Connecticut Home Health Services, LLC v. Futterleib , 172 Conn. App. 182 ( 2017 )

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
CONNECTICUT HOME HEALTH SERVICES, LLC
v. ANN FUTTERLEIB ET AL.
(AC 37766)
Beach, Mullins and Bishop, Js.*
Argued November 15, 2016—officially released April 11, 2017
(Appeal from Superior Court, judicial district of
Hartford, Wiese, J.)
Charles I. Miller, for the appellant (substitute
defendant).
A. Paul Spinella, for the appellee (plaintiff).
Opinion
BISHOP, J. This case concerns the enforceability of
an alleged oral contract between a homemaker-com-
panion agency and its clients. The defendants in this
breach of contract action, Ann Futterleib and her hus-
band Alfred Futterleib, appeal from the trial court’s
judgment partially in favor of the plaintiff, Connecticut
Home Health Services, LLC, awarding $21,320.94 for
caregiver services rendered by the plaintiff.1 The defen-
dants claim, inter alia, that the court: (1) erred in finding
that they had acted in bad faith, and, therefore, that the
plaintiff’s failure to comply with statutory requirements
regarding home companion-care agencies was excused;
and (2) erred in rendering judgment on an oral contract
because chapter 400o of the General Statutes, entitled
‘‘Homemaker-Companion Agencies’’ (Homemaker-
Companion Agencies Act), specifically, General Stat-
utes (Rev. to 2010) § 20-679,2 requires that this type of
contract be in writing.3 We reverse in part the judgment
of the trial court.
The record reveals the following facts and procedural
history. The plaintiff, doing business as Right at Home,
is a homemaker-companion agency that provides in-
home care and assistance to elderly and/or disabled
people. Caregivers provide a variety of services for cli-
ents, including cooking, light housekeeping, and medi-
cation assistance. In January or February, 2010, Robert
Hendrickson, the defendants’ power of attorney, sought
out the plaintiff to provide care for the defendants, his
mother and step-father, both of whom were suffering
from physical ailments. On February 13, 2010, represen-
tatives of the plaintiff company, Hendrickson, and the
defendants met at the defendants’ home to discuss the
defendants’ needs for live-in, twenty-four hour care at
the cost of $230 per live-in shift. The parties did not
create or execute any contract or written understanding
of agreement at that meeting. The defendants’ live-in
caregiver, an employee of the plaintiff, started work
that afternoon at the defendants’ home.
The plaintiff’s general business practice is to prepare
a client service agreement after an assessment meeting
and then to send it to the client, or their representative,
to sign and return. Sometime around March 23, 2010,
Hendrickson received at his home address a client Ser-
vices Agreement that had been signed by the plaintiff’s
president on March 20, 2010 (service agreement). Hen-
drickson did not sign the agreement, and he did not
send it back to the plaintiff. The plaintiff, through the
live-in caregiver, continued to provide care to the defen-
dants, and Hendrickson paid for the services on a peri-
odic basis. After some time, the payments for the
defendants’ care became delinquent and the business
relationship ended on January 27, 2012.4 Hendrickson
made three payments toward the balance owed after
the relationship ended. The plaintiff filed this action on
March 13, 2013, and at that time, the balance allegedly
owed by the defendants was $21,320.94.
In its original four count complaint, the plaintiff
alleged two counts of breach of a written contract on
the basis of the service agreement, with one count based
specifically on Hendrickson’s actions, unjust enrich-
ment, and tortious interference with a business relation-
ship. In this complaint, the plaintiff cited Hendrickson
as a defendant along with Ann Futterleib and Alfred
Futterleib, and sought to recover the balance owed by
the defendants as well as additional damages. On March
25, 2014, the plaintiff filed a motion to amend its com-
plaint to remove Hendrickson as a defendant and
remove any mention of the service agreement in its
breach of contract count. The court granted this motion
on April 3, 2014. In its three count amended complaint,5
the plaintiff alleged: (1) breach of an oral contract; (2)
unjust enrichment; and (3) tortious interference with
employment relations. The defendants filed an
amended answer on April 10, 2014, and alleged as spe-
cial defenses that: (1) the plaintiff committed an unfair
or deceptive practice by failing to meet statutory
requirements to register its trade name; (2) the plain-
tiff’s claims were barred by the doctrine of unclean
hands because it failed to register its trade name and
also because the plaintiff intentionally forged Hendrick-
son’s signature onto the purported service agreement;6
(3) the plaintiff’s claims premised on an oral contract
and unjust enrichment were barred by § 20-679 and
General Statutes § 42-135a, a section of the Home Solici-
tation Sales Act; and (4) the plaintiff’s claim based on
oral contract was barred by General Statutes § 52-550,
the statute of frauds.
The four day trial to the court took place between
April 3 and April 8, 2014. In its December 31, 2014
memorandum of decision, the court, Wiese, J., found
that the parties had entered into an oral contract on
February 13, 2010, because they ‘‘verbally agreed to the
daily rate of the caregiver and . . . a Client Services
Agreement would be prepared and mailed to the defen-
dants for their approval and signature.’’ The court found
for the defendants on the plaintiff’s tortious interfer-
ence claim and, because the court found in favor of the
plaintiff on its oral contract claim, it did not address
the unjust enrichment claim. As for the defendants’
special defense that the plaintiff’s claims were barred by
§§ 20-679 and 42-135a, the court found that the service
agreement ‘‘was intentionally not returned to [the plain-
tiff]. It was left in an envelope by Mr. Hendrickson
and he declined to take any action with regards to it.
Through inadvertence, [the plaintiff] did not become
aware of this fact at the time that services were provided
to [the defendants].’’ The court further found that Hen-
drickson’s intentional failure to sign and return the ser-
vice agreement constituted bad faith, which excused
the plaintiff’s noncompliance with the statutory require-
ment that the contract of service be in writing. As noted,
the court rendered judgment for the plaintiff in the
amount of $21,320.94. This appeal followed. Additional
facts and procedural history will be set forth as nec-
essary.
We first set forth the legal principles relevant to the
claims at issue. At the time of the conduct in question,
§ 20-679, which governs contracts between home-
maker-companion agencies and clients, provided in rel-
evant part: ‘‘Not later than seven calendar days after
the date on which a homemaker-companion agency
commences providing homemaker services or compan-
ion services, such agency shall provide the person who
receives the services, or the authorized representative
of such person, with a written contract or service plan
that prescribes the anticipated scope, type, frequency,
duration and cost of the services provided by the
agency. . . .’’ General Statutes (Rev. to 2010) § 20-679.
In addition, the statute required that the contract or
service plan provide notice to the person receiving ser-
vices: ‘‘(1) of the person’s right to request changes to,
or review of the contract or service plan, (2) of the
employees of such agency who, pursuant to section 20-
678 are required to submit to a comprehensive back-
ground check, and (3) that such agency’s records are
available for inspection or audit by the Department of
Consumer Protection. . . .’’ General Statutes (Rev. to
2010) § 20-679. The statute further provided that ‘‘[n]o
contract or service plan for the provision of homemaker
or companion services shall be valid against the person
who receives the services or the authorized representa-
tive of such person, unless the contract or service plan
has been signed by a duly authorized representative of
the homemaker-companion agency and the person who
receives the services or the authorized representative
of such person. . . .’’General Statutes (Rev. to 2010)
§ 20-679.7
With these legal principles in mind, we turn now to
our assessment of the defendants’ claims on appeal.
I
The defendants first claim that the court erred in
finding that Hendrickson acted in bad faith by not sign-
ing and returning the service agreement, and, therefore,
that the plaintiff’s noncompliance with § 20-679 was
excused.8 We assume, without deciding, that the court
correctly incorporated a bad faith exception into the
Homemaker-Companion Agencies Act because, even if
the trial court was correct in its bad faith imputation,
the record does not support a finding that Hendrickson
acted in bad faith.
The following additional facts and procedural history
are relevant to our resolution of this claim. As noted,
the defendants, Hendrickson, and representatives of
the plaintiff company met at the defendants’ home on
February 13, 2010, to discuss the defendants’ care
needs, and later that day, the plaintiff’s employee, a
live-in caregiver, began working at the defendants’
home. More than one month later, sometime between
March 23 and March 25, 2010, Hendrickson received in
the mail a one page service agreement from the plaintiff.
That agreement provided information about the cost of
services ($230 per day), holiday procedures, mileage
reimbursement, scheduling, billing, indemnity, and
insurance. The agreement also provided a damages
clause dealing with the consequences that would ensue
in the event that a client directly hires the plaintiff’s
caregiver, as well as an authorization to release the
client’s medical information to specific entities for
insurance, accreditation, and/or medical purposes.
Hendrickson did not sign or return the service
agreement to the plaintiff. When asked at trial what he
did with the document, he testified that he ‘‘actually
forgot all about it’’ and that he ‘‘left it in the envelope’’
and ‘‘never really dug it out again.’’ He further testified
that he was not contacted by the plaintiff about the
service agreement after that. The vice president of the
plaintiff company, Robert Scandura, who was present
at the initial February 13, 2010 meeting, testified that
‘‘some families who try to be deceitful . . . don’t send
[the service agreement] back.’’ (Emphasis added.) He
also testified that Hendrickson ‘‘withheld [the service
agreement] intentionally,’’ and that ‘‘[Hendrickson’s
family] chose not to sign [the service agreement]
. . . .’’ No evidence was presented in support of Scand-
ura’s testimony regarding Hendrickson’s allegedly
nefarious motive. For the first time in our jurisdiction,
the court imputed onto the Homemaker-Companion
Agencies Act a bad faith exception to statutory compli-
ance, borrowed from the Home Improvement Act, Gen-
eral Statutes § 20-418 et seq. With that imputation in
mind, the court then found that Hendrickson had acted
in bad faith by intentionally failing to sign and return
the service agreement, and, therefore, the plaintiff’s
noncompliance with § 20-679 was excused.
‘‘Whether a party has acted in bad faith is a question
of fact, subject to the clearly erroneous standard of
review.’’ Harley v. Indian Spring Land Co., 123 Conn.
App. 800, 837, 3 A.3d 992 (2010).9 The statutory language
of the Home Improvement Act does not provide a bad
faith exception to compliance with the act, but our
courts have incorporated such an exception into the
statute. This exception excuses a contractor’s noncom-
pliance with the act if the contractor’s failure to comply
was caused by the other party’s bad faith. See Habetz
v. Condon, 224 Conn. 231, 238, 618 A.2d 501 (1992)
(‘‘a contractor, otherwise precluded from recovering
moneys owed for his work because of a violation of
the act, must be permitted to assert that the homeown-
er’s bad faith precludes him from safely repudiating the
contract and hiding behind the act in order to bar the
contractor’s recovery’’); Andy’s Oil Service, Inc. v.
Hobbs, 125 Conn. App. 708, 715, 9 A.3d 433 (2010)
(‘‘Although [the Home Improvement Act] generally pro-
hibits a plaintiff from pursuing a claim . . . on a home
improvement contract if the act’s requirements are not
satisfied, proof of bad faith on the part of the home-
owner is an exception to this restriction. . . . The bad
faith exception precludes the homeowner from hiding
behind the protection of the act. . . . The central ele-
ment giving rise to this exception is the recognition
that to allow the homeowner who acted in bad faith to
repudiate the contract and hide behind the act would
be to allow him to benefit from his own wrong, and
indeed encourage him to act thusly.’’ [Citations omitted;
internal quotation marks omitted.]), cert. denied, 300
Conn. 928, 16 A.3d 703 (2011).
Our Supreme Court, in analyzing the bad faith excep-
tion to the Home Improvement Act, has stated: ‘‘Bad
faith in general implies both actual or constructive
fraud, or a design to mislead or deceive another, or a
neglect or refusal to fulfill some duty or some contrac-
tual obligation, not prompted by an honest mistake as
to one’s rights or duties, but by some interested or
sinister motive. . . . Bad faith means more than mere
negligence; it involves a dishonest purpose.’’ (Citation
omitted; emphasis added; internal quotation marks
omitted.) Habetz v. Condon, supra, 224 Conn. 237. In
Habetz, a plaintiff homeowner sued a defendant con-
tractor for breach of contract and the defendant coun-
terclaimed for money owed on the additional work
under a subsequent agreement that was never signed
by the plaintiff, despite the defendant’s repeated
requests that he do so. Id., 233–34. The plaintiff asserted
the defendant’s noncompliance with the Home
Improvement Act, namely, that there was not a signed
contract, as a defense to recovery. Id., 234. Our Supreme
Court affirmed the trial court’s finding that the plaintiff’s
bad faith in not signing the contract excused the defen-
dant’s ‘‘minor noncompliance’’ with the Home Improve-
ment Act. (Internal quotation marks omitted.) Id.,
235, 240.
In Taylor v. King, 121 Conn. App. 105, 127, 994 A.2d
330 (2010), however, this court distinguished Habetz
and affirmed a trial court’s finding there was no bad
faith where the plaintiff’s failure to sign the contract was
not the only example of the defendant’s noncompliance
with the Home Improvement Act. In Taylor, the plaintiff
homeowner and the defendant contractor entered into
an agreement for a renovation project at the plaintiff’s
home, though neither party signed a written contract.
Id., 122, 125. In the complaint, the plaintiff alleged that
the defendant’s conduct violated the Home Improve-
ment Act because the contract was not signed, it did
not contain the whole agreement between the parties,
and it did not contain a notice of the plaintiff’s right to
cancel the contract. Taylor v. King, Superior Court,
judicial district of New London, Docket No. CV-
075002674, 2008 WL 4515937, *9 and n.13 (September
24, 2008). The trial court found that the defendant failed
to comply with the Home Improvement Act. Id., *11.
On appeal, the defendant, relying on Habetz, argued
that the plaintiff had acted in bad faith by claiming
noncompliance with the Home Improvement Act,
because he had not signed the contract. Taylor v. King,
supra, 125–26. In disagreeing with the defendant, and
distinguishing Habetz, a panel of this court stated:
‘‘[T]he defendant’s noncompliance with the act was not
merely the failure to have a signed contract. In this
case, the defendant did not comply with several other
portions of [the Home Improvement Act]. Also, there
is no evidence that he ever asked the plaintiff about
signing the contract after he gave it to him initially.
. . . The fact that the plaintiff did not sign the contract
is not a sufficient basis for us to conclude that the
court improperly failed to find that the plaintiff claimed
[noncompliance with] the act in bad faith.’’ Id., 127.
In the present case, assuming, without deciding, that
the court was correct in grafting the Home Improve-
ment Act’s bad faith exception onto the Homemaker-
Companion Agencies Act, we must determine whether
the court erred in determining that Hendrickson had
acted in bad faith by not signing and returning the
service agreement to the plaintiff. The defendants argue
that the court erred in making that determination. We
agree. There was no direct evidence in the record to
support a finding that Hendrickson’s failure to sign the
contract was done in bad faith, and the plaintiff’s claim
to the contrary, without corroboration, does not consti-
tute sufficient evidence. Therefore, we do not believe
the evidentiary record supports the conclusion that the
plaintiff’s noncompliance with § 20-679 should be
excused, and the court’s finding to the contrary was a
clear error.
Hendrickson testified at trial that he simply put the
agreement aside and forgot about it. The court heard no
evidence that Hendrickson intentionally had not signed
the agreement except for Scandura’s testimony that
‘‘some families who try to be deceitful . . . don’t send
[the service agreement] back,’’ and his unsupported
claim that Hendrickson ‘‘withheld [the service
agreement] intentionally . . . .’’ (Emphasis added.)
Although testimony, at times, may be sufficient to
uphold a factual determination, this testimony about
Hendrickson’s state of mind is nothing more than
unsupported speculation. Therefore, the evidence does
not support the court’s finding that Hendrickson acted
fraudulently, with ‘‘a design to mislead or deceive’’ the
plaintiff, with an ‘‘interested or sinister motive,’’ or with
a ‘‘dishonest purpose.’’ (Internal quotation marks omit-
ted.) Habetz v. Condon, supra, 224 Conn. 237. In fact,
the only direct evidence on this issue better supported
the argument that Hendrickson merely acted negli-
gently in forgetting to sign the agreement, which our
Supreme Court has determined is insufficient proof of
bad faith conduct. Id. Hendrickson also testified, with-
out contradiction, that the plaintiff never reminded him
to return the signed agreement.
In addition, the fact that the service agreement was
unsigned by the defendants was not its only deficiency.
It failed to conform to most of the requirements set
forth in § 20-679. The service agreement was silent as
to the scope, type, frequency, or duration of the services
that were to be provided to the defendants, the inclusion
of which is required under § 20-679. The service
agreement also did not provide notice of the client’s
‘‘right to request changes to, or review of the contract
or service plan,’’ or that the plaintiff’s employees ‘‘are
required to submit to a comprehensive background
check,’’ or that the plaintiff’s ‘‘records are available for
inspection or audit by the Department of Consumer
Protection,’’10 the inclusion of which is also required
under General Statutes (Rev. to 2010) § 20-679. The
service agreement complied only with the requirement
that it provide the cost of service.11 Additionally, the
statute requires that the service agreement be provided
to the client within seven days of the commencement
of service. The defendants’ live-in caregiver started on
February 13, 2010, and Hendrickson did not receive the
agreement until March 23, 2010, at the earliest, which
is far beyond the seven day statutory requirement.12 In
short, even if this purported agreement had been signed
by the parties, it would have been of doubtful enforce-
ability in light of its many omissions and shortcomings.
On the basis of our holding in Taylor that a consum-
er’s failure to sign a contract, by itself, does not consti-
tute bad faith when the contract failed to comply with
other provisions of the Home Improvement Act, we
conclude that the plaintiff’s failure to comply with § 20-
679 here cannot be excused by the defendants’ failure
to sign the service agreement. See Taylor v. King, supra,121 Conn. App. 127. Accordingly, the court’s finding
that Hendrickson had acted in bad faith, and as a result,
that the plaintiff’s noncompliance with the Homemaker-
Companion Agencies Act was excused, is clearly
erroneous.
II
Having determined that the service agreement, exe-
cuted by the plaintiff but not the defendants, for the
provision of home care services to the defendants by
the plaintiff was unenforceable, we next turn to the
court’s determination that the parties had entered into
an enforceable oral contract. The defendants argue that
the court erred in rendering judgment upon an oral
contract because the Homemaker-Companion Agencies
Act, specifically, § 20-679, requires that a contract of
this type be in writing.13 The plaintiff argues that the
trial court correctly found that the parties entered into
an oral contract, and that the defendants were liable
for the unpaid balance of the services rendered by the
plaintiff. This issue of whether § 20-679 requires that
contracts between homemaker-companion agencies
and its clients be in writing, and, therefore, whether
oral contracts of this type are unenforceable as a matter
of law, has yet to be decided in our jurisdiction, and
after a thorough inquiry, we agree with the defendants.14
As noted, the court, in its memorandum of decision,
found that the parties had entered into an oral
agreement and stated: ‘‘[T]he plaintiff and the defen-
dants met [on February 13, 2010] to discuss establishing
home care to the defendants. Both parties verbally
agreed to the daily rate of the caregiver and the client
service plan was prepared as a result of the meeting.
It was also agreed that a client Services Agreement
would be prepared and mailed to the defendants for
their approval and signature. The court finds that, at
this point, the parties had an established . . . oral
agreement.’’
We first set forth our standard of review and the
relevant legal principles that guide our analysis of this
aspect of the appeal. The determination of the require-
ments of the Homemaker-Companion Agencies Act is
a matter of statutory construction, and, therefore, we
apply a plenary standard of review on appeal, as the
issue is one of law. See Wright Bros. Building, Inc. v.
Dowling, 247 Conn. 218, 226, 720 A.2d 235 (1998). When
construing a statute, ‘‘[o]ur fundamental objective is to
ascertain and give effect to the apparent intent of the
legislature. . . . 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 com-
mon law principles governing the same general subject
matter.’’ (Internal quotation marks omitted.) Rizzo Pool
Co. v. Del Grosso, 232 Conn. 666, 676, 657 A.2d 1087(1995). ‘‘It has often been said that the legislative intent
is to be found not in what the legislature meant to say,
but in the meaning of what it did say. . . . Where the
language used is clear and unambiguous, we will not
speculate as to some supposed intention.’’ (Citations
omitted; internal quotation marks omitted.) Caulkins
v. Petrillo, 200 Conn. 713, 716–17, 513 A.2d 43 (1986).
‘‘In the construction of the statutes, words and phrases
shall be construed according to the commonly approved
usage of the language . . . .’’ General Statutes § 1-1 (a).
Contracts for the provision of home care services are
governed by § 20-679 of the Homemaker-Companion
Agencies Act, which is titled: ‘‘Written Contracts or
service plans. Requirements.’’ (Emphasis added.) Gen-
eral Statutes (Rev. to 2010) § 20-679. The statute pro-
vides in relevant part that ‘‘[n]ot later than seven
calendar days after the date on which a homemaker-
companion agency commences providing homemaker
services or companion services, such agency shall pro-
vide the person who receives the services, or the author-
ized representative of such person, with a written
contract or service plan that prescribes the anticipated
scope, type, frequency, duration and cost of the services
provided by the agency. . . . No contract or service
plan for the provision of homemaker or companion
services shall be valid against the person who receives
the services or the authorized representative of such
person, unless the contract or service plan has been
signed by a duly authorized representative of the home-
maker-companion agency and the person who receives
the services or the authorized representative of such
person. . . .’’ (Emphasis added.) General Statutes
(Rev. to 2010) § 20-679.15
The language of § 20-679 is clear and unambiguous.
‘‘The use of the word ‘no’ in the statute is self-explana-
tory. In this instance, the use of the word ‘shall’ by
the legislature connotes that the performance of the
statutory requirements is mandatory rather than per-
missive. See, e.g., Hossan v. Hudiakoff, 178 Conn. 381,
383, 423 A.2d 108 (1979); Akin v. Norwalk, 163 Conn.
68, 74, 301 A.2d 258 (1972). . . . ‘Valid’ is defined by
Webster’s New International Dictionary as, ‘having legal
strength or force . . . .’ ’’ (Citations omitted.) Caulkins
v. Petrillo, supra, 200 Conn. 717; see also id., 720 (hold-
ing that language of General Statutes [Rev. to 1980]
§ 20-429 [a] of Home Improvement Act, ‘‘[n]o home
improvement contract shall be valid unless it is in writ-
ing,’’ requires that contractor provide written contract).
Therefore, read literally, it is clear that the plain lan-
guage of the Homemaker-Companion Agencies Act
does not provide an exception to the requirement that
home care contracts be in writing. See id.
It is apparent that the legislature passed the Home-
maker-Companion Agencies Act for the protection of
the public, particularly the elderly, and that the remedial
purposes of the statute would be undermined if we
were to permit a homemaker-companion agency to
enforce an oral contract. The purpose and clear intent of
§ 20-679 would be thwarted by permitting a homemaker
agency to bring an action against a client for services
rendered based solely on an oral agreement and in the
absence of a written contract including the statutorily
mandated notices and protections. To do so would
emasculate the prescriptions and proscriptions of the
Homemaker-Companion Agencies Act.16 As noted, § 20-
679 requires that a contract for home care services
between a homemaker-companion agency and a client,
or the client’s representative, be in writing. Therefore,
the court’s determination that the parties’ oral contract
for services was enforceable was legally erroneous.
The judgment is reversed in part and the case is
remanded to the trial court with direction to render
judgment in favor of the defendants on count one of
the complaint. The judgment is affirmed in all other
respects.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
Robert Hendrickson, administrator of the estates of Ann Futterleib and
Alfred Futterleib, filed in this court and in the trial court motions to intervene
as a defendant in place of both Ann Futterleib and Alfred Futterleib. This
court treated that motion as a motion to substitute and granted it. For
purposes of clarity, we refer to Ann Futterleib and Alfred Futterleib as the
defendants, and to Hendrickson individually by name.
2
General Statutes (Rev. to 2010) § 20-679 has since been amended by No.
13-88, § 2, of the 2013 Public Acts, in a manner not pertinent to our assess-
ment of the issues presented in this appeal. Unless otherwise indicated, all
references in this opinion to § 20-679 are to the 2010 revision of the statute.
3
The defendants also claim that the court abused its discretion by allowing
the plaintiff to amend its complaint at the commencement of trial. Because
we reverse in part the judgment of the trial court on other grounds, we
need not reach this claim. Therefore, for purposes of our analysis, we treat
the amended complaint as operative.
4
It is undisputed that the defendants privately hired their live-in caregiver
once their relationship with the plaintiff had ended. The record is unclear,
though, as to whether the caregiver was fired by the plaintiff and then hired
by the defendants, or whether she left the plaintiff’s employ in order to
work for the defendants. The plaintiff alleged in its amended complaint that
the defendants tortiously interfered with the employment agreement by
hiring away the caregiver from its employ. The court found that the plaintiff
did not meet its burden in proving this cause of action. The plaintiff did
not appeal this finding.
5
Because the plaintiff removed Hendrickson as a defendant in the
amended complaint, the breach of contract claim that dealt specifically with
Hendrickson’s actions was removed as well.
6
The court determined that the doctrine of unclean hands did not apply
to the plaintiff’s claims because the defendants did not prove that the plaintiff
had forged Hendrickson’s signature on the service agreement. The defen-
dants claim on appeal that the court erred ‘‘in applying the equitable defense
of unclean hands to the plaintiff’s legal claims’’ as opposed to its equitable
claims, and in ‘‘failing to apply the applicable legal standard and elements
regarding forgery.’’ Both arguments are directed at the allegedly forged
signature on the service agreement, and its resultant unenforceability.
Because the plaintiff’s amended complaint proceeded solely on a claim for
breach of an oral contract, these claims are not applicable, and we will not
address them.
7
In addition, § 20-670-3 (a) of the Regulations of Connecticut State Agen-
cies provides in relevant part: ‘‘A written contract or service plan shall be
provided by the agency to the client . . . [and the] agency shall not enforce
the written contract or service plan unless it is signed by both the agency
and client.’’ Subsection (b) provides that ‘‘[w]ritten contracts or service
plans shall: (1) provide a list of the anticipated services to be provided by
the agency to the client, the term and cost of said services, a clear definition
of the employee, provider and client employment relationship, safeguards
for securing personal client information, a list of provider job categories
such as ‘live-in’ or ‘daily call,’ and job duties; (2) contain the homemaker-
companion agency policy for the acceptance of gratuities and gifts by the
homemaker-companion agency’s employees and independent contractors
on behalf of the client; and (3) contain a process for the client to file a
complaint with the homemaker-companion agency. A process shall be made
available for individuals other than a client to file a complaint.’’ Regs., Conn.
State Agencies § 20-670-3 (b).
8
We note that although Hendrickson was removed as a defendant, his
actions can still be imputed to the defendants. ‘‘A written power of attorney
constitutes a formal contract of agency that creates a principal-agent rela-
tionship.’’ Bank of Montreal v. Gallo, 3 Conn. App. 268, 273, 487 A.2d 1101(1985). A principal generally is bound by an agent’s bad faith. See Gateway
Co. v. DiNoia, 232 Conn. 223, 240, 654 A.2d 342 (1995); Johnson v. Smith,
21 Conn. 626, 633 (1852). The court found that ‘‘the defendants’ conduct
would fall under the bad faith exception’’ by virtue of the actions of their
agent, Hendrickson.
9
We recognize that our Supreme Court recently has concluded, in Burns
v. Adler, 325 Conn. 14, 33, A.3d (2017), that ‘‘whether undisputed
facts meet the legal standard of bad faith is a question of law.’’ This new
standard of review is not applicable to the case here, though, because the
record does not support the court’s factual conclusion regarding Hendrick-
son’s behavior. Therefore, the court’s determination as to Hendrickson’s
alleged bad faith is subject to the well established clearly erroneous standard
of review.
10
Paragraph 14 of the service agreement does notify the clients that they
authorize the release of their medical information, but it does not go so far
as to say that the Department of Consumer Protection may inspect or audit
the plaintiff’s records.
11
The service agreement also failed to comport with almost every require-
ment under § 20-670-3 except that it provided the cost of service and the
notation that the caregiver would be ‘‘ ‘live-in.’ ’’ Regs., Conn. State Agencies
§ 20-670-3 (b); see footnote 7 of this opinion.
12
In its memorandum of decision, the court excused this delay because
‘‘the defendants never objected to receiving the client Services Agreement
beyond the seven day period. Instead, the defendants continued to accept
services from the plaintiff.’’ Though the delay in sending the agreement is
not dispositive of the issue here, because the plaintiff failed to comply with
almost every other statutory provision, we note that ‘‘the legislature is
entitled . . . to impose the burden of compliance with the statute on the
professional, [the homemaker-companion agency], rather than on the non-
professional, [the client].’’ (Internal quotation marks omitted.) Habetz v.
Condon, supra, 224 Conn. 239.
13
As an alternative argument, the defendants claim that the enforcement
of an oral contract is barred by the Home Solicitation Sales Act pursuant
to § 42-135a. Because we agree with the defendants’ principal contention,
we need not reach this argument.
14
We note that the defendants do not claim that the plaintiff is barred
from enforcing the alleged contract because the contents of the February
13, 2010 meeting failed to conform to the statutory requirements. They argue
that, as a matter of law, an oral contract of this type is unenforceable
because the statute requires that it be written.
15
Similarly, § 20-670-3 (a) of the Regulations of Connecticut State Agencies
mandates that a homemaker-companion agency provide a ‘‘written contract
or service plan . . . to the client . . . [and the] agency shall not enforce
the written contract or service plan unless it is signed by both the agency
and client.’’ (Emphasis added.)
16
In regards to the plaintiff’s unjust enrichment claim, the court stated:
‘‘Assuming, arguendo, even if the contract between the defendants and the
plaintiff was unenforceable, the plaintiff would still be able to recover
through its unjust enrichment claim due to the defendants’ bad faith. See
Andy’s Oil Service, Inc. v. Hobbs, supra, 125 Conn. App. 715 (‘[a]lthough
[the Home Improvement Act] generally prohibits a plaintiff from pursuing
a claim for unjust enrichment on a home improvement contract if the act’s
requirements are not satisfied, proof of bad faith on the part of the home-
owner is an exception to this restriction’). Because the court is ruling that
there was a contract between these parties, it is unnecessary to address
the plaintiff’s unjust enrichment claim.’’ Where a contract is unenforceable
because it fails to conform to a statutory requirement that it be in writing,
there can be no recovery under quasi-contractual claims, such as unjust
enrichment, absent proof of bad faith on the part of the other party. See
Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 350, 576 A.2d 149 (1990)
(‘‘absent proof of bad faith on the part of the homeowner, [the Home
Improvement Act] permits no recovery in quasi contract by a contractor
who has failed to comply with the statute’s written contract requirement’’).
Because we hold that a contract pursuant to § 20-679 must be in writing,
and that the court erred in finding that Hendrickson’s alleged bad faith
excused the service agreement’s noncompliance with § 20-679, the plaintiff
would not be able to recover on its unjust enrichment claim.