Winakor v. Savalle ( 2020 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears 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 reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
LEE WINAKOR v. VINCENT SAVALLE
(AC 42306)
Prescott, Moll and Harper, Js.
Syllabus
The plaintiff, who had hired the defendant to perform certain home construc-
tion site work in conjunction with the construction of a new home,
sought to recover damages for breach of contract and for violation of
the Connecticut Unfair Trade Practices Act (CUTPA) (§ 42-110a et seq.),
alleging that the work the defendant performed was in violation of the
Home Improvement Act (§ 20-418 et seq.). The trial court rendered
judgment in part in favor of the plaintiff and awarded the plaintiff
compensatory damages and attorney’s fees. The trial court determined
that the defendant had breached the contract by failing to complete the
project on time and had used improper techniques and methods to fulfill
the contract. On the defendant’s appeal to this court, held:
1. The trial court improperly determined that the defendant was liable under
CUTPA on the basis of its finding that the defendant violated the Home
Improvement Act, as the work performed by the defendant was part of
new home construction and, thus, fell within the statutory exception
contained in § 20-419 (4), and as such, the defendant’s services did not
constitute home improvement and there existed no home improvement
contract that the defendant violated under the act: contrary to the plain-
tiff’s claim, interpreting the definition of home improvement to include
work performed on land regardless of whether there is an existing
building would render the clause providing for an exception to new
home construction meaningless; furthermore, as the defendant did not
violate CUTPA and without any contractual provision on which properly
to base an award of attorney’s fees, there was no basis for the plaintiff’s
recovery of any attorney’s fees and costs in connection with the alleged
CUTPA violation.
2. The defendant could not prevail on his claim that the trial court improperly
rendered judgment in favor of the plaintiff on his breach of contract
claim because the trial court’s findings were clearly erroneous, the
plaintiff never having proved beyond reasonable speculation that the
defendant’s conduct caused damage to the plaintiff’s property; the record
provided sufficient evidence to support the trial court’s finding of a
breach of contract claim, the trial court was free to credit the testimony
of the plaintiff’s witnesses in concluding that the defendant’s conduct
caused the damages suffered by the plaintiff, and the defendant’s argu-
ment that there were other possible causes for the plaintiff’s damages
was inconsistent with the standard by this court must review the trial
court’s findings, which is not whether there were other conceivable
causes but, rather, whether there was evidence to allow the court to
find that the defendant’s conduct was the cause.
Argued March 3—officially released July 7, 2020
Procedural History
Action to recover damages for breach of contract,
and for other relief, brought to the Superior Court in
the judicial district of New London and tried to the
court, Frechette, J.; judgment in part for the plaintiff,
from which the defendant appealed to this court; there-
after, the trial court granted the plaintiff’s motion for
attorney’s fees, and the defendant amended his appeal.
Reversed in part; judgment directed.
Patrick J. Markey, for the appellant (defendant).
Paul M. Geraghty, with whom was Jonathan
Friedler, for the appellee (plaintiff).
Opinion
PRESCOTT, J. The principal issue in this appeal is
whether services provided by a contractor as part of
the construction of a new residence fell outside of the
statutory purview of the Home Improvement Act
(Improvement Act), General Statutes § 20-418 et seq.
The defendant, Vincent Savalle, appeals from the judg-
ment of the trial court rendered in favor of the plaintiff,
Lee Winakor, in which the court concluded that the
defendant was liable to the plaintiff in the amount of
$100,173.32 for breach of contract, violation of the
Improvement Act, and violation of the Connecticut
Unfair Trade Practices Act (CUTPA), General Statutes
§ 42-110b et seq. On appeal, the defendant claims,
among other things, that the trial court improperly ren-
dered judgment in favor the plaintiff on (1) the CUTPA
count because it predicated CUTPA liability on the erro-
neous determination that the defendant had violated
the Improvement Act, and (2) the breach of contract
count because there was insufficient evidence to estab-
lish causation, which is necessary to prove damages.
The defendant also claims that the trial court abused
its discretion in awarding attorney’s fees to the plaintiff.
We agree with the defendant on his claim regarding the
improper imposition of CUTPA liability and the award
of attorney’s fees but disagree with him on his claim
that the court improperly found for the plaintiff on the
count alleging a breach of contract. Accordingly, we
affirm in part and reverse in part the judgment.
The following facts, as found by the court in its memo-
randum of decision or as undisputed in the record,
and procedural history are relevant to the defendant’s
claims. In 2005, the plaintiff purchased real property
located at 217 Legend Wood Road in North Stonington.
In 2012, he entered into a contract with Golden Hammer
Builders, LLC (Golden Hammer), through its principal,
Brian Mawdsley, to construct a new single-family home
on the property (GH contract). The GH contract con-
templated site work and construction of the home for
$425,300 and permitted the plaintiff to find another con-
tractor to perform the site work and to subtract the
cost of such work, $55,000, from the total cost.1
In mid-2012, the plaintiff met with the defendant to
consider hiring him to perform the site work. After
meeting with the plaintiff to discuss the scope of the
site work, the defendant submitted a bid for $50,000,
which was $5000 less than the $55,000 it would have
cost the plaintiff under the GH contract. As a result,
the plaintiff hired the defendant to perform the site
work. The plaintiff drafted a contract pursuant to which
the defendant would purchase materials and provide a
variety of services that originally were included in the
GH contract.2 The parties subsequently signed a written
contract on September 1, 2012, in which the plaintiff
agreed to pay the contract price of $50,000 for the site
work, and the defendant agreed to complete the con-
tract within one year of the start date. Subsequently,
Mawdsley applied, on the plaintiff’s behalf, for a new
home building permit on September 17, 2012, under
his new home construction contractor’s license. The
building permit was issued on January 28, 2013.
The defendant began working at the site in Septem-
ber, 2012. The trial court found that ‘‘[h]e hammered
out a ledge for the foundation, installed a septic tank,
constructed retaining walls, began site work, installed
a propane tank and gas lines (which he later agreed
to do), installed the well electrical line, and partially
finished the driveway.’’ In December, 2013, Golden
Hammer finished building the house, and the plaintiff
received a partial certificate of occupancy. In January,
2014, a full certificate of occupancy was issued for
the house.
At that time, however, the defendant had not yet
completed his work in accordance with his contract
with the plaintiff. The Planning and Zoning Commission
of the Town of North Stonington (town) issued a letter
to the plaintiff indicating that the house substantially
conformed to its zoning regulations and would be
approved for zoning compliance on the conditions that,
among other things, ‘‘the final grading, landscaping, and
soil stabilization be completed within [six] months’’ and
the driveway be widened.
On January 18, 2014, the defendant entered into a
second contract with the plaintiff. That agreement
required the defendant to complete the work that was
set forth in the first contract by April 1, 2014, for an
additional $10,000. At this point, the plaintiff already
had paid the defendant $53,000.
Over time, it became apparent that there were prob-
lems associated with the quality of the defendant’s
work.3 Due to the plaintiff’s dissatisfaction with the
defendant’s workmanship and the defendant’s failure to
complete the project according to schedule, the plaintiff
terminated his relationship with the defendant in April,
2014. Subsequently, the plaintiff hired another contrac-
tor, Charles Lindo, to remedy the flaws in the work that
the defendant had completed and to finish the work that
the defendant had failed to complete. Lindo ultimately
completed the project at additional cost to the plaintiff.
In October, 2014, the town notified the plaintiff that his
new residence fully complied with its zoning regu-
lations.
On May 28, 2015, the plaintiff commenced this action
against the defendant. The operative amended com-
plaint asserted five separate counts: breach of contract
(count one); unjust enrichment (count two); violations
of the New Home Construction Contractors Act (New
Home Act), General Statutes § 20-417a et seq. (count
three);4 (4) violations of the Improvement Act (count
four); and violations of CUTPA (count five). On August
12, 2015, the defendant filed his answer and a counter-
claim, in which he alleged that ‘‘[t]he plaintiff is
indebted to the defendant in the amount of $28,000
for the services he performed and the materials he
supplied.’’ In response, the plaintiff filed his answer and
a special defense asserting that the defendant is barred
from recovering from the plaintiff due to his violation
of the New Home Act.
The case was tried before the court, Frechette, J.,
over nine days, beginning on March 6, 2018. Subse-
quently, the parties submitted posttrial briefs.
In a memorandum of decision issued on August 21,
2018, the court found that the defendant had breached
his contract with the plaintiff by not completing the
project on time and by ‘‘using improper techniques and
methods to [perform] the contract . . . [causing] the
plaintiff [to incur] additional expenses to repair and
finish the work the defendant was contractually
required to do.’’ Having found a breach of an enforce-
able contract, the court concluded that the plaintiff was
not entitled to recover for unjust enrichment. See Gagne
v. Vaccaro, 255 Conn. 390, 401, 766 A.2d 416 (2001) (lack
of remedy under contract is precondition for recovery
under unjust enrichment theory). The court further
determined that the defendant violated the Improve-
ment Act by failing to comply with certain statutory
requirements regarding the form of the contract. Specif-
ically, it found that the contract did not contain the
name, address, and registration number of the contrac-
tor; did not include a notice of the homeowner’s cancel-
lation rights; did not disclose whether the defendant
worked as a sole proprietor; and did not contain the
entire agreement by not including, for example, provi-
sions regarding the propane tank installation. Finally,
the court concluded that, on the basis of the Improve-
ment Act violations, the defendant committed a per
se CUTPA violation. Accordingly, the court rendered
judgment in favor of the plaintiff on counts one, three,
four, and five of the complaint and awarded the plaintiff
compensatory damages totaling $100,173.32. Subse-
quently, the defendant filed a motion to reargue, chal-
lenging, among other things, the court’s findings regard-
ing the applicability of the Improvement Act, the
existence of a contract, and the damages awarded to the
plaintiff. The motion was denied, and the defendant’s
appeal followed.
After judgment was rendered, the plaintiff also filed
a motion seeking an award of attorney’s fees on the
basis of the CUTPA violation. On August 19, 2019, the
court held a hearing on the plaintiff’s motion for attor-
ney’s fees. Thereafter, on September 4, 2019, the court
issued an order awarding the plaintiff $126,126.91 in
attorney’s fees and $2412.05 in costs. The defendant
amended his appeal to challenge the court’s order
regarding attorney’s fees.
I
We first address the defendant’s claim that the court
improperly rendered judgment in favor of the plaintiff
on the CUTPA count on the basis of its finding that the
defendant violated the Improvement Act.5 The defen-
dant primarily asserts that the Improvement Act was
inapplicable in this case because the work that he per-
formed constitutes new home construction, which is
explicitly exempted by the Improvement Act, and, thus,
could not support the trial court’s imposition of CUTPA
liability and its subsequent award of damages and attor-
ney’s fees, which flowed therefrom. We agree that the
court improperly determined that there was CUTPA
liability based on an underlying violation of the
Improvement Act. Accordingly, we reverse the court’s
judgment on counts three, four, and five.
We begin by setting forth the standard of review
applicable to this claim.
‘‘CUTPA provides that [n]o person shall engage in
unfair methods of competition and unfair or deceptive
acts or practices in the conduct of any trade or com-
merce. . . . It is well settled that whether a defendant’s
acts constitute . . . deceptive or unfair trade practices
under CUTPA, is a question of fact for the trier, to
which, on appellate review, we accord our customary
deference.’’ (Citation omitted; internal quotation marks
omitted.) Landmark Investment Group, LLC v. Chung
Family Realty Partnership, LLC, 125 Conn. App. 678,
699, 10 A.3d 61 (2010), cert. denied, 300 Conn. 914, 13
A.3d 1100 (2011). Whether a defendant is subject to
CUTPA and its applicability, however, are questions of
law. Id., 700. ‘‘[If] a question of law is presented, review
of the trial court’s ruling is plenary, and this court must
determine whether the trial court’s conclusions are
legally and logically correct, and whether they find sup-
port in the facts appearing in the record.’’ (Internal
quotation marks omitted.) Id., 701.
‘‘Our courts have interpreted [General Statutes] § 42-
110g (a) to allow recovery only when the party seeking
to recover damages meets the following two require-
ments: First, he must establish that the conduct at issue
constitutes an unfair or deceptive trade practice. . . .
Second, he must present evidence providing the court
with a basis for a reasonable estimate of the damages
suffered. . . . Our Supreme Court has stated on sev-
eral occasions that under the first requirement, the fail-
ure to comply with the . . . Improvement Act is a per
se violation of CUTPA by virtue of General Statutes
[§ 20-427 (c)], which provides that any violation of the
. . . Improvement Act is deemed to be an unfair or
deceptive trade practice.’’ (Internal quotation marks
omitted.) Scrivani v. Vallombroso, 99 Conn. App. 645,
651–52, 916 A.2d 827, cert. denied, 282 Conn. 904, 920
A.2d 309 (2007).
A
The defendant argues that the plaintiff failed to satisfy
the first requirement of proving his CUTPA claim
because he failed to establish that the defendant’s con-
duct constitutes an unfair or deceptive trade practice.
Specifically, he argues that the court’s determination
that he violated the Improvement Act—which served
as the sole basis for establishing CUTPA liability—was
legally flawed because the Improvement Act is not
applicable under the facts of this case, as there was no
‘‘home improvement contract’’ between him and the
plaintiff, as contemplated by General Statutes § 20-429.
We agree.
Resolution of this claim necessarily involves interpre-
tation of the Improvement Act. The applicability of a
statute to a given situation is a matter of statutory
construction. ‘‘Issues of statutory construction raise
questions of law, over which we exercise plenary
review. . . . The process of statutory interpretation
involves the determination of the meaning of the statu-
tory language as applied to the facts of the case, includ-
ing the question of whether the language does so
apply. . . .
‘‘When construing a statute, [o]ur fundamental objec-
tive is to ascertain and give effect to the apparent intent
of the legislature. . . . In other words, we seek to
determine, in a reasoned manner, the meaning of the
statutory language as applied to the facts of [the] case,
including the question of whether the language actually
does apply. . . . General Statutes § 1-2z directs us first
to consider the text of the statute itself and its relation-
ship to other statutes.’’ (Footnote omitted; internal quo-
tation marks omitted.) Western Dermatology Consul-
tants, P.C. v. VitalWorks, Inc., 146 Conn. App. 169, 199,
78 A.3d 167 (2013), aff’d, 322 Conn. 541, 153 A.3d 574
(2016). ‘‘A fundamental tenet of statutory construction
is that statutes are to be construed to give effect to the
apparent intention of the lawmaking body. . . . Where
the words of a statute are clear, the task of a reviewing
court is merely to apply the directive of the legislature
since where the wording is plain, courts will not specu-
late as to any supposed intention because the question
before a court then is not what the legislature actually
intended but what intention it expressed by the words
that it used. . . . When two constructions [of a word]
are possible, courts will adopt the one which makes
the statute effective and workable . . . . [Further, a]
statute should be construed so that no word, phrase or
clause will be rendered meaningless.’’ (Citations omit-
ted; internal quotation marks omitted.) Verrastro v.
Sivertsen, 188 Conn. 213, 220–21, 448 A.2d 1344 (1982).
The trial court found that the defendant violated the
Improvement Act because he did not comply with con-
tract requirements prescribed by § 20-429.6 Signifi-
cantly, however, § 20-429 by its express terms applies
only to ‘‘home improvement contracts.’’ See General
Statutes § 20-429 (a) (1) (A) (‘‘[n]o home improvement
contract shall be valid or enforceable against an owner
unless’’ (emphasis added)). Section 20-419 (5) defines
a home improvement contract as ‘‘an agreement
between a contractor and an owner for the performance
of a home improvement.’’ The defendant argues that
the work he performed did not constitute a ‘‘home
improvement’’ for purposes of § 20-419 (4) but, rather,
involved the construction of a new home, which is
explicitly exempt from Improvement Act applicability.
Our starting point is the broad language of § 20-419
(4), which sets forth the type of work that constitutes
a home improvement. It provides the following: ‘‘ ‘Home
improvement’ includes, but is not limited to, the repair,
replacement, remodeling, alteration, conversion, mod-
ernization, improvement, rehabilitation or sandblasting
of, or addition to any land or building or that portion
thereof which is used or designed to be used as a private
residence, dwelling place or residential rental property
. . . . ‘Home improvement’ does not include: (A) The
construction of a new home . . . .’’ Significantly, § 20-
419 (4) expressly excludes new home construction as
constituting home improvement.
The defendant argues, among other things, that his
work for the plaintiff does not fall within any of the
types of work included within the definition of home
improvement and, in fact, falls within the explicit new
home construction exemption. In particular, he con-
tends that new home construction is not confined to
the physical building itself but can apply to site work
that accompanies the building of the new home. The
plaintiff, on the other hand, argues that the defendant’s
work was ‘‘home improvement’’ under § 20-419 (4)
because the statute’s list of work that constitutes ‘‘home
improvement’’ is not exhaustive and the land on which
the defendant performed work was, at the very least,
‘‘designed to be used as a private residence.’’ Thus, the
plaintiff contends that ‘‘the [Improvement Act], by its
very words, contemplates improvement to land, regard-
less of whether or not there is a building thereupon.’’
A critical determination for our analysis is whether the
defendant’s conduct falls into the new home construc-
tion exception, thereby rendering the Improvement Act
inapplicable. If so, there is no further need to determine
whether the conduct falls within the nonexhaustive list
of work that does constitute home improvement.
Although new home construction is not defined
within the Improvement Act, our Supreme Court pre-
viously has held that determining whether work consti-
tutes new home construction is dependent on whether
the particular work and the construction of the home
‘‘were so interrelated, temporally or otherwise, that the
[work] constituted an integral part of the construction
of a new home . . . .’’ (Internal quotation marks omit-
ted.) Rizzo Pool Co. v. Del Grosso, 232 Conn. 666, 678,
657 A.2d 1087 (1995) (Rizzo). In determining whether
construction work is sufficiently connected to new
home construction, this court has considered whether
the services furthered the goal of completing the home
and whether they were required to make the home
habitable. See Laser Contracting, LLC v. Torrance
Family Ltd. Partnership, 108 Conn. App. 222, 227–29,
947 A.2d 989 (2008).
Relying primarily on Rizzo and also citing to Drain
Doctor, Inc. v. Lyman, 115 Conn. App. 457, 973 A.2d 672
(2009), the trial court determined that the defendant’s
work, which ‘‘related to the groundwork and landscap-
ing of the house,’’ was separate and distinct from the
new home construction, thereby constituting home
improvement and implicating the [Improvement Act].
The cases cited by the trial court, however, are factually
distinguishable from the present case for the reasons
that follow.
In Drain Doctor, Inc., the defendant homeowner con-
tracted with the plaintiff corporation to fix a broken
sewer line at his home. Drain Doctor, Inc. v. Lyman,
supra, 115 Conn. App. 459. The nature of the construc-
tion work involved the plaintiff’s repair to an existing
component of a home that had already been built. This
is in direct contrast to the present matter where no
septic system had existed at the time the defendant
began performing his contractual duties.
In Rizzo, the defendants, while their new home was
under construction, signed a contract with the plaintiff
to install a swimming pool at the new home. Rizzo,
supra, 232 Conn. 669. ‘‘Although the defendants antici-
pated that the pool would be installed prior to the com-
pletion date of their new home, the contract did not
contain either a starting date or a completion date.’’ Id.
After a dispute regarding when to begin construction
of the pool ensued, the plaintiff initiated an action for
breach of contract. Id., 670. The trial court precluded
the defendants from asserting a special defense under
the Improvement Act, holding that the Improvement
Act was inapplicable to the contract because the con-
struction of the pool was part of the construction of a
new home. Id., 672–73.
On appeal in Rizzo, our Supreme Court concluded
that the pool installation was not part of the construc-
tion of the new home. In particular, it held that the
‘‘pool installation contract was completely separate and
distinct from the defendants’ home construction con-
tract . . . . Moreover, the documents that comprise
the contract for the construction of the swimming pool
contain no indication that the pool was to have been
installed at any particular stage of the new home con-
struction, or even that it was to have been installed
prior to the completion of the new home. In fact, the
contract documents make no reference whatsoever to
the construction of the defendants’ new home.’’ (Foot-
note omitted.) Id., 677–78. Concluding that the pool
installation and the new home construction were not
‘‘so interrelated, temporally or otherwise, that the instal-
lation of the pool constituted an integral part of [t]he
construction of a new home under § 20-419 (4) (A),’’
the court held that the Improvement Act was applicable
to parties’ contract. (Internal quotation marks omitted.)
Id., 678.
Key differences exist in the circumstances sur-
rounding the contract between the parties in Rizzo and
those in the present case. First, unlike the contract in
Rizzo, which was entirely independent from the new
home construction contract and did not make reference
to the construction of the new residence, the contract
between the plaintiff and the defendant in the present
case required the defendant to perform various projects
originally set forth in the GH contract and, thus, the
contract was linked directly to the new home construc-
tion contract. Furthermore, unlike in Rizzo, the con-
tract in the present case specified that the defendant
was to complete his work within one year of its signing.
The fact that the construction of the home was com-
pleted in December, 2013, a little more than one year
from the date the defendant signed the contract, Sep-
tember, 2012, temporally links the defendant’s work to
the completion of the home and bolsters the argument
that it was sufficiently ‘‘ ‘interrelated, temporally or oth-
erwise’ ’’ with the home construction. See id., 678.
The most significant consideration, in our view—and
the one that most starkly distinguishes Rizzo from the
present matter—is the nature of the construction work
itself, namely, its relationship to the habitability of the
home. In Rizzo, the dispute centered around the instal-
lation of a pool. In addition to being physically detached
from the home, the pool itself served only an ancillary
function and was not significantly related to the habit-
ability of the home. By contrast, the work the defendant
contracted to perform in the present matter—in particu-
lar, hammering out the ledge so that the foundation
could be poured, digging the septic trench for the septic
system, building retaining walls, and installing the sep-
tic tank, among others—directly contributed to the
overall function and habitability of the home.
In Laser Contracting, LLC v. Torrance Family Ltd.
Partnership, supra, 108 Conn. App. 227–29, this court
directly addressed this consideration by holding that if
the contracted services contribute to making a new
home habitable that otherwise would be uninhabitable
without such services, the work falls within the new
home construction exception to the Improvement Act.
The principal issue in Laser Contracting, LLC, was
whether installing a modular home7 at a new site and
in making improvements to the newly installed home
were services that fell within the ambit of the Improve-
ment Act’s new home construction exception, thus ren-
dering the Improvement Act’s requirements inapplica-
ble to the contract in that case. Id., 227. In that case,
this court agreed with the trial court’s conclusion that
‘‘the modular house was uninhabitable and in need of
electrical, plumbing and heating services. A new base-
ment, septic system, well, garage and driveway were
constructed where none previously had existed. In sum,
the project involved the construction of a new home
. . . .’’ Id., 227–28.
Furthermore, in Laser Contracting, LLC, this court
held that even the specific ‘‘repairs, alterations and
upgrades’’ to the modular home qualified as new home
construction under the criteria employed by our
Supreme Court in Rizzo. Id., 228–29. This court noted
that in Rizzo, ‘‘the pool installation contract involved
services that were physically separate and distinct from
the new home construction, and performed by separate
unrelated contractors. . . . In addition, the pool con-
tract contained no indication that the pool was to be
installed at any particular stage of the new home con-
struction or even that it was to have been installed prior
to the completion of the new home. . . . By contrast,
the record in [Laser Contracting, LLC] shows that the
plaintiff’s services . . . were not separate and distinct
from the underlying project of reassembling and prepar-
ing a modular home for resale at a new location. . . .
Unlike the situation in [Rizzo], then, not only was the
contractor always the same entity, but the services it
performed consistently served the parties’ common
goal of completing the house for resale.’’ Id.
Having employed the analysis set forth in Rizzo and
Laser Contracting, LLC, we conclude that the defen-
dant’s services for the plaintiff were part and parcel of
the construction of the plaintiff’s new home. Although
there was more than one contractor involved in the
construction work here, the defendant’s work was origi-
nally contemplated as part of the GH contract to con-
struct a new residence and took place simultaneously
with Golden Hammer’s construction of the new home.
The tasks performed were sufficiently interrelated to
the new home construction so as to fall within the new
home construction exception of the Improvement Act.
The inapplicability of the Improvement Act to the
parties’ contract in this case is also supported by other
definitions within that act, particularly the definition of
‘‘owner’’ as it applies to a home improvement contract.
Section 20-419 (6) defines an owner as ‘‘a person who
owns or resides in a private residence and includes any
agent thereof, including, but not limited to, a condomin-
ium association. . . .’’ ‘‘‘Private residence’ ’’ is defined
as ‘‘a single family dwelling . . . .’’ General Statutes
§ 20-419 (8). These definitions, read in conjunction with
the previously examined case law, bolster the conclu-
sion that work performed in relation to the construction
of a home not yet in existence constitutes new home
construction, which is exempt from the Improvement
Act. Although § 20-419 (6) explicitly provides that an
individual need not reside in the private residence in
order to qualify as an owner, it is axiomatic that there
needs to be a dwelling within which the individual could
reside for it to be considered a private residence such
that it invokes the plaintiff’s status as an ‘‘owner.’’
The plaintiff’s argument that ‘‘home improvement’’
includes work performed on the land, regardless of
whether there is an existing building, would render the
very clause providing for an exception to new home
construction meaningless. Under the plaintiff’s logic,
all site work related to new home construction would
always constitute ‘‘home improvement’’ and, thus, fall
within the purview of the Improvement Act. It further
would render the definition of ‘‘private residence’’
meaningless, if no dwelling needs to exist for work to
constitute home improvement. If different interpreta-
tions of a statute are possible, we must adopt the one
that creates workable results and does not render any
words or phrases meaningless. See Verrastro v.
Sivertsen, supra, 188 Conn. 220–21. In the present mat-
ter, the defendant’s proposed interpretation of ‘‘home
improvement’’ creates workable results and is sup-
ported by our case law; on the contrary, the plaintiff’s
proposed interpretation creates unworkable results.
In light of the foregoing, we conclude that the work
performed by the defendant was a part of new home
construction and, thus, falls within the statutory excep-
tion contained in § 20-419 (4). As such, the defendant’s
services were not ‘‘home improvements’’ pursuant to
§ 20-419 (5). Because no home improvement contract
existed, the defendant could not have violated the
Improvement Act.8 Because the sole basis for the defen-
dant’s CUTPA liability was his alleged Improvement
Act violation, we reverse the court’s judgment finding
the defendant liable for violating CUTPA.9
B
The defendant also claims that the court abused its
discretion by awarding attorney’s fees to the plaintiff.
Specifically, he argues that no attorney’s fees should
have been awarded because (1) the contract he alleg-
edly breached did not provide for the recovery of attor-
ney’s fees and (2) he did not violate CUTPA, which
permits recovery of attorney’s fees only on a finding
that CUTPA liability exists.10
In contrast, the plaintiff argues that the court did not
abuse its discretion in awarding attorney’s fees not only
on the CUTPA claim but also with respect to the breach
of contract claim. He contends that because the two
claims are inextricably related, it would have been
impracticable to segregate and apportion the fees. We
agree with the defendant that the court improperly
awarded attorney’s fees to the plaintiff.
Before addressing this claim, we first set forth the
relevant legal principles concerning a court’s award of
attorney’s fees for breach of contract and CUTPA
claims. ‘‘[U]nder the American rule,11 the plaintiff ordi-
narily cannot recover attorney’s fees for breach of con-
tract in the absence of an express provision allowing
recovery . . . .’’ (Footnote in original.) Aurora Loan
Services, LLC v. Hirsch, 170 Conn. App. 439, 453, 154
A.3d 1009 (2017). In the present matter, the contract
between the plaintiff and the defendant did not
expressly authorize the nonbreaching party to recover
attorney’s fees. Accordingly, the plaintiff may not
recover attorney’s fees for his breach of contract claim.
CUTPA, however, specifically allows the court to
award legal fees associated with an action brought pur-
suant to the act. Specifically, § 42-110g (d) provides in
relevant part: ‘‘In any action brought by a person under
this section, the court may award, to the plaintiff, in
addition to the relief provided in this section, costs and
reasonable attorneys’ fees based on the work reason-
ably performed by an attorney and not on the amount
of recovery. . . .’’
Turning to the present case, the trial court, regarding
attorney’s fees, stated in its memorandum of decision:
‘‘Having found a violation of CUTPA here, the court
found the plaintiff was entitled to recover attorney’s
fees and costs.’’ It further concluded that ‘‘the plaintiff
should be awarded his fees for establishing his breach
of contract claims . . . .’’
Given our conclusion that the defendant did not vio-
late CUTPA, there is no basis for the plaintiff’s recovery
of any attorney’s fees in the present case. Having
reversed the court’s judgment on the CUTPA count, and
without any contractual provision on which properly
to base an award of attorney’s fees, we accordingly
reverse the court’s judgment awarding the plaintiff
$126,126.91 in attorney’s fees and $2412.05 in costs in
connection with the CUTPA violation.
II
Lastly, the defendant claims that the court improperly
rendered judgment in favor of the plaintiff on his breach
of contract claim. In particular, the defendant argues
that the court’s finding that his breach of contract
caused the plaintiff’s damages was clearly erroneous.
We disagree and, accordingly, affirm the court’s judg-
ment on the plaintiff’s breach of contract claim.
As a preliminary matter, the plaintiff contends that
the defendant has not adequately challenged the court’s
judgment as to the breach of contract count but, instead,
‘‘only appears to [attack] the findings on [a] cursory
level.’’ The defendant responds that, although he did
not expressly label them as such, his general arguments
that the court’s determinations were based on specula-
tion and insufficient evidence sufficiently challenge the
court’s findings with respect to causation as it relates
to the breach of contract count. Even if we assume for
purposes of argument that the defendant had ade-
quately briefed his challenge to the court’s finding of
causation, we still conclude that he is not entitled to
relief on this claim.
We begin by setting forth the standard of review
and legal principles relevant to this claim. ‘‘It is well
established that [t]he elements of a breach of contract
action are the formation of an agreement, performance
by one party, breach of the agreement by the other
party and damages. . . . Although this court has inti-
mated that causation is an additional element thereof
. . . proof of causation more properly is classified as
part and parcel of a party’s claim for breach of contract
damages.’’ (Citations omitted; internal quotation marks
omitted.) Meadowbrook Center, Inc. v. Buchman, 149
Conn. App. 177, 186, 90 A.3d 219 (2014). ‘‘Under Con-
necticut law, the causation standard applicable to
breach of contract actions asks not whether a defen-
dant’s conduct was a proximate cause of the plaintiff’s
injuries, but rather whether those injuries were foresee-
able to the defendant and naturally and directly resulted
from the defendant’s conduct.’’ Theodore v. Lifeline
Systems Co., 173 Conn. App. 291, 306 n.5, 163 A.3d
654 (2017).
‘‘Causation [is] a question of fact for the [fact finder]
to determine . . . and, thus, is governed by the clearly
erroneous standard of review.’’ (Citations omitted;
internal quotation marks omitted.) Meadowbrook Cen-
ter, Inc. v. Buchman, supra, 149 Conn. App. 193. Under
this standard, ‘‘we overturn a finding of fact 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.’’
(Internal quotation marks omitted.) Naples v. Keystone
Building & Development Corp., 295 Conn. 214, 225, 990
A.2d 326 (2010).
Here, the court found that the plaintiff proved all
elements of his breach of contract claim. On the issue
of damages, the court stated in its memorandum of
decision that ‘‘the plaintiff provided a detailed account
of the damages he sustained due to the defendant’s
poor workmanship,’’ finding that ‘‘[a]s a result [of] the
defendant’s improper work, the plaintiff paid $50,714.46
to finish the defendant’s work and $60,508.86 for correc-
tive work . . . .’’
On appeal, the defendant argues that the court’s find-
ing of damages is clearly erroneous because the plaintiff
never proved beyond speculation that the defendant’s
conduct caused damage to the plaintiff’s property. He
contends that ‘‘[t]he intervening period of time between
[his] conduct and the appearance of any defective con-
dition, the lack of a definitely identified cause for the
defective conditions, the fact that the plaintiff had work
done after [he] left the job which was not necessary or
that the plaintiff did not do work he should have done,
and the several other potential causes of the defective
conditions, ensured that any conclusion of causation
was premised on mere speculation.’’
The defendant’s arguments can be best characterized
as an assertion that there were other possible causes
for the plaintiff’s damages. This contention, however,
is inconsistent with the standard by which we must
review the court’s finding—it is not whether there are
other conceivable causes but, rather, whether there was
evidence to allow the court to find that the defendant’s
conduct was the cause. ‘‘Proof of a material fact . . .
need not be so conclusive as to exclude every other
hypothesis. It is sufficient if the evidence produces in
the mind of the trier a reasonable belief in the probabil-
ity of the existence of the material fact.’’ Rockhill v.
Danbury Hospital, 176 Conn. App. 39, 44, 168 A.3d
630 (2017).
The plaintiff, on the other hand, argues that there
was adequate evidence to show that the defendant’s
work caused his damages, particularly in the form of
testimony from multiple witnesses, including Charles
Lindo. We agree.
Lindo served as a fact witness and as an expert wit-
ness12 in the areas of site work, excavation, septic instal-
lation, and site preparation; he testified as to various
problems that arose as a result of, among other things,
the defendant’s repeated use of rocks instead of sand
as backfill.13 Other witnesses who testified regarding
problems with the defendant’s backfilling included
George Brennan, the town’s fire marshal,14 and Brett
Sheldon, a representative from the gas company.15 Lindo
also testified to problems he saw related to the defen-
dant’s construction of the retaining walls, as well as
the driveway.
‘‘[I]t is the exclusive province of the trier of fact to
weigh . . . conflicting evidence, determine the credi-
bility of witnesses and determine whether to accept
some, all or none of a witness’ testimony.’’ Rockhill v.
Danbury Hospital, supra, 176 Conn. App. 44. The trial
court, as the trier of fact, was free to credit the testi-
mony of the plaintiff’s witnesses in concluding that the
defendant’s conduct caused the damages suffered by
the plaintiff. We conclude, therefore, that the court’s
findings were not clearly erroneous and there was evi-
dence in the record to support the breach of contract
judgment rendered in favor of the plaintiff.
The judgment is reversed as to counts three, four,
and five, and as to the award of attorney’s fees, and
the case is remanded with direction to render judgment
in favor of the defendant on those counts; the judgment
is affirmed in all other respects.
In this opinion the other judges concurred.
1
The GH contract was organized into the following categories: plans and
permits, excavation, foundation, exterior, windows and doors, garage doors,
insulation, electrical, plumbing, heating/AC, drywall, roofing, cabinets and
vanities, flooring, interior trim and doors, stairs, painting, other, landscaping,
and interior cleaning.
2
The contract required the defendant to ‘‘purchase and supply all supplies
needed, clear the lot, remove stumps, dig the foundation hole and well
trenches, purchase and install a septic tank, build a wall along the edge of
the lakeside, build two retaining walls, build two driveways, reclaim asphalt
for the driveway, grade the driveway at 8 percent, install footing drains and
backfill foundation, finish the grade, seed the lawn, and conduct any
blasting.’’
3
In its memorandum of decision, the trial court listed numerous deficienc-
ies in the defendant’s performance. ‘‘First, the defendant did not properly
backfill the foundation, using large rocks and boulders instead of dirt to
support the foundation. . . . Additionally, the footing drains for the founda-
tion were improperly installed, causing flooding in the basement of the
house.
‘‘Second, the defendant improperly installed the septic system because it
was backfilled with rocks instead of sand and too close to the surface,
making it more likely it could be crushed. That is exactly what happened
in 2014, when the defendant crushed the top of the tank, requiring another
tank to be installed in April, 2014. This tank too was deficient and required
replacing because the line running from it to the house had a break in
it. . . . The defendant admitted in his posttrial brief that he crushed the
septic tank.
‘‘Third, the defendant improperly constructed the retaining walls in the
front and back of the house because they leaned, contained gaps, and washed
out due to improper backfilling.
‘‘Fourth, the defendant improperly installed the patio. . . . [H]is installa-
tion used rocks instead of sand as backfill, causing the patio to settle
improperly.
***
‘‘Sixth, the defendant improperly installed the propane tank. . . . [He]
used rocks rather than sand as backfill for the tank and pipe, causing the
propane to leak from the pipe and damaging the tank. After inspection, the
entire tank and pipe were replaced.
‘‘Seventh, the defendant improperly installed the well electrical line, using
rocks instead of sand as backfill. Consequently, the electric line failed and
needed replacement.
‘‘Eighth, the defendant did not properly reclaim or grade the driveway.
The driveway was at a grade higher than 8 percent, causing the plaintiff to
regrade it. Further, the lower half of the driveway was not reclaimed with
asphalt because it was left as dirt.’’ (Footnote omitted.)
4
We note the following procedural posture regarding count three of the
plaintiff’s complaint. As written, the count alleged: ‘‘The defendant’s conduct
is in violation of [§] 20-417a [et seq].’’ The court, however, never substantively
addressed the New Home Act, instead, seeming to treat count three as
alleging a violation of the Improvement Act, although the plaintiff had
expressly alleged an Improvement Act violation in count four. This is clearly
evidenced by the court’s memorandum of decision, wherein the court
grouped the two counts together in its analysis of the Improvement Act,
stating: ‘‘The plaintiff’s third and fourth counts allege violations of the
[Improvement Act] . . . .’’ After its analysis, the court concluded that the
defendant violated the Improvement Act and stated: ‘‘The court finds for
the plaintiff on counts three and four of his complaint.’’
The plaintiff has failed to challenge the court’s decision to treat count
three as pertaining to the Improvement Act rather than the New Home Act.
The plaintiff’s motion for reconsideration filed with the trial court did not
raise this issue. The plaintiff also failed to raise this issue on appeal pursuant
to Practice Book § 63-4 (a) (1) (B). Accordingly, we conclude that the
plaintiff has abandoned any claim that the court improperly failed to consider
separately an alleged violation of the New Home Act.
5
We note that the defendant also claims that the trial court improperly
rendered judgment in favor of the plaintiff on counts three and four of his
complaint because the Improvement Act does not authorize him to bring a
private cause of action. No appellate court in this state has directly decided
whether the Improvement Act authorizes an independent, private cause of
action. In Hees v. Burke Construction, 290 Conn. 1, 961 A.2d 373 (2009),
however, our Supreme Court discussed the scope of General Statutes § 20-
429 (a). After reviewing the relevant legislative history of the statute, the
Supreme Court concluded that the statute provides a homeowner with a
shield from liability sought by a contractor if the contractor failed to comply
with the Improvement Act. Id., 12–13. Additionally, ‘‘our Superior Court
[has] uniformly determined that . . . § 20-429 is a defense and cannot be
used as an independent cause of action for a homeowner against a contrac-
tor.’’ (Internal quotation marks omitted.) Huzi v. Anglace, Superior Court,
judicial district of Ansonia-Milford, Docket No. CV-XX-XXXXXXX-S (October
13, 2009).
Here, the trial court expressly stated in its memorandum of decision that
‘‘the [Improvement Act] may not be used by a homeowner offensively against
a contractor except where the homeowner asserts an affirmative CUTPA
claim against the contractor.’’ This language suggests to us that the court
understood that the defendant’s violations of the Improvement Act were
material only to the extent that they served as a predicate for the defendant’s
liability under the CUTPA claim but cannot serve as an independent basis
for the defendant’s liability. In light of this conclusion, it is unclear why the
court rendered judgment in favor of the plaintiff on counts three and four.
In any event, because we conclude that the Improvement Act does not apply
under the circumstances of this case and, thus, the court should not have
rendered judgment in favor of the plaintiff on counts three, four, and five,
we need not decide in this appeal whether the Improvement Act authorizes
a freestanding private cause of action by a homeowner.
6
Specifically, the court found that the contract did not ‘‘contain the name
and address of the contractor and the contractor’s registration number, did
not contain a notice of the owner’s cancellation rights, and did not disclose
whether the defendant worked as a sole proprietor, and did not contain the
entire agreement’’ as required by § 20-429 (a) (1) (A).
7
‘‘[A] modular home is largely manufactured somewhere away from the
eventual home site and brought to the local home site for installation.’’
(Internal quotation marks omitted.) Brenmor Properties, LLC v. Planning &
Zoning Commission, 162 Conn. App. 678, 681 n.4, 136 A.3d 24 (2016), aff’d,
326 Conn. 55, 161 A.3d 545 (2017).
8
The defendant also argues, alternatively, that, even if the Improvement
Act were applicable, he is exempt due to his status as a licensed septic
system installer pursuant to General Statutes § 20-428 and as a subcontrac-
tor. Because we conclude that the Improvement Act is inapplicable, we
need not address these arguments.
9
The defendant also argues that the plaintiff failed to satisfy the second
CUTPA requirement of proving damages. He argues, among other things,
that the type of conduct that the court found as the basis of his CUTPA
violation was not within the purview of the Improvement Act and, therefore,
damages awarded on that basis were improper. Having reversed the court’s
judgment on the CUTPA count on a different basis, we need not address
the merits of the defendant’s claim regarding damages.
10
Alternatively, he claims that, even if there were a CUTPA violation, the
court abused its discretion by awarding the plaintiff all of his attorney’s
fees instead of only those that he incurred in pursuing the CUTPA action.
Because we conclude that the plaintiff is not entitled to any attorney’s fees,
we need not reach the issue of apportionment of such fees.
11
‘‘The general rule of law known as the American rule is that attorney’s
fees and ordinary expenses and burdens of litigation are not allowed to the
successful party absent a contractual or statutory exception. . . . Connecti-
cut adheres to the American rule. . . . There are few exceptions. For exam-
ple, a specific contractual term may provide for the recovery of attorney’s
fees and costs . . . or a statute may confer such rights.’’ (Internal quotation
marks omitted.) Aurora Loan Services, LLC v. Hirsch, 170 Conn. App. 439,
453 n.9, 154 A.3d 1009 (2017).
12
The defendant also argues that the court’s finding of causation was
clearly erroneous because the plaintiff failed to offer expert testimony to
prove that the defendant’s work caused the plaintiff’s damages. We reject
the premise of this contention because Lindo testified and offered expert
opinion regarding a variety of issues involving the defendant’s work based
on his training, experience, and expertise in this area.
13
Lindo testified in response to questioning by the plaintiff’s counsel to the
following regarding the effect of using rocks as backfill on the septic system:
‘‘Q.: And when you were digging do you recall the type of the material
that was coming out of the trench?
‘‘A.: Yeah. I mean, it was just rock. There was no— you know, usually
you would dig down and hit a layer of sand and that’s where you’d start
hand shoveling, but it was all rocks. . . .
‘‘Q.: And what’s the purpose of putting sand in there instead of the fill
that you discovered in there?
‘‘A.: To protect the pipe from breaking.
‘‘Q.: And is there a reason that a pipe might break if it’s in material that’s
laden with rocks or—?
‘‘A.: Yeah. I mean, a pipe’s only so strong. You can’t, you know, put a
rock on it and then, you know, any kind of pressure on it whether it’d be
settling, or you know . . . anything’s [going to] break the pipe.’’
Lindo testified to the following regarding the effect of using rocks as
backfill for the foundation:
‘‘Q.: When you backfill footing—not footings, but foundations, what type
of material are you supposed to use against the foundation properly?
‘‘A.: Backfill on a foundation depends what’s on site. You know, if you
have bad material there, you try and bring in something decent to keep
around the foundation wall.
‘‘Q.: When you say bad material what are you talking about?
‘‘A.: Big rocks, boulders, things like that. . . .
‘‘Q.: Was there a lot of bad material on this site?
‘‘A.: Yeah.
‘‘Q.: And why do you try to avoid putting rocks and so forth up against
the foundation?
‘‘A.: A lot of reasons. You know, cracks in the wall, you know, if you keep
a lot of —pull out a lot of big boulders in that area where you’ve dug, you’re
[going to] have the material shifting and settling, and you know, it could
push on the wall itself.’’
14
Brennan testified on direct examination by the plaintiff’s counsel to the
following regarding the proper material for backfilling:
‘‘Q.: It shouldn’t have rocks or other debris?
‘‘A.: No, sir.
‘‘Q.: And why is that?
‘‘A.: Because in New England rocks move under the ground with the frost
. . . and it will rub against the pipe eventually and cause it to either leak
or—eventually it will leak.’’
15
The following colloquy occurred during the plaintiff’s counsel’s direct
examination of Sheldon:
‘‘Q.: [I]s that something you would have expected in terms of the scratches
to see if it had been backfilled with proper material?
‘‘A.: That is not what would happen if that tank was backfilled properly.
‘‘Q.: Okay. In looking at [an exhibit depicting large rocks], is that material
that should have been used to backfill?
‘‘A.: No. Absolutely not.
‘‘Q.: [C]ould you tell the court—or if you know why the water might back
up into the regulator box?
‘‘A.: The regulator would have backed up because the water had nowhere
to flow out because as the fire marshal had stated, the clay that was found
around [the] tank would have kept the water in there and not allowed it
[to] have gone through like it would have if sand was around the tank. That
water would have drained out through the sand.’’