Burns v. Adler

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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.