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Monthly Archives: February 2016

Breach of Contract Claims:  Must the Agreement be in writing?

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Some agreements, but not all agreements, must be in writing, to be enforceable. Your state’s “statute of frauds” laws might apply to the type of agreement at issue.

For example, in Connecticut agreements / contracts conveying real estate, must be in writing, per the statue of frauds.

“Any contract whose purpose is to transfer to one of the parties an interest in land for a price paid or to be paid to the other party is within the Statute [and should be in writing].” (Citation omitted.) Zipp v. JFC Endeavors, Inc., CV10-5014884, March 18, 2011 (Hon. Cynthia Swienton). (Note that Connecticut has other statutory requirements, governing the number of witnesses and acknowledgments, on real estate deeds.)

Although seemingly simple, this is potentially a very confusing area of the law, and factual and legal arguments pertaining to the statute of frauds, might be made in litigation that are pivotal to the success or failure of claims.

Connecticut’s Statute of Frauds, General Statutes Section 52-550 is set forth below.

 

Connecticut Statutes

Title 52. CIVIL ACTIONS

Chapter 923. STATUTE OF FRAUDS

Current through the 2015 Second Special Session

  • 52-550. Statute of frauds; written agreement or memorandum
(a) No civil action may be maintained in the following cases unless the agreement, or a memorandum of the agreement, is made in writing and signed by the party, or the agent of the party, to be charged:

(1) Upon any agreement to charge any executor or administrator, upon a special promise to answer damages out of his own property;

 

(2) against any person upon any special promise to answer for the debt, default or miscarriage of another;

 

(3) upon any agreement made upon consideration of marriage;

 

(4) upon any agreement for the sale of real property or any interest in or concerning real property;

 

(5) upon any agreement that is not to be performed within one year from the making thereof; or

 

(6) upon any agreement for a loan in an amount which exceeds fifty thousand dollars.

 

(b) This section shall not apply to parol agreements for hiring or leasing real property, or any interest therein, for one year or less, in pursuance of which the leased premises have been or are actually occupied by the lessee, or any person claiming under him, during any part of the term.

 

 

 

Contractors & the Connecticut Home Improvement Act

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A Contractor who works on a residential home, but who violates the Connecticut Home Improvement Act (HIA), may lose rights to recover (collect payment) against the Homeowner, who does not pay the Contractor.

“Home improvement”, as the term is defined by the HIA “includes, but is not limited to, the repair, replacement, remodeling, alteration, conversion, modernization, improvement, rehabilitation or sandblasting of, or addition to any land or building, or that portion thereof which is used or designed to be used as a private residence…” §20-419(4).

The HIA provides for exceptions to the “home improvement” definition; certain trades may be exempt, and the HIA will not generally apply to new home construction.

Contract language, for home improvement contracts, are governed by Section 20-429(a) of the HIA. This statute, set forth below, identifies components required to be included in a Home Improvement Contract, in order for that contract to be valid or enforceable against the Homeowner.

“[C[ompliance with the act is mandatory in order for a contractor to recover on a home improvement contract . . . Nevertheless . . . that does not mean, however, that the noncomplying contractor is not entitled to payment when the homeowner, for whose benefit the act’s prophylactic provisions were enacted, does not seek the protection of the act, and agrees that the contractor has done the work and should be paid. The act is for the benefit of the consumer, and compliance with its terms may be waived by the consumer, either explicitly or by nonassertion.” (Citations omitted; internal quotation marks omitted.) Gagne v. Vaccaro, 255 Conn. 390, 410 (2001).

Disputes between Homeowners and Home Improvement Contractors are always fact-specific. Review these facts with an attorney who is familiar with the Connecticut Home Improvement Act.

If you are a Home Improvement Contractor, discuss with your attorney if your existing contract complies with the HIA.

 

 

Connecticut Statutes

Title 20. PROFESSIONAL AND OCCUPATIONAL LICENSING, CERTIFICATION, TITLE PROTECTION AND REGISTRATION, EXAMINING BOARDS

Chapter 400. HOME IMPROVEMENT CONTRACTORS

  • 20-429. Required contract provisions. Negative option provisions prohibited. Contract considered home solicitation sale. Contractor-financed contract. Recovery of payment for work performed
a) 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. Each change in the terms and conditions of a contract shall be in writing and shall be signed by the owner and contractor, except that the commissioner may, by regulation, dispense with the necessity for complying with the requirement that each change in a home improvement contract shall be in writing and signed by the owner and contractor.

 

(b) No home improvement contract shall be valid if it includes any provision obligating the owner to instruct the home improvement contractor, by a date determined by such contractor, that periodic home improvements are not to be performed unless it also includes a provision requiring the contractor to remind the owner of that obligation by means of a card or letter mailed to the owner and postmarked not earlier than twenty days, and not later than ten days, prior to such date.

 

(c) The contractor shall provide and deliver to the owner, without charge, a completed copy of the home improvement contract at the time such contract is executed.

 

(d) The commissioner may, by regulation, require the inclusion of additional contractual provisions.

 

(e) Each home improvement contract entered into shall be considered a home solicitation sale pursuant to chapter 740 and shall be subject to the requirements of said chapter regardless of the location of the transaction or of the signing of the contract. Each home improvement contract in which the owner agrees to repay the contractor an amount loaned or advanced to the owner by the contractor for the purposes of paying for the goods and services provided in such contract, or which contains a finance charge, (1) shall set forth the information required to be disclosed pursuant to the Truth-in-Lending Act, sections 36a-675 to 36a-685, inclusive, (2) shall allow the owner to pay off in advance the full amount due and obtain a partial refund of any unearned finance charge, and (3) may contain a finance charge set at a rate of not more than the rate allowed for loans pursuant to section 37-4. As used in this subsection, “finance charge” means the amount in excess of the cash price for goods and services under the home improvement contract to be paid by the owner for the privilege of paying the contract price in installments over a period of time.

 

(f) Nothing in this section shall preclude a contractor who has complied with subdivisions (1), (2), (6), (7) and (8) of subsection (a) of this section from the recovery of payment for work performed based on the reasonable value of services which were requested by the owner, provided the court determines that it would be inequitable to deny such recovery.

Cite as Conn. Gen. Stat. § 20-429

 

Remote Vehicle Starters: DUI/OUI laws in Connecticut

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In Connecticut, no person shall operate a motor vehicle while under the influence of intoxicating liquor, or any drug, or both. CGS 14-227a.

Question: What if the key is in the ignition, but the engine is not started?

Answer: “We [the Connecticut Supreme Court] conclude that the defendant’s act of inserting the key into the ignition constituted operation of a motor vehicle within the meaning of [the statute] § 14-227a (a).” State of CT vs. Haight, 279 Conn. 546 (2006).


Question: What if the engine is started by a Remote Starter, but no key is in the ignition?

Answer: “… the lack of an inserted ignition key is but a temporary impediment to the movement of a remotely started vehicle. Because such an impediment easily is overcome by insertion of the key, it will not preclude a finding of operation.” State of CT vs. Cyr, 291 Conn. 49 (2009).

Sleeping in a Vehicle?

Each case is fact specific. However there are many DUI arrests in Connecticut that involve occupants sleeping in the vehicle, who had not put the vehicle in motion, but who are considered to have violated the statute. Connecticut court decisions finding that this action constitutes prohibited “operation”, rely on public policy provisions of the statute. Such provisions are “preventive measure [s] … which deter individuals who have been drinking intoxicating liquor from getting into their vehicles, except as passengers … and which enable the drunken driver to be apprehended before he strikes ….” (Citations omitted) State of CT vs. Cyr, at 61.

Dog Bite Liability:  “The plaintiff approached the dog, knelt in front of him, and raised her hand in front of him. …”

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A 28-year old woman (the Plaintiff), recovered $15,000.00 non-economic damages (pain and suffering), and $815.05 economic / medical expenses, after the defendant’s dog bit her.

The Court’s factual findings, based on the evidence presented at trial, include:

  • The Plaintiff was at a barbeque, where the dog was kept.
  • The dog was twelve years old, blind in one eye, and was uncomfortable with strangers.
  • The Plaintiff acknowledged that she was aware that the dog was “not friendly”.
  • All attendees, at the barbeque, were advised multiple times that the dog was not friendly and to stay away from him.
  • A specific area of the house was designated for the event. There were multiple signs warning about the defendant’s dog. Certain areas of the house were separated from the event and “off-limits” to the guests. These were the areas where the dog was kept, including a portion of the house which was closed, locked, and contained signs directing guests to stay away from the dog.
  • The Plaintiff’s trial testimony confirmed that she was aware of the signs.
  • The Plaintiff consumed her own beer and as a result of her beer consumption she became “buzzed” or intoxicated.
  • “The plaintiff, in spite of the warnings, and knowing full well that the dog was not friendly to strangers and was dangerous, wanted to pet the defendant’s dog. The plaintiff approached the dog, knelt in front of him, and raised her hand in front of him. The dog bit the plaintiff and she sustained lacerations to the right eyelid…”

The dog’s owner/keeper, argued that the Plaintiff’s actions amounted to trespass, teasing, and tormenting the dog; that she was warned several times that the dog was unfriendly towards strangers, and she was sarcastic in her response, stating “Thanks for the warning, and that she had gotten the message.”

The Court, despite noting the “unusual behavior and demeanor” of the Plaintiff, concluded that “the plaintiff’s conduct did not amount to trespass, teasing and tormenting the dog”.

This Superior Court decision is based on Connecticut’s strict-liability dog-bite statute, which provides in relevant part:

“If any dog does any damage to either the body or property of any person, the owner or keeper,… shall be liable for the amount of such damage, except when such damage has been occasioned to the body or property of a person who, at the time such damage was sustained, was committing a trespass or other tort, or was teasing, tormenting or abusing such dog…”
CGS 22-357

A copy of the complete Memorandum of Decision is available here:

https://civilinquiry.jud.ct.gov/DocumentInquiry/DocumentInquiry.aspx?DocumentNo=8430096

Real Estate “Closing Customs” in Connecticut

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When buying or selling real estate, your closing attorney in Connecticut will usually follow the customs of the local county bar.

Customs address questions, such as:

Where is the closing held?

Who holds the deposit?

How are closing expenses and purchase price paid at closing?

A common question is “Who notifies tax collector / assessor and utilities of changes in ownership of property?” In Hartford and Tolland County, the custom is:

ANSWER: Utility companies require that purchaser and seller call them directly. Tax assessor and collector are notified by the Town Clerk once documents are received for recording. (Hartford County; Tolland County)

To review CATIC’s “A Guide to Closing Customs in Connecticut”, use this link:

https://www.catic.com/Consumers/Resources/ClosingCustomsCT.aspx

Buying Real Estate: Joint Tenancy and Tenancy in Common

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Whether an attorney must be present at a real estate closing, typically depends on the state’s view of whether a non-attorney conducting a closing, is the “unauthorized practice of law”. Connecticut, unlike many other states, still heavily relies on attorneys to conduct closings.

If you are buying real estate in Connecticut, and you are taking title jointly with another person such as your spouse, ask your attorney for advice on how to take title. There are differences between a “joint tenancy” and a “tenancy in common”.

In a tenancy in common “each cotenant holds an undivided partial … interest in the whole of their property… A consequence of this form of ownership is that a cotenant can freely sell, lease or mortgage his own undivided interest in the whole property to a third party without the consent of the remaining cotenants … A cotenant may not, however, act unilaterally so as to bind the interest of his cotenant.” (Citations omitted.) Ianotti v. Ciccio, 219 Conn. 36, 41 (1991).

Typically married persons who take title to real estate elect “Joint Tenancy with Rights of Survivorship”. The survivorship provision results in vesting of the entire title to the property, to the surviving party, on the other’s death. This shows how your decision to take title to real estate, is part of your overall estate plan.

At Marder, Roberson & DeFelice Law Offices, LLC our attorneys are knowledgeable in both real estate conveyancing, and estate planning. When you buy a home, take some time to think about your estate plan.

What is the alimony “formula” in Connecticut?

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Connecticut does not use a formula, or “guideline” approach to alimony. Instead Connecticut law provides for statutory factors, that must be considered, when awarding or modifying alimony. After considering the criteria below, governing Connecticut alimony, do you think a formulaic / guideline approach would be beneficial? Or do you support the flexibility of the current system?

Connecticut’s flexible alimony criteria:

“In general the same sorts of [criteria] are relevant in deciding whether the decree may be modified as are relevant in making the initial award of alimony. They have chiefly to do with the needs and financial resources of the parties . . . More specifically, these criteria, outlined in General Statutes 46b-82, require the court to consider the needs and financial resources of each of the parties and their children, as well as such factors as the causes for the dissolution of the marriage and the age, health, station, occupation, employability and amount and sources of income of the parties. (Citations omitted; quotations omitted.) Borkowski v. Borkowski, 228 Conn. 729, 738, 638 A.2d 1060 (1994).

“Court decisions construing the alimony and property division statutes emphasize the responsibility of the trial court to consider all of the evidence, weigh all of the statutory factors, and then to place the weight on each factor that the court deems most fair and appropriate under the particular circumstances of each case. “While the trial court must consider the delineated statutory criteria, no single criterion is preferred over the others, and the court is accorded wide latitude in varying the weight placed upon each item under the peculiar circumstances of each case.” Carpenter v. Carpenter, 188 Conn. 736, 740-41, 453 A.2d 1151 (1982). The court is not obligated to make express findings on each and “is not required to give equal weight to each of the specified criteria it considers in determining its award, nor is any single criterion preferred over the others.” Graham v. Graham, 25 Conn.App. 41, 45, 592 A.2d 424 (1991). The weight to place on each factor depends on the circumstances of each case. (Citation omitted.) Moreover, the statutory factors for awarding alimony or assigning property are not exclusive, and the court may consider other equitable factors in either. Smith v. Smith, 249 Conn. 265, 284, 752 A.2d 1023 (1999). Robinson v. Robinson, 187 Conn. 70, 72, 444 A.2d 234 (1982). Werkhoven v. Werkhoven, No. FA094011324S (Feb. 17, 2011) (Frazzini, J.)

Landlord / Tenant pre-termination “KAPA” Notice

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The eviction process in Connecticut, begins with a Notice to Quit. This Notice sets forth the reason why the Landlord is starting the Summary Process (eviction) case, such as for example “Non Payment of Rent”, or “Lapse of Time”. The Summary Process (eviction) complaint is filed in court after a proper Notice to Quit is served.

However, on occasion, a “pre-termination notice” (also known as a KAPA notice), is required even before the Notice to Quit is served.

A “pre-termination notice” can refer to the notice that must be provided, under federal law, before a landlord is permitted to initiate eviction proceedings against a tenant who occupies federally subsidized housing. Connecticut law also requires a pre-termination notice under certain circumstances. See General Statutes § 47a-15 (requiring a landlord to provide pre-termination notice to the tenant before filing any eviction action based, among other things, on alleged material noncompliance with terms of lease, unless the noncompliance involves nonpayment of rent or serious nuisance). This state statutory requirement, often called a Kapa notice, see Kapa Associates v. Flores, 35 Conn.Supp. 274, 408 A.2d 22 (1979), requires the landlord to give the tenant at least fifteen days to cure the alleged non-compliance before any lease termination becomes effective.

Mistakes made early on in an eviction case, might not be discovered until weeks or months later. Working with an experienced attorney early in the process, is important in this area of the law.

What is “Short Calendar” in Connecticut Superior Court?

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UPDATE: August 26, 2016: The Family Short Calendar procedure at the Tolland Judicial District, 69 Brooklyn Street, Rockville, has changed effective October 3, 2016. All matters that appear on this calendar are deemed ready. Ready markings are no longer required. A marking is only necessary if the party who filed the motion wishes the matter to be marked off. If the party who filed the motion does not appear, the court may deem oral argument waived and the motion may be denied by the court. If the party who did not file the motion does not appear, the court may deem oral argument waived and may grant the relief requested in the motion. The Family Short Calendar in the Tolland Judicial District, will be called at 9:30 a.m.

 

The “Short Calendar” procedure can be confusing to both Connecticut attorneys, and self-represented (“pro se”) parties. To make matters more complicated, customs and procedures may vary between courts.

Short Calendar procedures apply to both civil and family court cases. In Rockville Court (Tolland County, Connecticut) Short Calendar is held on Monday morning each week, except when Monday is a holiday. Those who have filed motions in Family (divorce and custody) cases, will have to follow the Short Calendar procedure to mark their case “Ready” (or “Take Papers” if applicable, for certain motions), and notify the opposing party they intend to proceed. This is done several days in advance of court, during the allowed ‘marking period’.

In Family Cases, motions will be marked “ready” again at the 9:30 am calendar call on Monday morning. Parties should sign in with Family Relations as soon as possible, as there is usually a long wait. Parties will need to first meet with Family Relations Officers, who will try to help the parties resolve their disagreements. If an agreement is reached, it needs to be drafted. The parties will sign the agreement, and bring the written agreement into Court. Newer files get scanned and e-filed, before going into court, at the Court Services Center. The judge will canvas the parties (i.e. ask if the parties believe the agreement is fair and equitable, and in the best interests of the minor child(ren), and review the details of the agreement with the parties), before the judge enters the agreement as an Order of the Court.

Parties should come prepared to Family Short Calendar with Financial Affidavits, and supporting documents (i.e. pay stubs). They may also wish to prepare Proposed Orders, and prepare exhibits should the case have to go before a Judge, for a decision. If a party has an Attorney, then the Attorney will accompany the party through the process. The court might not permit lengthy evidence on a Short Calendar date. It is possible that if an agreement is not reached, the case will be scheduled for a “Special Assignment”, which could be days or weeks later, depending on the court’s availability and urgency of the issues.

The procedures above may vary from court to court, and may be modified from time to time by the presiding judge, or new court rules.

The process for civil cases, is also quite different. In civil cases, many motions are not ‘arguable as of right’ and there are special procedures to request oral argument. You need to be familiar with the Connecticut Practice Book (“Rules of Court”), as well as the substantive law, including Rules of Evidence, that will apply to your legal issues.

Speak with an attorney who is familiar with the Short Calendar procedures in your jurisdiction, to address the specific circumstances of your case.

A Short Calendar and Marking Process Quick Reference Guide, published by the judicial branch, is available at: https://www.jud.ct.gov/external/super/e-services/efile/shortcal_quickref.pdf

Restraining Orders & Protective Orders

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We are often asked about Restraining Orders, and Protective Orders.

The information below, is available on the Connecticut judicial website: https://www.jud.ct.gov/statistics/prot_restrain/

Every case is fact specific. If you are involved in a proceeding that involves either a civil Restraining Order, or a criminal Protective Order, we strongly advise you to speak with an experienced attorney.

Protective / Restraining Order Glossary

  • Family Violence Protective Order (section 46b-38c of the Connecticut General Statutes) is an order that is issued at the time of arraignment during a criminal proceeding. Usually these orders are recommended by either the family relations office or in some cases the state’s attorney’s office. These orders are usually in effect from the date they are issued until the criminal case is sentenced and/or disposed of. In some cases a protective order can be removed prior to the underlying case being settled.
  • Standing Criminal Restraining Order (section 53a-40e of the Connecticut General Statutes is an order that is issued usually at the end of a criminal case. These are lifetime orders and remain in effect until further order of the court. This order type is generally issued when it is a more severe criminal case.
  • Restraining Order Application (section 46b-15 of the Connecticut General Statutes) is an application for a restraining order ex parte (immediate). It is given out at the clerk’s office to people who come in for relief from abuse in family cases. A Judge reviews the application and affidavit, and decides whether or not to issue a restraining order relief from abuse. If one is issued, the application is then updated to an ex parte restraining order. The Judge can also deny the ex parte relief and issue an Order for Hearing and Notice Summons.
  • Ex Parte Restraining Order (section 46b-15 of the Connecticut General Statutes) is an order issued by the family court when someone has completed the restraining order application. The Judge has reviewed the application and affidavit, and issues a temporary ex parte restraining order. A hearing date is scheduled, and the respondent must be notified. Generally speaking, this order is good for for 14 days, or until the date of the hearing. (Hearings can be scheduled before the 14-day time limit).
  • Restraining Order After Hearing (section 46b-15 of the Connecticut General Statutes) is issued after a hearing on an ex parte restraining order, or an Order for Hearing and Notice Summons. Again, this order type is issued out of the family court. Generally speaking, it is effective for 6 months from the date of the hearing. A victim/applicant can request that the restraining order after the hearing be extended when the 6 months is about to run out. They must file a motion to extend and the respondent must again get notice.