Burns v. Adler ( 2015 )


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    JAMES E. BURNS, JR. v. DAVID Y.
    ADLER ET AL.
    (AC 34565)
    (AC 35005)
    Sheldon, Mullins and Schaller, Js.
    Argued January 20—officially released July 28, 2015
    (Appeal from Superior Court, judicial district of
    Litchfield, Danaher, J.)
    David N. Rosen, with whom were James Maguire
    and David Hunter Smith, and, on the brief, Steven D.
    Ecker and M. Caitlin S. Anderson, for the appellants
    in AC 34565 and the appellees in AC 35005 (named
    defendant et al.).
    William C. Franklin, for the appellee in AC 34565
    and the appellant in AC 35005 (plaintiff).
    Opinion
    SHELDON, J. These appeals arise from an action by
    the plaintiff, James E. Burns, Jr., doing business as Jim
    Burns Handyman, to foreclose on a mechanic’s lien he
    had filed against a parcel of real property owned by
    the defendant David Adler, in Salisbury, and to recover
    damages from Adler, on grounds of breach of contract
    and unjust enrichment, for unpaid work he had per-
    formed at the property on the defendant’s home.1 In
    the first part of a bifurcated trial, the court focused
    exclusively on the plaintiff’s claims for damages,
    together with the defendant’s special defenses to those
    claims and parallel counterclaim for damages, based
    principally upon the plaintiff’s alleged noncompliance
    with certain provisions of the Home Improvement Act
    (act), General Statutes § 20-418 et seq. The trial court
    ordered the defendant to pay restitution to the plaintiff
    for the value of his unpaid work, despite the plaintiff’s
    noncompliance with the act, due to the defendant’s
    bad faith conduct toward the plaintiff, as pleaded in
    avoidance of the special defenses in the plaintiff’s reply.
    In the second part of the trial, which focused exclusively
    on the plaintiff’s claim for foreclosure of his mechanic’s
    lien on the defendant’s property, the court rendered
    judgment in favor of the plaintiff pursuant to a stipula-
    tion of the parties, but denied the plaintiff’s subsequent
    motion for a supplemental judgment, insofar as it
    sought attorney’s fees under General Statutes § 52-249
    (a) in connection with his prosecution of the foreclo-
    sure claim. These appeals followed. In AC 34565, the
    defendant claims error in the judgment of the trial court
    awarding restitution to the plaintiff under the bad faith
    exception to the act. In AC 35005, the plaintiff claims
    error in the supplemental judgment of the trial court
    denying his request for attorney’s fees in connection
    with the foreclosure of his mechanic’s lien. We affirm
    the judgments of the trial court.
    FACTUAL AND PROCEDURAL HISTORY
    The following facts and procedural history, as found
    by the trial court in its memorandum of decision, are
    relevant to our resolution of these appeals. ‘‘The plain-
    tiff . . . is a high school graduate who began carrying
    out sophisticated building projects in 2000. Most of his
    work was based on oral agreements with his customers.
    In September, 2007, the plaintiff had conversations with
    [the defendant] about renovations and remodeling on
    a ‘weekend’ home that [the defendant] and his wife
    . . . Amie R. Weitzman, planned to buy in Lakeville
    . . . . [The defendant] earned a law degree in 1988,
    passed the bar [examination] in 1990, and, thereafter,
    practiced law until he became an investment banker.
    [The defendant] also had prior experience supervising
    renovation projects on his other properties. Weitzman
    is a professional interior designer.
    ‘‘The preliminary talks between the parties were very
    general in nature. [The defendant] wanted substantial
    demolition in the Lakeville house, the addition of a
    second floor, and he wanted to expand the house’s
    footprint, but most of all, he wanted the work to be
    done as quickly as possible so that the [defendant and
    Weitzman], whose primary residence is in New York
    City, could use the house during the summer of 2008.
    When the project was completed, the [defendant] had
    made payments to the plaintiff in the amount of
    $985,000. However, the plaintiff alleges that the [defen-
    dant] declined to pay him the balance due, which, the
    plaintiff alleged in his complaint, is $214,039.09.
    ‘‘On December 2, 2008, the plaintiff brought suit
    against the [defendant] and Weitzman, as well as the
    Salisbury Bank and Trust Company. The operative com-
    plaint is a revised complaint filed on February 17, 2009.
    It alleges that the plaintiff entered into an agreement
    with the [defendant] to effect improvements to a home
    located at 135 Interlaken Road [in] Salisbury . . . .
    The plaintiff claims that he performed the services
    requested, but that he was only partially paid for his
    efforts. The complaint is in three counts seeking fore-
    closure of a mechanic’s lien, and alleging breach of
    contract and unjust enrichment, respectively.
    ‘‘The [defendant] denied the allegations of the com-
    plaint and raised six special defenses. The [defendant]
    also filed a four count counterclaim, in which [he]
    alleged a violation of the Connecticut Unfair Trade Prac-
    tices Act (‘CUTPA’) [General Statutes § 42-110a et seq.],
    negligence, breach of contract and unjust enrichment.
    The plaintiff, in turn, denied the allegations of the coun-
    terclaim and raised two special defenses.
    ‘‘The parties agreed that the issue of foreclosure of
    the mechanic’s lien would be bifurcated from the pri-
    mary trial and, if necessary, addressed in a separate
    hearing. Furthermore, both parties sought attorney’s
    fees, but agreed that this issue would also be bifurcated
    from the primary trial and, if necessary, addressed in
    a separate hearing.
    ‘‘This matter was first tried to the court on October
    27, 2011. The trial continued on November 2, 3, 4 and
    10, 2011. The parties filed simultaneous posttrial briefs
    on January 6, 2012, and simultaneous reply briefs on
    January 17, 2012.
    ‘‘At the time of the preliminary discussions, the
    [defendant] did not have any formal plans to show to
    the plaintiff. The [defendant] closed on the Lakeville
    property on or about October 4, 2007, and, absent plans,
    the plaintiff immediately began work demolishing the
    interior. Thereafter, the plaintiff’s immediate tasks were
    to reconfigure some of the rooms and plan for the
    addition of a second story.
    ‘‘The record reflects three significant issues that were
    manifest throughout the project and ultimately helped
    bring about this litigation. First, the project evolved
    continuously from beginning to end. Second, the parties
    shared a mutual disregard for the provisions of [the act]
    and for documentation, in general. Third, the [defendant
    and Weitzman] were so focused on completing the proj-
    ect expeditiously that they made expense, quality con-
    trol and personal responsibility for the project all
    subordinate to the goal of completing the project on
    time. [The defendant] testified that he knew that making
    ‘speed’ a priority would make the project more expen-
    sive, but he did not think that such a focus would have
    a significant impact on the cost of the project or that
    the nine month time frame reflected a tight schedule.
    The record reveals, however, that [the defendant] knew
    little about the details of construction and renovation,
    and so he had no legitimate basis for reaching the lat-
    ter conclusions.
    ‘‘The record reflects that the plaintiff and [the defen-
    dant] entered into a very rudimentary general contract
    dated October 5, 2007, that had a ‘start date’ of October
    11, 2007. . . . The contract was a time and materials
    contract providing for payment at the rate of ‘$45 per
    man plus any expenses . . . .’ The contract required a
    twenty thousand dollar deposit, which the [defendant]
    paid. It does not reflect a completion date for the project
    because there were no final plans when the contract
    was signed; indeed, it does not appear that the plans
    were ever truly finalized. Despite the [defendant’s]
    claims to the contrary, the record does not support the
    conclusion that the parties ever entered into a fixed
    price contract.
    ‘‘The October 5, 2007 contract reflects the plaintiff’s
    effort to conform to the requirements of the [act], a
    law with which the plaintiff was personally unfamiliar,
    but which had been mentioned to him by his attorney.
    The two page contract carries [the defendant]’s signa-
    ture on page two along with the date of October 9, 2007.
    [The defendant] is the only signatory on the contract
    offered into evidence; there is no evidence that Weitz-
    man ever entered into a written contract with the plain-
    tiff. The contract carries three copies of the ‘Notice of
    Cancellation,’ as required by the [act]. The copies of
    the cancellation notice indicate that they are for the
    customer, the customer’s files and the contractor.
    Bizarrely, [the defendant], in addition to signing the
    contract, also signed all three copies of the cancellation
    notice and dated each of them ‘October 9, 2007.’ . . .
    The plaintiff, understandably puzzled, called [the defen-
    dant] to determine his true intentions with regard to
    the project.
    ‘‘[The defendant] testified that he reviewed the con-
    tract carefully, but that he did not read the cancellation
    notices closely, and he ‘didn’t know what the purpose
    of the cancellation notice was.’ . . . [The defendant]
    also testified that he did not notice that the contract
    lacked a completion date. Nonetheless, throughout his
    testimony, [the defendant] continued to imply that he
    had read the contract carefully. The court finds that
    [the defendant]’s testimony on this issue is not credible.
    In addition to the foregoing inconsistencies, the record
    also reflects an e-mail [dated October 10, 2007] from
    [the defendant], purportedly explaining why he signed
    the cancellation notices, with the subject line: ‘Sorry I
    had my assistant print it out and just signed everything.’
    . . . In response to that e-mail, the plaintiff requested a
    new contract or a letter stating that the original contract
    was still in effect. [The defendant] never sent a new
    contract, nor did he send the letter that the plaintiff
    requested. The plaintiff testified that he signed the con-
    tract and gave a copy to the [defendant], but no such
    copy was introduced at the time of trial.
    ‘‘The [defendant claims] that [he] never received a
    completely executed contract. On the other hand, the
    record does not reflect that [the] defendant ever
    expressed any concern about [the] apparent failure to
    enter into an accurate written contract. On the contrary,
    [the October 10, 2007 e-mail] is representative of the
    [defendant’s] hierarchy of concerns. Specifically, [the
    defendant]’s reply to the plaintiff’s request for written
    clarification of the cancellation issue stated, ‘[w]ill do
    on the contract,’ but then [the defendant] immediately
    shifted to the topic of moving the project quickly, asking
    the plaintiff to send all samples to him by Federal
    Express because it would be ‘more efficient’ in that it
    would permit the [defendant] to ‘make decisions exped-
    itiously.’ [The defendant]’s lack of understanding of the
    practical concerns related to his own project is also
    suggested in that same [e-mail] in which he requested
    a price for ‘‘quarter-sewn . . . flooring (I don’t even
    know what that is but remember [A]mie . . . and the
    architect discussing it) . . . .’
    ‘‘The demolition/renovation/remodeling project at
    issue (‘the project’) occupied the plaintiff virtually full-
    time from the time he entered into the agreement until
    he was terminated by the [defendant] in September,
    2008. The plaintiff accepted no other significant jobs
    during the foregoing time period. That fact, coupled
    with the [defendant’s] determination not to make the
    final $214,039.09 payment, put the plaintiff out of busi-
    ness. Without the final payment, the plaintiff could not
    pay his subcontractors, some of whom brought suit
    against him. Likewise, the plaintiff could not pay for
    all of his materials, resulting in some of his materials
    suppliers bringing suit against him. The plaintiff testi-
    fied that, as a result, he has no expectation that he can
    rebuild his business because subcontractors will not
    work for him in the future, and he will not be able to
    purchase supplies at contractors’ discount prices.
    ‘‘Throughout the course of the project, the plaintiff
    received work orders by telephone and e-mail from
    multiple sources, including the [defendant and Weitz-
    man], [the] architect, Beth Slotnick, and Weitzman’s
    assistant, Julie Weiner. It is apparent that none of those
    sending orders to the plaintiff was fully aware of the
    totality of the orders sent to the plaintiff. In fact, [the
    defendant] testified that he never saw the many e-mails
    sent by Weitzman’s assistant until the pretrial discovery
    process. The evidence is convincing and overwhelming
    that this project took many directions that were never
    anticipated when the work began. The written plans
    were revised many times, and the e-mail communica-
    tions introduced into evidence show that changes to
    the project were frequent and significant.
    ‘‘Some of the e-mail orders admitted into evidence
    compel the conclusion that this project was marked by
    untrammeled profligacy on the part of the [defendant]
    and [his] associates. For example, Weitzman’s assistant
    directed the plaintiff, a $45 per hour contractor, to
    assemble furniture at the house. He was also assigned
    to roll up rugs, put mattresses on beds, mow the lawn,
    remove brush and chop firewood. On other occasions,
    the plaintiff was asked to price various items that the
    [defendant] intended to purchase and install in the
    house, such as a wine refrigerator and an oven hood
    vent . . . which are tasks that do not normally fall
    to a contractor. In one notable instance, Weitzman’s
    assistant directed the plaintiff to stand by in order to
    accept a shipment of window shades. Thereafter, she
    advised him that the shades were the wrong size and
    urged him to return them promptly before the [United
    Parcel Service] return label expired. Thus, in order to
    save the cost of a mailing label, a contractor was effec-
    tively hired to do a job that in no way required a contrac-
    tor’s skills.
    ‘‘The plaintiff testified that he attempted to curb costs
    by not adding a contractor’s markup to subcontractor
    charges. He also testified that he did not add a surcharge
    to the cost of materials that he purchased from the
    suppliers, even though it is customary to do so in his
    business. As the project went forward, from time to time
    the plaintiff would ask the [defendant] for payments to
    cover expenses and to keep the project moving forward,
    and, in response, the [defendant] initially sent the
    checks that were requested. The checks were some-
    times in the range of forty thousand dollars, and the
    [defendant] sent them to the plaintiff without asking
    for an accounting with regard to time or materials
    expenditures. The plaintiff never sent specific bills to
    the [defendant], and the [defendant] never requested
    such bills, at least in the early months of the project.
    ‘‘The parties originally discussed a total cost of the
    project in the $400,000 range, but that figure was not
    based on any specific set of plans, since no final plans
    existed in the early months of the project. The plaintiff
    typically worked six days per week, beginning at 7 a.m.
    and continuing until 5:30 p.m. Sometimes, afterward,
    he worked on paperwork associated with the project
    and, on occasion, worked on Sundays in order to meet
    the stringent deadline imposed upon him. He testified
    that the frequent changes in the project made it increas-
    ingly difficult to meet the all-important project deadline
    of early summer 2008.2
    ***
    ‘‘As time went on, the pattern of the . . . change
    orders [submitted by the defendant, Weitzman, her
    assistant and the architect] and the plaintiff’s requests
    for regular checks continued unabated. It was not long
    before the project went well beyond the $400,000 figure
    that the parties originally discussed. Nonetheless, the
    [defendant] continued to send checks to the plaintiff
    as he worked assiduously to meet their demands. It
    was not until March, 2008, that the [defendant] began
    to focus on the mounting cost of the project. At that
    point, the plaintiff presented the [defendant] with a
    budget report showing a projected total cost of
    $810,267, reflecting both the expenses up to that point
    and also the anticipated future expenses based upon
    the state of the project at that time. . . . On March 25,
    2008, the plaintiff sent the [defendant] a slightly revised
    budget report that showed that the cost of the com-
    pleted elements of the project was $518,352.93. . . .
    The revised budget report also indicated that antici-
    pated future expenses would bring the total project
    cost to $795,038. The report also identified instances
    of normal contractor charges that were being excluded,
    such as a 10 percent contractor markup on materials.
    . . . The record does not reveal that the [defendant]
    registered any disagreement with the revised budget
    report. In fact, the [defendant, Weitzman, her assistant
    and the architect] continued to issue a wide variety of
    work directions to the plaintiff.
    ‘‘It was not until May 27, 2008, that the plaintiff sub-
    mitted another budget report to the [defendant]. . . .
    At that point, the plaintiff estimated that total cost of
    the project would be $886,954. However, that budget
    report also noted that expenses related to certain addi-
    tional tasks, that the [defendant and the others]
    requested of the plaintiff, were not included in the fore-
    going figure. The plaintiff did not estimate the cost for
    those additional items. . . . The plaintiff advised the
    [defendant] that he owed substantial sums to his sub-
    contractors and required additional funding to keep
    them working. . . . [The defendant] testified that,
    although he was unhappy with the figures reflected in
    [the May 27, 2008 budget], he elected to continue with
    the plaintiff as his contractor because he did not want
    to change contractors in mid-project, as he was in a
    hurry to use the house. Therefore, the [defendant,
    Weitzman, the architect and Weitzman’s assistant] con-
    tinued to ask the plaintiff to do tasks for them, including
    the placement of furniture. These requests flowed from
    the [defendant and the others] to the plaintiff through
    the end of July, 2008. . . . Even though it was clear to
    the [defendant] that they were going to make more
    changes and give new assignments to the plaintiff, [the
    defendant] testified, inexplicably, that he thought the
    May 27, 2008 budget report reflected the terms of a
    new, and verbal, fixed price contract. . . .
    ‘‘On August 25, 2008, the plaintiff submitted ‘final
    numbers’ for the project, indicating that the project
    had cost a total of $1,188,350. By August 4, 2008, the
    [defendant] had paid a total of $985,000 to the plaintiff,
    and, therefore, the balance due was $203,350. . . .
    Even though there was a substantial balance owed to
    the plaintiff, the work on the project was, at that point,
    about 98 percent complete, according to the plaintiff.
    On September 3, 2008, [the defendant] sent an e-mail
    to the plaintiff, reviewing, in general terms, the expan-
    sion of the cost of the project. That e-mail indicated
    that, although [the defendant] was unhappy with the
    costs presented to him, he was willing to review the
    reported charges. [The defendant] also expressed his
    happiness at the quality of the plaintiff’s work, and
    stated that he wanted the plaintiff to continue to work
    [on the project], indicating that [he] wanted the plaintiff
    to execute a ‘100+ item punch list [he had] provided to
    [the plaintiff].’
    ‘‘On September 8, 2008, the plaintiff responded to
    [the defendant] with another review of the project costs
    and sought a balance due in the amount of $214,911.
    . . . On September 12, 2008, the plaintiff provided the
    [defendant] with a lengthy e-mail, explaining how the
    costs of the project grew significantly larger in the final
    months of work. . . . The e-mail included a list of
    twenty-two numbered items, detailing the added costs.
    On September 16, 2008, the [defendant] advised the
    plaintiff that, notwithstanding his explanations for the
    various charges, the [defendant] had concluded that
    [he] did not owe the plaintiff anything beyond the
    $985,000 that [he] had paid as of August 4, 2008. The
    [defendant] then invited the plaintiff to seek relief
    through ‘the judicial system,’ and . . . reminded the
    plaintiff of the fact that [he] is an attorney.
    ‘‘Despite having terminated their business relation-
    ship in the September 16, 2008 e-mail, the [defendant]
    sent another message to the plaintiff on September 24,
    2008, asking him to complete items on the punch list
    as well as additional ‘extra’ items that were not on the
    punch list. On September 27, 2008, the [defendant] again
    directed the plaintiff to continue working on the punch
    list. Further communications indicate that it was the
    [defendant’s] intent that the plaintiff continue to work
    on the project even into October, 2008. Nonetheless,
    the [defendant] did not pay the plaintiff’s final bill pre-
    sented to [him] on August 25, 2008. As a result, the
    plaintiff lacked the funds to pay what he owed to various
    subcontractors and to, at least, one supplier. Some of
    those subcontractors and the supplier ultimately sued
    the plaintiff. On October 10, 2008, the plaintiff served
    upon the [defendant], and filed, a certificate of mechan-
    ic’s lien to secure the $214,039.09 payment that is the
    subject of this case.
    ‘‘This case suffers from the fact that neither party
    was effective at creating or maintaining proper records.
    The plaintiff did not retain all invoices, but rather calcu-
    lated his expenses largely from his checkbook records,
    invoices and time sheets that he did retain. The plaintiff
    had no employees, but rather did all the administrative
    work for his business. The plaintiff did not keep all
    time sheets relative to the project, nor did he keep a
    daily construction log or any other record that would
    show which tradesmen were on the site, what work
    was done, or what materials were delivered to the site
    on any given day. Rather, the crew members kept their
    own time sheets. The plaintiff testified that, because
    he was on site every day, he saw his crew members’
    work, knew what was being done and paid them for
    their work when it was justified. The plaintiff never
    prepared formal bills for the [defendant], but rather
    would simply ask the [defendant] for more money when
    he needed it, and the [defendant] sent the checks upon
    request, until [he] reached the point where [he] decided
    that [he] had paid enough for the project.
    ‘‘The defendant, for [his] part, did not request formal
    bills, backup invoices, time cards or even a formal
    accounting until they were far into the project. In fact,
    it does not appear that the [defendant] ever asked for
    backup documentation to support the plaintiff’s various
    requests for payment. The project plans were revised
    many times and, even when the plans arguably reached
    a ‘final’ stage, the [defendant, Weitzman, her assistant
    and the architect] continued to direct the plaintiff to
    carry out additional, ad hoc assignments throughout
    the summer of 2008. The evidence is clear that at least
    four different people gave work orders to the plaintiff,
    including [the defendant and] Weitzman, [the] architect
    and Weitzman’s assistant, throughout the course of the
    project. The evidence supports the conclusion that of
    the four people giving orders to the plaintiff, none of
    them had a complete understanding of what each of
    the other members of the group was telling the plaintiff
    to do.’’ (Citations omitted; footnotes altered.)
    TRIAL COURT’S FACTUAL FINDINGS AND LEGAL
    CONCLUSIONS WITH RESPECT TO PLAINTIFF’S
    CLAIM FOR RESTITUTION UNDER
    BAD FAITH EXCEPTION TO ACT
    The court determined that the plaintiff had failed to
    comply with the act,3 and thus that he was statutorily
    precluded from recovering damages on either his
    breach of contract claim or his unjust enrichment claim.
    This conclusion, however, did not end the court’s
    inquiry, for it went on to consider the plaintiff’s plea
    in avoidance as to the defendant’s special defense of
    noncompliance with the act based on the defendant’s
    alleged bad faith in invoking the act as a basis for not
    compensating him for his services. On that issue, the
    court found the following additional facts. ‘‘The parties’
    relationship began to strain in early March, 2008, when
    [the defendant] started asking for a detailed explanation
    of the charges associated with the project. At that point,
    the cost had more than doubled beyond the original
    $400,000 figure that the parties discussed originally.
    However, even though [the defendant] continued to
    send checks as requested from the period of October,
    2007 through March, 2008, and even though their total
    far exceeded the original $400,000 estimate, there is no
    evidence that [the defendant] ever sought copies of
    bills, invoices, receipts or any other accounting except
    asking the plaintiff to list the expenses, which the plain-
    tiff did in a single, two page document. . . . That docu-
    ment was entitled, ‘Upcoming Expenses,’ and showed
    that the expenses would, at that point, total nearly
    $300,000. [That document] also showed that the current
    expenditures on the project totaled $521,944, and that
    [the defendant] had paid $365,000, leaving a balance
    owed—separate from any future expenses—of
    $156,944.
    ‘‘Notwithstanding the foregoing mushrooming
    expenses, [the defendant], along with Weitzman, [her]
    assistant and the architect, continued to assign tasks
    to the plaintiff without making corresponding inquiries
    regarding the expenses associated with those tasks.4
    ***
    ‘‘The court is unable to find any timely inquiry of
    any kind, from [the defendant] or any other person
    authorized to assign tasks to the plaintiff, regarding
    the expense associated with any [such additional] job
    orders. This pattern continued through May, 2008. On
    May 23, 2008, the plaintiff advised [the defendant] of
    extra items that had not been ‘priced and/or figured as
    there [were] some last minute changes as we near the
    end.’ . . . The latter message reminded [the defendant]
    that the plaintiff would have debts to subcontractors.
    On May 27, 2008, the plaintiff advised [the defendant]
    that the project cost had grown to $886,954, but that
    other items were still to be completed and those costs
    were not included in the latter figure. . . . In that mes-
    sage, the plaintiff advised [the defendant] that subcon-
    tractors were requesting payment for their work, and
    that he was ‘very much’ in arrears at that time and
    required ‘a substantial payment’ to meet those debts.
    . . .
    ‘‘After the May 27, 2008 message, work orders contin-
    ued to flow to the plaintiff, directing him to handle
    furniture delivery and assembly, as well as larger tasks,
    such as the possible installation of mahogany for the
    deck, and also urging the plaintiff to complete a dock
    so that it would be operational when [the defendant]’s
    children returned from camp. That message noted that
    [the defendant] was wiring a $40,000 payment to the
    plaintiff. . . . [The defendant] sent additional work
    requests to the plaintiff on July 28, 2008, advising him,
    inter alia, that ‘we definitely need a boat/kayak
    holder—it should hold 3 kayaks and 1 canoe.’ . . .
    ‘‘The plaintiff sent a final bill on August 28, 2008,
    showing a total cost of $1,188,350, payments of $985,000
    and a balance due of $203,350. On September 3, 2008,
    [the defendant] advised the plaintiff that he believed
    he had paid everything that he owed. [The defendant]
    told the plaintiff that he required additional justification
    ‘before I consider any additional payments to you
    . . . .’ He acknowledged that the plaintiff was indebted
    to subcontractors, and noted that the plaintiff had not
    begun to address the ‘100+ item punch list we have
    provided to you. We have been very happy with the
    quality of your work generally and it is my hope that
    we can resolve this matter amicably.’ . . .
    ‘‘The plaintiff responded with detailed explanations
    of the costs associated with the project. . . . He made
    abundantly clear to [the defendant] that he was signifi-
    cantly indebted to subcontractors. . . . As early as
    September 9, 2008, [the defendant] was seeking an attor-
    ney to address his financial disagreement with the plain-
    tiff. . . .
    ‘‘On September 16, 2008, [the defendant] advised the
    plaintiff that ‘[w]e are at the end of the road.’ [The
    defendant] claimed that he had spent many hours
    reviewing the plaintiff’s explanations and had ‘con-
    cluded that I do not owe you any additional amounts.’
    He advised the plaintiff that he would be hiring a new
    contractor to complete items on the punch list, and he
    invited the plaintiff to bring suit, warning him that, ‘[a]s
    an attorney I expect to represent myself. If you choose
    to commence litigation, I will seek reimbursement from
    you for the costs of completing the punch list . . . .
    We are officially and immediately terminating our rela-
    tionship.’ . . . This message constituted a termination
    of the agreement between the parties. . . .
    ‘‘Despite the foregoing, [the defendant] continued to
    ask the plaintiff to work on the project. On September
    17, 2008, [the defendant] gave the plaintiff permission
    to enter the house to work on the punch list. On Septem-
    ber 24, 2008, [the defendant] sent the plaintiff a detailed
    list of punch list items that he wanted the plaintiff to
    complete, noting that he was ‘anxious to get all of these
    items done . . . .’ ’’ (Citations omitted; emphasis
    added; footnote omitted.) The court continued: ‘‘On
    October 7, 2008, [the defendant] inquired further as to
    the plaintiff’s progress on the punch list, noting that he
    did not want the plaintiff working on the punch list
    during an upcoming weekend when [the defendant]
    and his family would be using the house. . . . Shortly
    thereafter, [the defendant] received notice of the ser-
    vice of a mechanic’s lien and, for that reason, [the defen-
    dant] barred the plaintiff from the premises, and [the
    defendant] advised the plaintiff that another contractor
    would be hired to do further work. . . .
    ‘‘It is readily apparent to the court that when [the
    defendant] made his final payment on August 4, 2008,
    he had no intention of ever making any further pay-
    ments. [The defendant] received detailed explanations
    for the charges from the plaintiff, but offered no detailed
    response, other than to claim that he had reviewed
    the plaintiff’s reports and disagreed with them. [The
    defendant] knew that many subcontractors were work-
    ing on the project and that the plaintiff was indebted
    to them. [The defendant] knew that the plaintiff had
    purchased significant materials for the project and that
    the plaintiff was indebted to the suppliers. Further, both
    [the defendant] and the plaintiff knew that by August
    4, 2008, the project was largely complete. Thus, even
    if [the defendant] elected not to pay the plaintiff for
    the work done to that point, the project itself was not
    at risk, since [the defendant] could easily get another
    contractor to finish the tasks that remained, which is
    what happened. Therefore, it did not really matter if [the
    defendant] could not trick the plaintiff into finishing the
    entire punch list, which, again, is what happened.
    ‘‘A person of significantly less sophistication than [the
    defendant] would have known that the end-of-project
    billing dispute that mushroomed in August and Septem-
    ber, 2008, created a serious risk of putting the plaintiff
    out of business if [the defendant] did not pay the bills
    that he owed. In fact, that is exactly what happened at
    some point after the plaintiff filed his mechanic’s lien.
    It was the plaintiff’s fear of losing his business that gave
    [the defendant] enormous leverage over the plaintiff,
    thus compelling the plaintiff to go on working for [the
    defendant], hoping against hope—vainly, as it turned
    out—that [the defendant] would ultimately pay the
    plaintiff for all of his work.
    ‘‘The messages between [the defendant] and the
    plaintiff reflect a homeowner who knew, and took
    advantage of the fact, that his contractor had limited
    assets and desperately needed to be paid. As late as
    September, 2008, [the defendant] assured the plaintiff
    that the [defendant was] satisfied with the quality of
    the plaintiff’s work, and [the defendant] then implied
    that he might make further payments to the plaintiff,
    thereby inducing the plaintiff to continue to work for
    [the defendant]. . . . The entire project was marked
    by [the defendant]’s indifference to the manner in which
    work orders were given to the plaintiff; indeed, [the
    defendant] did not even know what all of those orders
    were. [The defendant]’s messages to the plaintiff
    focused almost exclusively on the work to be done and
    the speed with which it could be done. [The defendant]
    seldom inquired as to the expense involved. His disinter-
    est in managing the project costs causes the court to
    reject his claim that charges beyond the amount he
    chose to pay were unwarranted. . . .
    ‘‘[The defendant] unilaterally and arbitrarily selected
    a price that he was willing to pay for the project. He had
    agreed to a time and materials contract, but eventually
    decided, without a sound factual basis, that he would
    not pay for all of the time and materials expended
    on the project. Thereafter, having decided to make no
    further payments after August 4, 2008, [the defendant]
    enticed the plaintiff into continuing to do work for
    him, using a ‘carrot and stick’ approach. After the last
    payment was made on August 4, 2008, [the defendant]’s
    actions suggested to the plaintiff that perhaps [the
    defendant] could be convinced that the additional
    charges were valid. For many weeks after making the
    August 4, 2008 payment, [the defendant] attempted to
    convince the plaintiff to complete the punch list, which
    consisted of more than one hundred items. At the same
    time that [the defendant] was encouraging the plaintiff
    to go on working for him, [the defendant] was concomi-
    tantly suggesting to the plaintiff that if the plaintiff was
    contemplating legal action to recover the moneys he
    was claiming, [the defendant] would represent himself,
    thus signaling that there would be no expense to [the
    defendant] in defending or bringing a lawsuit, yet
    implicitly reminding the plaintiff that he, unlike [the
    defendant], would have to bear the expense associated
    with retaining counsel to obtain redress. [The defen-
    dant] knew, from his communications with the plaintiff,
    that the plaintiff was in difficult economic straits at
    that point.
    ‘‘When viewed in light of all the circumstances, the
    court concludes that [the defendant]’s approach consti-
    tuted a design to mislead and/or deceive the plaintiff.
    Further, [the defendant]’s decision to continue to
    encourage the plaintiff to work for him after August 4,
    2008, knowing that [the defendant] would not be making
    any further payments to the plaintiff, constituted a
    neglect and/or a refusal to fulfill [the defendant]’s con-
    tractual obligations to the plaintiff.
    ‘‘The court, having had ample opportunity to observe
    the conduct, demeanor and attitude of the witnesses,
    to evaluate the testimony and to relate the testimony
    of each witness to the exhibits in the case, concludes
    that [the defendant]’s decision to make no further pay-
    ments after August 4, 2008, was not prompted by an
    honest mistake as to his rights or duties. Instead, this
    decision was the product of [the defendant]’s desire to
    use the plaintiff to finish the project at no further
    expense to [the defendant]. The latter approach was
    faster, more efficient and vastly more economical than
    concluding the relationship with the plaintiff and
    retaining a new contractor. Thus, it was a course of
    conduct that was the product of [the defendant] choos-
    ing to serve his own financial interests at the plaintiff’s
    expense. Indeed, the latter conclusion is something of
    an understatement considering the fact that [the defen-
    dant]’s course of action served to put the plaintiff out
    of business. . . .
    ‘‘[The defendant] was not honest with the plaintiff
    when [he] suggested, after August 4, 2008, that he might
    make the additional payments that the plaintiff needed
    to pay his subcontractors and materials suppliers. The
    plaintiff has met his burden of establishing bad faith by
    [the defendant].’’ (Citations omitted; footnote omitted.)
    The court thereby rejected the defendant’s special
    defenses and counterclaim based upon alleged noncom-
    pliance with the act.5
    Turning to the issue of damages, the court made the
    following additional findings: ‘‘The plaintiff presented
    credible evidence, which the court does credit, indicat-
    ing that the value of the plaintiff’s work on the project,
    the value of the work of the crew members and subcon-
    tractors who worked under his supervision, and the
    cost of materials and associated expenses exceeds, not
    only the $985,000 paid by the [defendant], but also the
    $214,039 in damages claimed in the complaint. How-
    ever, since the plaintiff’s damage recovery is limited to
    the allegations in his complaint, the court awards the
    plaintiff $214,039.09 in damages, as alleged in count
    two of the complaint.’’6 (Footnote omitted.) The court
    found that Weitzman was not liable to the plaintiff
    because she was not a party to the contract, and thus
    any damages were recoverable only as to the defendant.
    TRIAL COURT’S FACTUAL FINDINGS AND LEGAL
    CONCLUSIONS WITH RESPECT TO PLAINTIFF’S
    REQUEST FOR ATTORNEY’S FEES IN
    CONNECTION WITH HIS
    FORECLOSURE OF
    MECHANIC’S LIEN
    ON DEFENDANT’S
    HOME
    On April 12, 2012, the plaintiff moved for a supple-
    mental judgment on the first count of his complaint, in
    which he sought to foreclose on the mechanic’s lien he
    had filed on the defendant’s property, as well as to
    recover attorney’s fees pursuant to § 52-249 (a) and
    postjudgment interest pursuant to General Statutes
    § 37-3a. On June 22, 2012, the parties entered into a
    stipulation that partially resolved the issues presented
    by the motion for a supplemental judgment. As the
    court outlined in its August 20, 2012 memorandum of
    decision on that motion: ‘‘The parties also stipulated,
    relative to the mechanic’s lien, that a judgment may
    enter in favor of the plaintiff on the first count of the
    revised complaint. The stipulated terms of the foregoing
    judgment are: (a) that the plaintiff is owed a debt in
    the amount of $214,039.09; (b) that the fair market value
    of [the defendant’s] interest in the property that is the
    subject of the lien is in excess of $500,000; (c) that the
    court shall enter a judgment of strict foreclosure, with
    law days to commence August 14, 2012; (d) that the
    plaintiff is entitled to a title search fee in the amount
    of $225; (e) that the plaintiff is not entitled to an
    appraisal fee; and (f) that the issue of the plaintiff’s
    right to attorney’s fees on the first count is left for the
    court to resolve.
    ‘‘The June 22, 2012 stipulation further provides that
    the parties agree that the plaintiff, if he ultimately pre-
    vails in the appeal, will be entitled to postjudgment
    interest from April 2, 2012, at the rate of 4.5 percent
    per annum on any judgment ultimately found to be due
    and payable by [the defendant].’’
    The only remaining issue for the court’s resolution
    was whether the plaintiff was entitled to attorney’s fees
    pursuant to § 52-249 (a). On that issue, the court con-
    cluded as follows: ‘‘General Statutes § 52-249 (a) plainly
    and unambiguously requires a hearing on a mechanic’s
    lien as a necessary precedent to an award of attorney’s
    fees. Moreover, reading the statute as requiring such a
    hearing does not yield either absurd or unworkable
    results. On the contrary, the foregoing interpretation
    of the statute creates an incentive for parties, especially
    defendants, to resolve issues pertaining to, e.g.,
    mechanic’s liens, without a hearing. Consequently,
    since there was no hearing in this case, General Statutes
    § 52-249 (a) precludes an award of attorney’s fees in
    this case.’’
    These two appeals followed. In AC 34565, the defen-
    dant claims that the trial court improperly rendered
    judgment in favor of the plaintiff under the bad faith
    exception to the act. In AC 35005, the plaintiff claims
    that the court improperly denied his request for attor-
    ney’s fees in connection with the foreclosure of his
    mechanic’s lien on the defendant’s property pursuant
    to § 52-249 (a). We address each appeal in turn.
    I
    AC 34565
    In this appeal, the defendant challenges the trial
    court’s judgment awarding restitution to the plaintiff
    under the bad faith exception to the act for the unpaid
    work he performed on the defendant’s home under a
    home improvement contract that did not comply with
    the mandatory requirements of the act. Specifically, the
    defendant makes the following claims of error. First,
    he contends that the bad faith exception was abrogated
    by the passage of No. 93-215 of the 1993 Public Acts
    (P.A. 93-215), which amended the act shortly after the
    exception was first recognized and applied without cod-
    ifying the exception into the act’s provisions. Second,
    he claims that even if the exception was not so abro-
    gated, it has never been applied where, as here, the
    homeowner’s alleged bad faith conduct neither pre-
    ceded, and thereby caused, the contractor’s perfor-
    mance of the work for which he seeks restitution nor
    involved the homeowner’s acceptance of such work
    with knowledge of the contract’s noncompliance with
    the act, and resulting unenforceability for the dishonest
    purpose of not paying for such work by later invoking
    the act. Third, the defendant claims that even if the bad
    faith exception can be invoked on the basis of bad faith
    conduct not involving the knowing acceptance of work
    under an unenforceable contract in order to avoid pay-
    ing for such work, the defendant’s proven conduct was
    not marked by bad faith, for it involved only an honest,
    good faith dispute about the nature and quality of the
    contractor’s work. We reject the defendant’s claims for
    the following reasons.
    A
    As for the defendant’s claim that the bad faith excep-
    tion to the act was abrogated by the passage of P.A.
    93-215, the parties understand and agree that we are
    bound to reject that claim under the authority of Wal-
    pole Woodworkers, Inc. v. Manning, 
    126 Conn. App. 94
    ,
    105, 
    11 A.3d 165
    (2011), aff’d, 
    307 Conn. 582
    , 
    57 A.3d 730
    (2012), in which another panel of this court rejected
    that claim. We will be bound by our holding in Walpole
    Woodworkers, Inc., until it is overruled either by our
    Supreme Court or by an en banc panel of this court.
    The defendant has raised the claim before us solely to
    preserve it for later Supreme Court review. Accordingly,
    we will not address it further at this time.
    B
    The defendant next claims that the court erred in
    awarding the plaintiff damages under the bad faith
    exception to the act because his dispute with the plain-
    tiff arose before he knew of the act or its requirements
    and after the plaintiff had performed all of the work
    for which he now seeks restitution. By this argument,
    the defendant suggests that the only situation in which
    a homeowner can be found to have invoked the act in
    bad faith to defeat a contractor’s claim for payment for
    work performed without an act-compliant contract is
    when he does so to avoid paying for services he
    accepted with knowledge of the act and its require-
    ments and the intent not to pay for them by later invok-
    ing the act. If, by his logic, his billing dispute with
    the contractor arose before he knew of the act or its
    requirements, when he was unaware of the contract’s
    noncompliance with the act or its resulting unenforcea-
    bility, his later invocation of the act to defeat the con-
    tractor’s claim for payment cannot be found either to
    have been made in bad faith or to have caused the
    contractor any losses for which he is entitled to restitu-
    tion. We disagree.
    Our Supreme Court has declared that the act ‘‘is a
    remedial statute that was enacted for the purpose of
    providing the public with a form of consumer protection
    against unscrupulous home improvement contractors.
    . . . The aim of the statute is to promote understanding
    on the part of consumers with respect to the terms of
    home improvement contracts and their right to cancel
    such contracts so as to allow them to make informed
    decisions when purchasing home improvement ser-
    vices. . . . Therefore, to advance this purpose, the act
    provides that a home improvement contract is not
    enforceable against a homeowner, either by way of an
    action for breach of contract or for unjust enrichment,
    unless the contract complies with the mandatory writ-
    ing requirements of General Statutes § 20-429 (a). . . .
    ‘‘Although the 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. . . . 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. . . . It is the bur-
    den of the party asserting the lack of good faith to
    establish its existence . . . .’’ (Citations omitted; foot-
    note omitted; internal quotation marks omitted.) Andy’s
    Oil Service, Inc. v. Hobbs, 
    125 Conn. App. 708
    , 714–15,
    
    9 A.3d 433
    (2010), cert. denied, 
    300 Conn. 928
    , 
    16 A.3d 703
    (2011).7
    Our Supreme Court first applied the bad faith excep-
    tion to the act in Habetz v. Condon, 
    224 Conn. 231
    ,
    
    618 A.2d 501
    (1992), where it affirmed the trial court’s
    rejection of a homeowner’s special defense to a contrac-
    tor’s claim for payment based upon the contractor’s
    noncompliance with the act in light of the homeowner’s
    bad faith in invoking the act to repudiate the contract.
    In Habetz, the parties initially entered into a signed,
    written contract, under which the contractor agreed to
    construct a two-story addition to the homeowner’s
    home for an agreed upon price. Thereafter, however,
    when the homeowner asked and the contractor agreed
    to perform certain extra work not specified in the origi-
    nal contract, the contractor performed the work as
    requested, although the homeowner never signed the
    written proposal for its performance despite repeated
    requests by the contractor that he do so. 
    Id., 233. After
    all of the extra work was performed, the homeowner
    refused to pay the contractor either for such extra work
    or for all of the work he had previously performed under
    the parties’ original contract. Instead, the homeowner
    brought an action against the contractor to recover
    damages for alleged negligence in performing his work,
    breach of contract on the basis of such allegedly negli-
    gent performance, and alleged violation of CUTPA in
    rendering such performance. 
    Id., 234. The
    contractor
    denied all of the homeowner’s claims of wrongdoing
    against him and filed a two count counterclaim, alleging
    that the homeowner had wrongfully refused to pay him
    either the $10,000 balance due to him for work he had
    performed under the original contract and any of the
    money he had agreed to pay for the extra work he later
    performed without a signed, written contract. 
    Id. The trial
    court ruled for the homeowner on his claim of
    breach of contract because the noncompliant contract
    was not enforceable under the act. Even so, it awarded
    damages to the contractor under both counts of his
    counterclaim on the basis of the homeowner’s bad faith
    repudiation of his obligations to the contractor under
    both the signed and the unsigned contracts. The trial
    court determined that the homeowner had repudiated
    his obligations to the contractor in bad faith because,
    as the Supreme Court later summarized in affirming its
    judgment, ‘‘evidence of bad faith permeated the deal-
    ings between the parties and thus related to work per-
    formed pursuant to the original contract as well as to
    the list of extras.’’ 
    Id., 235 n.8.
       In reaching this conclusion, the court rejected the
    homeowner’s argument that the bad faith exception,
    the availability of which had been theorized in earlier
    cases, was an ill-considered loophole that should be
    closed to ensure that the act was strictly enforced to
    protect innocent homeowners from unscrupulous con-
    tractors. The court disagreed, explaining the protective
    purpose of the exception as follows: ‘‘A bad faith excep-
    tion is designed to prevent a party’s disavowal of previ-
    ous conduct if such repudiation would not be
    responsive to demands of justice and good conscience.
    The law does not permit the exercise of a right to
    repudiate a contract when the exercise of such a right
    in bad faith would work an injustice. Every contract
    carries an implied covenant of good faith and fair deal-
    ing requiring that neither party do anything that will
    injure the right of the other to receive the benefits of
    the agreement. . . . To demand this implicit compo-
    nent but do nothing about its absence would be at
    best incongruous, and, more accurately, grossly unfair.
    Thus, a contractor, otherwise precluded from recov-
    ering moneys owed for his work because of a violation
    of the act, must be permitted to assert that the home-
    owner’s bad faith precludes him from safely repudiating
    the contract and hiding behind the act in order to bar
    the contractor’s recovery.’’ (Citations omitted.) 
    Id., 238. ‘‘The
    question is not whether the legislature specifically
    carved out this bad faith exception . . . but whether,
    in the absence of specific legislative indication other-
    wise, a doctrine founded on public policy and con-
    taining a strong strain of estoppel can prevent a
    misbehaving party from invoking the benefits of a stat-
    ute which is absolute on its face. To deny the contractor
    any opportunity of recovery after he has completed his
    end of the bargain if he has persuaded the trier of fact
    that a statutory remedy is being invoked by a home-
    owner in bad faith would be to countenance a gross
    injustice and indeed to encourage its perpetuation and
    to assure its success.’’ 
    Id., 240. By
    these words, the court in Habetz identified the
    purpose of the exception in broad terms. It clarified that
    the exception could be invoked whenever a contractor’s
    noncompliance with the act was raised by a homeowner
    as a basis for effecting an unwarranted repudiation of
    a substantially completed contract, and thereby perpe-
    trating an injustice upon a contractor who had per-
    formed his work with the legitimate expectation of
    being paid, albeit under a noncompliant and thus unen-
    forceable contract.
    Notwithstanding the breadth of the exception’s pur-
    pose, as explained by the Supreme Court in Habetz,
    the defendant argues that its true scope is more narrow
    for two related reasons. First, because the exception
    is said to have ‘‘a strong strain of estoppel,’’ he claims
    that a homeowner’s bad faith conduct cannot fall within
    the exception unless it misled, and thereby caused, the
    contractor to perform the work for which he seeks
    restitution without an act-compliant contract. He
    argues that because the exception must be based upon
    the homeowner’s bad faith invocation of the act to
    defeat a contractor’s claim for payment, such bad faith
    must involve relying upon the act to avoid paying for
    services which the homeowner accepted under a con-
    tract which he knew to be unenforceable. He claims
    here that he could not have engaged in bad faith in
    invoking the act to defeat the plaintiff’s claim for restitu-
    tion because there he did not know of the act or its
    requirements until mid-September, 2008, when he first
    consulted with an attorney after the plaintiff’s work
    under the noncompliant contract was substantially
    completed and his billing dispute with the plaintiff
    arose.
    In support of that two-pronged argument, the defen-
    dant relies on our Supreme Court’s decision in Wadia
    Enterprises, Inc. v. Hirschfeld, 
    224 Conn. 240
    , 249, 
    618 A.2d 506
    (1992), in which the bad faith exception was
    expressly invoked on a similar basis. In Wadia Enter-
    prises, Inc., our Supreme Court considered a contrac-
    tor’s claim of bad faith against the defendant
    homeowners in an action by the contractor to foreclose
    on a mechanic’s lien he had filed on the defendants’
    property after performing work on the property without
    an act-compliant contract. As evidence of the home-
    owners’ bad faith, the contractor alleged that the home-
    owners had ‘‘prepared the underlying defective contract
    through their New York attorneys and architect and
    then relied on the same contract as a defense to its
    enforcement . . . .’’ 
    Id., 248. In
    rejecting the plaintiff’s
    claim of bad faith, the court held that ‘‘[t]he fact that the
    defendants had their architect and New York attorneys
    draft the contract does not in and of itself indicate bad
    faith on the part of the defendants. There is no allegation
    or proof that the attorneys intentionally omitted [the]
    requirement [that the contract contain notice of the
    right of cancellation] in order to have an escape hatch.
    At most, the New York attorneys were negligent in
    failing to consult Connecticut law and to include the
    required clause in the contract. An honest mistake does
    not rise to the level of bad faith.’’ 
    Id., 248–49. The
    court
    further explained that ‘‘[t]here is nothing dishonest or
    sinister about homeowners proceeding on the assump-
    tion that there is a valid contract, enforcing its provi-
    sions, and later, in defense to a suit by the contractor,
    upon learning that the contract is invalid, then exercis-
    ing their right to repudiate it.’’ 
    Id., 249; see
    also Lucien
    v. McCormick Construction, LLC, 
    122 Conn. App. 295
    ,
    
    998 A.2d 250
    (2010).
    In so ruling, the court in Wadia Enterprises, Inc.,
    did not purport to limit the bad faith exception to bad
    faith conduct involving the knowing formation of or
    acceptance of services under a noncompliant home
    improvement contract, with the intent not to pay for
    those services by later invoking the act to repudiate
    the contract. Instead, although it limited its discussion
    to such a claim of bad faith, which was the only claim
    at issue in the case before it, its holding was merely
    that an essential element of any bad faith claim is that
    the homeowner acted with a dishonest or sinister
    motive when he invoked the act to repudiate the
    contract.
    The holding in Wadia Enterprises, Inc., is therefore
    consistent with the principles underlying the bad faith
    exception, as articulated in Habetz, which was decided
    on the same day as Wadia Enterprises, Inc. The lan-
    guage used in Habetz to describe the purpose of the
    exception—to ‘‘prevent a misbehaving party from
    invoking the benefits of a statute which is absolute on
    its face’’; Habetz v. 
    Condon, supra
    , 
    224 Conn. 240
    ; by
    disallowing ‘‘a homeowner who acted in bad faith to
    repudiate the contract and hide behind the act’’; 
    id., 237;—clearly contemplates
    that a homeowner might be
    found to have invoked the act in bad faith if he did so
    to cover up and achieve the illicit objectives of other
    dishonest dealings between himself and the contractor,
    regardless of whether he knew of the act and its require-
    ments at the time of those other dishonest dealings, or
    intended at the outset of those dealings to invoke the
    act to achieve his dishonest purpose. The act can no
    more serve as a convenient, if previously unplanned,
    vehicle for carrying out a homeowner’s independent
    scheme to deprive a contractor of the benefit of his
    bargain than, as the contractor claimed but failed to
    prove in Wadia Enterprises, Inc., as the long-planned
    device for executing such a dishonest scheme. With
    that broad conception of bad faith in mind, the court
    in Habetz focused its attention not on the homeowner’s
    knowledge of the act or its requirements when he
    accepted services under the noncompliant contract
    there at issue, but on the entire course of dealings
    between the parties, which it found to be permeated
    by bad faith. Those dealings included both the home-
    owner’s ultimate failure to honor his contractual obliga-
    tions to make payments under the parties’ original act-
    compliant contract, as well as his agreement for the
    performance of extra work under a proposal he never
    signed despite the contractor’s repeated requests that
    he do so.
    In the twenty-plus years since Habetz and Wadia
    Enterprises, Inc., were decided, this court and our
    Supreme Court have frequently had occasion to rule
    on claims for restitution under the bad faith exception.
    In only one of those cases did this court suggest that
    the exception might be limited to ‘‘instances of bad
    faith relating to the formation of, or inducement to,
    enter into a home improvement contract.’’ Dinnis v.
    Roberts, 
    35 Conn. App. 253
    , 259, 
    644 A.2d 971
    , cert.
    denied, 
    231 Conn. 924
    , 
    648 A.2d 162
    (1994). In several
    other cases, however, no such limitation on the scope
    of the exception has been imposed, and thus bad faith
    has been found to arise in settings other than the forma-
    tion or acceptance of services under a noncompliant
    contract with knowledge of its unenforceability. Under
    those authorities, particularly this court’s recent appli-
    cation of the exception in Walpole Woodworkers, Inc.
    v. 
    Manning, supra
    , 
    126 Conn. App. 94
    , we must reject
    the defendant’s claim.
    In Walpole Woodworkers, Inc., a trial court’s finding
    of bad faith was affirmed, as was the bad faith finding
    in Habetz before it, without any consideration of the
    homeowner’s knowledge of the requirements of the
    act when he agreed with the contractor to have work
    performed at his home without an act-compliant home
    improvement contract. In Walpole Woodworkers, Inc.,
    the contractor was retained to install a fence around
    the homeowner’s yard. After the work was substantially
    completed, the homeowner delayed his final payment.
    
    Id., 101. When
    pressed about his reasons for delay, the
    homeowner expressed concern that his small dog might
    be able to escape under the fence. The contractor
    responded by offering the homeowner a ‘‘free fix’’ for
    the previously undisclosed problem, but the home-
    owner delayed the contractor’s installation of the ‘‘free
    fix’’ for six months because the parties could not agree
    either when to install it or whether, upon its installation,
    the contractor would be paid for his work. After the
    ‘‘free fix’’ was finally installed, the homeowner persisted
    in his refusal to pay the balance due under the contract
    even though his only stated concern regarding the qual-
    ity and sufficiency of contractor’s work had been fully
    remedied. The homeowner ‘‘testified at trial that [once]
    the fence work was [completed, he] simply decided he
    would not pay the balance due on the contract.’’ 
    Id., 101–102. In
    those circumstances, the trial court found,
    and this court later agreed, that the homeowner had
    acted in bad faith by invoking the act as a means of
    not paying for the work he had engaged the contractor
    to perform. 
    Id., 102. This
    court’s holding in Walpole Woodworkers, Inc.,
    reinforces the general principle underlying the bad faith
    exception, as explained in Habetz and applied in Wadia
    Enterprises, Inc. Those cases make it clear that the
    bad faith exception is not circumscribed by the timing
    of the alleged bad faith conduct of a homeowner who
    later seeks to avoid his contractual obligations by invok-
    ing the contractor’s alleged noncompliance with the
    act. We therefore reject the defendant’s claim that the
    bad faith exception cannot apply in the circumstances
    of this case without evidence that he knew of the act
    and its requirements before receiving the services for
    which the plaintiff seeks restitution. Any invocation of
    the act to avoid a contractual obligation to the contrac-
    tor for a dishonest or sinister purpose can serve as a
    proper basis for seeking restitution under the bad faith
    exception, and thereby preventing an injustice.
    C
    The defendant finally argues that the court erred in
    awarding damages under the bad faith exception
    because the present allegations of bad faith involved
    nothing more than the refusal to pay disputed charges
    allegedly due and owing under a contract. We disagree.
    The court in Habetz made it clear that a homeowner’s
    mere disagreement with a contractor about the quality
    or completeness of his work is insufficient to establish
    bad faith. Consistent with its precedent, the court
    defined bad faith as involving ‘‘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; internal quotation marks omitted.) Habetz v.
    
    Condon, supra
    , 
    224 Conn. 237
    . ‘‘It is the burden of the
    party asserting the lack of good faith to establish its
    existence and whether that burden has been satisfied
    in a particular case is a question of fact.’’ 
    Id., 238 n.11.
       In reviewing the trial court’s finding of bad faith in
    this case, we are mindful that ‘‘[q]uestions of fact are
    subject to the clearly erroneous standard of review.
    . . . A finding of fact is clearly erroneous when there
    is no evidence in the record to support it . . . or when
    although there is evidence to support it, the reviewing
    court on the entire evidence is left with the definite
    and firm conviction that a mistake has been committed.
    . . . Because it is the trial court’s function to weigh
    the evidence and determine credibility, we give great
    deference to its findings. . . . In reviewing factual find-
    ings, [w]e do not examine the record to determine
    whether the [court] could have reached a conclusion
    other than the one reached. . . . Instead, we make
    every reasonable presumption . . . in favor of the trial
    court’s ruling.’’ (Internal quotation marks omitted.)
    Murtha v. Hartford, 
    303 Conn. 1
    , 12–13, 
    35 A.3d 177
    (2011). ‘‘[O]ur function as an appellate court is to review
    and not retry the proceeding of the trial court.’’ (Internal
    quotation marks omitted.) Foley v. Foley, 140 Conn.
    App. 490, 492, 
    58 A.3d 977
    (2013).
    ‘‘[T]he trial court, as trier of fact, determine[s] who
    and what to believe and the weight to be accorded
    the evidence. The sifting and weighing of evidence is
    peculiarly the function of the trier. [N]othing in our law
    is more elementary than that the trier is the final judge
    of the credibility of witnesses and of the weight to be
    accorded to their testimony. . . . We have constantly
    held to the rule that we will not judge the credibility
    of witnesses or substitute our judgment for that of the
    trial court.’’ (Internal quotation marks omitted.) Vance
    v. Tassmer, 
    128 Conn. App. 101
    , 116, 
    16 A.3d 782
    (2011).
    ‘‘[W]e must resist the temptation to reweigh the testi-
    mony of witnesses we have neither seen nor heard,
    draw inferences the court has rejected or substitute
    our judgment for that of the trial judge, who was closest
    to the evidence and was in the best position to evaluate
    it.’’ In re Davonta V., 
    98 Conn. App. 42
    , 55, 
    907 A.2d 126
    (2006), aff’d, 
    285 Conn. 483
    , 
    940 A.2d 733
    (2008).
    In other words, ‘‘[w]e must be ever mindful . . . [on
    review that] . . . [t]he question is not whether this
    court might have reached the same conclusion [as the
    trial court] . . . but whether the trial court could not
    reasonably have concluded as it did.’’ (Internal quota-
    tion marks omitted.) In re Tyqwane V., 
    85 Conn. App. 528
    , 541, 
    857 A.2d 963
    (2004). ‘‘We do not substitute
    our judgment for that of the trial court simply because
    we might have concluded otherwise on the evidence.’’
    Albuquerque v. Albuquerque, 
    42 Conn. App. 284
    , 288–89,
    
    679 A.2d 962
    (1996).
    Although the defendant argues that the alleged bad
    faith in this case involved nothing more than a home-
    owner’s refusal to pay disputed charges arising from a
    contract dispute, the trial court disagreed. Instead, it
    likened the defendant’s conduct to that of the home-
    owner in Walpole Woodworkers, Inc., in determining
    that such conduct was engaged in in bad faith. The trial
    court here found, and the record confirms, that the
    renovation project on the defendant’s home was largely
    completed by the time the defendant decided that he
    had paid the plaintiff enough for the work done on his
    home and refused to pay the plaintiff any more. The
    court found that the defendant’s refusal to pay the plain-
    tiff was motivated by the fact that the defendant had
    already received the bulk of the benefits he expected
    from his relationship with the plaintiff, and thus that
    there was little risk to him if he refused to pay. The
    court found that although the defendant had agreed
    to a time and materials contract, he ‘‘unilaterally and
    arbitrarily selected a price that he was willing to pay
    for the project’’ without a ‘‘sound factual basis.’’ He
    then employed a ‘‘ ‘carrot and stick’ ’’ approach to entice
    the plaintiff to continue to do work on the project,
    suggesting that he might be convinced to pay the plain-
    tiff more, even though he never actually intended to do
    so. The court found that the defendant’s conduct in
    asking the plaintiff to continue working on the project,
    knowing that he would not be paying the plaintiff for
    that work, ‘‘constituted . . . neglect and/or a refusal
    to fulfill [his] contractual obligations to the plaintiff.’’
    The court concluded, based upon its observation of the
    conduct, demeanor and attitude of the witnesses—all
    factors that trial courts are particularly well-suited to
    assess—that ‘‘[the defendant]’s decision to make no
    further payments after August 4, 2008, was not
    prompted by an honest mistake as to his rights or duties.
    . . . [Rather], this decision was the product of [the
    defendant]’s desire to use the plaintiff to finish the
    project at no further expense to [the defendant, which]
    was faster, more efficient and vastly more economical
    than concluding the relationship with the plaintiff and
    retaining a new contractor. Thus, it was a course of
    conduct that was the product of [himself] choosing
    to serve his own financial interests at the plaintiff’s
    expense.’’ The court concluded that the defendant’s
    inducement of the plaintiff to continue working on his
    home on the pretense that he might pay him more, all
    the while not intending to do so, and his subsequent
    invocation of the act was made in bad faith.8 The con-
    duct found to have been engaged in in bad faith here,
    as in Walpole Woodworkers, Inc., and Habetz, was a
    self-serving attempt by the homeowner to receive the
    benefit of a bargain for which he had freely contracted
    without fulfilling his own duty to pay for that benefit.
    He tried to avoid his obligation by hiding behind the
    protection of the act, which was not established for
    that purpose. The bad faith exception to the act has
    been recognized and enforced to discourage this very
    conduct.
    All of the foregoing factual findings, and the infer-
    ences drawn from them, are well supported by the
    record. Indeed, the defendant has not argued that the
    court’s findings are not so supported. Essentially, the
    defendant is asking us to retry the facts. This we are
    unable to do. Hopfer v. Hopfer, 
    59 Conn. App. 452
    , 458,
    
    757 A.2d 673
    (2000). The trial court stated the rationale
    for its findings and reasonably reached its conclusions
    from the evidence presented. The court further indi-
    cated that credibility determinations greatly influenced
    its findings, and such determinations are generally
    beyond the permissible scope of our review. We must
    be careful not to substitute our judgment for that of
    the trial court. It cannot be said that the trial court’s
    ruling in this case was unreasonable. See State v. Askew,
    
    245 Conn. 351
    , 374, 
    716 A.2d 36
    (1998) (McDonald, J.,
    dissenting). We therefore conclude that the court did
    not err in rendering judgment in favor of the plaintiff
    under the bad faith exception to the act.
    II
    AC 35005
    In this related appeal, the plaintiff claims that the
    trial court improperly denied his request for attorney’s
    fees even though he successfully obtained a judgment
    of foreclosure on his mechanic’s lien. The plaintiff
    argues that the court erred in determining that he was
    not entitled to attorney’s fees pursuant to § 52-249 (a)
    because the statute allows for attorney’s fees only when
    there is a hearing on the mechanic’s lien, but there was
    no hearing here. The plaintiff argues that the court
    erroneously determined that the first count of his com-
    plaint seeking foreclosure of the mechanic’s lien had
    been bifurcated from the other two counts of his com-
    plaint prior to trial. He contends that when he tried his
    other two claims, the contract and unjust enrichment
    claims, he also undertook to establish the elements
    necessary for the foreclosure of the mechanic’s lien
    and thus that the trial on those two counts constituted
    the ‘‘hearing’’ contemplated in § 52-249 (a). We disagree.
    ‘‘Because statutory interpretation is a question of law,
    our review is de novo. . . . When construing a statute,
    [o]ur fundamental objective is to ascertain and give
    effect to the apparent intent of the legislature. . . . In
    other words, we seek to determine, in a reasoned man-
    ner, the meaning of the statutory language . . . . In
    seeking to determine that meaning, General Statutes
    § 1-2z directs us first to consider the text of the statute
    itself and its relationship to [the broader statutory
    scheme]. If, after examining such text and considering
    such relationship, the meaning of such text is plain and
    unambiguous and does not yield absurd or unworkable
    results, extratextual evidence of the meaning of the
    statute shall not be considered. . . . The test to deter-
    mine ambiguity is whether the statute, when read in
    context, is susceptible to more than one reasonable
    interpretation. . . . When a statute is not plain and
    unambiguous, we also look for interpretive guidance
    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 omit-
    ted.) State v. Pond, 
    315 Conn. 451
    , 466–67, 
    108 A.3d 1083
    (2015).
    Section 52-249 (a) provides in relevant part: ‘‘The
    plaintiff in any action of foreclosure of a mortgage or
    lien, upon obtaining judgment of foreclosure, when
    there has been a hearing as to the form of judgment or
    the limitation of time for redemption, shall be allowed
    the same costs, including a reasonable attorney’s fee,
    as if there had been a hearing on an issue of fact. . . .’’
    As noted, prior to the commencement of trial in this
    action, the parties agreed that trial on the first count
    of the plaintiff’s complaint, the count seeking foreclo-
    sure of his mechanic’s lien on the defendant’s property,
    would be bifurcated from the trial on his breach of
    contract and unjust enrichment counts. The court acqui-
    esced and the case proceeded accordingly. After the
    court issued its memorandum of decision ruling in favor
    of the plaintiff under the bad faith exception to the
    act, the plaintiff moved for a supplemental judgment
    seeking foreclosure of the mechanic’s lien. The parties
    thereafter stipulated that there would not be a hearing
    on the terms of the judgment of foreclosure of the
    mechanic’s lien. Accordingly, the stipulation was sub-
    mitted to, and approved by, the court without a hearing.
    The trial court concluded, based upon the plain lan-
    guage of § 52-249 (a), that the condition precedent to
    the awarding of attorney’s fees, namely, a hearing, had
    not been satisfied. The court thus denied the plaintiff’s
    request for attorney’s fees.
    The plaintiff’s claim that his foreclosure claim was
    not bifurcated from his other two claims is belied by
    the record, in which both parties expressly sought bifur-
    cation. We cannot disagree with the plaintiff that, in
    establishing the liability of the defendant and the
    amount of the debt due to him in in his contract claim,
    he also established the essential elements of his foreclo-
    sure claim. We agree with the trial court, however,
    that § 52-249 (a), by its plain language, ‘‘contemplates
    a hearing with regard to specific aspects of the foreclo-
    sure proceeding.’’ The parties’ stipulation on the supple-
    mental judgment obviated the need for such a hearing.
    Neither party asked for such a hearing. Because trial
    on the foreclosure claim was bifurcated from the trial
    on the plaintiff’s other claims, and thus was not pursued
    at the trial on the latter claims, that trial cannot reason-
    ably be considered the ‘‘hearing as to the form of judg-
    ment or the limitation of time for redemption’’
    contemplated by § 52-249 (a). Because no such hearing
    took place here, the trial court properly denied the
    plaintiff’s request for attorney’s fees pursuant to § 52-
    249 (a).9
    The judgments are affirmed and the case is remanded
    for the purpose of setting new law days.
    In this opinion the other judges concurred.
    1
    Although Adler’s wife, Amie R. Weitzman, and the Salisbury Bank and
    Trust Company were also defendants in the underlying action, they are not
    parties to these appeals. Therefore, in referring to the defendant, we refer
    solely to Adler.
    2
    This difficulty was accentuated by the plaintiff’s clear understanding
    from the defendant that he was to follow each of the defendant’s directions
    to the letter as to work to be performed on the project. To illustrate this
    point, the court took special note, as follows, of the ‘‘single occasion’’ on
    which the plaintiff admittedly disregarded the defendant’s directions: ‘‘The
    plans called for the exterior to be covered with a product known as Tyvek,
    followed by a rain-repellant covering known as Home Slicker, and those
    products were both to be covered with shingles. The plaintiff testified that,
    instead, he used a product called Typar, which, he said, was an equivalent
    product to the Tyvek/Home Slicker combination but which cost less than
    the latter products. The architect complained to the [defendant] when she
    discovered this substitution. [The defendant] discussed the issue with the
    plaintiff, and told him that he would accept the Typar product, but [the
    defendant] also told the plaintiff never to disregard instructions in the
    future.’’
    3
    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 contrac-
    tor and the contractor’s registration number, (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, (8) is entered into by
    a registered salesman or registered contractor, and (9) includes a provision
    disclosing each corporation, limited liability company, partnership, sole
    proprietorship or other legal entity, which is or has been a home improve-
    ment contractor pursuant to the provisions of this chapter or a new home
    construction contractor pursuant to the provisions of chapter 399a, in which
    the owner or owners of the home improvement contractor are or have
    been a shareholder, member, partner, or owner during the previous five
    years. . . .’’
    The court determined that the plaintiff had failed to comply with the act
    because the contract did not contain a completion date, he did not sign the
    contract, and he did not deliver an executed copy of the contract to the
    defendant. It is noteworthy that the court found that ‘‘the [defendant] waived
    [his] right to rely on the written and signed change order requirement [of
    the act] by repeatedly giving the plaintiff new orders and job requests, many
    of which appear to have been spontaneous decisions unilaterally made by
    the [defendant] and conveyed to the plaintiff by, in many cases, hurried
    and offhand e-mail instruction. There is no significant evidence that the
    [defendant] protested when the plaintiff carried out [his] oral and/or e-mailed
    project tasks despite the absence of a written change order signed by
    both parties.’’
    4
    The trial court listed as follows a ‘‘representative sample’’ of such cascad-
    ing work orders following the defendant’s mid-March, 2008 inquiry as to
    total project cost:
    ‘‘1. March 27, 2008. Weiner inquired regarding the specifications for under-
    shelf lighting. . . .
    ‘‘2. March 27, 2008. Weiner sent drawings for bathroom hardware loca-
    tions, noting that hardware specifications would follow. . . .
    ‘‘3. April 1, 2008. [The defendant] advised the plaintiff that [he] was sending
    one thousand feet of speaker wire to be delivered the following day so
    that audio speakers could be installed in multiple locations throughout the
    house. . . .
    ‘‘4. April 4, 2008. [The architect] inquired as to whether the plaintiff would
    be repairing a foundation wall. . . .
    ‘‘5. April 6, 2008. [The defendant] sent the plaintiff specifications for the
    installation of a range hood. . . .
    ‘‘6. April 10, 2008. [The defendant] inquired as to how quickly the kitchen
    cabinets would be installed because that had to be done before templates
    for the countertops could be created, and also provided specifications for
    an under counter wine storage refrigerator. . . .
    ‘‘7. April 14-15, 2008. [The defendant] and the plaintiff exchanged messages
    about numerous aspects of work on the project, including [the defendant]’s
    plan to install a ‘plasma’ on the wall in the ‘xbox’ room. . . .
    ‘‘8. April 16, 2008. Weitzman advised the plaintiff that instead of marble
    for the fireplaces, she had decided that she wanted to use a stone called
    ‘pietra cardoza.’ ’’ (Citations omitted.)
    5
    The defendant filed six special defenses. In his first and second special
    defenses, he asserted, respectively, that the plaintiff should be denied recov-
    ery because he (1) failed to mitigate his damages and (2) had unclean hands.
    In his remaining special defenses, he asserted that the plaintiff was statutorily
    barred from recovering damages for breach of contract or unjust enrichment
    because he had performed the work for which he sought to recover damages
    in violation of several provisions of the act, particularly, by (3) failing to
    procure a written contract that contained the entire agreement between the
    owner and the contractor; (4) failing to put change orders in writing; (5)
    failing to ensure that the written contract contained both a start date and
    a completion date, and that it was signed by both parties; and (6) failing to
    provide the defendant with a completed copy of the contract at the time
    the contract was executed.
    The defendant also filed a four count counterclaim, in which he alleged
    that the plaintiff: (1) violated CUTPA; (2) was negligent in performing work
    on the subject property; (3) breached an oral contract that he had with the
    defendant to ‘‘limit the total cost of the renovations to $886,954’’; and (4)
    had been unjustly enriched because the defendant had paid him an amount
    in excess of the value of the services that he had provided to the defendant.
    6
    The court found that the plaintiff proved damages in excess of the
    $214,039.09 sum, but that the award was capped at that amount by the
    plaintiff’s own complaint. The plaintiff moved to amend his complaint after
    trial to conform to the proof that the defendant owed him $259,178.80, not
    the sum of $214,039.09 that he claimed in his complaint. The court denied
    that motion, but no challenge to that denial has been made on appeal.
    7
    Our Supreme Court has explained: ‘‘In addressing cases for restitution
    under the act, this court has collectively referred to theories of quasi con-
    tract, quantum meruit and unjust enrichment as quasi contract claims of
    restitution. . . . We take this opportunity to clarify these closely related
    terms. Quantum meruit and unjust enrichment are noncontractual means
    of recovery in restitution. Quantum meruit is a theory of recovery permitting
    restitution in the context of an otherwise unenforceable contract. In contrast,
    recovery under a theory of unjust enrichment applies in the absence of a
    quasi-contractual relationship. . . .
    ‘‘Because both doctrines are restitutionary, the same equitable considera-
    tions apply to cases under either theory. The terms of an unenforceable
    contract will often be the best evidence for restitution of the reasonable value
    of services rendered in quantum meruit, although sometimes the equities may
    call for a more restrictive measure. . . .
    ‘‘We recognize that this court has used quantum meruit and unjust enrich-
    ment interchangeably, or as equivalent terms for recovery in restitution.
    . . . In addition, cases decided under the bad faith exception after Habetz
    [v. Condon, 
    224 Conn. 231
    , 
    618 A.2d 501
    (1992)] have invoked both quantum
    meruit and unjust enrichment. . . . Nevertheless, because actions brought
    under the bad faith exception and § 20-249 (f) both arise from unenforceable
    contracts, they are best described as in quantum meruit for the reasonable
    value of services which were requested by the owner . . . .’’ (Citations
    omitted; internal quotation marks omitted.) Walpole Woodworkers, Inc. v.
    Manning, 
    307 Conn. 582
    , 587–88 n.9, 
    57 A.3d 730
    (2012).
    8
    It is noteworthy that the defendant’s second special defense alleged
    unclean hands on the part of the plaintiff. The court rejected that claim,
    and explained: ‘‘On the contrary, the court has found that [the defendant]
    has engaged in bad faith in his dealings with the plaintiff, and it is, thus,
    [the defendant] who comes to this court with unclean hands.’’
    9
    Moreover, to allow the plaintiff to recover attorney’s fees under the
    mechanic’s lien statute on the basis of the ‘‘hearing’’ on the contract and
    unjust enrichment claims would be contrary to the law limiting recovery
    under the bad faith exception to the act to the unpaid value of the work per-
    formed.