Rapin v. Nettleton

LAVER Y, J.,

concurring. I agree with the result of the majority, but I believe this court, en banc, or the Supreme Court should revisit New England Investment Properties, Inc. v. Spire Realty & Development Corp., 31 Conn. App. 682, 687-88, 626 A.2d 1316 (1993), regarding its position on the applicability of the bad faith doctrine set forth in Habetz v. Condon, 224 Conn. 231, 618 A.2d 501 (1992), involving a section of the Home Improvement Act, General Statutes § 20-429 (a),1 which is analogous to General Statutes § 20-325a (b).

I believe the following language from Habetz v. Condon, supra, 224 Conn. 239-40, applies to the facts in this case. “In the absence of specific legislative indication, however, we do not read the act to override the general principle embodied in the bad faith exception: that an individual should not profit from his own deceptive and unscrupulous conduct. This court never intended to advance the cause of the unscrupulous. We can only presume that the legislature had a similar intent. The question is not whether the legislature specifically carved out this bad faith exception, as the plaintiff has argued, but whether, in the absence of specific legislative indication otherwise, a doctrine founded on public policy and containing a strong strain of estoppel can prevent a misbehaving party from invoking the benefits *653of a statute which is absolute on its face. To deny the contractor any opportunity of recovery after he has completed his end of the bargain if he has persuaded the trier of fact that a statutory remedy is being invoked by a homeowner in bad faith would be to countenance a gross injustice and indeed to encourage its perpetuation and to assure its success.” Id.

The attorney trial referee’s conclusions that it would be inequitable to deny the plaintiff a recovery and that it was bad faith on the defendant’s part in raising as a defense the statutory signature requirement contained in § 20-325a (b) (7) were consistent with the underlying facts found.

“Abad faith exception is designed to prevent a party’s disavowal of previous conduct if such repudiation would not be responsive to demands of justice and good conscience. The law does not permit the exercise of a right to repudiate a contract when the exercise of such a right in bad faith would work an injustice. Every contract carries an implied covenant of good faith and fair dealing requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement.” Id., 238; Fruin v. Colonnade One at Old Greenwich Ltd. Partnership, 38 Conn. App. 420, 431-32, 662 A.2d 129 (1995), aff'd, 237 Conn. 123, 676 A.2d 369 (1996).2

*654I would apply the bad faith exception doctrine to this case rather than equitable estoppel.

General Statutes § 20-429 (a) provides in relevant part: “No home improvement contract shall be valid or enforceable against an owner unless it: (1) Is in writing, (2) is signed by the owner and the contractor, (3) contains the entire agreement between the owner and the contractor, (4) contains the date of the transaction, (5) contains the name and address of the contractor, (6) contains a notice of the owner’s cancellation rights in accordance with the provisions of chapter 740, (7) contains a starting date and completion date, and (8) is entered into by a registered salesman or registered contractor. ...”

I also note that in Fmin v. Colonnade One at Old Greenwich Ltd. Partnership, supra, 38 Conn. App. 431, we relied on Habetz v. Condon, supra, 224 Conn. 239-40, and applied the bad faith exception to a claim brought under the Common Interest Ownership Act (CIOA), General Statutes § 47-200 et seq. “Although the language of CIOA is not similar- to that in [the Home Improvement Act (HIA)], HIA is similar to CIOA in that its ‘objective . . . is to promote understanding by the consumer, to ensure his ability to make an informed decision and to protect him from substantial work by an unscrupulous contractor. See Habetz v. Condon, [supra, 239]. Both statutes, then, are essentially consumer protection statutes. We, therefore, turn to cases interpreting HIA to guide our resolution of the present case.” Fruin v. Colonnade One at Old Greenwich Ltd. Partnership, supra, 430. “As in the HIA cases, allowing the plaintiff to use CIOA to shield his *654refusal to perform his contractual duties 'would not be responsive to demands of justice and good conscience.’ Habetz v. Condon, supra, [238]. We, therefore, incorporate the HIA’s ‘bad faith’ exception to apply to CIOA cases." Fruin v. Colonnade One at Old Greenwich Ltd. Partnership, supra, 433.