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JAMES E. BURNS, JR. v. DAVID Y.

ADLER ET AL.

(AC 34565)

(AC 35005)

Sheldon, Mullins and Schaller, Js.

Argued January 20—officially released July 28, 2015

(Appeal from Superior Court, judicial district of

Litchfield, Danaher, J.)

David N. Rosen, with whom were James Maguire

and David Hunter Smith, and, on the brief, Steven D.

Ecker and M. Caitlin S. Anderson, for the appellants

in AC 34565 and the appellees in AC 35005 (named

defendant et al.).

William C. Franklin, for the appellee in AC 34565

and the appellant in AC 35005 (plaintiff).
Opinion

SHELDON, J. These appeals arise from an action by

the plaintiff, James E. Burns, Jr., doing business as Jim

Burns Handyman, to foreclose on a mechanic’s lien he

had filed against a parcel of real property owned by

the defendant David Adler, in Salisbury, and to recover

damages from Adler, on grounds of breach of contract

and unjust enrichment, for unpaid work he had performed at the property on the defendant’s home.1

In

the first part of a bifurcated trial, the court focused

exclusively on the plaintiff’s claims for damages,

together with the defendant’s special defenses to those

claims and parallel counterclaim for damages, based

principally upon the plaintiff’s alleged noncompliance

with certain provisions of the Home Improvement Act

(act), General Statutes § 20-418 et seq. The trial court

ordered the defendant to pay restitution to the plaintiff

for the value of his unpaid work, despite the plaintiff’s

noncompliance with the act, due to the defendant’s

bad faith conduct toward the plaintiff, as pleaded in

avoidance of the special defenses in the plaintiff’s reply.

In the second part of the trial, which focused exclusively

on the plaintiff’s claim for foreclosure of his mechanic’s

lien on the defendant’s property, the court rendered

judgment in favor of the plaintiff pursuant to a stipulation of the parties, but denied the plaintiff’s subsequent

motion for a supplemental judgment, insofar as it

sought attorney’s fees under General Statutes § 52-249

(a) in connection with his prosecution of the foreclosure claim. These appeals followed. In AC 34565, the

defendant claims error in the judgment of the trial court

awarding restitution to the plaintiff under the bad faith

exception to the act. In AC 35005, the plaintiff claims

error in the supplemental judgment of the trial court

denying his request for attorney’s fees in connection

with the foreclosure of his mechanic’s lien. We affirm

the judgments of the trial court.

FACTUAL AND PROCEDURAL HISTORY

The following facts and procedural history, as found

by the trial court in its memorandum of decision, are

relevant to our resolution of these appeals. ‘‘The plaintiff . . . is a high school graduate who began carrying

out sophisticated building projects in 2000. Most of his

work was based on oral agreements with his customers.

In September, 2007, the plaintiff had conversations with

[the defendant] about renovations and remodeling on

a ‘weekend’ home that [the defendant] and his wife

. . . Amie R. Weitzman, planned to buy in Lakeville

. . . . [The defendant] earned a law degree in 1988,

passed the bar [examination] in 1990, and, thereafter,

practiced law until he became an investment banker.

[The defendant] also had prior experience supervising

renovation projects on his other properties. Weitzman

is a professional interior designer.
‘‘The preliminary talks between the parties were very

general in nature. [The defendant] wanted substantial

demolition in the Lakeville house, the addition of a

second floor, and he wanted to expand the house’s

footprint, but most of all, he wanted the work to be

done as quickly as possible so that the [defendant and

Weitzman], whose primary residence is in New York

City, could use the house during the summer of 2008.

When the project was completed, the [defendant] had

made payments to the plaintiff in the amount of

$985,000. However, the plaintiff alleges that the [defendant] declined to pay him the balance due, which, the

plaintiff alleged in his complaint, is $214,039.09.

‘‘On December 2, 2008, the plaintiff brought suit

against the [defendant] and Weitzman, as well as the

Salisbury Bank and Trust Company. The operative complaint is a revised complaint filed on February 17, 2009.

It alleges that the plaintiff entered into an agreement

with the [defendant] to effect improvements to a home

located at 135 Interlaken Road [in] Salisbury . . . .

The plaintiff claims that he performed the services

requested, but that he was only partially paid for his

efforts. The complaint is in three counts seeking foreclosure of a mechanic’s lien, and alleging breach of

contract and unjust enrichment, respectively.

‘‘The [defendant] denied the allegations of the complaint and raised six special defenses. The [defendant]

also filed a four count counterclaim, in which [he]

alleged a violation of theConnecticut Unfair Trade Practices Act (‘CUTPA’) [General Statutes § 42-110a et seq.],

negligence, breach of contract and unjust enrichment.

The plaintiff, in turn, denied the allegations of the counterclaim and raised two special defenses.

‘‘The parties agreed that the issue of foreclosure of

the mechanic’s lien would be bifurcated from the primary trial and, if necessary, addressed in a separate

hearing. Furthermore, both parties sought attorney’s

fees, but agreed that this issue would also be bifurcated

from the primary trial and, if necessary, addressed in

a separate hearing.

‘‘This matter was first tried to the court on October

27, 2011. The trial continued on November 2, 3, 4 and

10, 2011. The parties filed simultaneous posttrial briefs

on January 6, 2012, and simultaneous reply briefs on

January 17, 2012.

‘‘At the time of the preliminary discussions, the

[defendant] did not have any formal plans to show to

the plaintiff. The [defendant] closed on the Lakeville

property on or about October 4, 2007, and, absent plans,

the plaintiff immediately began work demolishing the

interior. Thereafter, the plaintiff’s immediate tasks were

to reconfigure some of the rooms and plan for the

addition of a second story.

‘‘The record reflects three significant issues that were
manifest throughout the project and ultimately helped

bring about this litigation. First, the project evolved

continuously from beginning to end. Second, the parties

shared a mutual disregard for the provisions of [the act]

and for documentation, in general. Third,the [defendant

and Weitzman] were so focused on completing the project expeditiously that they made expense, quality control and personal responsibility for the project all

subordinate to the goal of completing the project on

time. [The defendant] testified that he knew that making

‘speed’ a priority would make the project more expensive, but he did not think that such a focus would have

a significant impact on the cost of the project or that

the nine month time frame reflected a tight schedule.

The record reveals, however, that [the defendant] knew

little about the details of construction and renovation,

and so he had no legitimate basis for reaching the latter conclusions.

‘‘The record reflects that the plaintiff and [the defendant] entered into a very rudimentary general contract

dated October 5, 2007, that had a ‘start date’ of October

11, 2007. . . . The contract was a time and materials

contract providing for payment at the rate of ‘$45 per

man plus any expenses . . . .’ The contract required a

twenty thousand dollar deposit, which the [defendant]

paid. It does notreflect a completion date forthe project

because there were no final plans when the contract

was signed; indeed, it does not appear that the plans

were ever truly finalized. Despite the [defendant’s]

claims to the contrary, the record does not support the

conclusion that the parties ever entered into a fixed

price contract.

‘‘The October 5, 2007 contract reflects the plaintiff’s

effort to conform to the requirements of the [act], a

law with which the plaintiff was personally unfamiliar,

but which had been mentioned to him by his attorney.

The two page contract carries [the defendant]’s signature on page two along with the date of October 9, 2007.

[The defendant] is the only signatory on the contract

offered into evidence; there is no evidence that Weitzman ever entered into a written contract with the plaintiff. The contract carries three copies of the ‘Notice of

Cancellation,’ as required by the [act]. The copies of

the cancellation notice indicate that they are for the

customer, the customer’s files and the contractor.

Bizarrely, [the defendant], in addition to signing the

contract, also signed all three copies of the cancellation

notice and dated each of them ‘October 9, 2007.’ . . .

The plaintiff, understandably puzzled, called [the defendant] to determine his true intentions with regard to

the project.

‘‘[The defendant] testified that he reviewed the contract carefully, but that he did not read the cancellation

notices closely, and he ‘didn’t know what the purpose

of the cancellation notice was.’ . . . [The defendant]
also testified that he did not notice that the contract

lacked a completion date. Nonetheless, throughout his

testimony, [the defendant] continued to imply that he

had read the contract carefully. The court finds that

[the defendant]’s testimony on this issue is not credible.

In addition to the foregoing inconsistencies, the record

also reflects an e-mail [dated October 10, 2007] from

[the defendant], purportedly explaining why he signed

the cancellation notices, with the subject line: ‘Sorry I

had my assistant print it out and just signed everything.’

. . . In response to that e-mail, the plaintiff requested a

new contract or a letter stating that the original contract

was still in effect. [The defendant] never sent a new

contract, nor did he send the letter that the plaintiff

requested. The plaintiff testified that he signed the contract and gave a copy to the [defendant], but no such

copy was introduced at the time of trial.

‘‘The [defendant claims] that [he] never received a

completely executed contract. On the other hand, the

record does not reflect that [the] defendant ever

expressed any concern about [the] apparent failure to

enterinto an accurate written contract. On the contrary,

[the October 10, 2007 e-mail] is representative of the

[defendant’s] hierarchy of concerns. Specifically, [the

defendant]’s reply to the plaintiff’s request for written

clarification of the cancellation issue stated, ‘[w]ill do

on the contract,’ but then [the defendant] immediately

shifted to the topic of moving the project quickly, asking

the plaintiff to send all samples to him by Federal

Express because it would be ‘more efficient’ in that it

would permit the [defendant] to ‘make decisions expeditiously.’ [The defendant]’s lack of understanding of the

practical concerns related to his own project is also

suggested in that same [e-mail] in which he requested

a price for ‘‘quarter-sewn . . . flooring (I don’t even

know what that is but remember [A]mie . . . and the

architect discussing it) . . . .’

‘‘The demolition/renovation/remodeling project at

issue (‘the project’) occupied the plaintiff virtually fulltime from the time he entered into the agreement until

he was terminated by the [defendant] in September,

2008. The plaintiff accepted no other significant jobs

during the foregoing time period. That fact, coupled

with the [defendant’s] determination not to make the

final $214,039.09 payment, put the plaintiff out of business. Without the final payment, the plaintiff could not

pay his subcontractors, some of whom brought suit

against him. Likewise, the plaintiff could not pay for

all of his materials, resulting in some of his materials

suppliers bringing suit against him. The plaintiff testified that, as a result, he has no expectation that he can

rebuild his business because subcontractors will not

work for him in the future, and he will not be able to

purchase supplies at contractors’ discount prices.

‘‘Throughout the course of the project, the plaintiff
received work orders by telephone and e-mail from

multiple sources, including the [defendant and Weitzman], [the] architect, Beth Slotnick, and Weitzman’s

assistant, Julie Weiner. It is apparent that none of those

sending orders to the plaintiff was fully aware of the

totality of the orders sent to the plaintiff. In fact, [the

defendant] testified that he never saw the many e-mails

sent by Weitzman’s assistant until the pretrial discovery

process. The evidence is convincing and overwhelming

that this project took many directions that were never

anticipated when the work began. The written plans

were revised many times, and the e-mail communications introduced into evidence show that changes to

the project were frequent and significant.

‘‘Some of the e-mail orders admitted into evidence

compel the conclusion that this project was marked by

untrammeled profligacy on the part of the [defendant]

and [his] associates. For example, Weitzman’s assistant

directed the plaintiff, a $45 per hour contractor, to

assemble furniture at the house. He was also assigned

to roll up rugs, put mattresses on beds, mow the lawn,

remove brush and chop firewood. On other occasions,

the plaintiff was asked to price various items that the

[defendant] intended to purchase and install in the

house, such as a wine refrigerator and an oven hood

vent . . . which are tasks that do not normally fall

to a contractor. In one notable instance, Weitzman’s

assistant directed the plaintiff to stand by in order to

accept a shipment of window shades. Thereafter, she

advised him that the shades were the wrong size and

urged him to return them promptly before the [United

Parcel Service] return label expired. Thus, in order to

save the cost of a mailing label, a contractor was effectively hired to do a job that in no way required a contractor’s skills.

‘‘The plaintiff testified that he attempted to curb costs

by not adding a contractor’s markup to subcontractor

charges. He also testified that he did not add a surcharge

to the cost of materials that he purchased from the

suppliers, even though it is customary to do so in his

business. As the project went forward, from time to time

the plaintiff would ask the [defendant] for payments to

cover expenses and to keep the project moving forward,

and, in response, the [defendant] initially sent the

checks that were requested. The checks were sometimes in the range of forty thousand dollars, and the

[defendant] sent them to the plaintiff without asking

for an accounting with regard to time or materials

expenditures. The plaintiff never sent specific bills to

the [defendant], and the [defendant] never requested

such bills, at least in the early months of the project.

‘‘The parties originally discussed a total cost of the

project in the $400,000 range, but that figure was not

based on any specific set of plans, since no final plans

existed in the early months of the project. The plaintiff
typically worked six days per week, beginning at 7 a.m.

and continuing until 5:30 p.m. Sometimes, afterward,

he worked on paperwork associated with the project

and, on occasion, worked on Sundays in order to meet

the stringent deadline imposed upon him. He testified

that the frequent changes in the project made it increasingly difficult to meet the all-important project deadline

of early summer 2008.2

* * *

‘‘As time went on, the pattern of the . . . change

orders [submitted by the defendant, Weitzman, her

assistant and the architect] and the plaintiff’s requests

for regular checks continued unabated. It was not long

before the project went well beyond the $400,000 figure

that the parties originally discussed. Nonetheless, the

[defendant] continued to send checks to the plaintiff

as he worked assiduously to meet their demands. It

was not until March, 2008, that the [defendant] began

to focus on the mounting cost of the project. At that

point, the plaintiff presented the [defendant] with a

budget report showing a projected total cost of

$810,267, reflecting both the expenses up to that point

and also the anticipated future expenses based upon

the state of the project at that time. . . . On March 25,

2008, the plaintiff sent the [defendant] a slightly revised

budget report that showed that the cost of the completed elements of the project was $518,352.93. . . .

The revised budget report also indicated that anticipated future expenses would bring the total project

cost to $795,038. The report also identified instances

of normal contractor charges that were being excluded,

such as a 10 percent contractor markup on materials.

. . . The record does not reveal that the [defendant]

registered any disagreement with the revised budget

report. In fact, the [defendant, Weitzman, her assistant

and the architect] continued to issue a wide variety of

work directions to the plaintiff.

‘‘It was not until May 27, 2008, that the plaintiff submitted another budget report to the [defendant]. . . .

At that point, the plaintiff estimated that total cost of

the project would be $886,954. However, that budget

report also noted that expenses related to certain additional tasks, that the [defendant and the others]

requested of the plaintiff, were not included in the foregoing figure. The plaintiff did not estimate the cost for

those additional items. . . . The plaintiff advised the

[defendant] that he owed substantial sums to his subcontractors and required additional funding to keep

them working. . . . [The defendant] testified that,

although he was unhappy with the figures reflected in

[the May 27, 2008 budget], he elected to continue with

the plaintiff as his contractor because he did not want

to change contractors in mid-project, as he was in a

hurry to use the house. Therefore, the [defendant,

Weitzman, the architect and Weitzman’s assistant] con-
tinued to ask the plaintiff to do tasks forthem, including

the placement of furniture. These requests flowed from

the [defendant and the others] to the plaintiff through

the end of July, 2008. . . . Even though it was clear to

the [defendant] that they were going to make more

changes and give new assignments to the plaintiff, [the

defendant] testified, inexplicably, that he thought the

May 27, 2008 budget report reflected the terms of a

new, and verbal, fixed price contract. . . .

‘‘On August 25, 2008, the plaintiff submitted ‘final

numbers’ for the project, indicating that the project

had cost a total of $1,188,350. By August 4, 2008, the

[defendant] had paid a total of $985,000 to the plaintiff,

and, therefore, the balance due was $203,350. . . .

Even though there was a substantial balance owed to

the plaintiff, the work on the project was, at that point,

about 98 percent complete, according to the plaintiff.

On September 3, 2008, [the defendant] sent an e-mail

to the plaintiff, reviewing, in general terms, the expansion of the cost of the project. That e-mail indicated

that, although [the defendant] was unhappy with the

costs presented to him, he was willing to review the

reported charges. [The defendant] also expressed his

happiness at the quality of the plaintiff’s work, and

stated that he wanted the plaintiff to continue to work

[on the project], indicating that [he] wanted the plaintiff

to execute a ‘100+ item punch list [he had] provided to

[the plaintiff].’

‘‘On September 8, 2008, the plaintiff responded to

[the defendant] with another review of the project costs

and sought a balance due in the amount of $214,911.

. . . On September 12, 2008, the plaintiff provided the

[defendant] with a lengthy e-mail, explaining how the

costs of the project grew significantly larger in the final

months of work. . . . The e-mail included a list of

twenty-two numbered items, detailing the added costs.

On September 16, 2008, the [defendant] advised the

plaintiff that, notwithstanding his explanations for the

various charges, the [defendant] had concluded that

[he] did not owe the plaintiff anything beyond the

$985,000 that [he] had paid as of August 4, 2008. The

[defendant] then invited the plaintiff to seek relief

through ‘the judicial system,’ and . . . reminded the

plaintiff of the fact that [he] is an attorney.

‘‘Despite having terminated their business relationship in the September 16, 2008 e-mail, the [defendant]

sent another message to the plaintiff on September 24,

2008, asking him to complete items on the punch list

as well as additional ‘extra’ items that were not on the

punch list. On September 27, 2008, the [defendant] again

directed the plaintiff to continue working on the punch

list. Further communications indicate that it was the

[defendant’s] intent that the plaintiff continue to work

on the project even into October, 2008. Nonetheless,

the [defendant] did not pay the plaintiff’s final bill pre-
sented to [him] on August 25, 2008. As a result, the

plaintifflacked the funds to pay what he owed to various

subcontractors and to, at least, one supplier. Some of

those subcontractors and the supplier ultimately sued

the plaintiff. On October 10, 2008, the plaintiff served

upon the [defendant], and filed, a certificate of mechanic’s lien to secure the $214,039.09 payment that is the

subject of this case.

‘‘This case suffers from the fact that neither party

was effective at creating or maintaining proper records.

The plaintiff did not retain all invoices, but rather calculated his expenses largely from his checkbook records,

invoices and time sheets that he did retain. The plaintiff

had no employees, but rather did all the administrative

work for his business. The plaintiff did not keep all

time sheets relative to the project, nor did he keep a

daily construction log or any other record that would

show which tradesmen were on the site, what work

was done, or what materials were delivered to the site

on any given day. Rather, the crew members kept their

own time sheets. The plaintiff testified that, because

he was on site every day, he saw his crew members’

work, knew what was being done and paid them for

their work when it was justified. The plaintiff never

prepared formal bills for the [defendant], but rather

would simply ask the [defendant] for more money when

he needed it, and the [defendant] sent the checks upon

request, until [he] reached the point where [he] decided

that [he] had paid enough for the project.

‘‘The defendant, for [his] part, did not request formal

bills, backup invoices, time cards or even a formal

accounting until they were far into the project. In fact,

it does not appear that the [defendant] ever asked for

backup documentation to support the plaintiff’s various

requests for payment. The project plans were revised

many times and, even when the plans arguably reached

a ‘final’ stage, the [defendant, Weitzman, her assistant

and the architect] continued to direct the plaintiff to

carry out additional, ad hoc assignments throughout

the summer of 2008. The evidence is clear that at least

four different people gave work orders to the plaintiff,

including [the defendant and] Weitzman, [the] architect

and Weitzman’s assistant, throughout the course of the

project. The evidence supports the conclusion that of

the four people giving orders to the plaintiff, none of

them had a complete understanding of what each of

the other members of the group was telling the plaintiff

to do.’’ (Citations omitted; footnotes altered.)

TRIAL COURT’S FACTUAL FINDINGS AND LEGAL

CONCLUSIONS WITH RESPECT TO PLAINTIFF’S

CLAIM FOR RESTITUTION UNDER

BAD FAITH EXCEPTION TO ACT

The court determined that the plaintiff had failed to

comply with the act,3 and thus that he was statutorily

precluded from recovering damages on either his
breach of contract claim or his unjust enrichment claim.

This conclusion, however, did not end the court’s

inquiry, for it went on to consider the plaintiff’s plea

in avoidance as to the defendant’s special defense of

noncompliance with the act based on the defendant’s

alleged bad faith in invoking the act as a basis for not

compensating him for his services. On that issue, the

court found the following additional facts. ‘‘The parties’

relationship began to strain in early March, 2008, when

[the defendant] started asking for a detailed explanation

of the charges associated with the project. At that point,

the cost had more than doubled beyond the original

$400,000 figure that the parties discussed originally.

However, even though [the defendant] continued to

send checks as requested from the period of October,

2007 through March, 2008, and even though their total

far exceeded the original $400,000 estimate, there is no

evidence that [the defendant] ever sought copies of

bills, invoices, receipts or any other accounting except

asking the plaintiff to list the expenses, which the plaintiff did in a single, two page document. . . . That document was entitled, ‘Upcoming Expenses,’ and showed

that the expenses would, at that point, total nearly

$300,000. [That document] also showed that the current

expenditures on the project totaled $521,944, and that

[the defendant] had paid $365,000, leaving a balance

owed—separate from any future expenses—of

$156,944.

‘‘Notwithstanding the foregoing mushrooming

expenses, [the defendant], along with Weitzman, [her]

assistant and the architect, continued to assign tasks

to the plaintiff without making corresponding inquiries

regarding the expenses associated with those tasks.4

* * *

‘‘The court is unable to find any timely inquiry of

any kind, from [the defendant] or any other person

authorized to assign tasks to the plaintiff, regarding

the expense associated with any [such additional] job

orders. This pattern continued through May, 2008. On

May 23, 2008, the plaintiff advised [the defendant] of

extra items that had not been ‘priced and/or figured as

there [were] some last minute changes as we near the

end.’ . . . The latter message reminded [the defendant]

that the plaintiff would have debts to subcontractors.

On May 27, 2008, the plaintiff advised [the defendant]

that the project cost had grown to $886,954, but that

other items were still to be completed and those costs

were not included in the latter figure. . . . In that message, the plaintiff advised [the defendant] that subcontractors were requesting payment for their work, and

that he was ‘very much’ in arrears at that time and

required ‘a substantial payment’ to meet those debts.

. . .

‘‘After the May 27, 2008 message, work orders continued to flow to the plaintiff, directing him to handle
furniture delivery and assembly, as well as larger tasks,

such as the possible installation of mahogany for the

deck, and also urging the plaintiff to complete a dock

so that it would be operational when [the defendant]’s

children returned from camp. That message noted that

[the defendant] was wiring a $40,000 payment to the

plaintiff. . . . [The defendant] sent additional work

requests to the plaintiff on July 28, 2008, advising him,

inter alia, that ‘we definitely need a boat/kayak

holder—it should hold 3 kayaks and 1 canoe.’ . . .

‘‘The plaintiff sent a final bill on August 28, 2008,

showing a total cost of $1,188,350, payments of $985,000

and a balance due of $203,350. On September 3, 2008,

[the defendant] advised the plaintiff that he believed

he had paid everything that he owed. [The defendant]

told the plaintiff that he required additional justification

‘before I consider any additional payments to you

. . . .’ He acknowledged that the plaintiff was indebted

to subcontractors, and noted that the plaintiff had not

begun to address the ‘100+ item punch list we have

provided to you. We have been very happy with the

quality of your work generally and it is my hope that

we can resolve this matter amicably.’ . . .

‘‘The plaintiff responded with detailed explanations

of the costs associated with the project. . . . He made

abundantly clear to [the defendant] that he was significantly indebted to subcontractors. . . . As early as

September 9, 2008,[the defendant] was seeking an attorney to address his financial disagreement with the plaintiff. . . .

‘‘On September 16, 2008, [the defendant] advised the

plaintiff that ‘[w]e are at the end of the road.’ [The

defendant] claimed that he had spent many hours

reviewing the plaintiff’s explanations and had ‘concluded that I do not owe you any additional amounts.’

He advised the plaintiff that he would be hiring a new

contractor to complete items on the punch list, and he

invited the plaintiff to bring suit, warning him that, ‘[a]s

an attorney I expect to represent myself. If you choose

to commence litigation, I will seek reimbursement from

you for the costs of completing the punch list . . . .

We are officially and immediately terminating our relationship.’ . . . This message constituted a termination

of the agreement between the parties. . . .

‘‘Despite the foregoing, [the defendant] continued to

ask the plaintiff to work on the project. On September

17, 2008, [the defendant] gave the plaintiff permission

to enterthe house to work on the punch list. On September 24, 2008, [the defendant] sent the plaintiff a detailed

list of punch list items that he wanted the plaintiff to

complete, noting that he was ‘anxious to get all of these

items done . . . .’ ’’ (Citations omitted; emphasis

added; footnote omitted.) The court continued: ‘‘On

October 7, 2008, [the defendant] inquired further as to

the plaintiff’s progress on the punch list, noting that he
did not want the plaintiff working on the punch list

during an upcoming weekend when [the defendant]

and his family would be using the house. . . . Shortly

thereafter, [the defendant] received notice of the service of a mechanic’s lien and, forthatreason, [the defendant] barred the plaintiff from the premises, and [the

defendant] advised the plaintiff that another contractor

would be hired to do further work. . . .

‘‘It is readily apparent to the court that when [the

defendant] made his final payment on August 4, 2008,

he had no intention of ever making any further payments. [The defendant] received detailed explanations

forthe charges from the plaintiff, but offered no detailed

response, other than to claim that he had reviewed

the plaintiff’s reports and disagreed with them. [The

defendant] knew that many subcontractors were working on the project and that the plaintiff was indebted

to them. [The defendant] knew that the plaintiff had

purchased significant materials for the project and that

the plaintiff was indebted to the suppliers. Further, both

[the defendant] and the plaintiff knew that by August

4, 2008, the project was largely complete. Thus, even

if [the defendant] elected not to pay the plaintiff for

the work done to that point, the project itself was not

at risk, since [the defendant] could easily get another

contractor to finish the tasks that remained, which is

what happened. Therefore, it did notreally matterif [the

defendant] could not trick the plaintiff into finishing the

entire punch list, which, again, is what happened.

‘‘Aperson of significantly less sophistication than [the

defendant] would have known that the end-of-project

billing dispute that mushroomed in August and September, 2008, created a serious risk of putting the plaintiff

out of business if [the defendant] did not pay the bills

that he owed. In fact, that is exactly what happened at

some point after the plaintiff filed his mechanic’s lien.

It was the plaintiff’s fear of losing his business that gave

[the defendant] enormous leverage over the plaintiff,

thus compelling the plaintiff to go on working for [the

defendant], hoping against hope—vainly, as it turned

out—that [the defendant] would ultimately pay the

plaintiff for all of his work.

‘‘The messages between [the defendant] and the

plaintiff reflect a homeowner who knew, and took

advantage of the fact, that his contractor had limited

assets and desperately needed to be paid. As late as

September, 2008, [the defendant] assured the plaintiff

that the [defendant was] satisfied with the quality of

the plaintiff’s work, and [the defendant] then implied

that he might make further payments to the plaintiff,

thereby inducing the plaintiff to continue to work for

[the defendant]. . . . The entire project was marked

by [the defendant]’s indifference to the mannerin which

work orders were given to the plaintiff; indeed, [the

defendant] did not even know what all of those orders
were. [The defendant]’s messages to the plaintiff

focused almost exclusively on the work to be done and

the speed with which it could be done. [The defendant]

seldom inquired as to the expense involved. His disinterest in managing the project costs causes the court to

reject his claim that charges beyond the amount he

chose to pay were unwarranted. . . .

‘‘[The defendant] unilaterally and arbitrarily selected

a price that he was willing to pay for the project. He had

agreed to a time and materials contract, but eventually

decided, without a sound factual basis, that he would

not pay for all of the time and materials expended

on the project. Thereafter, having decided to make no

further payments after August 4, 2008, [the defendant]

enticed the plaintiff into continuing to do work for

him, using a ‘carrot and stick’ approach. After the last

payment was made on August 4, 2008, [the defendant]’s

actions suggested to the plaintiff that perhaps [the

defendant] could be convinced that the additional

charges were valid. For many weeks after making the

August 4, 2008 payment, [the defendant] attempted to

convince the plaintiff to complete the punch list, which

consisted of more than one hundred items. At the same

time that [the defendant] was encouraging the plaintiff

to go on working for him, [the defendant] was concomitantly suggesting to the plaintiff that if the plaintiff was

contemplating legal action to recover the moneys he

was claiming, [the defendant] would represent himself,

thus signaling that there would be no expense to [the

defendant] in defending or bringing a lawsuit, yet

implicitly reminding the plaintiff that he, unlike [the

defendant], would have to bear the expense associated

with retaining counsel to obtain redress. [The defendant] knew, from his communications with the plaintiff,

that the plaintiff was in difficult economic straits at

that point.

‘‘When viewed in light of all the circumstances, the

court concludes that [the defendant]’s approach constituted a design to mislead and/or deceive the plaintiff.

Further, [the defendant]’s decision to continue to

encourage the plaintiff to work for him after August 4,

2008, knowing that [the defendant] would not be making

any further payments to the plaintiff, constituted a

neglect and/or a refusal to fulfill [the defendant]’s contractual obligations to the plaintiff.

‘‘The court, having had ample opportunity to observe

the conduct, demeanor and attitude of the witnesses,

to evaluate the testimony and to relate the testimony

of each witness to the exhibits in the case, concludes

that [the defendant]’s decision to make no further payments after August 4, 2008, was not prompted by an

honest mistake as to his rights or duties. Instead, this

decision was the product of [the defendant]’s desire to

use the plaintiff to finish the project at no further

expense to [the defendant]. The latter approach was
faster, more efficient and vastly more economical than

concluding the relationship with the plaintiff and

retaining a new contractor. Thus, it was a course of

conduct that was the product of [the defendant] choosing to serve his own financial interests at the plaintiff’s

expense. Indeed, the latter conclusion is something of

an understatement considering the fact that [the defendant]’s course of action served to put the plaintiff out

of business. . . .

‘‘[The defendant] was not honest with the plaintiff

when [he] suggested, after August 4, 2008, that he might

make the additional payments that the plaintiff needed

to pay his subcontractors and materials suppliers. The

plaintiff has met his burden of establishing bad faith by

[the defendant].’’ (Citations omitted; footnote omitted.)

The court thereby rejected the defendant’s special

defenses and counterclaim based upon alleged noncompliance with the act.5

Turning to the issue of damages, the court made the

following additional findings: ‘‘The plaintiff presented

credible evidence, which the court does credit, indicating that the value of the plaintiff’s work on the project,

the value of the work of the crew members and subcontractors who worked under his supervision, and the

cost of materials and associated expenses exceeds, not

only the $985,000 paid by the [defendant], but also the

$214,039 in damages claimed in the complaint. However, since the plaintiff’s damage recovery is limited to

the allegations in his complaint, the court awards the

plaintiff $214,039.09 in damages, as alleged in count

two of the complaint.’’6

(Footnote omitted.) The court

found that Weitzman was not liable to the plaintiff

because she was not a party to the contract, and thus

any damages were recoverable only as to the defendant.

TRIAL COURT’S FACTUAL FINDINGS AND LEGAL

CONCLUSIONS WITH RESPECT TO PLAINTIFF’S

REQUEST FOR ATTORNEY’S FEES IN

CONNECTION WITH HIS

FORECLOSURE OF

MECHANIC’S LIEN

ON DEFENDANT’S

HOME

On April 12, 2012, the plaintiff moved for a supplemental judgment on the first count of his complaint, in

which he sought to foreclose on the mechanic’s lien he

had filed on the defendant’s property, as well as to

recover attorney’s fees pursuant to § 52-249 (a) and

postjudgment interest pursuant to General Statutes

§ 37-3a. On June 22, 2012, the parties entered into a

stipulation that partially resolved the issues presented

by the motion for a supplemental judgment. As the

court outlined in its August 20, 2012 memorandum of

decision on that motion: ‘‘The parties also stipulated,

relative to the mechanic’s lien, that a judgment may

enter in favor of the plaintiff on the first count of the
revised complaint. The stipulated terms of the foregoing

judgment are: (a) that the plaintiff is owed a debt in

the amount of $214,039.09;(b) that the fair market value

of [the defendant’s] interest in the property that is the

subject of the lien is in excess of $500,000; (c) that the

court shall enter a judgment of strict foreclosure, with

law days to commence August 14, 2012; (d) that the

plaintiff is entitled to a title search fee in the amount

of $225; (e) that the plaintiff is not entitled to an

appraisal fee; and (f) that the issue of the plaintiff’s

right to attorney’s fees on the first count is left for the

court to resolve.

‘‘The June 22, 2012 stipulation further provides that

the parties agree that the plaintiff, if he ultimately prevails in the appeal, will be entitled to postjudgment

interest from April 2, 2012, at the rate of 4.5 percent

per annum on any judgment ultimately found to be due

and payable by [the defendant].’’

The only remaining issue for the court’s resolution

was whether the plaintiff was entitled to attorney’s fees

pursuant to § 52-249 (a). On that issue, the court concluded as follows: ‘‘General Statutes § 52-249 (a) plainly

and unambiguously requires a hearing on a mechanic’s

lien as a necessary precedent to an award of attorney’s

fees. Moreover, reading the statute as requiring such a

hearing does not yield either absurd or unworkable

results. On the contrary, the foregoing interpretation

of the statute creates an incentive for parties, especially

defendants, to resolve issues pertaining to, e.g.,

mechanic’s liens, without a hearing. Consequently,

since there was no hearing in this case, General Statutes

§ 52-249 (a) precludes an award of attorney’s fees in

this case.’’

These two appeals followed. In AC 34565, the defendant claims that the trial court improperly rendered

judgment in favor of the plaintiff under the bad faith

exception to the act. In AC 35005, the plaintiff claims

that the court improperly denied his request for attorney’s fees in connection with the foreclosure of his

mechanic’s lien on the defendant’s property pursuant

to § 52-249 (a). We address each appeal in turn.

I

AC 34565

In this appeal, the defendant challenges the trial

court’s judgment awarding restitution to the plaintiff

under the bad faith exception to the act for the unpaid

work he performed on the defendant’s home under a

home improvement contract that did not comply with

the mandatory requirements of the act. Specifically, the

defendant makes the following claims of error. First,

he contends that the bad faith exception was abrogated

by the passage of No. 93-215 of the 1993 Public Acts

(P.A. 93-215), which amended the act shortly after the

exception was firstrecognized and applied without cod-
ifying the exception into the act’s provisions. Second,

he claims that even if the exception was not so abrogated, it has never been applied where, as here, the

homeowner’s alleged bad faith conduct neither preceded, and thereby caused, the contractor’s performance of the work for which he seeks restitution nor

involved the homeowner’s acceptance of such work

with knowledge of the contract’s noncompliance with

the act, and resulting unenforceability for the dishonest

purpose of not paying for such work by later invoking

the act. Third, the defendant claims that even if the bad

faith exception can be invoked on the basis of bad faith

conduct not involving the knowing acceptance of work

under an unenforceable contract in order to avoid paying for such work, the defendant’s proven conduct was

not marked by bad faith, for it involved only an honest,

good faith dispute about the nature and quality of the

contractor’s work. We reject the defendant’s claims for

the following reasons.

A

As for the defendant’s claim that the bad faith exception to the act was abrogated by the passage of P.A.

93-215, the parties understand and agree that we are

bound to reject that claim under the authority of Walpole Woodworkers, Inc. v. Manning, 126 Conn. App. 94,

105, 11 A.3d 165 (2011), aff’d, 307 Conn. 582, 57 A.3d

730 (2012), in which another panel of this court rejected

that claim. We will be bound by our holding in Walpole

Woodworkers, Inc., until it is overruled either by our

Supreme Court or by an en banc panel of this court.

The defendant has raised the claim before us solely to

preserve it forlater Supreme Courtreview. Accordingly,

we will not address it further at this time.

B

The defendant next claims that the court erred in

awarding the plaintiff damages under the bad faith

exception to the act because his dispute with the plaintiff arose before he knew of the act or its requirements

and after the plaintiff had performed all of the work

for which he now seeks restitution. By this argument,

the defendant suggests that the only situation in which

a homeowner can be found to have invoked the act in

bad faith to defeat a contractor’s claim for payment for

work performed without an act-compliant contract is

when he does so to avoid paying for services he

accepted with knowledge of the act and its requirements and the intent not to pay for them by later invoking the act. If, by his logic, his billing dispute with

the contractor arose before he knew of the act or its

requirements, when he was unaware of the contract’s

noncompliance with the act or its resulting unenforceability, his later invocation of the act to defeat the contractor’s claim for payment cannot be found either to

have been made in bad faith or to have caused the

contractor any losses for which he is entitled to restitu-
tion. We disagree.

Our Supreme Court has declared that the act ‘‘is a

remedial statute that was enacted for the purpose of

providing the public with a form of consumer protection

against unscrupulous home improvement contractors.

. . . The aim of the statute is to promote understanding

on the part of consumers with respect to the terms of

home improvement contracts and their right to cancel

such contracts so as to allow them to make informed

decisions when purchasing home improvement services. . . . Therefore, to advance this purpose, the act

provides that a home improvement contract is not

enforceable against a homeowner, either by way of an

action for breach of contract or for unjust enrichment,

unless the contract complies with the mandatory writing requirements of General Statutes § 20-429 (a). . . .

‘‘Although the act generally prohibits a plaintiff from

pursuing a claim for unjust enrichment on a home

improvement contract if the act’s requirements are not

satisfied, proof of bad faith on the part of the homeowner is an exception to this restriction. . . . The bad

faith exception precludes the homeowner from hiding

behind the protection of the act. . . . The central element giving rise to this exception is the recognition

that to allow the homeowner who acted in bad faith to

repudiate the contract and hide behind the act would

be to allow him to benefit from his own wrong, and

indeed encourage him to act thusly. . . . It is the burden of the party asserting the lack of good faith to

establish its existence . . . .’’ (Citations omitted; footnote omitted; internal quotation marks omitted.) Andy’s

Oil Service, Inc. v. Hobbs, 125 Conn. App. 708, 714–15,

9 A.3d 433 (2010), cert. denied, 300 Conn. 928, 16 A.3d

703 (2011).7

Our Supreme Court first applied the bad faith exception to the act in Habetz v. Condon, 224 Conn. 231,

618 A.2d 501 (1992), where it affirmed the trial court’s

rejection of a homeowner’s special defense to a contractor’s claim for payment based upon the contractor’s

noncompliance with the act in light of the homeowner’s

bad faith in invoking the act to repudiate the contract.

In Habetz, the parties initially entered into a signed,

written contract, under which the contractor agreed to

construct a two-story addition to the homeowner’s

home for an agreed upon price. Thereafter, however,

when the homeowner asked and the contractor agreed

to perform certain extra work not specified in the original contract, the contractor performed the work as

requested, although the homeowner never signed the

written proposal for its performance despite repeated

requests by the contractor that he do so. Id., 233. After

all of the extra work was performed, the homeowner

refused to pay the contractor either for such extra work

orfor all of the work he had previously performed under

the parties’ original contract. Instead, the homeowner
brought an action against the contractor to recover

damages for alleged negligence in performing his work,

breach of contract on the basis of such allegedly negligent performance, and alleged violation of CUTPA in

rendering such performance. Id., 234. The contractor

denied all of the homeowner’s claims of wrongdoing

against him and filed a two count counterclaim, alleging

that the homeowner had wrongfully refused to pay him

either the $10,000 balance due to him for work he had

performed under the original contract and any of the

money he had agreed to pay for the extra work he later

performed without a signed, written contract. Id. The

trial court ruled for the homeowner on his claim of

breach of contract because the noncompliant contract

was not enforceable under the act. Even so, it awarded

damages to the contractor under both counts of his

counterclaim on the basis of the homeowner’s bad faith

repudiation of his obligations to the contractor under

both the signed and the unsigned contracts. The trial

court determined that the homeowner had repudiated

his obligations to the contractor in bad faith because,

as the Supreme Court later summarized in affirming its

judgment, ‘‘evidence of bad faith permeated the dealings between the parties and thus related to work performed pursuant to the original contract as well as to

the list of extras.’’ Id., 235 n.8.

In reaching this conclusion, the court rejected the

homeowner’s argument that the bad faith exception,

the availability of which had been theorized in earlier

cases, was an ill-considered loophole that should be

closed to ensure that the act was strictly enforced to

protect innocent homeowners from unscrupulous contractors. The court disagreed, explaining the protective

purpose of the exception as follows: ‘‘A bad 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. . . . To demand this implicit component but do nothing about its absence would be at

best incongruous, and, more accurately, grossly unfair.

Thus, a contractor, otherwise precluded from recovering moneys owed for his work because of a violation

of the act, must be permitted to assert that the homeowner’s bad faith precludes him from safely repudiating

the contract and hiding behind the act in order to bar

the contractor’s recovery.’’ (Citations omitted.) Id., 238.

‘‘The question is not whether the legislature specifically

carved out this bad faith exception . . . but whether,

in the absence of specific legislative indication otherwise, a doctrine founded on public policy and con-
taining a strong strain of estoppel can prevent a

misbehaving party from invoking the benefits of 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., 240.

By these words, the court in Habetz identified the

purpose of the exception in broad terms. It clarified that

the exception could be invoked whenever a contractor’s

noncompliance with the act was raised by a homeowner

as a basis for effecting an unwarranted repudiation of

a substantially completed contract, and thereby perpetrating an injustice upon a contractor who had performed his work with the legitimate expectation of

being paid, albeit under a noncompliant and thus unenforceable contract.

Notwithstanding the breadth of the exception’s purpose, as explained by the Supreme Court in Habetz,

the defendant argues that its true scope is more narrow

for two related reasons. First, because the exception

is said to have ‘‘a strong strain of estoppel,’’ he claims

that a homeowner’s bad faith conduct cannot fall within

the exception unless it misled, and thereby caused, the

contractor to perform the work for which he seeks

restitution without an act-compliant contract. He

argues that because the exception must be based upon

the homeowner’s bad faith invocation of the act to

defeat a contractor’s claim for payment, such bad faith

must involve relying upon the act to avoid paying for

services which the homeowner accepted under a contract which he knew to be unenforceable. He claims

here that he could not have engaged in bad faith in

invoking the act to defeat the plaintiff’s claim forrestitution because there he did not know of the act or its

requirements until mid-September, 2008, when he first

consulted with an attorney after the plaintiff’s work

under the noncompliant contract was substantially

completed and his billing dispute with the plaintiff

arose.

In support of that two-pronged argument, the defendant relies on our Supreme Court’s decision in Wadia

Enterprises, Inc. v. Hirschfeld, 224 Conn. 240, 249, 618

A.2d 506 (1992), in which the bad faith exception was

expressly invoked on a similar basis. In Wadia Enterprises, Inc., our Supreme Court considered a contractor’s claim of bad faith against the defendant

homeowners in an action by the contractor to foreclose

on a mechanic’s lien he had filed on the defendants’

property after performing work on the property without

an act-compliant contract. As evidence of the homeowners’ bad faith, the contractor alleged that the homeowners had ‘‘prepared the underlying defective contract
through their New York attorneys and architect and

then relied on the same contract as a defense to its

enforcement . . . .’’ Id., 248. In rejecting the plaintiff’s

claim of bad faith, the court held that ‘‘[t]he fact that the

defendants had their architect and New York attorneys

draft the contract does not in and of itself indicate bad

faith on the part of the defendants. There is no allegation

or proof that the attorneys intentionally omitted [the]

requirement [that the contract contain notice of the

right of cancellation] in order to have an escape hatch.

At most, the New York attorneys were negligent in

failing to consult Connecticut law and to include the

required clause in the contract. An honest mistake does

not rise to the level of bad faith.’’ Id., 248–49. The court

further explained that ‘‘[t]here is nothing dishonest or

sinister about homeowners proceeding on the assumption that there is a valid contract, enforcing its provisions, and later, in defense to a suit by the contractor,

upon learning that the contract is invalid, then exercising their right to repudiate it.’’ Id., 249; see also Lucien

v. McCormick Construction, LLC, 122 Conn. App. 295,

998 A.2d 250 (2010).

In so ruling, the court in Wadia Enterprises, Inc.,

did not purport to limit the bad faith exception to bad

faith conduct involving the knowing formation of or

acceptance of services under a noncompliant home

improvement contract, with the intent not to pay for

those services by later invoking the act to repudiate

the contract. Instead, although it limited its discussion

to such a claim of bad faith, which was the only claim

at issue in the case before it, its holding was merely

that an essential element of any bad faith claim is that

the homeowner acted with a dishonest or sinister

motive when he invoked the act to repudiate the

contract.

The holding in Wadia Enterprises, Inc., is therefore

consistent with the principles underlying the bad faith

exception, as articulated in Habetz, which was decided

on the same day as Wadia Enterprises, Inc. The language used in Habetz to describe the purpose of the

exception—to ‘‘prevent a misbehaving party from

invoking the benefits of a statute which is absolute on

its face’’; Habetz v. Condon, supra, 224 Conn. 240; by

disallowing ‘‘a homeowner who acted in bad faith to

repudiate the contract and hide behind the act’’; id.,

237;—clearly contemplates that a homeowner might be

found to have invoked the act in bad faith if he did so

to cover up and achieve the illicit objectives of other

dishonest dealings between himself and the contractor,

regardless of whether he knew of the act and its requirements at the time of those other dishonest dealings, or

intended at the outset of those dealings to invoke the

act to achieve his dishonest purpose. The act can no

more serve as a convenient, if previously unplanned,

vehicle for carrying out a homeowner’s independent

scheme to deprive a contractor of the benefit of his
bargain than, as the contractor claimed but failed to

prove in Wadia Enterprises, Inc., as the long-planned

device for executing such a dishonest scheme. With

that broad conception of bad faith in mind, the court

in Habetz focused its attention not on the homeowner’s

knowledge of the act or its requirements when he

accepted services under the noncompliant contract

there at issue, but on the entire course of dealings

between the parties, which it found to be permeated

by bad faith. Those dealings included both the homeowner’s ultimate failure to honor his contractual obligations to make payments under the parties’ original actcompliant contract, as well as his agreement for the

performance of extra work under a proposal he never

signed despite the contractor’s repeated requests that

he do so.

In the twenty-plus years since Habetz and Wadia

Enterprises, Inc., were decided, this court and our

Supreme Court have frequently had occasion to rule

on claims for restitution under the bad faith exception.

In only one of those cases did this court suggest that

the exception might be limited to ‘‘instances of bad

faith relating to the formation of, or inducement to,

enter into a home improvement contract.’’ Dinnis v.

Roberts, 35 Conn. App. 253, 259, 644 A.2d 971, cert.

denied, 231 Conn. 924, 648 A.2d 162 (1994). In several

other cases, however, no such limitation on the scope

of the exception has been imposed, and thus bad faith

has been found to arise in settings other than the formation or acceptance of services under a noncompliant

contract with knowledge of its unenforceability. Under

those authorities, particularly this court’s recent application of the exception in Walpole Woodworkers, Inc.

v. Manning, supra, 126 Conn. App. 94, we must reject

the defendant’s claim.

In Walpole Woodworkers, Inc., a trial court’s finding

of bad faith was affirmed, as was the bad faith finding

in Habetz before it, without any consideration of the

homeowner’s knowledge of the requirements of the

act when he agreed with the contractor to have work

performed at his home without an act-compliant home

improvement contract. In Walpole Woodworkers, Inc.,

the contractor was retained to install a fence around

the homeowner’s yard. Afterthe work was substantially

completed, the homeowner delayed his final payment.

Id., 101. When pressed about his reasons for delay, the

homeowner expressed concern that his small dog might

be able to escape under the fence. The contractor

responded by offering the homeowner a ‘‘free fix’’ for

the previously undisclosed problem, but the homeowner delayed the contractor’s installation of the ‘‘free

fix’’ for six months because the parties could not agree

either when to install it or whether, upon its installation,

the contractor would be paid for his work. After the

‘‘free fix’’ was finally installed, the homeowner persisted

in his refusal to pay the balance due under the contract
even though his only stated concern regarding the quality and sufficiency of contractor’s work had been fully

remedied. The homeowner ‘‘testified at trial that [once]

the fence work was [completed, he] simply decided he

would not pay the balance due on the contract.’’ Id.,

101–102. In those circumstances, the trial court found,

and this court later agreed, that the homeowner had

acted in bad faith by invoking the act as a means of

not paying for the work he had engaged the contractor

to perform. Id., 102.

This court’s holding in Walpole Woodworkers, Inc.,

reinforces the general principle underlying the bad faith

exception, as explained in Habetz and applied in Wadia

Enterprises, Inc. Those cases make it clear that the

bad faith exception is not circumscribed by the timing

of the alleged bad faith conduct of a homeowner who

later seeks to avoid his contractual obligations by invoking the contractor’s alleged noncompliance with the

act. We therefore reject the defendant’s claim that the

bad faith exception cannot apply in the circumstances

of this case without evidence that he knew of the act

and its requirements before receiving the services for

which the plaintiff seeks restitution. Any invocation of

the act to avoid a contractual obligation to the contractor for a dishonest or sinister purpose can serve as a

proper basis for seeking restitution under the bad faith

exception, and thereby preventing an injustice.

C

The defendant finally argues that the court erred in

awarding damages under the bad faith exception

because the present allegations of bad faith involved

nothing more than the refusal to pay disputed charges

allegedly due and owing under a contract. We disagree.

The court in Habetz made it clear that a homeowner’s

mere disagreement with a contractor about the quality

or completeness of his work is insufficient to establish

bad faith. Consistent with its precedent, the court

defined bad faith as involving ‘‘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.’’ (Citation

omitted; internal quotation marks omitted.) Habetz v.

Condon, supra, 224 Conn. 237. ‘‘It is the burden of the

party asserting the lack of good faith to establish its

existence and whether that burden has been satisfied

in a particular case is a question of fact.’’ Id., 238 n.11.

In reviewing the trial court’s finding of bad faith in

this case, we are mindful that ‘‘[q]uestions of fact are

subject to the clearly erroneous standard of review.

. . . A finding of fact is clearly erroneous when there

is no evidence in the record to support it . . . or when
although there is evidence to support it, the reviewing

court on the entire evidence is left with the definite

and firm conviction that a mistake has been committed.

. . . Because it is the trial court’s function to weigh

the evidence and determine credibility, we give great

deference to its findings. . . . In reviewing factual findings, [w]e do not examine the record to determine

whether the [court] could have reached a conclusion

other than the one reached. . . . Instead, we make

every reasonable presumption . . . in favor of the trial

court’s ruling.’’ (Internal quotation marks omitted.)

Murtha v. Hartford, 303 Conn. 1, 12–13, 35 A.3d 177

(2011). ‘‘[O]urfunction as an appellate court is to review

and notretry the proceeding of the trial court.’’(Internal

quotation marks omitted.) Foley v. Foley, 140 Conn.

App. 490, 492, 58 A.3d 977 (2013).

‘‘[T]he trial court, as trier of fact, determine[s] who

and what to believe and the weight to be accorded

the evidence. The sifting and weighing of evidence is

peculiarly the function of the trier. [N]othing in our law

is more elementary than that the trier is the final judge

of the credibility of witnesses and of the weight to be

accorded to their testimony. . . . We have constantly

held to the rule that we will not judge the credibility

of witnesses or substitute our judgment for that of the

trial court.’’ (Internal quotation marks omitted.) Vance

v. Tassmer, 128 Conn. App. 101, 116, 16 A.3d 782 (2011).

‘‘[W]e must resist the temptation to reweigh the testimony of witnesses we have neither seen nor heard,

draw inferences the court has rejected or substitute

our judgment for that of the trial judge, who was closest

to the evidence and was in the best position to evaluate

it.’’ In re Davonta V., 98 Conn. App. 42, 55, 907 A.2d

126 (2006), aff’d, 285 Conn. 483, 940 A.2d 733 (2008).

In other words, ‘‘[w]e must be ever mindful . . . [on

review that] . . . [t]he question is not whether this

court might have reached the same conclusion [as the

trial court] . . . but whether the trial court could not

reasonably have concluded as it did.’’ (Internal quotation marks omitted.) In re Tyqwane V., 85 Conn. App.

528, 541, 857 A.2d 963 (2004). ‘‘We do not substitute

our judgment for that of the trial court simply because

we might have concluded otherwise on the evidence.’’

Albuquerque v. Albuquerque, 42Conn.App. 284, 288–89,

679 A.2d 962 (1996).

Although the defendant argues that the alleged bad

faith in this case involved nothing more than a homeowner’s refusal to pay disputed charges arising from a

contract dispute, the trial court disagreed. Instead, it

likened the defendant’s conduct to that of the homeowner in Walpole Woodworkers, Inc., in determining

that such conduct was engaged in in bad faith. The trial

court here found, and the record confirms, that the

renovation project on the defendant’s home was largely

completed by the time the defendant decided that he

had paid the plaintiff enough for the work done on his
home and refused to pay the plaintiff any more. The

court found that the defendant’s refusal to pay the plaintiff was motivated by the fact that the defendant had

already received the bulk of the benefits he expected

from his relationship with the plaintiff, and thus that

there was little risk to him if he refused to pay. The

court found that although the defendant had agreed

to a time and materials contract, he ‘‘unilaterally and

arbitrarily selected a price that he was willing to pay

for the project’’ without a ‘‘sound factual basis.’’ He

then employed a ‘‘ ‘carrot and stick’ ’’ approach to entice

the plaintiff to continue to do work on the project,

suggesting that he might be convinced to pay the plaintiff more, even though he never actually intended to do

so. The court found that the defendant’s conduct in

asking the plaintiff to continue working on the project,

knowing that he would not be paying the plaintiff for

that work, ‘‘constituted . . . neglect and/or a refusal

to fulfill [his] contractual obligations to the plaintiff.’’

The court concluded, based upon its observation of the

conduct, demeanor and attitude of the witnesses—all

factors that trial courts are particularly well-suited to

assess—that ‘‘[the defendant]’s decision to make no

further payments after August 4, 2008, was not

prompted by an honest mistake as to his rights or duties.

. . . [Rather], this decision was the product of [the

defendant]’s desire to use the plaintiff to finish the

project at no further expense to [the defendant, which]

was faster, more efficient and vastly more economical

than concluding the relationship with the plaintiff and

retaining a new contractor. Thus, it was a course of

conduct that was the product of [himself] choosing

to serve his own financial interests at the plaintiff’s

expense.’’ The court concluded that the defendant’s

inducement of the plaintiff to continue working on his

home on the pretense that he might pay him more, all

the while not intending to do so, and his subsequent

invocation of the act was made in bad faith.8 The conduct found to have been engaged in in bad faith here,

as in Walpole Woodworkers, Inc., and Habetz, was a

self-serving attempt by the homeowner to receive the

benefit of a bargain for which he had freely contracted

without fulfilling his own duty to pay for that benefit.

He tried to avoid his obligation by hiding behind the

protection of the act, which was not established for

that purpose. The bad faith exception to the act has

been recognized and enforced to discourage this very

conduct.

All of the foregoing factual findings, and the inferences drawn from them, are well supported by the

record. Indeed, the defendant has not argued that the

court’s findings are not so supported. Essentially, the

defendant is asking us to retry the facts. This we are

unable to do. Hopfer v. Hopfer, 59 Conn. App. 452, 458,

757 A.2d 673 (2000). The trial court stated the rationale

for its findings and reasonably reached its conclusions
from the evidence presented. The court further indicated that credibility determinations greatly influenced

its findings, and such determinations are generally

beyond the permissible scope of our review. We must

be careful not to substitute our judgment for that of

the trial court. It cannot be said that the trial court’s

ruling in this case was unreasonable. See State v. Askew,

245 Conn. 351, 374, 716 A.2d 36 (1998) (McDonald, J.,

dissenting). We therefore conclude that the court did

not err in rendering judgment in favor of the plaintiff

under the bad faith exception to the act.

II

AC 35005

In this related appeal, the plaintiff claims that the

trial court improperly denied his request for attorney’s

fees even though he successfully obtained a judgment

of foreclosure on his mechanic’s lien. The plaintiff

argues that the court erred in determining that he was

not entitled to attorney’s fees pursuant to § 52-249 (a)

because the statute allows for attorney’s fees only when

there is a hearing on the mechanic’s lien, but there was

no hearing here. The plaintiff argues that the court

erroneously determined that the first count of his complaint seeking foreclosure of the mechanic’s lien had

been bifurcated from the other two counts of his complaint prior to trial. He contends that when he tried his

other two claims, the contract and unjust enrichment

claims, he also undertook to establish the elements

necessary for the foreclosure of the mechanic’s lien

and thus that the trial on those two counts constituted

the ‘‘hearing’’ contemplated in § 52-249 (a). We disagree.

‘‘Because statutory interpretation is a question of law,

our review is de novo. . . . When construing a statute,

[o]ur fundamental objective is to ascertain and give

effect to the apparent intent of the legislature. . . . In

other words, we seek to determine, in a reasoned manner, the meaning of the statutory language . . . . In

seeking to determine that meaning, General Statutes

§ 1-2z directs us first to consider the text of the statute

itself and its relationship to [the broader statutory

scheme]. If, after examining such text and considering

such relationship, the meaning of such text is plain and

unambiguous and does not yield absurd or unworkable

results, extratextual evidence of the meaning of the

statute shall not be considered. . . . The test to determine ambiguity is whether the statute, when read in

context, is susceptible to more than one reasonable

interpretation. . . . When a statute is not plain and

unambiguous, we also look for interpretive guidance

to the legislative history and circumstances surrounding

its enactment, to the legislative policy it was designed to

implement, and to its relationship to existing legislation

and common law principles governing the same general

subject matter . . . .’’ (Internal quotation marks omitted.) State v. Pond, 315 Conn. 451, 466–67, 108 A.3d
1083 (2015).

Section 52-249 (a) provides in relevant part: ‘‘The

plaintiff in any action of foreclosure of a mortgage or

lien, upon obtaining judgment of foreclosure, when

there has been a hearing as to the form of judgment or

the limitation of time for redemption, shall be allowed

the same costs, including a reasonable attorney’s fee,

as if there had been a hearing on an issue of fact. . . .’’

As noted, prior to the commencement of trial in this

action, the parties agreed that trial on the first count

of the plaintiff’s complaint, the count seeking foreclosure of his mechanic’s lien on the defendant’s property,

would be bifurcated from the trial on his breach of

contract and unjust enrichment counts. The court acquiesced and the case proceeded accordingly. After the

court issued its memorandum of decision ruling in favor

of the plaintiff under the bad faith exception to the

act, the plaintiff moved for a supplemental judgment

seeking foreclosure of the mechanic’s lien. The parties

thereafter stipulated that there would not be a hearing

on the terms of the judgment of foreclosure of the

mechanic’s lien. Accordingly, the stipulation was submitted to, and approved by, the court without a hearing.

The trial court concluded, based upon the plain language of § 52-249 (a), that the condition precedent to

the awarding of attorney’s fees, namely, a hearing, had

not been satisfied. The court thus denied the plaintiff’s

request for attorney’s fees.

The plaintiff’s claim that his foreclosure claim was

not bifurcated from his other two claims is belied by

the record, in which both parties expressly sought bifurcation. We cannot disagree with the plaintiff that, in

establishing the liability of the defendant and the

amount of the debt due to him in in his contract claim,

he also established the essential elements of his foreclosure claim. We agree with the trial court, however,

that § 52-249 (a), by its plain language, ‘‘contemplates

a hearing with regard to specific aspects of the foreclosure proceeding.’’ The parties’ stipulation on the supplemental judgment obviated the need for such a hearing.

Neither party asked for such a hearing. Because trial

on the foreclosure claim was bifurcated from the trial

on the plaintiff’s other claims, and thus was not pursued

at the trial on the latter claims, that trial cannot reasonably be considered the ‘‘hearing as to the form of judgment or the limitation of time for redemption’’

contemplated by § 52-249 (a). Because no such hearing

took place here, the trial court properly denied the

plaintiff’s request for attorney’s fees pursuant to § 52-

249 (a).9

The judgments are affirmed and the case is remanded

for the purpose of setting new law days.

In this opinion the other judges concurred.

1 Although Adler’s wife, Amie R. Weitzman, and the Salisbury Bank and

Trust Company were also defendants in the underlying action, they are not
parties to these appeals. Therefore, in referring to the defendant, we refer

solely to Adler.

2 This difficulty was accentuated by the plaintiff’s clear understanding

from the defendant that he was to follow each of the defendant’s directions

to the letter as to work to be performed on the project. To illustrate this

point, the court took special note, as follows, of the ‘‘single occasion’’ on

which the plaintiff admittedly disregarded the defendant’s directions: ‘‘The

plans called for the exterior to be covered with a product known as Tyvek,

followed by a rain-repellant covering known as Home Slicker, and those

products were both to be covered with shingles. The plaintiff testified that,

instead, he used a product called Typar, which, he said, was an equivalent

product to the Tyvek/Home Slicker combination but which cost less than

the latter products. The architect complained to the [defendant] when she

discovered this substitution. [The defendant] discussed the issue with the

plaintiff, and told him that he would accept the Typar product, but [the

defendant] also told the plaintiff never to disregard instructions in the

future.’’

3 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 and the contractor’s registration number, (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, (8) is entered into by

a registered salesman or registered contractor, and (9) includes a provision

disclosing each corporation, limited liability company, partnership, sole

proprietorship or other legal entity, which is or has been a home improvement contractor pursuant to the provisions of this chapter or a new home

construction contractor pursuant to the provisions of chapter 399a, in which

the owner or owners of the home improvement contractor are or have

been a shareholder, member, partner, or owner during the previous five

years. . . .’’

The court determined that the plaintiff had failed to comply with the act

because the contract did not contain a completion date, he did not sign the

contract, and he did not deliver an executed copy of the contract to the

defendant. It is noteworthy that the court found that ‘‘the [defendant] waived

[his] right to rely on the written and signed change order requirement [of

the act] by repeatedly giving the plaintiff new orders and job requests, many

of which appear to have been spontaneous decisions unilaterally made by

the [defendant] and conveyed to the plaintiff by, in many cases, hurried

and offhand e-mail instruction. There is no significant evidence that the

[defendant] protested when the plaintiff carried out [his] oral and/or e-mailed

project tasks despite the absence of a written change order signed by

both parties.’’

4 The trial court listed as follows a ‘‘representative sample’’ of such cascading work orders following the defendant’s mid-March, 2008 inquiry as to

total project cost:

‘‘1. March 27, 2008. Weiner inquired regarding the specifications for undershelf lighting. . . .

‘‘2. March 27, 2008. Weiner sent drawings for bathroom hardware locations, noting that hardware specifications would follow. . . .

‘‘3. April 1, 2008. [The defendant] advised the plaintiff that [he] was sending

one thousand feet of speaker wire to be delivered the following day so

that audio speakers could be installed in multiple locations throughout the

house. . . .

‘‘4. April 4, 2008. [The architect] inquired as to whether the plaintiff would

be repairing a foundation wall. . . .

‘‘5. April 6, 2008. [The defendant] sent the plaintiff specifications for the

installation of a range hood. . . .

‘‘6. April 10, 2008. [The defendant] inquired as to how quickly the kitchen

cabinets would be installed because that had to be done before templates

for the countertops could be created, and also provided specifications for

an under counter wine storage refrigerator. . . .

‘‘7. April 14-15, 2008. [The defendant] and the plaintiff exchanged messages

about numerous aspects of work on the project, including [the defendant]’s

plan to install a ‘plasma’ on the wall in the ‘xbox’ room. . . .

‘‘8. April 16, 2008. Weitzman advised the plaintiff that instead of marble

for the fireplaces, she had decided that she wanted to use a stone called

‘pietra cardoza.’ ’’ (Citations omitted.)
5 The defendant filed six special defenses. In his first and second special

defenses, he asserted, respectively, that the plaintiff should be denied recovery because he (1) failed to mitigate his damages and (2) had unclean hands.

In his remaining special defenses, he asserted thatthe plaintiff was statutorily

barred from recovering damages for breach of contract or unjust enrichment

because he had performed the work for which he sought to recover damages

in violation of several provisions of the act, particularly, by (3) failing to

procure a written contract that contained the entire agreement between the

owner and the contractor; (4) failing to put change orders in writing; (5)

failing to ensure that the written contract contained both a start date and

a completion date, and that it was signed by both parties; and (6) failing to

provide the defendant with a completed copy of the contract at the time

the contract was executed.

The defendant also filed a four count counterclaim, in which he alleged

that the plaintiff: (1) violated CUTPA; (2) was negligent in performing work

on the subject property; (3) breached an oral contract that he had with the

defendant to ‘‘limit the total cost of the renovations to $886,954’’; and (4)

had been unjustly enriched because the defendant had paid him an amount

in excess of the value of the services that he had provided to the defendant.

6 The court found that the plaintiff proved damages in excess of the

$214,039.09 sum, but that the award was capped at that amount by the

plaintiff’s own complaint. The plaintiff moved to amend his complaint after

trial to conform to the proof that the defendant owed him $259,178.80, not

the sum of $214,039.09 that he claimed in his complaint. The court denied

that motion, but no challenge to that denial has been made on appeal.

7 Our Supreme Court has explained: ‘‘In addressing cases for restitution

under the act, this court has collectively referred to theories of quasi contract, quantum meruit and unjust enrichment as quasi contract claims of

restitution. . . . We take this opportunity to clarify these closely related

terms. Quantum meruit and unjust enrichment are noncontractual means

of recovery in restitution. Quantum meruit is a theory of recovery permitting

restitution in the context of an otherwise unenforceable contract. In contrast,

recovery under a theory of unjust enrichment applies in the absence of a

quasi-contractual relationship. . . .

‘‘Because both doctrines are restitutionary, the same equitable considerations apply to cases under either theory. The terms of an unenforceable

contract will often be the best evidence forrestitution of the reasonable value

of services rendered in quantum meruit, although sometimes the equities may

call for a more restrictive measure. . . .

‘‘We recognize that this court has used quantum meruit and unjust enrichment interchangeably, or as equivalent terms for recovery in restitution.

. . . In addition, cases decided under the bad faith exception after Habetz

[v. Condon, 224 Conn. 231, 618 A.2d 501 (1992)] have invoked both quantum

meruit and unjust enrichment. . . . Nevertheless, because actions brought

under the bad faith exception and § 20-249 (f) both arise from unenforceable

contracts, they are best described as in quantum meruit for the reasonable

value of services which were requested by the owner . . . .’’ (Citations

omitted; internal quotation marks omitted.) Walpole Woodworkers, Inc. v.

Manning, 307 Conn. 582, 587–88 n.9, 57 A.3d 730 (2012).

8

It is noteworthy that the defendant’s second special defense alleged

unclean hands on the part of the plaintiff. The court rejected that claim,

and explained: ‘‘On the contrary, the court has found that [the defendant]

has engaged in bad faith in his dealings with the plaintiff, and it is, thus,

[the defendant] who comes to this court with unclean hands.’’

9 Moreover, to allow the plaintiff to recover attorney’s fees under the

mechanic’s lien statute on the basis of the ‘‘hearing’’ on the contract and

unjust enrichment claims would be contrary to the law limiting recovery

under the bad faith exception to the act to the unpaid value of the work performed.