment not later than one hundred and twenty days from the completion date of the trial of such civil cause....” (Emphasis added.) In construing this phrase, our Supreme Court has stated: “In determining that ‘the completion date’ includes the filing of briefs, the trial court held that briefing of the legal issues was a component of the judicial gathering of the materials necessary to a well-reasoned decision. In related contexts, ‘completion’ has been held to encompass the availability of all the elements directly or indirectly to be considered in the rendering of a decision. See Bankamerica Corporation v. Board of Governors, 596 F.2d 1368, 1378 (9th Cir.1979); Lloyd v. Illinois Regional Transportation Authority, 548...