author: Callahan, J.

text:
    Pamela Barone Speed, Executrix (Estate of Mildred F. Barone) v. Anthony F. DeLibero et al.
    (13786)
    Peters, C. J., Shea, Callahan, Covello and Hull, Js.
    Argued March 6
    decision released June 12, 1990

      Arnold J. Bai, with whom were Madonna A. Sacco and, on the brief, Garie J. Mulcahey, for the appellants (defendants).

      Christopher D. Bernard, with whom, on the brief, was Richard A. Fuchs, for the appellee (plaintiff).
   Callahan, J.

The sole issue in this appeal is whether the Appellate Court correctly determined that a new trial was necessary because of juror misconduct. The plaintiff, Pamela Barone Speed, executrix of the estate of Mildred F. Barone, brought a wrongful death action against the defendants Anthony F. DeLibero, a physician, and Anthony F. DeLibero, M.D., P.C. On December 29,1987, the jury returned a verdict in favor of the defendants. The plaintiff filed motions for a mistrial and in arrest of judgment on the basis of juror misconduct. The trial court denied both motions and rendered judgment for the defendants. The plaintiff appealed to the Appellate Court. The Appellate Court concluded that the trial court should have granted the plaintiff’s motion for a mistrial and motion in arrest of judgment. The Appellate Court accordingly set aside the judgment for the defendants and remanded the case for a new trial. Speed v. DeLibero, 19 Conn. App. 95, 103, 561 A.2d 959 (1989) (Stoughton, J., dissenting). We granted certification to appeal limited to the following issue: “Did the Appellate Court err in concluding that the [plaintiff] had demonstrated as a matter of law that juror misconduct had probably prejudiced [her] and that a new trial was necessary?” We answer that question in the affirmative and therefore reverse the decision of the Appellate Court.

The record reflects the following relevant facts. On December 22, 1987, the jury began its deliberations. Around noon on the next day, it sent two notes to the court. In the first, the jury asked the court to replay “Dr. DeLibero’s testimony during cross-examination by Mr. Fuchs regarding the monitoring of the patient’s blood pressure and pulse during the procedure.” The second note requested the court to clarify whether the jury had to arrive at a unanimous decision on each paragraph of the plaintiff’s complaint in order to reach a unanimous verdict. The trial court informed the jury that DeLibero’s testimony would be replayed after lunch and that, thereafter, the jury would be excused for the remainder of the day. The second question regarding unanimity, the court told the jury, would be answered the following day which was Christmas Eve, and the jury would thereafter resume deliberations.

When the court reconvened at 2 p.m., another note was handed to the court. The note stated: “We amend our previous request regarding Dr. DeLibero’s testimony to limit the testimony to that presented when Mr. Fuchs questioned on the blackboard the time discrepancy regarding monitoring of the patient’s blood pressure. We wish to hear the doctor’s answer to this only. Also, we wish to remain in deliberation after this testimony today until 5:00 p.m.” Upon inquiry, the trial court learned that four of the jurors had drafted the note during the lunch hour, outside the jury room and in the absence of two of the jurors.

The trial court reminded the jury that deliberations were to be conducted only in the jury room when all of the jurors were present. The court then observed that the amended request “suggests that you are feeling some time constraints with respect to reaching a decision.” In an effort to alleviate any time pressures the jurors might have had because of having to deliberate on Christmas Eve, the court decided at that time to excuse the jurors until the Monday following Christmas. Before doing so, the court emphasized to the jurors that they were not to recommence deliberations until the court answered their requests for information.

The jury foreman then interjected that the jury did not intend that the unanimity question be complicated; he stated that they “just wanted reconfirmation” of their understanding that they had to render a unanimous decision on each paragraph of the complaint. The foreman also stated that although the lunchtime note was not formulated in the presence of all of the jurors, they were all notified of it and everyone was in agreement. Thereafter, in the absence of the jury, both the plaintiff and the defendants moved for a mistrial because of improper deliberations by the four jurors outside the jury room without the presence of the other jurors.

The trial court, subsequent to the motions for a mistrial, recalled the jury and questioned the foreman. In response to the court’s inquiries, the foreman stated that when the four jurors formulated the note, they had not discussed any of the “evidence.” He said that their lunchtime conversation related solely to limiting their request to just one portion of the testimony and the fact that they wanted to continue deliberating until the end of the day.

After the court excused the jury, it rendered its decision denying the parties’ motions for a mistrial. The court concluded that the substance of the discussion of the four jurors “was limited largely, if not exclusively, to procedural problems” and did not involve substantive discussion of the evidence,. The court also found that while the jury obviously felt time constraints because of the Christmas holiday, that concern had been removed when further deliberations were postponed until the Monday after Christmas. When the jury reconvened after Christmas, the court, ignoring the request that only limited testimony be replayed, played back the entire testimony originally requested and answered the unanimity question.

There is no disagreement concerning the fact that the four jurors violated the trial court’s instructions and conducted at least enough discussion concerning the case outside of the jury room, at a time when some of the jurors were not present, to revise the jury’s original request for the testimony to be replayed. Nevertheless, not every instance of juror misconduct requires a new trial. Williams v. Salamone, 192 Conn. 116, 122, 470 A.2d 694 (1984); Hamill v. Neikind, 171 Conn. 357, 360, 370 A.2d 959 (1976); Pettibone v. Phelps, 13 Conn. 445, 450 (1840). “To deprive a party of a verdict, which he may have honestly obtained, after a protracted and expensive litigation, merely because a juror may have improperly spoken . . . when he could have received no benefit from that act of the juror, and his opponent no injury, would seem hardly compatible with a due administration of justice.” Pettibone v. Phelps, supra, 451.

“ ‘The rule, long ago enunciated by this court, is that “if it does not appear that [the juror misconduct in question] was occasioned by the prevailing party, or any one in his behalf; if it do[es] not indicate any improper bias upon the juror’s mind, and [if] the court cannot see, that it either had, or might have had, an effect unfavourable to the party moving for a new trial; the verdict ought not to be set aside.” ’ Bernier v. National Fence Co., 176 Conn. 622, 628, 410 A.2d 1007 (1979), quoting Pettibone v. Phelps, [supra, 450].” Williams v. Salamone, supra, 119. Rather “[t]he burden is on the moving party in a civil proceeding to establish that juror misconduct denied him a fair trial. See Bernier v. National Fence Co., supra; Hamill v. Neikind, supra; Pettibone v. Phelps, supra.” Id., 120. “To impose the burden of establishing the validity of the verdict on the prevailing party where he did not bring about the impropriety would be contrary to our sense of justice and fair play. We continue to adhere to the rule that, absent misconduct brought about by the prevailing party, the burden is on the complainant to show prejudice.” Id., 120-21. That burden requires the moving party to demonstrate that the juror misconduct complained of resulted in probable prejudice to the moving party. Id., 121-22.

The plaintiff argues that she suffered probable prejudice and was denied a fair trial in this case because the circumstances are such that it would have been impossible for the four jurors to have drafted the note as they did without having first discussed the evidence among themselves during the luncheon recess. In support of her contention, the plaintiff cites the instructions in which the court “urged” the jury to make any requests to have testimony replayed as specific as possible “because it will aid us and you in focusing [on] what it is you really are concerned about, without the necessity of playing more of the tape than is really needed.” The plaintiff maintains that if it is presumed that the jurors followed the court’s instructions; State v. Washington, 182 Conn. 419, 429, 438 A.2d 1144 (1980); then the trial court should have concluded that the four jurors discussed the substantive evidence at the time that they composed the note revising the request for testimony they wished to have replayed. Otherwise the jurors could not have arrived at a consensus on the testimony they desired repeated. The trial court, the plaintiff urges, was therefore required to declare a mistrial. We disagree.

The trial court was in the best position to evaluate the testimony given by the foreman of the jury and the impact of any alleged juror misconduct on the fairness of the trial. State v. Rodriguez, 210 Conn. 315, 326, 554 A.2d 1080 (1989); State v. Cubano, 203 Conn. 81, 92, 523 A.2d 495 (1987). The trial court must assess the credibility of testimony and the weight to be accorded to that testimony. McNamee v. Woodbury Congrega tion of Jehovah’s Witnesses, 194 Conn. 645, 648, 484 A.2d 940 (1984). “It is not for us to question that court’s findings absent a showing of clear error.” Id. We allow the trial court wide discretion in deciding mistrial motions and “the trial court’s determination will be reversed only where it can fairly be said that it abused its discretion” in denying the motion. State v. Rodriguez, supra, 326; State v. McCall, 187 Conn. 73, 77-78, 444 A.2d 896 (1982); Bernier v. National Fence Co., supra, 628; William Carver Co. v. Poos Bros., Inc., 778 S.W.2d 684, 688 (Mo. App. 1989); see Pisel v. Stamford Hospital, 180 Conn. 314, 322, 430 A.2d 1 (1980).

When the court asked the foreman whether the conversation at lunch involved discussion of any of the “evidence” presented in the case, the foreman answered in the negative. The trial court accepted, was satisfied with, and acted upon this response. A reviewing court cannot, on appeal, speculate on what the jurors may have discussed and then speculate that the discussion probably prejudiced the plaintiff. To reach such a conclusion without support in the record would be unfair to the defendants. We agree with the dissenter that the majority opinion of the Appellate Court does rest upon speculation in this instance.

The plaintiff also claims that she was prejudiced because the “note by the four jurors impliedly withdrew the legal question concerning unanimity raised in the earlier note.” She claims, consequently, that the discussions must have been of substance because they eliminated the need for information that had earlier been requested. The trial court, however, gave no indication that the unanimity question had been withdrawn and the court ultimately responded to it. Moreover, no request was made by any juror to withdraw the unanimity question and the lunchtime note makes no such request. This claim of the plaintiff is without merit.

Under the circumstances of this case, the plaintiff has failed to sustain her burden of showing probable prejudice. Consequently, we conclude that the Appellate Court mistakenly determined that the trial court had abused its discretion by denying the plaintiff's motions for a mistrial and in arrest of judgment.

The judgment of the Appellate Court is reversed and the case is remanded to that court for resolution of remaining issues.

In this opinion the other justices concurred.

       The plaintiffs motion for a mistrial was made during jury deliberations. The motion in arrest of judgment was made after the jury had returned its verdict.

       Both the motion for a mistrial and the motion in arrest of judgment were made on the basis of juror misconduct. Consequently, the Appellate Court considered both motions to present one claim. We will do likewise.

       The trial judge reminded the jury that “tomorrow’s Christmas Eve. So no matter what, we’re going to suspend at noon.”

       The record reflects that the foreman had attempted to deliver the note to the sheriff before the jury reconvened. The sheriff refused to accept the note until the entire jury reassembled.

       The foreman told the court that the note was presented to the fifth juror before it was presented to the sheriff, and the sixth juror was informed of it when he arrived, and that both agreed with it.

       The following colloquy occurred:
      “The Court: Mr. Botten, at your luncheon meeting where the four of you had lunch together, was there any discussion of the case other than whether or not you wanted to have all the testimony read?
      “James Botten [foreman]: That was the only discussion we—
      “The Court: What about the determination expressed that you would like to continue until 5:00 p.m.?
      “James Botten: That was discussed partially during that period also.
      “The Court: Anything discussed about the evidence itself or anything like that?
      “James Botten: No, we did not discuss any—any of the evidence. Just the fact that we wanted to just hear that one portion of the testimony and that we want to continue because we thought that it would be a shorter testimony and we would therefore just like to continue until the end of the day.”

       The plaintiff also briefed alternative grounds for the affirmance of the Appellate Court’s decision. We decline to review anything other than the certified issue.


source: Caselaw Access Project

author: Peters, C. J. Shea, J.,

license: Public Domain

text:
    Barrett Builders v. Rhoda Miller
    (13816)
    Peters, C. J., Shea, Callahan, Glass, Covello, Hull and Santaniello, Js.
    Argued February 6 and May 1
    decision released June 12, 1990

      Santo M. Matarazzo, for the appellant (plaintiff).

      Richard M. Leibert, for the appellee (defendant).
   Peters, C. J.

The sole issue in this appeal is whether a contractor who has failed to comply with the requirements of the Home Improvement Act; General Statutes § 20-418 et seq.; can nonetheless recover in quasi contract by demonstrating unjust enrichment on the part of the homeowner for whom the contractor has performed work. The plaintiff, Barrett Builders, brought an action in three counts against the defendant, Rhoda Miller, alleging its right to recover for the value of goods and services represented by home improvements at the defendant’s home. The plaintiff has not pressed the first and third counts, alleging breach of contract and recovery on a dishonored check. On the second count, sounding in quasi contract, the trial court ruled in favor of the defendant on her motion for summary judgment and subsequently rendered judgment in her favor. We transferred to this court, pursuant to Practice Book § 4023, the plaintiff’s appeal from the adverse judgment on count two of its complaint and now affirm the judgment of the trial court.

The plaintiffs complaint reveals the following. The parties entered into a written contract on March 24, 1988, for the acquisition and installation of kitchen cabinets and counter tops at the defendant’s home. The contract defined the work to be done as ripping out old cabinets and tops and installing new ones, without providing any specification of size, materials or construction detail. It indicated no date for performance. It did specify, however, that the total contract price of $9783 would be payable in three installments, a one third down payment, another one third payment upon installation of the cabinets, and the remaining one third when the work was completed.

The plaintiff received the down payment as agreed. After it had begun work at the defendant’s home on May 1, 1988, it received, on May 9, 1988, a check for the second installment in the amount of $3390. When the plaintiff discovered that the defendant had stopped payment on this check, the plaintiff stopped his work. The plaintiff alleged that the work was substantially completed at that time. The plaintiff claimed, in count two of its complaint, that the reasonable value of his labor and materials was $6783, the amount unpaid under the contract.

The defendant’s answer and special defenses alleged, inter alia, that the plaintiff had failed to provide the defendant with a written contract containing the entire agreement, as required by General Statutes § 20-429.* * The defendant also alleged, in her counterclaim, that the cabinets installed by the plaintiff were inferior to the samples provided at the time of the contract negotiation.

The trial court did not address the underlying factual dispute between the parties in its memorandum of decision on the defendant’s motion for summary judgment. It noted that the plaintiff had admitted that its contract with the defendant was unenforceable under § 20-429. Relying on the ruling of the Appellate Court in Sidney v. DeVries, 18 Conn. App. 581, 588-89, 559 A.2d 1145 (1989), the court concluded that the statute precluded a quantum meruit theory of recovery even as an implied exception to the requirement that home improvement contracts be in writing. It accordingly granted the defendant’s motion for summary judgment.

The issue in this appeal is whether the trial court’s ruling in favor of the defendant homeowner mistakenly interpreted § 20-429 to bar recovery in quasi contract for home improvements when the contractor has failed to comply with the statute’s written contract requirement. The plaintiff contractor contends that there is no indication, either in the express language of the statute or in the legislative history of its enactment, that the legislature intended the Home Improvement Act to preclude its restitutionary cause of action. Since it would have been able to resort to these theories of recovery at common law, the plaintiff argues that the statute should not be construed to abrogate those remedies in the absence of a clear legislative mandate. We are not persuaded.

The starting point for our analysis is Caulkins v. Petrillo, 200 Conn. 713, 513 A.2d 43 (1986), in which we considered the ability of a contractor who has failed to comply with § 20-429 to recover for completed home improvements. In Caulkins, we rejected the contractor’s argument that we should imply an exception to the written contract requirement of the Home Improvement Act, analogous to the law allowing recovery for partial or full performance under an oral contract unenforceable under the statute of frauds, when the contractor has fully performed its obligations under the agreement. Id., 718-19. After reviewing the language of the statute and its legislative history, we held that the provisions of § 20-429 are mandatory rather than permissive, and concluded that, in contrast to the statute of frauds, the Home Improvement Act “does not provide an exception to the requirement that home improvement contracts be in writing.” Id., 717-18.

The plaintiff nonetheless maintains that our conclusion in Caulkins is not dispositive of the issue in this appeal. According to the plaintiff, Caulkins held only that an oral contract for home improvements is unenforceable notwithstanding partial or full performance of the contractor’s obligations. That holding, it argues, does not address the availability of recovery in quasi contract, a cause of action that does not depend upon the existence of a valid agreement. In support of this contention, the plaintiff emphasizes that the statute provides only that “[n]o home improvement contract shall be valid unless it is in writing . . . . ” (Emphasis added.) General Statutes § 20-429 (a) (1). The plaintiff argues that the statute’s specific reference to the invalidity of the “contract,” in conjunction with the legislature’s use of broader language precluding “any action” in the case of the statute governing real estate brokers; General Statutes § 20-325a (a); compels the conclusion that the Home Improvement Act does not bar recovery in quasi contract.

While it is true that the contractor in Caulkins argued only that he should be permitted recovery under a theory analogous to the law governing the statute of frauds, and that we therefore did not specifically address the availability of recovery in quasi contract, the difference between those theories of recovery is insignificant for the purposes of the Home Improvement Act. Recovery for partial or full performance of a contract that is unenforceable under the statute of frauds is based upon principles of restitution. See 3 Restatement (Second), Contracts § 375 (1981); Restatement, Restitution § 108 (d) (1937); 2 G. Palmer, Law of Restitution (1978) § 6.1, pp. 2-3, and § 6.4, pp. 29-32. “It is hornbook law that a party whose agreement is unenforceable under the Statute of Frauds or because of indefiniteness is generally entitled to restitution.” Montanaro Bros. Builders, Inc. v. Snow, 190 Conn. 481, 488, 460 A.2d 1297 (1983). The plaintiffs quasi contract claim in this case is likewise restitutionary. Burns v. Koellmer, 11 Conn. App. 375, 384, 527 A.2d 1210 (1987); G. Palmer, “History of Restitution in Anglo-American Law,” c. 3, vol. X, Restitution—Unjust Enrichment and Negotiorum Gestio, International Encyclopedia of Comparative Law (P. Schlechtriem Chief Ed.) pp. 32-33 (1989). Neither form of recovery is an action on the contract. See 1 Restatement (Second), Contracts § 141, comment (a) (1981). Our conclusion in Caulkins that the legislature “intended no exceptions” to the written contract requirement, even for restitution when a contractor has fully performed its obligations under the invalid agreement, thus applies with equal force to the plaintiffs claim for quasi contractual recovery in this case.

Furthermore, it is no answer that the Home Improvement Act does not explicitly preclude quasi contract remedies. While the legislature has employed broader language in the real estate broker’s statute, that statute encompasses commercial as well as consumer transactions. Moreover, the legislature has also on occasion been explicit in its desire to preserve common law remedies. The parental liability statute, for example, provides that “[t]he liability provided for in this section shall be in addition to and not in lieu of any other liability which may exist at law.” General Statutes § 52-572 (c). The fact that the legislature did not use the “any action” terminology of the real estate broker’s statute is thus not conclusive of the issue.

It bears emphasis that the Home Improvement Act “was passed for the protection of the public.” Caulkins v. Petrillo, supra, 720. As we have consistently reaffirmed, remedial legislation must be construed liberally; Mack Financial Corporation v. Crossley, 209 Conn. 163, 166, 550 A.2d 303 (1988); Borzencki v. Estate of Stakum, 195 Conn. 368, 383, 489 A.2d 341 (1985); Heslin v. Connecticut Law Clinic of Trantolo & Trantolo, 190 Conn. 510, 520, 461 A.2d 938 (1983); and we have likewise held that the construction of consumer protection statutes is not limited by the rule that statutes in derogation of the common law must be strictly construed. Rhodes v. Hartford, 201 Conn. 89, 95, 513 A.2d 124 (1986). We therefore conclude that our decision in Caulkins that the written contract requirement of the Home Improvement Act is without exception applies also to the claims asserted in this appeal.

Even if we were to reexamine our decision in Caulkins, the arguments for recovery in quasi contract are unpersuasive. Connecticut law has long recognized that restitution is not available for performance rendered pursuant to a contract that is unenforceable on public policy grounds. McKnight v. Gizze, 119 Conn. 251, 256, 175 A. 676 (1934); DiBiase v. Garnsey, 103 Conn. 21, 25-28, 130 A. 81 (1925); Phalen v. Clark, 19 Conn. 421, 432 (1849); Design Development, Inc. v. Brignole, 20 Conn. App. 685, 688-89, 570 A.2d 221 (1990); Burns v. Koellmer, supra, 379; see also 2 Restatement (Second), Contracts § 197 (1981). As long ago as 1849, this court stated that if a plaintiff cannot support his claim “without relying upon an unlawful agreement between himself and the defendant, he must fail.” Phalen v. Clark, supra. Moreover, in a case strikingly similar to the present appeal, this court concluded, sixty-five years ago, that a mechanic who had failed to comply with a statute requiring written authorization before proceeding with proposed automobile repairs in excess of $50 could not recover for his repairs. DiBiase v. Garnsey, supra, 28.

We also note that courts in other states have held that a contractor who has failed to comply with the licensure requirements of a home improvement statute is barred from all recovery, contractual as well as quasi contractual, despite the lack of any provisions in those statutes concerning the ability of a nonconforming contractor to recover for its work. Harry Berenter, Inc. v. Berman, 258 Md. 290, 293, 265 A.2d 759 (1970); Chosen Construction Corporation v. Syz, 138 App. Div. 2d 284, 285, 525 N.Y.S.2d 848 (1988); Mortise v. Liberty Owners Corporation, 102 App. Div. 2d 719, 720, 477 N.Y.S.2d 2, aff'd, 63 N.Y.2d 743, 469 N.E.2d 529, 480 N.Y.S.2d 208 (1984). Underlying these decisions is the principle that a person who does not comply with the statutory requirements “will not be given the assistance of the courts in enforcing contracts vdthin the provisions of the regulatory statute because such enforcement is against public policy”; Harry Berenter, Inc. v. Berman, supra, 293; and that, “[t]o permit a recovery on a quantum meruit would defeat and nullify the statute.” Id., 296.

We do not agree with the plaintiffs contention that fairness requires that we allow recovery in quasi contract when a contractor is unable to seek damages for breach of contract. The plaintiff argues that a homeowner is unjustly enriched if allowed to reap the benefits of home improvements without making restitution for those benefits. Furthermore, it argues, the objective of the statute in protecting consumers from shoddy workmanship would not be hindered by allowing restitution, since the homeowner would pay only for the improvements actually received.

This argument ignores the concern that we expressed in Caulkins that, if recovery is permitted despite the fact that the underlying home improvement contract is invalid, a contractor could unilaterally expand the scope of the project beyond the contemplation of the invalid agreement, without the homeowner’s consent, and recover for the unwanted work. As we stated in Caulkins, “if a home improvement contractor could, without a written contract, perform certain work and then allege an oral agreement for precisely the same work alleged to have been fully performed, the purpose and clear intent of § 20-429 would be thwarted.” Caulkins v. Petrillo, supra, 720. The remedial purpose of § 20-429 would be placed in even greater jeopardy if a contractor could recover by merely demonstrating that services had been rendered, without even alleging that there was some sort of agreement for the work.

The facts of this case illustrate that the legislature could legitimately have determined that a home improvement contract “in writing and . . . [containing] the entire agreement between the owner and the contractor,” as § 20-429 (a) requires, serves salutory evidentiary and cautionary policies in consumer protection. The skeletonic written agreement, executed on the plaintiffs form, provides nothing to indicate whether the parties contemplated that the defendant was to receive solid core kitchen cabinets, as she alleged, or hollow core cabinets, as the plaintiff apparently supplied. Reading this incomplete agreement, the defendant would not have had warning about the juridical risk of contradictory evidence to which she was being exposed. Without further specifications, she would not have been able to consider, in the interim before the work was begun, whether she had entered into a reasonable, competitively priced bargain. Given the history of continued consumer complaints about home improvement contracts, we are persuaded that strict compliance with the mandate of the statute is inconsistent with permitting recovery in quasi contract.

We recognize that our decision may lead to a harsh result where a contractor in good faith but in ignorance of the law performs valuable home improvements without complying with § 20-429. We are unpersuaded that this deficiency in the statute is within our power to remedy. Clearly, the legislature is entitled, in the first instance, to impose the burden of compliance with the statute on the professional, the contractor, rather than on the nonprofessional, the consumer. Viewing the continued incidence of complaints about home improvement contractors, the legislature could legitimately view as more urgent the need to protect consumers from unscrupulous contractors than the need to protect innocent contractors from manipulative consumers.

This case illuminates an additional problem that recovery in quasi contract in disregard of § 20-429 poses. It is evident that the objective of the Home Improvement Act is not only to protect homeowners from substandard work, but also to ensure that homeowners are able to make an informed choice on a decision that has potentially significant financial consequences. As one legislator commented, the statute seeks to promote “the right of the consumers to some understanding, some protection.” (Emphasis added.) 22 S. Proc., Pt. 17,1979 Sess., p. 5797, remarks of Senator Audrey P. Beck. By requiring that home improvement contracts be reduced to a writing containing the entire agreement, § 20-429 serves to enlighten the homeowner as to the precise nature, scope and cost of the proposed project, and thereby to caution against improvident use of family resources.

From this perspective, there is not a good fit between the policy of the statute and any readily available measure of recovery in quasi contract. The plaintiffs complaint suggests that the value of its goods and services, even though incomplete, is precisely the amount of the unpaid contract price. That measure is surely inappropriate. As a minimum, the import of § 20-429 is that the defendant was privileged, in the absence of an allegation of bad faith, to repudiate an agreement in violation of the statute. Since it is only an unwarranted repudiation that permits a party to recover the reasonable value of the services rendered in an action in quantum meruit; Rossetti v. New Britain, 163 Conn. 283, 292, 303 A.2d 714 (1972); the plaintiff is not entitled to that measure here. Alternatively, the plaintiff might conceivably retreat to a measure of damages, according to the principles of unjust enrichment, that looks to the benefit it has conferred on the defendant rather than the loss that the plaintiff has suffered. Monarch Accounting Supplies, Inc. v. Prezioso, 170 Conn. 659, 666-67, 368 A.2d 6 (1976). What benefit, however, has a homeowner received by getting unwanted goods and services? Judicial assessment of such a “benefit” would necessarily be so speculative as to undermine the objectives that the statute sought to achieve.

The legislature, having responded to the plight of consumers overborne by high pressure home improvement salesmanship, ought nonetheless to contemplate the possibility that some inexperienced contractors may encounter homeowners who use § 20-429 as a sword rather than as a shield. The legislature may want to consider requiring homeowners to exercise their statutory rights within a reasonable period of time after notice thereof. The legislature might also adopt a formula for restitution damages, such as allowing the contractor to recover a stated percentage of the value of his total performance, subject to an offset if a homeowner establishes a right to recover damages. Compare General Statutes § 42a-2-718 (2) and (3). Finally, the legislature might want to distinguish between a homeowner's invocation of the statute as a defense to an action by a contractor and a homeowner’s affirmative reliance on the statute to recover a down payment or progress payments that represent work performed in good faith by a contractor. This court cannot, however, supply these forms of recovery absent authorization from the legislature.

The judgment is affirmed.

In this opinion Glass, Hull and Santaniello, Js., concurred.

Shea, J.,

with whom Callahan and Covello, Js., join, dissenting. There is nothing in the language of General Statutes (Rev. to 1987) § 20-429 declaring that “[n]o home improvement contract shall be valid unless it . . . contains the entire agreement between the owner and the contractor” that compels this court to disallow the restitutionary remedies of recovery for the reasonable value of services or for unjust enrichment sought by the builders in this action. In the case on which the majority primarily relies, Caulkins v. Petrillo, 200 Conn. 713, 513 A.2d 43 (1986), in which we held that neither part nor full performance could support a recovery pursuant to the terms of a contract for home improvements not conforming to the requirements of § 20-429, we decided only that “the remedial purposes of the statute would be undermined if this court were to permit a contractor to enforce an oral contract on the grounds claimed.” (Emphasis added.) Id., 720. Obviously, if an oral contract for home improvements were enforceable in the same manner as a written contract, § 20-429 would be a nullity. The issue presently before us, however, is not whether a contract invalidated by § 20-429 should be enforced according to its terms, but whether a contractor who, out of ignorance or carelessness, has not reduced his oral agreement to writing or otherwise has failed to conform to § 20-429, must forfeit the entire value of the services and materials he has furnished to a homeowner without any recompense.

As the majority concedes, in the analogous situation in which an oral contract is invalidated by the statute of frauds, General Statutes § 52-550,* a party is entitled to restitution of any benefit furnished pursuant to the contract. Montanaro Bros. Builders, Inc. v. Snow, 190 Conn. 481, 488-89, 460 A.2d 1297 (1983). “Where no action can be maintained on an oral contract within the statute of frauds or for damages for breach of such contract, the law ordinarily will not permit one party to such unenforceable contract to retain benefits conferred upon him by the other party to the contract in the performance of it. The general rule is that a party who refuses to go on with a contract unenforceable by reason of the statute, after having derived a benefit from a part performance by the other party, must pay for or return what he has received from the party under the contract. The statute of frauds was never intended to be used to permit one relying on it to enrich himself at the expense of another or to aid in defrauding such other person. To permit a party to an oral contract to accept the benefits of such contract and then invoke the statute to avoid payment would be using the statute to perpetrate a fraud.” 73 Am. Jur. 2d, Statute of Frauds § 537; see 3 Restatement (Second), Contracts § 375 (1981). “The restitutionary remedy is given in order to prevent the statute from causing what all would agree to be a monstrous injustice.” 2 A. Cor-bin, Contracts § 321, p. 157.

It is true that when the purpose of a statute would be defeated by allowing restitution, such a remedy cannot be permitted. The cases from other states cited by the majority, in which contractors were denied any recovery for their work because they had failed to obtain proper licenses, as the home improvement statutes in those states required, illustrate this principle. Harry Berenter, Inc. v. Berman, 258 Md. 290, 293, 265 A.2d 759 (1970); Chosen Constructon Corporation v. Syz, 138 App. Div. 2d 284, 285, 525 N.Y.S.2d 848 (1988); Mortise v. Liberty Owners Corporation, 102 App. Div. 2d 719, 477 N.Y.S.2d 2, aff'd, 63 N.Y.2d 743, 469 N.E.2d 529, 480 N.Y.S.2d 208 (1984). The purpose of such statutes, to ensure that home improvement work is performed by those having the requisite qualifications, would surely be frustrated if contractors could operate without the licenses required and still obtain, in restitution, the value of the services they perform. Similarly, the provision of General Statutes § 20-325a (b) declaring that “[n]o person . . . shall commence or bring any action in respect of any acts done or services rendered” as a real estate broker pursuant to a nonconforming contract has been construed to bar the recovery of a commission under the doctrine of unjust enrichment, not only because of its explicit all-encompassing language, but also because such a recovery would allow a broker to receive the same amount of compensation payable under his nonconforming agreement without complying with the statute. Currie v. Marano, 13 Conn. App. 527, 530-31, 537 A.2d 1036, cert. denied, 207 Conn. 809, 541 A.2d 1238 (1988); Good v. Paine Furniture Co., 35 Conn. Sup. 24, 27-28, 391 A.2d 741 (1978); see 3 Restatement (Second), Contracts § 375, comment a, illustration 3. DiBiase v. Garnsey, 103 Conn. 21, 130 A. 81 (1925), on which the majority relies, further illustrates this principle, because to allow the automobile mechanic to recover, as the reasonable value of his services, the same measure of compensation to which his oral agreement entitled him, without the written authorization required by the statute for work exceeding fifty dollars, would leave the statutory prohibition with no sanction for its violation except the criminal penalty provided.

In the present case we are not concerned with the registration requirements of our Home Improvement Act, General Statutes §§ 20-420 through 20-427, which are similar to the licensing statutes involved in the cases cited by the majority and thus may be deemed to establish a public policy that would be frustrated by allowing restitution. The requirements of § 20-429 that all contracts for home improvements be in writing and contain specific provisions are quite similar to those contained in our statute of frauds, § 52-550, and presumably were intended primarily to implement the same concern, the prevention of fraud. From ancient times courts have recognized that it is essential to allow restitution to a party who has conferred a benefit upon another pursuant to a contract invalidated by the statute of frauds in order that the statute itself not become an instrument of fraud by imposing the draconian consequence of forfeiture for violation of its provisions. That § 20-429 is subject to the same abuse is amply demonstrated by this case and its companion cases, in which disputes about the amount due the contractors are resolved by the invocation of § 20-429, resulting in forfeitures enriching the homeowners regardless of the merits of the disputes or the value of the work performed.

The majority relies also on the principle that restitution is not generally available to recover for benefits conferred pursuant to a contract that is in violation of public policy, but overlooks the exception to that principle, as expressed in Restatement (Second), Contracts § 197, “unless denial of restitution would cause disproportionate forfeiture.” As further explained, “the rule is subject to the exception stated in this Section that allows restitution in favor of a party who would otherwise suffer a forfeiture that is disproportionate in relation to the contravention of public policy involved.” Id., comment b; see also 2 Restatement (Second), Contracts § 198. The general recognition of the availability of restitution for contracts violating the statute of frauds is an illustration of this exception, which would apply in like measure to the present case.

The majority attempts to justify its unique treatment of the written contract requirement of § 20-429 as compared to § 52-550 on the ground that the Home Improvement Act was enacted for the protection of the public, that it is remedial legislation and that it is a consumer protection statute to be construed liberally. These familiar bromides would also apply to the statute of frauds and are no substitute for serious analysis of the consequences likely to flow from the denial of restitutionary remedies to those who perform valuable work without contracts conforming to § 20-429.

“ ‘Home improvement’ includes but is not limited to, the repair, replacement, remodeling, alteration, conversion, modernization, improvement, rehabilitation or sandblasting of, or addition to any land or building or that portion thereof which is used or designed to be used as a private residence or dwelling place, or the construction, replacement, installation or improvement of driveways, swimming pools, porches, garages, roofs, siding, insulation, solar energy systems, flooring, patios, landscaping, fences, doors and windows and waterproofing in connection with such land or building or that portion thereof which is used or designed to be used as a private residence or dwelling place, in which the total cash price for all work agreed upon between the contractor and owner exceeds two hundred dollars.” General Statutes § 20-419 (4). Thus, any person who agrees to perform any home improvement for more than $200 becomes a “contractor” who must comply with § 20-429 or suffer the loss of the labor and materials he has furnished at the will of the homeowner. General Statutes § 20-419 (3). The term “contractor” suggests an image of affluence or economic status that is wholly unrealistic when applied to the carpenters, plumbers, electricians, landscapers and other tradesmen involved in making home improvements within the definition of § 20-419 (4). Many of these self-employed workers lack the education necessary to be aware of the potential impact of § 20-429 on their occupations and are unable to afford the expense of obtaining the assistance of counsel, which may be disproportionate to the amounts of the small contracts that provide their livelihood. The majority construes § 20-429 to furnish homeowners who engage these tradesmen to perform home improvements with a virtual license to steal by invoking that statute after substantial work has been performed without a proper written contract.

The majority recognizes that its “decision may lead to a harsh result where a contractor in good faith but in ignorance of the law performs valuable home improvements without complying with § 20-429,” but is “unpersuaded that this deficiency in the statute is within our power to remedy.” The opinion advances various suggestions for curing the inequities thus acknowledged, with the entreaty that the legislature should “contemplate the possibility that some inexperienced contractors may encounter homeowners who use § 20-429 as a sword rather than as a shield.” It is not, however, the legislature but the majority that has created the problems so neatly thrust upon that body. Nothing in the language of the statute, its legislative history or applicable precedent requires that we adopt an interpretation so fraught with the danger of exploitation by the unscrupulous. In enacting § 20-429 the legislature may well have assumed that this court would follow our precedent with respect to the statute of frauds, which from ancient times has been construed to permit the restitutionary remedy of unjust enrichment precisely in order to avoid the opportunities for fraud that the majority has now created.

Accordingly, I dissent.

       The plaintiff has denominated its cause of action against the defendant variously as a claim of quasi contract, quantum meruit and unjust enrichment. Since these three theories, each based upon common law principles of restitution, are noncontractual actions by which a party may recover despite the absence of a valid contract; see Burns v. Koellmer, 11 Conn. App. 375, 384, 527 A.2d 1210 (1987); G. Palmer, “History of Restitution in Anglo-American Law,” c. 3, vol. X, Restitution—Unjust Enrichment and Negotiorum Gestio, International Encyclopedia of Comparative Law (P. Schlechtriem Chief Ed.) pp. 32-33 (1989); we will refer to the theories collectively as quasi contract claims.

       The contract, in its entirety, is as follows:
      “BARRETT BUILDERS 27 Elm Street
      TARRIFFVILLE, CT 06081 Phone 658-1601
      PROPOSAL SUBMITTED TO Mrs. Miller
      STREET 690 Cherry Brook Rd.
      CITY, STATE AND ZIP CODE Canton, Ct.
      PHONE 693-4068
      DATE 3-24-88
      JOB LOCATION same
      JOB PHONE same
      We hereby submit specifications and estimates for: #1. rip out old cabinets and top. Buy and install new cabinets and counter top. Buy and install underlayment for floor, but no finish floor . . . repair ceiling . . . refinish ceiling as best as [possible] to match existing, and paint ceiling only (No plumbing or elec, or paper)
      #2. [Entry] ripout [closet] and install new Bay and install byfold door Buy and install underlayment for floor, but no finish floor. Install new door . . . labor only. Door will be at cost to me Job will [illegible] by 1st
      No plumbing, elec, or painting or paper on wall. Ceiling will be painted. WE PROPOSE hereby to furnish material and labor—complete in accordance with above specifications, for the sum of:
      Nine Thousand and Seven Hundred, Eighty Three dollars ($9783 no/100). Payment to be made as follows: 1/3 down, 1/3 when cabinets are installed and 1/3 upon completion of job on Barrett Builders part.
      All material is guaranteed to be as specified. All work to be completed in a workmanlike manner according to standard practices. Any alteration or deviation from above specifications involving extra costs will be executed only upon written orders, and will become an extra charge over and above the estimate. All agreements contingent upon strikes, accidents or delays beyond our control. Owner to carry fire, tornado and other necessary insurance. Our workers are fully covered by Workmen’s Compensation Insurance.
      Authorized
      Signature /s/ James H. Barrett
      Note: This proposal may be
      withdrawn by us if not accepted within_days.
      ACCEPTANCE OF PROPOSAL—The above prices, specifications and conditions are satisfactory and are hereby accepted. You are authorized to do the work as specified. Payment will be made as outlined above.
      Date of Acceptance: 3/25/88_
      Signature /s/ Rhoda L. Miller_
      Signature _”

       General Statutes (Rev. to 1987) § 20-429 provides in pertinent part: “CONTRACT TO BE IN WRITING. NEGATIVE OPTION PROVISIONS PROHIBITED. OWNER TO RECEIVE COPY, required PROVISIONS, (a) No home improvement contract shall be valid unless it is in writing and unless it contains the entire agreement between the owner and the contractor. . . .
      “(c) The contractor shall provide and deliver to the owner, without charge, a completed copy of the home improvement contract at the time such contract is execui»3d.”

        Prior to 1986, the provision now codified as subsection (c) was subsection (b). See Public Acts 1986, No. 86-94. The substance of the provision was not changed in the recodification. Amendments to § 20-429, in 1988, which added several other required provisions for a valid contract; Public Acts 1988, No. 88-269, § 9, No. 88-364, §§ 108, 123; are not relevant to our analysis since the transactions in this case took place prior to the effective date of the amendments.

       We take judicial notice of a recent article published in the New York Times; see Mahoney v. Lensink, 213 Conn. 548, 562 n.20, 569 A.2d 518 (1990); Moore v. Moore, 173 Conn. 120, 123 n.1, 376 A.2d 1085 (1977); reporting that the Connecticut department of consumer protection receives more complaints regarding home improvement contractors than any other type of business enterprise. According to the department’s figures, 1786 complaints involving home improvement contractors were received in 1989, up from 1406 in the previous year. New York Times, April 1,1990, p. 11.

       A question remains concerning the ability of a homeowner to recover a down payment or progress payments made during the performance of home improvements but prior to the discovery of the invalidity of the contract. It is not clear whether a homeowner who has received materials and services and has made payments in recognition of that benefit can recover those payments. Arguably, a homeowner who has made such progress payments has impliedly consented to the work performed. The issue raised by a suit to recover partial payments differs substantially from that raised by refusal to pay sums alleged to be due on an invalid contract. We need not resolve that thorny issue today.

       The plaintiff has conceded his noncompliance with the three day cooling off period as required by one of the amendments added to General Statutes § 20-429 in 1988. Public Acts 1988, No. 88-269, § 9. This amendment underlines the legislature’s concern that the Home Improvement Act provide an opportunity for considered judgment on the part of the homeowner.

       The majority opinion incorrectly implies that Caulkins v. Petrillo, 200 Conn. 713, 513 A.2d 43 (1986), addressed the availability of restitutionary remedies: “Our conclusion in Caulkins that the legislature ‘intended no exceptions’ to the written contract requirement, even for restitution when a contractor has fully performed its obligations under the invalid agreement, thus applies with equal force to the [contractor’s] claim for quasi contractual recovery in this case.” (Emphasis added.) There is no mention of restitution or any equivalent reference in Caulkins, nor was that subject before us.

       “[General Statutes] Sec. 52-550. statute of frauds; written agreement or memorandum, (a) No civil action may be maintained in the following cases unless the agreement, or a memorandum of the agreement, is made in writing and signed by the party, or the agent of the party, to be charged: (1) Upon any agreement to charge any executor or administrator, upon a special promise to answer damages out of his own property; (2) against any person upon any special promise to answer for the debt, default or miscarriage of another; (S) upon any agreement made upon consideration of marriage; (4) upon any agreement for the sale of real property or any interest in or concerning real property; or (5) upon any agreement that is not to be performed within one year from the making thereof.
      “(b) This section shall not apply to parol agreements for hiring or leasing real property, or any interest therein, for one year or less, in pursuance of which the leased premises have been or are actually occupied by the lessee, or any person claiming under him, during any part of the term.”

       The provision of General Statutes § 20-429 that “[n]o . . . contract shall be valid” is far less sweeping and does not by its terms preclude restitutionary actions. Its language is even less broad than the parallel provision of our statute of frauds, General Statutes § 52-550, that “[n]o civil action may be maintained” on a nonconforming contract, for which restitution, nevertheless, is held to be available. Montanaro Bros. Builders, Inc. v. Snow, 190 Conn. 481, 488-89, 460 A.2d 1297 (1983).


text:
    A. Secondino and Son, Inc. v. Richard A. LoRicco et al.
    (13773)
    Peters, C. J., Shea, Callahan, Glass and Hull, Js.
    Argued February 6
    decision released June 12, 1990

      Richard B. Cramer, for the appellant-appellee (plaintiff).

      Paul M. Sabetta, for the appellee-appellant (named defendant).

      Clarine Nardi Riddle, attorney general, and Robert M. Langer, Stephen R. Park and Neil G. Fishman, assistant attorneys general, submitted a brief on behalf of the state as amicus curiae.
   Peters, C. J.

The principal issues in this case are: (1) the right of a home improvement contractor who has failed to comply with the written contract requirement of the Home Improvement Act; General Statutes § 20-429; to recover damages, under theories of quasi contract, for completed home improvements; and (2) the right of a homeowner to recover compensatory and punitive damages pursuant to the Connecticut Unfair Trade Practices Act (CUTPA); General Statutes § 42-110a et seq.; for violation of the Home Improvement Act. The plaintiff, A. Secondino & Son, Inc., initiated this action for damages under theories of breach of contract, quantum meruit and unjust enrichment against the defendant, Richard A. LoRicco, who filed an answer claiming, inter alia, that recovery was barred by the Home Improvement Act. The defendant also filed a counterclaim alleging that the plaintiffs conduct was an unfair' trade practice under CUTPA. The trial court ruled in favor of the defendant on the complaint and in favor of the plaintiff on the counterclaim. The plaintiff appealed to the Appellate Court and the defendant filed a cross appeal; we transferred this case to ourselves pursuant to Practice Book § 4023. We affirm the judgment of the trial court.

The trial court found the following undisputed facts. The defendant, an experienced lawyer, requested the plaintiff, a building contractor principally engaged in commercial work, to come to the defendant’s home to discuss certain home improvements. The parties orally agreed that the plaintiff would construct a garage and driveway and install a heating system, flooring and kitchen countertops, for which the defendant would pay at the rate of cost plus fifteen percent. No written contract existed between the parties and the defendant never received notice concerning any right that he might have to cancel the contract. Prior to completion of the project, the defendant discontinued progress payments and the plaintiff stopped work. The total billings for the project amounted to $43,062.70, for which the plaintiff claims a balance due of $17,062.70.

The plaintiff initiated the present action to recover the balance allegedly due under the oral agreement, or, in the alternative, for the reasonable value of its services and materials under a theory of quantum meruit or of unjust enrichment of the defendant. The defendant denied liability on the ground that the plaintiffs failure to comply with the written contract requirement of the Home Improvement Act precluded any recovery. In addition, the defendant filed a counterclaim alleging that the plaintiffs failure to provide a written contract containing notice of the defendant’s cancellation rights violated the Home Improvement Act, the Home Solicitation Sales Act; General Statutes § 42-134a et seq.; and the federal Trade Regulation Rule Concerning a Cooling-Off Period for Door-to-Door Sales; 16 C.F.R. 429; and that, as a consequence, he was entitled to compensatory and punitive damages under CUTPA.

The trial court held that the plaintiff’s failure to comply with the written contract requirement of § 20-429 barred the quantum meruit and unjust enrichment claims as well as the claim for breach of contract. The trial court also rejected each of the defendant’s counterclaims. The court held that the defendant had failed to sustain his burden of proof in establishing that the plaintiff should be liable for untimely performance, since nothing in the oral agreement specified that time was of the essence, and concluded that the plaintiff had justifiably repudiated the contract due to the defendant’s failure to make the payments due for completed work. The court further found that the defendant had failed to prove that the plaintiff had caused the alleged defects in materials and workmanship. Finally, the court concluded that the defendant had not demonstrated that the plaintiff’s conduct constituted an unfair or deceptive trade practice, and, furthermore, that the defendant had failed to present'any evidence demonstrating that he had sustained damages as a result of the alleged violation. In response to a motion for articulation, the court noted that “[t]he facts of this case . . . [do] not fall within the Home Solicitation Act and [fall] within the exceptions of § [42-134a (a) (4)].”

On appeal, the plaintiff argues that the trial court mistakenly interpreted the Home Improvement Act to bar recovery for his quantum meruit and unjust enrichment claims. While conceding that failure to comply with the written contract requirement of § 20-429 precludes recovery for breach of the oral agreement, he contends that the legislature did not intend to abrogate the common law restitutionary causes of action by which a party may recover for materials and for services performed despite the absence of an enforceable contract. We have fully addressed this issue in Barrett Builders v. Miller, 215 Conn. 316, 576 A.2d 455 (1990), which we have also released today. After a full examination and discussion of the merits of such a claim by a contractor similarly situated to the plaintiff, we concluded that, absent proof of bad faith on the part of the homeowner, § 20-429 permits no recovery in quasi contract by a contractor who has failed to comply with the statute’s written contract requirement. Id., 323. Accordingly, we conclude that the trial court correctly rejected the plaintiff’s quantum meruit and unjust enrichment claims.

In his cross appeal, the defendant asserts two arguments in support of his contention that the trial court wrongly concluded that he is not entitled to compensatory and punitive damages under CUTPA. The defendant first argues that the trial court should have found the Home Solicitation Sales Act applicable to the transaction in this case. According to the defendant, the court mistakenly relied upon an exception contained in that statute for transactions in which the contractor visits the home at the homeowner’s request. See General Statutes § 42-134a (a) (4). That exception, the defendant argues, applies only to transactions involving the repair or maintenance of personalty, and is thus inapplicable to the present agreement for the renovation of real property. Secondly, the defendant contends that the plaintiff’s failure to provide the defendant with a signed and dated written contract containing notice of the defendant’s right to cancel the contract within three days after entering into the agreement amounted to a violation of the Home Solicitation Sales Act, the federal Trade Regulation Rule Concerning a Cooling-Off Period for Door-to-Door Sales and the Home Improvement Act. Violation of these statutes, the defendant contends, constitutes ah unfair trade practice under CUTPA, and thus entitles him to compensatory and punitive damages. On the present record, we are not persuaded.

A party seeking to recover damages under CUTPA must meet two threshold requirements. First, he must establish that the conduct at issue constitutes an unfair or deceptive trade practice. Web Press Services Corporation v. New London Motors, Inc., 205 Conn. 479, 481-84, 533 A.2d 1211 (1987); Conaway v. Prestia, 191 Conn. 484, 492-93, 464 A.2d 847 (1983). Second, he must present evidence providing the court with a basis for a reasonable estimate of the damages suffered. Barco Auto Leasing Corporation v. House, 202 Conn. 106, 120-21, 520 A.2d 162 (1987); Conaway v. Prestia, supra, 494; Hinchliffe v. American Motors Corporation, 184 Conn. 607, 619, 440 A.2d 810 (1981).

The first element of the threshold test for CUTPA recovery is satisfied in this case, although not on the theory advanced at trial. The plaintiff’s undisputed failure to comply with the Home Improvement Act’s written contract requirement is a per se violation of CUTPA by virtue of General Statutes § 20-427 (b), which provides that any violation of the Home Improvement Act is deemed to be an unfair or deceptive trade practice. We therefore need not consider the defendant’s contention that the trial court mistakenly concluded that the Home Solicitation Sales Act and the federal Trade Regulation Rule Concerning a Cooling-Off Period for Door-to-Door Sales do not apply to the home improvement transaction in this case.

The defendant has not, however, satisfied the second threshold requirement for CUTPA recovery. The trial court expressly found that “the defendant has failed to present any damages arising from the alleged [CUTPA] violations,” a factual determination that the defendant has not challenged in this appeal. While CUTPA damages need not be proven with absolute precision, the failure to present any evidence concerning the nature and extent of the injury sustained precludes recovery under the statute. We therefore conclude that the trial court correctly rendered judgment for the plaintiff on the CUTPA counterclaim.

The judgment is affirmed.

In this opinion Glass and Hull, Js., concurred.

Shea, J.,

with whom Callahan, J., joins, dissenting. This case is a vivid illustration of how the majority’s denial of the availability of restitution for a contract violating General Statutes § 20-429 has provided a homeowner with a device for avoiding payment for home improvements that the trial court, in rejecting the counterclaim, implicitly found the plaintiff contractor had satisfactorily performed. The fact that the defendant homeowner is a practicing attorney, who was presumably better versed in the requirements for a valid contract than the plaintiff, adds a bit of color that must cast doubt upon the assumption of thé majority that § 20-429 must be construed invariably in favor of the homeowner in order to protect him against fraud or overreaching by the contractor.

I dissent for the reasons given in my dissenting opinion in Barrett Builders v. Miller, 215 Conn. 316, 576 A.2d 455 (1990).

       General Statutes (Rev. to 1987) § 20-429 provides in pertinent part: “CONTRACT TO BE IN WRITING. NEGATIVE OPTION PROVISIONS PROHIBITED. OWNER TO RECEIVE COPY. REQUIRED PROVISIONS, (a) No home improvement contract shall be valid unless it is in writing and unless it contains the entire agreement between the owner and the contractor. . . .
      “(c) The contractor shall provide and deliver to the owner, without charge, a completed copy of the home improvement contract at the time such contract is executed.”
      Prior to 1986, the provision now codified as subsection (c) was subsection (b). See Public Acts 1986, No. 86-94. The substance of the provision was not changed in the recodification. Amendments to § 20-429, in 1988, which added several other required provisions for a valid contract; Public Acts 1988, No. 88-269, § 9, No. 88-364, §§ 108, 123; are not relevant to our analysis since the transactions in this case took place prior to the effective date of the amendments.

       Lucille M. LoRicco was originally also a party defendant, but the plaintiff has withdrawn its claims against her.

       The defendant also filed four other special defenses, not at issue in this appeal, denying liability on the grounds that the plaintiff had: (1) rendered defective materials and workmanship; (2) repudiated the contract by failing to complete the project; (3) failed to comply with the time element of the contract; and (4) failed to comply with the Home Solicitation Sales Act; General Statutes § 42-134a et seq.; and the federal Trade Regulation Rule Concerning a Cooling-Off Period for Door-to-Door Sales. 16 C.F.R. 429.

       The counterclaim also included claims for damages for breach of an oral contract, defective materials and workmanship, and detrimental reliance. These claims are not involved in this appeal.

       The plaintiff had been engaged in commercial construction for the defendant on an unrelated project. At trial, the plaintiff alleged that the improvements for which he seeks remuneration were also commercial in nature and that, as a consequence, the Home Improvement Act did not apply to the transaction. The trial court rejected this contention, however, and the plaintiff has not challenged the court’s finding of fact in this appeal.

       General Statutes § 42-134a (a) provides in pertinent part: “The term ‘home solicitation sale’ does not include a transaction ... (4) in which the buyer has initiated the contact and specifically requested the seller to visit his home for the purpose of repairing or performing maintenance upon the buyer’s personal property.”

       The defendant also argues that the oral agreement for home improvements is void by virtue of the plaintiff’s failure to comply with the requirements of the Home Solicitation Sales Act. We need not address this contention, however, since we have concluded that the Home Improvement Act precludes any recovery on the plaintiffs claims.

       The relevant provision of the Home Solicitation Sales Act is General Statutes § 42-135a, which provides in pertinent part: “NOTICE IN SALES AGREEMENT. NOTICE OF CANCELLATION. DUTIES OF SELLER. No agreement of the buyer in a home solicitation sale shall be effective if it is not signed and dated by the buyer or if the seller shall:
      “(1) Fail to furnish the buyer with a fully completed receipt or copy of all contracts and documents pertaining to such sale at the time of its execution, which contract shall be in the same language as that principally used in the oral sales presentation and which shall show the date of the transaction and shall contain the name and address of the seller, and in immediate proximity to the space reserved in the contract for the signature of the buyer, or on the front page of the receipt if a contract is not used, and in boldface type of a minimum size of ten points, a statement in substantially the following form:
      “YOU, THE BUYER, MAY CANCEL THIS TRANSACTION AT ANY TIME PRIOR TO MIDNIGHT OF THE THIRD BUSINESS DAY AFTER THE DATE OF THIS TRANSACTION. SEE THE ATTACHED NOTICE OF CANCELLATION FORM FOR AN EXPLANATION OF THIS RIGHT.
      “(2) Fail to furnish each buyer, at the time he signs the home solicitation sales contract or otherwise agrees to buy consumer goods or services from the seller, a completed form in duplicate, captioned ‘NOTICE OF CANCELLATION,’ which shall be attached to the contract or receipt and easily detachable, and which shall contain in ten-point boldface type the following information and statements in the same language as that used in the contract:
      NOTICE OF CANCELLATION
      . . . (Date of Transaction)
      “YOU MAY CANCEL THIS TRANSACTION, WITHOUT ANY PENALTY OR OBLIGATION, WITHIN THREE BUSINESS DAYS FROM THE ABOVE DATE.
      “IF YOU CANCEL, ANY PROPERTY TRADED IN, ANY PAYMENTS MADE BY YOU UNDER THE CONTRACT OR SALE, AND ANY NEGOTIABLE INSTRUMENT EXECUTED BY YOU WILL BE RETURNED WITHIN TEN BUSINESS DAYS FOLLOWING RECEIPT BY THE SELLER OF YOUR CANCELLATION NOTICE, AND ANY SECURITY INTEREST ARISING OUT OF THE TRANSACTION WILL BE CANCELLED.
      “IF YOU CANCEL, YOU MUST MAKE AVAILABLE TO THE SELLER AT YOUR RESIDENCE, IN SUBSTANTIALLY AS GOOD CONDITION AS WHEN RECEIVED, ANY GOODS DELIVERED TO YOU UNDER THIS CONTRACT OR SALE; OR YOU MAY, IF YOU WISH, COMPLY WITH THE INSTRUCTIONS OF THE SELLER REGARDING THE RETURN SHIPMENT OF THE GOODS AT THE SELLER’S EXPENSE AND RISK.
      “IF YOU DO MAKE THE GOODS AVAILABLE TO THE SELLER AND THE SELLER DOES NOT PICK THEM UP WITHIN TWENTY DAYS OF THE DATE OF CANCELLATION, YOU MAY RETAIN OR DISPOSE OF THE GOODS WITHOUT ANY FURTHER OBLIGATION. IF YOU FAIL TO MAKE THE GOODS AVAILABLE TO THE SELLER, OR IF YOU AGREE TO RETURN THE GOODS TO THE SELLER AND FAIL TO DO SO, THEN YOU REMAIN LIABLE FOR PERFORMANCE OF ALL OBLIGATIONS UNDER THE CONTRACT.
      “TO CANCEL THIS TRANSACTION, MAIL OR DELIVER A SIGNED AND DATED COPY OF THIS CANCELLATION NOTICE OR ANY OTHER WRITTEN NOTICE, OR SEND A TELEGRAM TO . . . (Name of Seller) AT . . . (Address of Seller’s Place of Business) NOT LATER THAN MIDNIGHT OF . . . (Date)
      “I HEREBY CANCEL THIS TRANSACTION.
      “. . . (Date)
      . . . (Buyer’s Signature)”

       General Statutes § 20-427 (b) provides: “A violation of any of the provisions of this chapter shall be deemed an unfair or deceptive trade practice under subsection (a) of section 42-110b.”

       We note, however, that the legislature has specifically addressed the relationship between the Home Improvement Act and the Home Solicitation Sales Act in a 1988 amendment to the Home Improvement Act providing that “[e]ach home improvement contract entered into shall be considered a home solicitation sale pursuant to chapter 740 and shall be subject to the requirements of said chapter . . . .” Public Acts 1988, No. 88-269, § 9; General Statutes § 20-429 (e). One of the principal consequences of the applicability of the Home Solicitation Sales Act to home improvement transactions is that contractors are now required to provide homeowners with written notice of their right to cancel the home improvement contract within three days after executing the contract. General Statutes § 42-135a.


text:
    Liljedahl Brothers, Inc. v. James A. Grigsby et al.
    (13801)
    Peters, C. J., Shea, Callahan, Glass and Hull, Js.
    Argued February 6
    decision released June 12, 1990

      David R. Clemens, for the appellant (plaintiff).

      Lisa A. Magliochetti, for the appellees (defendants).
   Peters, C. J.

The principal issue in this case is whether a contractor who has failed to comply with the requirements of the Home Improvement Act; General Statutes § 20-418 et seq.; can nonetheless recover in quasi contract by demonstrating unjust enrichment on the part of the homeowner for whom the contractor has performed work. The plaintiff brought an action in two counts against the defendants James A. Grigsby and Karen P. Grigsby, alleging its right to recover for the unpaid balance due for construction services, materials and labor provided, in accordance with an oral agreement, for home improvements at the defendants’ residence. The trial court granted the defendants’ motion to strike the complaint, premised on the absence of a written home improvement contract as required by General Statutes § 20-429, and thereafter rendered judgment for the defendants. Pursuant to Practice Book § 4023, we transferred the plaintiff’s appeal from this adverse judgment to this court, and now affirm.

The record reveals little about the factual background of this case. The plaintiffs amended complaint alleges an oral agreement to provide home improvement services at the defendants’ residence in Hartford at a contract price of $27,391, not inclusive of extra work requested by the defendants and performed by the plaintiff. The complaint acknowledges that the defendants have paid $17,989.63 and seeks to recover the remaining $9401.37 for breach of an implied contract or under a theory of quasi contract. The plaintiff has not alleged that its agreement with the defendants complies with the written contract requirement of General Statutes § 20-429.

The trial court granted the motion to strike in reliance on the decision of the Appellate Court in Sidney v. DeVries, 18 Conn. App. 581, 588-89, 559 A.2d 1145 (1989). In so doing, it rejected the plaintiff’s argument that § 20-429 does not bar common law noncontractual theories of recovery.

The plaintiff’s appeal to this court raises one procedural and two substantive issues. Procedurally, the plaintiff maintains that the court should not have granted the defendants’ motion to strike because it was a fatally defective speaking motion. Substantively, the plaintiff maintains that either an implied or a quasi contract theory allows it to recover. None of these arguments is persuasive.

I

The plaintiff’s procedural claim is that the trial court should not have considered the defendants’ motion to strike on its merits because the motion alleged facts not set forth in the plaintiff’s pleading, and was therefore an improper “speaking motion to strike.” We disagree.

The defendants moved to strike the plaintiffs amended complaint on the ground that the plaintiff’s implied contract and unjust enrichment claims were precluded by both the Home Solicitation Sales Act; General Statutes § 42-134 et seq.; and the Home Improvement Act. In response to the plaintiff’s objection to the motion to strike, the trial court found that the motion did contain facts not contained in the pleadings concerning the location at which the home improvement contract had been executed. The court went on to note, however, that the issue of location was relevant only to the applicability of the Home Solicitation Sales Act to the case, and did not affect the applicability of the Home Improvement Act. The court thus concluded that the motion was not procedurally defective with regard to the claim that recovery was precluded by the Home Improvement Act since the motion did not “speak” to that claim. The court then granted the motion to strike after determining that the plaintiff’s failure to comply with the written contract requirement of the Home Improvement Act barred its implied contract and quasi contract claims.

In deciding upon a motion to strike or a demurrer, a trial court must take the facts to be those alleged in the complaint; Blancato v. Feldspar Corporation, 203 Conn. 34, 36, 522 A.2d 1235 (1987); DeMello v. Plainville, 170 Conn. 675, 677, 368 A.2d 71 (1976); and “cannot be aided by the assumption of any facts not therein alleged.” Fraser v. Henninger, 173 Conn. 52, 60, 376 A.2d 406 (1977); Wexler Construction Co. v. Housing Authority, 144 Conn. 187, 194, 128 A.2d 540 (1956). Where the legal grounds for such a motion are dependent upon underlying facts not alleged in the plaintiff’s pleadings, the defendant must await the evidence which may be adduced at trial, and the motion should be denied. Fraser v. Henninger, supra, 61. Nothing in our cases suggests, however, that every argument in a motion to strike is rendered defective by the moving party’s allegation of some fact not contained in the pleadings, regardless of whether that fact is relevant for each argument in the motion. We can see no reason to introduce such a rule, since a party whose motion to strike has been denied on the ground that it speaks on a fact that is not relevant to all of the legal claims could simply file a new motion limited to the arguments that do not depend upon that allegation. Accordingly, we conclude that the trial court was not procedurally barred from considering, on the merits, the defendants’ motion to strike on the ground that the Home Improvement Act bars recovery under theories of implied contract and quasi contract.

II

Turning to the merits of the plaintiff’s claim, we note that the plaintiff urges us to decide that theories either of implied contract and or of quasi contract furnish a basis for its recovery in this case. In our view, however, the language and policy of § 20-429 preclude its recourse to these common law causes of action.

To the extent that the plaintiff invokes a right to recovery premised on a contract implied in fact, its claim cannot be reconciled in any fashion with § 20-429. “Whether [a] contract is styled ‘express’ or ‘implied’ involves ‘no difference in legal effect, but lies merely in the mode of manifesting assent.’ 1 Restatement (Second), Contracts § 4, comment a; see also E. Farnsworth, Contracts (1982) pp. 124, 142 n.2.” Boland v. Catalano, 202 Conn. 333, 337, 521 A.2d 142 (1987); Brighenti v. New Britain Shirt Corporation, 167 Conn. 403, 406-407, 356 A.2d 181 (1974). The plaintiff’s implied contract claim therefore stands on no different footing than an alleged cause of action for breach of an oral or written contract. Such a claim is refuted by the plain language of § 20-429 (a), which provides that “[n]o home improvement contract shall be valid unless it is in writing and unless it contains the entire agreement between the owner and the contractor.”

The plaintiffs claim to a right to recovery grounded in a contract implied in law or in quasi contract cannot survive our decision in Barrett Builders v. Miller, 215 Conn. 316, 576 A.2d 455 (1990). After a full examination and discussion of the merits of such a claim by a contractor similarly situated to the plaintiff, we concluded that, absent proof of bad faith on the part of the homeowner, § 20-429 permits no recovery in quasi contract by a contractor who has failed to comply with the statute’s written contract requirement. Id., 323. That precedent is dispositive.

The judgment is affirmed.

In this opinion Glass and Hull, Js., concurred.

Shea, J.,

with whom Callahan, J., joins, dissenting. For the reasons expressed in my dissenting opinion in Barrett Builders v. Miller, 215 Conn. 316, 576 A.2d 455 (1990), I also dissent in this case, which further illustrates the inequity of imposing the penalty of forfeiture upon a tradesman who performs a home improvement without a contract conforming to General Statutes § 20-429.

       The plaintiff in this case has variously denominated its cause of action against the defendants as arising in quasi contract, quantum meruit and unjust enrichment. Since these three theories, each based upon common law principles of restitution, are all noncontractual actions by which a party may recover despite the absence of a valid contract; see Burns v. Koellmer, 11 Conn. App. 375, 384, 527 A.2d 1210 (1987); G. Palmer, “History of Restitution in Anglo-American Law,” c. 3, vol. X, Restitution—Unjust Enrichment and Negotiorum Gestio, International Encyclopedia of Comparative Law (P. Schlechtriem Chief Ed.) pp. 32-33 (1989); we will refer to the theories collectively as quasi contract claims.

       General Statutes (Rev. to 1987) § 20-429 provides in pertinent part: “contract to be in writing, negative option provisions prohibited, owner to receive copy, required provisions, (a) No home improvement contract shall be valid unless it is in writing and unless it contains the entire agreement between the owner and the contractor. . . .
      “(c) The contractor shall provide and deliver to the owner, without charge, a completed copy of the home improvement contract at the time such contract is executed.”
      Prior to 1986, the provision now codified as subsection (c) was subsection (b). See Public Acts 1986, No. 86-94. The substance of the provision was not changed in the recodification. Amendments to § 20-429, in 1988, which added several other required provisions for a valid contract; Public Acts 1988, No. 88-269, § 9, No. 88-364, §§ 108, 123; are not relevant to our analysis since the transactions in this case took place prior to the effective date of the amendments.


author: Per Curiam. Shea, J.,

text:
    Judith Sidney et al. v. Philip N. DeVries et al.
    (13785)
    Peters, C. J., Shea, Callahan, Glass and Hull, Js.

      Argued February 6
    decision released June 12, 1990

      Robert L. Fisher, Jr., for the appellant (defendant Rex K. Collum).

      John Febbroriello, for the appellees (plaintiffs).

      Clarine Nardi Riddle, attorney general, and Robert M. Langer, Stephen R. Park and Neil G. Fishman, assistant attorneys general, submitted a brief on behalf of the state as amicus curiae.
   Per Curiam.

The sole issue in this appeal is whether a contractor who has failed to comply with the requirements of the Home Improvement Act; General Statutes § 20-418 et seq.; can nonetheless recover in quasi contract by demonstrating unjust enrichment on the part of the homeowner for whom the contractor has performed work. The defendant, Rex K. Collum, a general contractor,* raised this claim as one count of a counterclaim to an action brought by the plaintiffs, Judith and Selig Sidney, for defective remodeling work at their home. The trial court found for the defendant in the plaintiffs’ cause of action, and for the plaintiffs in the action on the defendant’s counterclaim. In the defendant’s subsequent appeal to the Appellate Court, that court upheld the judgment of the trial court. Sidney v. DeVries, 18 Conn. App. 581, 559 A.2d 1145 (1989). We granted the defendant’s petition for certification; Sidney v. DeVries, 212 Conn. 810, 564 A.2d 1071 (1989); and now affirm the judgment of the Appellate Court.

The record and the pleadings disclose the following by way of background. In February, 1983, at the request of the plaintiffs, the defendant, a self-employed contractor and carpenter, began to perform renovation work on the plaintiffs’ house in Woodbury. In October, 1983, dissatisfied with the defendant’s performance, the plaintiffs terminated their relationship with him. At that point, the plaintiffs had paid the defendant $11,800. The defendant alleged in his counterclaim that the materials and labor that he had furnished to the plaintiffs had a reasonable value of $39,650 and claimed a right to recover the balance of $27,850.

The trial court found that, although certain documents had been exchanged between the parties, “there is in evidence no written contract containing the entire agreement between the owner and the contractor. It is impossible to harmonize the agreements in evidence to form a contract containing the entire agreement between the parties since they are full of contradictory terms. Additionally, no writing exists which clearly sets out the scope of the work, extras, or many other details necessary to a complete agreement.” Absent a complete written agreement, the court held that General Statutes § 20-429 barred the defendant’s recovery on the counterclaim insofar as it alleged a breach of an oral contract or a claim in quasi contract. On the plaintiffs’ cause of action, the court concluded that they also could not recover because they had failed to meet their burden of establishing the terms of their contract and its breach by the defendant.

Only the defendant filed an appeal to the Appellate Court. In rejecting the defendant’s oral contract claim, the Appellate Court affirmed the trial court’s ruling “that the agreement between the parties fell within the Home Improvement Act and that the defendant’s counterclaim, relying on an oral contract, was barred by General Statutes § 20-429 (a).” Sidney v. DeVries, supra, 18 Conn. App. 588. The Appellate Court also rejected the defendant’s claim that he had a right to recover on a theory of quantum meruit. We granted the defendant’s petition for certification, limited to the following question: “Does Connecticut General Statutes § 20-429 bar a home improvement contractor from recovering against a homeowner under a claim of quantum meruit arising out of an oral contract?” Sidney v. DeVries, supra, 212 Conn. 810.

The question that we certified in this case was fully examined and discussed in Barrett Builders v. Miller, 215 Conn. 316, 576 A.2d 455 (1990). We there concluded that, absent proof of bad faith on the part of the homeowner, § 20-429 does not permit recovery in quasi contract by a contractor who has failed to comply with the statutory requirement that “[n]o home improvement contract shall be valid unless it is in writing and unless it contains the entire agreement between the owner and the contractor.” That precedent is dis-positive of this appeal.

The judgment of the Appellate Gourt is affirmed.

In this opinion Peters, C. J., Glass and Hull, Js., concurred.

Shea, J.,

with whom Callahan, J., joins, dissenting. For the reasons expressed in my dissenting opinion in Barrett Builders v. Miller, 215 Conn. 316, 576 A.2d 455 (1990), I also dissent in this case, which further illustrates the inequity of imposing the penalty of forfeiture upon a tradesman who performs a home improvement without a contract conforming to General Statutes § 20-429.

       The defendant has at various times denominated the relevant count in his counterclaim against the plaintiff as sounding in quasi contract, quantum meruit and unjust enrichment. Since these three theories, each based upon common law principles of restitution, are all noncontractual actions by which a party may recover despite the absence of a valid contract; see Burns v. Koellmer, 11 Conn. App. 375, 384, 527 A.2d 1210 (1987); G. Palmer, “History of Restitution in Anglo-American Law,” c. 3, vol. X, Restitution-Unjust Enrichment and Negotiorum Gestio, International Encyclopedia of Comparative Law (P. Schlechtriem Chief Ed.) pp. 32-33 (1989); we will refer to the theories collectively as quasi contract claims.

       The named defendant, Philip N. DeVries, is another contractor. The plaintiffs and DeVries have filed reciprocal withdrawals of their actions against each other.

       General Statutes (Rev. to 1987) § 20-429 provides in pertinent part: “contract to be in writing, negative option provisions prohibited, owner to receive copy, required provisions, (a) No home improvement contract shall be valid unless it is in writing and unless it contains the entire agreement between the owner and the contractor. . . .
      “(c) The contractor shall provide and deliver to the owner, without charge, a completed copy of the home improvement contract at the time such contract is executed.”
      Prior to 1986, the provision now codified as subsection (c) was subsection (b). See Public Acts 1986, No. 86-94. The substance of the provision was not changed in the recodification. Amendments to § 20-429, in 1988, which added several other required provisions for a valid contract; Public Acts 1988, No. 88-269, § 9, No. 88-364, §§ 108, 123; are not relevant to our analysis since the transactions in this case took place prior to the effective date of the amendments.

       In the Appellate Court, the defendant also argued that the Home Improvement Act was not properly before the court because the plaintiffs had not invoked this act in their special defense to the defendant’s counterclaim. This contention, which the Appellate Court rejected on the ground of waiver; Sidney v. DeVries, 18 Conn. App. 581, 587, 559 A.2d 1145 (1989); is not at issue in this appeal.