Winakor v. Savalle

• Decision Date: 07 July 2020
• Docket Number: AC 42306
• Citation: 198 Conn.App. 792,234 A.3d 1122
• Court: Connecticut Court of Appeals
• Parties: Lee WINAKOR v. Vincent SAVALLE

198 Conn.App. 792

234 A.3d 1122

Lee WINAKOR

v.Vincent SAVALLE

AC 42306

Appellate Court of Connecticut.

Argued March 3, 2020

Officially released July 7, 2020

Patrick J. Markey, for the appellant (defendant).

Paul M. Geraghty, with whom was Jonathan Friedler, New London, for the appellee (plaintiff).

Prescott, Moll and Harper, Js.

PRESCOTT, J.

The principal issue in this appeal is whether services provided by a contractor as part of the construction of a new residence fell outside of the statutory purview of the Home Improvement Act (Improvement Act), General Statutes § 20-418 et seq. The defendant, Vincent Savalle, appeals from the judgment of the trial court rendered in favor of the plaintiff, Lee Winakor, in which the court concluded that the defendant was liable to the plaintiff in the amount of $100,173.32 for breach of contract, violation of the Improvement Act, and violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110b et seq. On appeal, the defendant claims, among other things, that the trial court improperly rendered judgment in favor the plaintiff on (1) the CUTPA count because it predicated CUTPA liability on the erroneous determination that the defendant had violated the Improvement Act, and (2) the breach of contract count because there was insufficient evidence to establish causation, which is necessary to prove damages. The defendant also claims that the trial court abused its discretion in awarding attorney's fees to the plaintiff. We agree with the defendant on his claim regarding the improper imposition of CUTPA liability and the award of attorney's fees but disagree with him on his claim that the court improperly found for the plaintiff on the count alleging a breach of contract. Accordingly, we affirm in part and reverse in part the judgment.

The following facts, as found by the court in its memorandum of decision or as undisputed in the record, and procedural history are relevant to the defendant's claims. In 2005, the plaintiff purchased real property located at 217 Legend Wood Road in North Stonington. In 2012, he entered into a contract with Golden Hammer Builders, LLC (Golden Hammer), through its principal, Brian Mawdsley, to construct a new single-family home on the property (GH contract). The GH contract contemplated site work and construction of the home for $425,300 and permitted the plaintiff to find another contractor to perform the site work and to subtract the cost of such work, $55,000, from the total cost.¹

In mid-2012, the plaintiff met with the defendant to consider hiring him to perform the site work. After meeting with the plaintiff to discuss the scope of the site work, the defendant submitted a bid for $50,000, which was $5000 less than the $55,000 it would have cost the plaintiff under the GH contract. As a result, the plaintiff hired the defendant to perform the site work. The plaintiff drafted a contract pursuant to which the defendant would purchase materials and provide a variety of services that originally were included in the GH contract.² The parties subsequently signed a written contract on September 1, 2012, in which the plaintiff agreed to pay the contract price of $50,000 for the site work, and the defendant agreed to complete the contract within one year of the start date. Subsequently, Mawdsley applied, on the plaintiff's behalf, for a new home building permit on September 17, 2012, under his new home construction contractor's license. The building permit was issued on January 28, 2013.

The defendant began working at the site in September, 2012. The trial court found that "[h]e hammered out a ledge for the foundation, installed a septic tank, constructed retaining walls, began site work, installed a propane tank and gas lines (which he later agreed to do), installed the well electrical line, and partially finished the driveway." In December, 2013, Golden Hammer finished building the house, and the plaintiff received a partial certificate of occupancy. In January, 2014, a full certificate of occupancy was issued for the house.

At that time, however, the defendant had not yet completed his work in accordance with his contract with the plaintiff. The Planning and Zoning Commission of the Town of North Stonington (town) issued a letter to the plaintiff indicating that the house substantially conformed to its zoning regulations and would be approved for zoning compliance on the conditions that, among other things, "the final grading, landscaping, and soil stabilization be completed within [six] months" and the driveway be widened.

On January 18, 2014, the defendant entered into a second contract with the plaintiff. That agreement required the defendant to complete the work that was set forth in the first contract by April 1, 2014, for an additional $10,000. At this point, the plaintiff already had paid the defendant $53,000.

Over time, it became apparent that there were problems associated with the quality of the defendant's work.³ Due to the plaintiff's dissatisfaction with the defendant's workmanship and the defendant's failure to complete the project according to schedule, the plaintiff terminated his relationship with the defendant in April, 2014. Subsequently, the plaintiff hired another contractor, Charles Lindo, to remedy the flaws in the work that the defendant had completed and to finish the work that the defendant had failed to complete. Lindo ultimately completed the project at additional cost to the plaintiff. In October, 2014, the town notified the plaintiff that his new residence fully complied with its zoning regulations.

On May 28, 2015, the plaintiff commenced this action against the defendant. The operative amended complaint asserted five separate counts: breach of contract (count one); unjust enrichment (count two); violations of the New Home Construction Contractors Act (New Home Act), General Statutes § 20-417a et seq. (count three);⁴ (4) violations of the Improvement Act (count four); and violations of CUTPA (count five). On August 12, 2015, the defendant filed his answer and a counterclaim, in which he alleged that "[t]he plaintiff is indebted to the defendant in the amount of $28,000 for the services he performed and the materials he supplied."

In response, the plaintiff filed his answer and a special defense asserting that the defendant is barred from recovering from the plaintiff due to his violation of the New Home Act.

The case was tried before the court, Frechette, J ., over nine days, beginning on March 6, 2018. Subsequently, the parties submitted posttrial briefs.

In a memorandum of decision issued on August 21, 2018, the court found that the defendant had breached his contract with the plaintiff by not completing the project on time and by "using improper techniques and methods to [perform] the contract ... [causing] the plaintiff [to incur] additional expenses to repair and finish the work the defendant was contractually required to do." Having found a breach of an enforceable contract, the court concluded that the plaintiff was not entitled to recover for unjust enrichment. See Gagne v. Vaccaro , 255 Conn. 390, 401, 766 A.2d 416 (2001) (lack of remedy under contract is precondition for recovery under unjust enrichment theory). The court further determined that the defendant violated the Improvement Act by failing to comply with certain statutory requirements regarding the form of the contract. Specifically, it found that the contract did not contain the name, address, and registration number of the contractor; did not include a notice of the homeowner's cancellation rights; did not disclose whether the defendant worked as a sole proprietor; and did not contain the entire agreement by not including, for example, provisions regarding the propane tank installation. Finally, the court concluded that, on the basis of the Improvement Act violations, the defendant committed a per se CUTPA violation. Accordingly, the court rendered judgment in favor of the plaintiff on counts one, three, four, and five of the complaint and awarded the plaintiff compensatory damages totaling $100,173.32. Subsequently, the defendant filed a motion to reargue, challenging, among other things, the court's findings regarding the applicability of the Improvement Act, the existence of a contract, and the damages awarded to the plaintiff. The motion was denied, and the defendant's appeal followed.

After judgment was rendered, the plaintiff also filed a motion seeking an award of attorney's fees on the basis of the CUTPA violation. On August 19, 2019, the court held a hearing on the plaintiff's motion for attorney's fees. Thereafter, on September 4, 2019, the court issued an order awarding the plaintiff $126,126.91 in attorney's fees and $2412.05 in costs. The defendant amended his appeal to challenge the court's order regarding attorney's fees.

I

We first address the defendant's claim that the court improperly rendered judgment in favor of the plaintiff on the CUTPA count on the basis of its finding that the defendant violated the Improvement Act.⁵ The defendant primarily asserts that the Improvement Act was inapplicable in this case because the work that he performed constitutes new home construction, which is explicitly exempted by the Improvement Act, and, thus, could not support the trial court's imposition of CUTPA liability and its subsequent award of damages and attorney's fees, which flowed therefrom. We agree that the court improperly determined that there was CUTPA liability based on an underlying violation of the Improvement Act. Accordingly, we reverse the court's judgment on counts three, four, and five.

We begin by setting forth the standard of review applicable to this claim.

"CUTPA provides that [n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce. ... It is well settled that whether a defendant's acts constitute ... deceptive or...