Gaynor v. Hi-Tech Homes

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GAYNOR v. HI-TECH HOMES—DISSENT
BEACH, J., dissenting. I agree with part I, but respect-
fully dissent from part II of the majority’s well written
decision. I agree with the majority’s position that,
because of the default, the only issue to be decided by
the trial court with respect to liability pursuant to the
Connecticut Unfair Trade Practices Act (CUTPA), Gen-
eral Statutes § 42-110a et seq., was whether the com-
plaint can reasonably be viewed to state a viable cause
of action. I believe the complaint can be so read and,
perhaps more importantly, I do not believe that this
issue has been adequately raised to this court by any
party. Accordingly, I would not reach the issue; if the
issue were reached, I would not find error.
In his brief to this court, the defendant essentially
argued that, on the facts as he saw them, he fulfilled
his contractual obligations. His argument regarding
CUTPA, in its entirety, was ‘‘under the Connecticut
Unfair Trade Practices Act that awarded the Plaintiff
attorney’s fees of $14,404.19 should be reversed,
because the complaint was invalid and the Plaintiff
complied with all the conditions of the Agreement.’’
The defendant never suggested that the facts alleged in
the complaint did not state a cause of action cognizable
under CUTPA. Except perhaps in exceptional circum-
stances, we should not reach out to address issues not
raised by a party. See, e.g., Harris v. Bradley Memorial
Hospital & Health Center, Inc., 306 Conn. 304, 327, 50
A.3d 841 (2012).1 The phrase ‘‘the complaint was
invalid’’ cannot be read so broadly as to include the
claim addressed by the majority, but even if it were
so read, it most clearly was inadequately briefed. See
Connecticut Coalition Against Millstone v. Connecti-
cut Siting Council, 286 Conn. 57, 87, 942 A.2d 345(2008).
This court’s order for supplemental briefing did not
eliminate the problem. Although it surely ameliorated
due process concerns; see Lynch v. Granby Holdings,
Inc., 230 Conn. 95, 97–99, 644 A.2d 325 (1994); it did
not cure the defect of having reached the issue at all.
Significantly, the defendant in his supplemental brief
argued only that he fulfilled his contractual obligations;
he did not in any meaningful way address the question
of whether the allegations of the complaint stated a
cause of action.
Finally, in my opinion the complaint stated a cause
of action under § 42-110a et seq. The complaint alleged,
for example, that the defendant ‘‘decreased the size of
certain rooms without the permission of the Plaintiffs’’
and concluded that the defendant ‘‘acted deceptively,
in bad faith and unethically when [he] changed the
scope of the project and dimensions of the house with-
out properly explaining what [he was] doing to the
Plaintiffs.’’ The allegation is broad enough such that
facts could be introduced to show deceptive and
unscrupulous practices which violate CUTPA; Kosiorek
v. Smigelski, 138 Conn. App. 695, 711, 54 A.3d 564(2012), cert. denied, 308 Conn. 901, 60 A.3d 287 (2013);
and it alleges a situation more culpable than a simple
breach of contract.2 As noted by the majority, the trial
court wrestled with the question of whether a CUTPA
claim was stated, but its mulling over the question
means neither that its resolution was incorrect nor that
the question was adequately raised for consideration
by this court.3
I respectfully dissent.
1
The very recent case of Blumberg Associates Worldwide, Inc. v. Brown &
Brown of Connecticut, Inc., 311 Conn. 123, A.3d (2014) (Blumberg
Associates), officially released by our Supreme Court on February 18, 2014,
does not, in my view, necessarily compel a different result. Blumberg Associ-
ates comprehensively catalogued situations in which appellate courts may
address claims sua sponte. Id., 161–64. In my view, there has been no
extraordinary injustice between the parties, and the precise rationale for
exercising supervisory powers has not been expressly articulated by the
majority, though prior to Blumberg Associates there would be no compelling
reason to do so. A general apprehension of ‘‘injustice’’ is not ordinarily
sufficient. Whether the criteria of Blumberg Associates have been met is a
question which needs not be reached by the majority, in that it holds that,
in the circumstances, the claim was adequately presented to us.
2
At this point, of course, we consider only the allegations of the complaint.
Whether credible evidence might have supported the allegations is a differ-
ent issue.
3
The majority stresses at footnote 11 of its opinion that because the trial
court considered the question, it has not been ambushed. The difficulty at
this point, however, is not whether the trial court considered the issue, but
rather whether the issue was raised by a party for our consideration.
Similarly, the majority suggests that we should ‘‘give leeway’’ to self-
represented litigants and should construe pleadings broadly to ensure an
opportunity to be heard. Again, I generally agree. But the leeway provided
to self-represented litigants has boundaries. As stated in Mourning v. Com-
missioner of Correction, 120 Conn. App. 612, 624–25, 992 A.2d 1169, cert.
denied, 297 Conn. 919, 996 A.2d 1192 (2010): ‘‘[I]t is the established policy
of the Connecticut courts to be solicitous of pro se litigants and when it
does not interfere with the rights of other parties to construe the rules of
practice liberally in favor of the pro se party. . . . The modern trend . . .
is to construe pleadings broadly and realistically, rather than narrowly and
technically . . . . The courts adhere to this rule to ensure that pro se liti-
gants receive a full and fair opportunity to be heard, regardless of their lack
of legal education and experience . . . . This rule of construction has limits,
however. Although we allow pro se litigants some latitude, the right of self-
representation provides no attendant license not to comply with relevant
rules of procedural and substantive law. . . . A [trial] court does not have
the discretion to look beyond the pleadings and trial evidence to decide
claims not raised. . . . In addition, while courts should not construe plead-
ings narrowly and technically, courts also cannot contort pleadings in such
a way so as to strain the bounds of rational comprehension.’’ (Emphasis
added; internal quotation marks omitted.) Although we afford self-repre-
sented parties some latitude, they ‘‘are not afforded a lesser standard of
compliance . . . . [S]uch a litigant is bound by the same rules . . . and
procedure as those qualified to practice law.’’ (Internal quotation marks
omitted.) Rutka v. Meriden, 145 Conn. App. 202, 218, 75 A.3d 722 (2013).