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SUNG GAYNOR ET AL. v. HI-TECH HOMES ET AL.
(AC 35302)
Beach, Alvord and Pellegrino, Js.
Argued October 23, 2013—officially released April 8, 2014
(Appeal from Superior Court, judicial district of
Stamford-Norwalk, Hon. David R. Tobin, judge trial
referee.)
Richard Stein, self-represented, the appellant
(defendant).
Robert D. Russo, with whom was Elizabeth LaMura,
for the appellees (plaintiffs).
Opinion
ALVORD, J. The self-represented defendant, Richard
Stein,1 appeals from the judgment of the trial court,
following a hearing in damages, awarding $72,022.19
to the plaintiffs, Sung Gaynor and Donald Gaynor. On
appeal, the defendant claims that the court improperly
(1) awarded damages for breach of the parties’
agreement because he had completed all of the work,
and (2) awarded attorney’s fees under the Connecticut
Unfair Trade Practices Act (CUTPA), General Statutes
§ 42-110a et seq. We affirm in part and reverse in part
the judgment of the trial court.
The following facts and procedural history are rele-
vant to our resolution of the defendant’s claims. On
November 19, 2009, the plaintiffs commenced the pre-
sent action against the defendant alleging breach of
contract, unjust enrichment2 and violation of CUTPA.
In their complaint, the plaintiffs claimed that in 2004,
they purchased real estate located in Westport with the
intention of demolishing an existing structure, building
a new residence in its place, and then selling the prop-
erty at a profit. On October 19, 2005, the plaintiffs and
the defendant signed an agreement that provided that
the defendant would (1) deliver and erect a modular
home on the plaintiffs’ property for a specified price,
and (2) supervise the completion of the modular home
by subcontractors approved by the plaintiffs for addi-
tional compensation. The plaintiffs alleged that the
defendant breached the agreement by charging more
than the contract price, by failing to timely complete
the construction and assembly of the modular home,3
and by collecting payments for work that had not
been completed.
The defendant filed an appearance as a self-repre-
sented party on December 15, 2009. On May 6, 2011, the
plaintiffs filed a motion for default for the defendant’s
failure to file a responsive pleading, which was granted
by the trial court clerk on May 17, 2011. On July 14, 2012,
counsel for the plaintiffs filed a certificate of closed
pleadings and claimed the matter for a hearing in dam-
ages to the court. On July 16, 2012, the court issued a
notice of a hearing in damages to be held on September
20, 2012, at 9:30 a.m. The defendant did not file a motion
to set aside the default pursuant to Practice Book § 17-
424 nor did he file a notice of defenses pursuant to
Practice Book § 17-345 prior to the scheduled hearing
in damages.
The defendant attended the hearing in damages on
September 20, 2012,6 where the plaintiffs’ counsel called
Sung Gaynor and the defendant as witnesses. The defen-
dant cross-examined Sung Gaynor, and he had the
opportunity to object to exhibits submitted by the plain-
tiffs and to present his own exhibits for the court’s
consideration. Following the hearing, the court
requested the parties to file briefs on the computation
of damages. On November 30, 2012, the court issued
its memorandum of decision and awarded damages to
the plaintiffs in the amount of $57,618, together with
attorney’s fees under CUTPA in the amount of
$14,404.19. This appeal followed.
I
As a defense to the breach of contract claim, the
defendant claims that he ‘‘complied with all the condi-
tions of the agreement.’’ The defendant cannot prevail
on his liability defense claims, however, because he
failed to file an answer to the plaintiffs’ complaint and
was defaulted for his failure to plead. Further, he failed
to file a notice of defenses that would have allowed
him to offer evidence contradicting the allegations in
the complaint. See Practice Book § 17-34.
‘‘[C]ase law makes clear . . . that once the defen-
dants had been defaulted and had failed to file a notice
of intent to present defenses, they, by operation of
law, were deemed to have admitted to all the essential
elements in the claim and would not be allowed to
contest liability at the hearing in damages. . . . A
default admits the material facts that constitute a cause
of action . . . and entry of default, when appropriately
made, conclusively determines the liability of a defen-
dant. . . . Following the entry of a default, all that
remains is for the plaintiff to prove the amount of dam-
ages to which it is entitled. . . . At a minimum, the
plaintiff in such instances is entitled to nominal dam-
ages.’’ (Citations omitted; internal quotation marks
omitted.) Argentinis v. Fortuna, 134 Conn. App. 538,
545–46, 39 A.3d 1207 (2012).
Accordingly, the defendant is unable to challenge his
liability to the plaintiffs under the breach of contract
claim. He is, however, entitled to challenge the determi-
nation of damages awarded by the court. ‘‘In an action
at law, the rule is that the entry of a default operates
as a confession by the defaulted defendant of the truth
of the material facts alleged in the complaint which are
essential to entitle the plaintiff to some of the relief
prayed. It is not the equivalent of an admission of all
of the facts pleaded. The limit of its effect is to preclude
the defaulted defendant from making any further
defense and to permit the entry of a judgment against
him on the theory that he has admitted such of the
facts alleged in the complaint as are essential to such
a judgment. It does not follow that the plaintiff is enti-
tled to a judgment for the full amount of the relief
claimed. The plaintiff must still prove how much of
the judgment prayed for in the complaint he is entitled
to receive.’’ (Emphasis added; internal quotation marks
omitted.) Catalina v. Nicolelli, 90 Conn. App. 219, 221,
876 A.2d 588 (2005).
‘‘[T]he trial court has broad discretion in determining
damages. . . . The determination of damages involves
a question of fact that will not be overturned unless it
is clearly erroneous. . . . Damages are recoverable
only to the extent that the evidence affords a sufficient
basis for estimating their amount in money with reason-
able certainty.’’ (Internal quotation marks omitted.)
Argentinis v. Fortuna, supra, 134 Conn. App. 548. At
the hearing in damages, Sung Gaynor testified that she
paid the defendant for work that he had not completed.
She submitted various invoices marked ‘‘paid,’’ some
of which were initialed or signed by the defendant,
in support of her claim. The court, referring to those
exhibits in its memorandum of decision, credited her
testimony with respect to twelve items, which totaled
$57,618.
We have carefully reviewed the testimony and the
exhibits, and we find support in the record for eleven
of the twelve items. Sung Gaynor’s testimony was
unequivocal that the defendant had been paid for the
work and that the work had not been completed. ‘‘We
cannot retry the facts or pass on the credibility of the
witnesses.’’ (Internal quotation marks omitted.) Porter
v. Morrill, 108 Conn. App. 652, 664, 949 A.2d 526, cert.
denied, 289 Conn. 921, 958 A.2d 152 (2008).
With respect to one of the items for which the court
awarded damages, however, we conclude that its find-
ing was clearly erroneous. The court awarded the plain-
tiffs $5750 for ‘‘process,’’ and referred to exhibit
seventeen as support for that finding. At the hearing in
damages, the plaintiffs’ attorney asked Sung Gaynor if
any items on exhibit seventeen had not been completed.
She responded: ‘‘Process.’’ The plaintiffs’ counsel then
asked her for further clarification. She responded: ‘‘That
is like stone. I don’t know.’’ When asked where the
stones were placed, she said: ‘‘I think for the front
house. . . . For the steps, yes.’’ She testified that she
paid $5750 for the process. When asked if any other
items on exhibit seventeen had not been completed,
she testified that she never received the garage door
openers and that the gutters and leaders had not
been installed.
Exhibit seventeen, which is an invoice, lists four
items for which the plaintiffs were billed and submitted
payment. With respect to the third item, the invoice
reads ‘‘Process 4 [inches] - 6 [inches].’’ The invoice
indicates that the amount paid was $5750. The fourth
item on that invoice is ‘‘Asphalt 3 [inches] compacted.’’
The amount paid was $4750. Sung Gaynor never claimed
that the work with respect to the asphalt had not
been completed.7
Exhibit nine is a payment schedule that was admitted
as a full exhibit at the hearing. Dated seven months
earlier than exhibit seventeen, it lists dozens of items
and their estimated costs. One of the items is ‘‘process
for driveway’’ and the estimated cost is $5750. Immedi-
ately following that item is ‘‘asphalt driveway’’ at an
estimated cost of $4750. When exhibit nine and exhibit
seventeen are read together, it is apparent that the pro-
cess was to be used in connection with the installation
of the asphalt driveway. The prices on both exhibits
are identical. Because the plaintiffs did not claim that
the defendant failed to complete the work on the asphalt
driveway, it was clearly erroneous for the court to have
determined that the defendant billed for ‘‘process’’ that
had not been provided in the installation of the asphalt
driveway. Sung Gaynor’s testimony confirms that she
was unclear what ‘‘process’’ was and where it was to
be placed. Accordingly, the damages awarded should
not have included $5750 for process.
II
The defendant also claims that the court improperly
awarded the plaintiffs $14,404.19 as attorney’s fees
under their CUTPA claim. We agree because the allega-
tions in the plaintiffs’ CUTPA count, even if taken as
true, are insufficient on their face to state a cause of
action under CUTPA.8
‘‘An appellate court . . . may examine the allega-
tions of a complaint to ascertain whether they are suffi-
cient on their face to establish a valid claim for the
relief requested. . . . Although the failure of a party
to deny the material allegations of a pleading operates
so as to impliedly admit the allegations, a default does
not automatically trigger judgment for, or the relief
requested by, the pleader. The pleader is entitled to an
entry of judgment or a grant of relief as a function
of the nonresponsive party’s default and the attendant
implied admission only when the allegations in the well
pleaded filing are sufficient on their face to make out
a claim for judgment or relief. . . . While an admission
carries with it all reasonable implications of fact and
legal conclusions . . . the admission cannot traverse
beyond the bounds of the underlying pleading and admit
allegations not made by the pleader; the pleading is,
unless leave is granted to modify, the ceiling.’’ (Citation
omitted; internal quotation marks omitted.) Argentinis
v. Fortuna, supra, 134 Conn. App. 546–47.
Before reviewing the allegations in the plaintiffs’
CUTPA count, we set forth the principles applicable to
CUTPA claims. ‘‘CUTPA provides in relevant part that
[n]o person shall engage in unfair methods of competi-
tion and unfair or deceptive acts or practices in the
conduct of any trade or commerce. General Statutes
§ 42-110b (a). Connecticut courts, when determining
whether a practice violates CUTPA, will consider (1)
whether the practice, without necessarily having been
previously considered unlawful, offends public policy
as it has been established by statutes, the common law,
or otherwise—whether, in other words, it is within at
least the penumbra of some common-law, statutory, or
other established concept of unfairness; (2) whether it
is immoral, unethical, oppressive, or unscrupulous; (3)
whether it causes substantial injury to consumers (or
competitors or other businessmen). . . . Thus, a viola-
tion of CUTPA may be established by showing either
an actual deceptive practice . . . or a practice
amounting to a violation of public policy. . . . Whether
a practice is unfair and thus violates CUTPA is an issue
of fact. . . . The facts found must be viewed within
the context of the totality of circumstances which are
uniquely available to the trial court. . . . Additionally,
our Supreme Court has stated that [a]ll three criteria
do not need to be satisfied to support a finding of
unfairness. A practice may be unfair because of the
degree to which it meets one of the criteria or because
to a lesser extent it meets all three.’’ (Emphasis added;
internal quotation marks omitted.) Kosiorek v. Smigel-
ski, 138 Conn. App. 695, 711, 54 A.3d 564 (2012), cert.
denied, 308 Conn. 901, 60 A.3d 287 (2013).
‘‘[N]ot every contractual breach rises to the level of a
CUTPA violation.’’ (Internal quotation marks omitted.)
Naples v. Keystone Building & Development Corp., 295
Conn. 214, 228, 990 A.2d 326 (2010). ‘‘[N]ot every misrep-
resentation rises to [the] level of [a] CUTPA violation.’’
Hudson United Bank v. Cinnamon Ridge Corp., 81
Conn. App. 557, 571, 845 A.2d 417 (2004). ‘‘There must
be some nexus with a public interest, some violation
of a concept of what is fair, some immoral, unethical,
oppressive or unscrupulous business practice or some
practice that offends public policy.’’ Muniz v. Kravis,
59 Conn. App. 704, 715, 757 A.2d 1207 (2000). In the
absence of allegations arising to such a level of conduct,
the plaintiffs have failed to properly plead a cause of
action under CUTPA. See id.
The interpretation of pleadings is an issue of law.
Stamford Landing Condominium Assn., Inc. v. Ler-
man, 109 Conn. App. 261, 271, 951 A.2d 642, cert. denied,
289 Conn. 938, 958 A.2d 1246 (2008). ‘‘We conduct a
plenary review of the pleadings to determine whether
they are sufficient to establish a cause of action upon
default.’’ Richey v. Main Street Stafford, LLC, 110 Conn.
App. 209, 220, 954 A.2d 889 (2008).
To support their claim of a CUTPA violation, the
plaintiffs made the following allegations in the CUTPA
count of their complaint: (1) the defendant ‘‘charged the
plaintiffs more for the project than originally proposed’’;
(2) the defendant ‘‘charged the plaintiffs for work that
had not [been] completed on the property’’; and (3)
the defendant ‘‘changed the scope of the project and
dimensions of the house without properly explaining
what they were doing to the plaintiffs.’’9
The plaintiffs’ CUTPA count stated that the defen-
dant, by engaging in the conduct specified in that count,
‘‘acted deceptively, in bad faith and unethically.’’10 Nota-
bly, the plaintiffs did not allege that the defendant’s
practice ‘‘offend[ed] public policy’’ or that the defen-
dant’s actions were ‘‘immoral,’’ ‘‘oppressive,’’ or
‘‘unscrupulous.’’ Further, the plaintiffs did not allege
that the defendant’s practice ‘‘cause[d] substantial
injury to consumers.’’ See Kosiorek v. Smigelski, supra,
138 Conn. App. 711. In other words, of the three criteria
to be considered for determining whether a practice
violates CUTPA, the plaintiffs alleged only a portion
of the second criterion, i.e., that the defendant acted
‘‘deceptively, in bad faith and unethically.’’ As case law
provides, ‘‘[a]ll three criteria do not need to be satisfied
to support a finding of unfairness. A practice may be
unfair because of the degree to which it meets one of
the criteria or because to a lesser extent it meets all
three.’’ (Internal quotation marks omitted.) Id. Because
the plaintiffs relied solely on the second criterion for
their CUTPA claim, it follows that the ‘‘unethical’’ con-
duct alleged had to rise to the level necessary to consti-
tute a CUTPA violation.
It is clear from the record that the trial court seriously
questioned whether the plaintiffs’ allegations properly
alleged a CUTPA claim and whether the evidence pre-
sented at the hearing in damages allowed for a recovery
under CUTPA. At the conclusion of the hearing, the
court specifically requested that the plaintiffs address
their CUTPA claim in their posthearing brief. The court
expressed its concern with that particular claim: ‘‘I’m
sorry, I don’t see—I mean evidence of bad faith would
indicate that he—I mean there has to be, I think, a
pattern of that or—I just don’t see that there is—usually
it is based upon a violation of some principle of public
policy or there are per se violations that might have
been alleged, based upon failure to comply with either
the New Home Act or the Home Improvement Act or
various other things. But I just don’t—I don’t think what
you have shown here is anything more than a standard
dispute between a contractor and a homeowner. I mean
I think that—it is an issue for the court, even though
there is a default here. If there is a—if I have to find
by law a CUTPA violation, I just don’t see how, based
on those allegations, that you satisfied—but anyway,
you can brief that when you file your brief.’’11
Following the submission of posthearing briefs, the
court issued its memorandum of decision. Although the
plaintiffs sought $66,201 in direct damages for amounts
paid for work that was not done, $314,706.20 in conse-
quential damages for mortgage related expenses,
$14,404.94 in attorney’s fees and treble damages under
CUTPA, the court awarded them $57,618 in direct dam-
ages and $14,404.19 in attorney’s fees under CUTPA.
The court awarded none of the requested consequential
damages, and it expressly found that ‘‘double or triple
damages, although available under [CUTPA], are not
appropriate under the circumstances of this case.’’
The court’s statements at the end of the hearing in
damages, and the amount it awarded in comparison
with the amount sought by the plaintiffs, undermine
the viability of the plaintiffs’ CUTPA claim that relied
solely on the second criterion of the cigarette rule.
Although the plaintiffs claimed the defendant acted
unethically and in bad faith, the court did ‘‘not see . . .
evidence of bad faith’’12 and did not think that the plain-
tiffs ‘‘have shown . . . anything more than a standard
dispute between a contractor and a homeowner.’’
Our plenary review of the complaint, together with
our review of the transcript of the hearing in damages,
compel the conclusion that the plaintiffs failed to allege
facts in their complaint and failed to present evidence
at the hearing in damages to support a claim beyond a
mere breach of contract. Because the plaintiffs’ allega-
tions are insufficient to plead a proper cause of action
under CUTPA, they are not entitled to an award of
attorney’s fees under CUTPA.
‘‘[This] court may reverse . . . the decision of the
trial court if it determines that the factual findings are
clearly erroneous in view of the evidence and pleadings
in the whole record, or that the decision is otherwise
erroneous in law.’’ (Internal quotation marks omitted.)
Argentinis v. Fortuna, supra, 134 Conn. App. 559. The
court improperly awarded the plaintiffs $5750 for ‘‘pro-
cess’’ as damages for breach of contract and improperly
awarded the plaintiffs $14,404.19 as attorney’s fees
under CUTPA.
The judgment is reversed only with respect to the
awards of $5750 in contractual damages and $14,404.19
in attorney’s fees, and the case is remanded with direc-
tion to recalculate the damages award in accordance
with this opinion. The judgment is affirmed in all
other respects.
In this opinion PELLEGRINO, J. concurred.
1
The plaintiffs brought this action against Hi-Tech Homes and Richard
Stein. From the testimony of the witnesses and the representations made
by the parties at the hearing in damages, the trial court determined that Hi-
Tech Homes was a trade name and not a legal entity. The court concluded
that the action had been brought against Richard Stein doing business as
Hi-Tech Homes.
At oral argument before this court, Stein confirmed that he had been
doing business as Hi-Tech Homes when he and the plaintiffs entered into
the agreement at issue in this appeal. We therefore refer to Stein as the
defendant in this opinion.
2
The trial court found no basis for an award of additional damages to
the plaintiffs under their claim of unjust enrichment.
3
As noted by the trial court, the agreement did not contain a deadline
for the completion of the second phase of construction. The plaintiffs’ claims
for damages all were related to the second phase of construction.
4
Practice Book § 17-42 provides in relevant part: ‘‘A motion to set aside
a default where no judgment has been rendered may be granted by the
judicial authority for good cause shown upon such terms as it may impose.’’
5
Practice Book § 17-34 (a) provides: ‘‘In any hearing in damages upon
default, the defendant shall not be permitted to offer evidence to contradict
any allegations in the plaintiff’s complaint, except such as relate to the
amount of damages, unless notice has been given to the plaintiff of the
intention to contradict such allegations and of the subject matter which the
defendant intends to contradict, nor shall the defendant be permitted to
deny the right of the plaintiff to maintain such action, nor shall the defendant
be permitted to prove any matter of defense, unless written notice has been
given to the plaintiff of the intention to deny such right or to prove such
matter of defense.’’
6
The trial court provided a transcript of the hearing in damages, which
is contained in the court file.
7
The court did not include $4750 in its award of damages to the plaintiffs,
and that amount is not at issue in this appeal.
8
Following oral argument before this court, we ordered simultaneous
supplemental briefs on the following issue: ‘‘Although the allegations of the
plaintiffs’ CUTPA count were deemed admitted by the defendant, are the
allegations sufficient to state a cause of action under CUTPA?’’
9
The trial court noted at the conclusion of the hearing in damages that
there had been no testimony about the defendant decreasing the size of
rooms without permission or any evidence as to resulting damages.
10
The plaintiffs’ complaint primarily contains conclusory allegations. The
plaintiffs are obligated to provide grounds for their claim of deceptive and
unethical behavior, something more than mere conclusions and the formu-
laic recitation of the elements of a CUTPA cause of action. The defect in
the plaintiffs’ complaint is their failure to plead a sufficient factual basis to
support a claimed CUTPA injury. See Bridgeport Harbour Place I, LLC v.
Ganim, 111 Conn. App. 197, 204, 958 A.2d 210, aff’d, 303 Conn. 205, 32 A.3d
296 (2011).
11
This colloquy indicates that the trial court was well aware that the
CUTPA count may not have been sufficiently pleaded, and the court brought
that issue to the attention of the plaintiff’s counsel and the defendant. For
that reason, this is not a situation where an issue has been raised for the
first time on appeal and we declined to review it because it would have
been unfair to the trial court: ‘‘[W]e will not decide an appeal on an issue
that was not raised before the trial court. . . . To review claims articulated
for the first time on appeal and not raised before the trial court would be
nothing more than a trial by ambuscade of the trial judge.’’ (Internal quotation
marks omitted.) McCann Real Equities Series XXII, LLC v. David McDer-
mott Chevrolet, Inc., 93 Conn. App. 486, 527, 890 A.2d 140, cert. denied, 277
Conn. 928, 895 A.2d 798 (2006).
The dissent objects to our review of the CUTPA issue because it concludes
that it was not ‘‘adequately raised to this court by any party’’ and that, even
if the defendant’s argument could be broadly read to include it, the claim
‘‘most clearly was inadequately briefed.’’ It is true that the defendant did
not phrase his claim with precision nor did he brief it in an articulate and
thorough manner. The defendant, however, was self-represented at the time
of trial and during the appeal process. We, therefore, have afforded him
some leeway and have chosen to read his claim and argument broadly so
as to include the CUTPA issue addressed in this opinion.
‘‘[I]t is our policy to give leeway to pro se litigants regarding their adher-
ence to the rules of this court.’’ In re Brittany J., 100 Conn. App. 329, 330,
917 A.2d 1024 (2007). ‘‘The modern trend . . . is to construe pleadings
broadly and realistically, rather than narrowly and technically. . . . The
courts adhere to this rule to ensure that pro se litigants receive a full and
fair opportunity to be heard, regardless of their lack of legal education and
experience.’’ (Internal quotation marks omitted.) Mourning v. Commis-
sioner of Correction, 120 Conn. App. 612, 624–25, 992 A.2d 1169, cert. denied,
297 Conn. 919, 996 A.2d 1192 (2010).
12
‘‘Bad faith in general implies both actual or constructive fraud, or a
design to mislead or deceive another, or a neglect or refusal to fulfill some
duty or some contractual obligation, not prompted by an honest mistake
as to one’s rights or duties, but by some interested or sinister motive. . . .
Bad faith means more than mere negligence; it involves a dishonest purpose.’’
(Internal quotation marks omitted.) MacMillan v. Higgins, 76 Conn. App.
261, 270, 822 A.2d 246, cert. denied, 264 Conn. 907, 826 A.2d 177 (2003).