E and M Custom Homes, LLC v. Negron
The determination of whether a party has suffered an ascertainable loss due to a violation of the Connecticut Unfair Trade Practices Act, C.G.S. §42-110a, is not based on whether the party can recover damages for a loss, but rather on establishing whether a loss has occurred; the term loss has a broader meaning than the term damages. E & M Custom Homes, LLC, filed a complaint against Alberto and Luz Negron seeking to foreclose a $70,000 mechanics lien for services claimed rendered in the development of a new home and damages for breach of contract. The Negrons' answer included a counterclaim amended to allege, relevantly, that the plaintiff failed to comply with C.G.S. §§20-417c(4), (6) and (7) of the New Home Construction Contractors Act, which violations were a per se CUTPA violation. The plaintiff withdrew its breach of contract count after the Negrons obtained a bankruptcy discharge. Following a court trial, the court found for the defendants on the plaintiff's mechanic's lien claim and for the defendants on their counterclaim under C.G.S. §20-417c(6 ) and (7). The court ultimately awarded the defendants $23,334.73 plus attorneys' fees of $10,450 and $10,000 in damages. The plaintiff appealed claiming, inter alia, that the court improperly awarded damages to the defendants and that because the amount due under the construction contract exceeded the amount of damages the defendants established they did not suffer an ascertainable loss under CUTPA. The Appellate Court affirmed the judgment. The trial court's conclusion that the defendants suffered a loss as a result of the plaintiff's actions was based on ample evidence and was not clearly erroneous. The court found on the C.G.S. §20-417c(6) counterclaim that the defendants had proven an ascertainable loss through a video of "the catastrophic nature of the house" and expert witness testimony as to the loss suffered and costs to repair and finish the house. The plaintiff conceded that certain tasks were incomplete and the defendants should receive a corresponding credit. Thus, the defendants received something less than what they bargained for and, accordingly, suffered a loss. The 2009 Supreme Court case of Hees v. Burke Construction, Inc. was distinguished. This case does not involve traditional contract damages law. Further, the court properly calculated the mechanic's lien value at $8704.27.