DeMattio v. Plunket

Arthur DEMATTIO v. Robert PLUNKET, et al.

No. FSTCV166027579S

Superior Court of Connecticut, Judicial District of Stamford-Norwalk, Stamford

December 19, 2017

UNPUBLISHED OPINION

OPINION

A. WILLIAM MOTTOLESE, JUDGE TRIAL REFEREE

On January 12, 2015 the plaintiff and the defendants entered into a written contract whereby the plaintiff undertook to remodel the defendants’ kitchen and to do other related construction work which included building an addition to the kitchen. The contract provided for a start date of March 9 2015 and a completion date of May 11, 2015.

The contract contained the following payment schedule.

Job Cost

The total contract price for this work shall be $86, 300.00 (eighty-six thousand, three hundred, dollars). Payments, in U.S. funds, to be requested as follows:

$ 1, 000 Prior to start of work, non-refundable deposit

38, 000 Prior to start of addition segment of job

17, 500 After foundation, framing of walls and roof, roofing siding, bath repair

15, 600 After gutting of inside kitchen area, rough plumbing rough electric

9, 600 After drywall install, flooring install, gas line painting

4, 600 Upon hanging of cabinetry, cabinet trim, appliance install. (completion of job.)

$ 86, 300

The plaintiff did not commence work until the end of May but claims to have encountered certain unforeseen conditions which caused a delay of " two to three weeks." These conditions were never identified. The specified completion date was not extended as a result of the delay. The plaintiff ceased work on the project on October 21 because of a dispute with the defendants over the progress of the work at which time the plaintiff demanded the fourth installment payment of $15, 600. The parties each claim that the other terminated the contract at this point, with the plaintiff asserting that he was dismissed and the defendants claiming that the plaintiff " walked off the job." More specifically, the plaintiff asserts that he completed all of the work which entitled him to the fourth installment of $15, 600 while the defendants charge that they had already overpaid him considering his lack of progress at that stage of the contract. The plaintiff seeks the fourth installment plus $320 for asbestos testing which he claims is an extra, for a total of $15, 920. The defendants have filed a counterclaim seeking damages of $23, 992.34 as set forth in Exhibit 1, ^[1] claiming that the plaintiff breached the contract by his non performance.

On October 13, 2017 each party amended their operative pleadings by withdrawing all counts of their complaint and counterclaim so that each pleading sounds only in breach of contract. The defendants have asserted three special defenses. The first special defense presents a threshold issue which the defendants claim is determinative of the plaintiff’s right to recover for breach of contract. The first special defense alleges a violation of the Connecticut Home Improvement Act (" HIA"), (G.S. § 20-419 et seq.) in several different respects. Defendants have offered analysis only of their claim that the plaintiff failed to comply with the notice of cancellation requirements of the HIA.^[2]

I. The HIA Violation

General Statutes § 20-429 provides in relevant part: " (a)(1)(A) No home improvement contract shall be valid or enforceable against an owner unless it: (i) is in writing, (ii) is signed by the owner and the contractor, (iii) contains the entire agreement between the owner and the contractor, (iv) contains the date of the transaction, (v) contains the name and address of the contractor, (vi) contains a notice of the owner’s cancellation rights in accordance with the provisions of chapter 740, (vii) contains a starting date and completion date, and (viii) is entered into by a registered salesman or registered contractor. (Emphasis added.)

* * *

(c) The contractor shall provide and deliver to the owner, without charge, a completed copy of the home improvement contract at the time such contract is executed.

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(e) Each home improvement contract entered into shall be considered a home solicitation sale pursuant to chapter 740 and shall be subject to the requirements of said chapter regardless of the location of the transaction or of the signing of the contract.

" (f) Nothing in this section shall preclude a contractor who has complied with subdivisions 91), (2), (6), (7) and (8) of subsection (a) of this section from the recovery of payment for work performed based on the reasonable value of services which were requested by the owner, provided the court determines that it would be inequitable to deny such recovery."

G.S. § 42-135a which is part of chapter 740 provides in relevant part as follows:

" Sec. 42-135a. Notice in sales agreement. Notice of cancellation. Duties of seller.

No agreement in a home solicitation sale shall be effective against the buyer if it is not signed and dated by the buyer or if the seller shall:

(1) Fail to furnish the buyer with a fully completed receipt or copy of all contracts and documents pertaining to such sale at the time of its execution, which contract shall be in the same language as that principally used in the oral sales presentation and which shall show the date of the transaction and shall contain the name and address of the seller, and in immediate proximity to the space reserved in the contract for the signature of the buyer, or on the front page of the receipt if a contract is not used, and in boldface type of a minimum size of ten points, a statement in substantially the following form:

YOU, THE BUYER, MAY CANCEL THIS TRANSACTION AT ANY TIME PRIOR TO MIDNIGHT OF THE THIRD BUSINESS DAY AFTER THE DATE OF THIS TRANSACTION. SEE THE ATTACHED NOTICE OF CANCELLATION FORM FOR AN EXPLANATION OF THIS RIGHT.

(2) Fail to furnish each buyer, at the time such buyer signs the home solicitation sales contract or otherwise agrees to buy consumer goods or services from the seller, a completed form in duplicate, captioned " NOTICE OF CANCELLATION, " which shall be attached to the contract or receipt and easily detachable, and which shall contain in ten-point boldface type the following information and statements in the same language as that used in the contract:

NOTICE OF CANCELLATION

... (Date of Transaction)

YOU MAY CANCEL THIS TRANSACTION, WITHOUT ANY PENALTY OR OBLIGATION, WITHIN THREE BUSINESS DAYS FROM THE ABOVE DATE.

IF YOU CANCEL, ANY PROPERTY TRADED IN, ANY PAYMENTS MADE BY YOU UNDER THE CONTRACT OR SALE, AND ANY NEGOTIABLE INSTRUMENT EXECUTED BY YOU WILL BE RETURNED WITHIN TEN BUSINESS DAYS FOLLOWING RECEIPT BY THE SELLER OF YOUR CANCELLATION NOTICE, AND ANY SECURITY INTEREST ARISING OUT OF THE TRANSACTION WILL BE CANCELLED.

IF YOU CANCEL, YOU MUST MAKE AVAILABLE TO THE SELLER AT YOUR RESIDENCE, IN SUBSTANTIALLY AS GOOD CONDITION AS WHEN RECEIVED, ANY GOODS DELIVERED TO YOU UNDER THIS CONTRACT OR SALE; OR YOU MAY, IF YOU WISH, COMPLY WITH THE INSTRUCTION OF THE SELLER REGARDING THE RETURN SHIPMENT OF THE GOODS AT THE SELLER’S EXPENSE AND RISK.

IF YOU DO MAKE THE GOODS AVAILABLE TO THE SELLER AND THE SELLER DOES NOT PICK THEM UP WITHIN TWENTY DAYS OF THE DATE OF CANCELLATION, YOU MAY RETAIN OR DISPOSE OF THE GOODS WITHOUT ANY FURTHER OBLIGATION, IF YOU FAIL TO MAKE THE GOODS AVAILABLE TO THE SELLER, OR IF YOU AGREE TO RETURN THE GOODS TO THE SELLER AND FAIL TO DO SO, THEN YOU REMAIN LIABLE FOR PERFORMANCE OF ALL OBLIGATIONS UNDER THE CONTRACT.

TO CANCEL THIS TRANSACTION, MAIL OR DELIVER A SIGNED AND DATED COPY OF THIS CANCELLATION NOTICE OR ANY OTHER WRITTEN NOTICE, OR SEND A TELEGRAM TO ... (Name of Seller) AT ... (Address of Seller’s Place of Business) NOT LATER THAN MIDNIGHT OF ... (Date)

I HEREBY CANCEL THIS TRANSACTION.

... (Date)

... (Buyer’s Signature)

(3) Fail, before furnishing copies of the " Notice of Cancellation" to the buyer, to complete both copies by entering the name of the seller, the address of the seller’s place of business, the date of the transaction, and the date, not earlier than the third business day following the date of the transaction, by which the buyer may give notice of cancellation."

Specifically it is the defendants’ contention that the notice of cancellation contained in the contract between the parties is inadequate for the following reasons: (1) a separate notice of cancellation does not exist; (2) the print type is improper; (3) it does not contain the name and address of the homeowner; (4) it does not otherwise follow the statutory requirements for such a notice. " The determination of the requirements of the HIA is a matter of statutory construction ... Crandall v. Gould, 244 Conn. 583, 590 (1998). (alternate citations omitted). Wright Brothers Builders, Inc. v. Dowling, 247 Conn. 218, 226-27 (1998). " [T]he process of statutory interpretation involves a reasoned search for the intention of the legislature." (Internal quotation marks omitted.) State v. Ledbetter, 240 Conn. 317, 327 (1997). " 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." (Internal quotation marks omitted.) Conway v. Wilton, 238 Conn. 653, 663 (1996) (alternate citations omitted). Wright Brothers Builders, Inc. v. Dowling, 247 Conn. 218, 226-27 (1998).

" Although our Supreme Court has recognized that compliance with § 20-429(a) is mandatory, it has not required perfect compliance." Wright Bros. Builders, Inc. v Dowling, 247 Conn. 218, 230-31 (1998). " The HIA is a remedial statute that was enacted for the purpose of providing...