Opinion
No. CV 07-5015096
July 28, 2009
CORRECTED MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT
The plaintiffs, Anna Namnoum and Kenneth Namnoum, commenced this action against the defendant Lawrence DeSouza seeking damages arising out of an agreement to perform home improvement work. The plaintiffs' complaint contains seven counts. In counts one, two and four the plaintiffs allege violations of CUTPA. In count three, the plaintiffs allege fraud. In counts five and six, the plaintiffs allege statutory theft and conversion, respectively. Finally, in count seven, the plaintiffs allege negligence.
The facts alleged may be summarized as follows: The plaintiffs are a married couple who sought to have certain tile installation work done on their residence, and the defendant offered to perform the work. Plaintiffs claim that in doing so he falsely represented himself as having an active home improvement contractor license and started the work in July 2007. Without obtaining a written, signed agreement detailing the starting and ending date, the cost of the work and the materials needed, and informing the plaintiffs of their cancellation rights.
Between July 2007 and September 2007, the defendant requested and obtained two checks totaling $23,850, which he claimed were "deposits" to be used in part to purchase materials, but the defendant neither purchased nor delivered materials to the plaintiffs. Plaintiffs allege that the defendant's work was careless and he employed substandard materials, which created defective and dangerous conditions at the plaintiffs' residence. By October 2007, the defendant had failed to complete all of the work, and at a meeting on October 8, 2007, the defendant admitted he had not spent the money toward completing the work but rather on personal expenses. The defendant has failed to either complete the work or return the money. The plaintiffs seek money and punitive damages.
The plaintiffs filed this motion for summary judgment on May 5, 2009, seeking judgment on counts one through six of the complaint.
I
As to count one, two and four, the plaintiffs argue that they are entitled to recover under CUTPA, General Statutes § 42-110a et seq., as a matter of law for the defendant's alleged failures. In count four, the plaintiffs argue that they are entitled to a recovery under CUTPA for certain other alleged misrepresentations made by the defendant.
In order to recover under CUTPA, the plaintiffs must prove that they "[suffered an] ascertainable loss of money or property, real or personal, as a result of the use or employment of a [prohibited] method, act or practice . . ." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 19, 938 A.2d 576 (2008). The plaintiffs must establish that "as a result of an unfair or deceptive trade practice, they received something different from that for which they had bargained." Hinchliffe v. American Motors Corp., 184 Conn. 607, 619, 440 A.2d 810 (1981).
Defendant has filed an affidavit containing evidence that would permit the conclusion that the plaintiffs unjustifiably barred the defendant from their property before the work was completed, thus depriving him of his ability to finish the work.
There is a genuine issue of material fact as to whether the alleged violations of CUTPA caused the plaintiffs' damages. See Abrahams v. Young Rubicam, Inc., 240 Conn. 300, 306, 692 A.2d 709 (1997) (holding that in a CUTPA claim a prohibited practice must be both an actual and proximate cause of the ascertainable loss).
II
In counts three and five the plaintiffs allege that the defendant committed fraud and statutory theft, respectively, by falsely representing that he had an active home improvement contractor license, that he would complete the work at the house and that he would purchase certain materials in connection with the work. "The essential elements of an action in fraud are: (1) that a false representation was made as a statement of fact; (2) that it was untrue and known to be untrue by the party making it; (3) that it was made to induce the other party to act on it; and (4) that the latter did so act on it to his injury." Miller v. Appleby, 183 Conn. 51, 54-55, 438 A.2d 811 (1981).
Section 52-64 allows the cause of action, called statutory theft, permitting a victim of larceny to recover treble his damages from the perpetrator. Sullivan v. Delisa, 101 Conn.App 605, 619-20, 923 A.2d 760, cert. denied, 283 Conn. 908, 928 A.2d 540 (2007). "A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner." Id., 620.
For both counts three and five, there is a genuine issue of material fact as to the element of intent in terms of the defendant's misrepresentation that he had an active license. Defendant disputes the fact that he knew he did not have an active license at the time he represented that he had such a license. In his affidavit he states that he had an active license previously but he did not realize that it had expired until after he had entered into the agreement with the plaintiffs, when he discovered the renewal paperwork mixed with other papers.
Defendant also argues that there are genuine issues of material fact as to the other claimed misrepresentations charged to him. In order to constitute a misrepresentation, which could be the basis for a claim of fraud or statutory theft, a promise to do an act in the future must be made with the present intent not to perform it. See Kavarco v. T.J.E., Inc., 2 Conn.App. 294, 300, 478 A.2d 257 (1984). There is insufficient evidence that would compel a finder of fact to conclude that the defendant entered into the agreement with the then present intent not to perform the work, or that the defendant asked for money to purchase certain materials with the contemporaneous intent not to purchase said materials
III
Finally, as to count six, the plaintiffs claim that as a matter of law, the defendant converted their property to his own use. Specifically, they argue he wrongfully paid himself the $23,850 they gave to him for the purpose of purchasing materials. In order to prove conversion, the plaintiffs must prove that the defendant deprived the plaintiffs of their property, without authorization, permanently or for an indefinite period of time, and that the plaintiffs were harmed thereby. See News America Marketing In-Store, Inc. v. Marquis, 86 Conn.App. 527, 545, 862 A.2d 837 (2004), aff'd, 276 Conn. 310, 885 A.2d 758 (2005).
"In order to prove conversion . . . The plaintiffs must establish, legal ownership or right to possession of specifically identifiable moneys . . . It must be shown that the money claimed, or its equivalent, at all times belonged to the plaintiff[s] and that the defendant converted it to his own use. An action in tort is inappropriate [however] where the basis of the suit is a contract, either express or implied." Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 771-72, 905 A.2d 623 (2006).
There is a genuine issue of material fact as to whether the defendant converted the plaintiffs' money.
Motion for Summary Judgment denied.