author: PETERS, J.

text:
    IN RE YARISHA F.

    (AC 31123)
    DiPentima, Harper and Peters, Js.

      Argued February 16
    officially released May 11, 2010

      Tammy Nguyen-O’Dowd, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellant (petitioner).

      Robert J. Moore, for the appellee (respondent).

      Gerald B. Gore, for the appellee (intervening maternal grandmother).

      Valeria Caldwell-Gaines, for the minor child.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

PETERS, J.

Connecticut has enacted the Interstate Compact on the Placement of Children governing the placement of a minor child in a home in another state. General Statutes § 17a-175, article III, subsection (d) provides that “[t]he child shall not be sent, brought, or caused to be sent or brought into the receiving state until the appropriate public authorities in the receiving state shall notify the sending agency, in writing, to the effect that the proposed placement does not appear to be contrary to the interests of the child.” In this case of first impression, the dispositive issue is whether § 17a-175 permits a trial court to order an out-of-state placement to a member of the minor child’s extended family without the approval of the placement by an agency in the receiving state. Because we conclude that the trial court was required to comply with the unambiguous mandate of the statute, we reverse the judgment of the trial court directing the out-of-state placement of the child with her maternal great-grandmother.

On March 14, 2008, the commissioner of children and famihes (commissioner) filed a petition for the termination of parental rights of the respondent, the mother of the minor child, Yarisha F. Prior to adjudication of the petition, the child’s maternal grandmother, a Florida resident, had become an intervenor in this matter. The intervenor moved that the child’s maternal great-grandmother, also a resident of Florida, be appointed as guardian for the child. The petition for termination of the respondent’s parental rights and the motion to transfer guardianship were consolidated for trial, which was held in December, 2008. On May 1, 2009, the trial court, Wilson, J., granted the motion to transfer guardianship to the great-grandmother, finding that she was a suitable and worthy caretaker for the child. The court ordered that the guardianship and placement would become effective following (1) receipt of a pending interstate compact study of the great-grandmother’s suitability and (2) six months of visitation between the great-grandmother and the child. In response to further motions, the court clarified its judgment to hold that, in light of the evidence before it, the transfer of guardianship would become effective upon receipt of the interstate compact study, even if that study contained a negative evaluation of the great-grandmother.

The commissioner has appealed from the court’s initial judgment, challenging the legal and factual conclusions of the court and from the court’s subsequent refusal to open the judgment, despite the receipt of a negative social study concerning the great-grandmother from Florida child welfare authorities. We reverse the judgment of the court.

The following facts and procedural history are undisputed. In May, 2006, the commissioner took temporary custody of the minor child. On November 7, 2006, the court adjudicated the child to have been neglected and committed her to the care and custody of the commissioner. Although the maternal grandmother was permitted to intervene to present herself as a guardian and a possible placement for the child, a negative report on her suitability ruled out that possibility. On June 3, 2008, the intervenor moved to transfer guardianship to the child’s maternal great-grandmother.

In May, 2009, the court granted the motion to transfer guardianship to the great-grandmother, effective upon receipt of the interstate compact study and six months of visitation between the child and the great-grandmother. The commissioner filed a motion to reargue, which the trial court granted for the purpose of clarifying its May, 2009 decision. In response to an order of this court, on September 9, 2009, the trial court issued an articulation, stating: “No further trial court proceedings must occur, nor is it necessary to wait for the pending [interstate compact study] on the [maternal great-grandmother] before transfer of guardianship can occur.” The court further stated that it had independently determined that it was in the child’s best interest to be placed with the great-grandmother, regardless of the outcome of the study.

On October 7, 2009, the commissioner filed a motion to open the judgment and reopen evidence to present newly discovered evidence. The commissioner offered the results of the completed interstate compact study, which did not support placement with the great-grandmother, as well as a statement documenting the child’s strong negative reaction to her August, 2009 visit with the great-grandmother. Although neither the respondent nor the intervenor filed an objection to the motion to open, and the child’s attorney filed notice that she supported it, the court denied it on October 19, 2009. Ruling that the evidence was not newly discoverable because the commissioner could have presented rebuttal evidence against the transfer of guardianship at trial, the court denied the motion. The commissioner then amended her appeal to include a challenge to the court’s denial of the motion to open.

I

The commissioner principally claims on appeal that, in light of § 17a-175, the court had no authority to transfer guardianship of the child to her great-grandmother in Florida without a supporting interstate compact study report from a suitable authority in that state. In response, the respondent and the intervenor argue that the court retained the authority to make an independent assessment of the propriety of the proposed placement, especially because, in this case, an earlier Florida compact study had approved the suitability of a placement with the intervenor, who at the time of the study had resided with the great-grandmother. We agree with the commissioner.

Our resolution of the commissioner’s claim concerning the application of the Interstate Compact on the Placement of Children requires us to ascertain the meaning of § 17a-175 as applied to the facts of this case. “Such [i]ssues 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 statutory language as applied to the facts of the case, including the question of whether the language does so apply. . . . 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 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. ... In seeking to determine that meaning, General Statutes § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. 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.” (Internal quotation marks omitted.) Cruz v. Montanez, 294 Conn. 357, 367, 984 A.2d 705 (2009).

Connecticut adopted the Interstate Compact on the Placement of Children in 1967 and codified it as § 17a-175. All fifty states, the District of Columbia and the U.S. Virgin Islands have enacted the compact. See American Public Human Services Association, Guide to the Interstate Compact on the Placement of Children 3 (Rev. 2002), available at http://icpc.aphsa.org/Home/Doc/ Guidebook_2002.pdf (last accessed April 22,2010). Arti-ele I of the compact provides in relevant part that “[i]t is the purpose and policy of the party states to cooperate with each other in the interstate placement of children to the end that . . . [e]ach child requiring placement shall receive the maximum opportunity to be placed in a suitable environment and with persons or institutions having appropriate qualifications and facilities to provide a necessary and desirable degree of care.”

Article III of the compact defines the requirements for the placement of a child in a receiving state. Subsection (a) requires that “[n]o sending state shall send, bring, or cause to be sent or brought into any other party state any child for placement in foster care or as a prehminary to a possible adoption unless the sending agency shall comply with each and every requirement set forth in this article and with the applicable laws of the receiving state governing the placement of children therein.” Article III (d) further provides that a “child shall not be sent, brought, or caused to be sent or brought into the receiving state until the appropriate public authorities in the receiving state shall notify the sending agency, in writing, to the effect that the proposed placement does not appear to be contrary to the interests of the child.” (Emphasis added.) The compact defines “sending agency” to include “a court of a party state”; General Statutes § 17a-175, article II (b); and defines a “receiving state” as “the state to which a child is sent, brought, or caused to be sent or brought, whether by public authorities or private persons or agencies, and whether for placement with state or local public authorities or for placement with private agencies or persons.” General Statutes § 17a-175, article II (c).

Although Connecticut courts have rarely had an occasion to apply the compact, the majority of jurisdictions that have considered the issue have concluded that the compact prohibits courts from placing children out of state prior to the appropriate notification under article in (d). See, e.g., In re T.M.J., 878 A.2d 1200 (D.C. 2005); Dept. of Children & Families v. Fellows, 895 So. 2d 1181 (Fla. App. 2005); In re Adoption of Infants H., 904 N.E.2d 203 (Ind. 2009); In re Welfare of Child of: T.T.B. & G.W., 724 N.W.2d 300, 303 (Minn. 2006); In the Matter of Miller, 178 Or. App. 271, 36 P.3d 989 (2001); In re Paula G., 672 A.2d 872 (R.I. 1996). This prohibition has been applied to intrafamily placements. In re Ryan R., 29 App. Div. 3d 806, 815 N.Y.S.2d 221 (2006) (placement with aunt and uncle); Dept. of Children & Families v. Fellows, supra, 1181 (placement with aunt); In re T.M.J., supra, 1201 (placement with grandmother); In the Matter of Miller, supra, 271 (placement with grandfather).

A

In its memorandum of decision denying the motion to reargue, the court, while noting the out-of-state authority to the contrary, relied on Division of Youth & Family Services v. K.F., 353 N.J. Super. 623, 803 A.2d 721 (App. Div. 2002), for support of its decision to order the placement of the child prior to receiving a report from Florida. The Appellate Division of the New Jersey Superior Court upheld the trial court’s placement of children with their grandparents, despite the trial court’s receipt of a negative interstate compact study on the grandparents’ Pennsylvania home. Id., 638. Relying on the analysis in McComb v. Wambaugh, 934 F.2d 474 (3d Cir. 1991), the Appellate Division held that the trial court’s order granting custody to the grandparents did not fall within the ambit of the interstate compact because “[a]rticle VIII (a) plainly states that the [interstate compact] does not apply to the sending orbringing of a child into a receiving state by certain individuals including grandparents.” Division of Youth & Family Services v. K.F., supra, 635. The court in Division of Youth & Family Services concluded that even if the interstate compact were applicable, it would nonetheless affirm the trial court’s decision because the trial court had sufficient evidence in support of placement with the grandparents. Id., 636.

The case of Division of Youth & Family Services is factually and procedurally distinct from the present case due to its unique facts, namely, that the New Jersey division of family and youth services had “manipulated evidence and obstructed the court’s fact-finding process.” Id. The division “required the alteration of [an independent therapist’s] report, interfered with the family’s counseling and therapeutic visitation sessions and continued to have oral communications with counselors despite a court order for such communications to be in writing.” Id., 637. Procedurally, the trial court in Division of Youth & Family Services first terminated the involvement of the New Jersey child protection authorities before it transferred custody of the child to the grandparents. Id., 630. That case, therefore, does not support the trial court’s judgment in the present case.

B

The intervenor argues, as an alternative basis for affirming the judgment, that the prior approval by the Florida child protection authorities of her as a placement while she lived with the great-grandmother authorized the court to place the child in that home. This argument relies on article VIII (b) of the interstate compact, which exempts from its requirements “[a]ny placement, sending or bringing of a child into a receiving state pursuant to any other interstate compact to which both the state from which the child is sent or brought and the receiving state are party, or to any other agreement between said states which has the force of law.”

The language cited by the intervenor deals with cases that are governed by other interstate compacts and makes the provisions of those other compacts controlling on the placement procedures. See, e.g., Interstate Compact for Juveniles, General Statutes § 46b-151h. Although the Interstate Compact on the Placement of Children also refers to “any other agreement . . . which has the force of law”; General Statutes § 17a-175, article VIII (b); no authority has been cited, and research has revealed none, for the proposition that an approval of one relative by an out-of-state agency becomes “an agreement . . . which has the force of law.” General Statutes § 17a-175, article VIII (b). Indeed, the intervenor herself, as noted, was ultimately excluded as a placement option despite her approval from Florida. The intervenor’s prior approval, therefore, cannot operate as an “agreement . . . with the force of law”; General Statutes § 17a-175, article VIII (b); on which the trial court could rely to place the child with her great-grandmother.

We also note that the approval of the intervenor as a placement occurred over one and one-half years before the trial in this matter. The great-grandmother testified to the effect that, over the same time period, various children and grandchildren moved in and out of her home. That fact alone would require an up-to-date study in order to ensure that no one currently in the home posed a risk to the child. In addition, the completed interstate compact study, and the report of the child following her visit, revealed substantial problems with the physical environment of the home, highlighting the importance of not relying on outdated information when making placement decisions. Furthermore, even if the condition of the home had not changed, the appropriateness of the placement decision must be based, at least in part, on the identity of the primary caretaker.

The intervenor also argues that the court complied with the requirements of the compact because its May 1, 2009 decision states that the transfer of guardianship and placement of the child would not be effectuated until completion of the compact study. This argument ignores the reality that the court decided to effectuate the transfer of guardianship without regard to whether Florida would approve the placement.

C

The respondent argues that the court had the authority to make its own findings of fact concerning the best interest of the child and to make a placement without regard to the conclusion reached by the Florida authorities pursuant to article III (d) of the compact. She relies on three out-of-state cases that, in her view, stand for the proposition that a sending state can ignore its obligations under the compact if it finds that the best interest of the child is served by the placement. We are not persuaded.

Two of the cases cited by the respondent; In re Adoption/Guardianship No. 3598, 347 Md. 295, 701 A.2d 110 (1997); In re Adoption No. 10087, 324 Md. 394, 597 A.2d 456 (1991); addressed violations of the interstate compact by prospective adoptive parents who personally took the children out of state before receiving approval by the interstate compact authorities of either state. In In re Adoption No. 10087, supra, 424, the Court of Appeals of Maryland, in overturning the trial court’s dismissal of the adoption petition, remanded the case with instructions to achieve retroactive compliance with the interstate compact. The Court of Appeals also stated that the determination of whether adoption would be in the child’s best interest should be paramount to the trial court. Id. In In re Adoption/Guardianship No. 3598, supra, 311, the Court of Appeals reinstated a trial court decision approving an adoption petition that had been reversed by the intermediate appellate authority because the adoptive parents had failed to comply with the approval requirement in the interstate compact. The court held that it did not “rule out the possibility of a trial court, under appropriate circumstances, dismissing an adoption petition as a violation the [interstate compact]. Certainly, the best interest of the child remains the overarching consideration and the needs of the child should not be subordinate to enforcement of the [interstate compact].” Id., 323.

Both cases involved independent adoptions, meaning that no state or private agency was involved with the

placement and are, thus, distinguishable from the present case where child protection authorities are involved. It is also notable that in In re Adoption No. 10087, no party challenged the propriety of the placement with the adoptive parents. Although the Maryland cases emphasize the importance of the best interest of the child in adoption petitions, neither case holds that a court, in the first instance, may order a child placed in an out-of-state home without complying with the interstate compact, as the trial court did in this case. Rather, the Maryland adoption cases reflect the unwillingness of the courts to disturb a completed placement, made several years prior to the court’s ruling, that involved infants who were settled into the home of adoptive parents and raised in those homes since birth. These distinguishing factual and procedural histories do not persuade us to conclude, as the respondent suggests, that a court may make an independent determination of the child’s best interest without regard to the mandates of the interstate compact.

A third case cited by the respondent; Florida v. Thornton, 183 W. Va. 513, 396 S.E.2d 475 (1990); does not support the respondent’s position, as it involves the question of whether a state may maintain jurisdiction over a child after a violation of the compact. The violation in question involved the failure of the sending state to provide ongoing financial support for the child, and the court determined that despite that failure, the best interest of the child dictated that the sending state retain jurisdiction to consider the best placement option for the child. Id., 519.

In sum, none of the cases cited by the respondent support the proposition that a sending agency, in this case a court, may rely on an independent determination of the best interest of the child, to deliberately disregard the requirement of article III (d). We agree with the court in In re Adoption of Infants H., supra, 904 N.E.2d 208, that “[t]he conditions for placement set forth in article III of the Compact are designed to provide complete and accurate information regarding children and potential adoptive parents from a sending state to a receiving state and to involve public authorities in the process in order to ensure children have the opportunity to be placed in a suitable environment.” See also In re supra, 878 A.2d 1203 (“[a]s the [interstate compact] dictates, [the receiving state’s] refusal to approve placement of the child with [the maternal grandmother] barred the Superior Court from ordering that disposition”); In re Luke L., 44 Cal. App. 4th 670, 681-83, 52 Cal. Rptr. 2d 53 (1996) (reversing juvenile court decision authorizing out-of-state placement for failure to receive approval from receiving state).

In the present case, the commissioner in January, 2008, requested that Florida complete an interstate compact study on the great-grandmother. At the time of the court’s decision, the study had not been completed, and Florida had not given notice pursuant to article III (d). Even if the court was justifiably concerned about Florida’s delay in processing the request for an interstate compact study, the court’s conclusion that it could place the child in Florida without approval from the authorities there contravenes the directives of the statute. Accordingly, we hold that the court improperly transferred guardianship to the great-grandmother in Florida.

II

The commissioner also challenges the denial of her motion to open the judgment. Because the judgment that the commissioner seeks to open is reversed, our conclusion in part I of this opinion has rendered it unnecessary to address this claim. A ruling by this court on the motion to open would provide no practical relief beyond that which is already provided in part I of this opinion.

The judgment is reversed and the case is remanded with direction to vacate the order transferring guardianship to the maternal great-grandmother and for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       The child's mother is the sole respondent in this matter because the child’s father is deceased.

       The court did not address the merits of the petition for termination of parental rights.

       The attorney for the minor child, in her brief and at oral argument before this court, supported the position of the commissioner.

       Because we reverse the judgment of the court on the first, ground asserted by the commissioner, we need not reach the second ground argued for reversal, namely, that the court’s findings of fact were clearly erroneous.

       The commissioner’s permanency plan initially called for the intervenor to take custody of the child as her guardian. Accordingly, the commissioner requested that Florida complete a study of the intervenor and her home in Florida, a home that she shared with her mother, the child’s great-grandmother. Florida approved this placement, but the intervenor subsequently failed a drug test taken at the request of the commissioner.

       In January, 2008, the commissioner requested that Florida determine the suitability of placing the child with her great-grandmother. At the time of the May 1,2009judgment, the results of the study had not yet been received by the court. The court concluded that “ [ujnless there is a substantial change in . . . circumstances since the earlier favorable [interstate compact study] performed in July, 2007, which approved [great-grandmother’s] residence as an appropriate placement for [the child], this court cannot envision that the pending [study] will be anything less than positive.”

       In its May 1, 2009 memorandum of decision, the court held that the transfer would be effectuated upon completion of the compact study. The court’s June 16, 2009 memorandum of decision on the motion to reargue and the September 9, 2009 articulation, however, make it clear that the delay in transfer of guardianship did not depend on Florida’s approval of the placement, and the decision to transfer guardianship would stand regardless of the outcome of the compact study.

       The states are split on whether placement with a natural parent is governed by the interstate compact. Courts in some states have determined that placement with a parent does not fall within the meaning of placement used in the compact. See, e.g., Arkansas Dept. of Human Services v. Huff, 347 Ark. 553, 563, 65 S.W.3d 880 (2002); State v. L.G., 801 So. 2d 1047, 1050 (Fla App. 2001). Other states have held that any out-of-state placement, even with a parent, is governed by the compact. See, e.g., In re T.N.H., 70 S.W.3d 2, 9 (Mo. App. 2002). The court in the present case explicitly stated that it was not relying on the proposition that placement with a great-grandmother is not governed by the interstate compact; these cases, therefore, are not persuasive.

       The court in Division of Youth & Family Services v. K.F., supra, 353 N.J. Super. 634, and the trial court in the present case, mistakenly cite In re Interest of Eric O., 9 Neb. App. 676, 617 N.W.2d 824 (2000), as having concluded that placement of children with grandparents falls outside of the interstate compact. The court in In re Interest of Eric O. relied on article VIII of the interstate compact and held that the compact does not apply to “[t]he sending or bringing of a child into a receiving state by his parent, stepparent, grandparent, adult brother or sister, adult uncle or aunt, or his guardian,” to conclude that the long-time guardians of the children at issue were allowed to move out of state without first complying with the interstate compact. (Emphasis added.) Id., 682. In In re Interest of Erie 0., the guardians had custody pursuant to an agreement with the natural father, and, therefore, no “sending agency” made the decision to move the children out of state. Id., 678; but cf. In the Matter of Miller, supra, 178 Or. App. 278-79 (holding that placement by court with grandparent, knowing that grandparent is moving out-of-state, requires compliance with interstate compact).

       We note that in the memorandum of decision on the motion to reargue, the court clarified that its decision to transfer guardianship to the great-grandmother did not rest on the previous approval of the intervenor. The court, therefore, implicitly rejected the argument raised by the intervenor.

       Although the nearly two year delay that occurred between the request for the study and actual receipt of the study, which occurred in September, 2009, was regrettable, we note that delays are not unusual in cases requiring interstate compact studies. “[SJerious concerns have been raised about the time it takes to complete the home study when placing children across state lines and the performance of state [interstate compact] offices, which oversee the process. Anecdotal evidence from child welfare professionals and [interstate compact] administrators alike has identified the time it takes to complete a home study and differing state law and policies as major concerns. In a 1999 study of [interstate compact] implementation conducted by the Office of the Inspector General, almost one-half of all respondents interviewed thought the process for obtaining a home study on an out-of-state resource is too lengthy . . . .” (Citation omitted.) American Public Human Services Association, Understanding Delays in the Interstate Home Study Process 2 (2002), available at http://icpc.aphsa.org/Home/Doc/ resources/home_study_report.pdf (last accessed April 22, 2010).


source: Caselaw Access Project

author: BISHOP, J.

license: Public Domain

text:
    D’ANGELO DEVELOPMENT AND CONSTRUCTION CORPORATION v. STEVEN P. CORDOVANO ET AL. SHARP COMPANY HOMES, INC. v. SARAH M. CORDOVANO ET AL.
    (AC 30151)
    Bishop, Gruendel and Beach, Js.

      Argued January 21
    officially released May 18, 2010

      Brendan J. O’Rourke, with whom, on the brief, were Jennifer M. McGrath and Marianne F. Murray, for the appellants-cross appellees (named defendant et al. in both cases).

      Richard E. Castiglioni, with whom, on the brief, was Jonathan J. Kelson, for the appellee-cross appellant (plaintiff in the first case).
   Opinion

BISHOP, J.

The defendants, Steven P. Cordovano and Sarah M. Cordovano (the Cordovanos), appeal from the judgments, following a trial to the court on two consolidated actions arising from a home construction contract, denying relief to all parties on all claims, counterclaims and cross claims. On appeal, the Cordovanos claim that the court improperly found that (1) they were not entitled to damages from the plaintiff D’Angelo Development and Construction Corporation (D’Angelo Development) for poor workmanship and material defects in the construction of their new home, (2) they failed to prove ascertainable losses in connection with their claim against D’Angelo Development under the Connecticut Unfair Trade Practices Act (CUTPA), and (3) with respect to the negligence claim, Leonard D’Angelo, Jr. (D’Angelo), individually, did not owe them a duty of care. On cross appeal, D’Angelo Development claims that the court improperly denied it recovery (1) pursuant to its claim for quantum meruit and (2) on its claims pursuant to two bonds that had been substituted for mechanic’s liens subject to foreclosure. We affirm the judgments of the trial court.

The following facts as found by the court, and procedural history as revealed by the record, are relevant to our resolution of the issues on appeal. In July, 2000, the Cordovanos sought out D’Angelo, the president and sole employee of D’Angelo Development, for the purpose of purchasing property located at 134 Highland Avenue, Norwalk. D’Angelo had planned to build a home on speculation on the property but agreed to sell the land to the Cordovanos on the condition that they retain D’Angelo Development to build a home for them on the property. D’Angelo and Steven Cordovano met five or six times to discuss the purchase and sale of the property prior to entering into a written agreement. D’Angelo represented that he had built many projects, including houses and shopping malls, and that he had experience working in his family’s real estate business. On October 30, 2000, the Cordovanos and D’Angelo Development closed on the sale of the real property and signed an agreement calling for D’Angelo Development to build a home for the Cordovanos at that location. At no time prior to the conveyance of the real property or execution of the construction contract did D’Angelo Development comply with applicable requirements of the New Home Construction Contractors Act (act).

With respect to the construction contract, counsel for the Cordovanos utilized a form contract from the American Institute of Architects (AIA contract). Under the AIA contract, D’Angelo Development was responsible for furnishing the materials and providing the labor necessary to build the new home, and, in return, the Cordovanos agreed to pay for the costs of the material and labor furnished by D’Angelo Development, in addition to a contractor’s fee equal to 20 percent of building and material costs.

The Cordovanos hired an architectural designer, William Scott Duffield, and his firm, Wilham Scott Duffield Architectural Design, to design their new home. Duf-field was not, nor had he ever been, an architect or an engineer licensed in Connecticut or any other state. Steven Cordovano was aware that Duffield was not an architect, but, nevertheless, on September 8, 2000, the Cordovanos entered into an architectural design contract with Duffield. Despite listing him in the contract as the architect for the project, the Cordovanos never requested that Duffield perform the duties, which, under the AIA contract, were to be done by the architect. Specifically, Duffield did not review and approve progress payment requests from D’Angelo Development. He did not approve the materials that were to be used on the project, nor did he approve any proposed changes to the materials. Additionally, Duffield was not consulted regarding the formulation of a budget for the project or in preparing a schedule of values, which allocated the entire project cost among the various portions of the work to be done. D’Angelo never inquired, nor was he told, that Duffield was not an architect or an engineer.

D’Angelo Development submitted the appropriate paperwork to obtain zoning approval, and construction began on the project in the first week of December, 2000. By that time Duffield had provided construction drawings, but they lacked essential particulars. His roof plan contained no dimension specifications, and his foundation plan did not provide the detail necessary to determine the proper placement of footing drains and expansion joints. D’Angelo Development, nevertheless, installed the footing drains and expansion joints, without specifications. Further, a site plan provided by Duf-field lacked information regarding dry wells, elevations, specifications for construction and specifications for driveway substrate. Duffield did not prepare a drainage study, did not include dry wells in his plans and did not consider the topography, soil conditions, grade or water at the project site. He, also, did not submit the drawings for the interior trim until more than one year after D’Angelo Development and the Cordovanos had signed their construction agreement.

Cordovano personally selected Quality Construction (Quality) to do the framing for the new home. It framed the first floor walls and ceilings and the second floor walls but did not complete the job because it encountered problems with the roof, which included plans for a tower. Quality left the project on or about March 15, 2001. Acting on Duffield’s recommendation, the Cordo-vanos entered into a contract with a second framing company, Sharp Company Homes, Inc. (Sharp), on April 5, 2001, to complete the framing for the project. Sharp did not show up to the construction site for three weeks and when it did arrive, it failed to provide a sufficient number of workers to do the job. Sharp was subsequently discharged by Steven Cordovano.

D’Angelo Development, next, recommended that the Cordovanos hire Jose Albert DaSilva to complete the framing work, to install interior and exterior trim, and to perform other carpentry work. DaSilva began work on the project on or about May 28, 2001, and quickly encountered problems with Duffield’s drawings. DaSi-lva took a number of steps, not called for in the specifications, in order to correct problems he perceived with the roof and tower.

In November, 2001, the Cordovanos moved into the home, even though the construction had not been completed and the certificate of occupancy had not yet been issued. In January, 2002, D’Angelo Development received a $100,000 payment from the Cordovanos, which was the last payment that it received. This payment was made in a lump sum, without an application for payment having been submitted by D’Angelo Development pursuant to the terms of the parties’ contract, and without any request from the Cordovanos that D’Angelo Development provide supporting details regarding the labor and materials. In February, 2002, the Cordovanos and D’Angelo met to discuss the outstanding balance claimed by D’Angelo Development but no further payments were made by the Cordovanos. D’Angelo Development ceased work on the project on May 6, 2002.

On June 10, 2002, the Cordovanos sent a letter to D’Angelo Development complaining about its work and including a list of claimed problems with the new home. The list did not contain a number of problems that were later alleged by the Cordovanos at the time of trial.

Over the course of the project, D’Angelo Development billed the Cordovanos a total of $1,217,523.31, of which the Cordovanos paid $1,015,727.77. D’Angelo Development maintained at trial that it was still owed $159,305.85 based on the terms of the parties’ contract. On July 31,2002, D’Angelo Development filed two certificates of mechanic’s liens with the town of Norwalk. The first lien was to secure a balance of $72,606.59, which D’Angelo Development claimed was due as part of its contractor’s fee under the AIA contract and for certain costs incurred under the agreement. The second was to secure $86,699.26, which D’Angelo Development claimed was due for unpaid costs for materials and services provided by its subcontractors under the agreement.

On July 21,2003, D’Angelo Development commenced an action against the Cordovanos alleging breach of contract and quantum meruit, and seeking foreclosure of the two mechanic’s liens. It also recorded two notices of lis pendens against the property on July 9, 2003. In response, the Cordovanos filed an answer, special defense and an eight count counterclaim.

Previously, in a complaint dated January 14, 2002, Sharp had set forth claims against the Cordovanos and D’Angelo. On November 6, 2003, the Cordovanos filed their answer, special defenses and a five count counterclaim against Sharp. On May 10, 2004, the Cordovanos filed an amended cross claim against D’Angelo in the action by Sharp. Sharp subsequently withdrew its complaint against all of the defendants, and a default was entered against it at the commencement of trial with regard to the Cordovanos’ counterclaim.

Following a hearing on the mechanic’s lien action, the court, Hon. William B. Lewis, judge trial referee, ordered that the two certificates of mechanic’s liens be deemed dissolved on the ground that Travelers Casualty & Surety Company of America (Travelers) had substituted appropriate bonds to cover the amount of the liens.

On November 15, 2004, D’Angelo Development filed its amended complaint in which it sought recovery on the ground of breach of contract and quantum meruit. This complaint also included claims against the Travelers’ bonds. In response, the Cordovanos filed an amended answer, special defenses and an eight count counterclaim. D’Angelo Development, in turn, filed an answer to the counterclaim denying its essential allegations and asserted special defenses. The cases, D’Angelo Development & Construction Corp. v. Cordovano, Superior Court, judicial district of Waterbury, Complex Litigation Docket, Docket No. X01-CV-03-4004190-S, and Sharp Company Homes, Inc. v. Cordovano, Superior Court, judicial district of Waterbury, Complex Litigation Docket, Docket No. X01-CV-024004186-S, were consolidated and tried before the court, Cremins, J., on various dates in July and September, 2007. The court found that both parties to the AIA contract, D’Angelo Development and the Cordovanos, breached the contract and that because there was a mutual breach, “none of the parties [were] entitled to enforce the AIA contract or any alternative claim related to the AIA contract.” This appeal and cross appeal followed. Additional facts will be set forth as necessary.

I

On appeal, the Cordovanos first claim that the court improperly concluded that they were not entitled to recover under their breach of contract claims due to a mutual breach of the AIA contract. Specifically, they claim that they should be entitled to damages because they did not commit a material breach of the contract but, rather, only neglected to enforce nonmaterial provisions of the contract meant for their own protection. We are not persuaded.

In its memorandum of decision, the court did not discuss the materiality of the various breaches of the AIA contract, nor did D’Angelo Development or the Cordovanos request an articulation from the court on the issue of materiality. Nevertheless, the court’s denial of the Cordovanos’ breach of contract claims implies that the court determined that their breaches were material and, as such, represented a bar to their recovery. Any other assumption by us on appeal would require a concomitant assumption that the court incorrectly applied the law to the facts it found. This we will not do. Thus, the question we face is whether the court properly determined that the Cordovanos had materially breached the AIA contract so as to prevent their recovery under its terms.

“The determination of whether a contract has been materially breached is a question of fact that is 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.” (Citations omitted; internal quotation marks omitted.) Efthimiou v. Smith, 268 Conn. 487, 493-94, 846 A.2d 216 (2004).

The following additional facts, as found by the court, are relevant to our review of the Cordovanos’ claim. Prior to the execution of the AIA contract, D’Angelo Development did not comply with the requirements under the act. Specifically, it did not provide the Cor-dovanos with a copy of a certificate of registration showing that it was a “new home construction contractor.” It also did not provide written notice advising the Cordovanos to (1) request a list of the last twelve customers for whom new homes were constructed by D’Angelo Development during the previous twenty-four months and contact those customers to discuss the quality of D’Angelo Development’s work, (2) discuss with D’Angelo Development whether it had a customer complaint policy and who would be the contact person in the event of a complaint, and (3) discuss with D’Angelo Development whether it would hold the Cor-dovanos harmless for work performed by any subcontractor hired by D’Angelo Development. Neither D’Angelo Development nor D’Angelo was registered properly as a new home construction contractor, and D’Angelo was not aware of the act or the registration requirements until days before the construction contract was executed.

Throughout the course of the project, the Cordovanos and D’Angelo Development ignored certain provisions of the AIA contract. At the time the AIA contract was executed, the Cordovanos paid the initial deposit as required by the ALA contract but failed to supply any construction drawings or specification books to D’Angelo Development as required by article 1 of the AIA contract. D’Angelo Development was responsible under the AIA contract to verify all measurements and was responsible for any corrections. Additionally, if supplementary drawings were needed, it was D’Angelo Development’s responsibility to make requests for those drawings before any work was done. It failed to fulfill these obligations and, also, never established a schedule of progress for the project, which was required by the AIA contract. Both D’Angelo and Steven Cordo-vano were aware that the AIA contract required that written change orders be submitted when the construction plans were developed and modified but neither D’Angelo Development nor the Cordovanos complied with the change order system as set out in the AIA contract. Also, the costs for changes were reimbursed, contravening article 8 of the AIA contract.

Additionally, even though the ALA contract contained a reference to a guaranteed maximum price, the parties never set such a price. Further, D’Angelo Development did not provide applications for payments, invoices, check vouchers or any evidence of disbursements as required under article 12 of the ALA contract. Likewise, the Cordovanos did not require that D’Angelo Development submit any such applications or other evidence of disbursements prior to making payments. Even though the AIA contract called for materials and labor to be furnished by D’Angelo Development, the Cordo-vanos directly contracted for and paid for many of these expenses without objection from D’Angelo Development. D’Angelo Development did not meet its obligations to solicit bids from subcontractors or to enter into written contracts with subcontractors, both of which were required under the AIA contract. The Cor-dovanos, also, did not require that any bids be solicited, nor did they require written contracts for subcontractors. D’Angelo Development did not keep adequate records of project expenses, despite the fact that D’Angelo knew the AIA contract required that detailed financial records be kept regarding such expenses.

The court also found that D’Angelo was aware of many of the problems that occurred during the course of the project and brought them to the attention of Duffield and Steven Cordovano. The court noted that D’Angelo would set up meetings with Duffield, who would review the conditions at the site and produce revised drawings so that D’Angelo Development and the subcontractors could continue to work. Steven Cor-dovano was a party to many of these discussions.

Upon review of the record, we find ample support for the court’s conclusion that the Cordovanos were not entitled to damages pursuant to the contract because of their failure to adhere to its terms. As the court set out at length in its memorandum of decision, the parties wholly ignored the AIA contract and failed to follow the system of checks and balances that it required. Despite contractual provisions to the contrary, change orders were never used, subcontractor work was performed without an adequate process for bidding the work, the accounting records were not maintained properly and the payment structure was ignored. Additionally, the payments were never approved by any third party architect; in fact, the “architect” listed under the contract, Duffield, was not, in fact, an architect. The court also noted that despite language in the rider to the AIA contract clearly providing that the owner could require “ ‘evidence reasonably satisfactory to [the] Owner’ ” as a condition precedent to the making of any payment, the Cordovanos did not request any such evidence until the project was very far along and problems had already developed. In sum, the evidence at trial provided ample support for the court’s conclusion that the parties operated outside of the contract, conducting their business as they pleased, and that it was only after things began to fall apart that the parties attempted to avail themselves of the protection of the contract that they had previously ignored. On the basis of the foregoing, we conclude that the court’s determination that the Cordovanos materially breached the AIA contract was not clearly erroneous.

II

The Cordovanos next claim that the court improperly determined that they could not recover damages pursuant to their CUTPA claim because they had failed to establish any ascertainable losses. Specifically, the Cor-dovanos claim that ascertainable losses were established through Steven Cordovano’s testimony that if D’Angelo Development had made the disclosures required under the act, they would not have hired D’Angelo Development and, thus, would not have suffered damages. We are not persuaded.

Our Supreme Court has previously explained that to prevail on a CUTPA claim, the plaintiff must prove, pursuant to General Statutes § 42-110b (a), that the defendant engaged in “unfair or deceptive acts or practices in the conduct of any trade or commerce” and that as a result of the use of the act or practice prohibited by § 42-110b (a), the plaintiff suffered an “ascertainable loss of money or property.” Neighborhood Builders v. Madison, 294 Conn. 651, 657, 986 A.2d 278 (2010). “The language ‘as a result of requires a showing that the prohibited act was the proximate cause of the harm to the [complaining party].” Abrahams v. Young & Rubicam, Inc., 240 Conn. 300, 306, 692 A.2d 709 (1997). “Whenever a consumer has received something other than what he bargained for, he has suffered a loss of money or property. That loss is ascertainable if it is measurable even though the precise amount of the loss is not known.” Hinchliffe v. American Motors Corp., 184 Conn. 607, 614, 440 A.2d 810 (1981). “Once a violation of the act has been established . . . our cases make clear that the homeowners still must prove that they have suffered an injury or actual loss in order to recover damages under CUTPA.” (Internal quotation marks omitted.) Campagnone v. Clark, 116 Conn. App. 622, 633, 978 A.2d 1115 (2009).

There is no dispute that by holding itself out as a new home construction contractor prior to obtaining a certificate of registration in accordance with General Statutes § 20-417b (a), and by not complying with the additional disclosure requirements prescribed by § 20-417d (a), D’Angelo Development committed a CUTPA violation as a matter of law. Thus, the only question we must address is whether the court properly determined that the Cordovanos failed to meet the second requirement for recovering damages under CUTPA, which is proof that they suffered an ascertainable loss as a result of D’Angelo Development’s CUTPA violation. We note that whether the Cordovanos suffered ascertainable losses as a result of D’Angelo Development’s CUTPA violation is a question of fact, which we review under the clearly erroneous standard. See A. Secondino & Son, Inc. v. LoRicco, 215 Conn. 336, 344, 576 A.2d 464 (1990)..

On the basis of the record, we conclude that the court’s finding that D’Angelo Development’s CUTPA violation was not the proximate cause of any ascertainable loss to the Cordovanos was not clearly erroneous. On appeal, the Cordovanos have failed to establish a causal link between the CUTPA violation and the damages they allege that they have suffered. It is noteworthy that because D’Angelo Development committed a per se violation of CUTPA, the Cordovanos were not required to prove the existence of any unfair or deceptive acts. See General Statutes § 20-417g. Furthermore, the record does not disclose any. The lack of any deception on the part of D’Angelo Development, however, is relevant to our determination of whether the court correctly determined that the Cordovanos did not suffer damages as a result of the CUTPA violation. Our careful review of the record reveals that the Cordovanos did not enter into an agreement with D’Angelo Development and work together with D’Angelo Development based on any acts of deception or unfairness by D’Angelo Development. Rather, the record is plain that the Cordovanos sought out D’Angelo with the intention of having D’Angelo Development build them a home. They were familiar with D’Angelo, as they lived in the same neighborhood as he did and had met with him on multiple occasions prior to the execution of the contract. There was no evidence to suggest that D’Angelo misled the Cordovanos as to his true identity or his professional experience or that he attempted to deceive them in any way. It is true that D’Angelo held D’Angelo Development out as a new home construction contractor despite not having a certificate of registration; however, D’Angelo Development did obtain the appropriate registration three days after the contract was signed and well before construction began on the project. Furthermore, there was no evidence, outside of Steven Cordovano’s own testimony, that had the Cordovanos known that D’Angelo Development did not have a certificate of registration, they would not have contracted with it. The Cordovanos were sophisticated consumers, having been involved in construction and renovation projects in the past, and sought out D’Angelo with the intent of contracting with him. It would require speculation to conclude that the Cordovanos would have acted differently had D’Angelo Development made the disclosures required by the act before the parties executed a written contract or even while construction was ongoing. In sum, even if we assume that the Cordo-vanos could show that they suffered some damages that arose from the ALA contract, because they failed to establish that those damages were a result of D’Angelo Development’s failure to provide the disclosures under the act, the court correctly determined that they failed to meet their burden of proving ascertainable losses as a consequence of the CUTPA violation. The court’s finding in this regard was not clearly erroneous.

Ill

The Cordovanos’ final claim is that the court improperly found, in relation to their negligence claim, that D’Angelo did not owe them a duty of care in his individual capacity. We disagree.

Whether the court properly determined that D’Angelo did not owe a duty of care to the Cordovanos is a question of law for which our review is plenary. See Watts v. Chittenden, 115 Conn. App. 404, 411, 972 A.2d 770, cert. granted on other grounds, 293 Conn. 932, 981 A.2d 1077 (2009).

“The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury. . . . Contained within the first element, duty, there are two distinct considerations. . . . First, it is necessary to determine the existence of a duty, and [second], if one is found, it is necessary to evaluate the scope of that duty.” (Internal quotation marks omitted.) LePage v. Horne, 262 Conn. 116, 123, 809 A.2d 505 (2002). “Although it has been said that no universal test for [duty] has ever been formulated . . . our threshold inquiry has always been whether the specific harm alleged by the plaintiff was foreseeable to the defendant. . . . Furthermore, [a] duty to use care may arise from a contract, from a statute, or from circumstances under which a reasonable person, knowing what he knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result from his act or failure to act.” (Citation omitted; internal quotation marks omitted.) Precision Mechanical Services, Inc. v. T.J. Pfund Associates, Inc., 109 Conn. App. 560, 564 n.4, 952 A.2d 818, cert. denied, 289 Conn. 940, 959 A.2d 1007 (2008). “Only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand. ... If a court determines, as a matter of law, that a defendant owes no duty to a plaintiff, the plaintiff cannot recover in negligence from the defendant.” (Internal quotation marks omitted.) Neff v. Johnson Memorial Hospital, 93 Conn. App. 534, 542, 889 A.2d 921 (2006).

The Cordovanos alleged in their cross claim in the action by Sharp that D’Angelo owed a duty to them to construct their new home in accordance with the architectural specifications and drawings, in a workmanlike manner and free from construction defects. The court subsequently concluded that the Cordovanos could not recover because they had failed to establish that D’Angelo owed them any such duty. The court based its determination on a trial court case, State v. Maximus, Inc., Superior Court, judicial district of Hartford, Docket No. CV-07-5015239-S (June 4, 2008). In Maximus, Inc., the plaintiff brought claims for breach of contract and for negligence. The defendant moved to strike the negligence claim on the ground that the complaint did not allege that the defendant breached any duty aside from its contractual duty. The court struck the negligence claim, finding that the plaintiff had failed to show that any duty was imposed on the defendant except for the duty to complete the contract properly.

The Cordovanos’ negligence claim arises out of the contract between the Cordovanos and D’Angelo Development. They claim that D’Angelo owed them a duty to construct their home according to the specifications, in a workmanlike manner and without defects. D’Angelo did not, however, contract with the Cordo-vanos to build their home. Prior to being sold, the property was in the name of D’Angelo Development, and it was sold by D’Angelo Development. The ALA contract was in the name of D’Angelo Development, and all of the payments made by the Cordovanos were made out to D’Angelo Development. D’Angelo signed the AIA contract on behalf of D’Angelo Development and supervised the project subject to his position as president of that corporation, but there was no evidence that he engaged in the project in his individual capacity. There is no question that a duty of care may arise out of a contract, but when the claim is brought against a defendant who is not a party to the contract, the duty must arise from something other than mere failure to perform properly under the contract.

In support of their negligence claim, the Cordovanos point to Scribner v. O’Brien, Inc., 169 Conn. 389, 363 A.2d 160 (1975), in which our Supreme Court found a defendant hable for negligence in his individual capacity despite his being an agent of a corporate entity. There, the court noted: “It is . . . true that an officer of a corporation does not incur personal liability for its torts merely because of his official position. Where, however, an agent or officer commits or participates in the commission of a tort, whether or not he acts on behalf of his principal or corporation, he is hable to third persons injured thereby.” Id., 404. The facts in Scribner, however, are distinguishable from those the trial court faced in the present case. In Scribner, the court found the defendant individually hable for acts committed in his individual capacity. Here, there is no evidence that any of the actions taken by D’Angelo were done in his individual as opposed to his corporate capacity. The Cor-dovanos have failed to show that D’Angelo owed them any duty in his individual capacity or that D’Angelo Development should be treated as the alter ego of D’Angelo. On the basis of the record before us, we do not conclude that D’Angelo owed the Cordovanos a duty of care in an individual capacity under the terms of the written contract between the Cordovanos and D’Angelo Development.

IV

On cross appeal, D’Angelo Development claims that the court improperly determined that it was not entitled to recover on its claim of quantum meruit. We conclude that the record is inadequate to review the plaintiffs claim in this regard.

In the court’s memorandum of decision, it concluded that “none of the parties [were] entitled to recover on any of their claims, counterclaims or cross claims . . . .” See footnote 2 of this opinion. It is clear from the court’s conclusion that D’Angelo Development’s claim for recovery for quantum meruit was denied. The court did not, however, explain the factual or legal basis for its decision. D’Angelo Development filed a motion for articulation of the court’s reasoning, dated August 27,2008, but the motion was denied. D’Angelo Development did not file a motion for review of the court’s denial of its motion for articulation.

“It is well established that [i]t is the appellant’s burden to provide an adequate record for review. ... It is, therefore, the responsibility of the appellant to move for an articulation or rectification of the record where the trial court has failed to state the basis of a decision . . . .” (Internal quotation marks omitted.) DuBaldo Electric, LLC v. Montagno Construction, Inc., 119 Conn. App. 423, 448, 988 A.2d 351 (2010); see also Practice Book § 61-10. “[W]here a party is dissatisfied with the trial court’s response to a motion for articulation, he may, and indeed under appropriate circumstances he must, seek immediate appeal of the rectification memorandum to this court via the motion for review.” (Internal quotation marks omitted.) Commission on Human Rights & Opportunities v. Brookstone Court, LLC, 107 Conn. App. 340, 353, 945 A.2d 548, cert. denied, 288 Conn. 907, 953 A.2d 651 (2008). The court’s memorandum of decision is devoid of any findings or analysis relating to the claim for quantum meruit, and the plaintiff has failed to present an adequate record for review. We can only assume from the court’s judgment denying all claims that it found that D’Angelo Development was not entitled to recover on the basis of quantum meruit. Because we do not, however, know the basis of the court’s determination, we are not in a position to assess its correctness. Nor can we say, from this record, that D’Angelo Development was entitled to this relief as a matter of law. Accordingly, we decline to review this claim.

V

D’Angelo Development, finally, claims on cross appeal that the court improperly concluded that it was not entitled to recover on its claims against the bonds that were substituted for the mechanic’s liens. We are not persuaded.

D’Angelo Development claims that the court incorrectly determined, based on the facts presented at trial, that it was not entitled to recover. “When . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Key Air, Inc. v. Commissioner of Revenue Services, 294 Conn. 225, 231, 983 A.2d 1 (2009).

It is relevant to our review to note that “[t]he purpose of the mechanic’s lien is to give one who furnishes materials or services the security of the building and land for the payment of his claim by making such claim a lien thereon . . . .” Intercity Development, LLC v. Andrade, 286 Conn. 177, 183, 942 A.2d 1028 (2008). “[I]n a foreclosure of a mechanic’s lien, a contractor is entitled to the value of the materials that it furnished or the services that it rendered in the construction of the project.” Intercity Development, LLC v. Andrade, 96 Conn. App. 608, 613, 901 A.2d 731 (2006), rev’d in part on other grounds, 286 Conn. 177, 178, 942 A.2d 1028 (2008), citing General Statutes § 49-33 (a). Thus, in order for D’Angelo Development to recover on the bonds, it had to prove that it was entitled to the amounts secured by the bonds for materials and services rendered.

Although the court did not specifically discuss the legal basis on which it denied the claims for recovery on the bonds, it is clear from the court’s memorandum of decision that it did not find a sufficient factual basis for such an award. In regard to the bond for $86,699.26, which represented the amount that D’Angelo Development claimed was due to various subcontractors, the court noted that D’Angelo testified at trial that no claims had been filed against D’Angelo Development by any of the subcontractors who had worked on the construction project in 2001 or 2002. The court also noted that at trial, although D’Angelo presented a spreadsheet listing the subcontractors and the corresponding total amounts that were due, he did not present any supporting materials to verify those amounts. Although D’Angelo claimed that he had statements and invoices to substantiate the amounts he claimed were owed to the subcontractors, on cross-examination, he was unable to produce any such evidence. Additionally, the court noted that D’Angelo Development produced no evidence that it possessed the authority to file the mechanic’s hen on behalf of the subcontractors or to pursue any claims on their behalf. It is clear from these facts that the court properly concluded that there was no factual basis on which to find that D’Angelo Development was entitled to recover on the bonds, which were to secure amounts allegedly owed to various subcontractors.

In regard to the bond for $72,606.59, which represented the amount D’Angelo Development claimed it was due for contractor’s fees pursuant to the AIA contract and for costs it incurred directly under the AIA contract, the court correctly determined that D’Angelo Development could not recover on the bond. After the court declined to enforce the terms of the ALA contract due to mutual breaches by the parties, its conclusion that D’Angelo Development was not entitled to contractor’s fees or costs arising from the AIA contract is logically and legally proper. Unable to enforce the provisions of the contract, D’Angelo Development had no basis for claiming entitlements based on the contract. Thus, we conclude that the court correctly declined to grant recovery on the bonds.

The judgments are affirmed.

In this opinion the other judges concurred.

       Also named as defendants were Travelers Casualty & Surety Company of America and William Scott Duffield. They are not parties to these appeals.

       The Cordovanos appeal from the judgment denying all claims, counterclaims and cross claims that were still outstanding. In a prior proceeding, Sharp Company Homes, Inc. v. Cordovano, Superior Court, judicial district of Waterbury, Complex litigation Docket, Docket No. X01-CV-02-4004186S, the court found in favor of the Cordovanos on their counterclaims against Sharp Company Homes, Inc. The Cordovanos were awarded $125,718.48 in damages.

       See General Statutes § 42-110a et seq.

       D’Angelo was named as a defendant in his individual capacity in an action initiated by Sharp Company Homes, Inc. See Sharp Company Homes, Inc. v. Cordovano, Superior Court, judicial district of Waterbury, Complex Litigation Docket, Docket No. X01-CV-02-4004186-S. In that action, the Cordovanos brought a cross claim against D’Angelo on a theory of negligence. The action by Sharp Company Homes, Inc., was later consolidated with the action initiated by D’Angelo Development. See D’Angelo Development & Construction Corp. v. Cordovano, Superior Court, judicial district of Waterbury, Complex Litigation Docket, Docket No. X01-CV-03-4004190-S. On February 9, 2007, Sharp Company Homes, Inc., withdrew its complaint against all of the defendants, and a default was entered against it with regard to the counterclaim filed by the Cordovanos. The claim before this court that relates to D’Angelo’s duty of care, or lack thereof, stems from the Cordovanos’ cross claim in the action by Sharp Company Homes, Inc.

       See General Statutes § 20-417a et seq. The act was originally adopted as Public Acts 1999, No. 99-246, subsequently codified as General Statutes § 20-417a et seq. At the time in question, Public Acts 1999, No. 99-246, § 4, as amended by Public Acts 2000, No. 00-132, § 4, subsequently codified as General Statutes (Rev. to 2001) § 20-417d, provided in relevant part: “(a) A new home construction contractor shall (1) prior to entering into a contract with a consumer for new home construction, provide to the consumer a copy of the new home construction contractor’s certificate of registration and a written notice that . . . (C) advises the consumer to request from such contractor a list of consumers of the last twelve new homes constructed to completion by the contractor during the previous twenty-four months, or if the contractor has not constructed at least twelve new homes to completion during the previous twenty-four months, then a list of all consumers for whom the contractor has constructed a new home to completion during the previous twenty-four months, and to contact several individuals on the list to discuss the quality of such contractor’s new home construction work ....
      “(c) The written notice required in subsection (a) of this section shall be in capital letters . . . and may include a statement in substantially the following form . . .
      “IN ADDITION, YOU ARE ADVISED TO DISCUSS WITH THE NEW HOME CONSTRUCTION CONTRACTOR:
      “(1) WHETHER THE CONTRACTOR HAS A CUSTOMER SERVICE POLICY AND IF SO, THE IDENTITY OF THE PERSON DESIGNATED TO ASSIST YOU IN RESOLVING ANY COMPLAINT ABOUT THE CONTRACTOR’S WORK, AND “(2) WHETHER THE CONTRACTOR WILL HOLD YOU HARMLESS FOR WORK PERFORMED BY ANY SUBCONTRACTOR HIRED BY THE CONTRACTOR

       This type of contract arrangement is referred to as a “cost-plus” agreement.

       D’Angelo also signed the contract as “Builder” on behalf of D’Angelo Development.

       The certificate of occupancy was issued by the Norwalk building department on June 18, 2002.

       At trial, the Cordovanos complained of loose Sheelrock tape, wiggling toilets, scalding hot water from the pot filler and a flood in the kitchen, none of which were alleged in the June 10, 2002 letter.

       Both of the mechanic’s liens were duly recorded in the Norwalk land records and notice was served on the Cordovanos.

       See footnote 4 of this opinion.

       See footnote 2 of this opinion, noting that the Cordovanos were awarded $125,718.48 in damages pursuant to their counterclaim against Sharp.

       The mechanic’s lien release bond no. 103986495 was for the sum of $72,606.59. Bond no. 104130417 was in the amount of $86,699.26. The Cordovanos attempted to void the land contract and the AIA contract by filing an application to have the lien underlying the bond no. 104130417 declared invalid on the ground that D’Angelo Development violated the act. The trial court, Hiller, J., denied the application and sustained the validity of the lien on the ground that the violations of the act did not relieve the Cordovanos of their contractual obligations. The Cordovanos appealed from the decision, and the Supreme Court affirmed the judgment of the trial court. D’Angelo Development & Construction Co. v. Cordovano, 278 Conn. 237, 897 A.2d 81 (2006).

       See footnote 5 of this opinion.

       D’Angelo Development did, apparently, receive its certificate of registration on November 2, 2000, three days after the AIA contract was executed.

       In one instance, Steven Cordovano decided, after construction was underway, that he wanted a full basement throughout the building rather than the previously planned, full and partial basement. No revised plans were provided for this change, and D’Angelo Development made the change without requiring that adequate plans be drawn up. It also did not request that a written change order be submitted, despite the fact that the AIA contract stated that it was D’Angelo Development’s responsibility to request such a written change order.

       The land sale contract had an attachment, schedule E, that gave a preliminary estimate of $578,700. That price was set, however, before Duffield had submitted any drawings for the construction plan.

       The Cordovanos directly paid for appliances, kitchen cabinets, bath vanities, faucets, fixtures, tile and marble materials, landscaping, railings, a garage door and an underground sprinkler. Additionally, they directly hired a mason, who did work in their kitchen, an exterior painter, an electric company and a pizza oven manufacturer and installer.

       This was particularly important because D’Angelo Development was being paid under a “cost-plus” arrangement; see footnote 6 of this opinion; and, therefore, did not have the same incentive to control costs as would likely be the case with a fixed price arrangement.

       Specifically, the parties did not abide by § 12.1.7 of the AIA contract, which provided a 0 percent retainage in regard to the contractor’s fee, nor § 12.1.8, which required not less than 5 percent retainage for the subcontractors.

       General Statutes § 42-110b (a) provides: “No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.”

       General Statutes § 42-110g (a) provides in relevant part: “Any person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42-110b, may bring an action in the judicial district in which the plaintiff or defendant resides or has his principal place of business or is doing business, to recover actual damages. . . .”

       General Statutes § 20-417g provides: “A violation of any of the provisions of sections 20-417ato 20-417j, inclusive, shall be deemed an unfair or deceptive trade practice under subsection (a) of section 42-110b.” Although § 20-417g was amended in 2006, that amendment has no bearing on this appeal. For convenience, we therefore refer to the current revision of § 20-417g.

       D’Angelo Development had been licensed by the state as a home improvement contractor since 1995.

       Additionally, the Cordovanos did not attempt to pierce the corporate veil.

       General Statutes § 49-37 (a) provides in relevant part: “Whenever a bond is substituted for any lien after an action for the foreclosure of a hen has been commenced, the plaintiff in the foreclosure may amend his complaint, without costs, so as to make the action one upon the bond with which the plaintiff may join an action to recover upon his claim. . . .”