Onofrio v. Mineri

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DANIEL ONOFRIO ET AL. v.
JOSEPH MINERI ET AL.
(AC 43158)
Moll, Alexander and Suarez, Js.

Syllabus

The plaintiffs sought to recover damages from the defendants M, T Co. and
G Co. for, inter alia, violations of the Connecticut Unfair Trade Practices
Act (§ 42a-110 et seq.) and from T Co. and G Co. for violations of
the New Home Warranties Act (warranties act) (§ 47-116 et seq.). The
plaintiffs purchased certain real property from G Co., which included
a house built by T Co. M, an owner of both T Co. and G Co., was aware
before the purchase that the house had a problem with water in the
basement, but he did not inform the plaintiffs. The trial court rendered
judgment for the plaintiffs on their CUTPA and warranties act claims,
and M and T Co. appealed to this court. Held:
1. The trial court properly determined that M was personally liable pursuant
to CUTPA, but the court incorrectly determined that T Co. violated
CUTPA.
a. This court declined to review M and T Co.’s claim that the trial court’s
conclusion that they violated CUTPA was inconsistent with the judgment
the court rendered in their favor on the plaintiffs’ breach of contract,
negligent misrepresentation, negligence and fraudulent concealment
claims; M and T Co. failed to meaningfully analyze in their brief how
the court’s rendering judgment in their favor on the other claims was
necessarily inconsistent with its conclusion that the finding that G Co.
violated CUTPA should be applied to them, and, thus, this court deemed
the claim abandoned.
b. M could not prevail on his claim that the trial court erred in extending
CUTPA liability to him on the basis of its finding that G Co. had violated
CUTPA; the court found that the evidence established that M effectively
controlled the closely held corporations G Co. and T Co. and that he
had complete knowledge of the water problems in the basement and
the representations or nonrepresentations given to the plaintiffs, and he
either directly participated in the wrongful conduct or had the ability
to control it.
c. The trial court improperly extended to T Co., on the basis of a joint
coordination theory, its finding that G Co. violated CUTPA; the court’s
conclusion that Joseph General Contracting, Inc. v. Couto (317 Conn.
565) supported an extension of CUTPA liability to T Co. because it had
jointly coordinated its activities with G Co. went beyond the issues
considered by our Supreme Court in that case, which had considered
only whether liability under CUTPA could be extended to an individual
who engaged in unfair or unscrupulous conduct on behalf of a busi-
ness entity.
2. T Co. could not prevail on its claim that the trial court erred in concluding
that it was a vendor pursuant to statute (§ 47-118 (a)) and, thus, that it
violated the implied warranty that the improvement on the plaintiffs’
house was constructed in a workmanlike manner; T Co. was a vendor
pursuant to § 47-116, as it was engaged in the business of erecting or
creating an improvement on real estate, and, pursuant to statute (§ 47-
119), a vendor who conveys an improvement to an intermediate pur-
chaser to evade liability is liable to a subsequent purchaser, thus, T Co.
was liable for a breach of the warranties act notwithstanding the fact
that the plaintiffs directly purchased the house from G Co.
Argued November 30, 2020—officially released September 21, 2021

Procedural History

Action to recover damages for, inter alia, the defen-
dants’ alleged unfair trade practices, and for other relief,
brought to the Superior Court in the judicial district of
New Haven where the matter was tried to the court,
Hon. Jon C. Blue, judge trial referee; judgment for the
plaintiffs, from which the named defendant et al.
appealed to this court. Affirmed in part; reversed in
part; judgment directed.
Scott Jackson, for the appellants (named defendant
et al.).
Thomas J. Dembinski, for the appellees (plaintiffs).
Opinion

MOLL, J. In this new home construction dispute, the
defendants Joseph Mineri (Mineri) and Timberwood
Homes, LLC (Timberwood), appeal from the judgment
of the trial court, rendered after a bench trial, in favor
of the plaintiffs, Daniel Onofrio and Elsie Onofrio,
against (1) Mineri and Timberwood on the plaintiffs’
claim pursuant to the Connecticut Unfair Trade Prac-
tices Act (CUTPA), General Statutes § 42-110a et seq.,
and (2) Timberwood on the plaintiffs’ claim pursuant to
the New Home Warranties Act (warranties act), General
Statutes § 47-116 et seq.1 We affirm in part and reverse
in part the judgment of the trial court.
The trial court found the following facts that are
relevant to our resolution of this appeal. ‘‘The named
defendant . . . Mineri, is one of three brothers who,
through their [businesses], work together in the con-
tracting business.’’ Mineri is a fifty-fifty owner of Tim-
berwood with his brother, Louis. ‘‘Timberwood is in
the business of building new homes. [Mineri] and one
Alan Genn (not a party to this action) are fifty-fifty
owners of G & M [Properties, LLC (G & M)]. G & M
buys and sells real property. Christopher [Mineri (Chris-
topher)] (also not a party) owns all or part of Mineri
Excavating . . . .’’ Mineri testified at trial that he is
actively involved in the operation of all three busi-
nesses.
The subject property is located at 6 Pine View Drive
in North Branford (property). ‘‘A previous house at this
location was destroyed by fire, leaving a foundation.
[Mineri], through one or more of his [businesses] . . .
purchased the property with the intention of building
a new home on the existing foundation and ‘flipping’
it. Timberwood proceeded to build the home.
‘‘The home was built over the existing foundation.
Timberwood also built an adjacent garage, and, in the
process of doing so, laid a foundation for the garage.
The garage foundation is approximately four feet higher
than the existing foundation for the house. In excavat-
ing the garage foundation, Christopher (the excavator
of the Mineri family) saw water.’’ Mineri was well aware
that Christopher found water. ‘‘In addition, in the pro-
cess of building the home, footings were dug in the
existing foundation to hold ‘lolly columns’ to support
the home. In digging these footings, [Mineri] saw water.
Although it is unclear whether the water in question
resulted from a high water table or runoff, [Mineri]
was aware that there was a high water table in the
neighborhood. In an attempt to resolve the [water] prob-
lem, he dug footing drains and waterproofed the founda-
tion. The drains were connected to a cement pit buried
in the yard.’’
In the fall of 2015, the plaintiffs, looking to buy their
dream home, visited the property and decided to pur-
chase it. Prior to purchasing the home, the plaintiffs
took a walk-through and saw the basement, which was
dry at that time. Neither Mineri nor anyone else
informed them of the water problems that Mineri and
his brother Christopher had observed or of the exis-
tence of the high water table in the neighborhood. In
the plaintiffs’ view, because they were purchasing a new
home, they did not need to employ a home inspector.
The plaintiffs initially executed a contract to pur-
chase the property on December 17, 2015. This contract
identified the ‘‘ ‘seller’ ’’ as G & M, but an addendum,
identifying repairs that needed to be made, mistakenly
identified the ‘‘ ‘seller’ ’’ as Timberwood. On January 15,
2016, after the mistake had been noticed, the plaintiffs
executed a substantively identical contract, identifying
G & M as the ‘‘ ‘seller’ ’’ in the main contract and the
addendum. On January 27, 2016, an updated addendum,
which identified G & M as the ‘‘ ‘seller’ ’’ and which
identified additional repairs to be made, was executed.
Paragraph 7 of the contract provides: ‘‘Buyer represents
that Buyer has examined the Real Property and is satis-
fied with the physical condition subject to the Inspec-
tion Contingency if applicable. Neither Seller nor any
representative of the Seller or Buyer has made any
representation or promise other than those expressly
stated herein which Buyer has relied upon in making
this Agreement.’’ On February 4, 2016, the town of North
Branford issued a certificate of use and occupancy.
The closing on the plaintiffs’ purchase of the property
occurred on February 10, 2016. As part of the closing,
the plaintiffs and G & M executed a so-called punch
list agreement identifying additional repairs to be made
by February 24, 2016, including a repair for ‘‘ ‘basement
drain pipe leaking.’ ’’ Within one week of the closing,
the plaintiffs saw water in the basement. Daniel Onofrio
notified Mineri, and the two met on February 17, 2016.
Mineri stated: ‘‘ ‘This is my responsibility, and I will
take care of this ASAP.’ ’’ Mineri did not do so, a ‘‘lengthy
saga of texts’’ between Daniel Onofrio and the Mineris
ensued, and water continued to appear in the basement.
After months of promises, Mineri sent Christopher
to deal with the problem. On October 31, 2016, a crew
appeared at the property without announcement and
dug up the yard in search of the cement pit that Mineri
had installed when building the home. After much exca-
vation, the pit was found without water in it. Christo-
pher subsequently put a sump pump in the basement
but did not arrange for an electrician to activate it. In
April, 2017, the basement flooded with approximately
four inches of water, destroying some of the plaintiffs’
personal property. Thereafter, the plaintiffs hired an
electrician to activate the sump pump.
On June 29, 2017, the plaintiffs commenced this
action against the defendants. On September 8, 2017,
the plaintiffs filed the operative complaint consisting
of six counts: (1) breach of contract (count one); (2)
negligent misrepresentation (count two); (3) negligence
(count three); (4) breach of warranties (count four);
(5) fraudulent concealment (count five); and (6) viola-
tions of CUTPA (count six). Counts one, two, three,
five, and six were directed to Mineri, G & M, and Tim-
berwood. Count four was directed to G & M and Tim-
berwood. The defendants filed an answer and special
defenses. The case was tried to the court, Hon. Jon C.
Blue, judge trial referee, on March 15, 18 and 19, 2019.
On June 17, 2019, the court issued its memorandum
of decision rendering judgment as follows: (1) on count
one (breach of contract), in favor of the plaintiffs
against G & M in the amount of $22,340 and in favor
of Mineri and Timberwood; (2) on count two (negligent
misrepresentation), in favor of the plaintiffs against G &
M in the amount of $22,340 and in favor of Mineri and
Timberwood; (3) on count three (negligence), in favor
of the defendants; (4) on count four (breach of warrant-
ies act), in favor of the plaintiffs against G & M and
Timberwood in the amount of $22,340; (5) on count
five (fraudulent concealment), in favor of the defen-
dants; and (6) on count six (CUTPA), in favor of the
plaintiffs against the defendants in the amount of
$22,340. Although the court declined to award punitive
damages under CUTPA, the court awarded costs and
reasonable attorney’s fees pursuant to CUTPA, stating
that, by agreement of the parties, the amount of such
fees would be addressed at a subsequent hearing. This
appeal followed.2 Additional facts and background will
be set forth as necessary.
I
Mineri and Timberwood claim that the trial court
erred in concluding that they violated CUTPA. Specifi-
cally, they contend that the court’s conclusion that they
had violated CUTPA through their ‘‘ ‘representations
or nonrepresentations’ ’’ to the plaintiffs cannot stand
because it is inconsistent with its finding in their favor
on the plaintiffs’ claims for breach of contract, negligent
misrepresentation, negligence, and fraudulent conceal-
ment. They also contend that the court erred in
extending CUTPA liability to them based on its finding
that G & M had violated CUTPA. Although Mineri and
Timberwood intertwine these arguments in their appel-
late brief, we distill and address them separately.
A
Mineri and Timberwood argue that the trial court’s
conclusion that they violated CUTPA through their
omissions to the plaintiffs is inconsistent with its ren-
dering judgment in their favor on the plaintiffs’ claims
for breach of contract, negligent misrepresentation,
negligence, and fraudulent concealment. We do not
reach the merits of this claim because it is inadequately
briefed.
‘‘Both this court and our Supreme Court ‘repeatedly
have stated that [w]e are not required to review issues
that have been improperly presented to this court
through an inadequate brief. . . . Analysis, rather than
mere abstract assertion, is required in order to avoid
abandoning an issue by failure to brief the issue prop-
erly. . . . [F]or this court judiciously and efficiently to
consider claims of error raised on appeal . . . the par-
ties must clearly and fully set forth their arguments in
their briefs. . . . The parties may not merely cite a
legal principle without analyzing the relationship
between the facts of the case and the law cited.’ . . .
State v. Buhl, 321 Conn. 688, 724, 138 A.3d 868 (2016);
see also Parnoff v. Mooney, 132 Conn. App. 512, 518,
35 A.3d 283 (2011) (‘[i]t is not the role of this court to
undertake the legal research and analyze the facts in
support of a claim or argument when it has not been
briefed adequately . . . .’).’’ Seaport Capital Partners,
LLC v. Speer, 202 Conn. App. 487, 489–90, 246 A.3d 77,
cert. denied, 336 Conn. 942, 250 A.3d 40 (2021); see also
Practice Book § 67-4.
In the present case, Mineri and Timberwood’s brief
fails to analyze how the court’s rendering judgment in
their favor as to the counts alleging breach of contract,
negligent misrepresentation, negligence, and fraudulent
concealment is necessarily inconsistent with the court’s
rendering judgment against them as to the count alleg-
ing CUTPA violations. That is, Mineri and Timberwood’s
brief contains no meaningful analysis as to how the
court’s treatment of the plaintiffs’ allegations in support
of counts one, two, three, and/or five is necessarily
inconsistent with its conclusion, vis-à-vis count six, that
its finding that G & M violated CUTPA should be applied
to each of them. ‘‘Adequate briefing is necessary in
order to avoid abandoning an issue on appeal. See, e.g.,
Connecticut Light & Power Co. v. Dept. of Public Utility
Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003).’’
Seaport Capital Partners, LLC v. Speer, supra, 202
Conn. App. 490. Because we conclude that Mineri and
Timberwood have failed to meet their burden with
respect to this particular argument, we deem it aban-
doned.
B
Mineri and Timberwood also contend that the trial
court erred in extending CUTPA liability to each of
them based on its finding that G & M had violated
CUTPA. We disagree as to Mineri and agree as to Tim-
berwood.
By way of background, the court found that the plain-
tiffs had established a CUTPA violation with respect to
G & M. Specifically, the court found that ‘‘[t]he acts of
nondisclosure by G & M discussed with respect to count
one . . . offended public policy as it has been estab-
lished by the common law. Under all of the circum-
stances they were also immoral, oppressive, and
unscrupulous. Under well established Connecticut law,
the plaintiffs have established a CUTPA violation with
respect to G & M. The impact of this finding on the
remaining defendants will be discussed . . . .’’3 The
acts of nondisclosure, as found by the court with
respect to count one, are as follows. Mineri failed to
inform the plaintiffs of the water infiltration problem,
which was known to him. That omission was worsened
by Mineri’s affirmative agreement to repair the leaking
basement drainpipe, which would lead a reasonable
purchaser to believe that such repair would fix what-
ever water problem remained in the basement. The
court acknowledged the applicability of the legal princi-
ple that ‘‘ ‘[a] seller of real or personal property is . . .
ordinarily expected to disclose a known latent defect
of quality or title that is of such character as would
probably prevent the buyer from buying at the contract
price.’ 2 Restatement (Second), Contracts § 161, com-
ment (d), pp. 433–34 (1981).’’ The court further stated
that ‘‘[p]ublic policy discourages the use of fraud and
misrepresentation with respect to unsuspecting pur-
chasers of homes.’’
We turn to the standard of review and the applicable
principles of law. ‘‘It is well settled that whether a [par-
ty’s] acts constitute . . . deceptive or unfair trade
practices under CUTPA, is a question of fact for the
trier, to which, on appellate review, we accord our
customary deference. . . . [W]here the factual basis of
the court’s decision is challenged we must determine
whether the facts set out in the memorandum of deci-
sion are supported by the evidence or whether, in light
of the evidence and the pleadings in the whole record,
those facts are clearly erroneous.’’ (Internal quotation
marks omitted.) Pedrini v. Kiltonic, 170 Conn. App.
343, 353, 154 A.3d 1037, cert. denied, 325 Conn. 903,
155 A.3d 1270 (2017).
Our Supreme Court has stated that ‘‘[General Statutes
§] 42-110b (a) provides that [n]o person shall engage
in unfair methods of competition and unfair or decep-
tive acts or practices in the conduct of any trade or
commerce. It is well settled that in determining whether
a practice violates CUTPA we have adopted the criteria
set out in the cigarette rule by the [F]ederal [T]rade
[C]ommission for determining when a practice is unfair:
(1) [W]hether the practice, without necessarily having
been previously considered unlawful, offends public
policy as it has been established by statutes, the com-
mon law, or otherwise—in other words, it is within at
least the penumbra of some [common-law], statutory,
or other established concept of unfairness; (2) whether
it is immoral, unethical, oppressive, or unscrupulous;
(3) whether it causes substantial injury to consumers,
[competitors or other businesspersons]. . . . All three
criteria do not need to be satisfied to support a finding
of unfairness. A practice may be unfair because of the
degree to which it meets one of the criteria or because
to a lesser extent it meets all three. . . . Thus a viola-
tion of CUTPA may be established by showing either
an actual deceptive practice . . . or a practice
amounting to a violation of public policy. . . . In order
to enforce this prohibition, CUTPA provides a private
cause of action to [a]ny person who suffers any ascer-
tainable 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.) Harris v. Bradley Memorial Hospi-
tal & Health Center, Inc., 296 Conn. 315, 350–51, 994
A.2d 153 (2010), quoting Ramirez v. Health Net of the
Northeast, Inc., 285 Conn. 1, 18–19, 938 A.2d 576 (2008).
In Joseph General Contracting, Inc. v. Couto, 317
Conn. 565, 583, 119 A.3d 570 (2015), our Supreme Court
considered whether there could be individual liability
for a corporate entity’s violation of CUTPA. Upon ana-
lyzing the relevant statutory text, the court first deter-
mined that ‘‘[t]he plain language of § 42-110b clearly
indicates that an individual can be liable for a CUTPA
violation.’’ Id., 587. The court next considered ‘‘whether
liability under CUTPA may be extended to an individual
who engages in unfair or unscrupulous conduct on
behalf of a business entity.’’ Id., 588. In doing so, pursu-
ant to the directive in § 42-110b, the court looked to
the federal courts’ interpretation of CUTPA’s federal
statutory counterpart, the Federal Trade Commission
Act (federal act), 15 U.S.C. § 41 et seq. (2006), and
observed: ‘‘The test used by the federal courts is uni-
formly stated, but it is flexible and highly fact specific
in application. In order to hold an individual liable, a
plaintiff, after showing that an entity violated the federal
act, must prove that the individual either participated
directly in the entity’s deceptive or unfair acts or prac-
tices, or that he or she had the authority to control
them. . . . The plaintiff then must establish that the
individual had knowledge of the wrongdoing at issue.
. . .
‘‘An individual’s status as controlling shareholder or
officer in a closely held corporation creates a presump-
tion of the ability to control . . . but is not necessarily
dispositive in all cases. . . . On the other hand, an
employee who is not an owner or officer may, under
some circumstances, possess the requisite authority.
. . . Authority to control may be established by evi-
dence of an individual’s conduct, such as his or her
active involvement in business affairs and [participation
in] the making of company policy. . . . Evidence that
other employees of an entity deferred to the individual
also is relevant. . . .
‘‘The knowledge requirement may be established with
evidence showing that the individual had actual knowl-
edge of [the entity’s] material misrepresentations, reck-
less indifference to the truth or falsity of such misrepre-
sentations, or an awareness of a high probability of
fraud along with an intentional avoidance of the truth.
. . . An individual’s degree of participation in business
affairs is probative of knowledge. . . . [T]he [plaintiff]
is not required to show that a defendant intended to
defraud consumers in order to hold that individual per-
sonally liable. . . . A good faith belief in the truth of
a misrepresentation may, however, preclude individual
liability under the federal act.
‘‘The requirements of this test will necessarily pre-
clude certain types of liability under CUTPA, namely,
liability for merely negligent acts of an individual or
the negligent acts of another, subordinate person in
service to an entity. In order for any individual liability
to attach under CUTPA, someone must knowingly or
recklessly engage in unfair or unscrupulous acts, as
contemplated by the statute, in the conduct of a trade
or business.’’ (Citations omitted; emphasis in original;
footnote omitted; internal quotation marks omitted.)
Id., 589–92.
In the present case, with respect to extending CUTPA
liability to Mineri on the basis of G & M’s conduct, the
court found that ‘‘[t]he evidence establishes that both
G & M and Timberwood were closely held corporations
and that . . . Mineri effectively controlled both corpo-
rations. . . . Mineri also had complete knowledge both
of the water issues in the basement in question and of
all the representations or nonrepresentations given to
the [plaintiffs]. He was personally involved in each of
the events (or nonevents) described in this opinion. He
‘either directly participated in the wrongful conduct or,
by virtue of his ownership, position, and day-to-day
involvement’ in the construction project in question
‘had the ability to control it. Moreover, given the charac-
ter of the actions at issue, [he] necessarily knew or
should have known of their wrongfulness.’ [Joseph Gen-
eral Contracting, Inc. v. Couto, supra, 317 Conn.] 593.
. . . Mineri is therefore personally liable under
CUTPA.’’
Applying the test adopted by the court in Joseph
General Contracting, Inc., described previously in this
opinion, and satisfied that the court’s factual findings
are adequately supported by the record, we conclude
that the court properly found Mineri personally liable
under CUTPA. The court’s conclusion remained faithful
to the principle that an officer of a corporate entity
does not incur personal liability for the entity’s violation
of CUTPA merely by virtue of his or her official position.
Indeed, the court’s factual findings support its determi-
nation that the test adopted in Joseph General Con-
tracting, Inc.—which requires proof of (1) the entity’s
violation of CUTPA; (2) the individual’s participation
in the acts or practices, or the authority to control them;
and (3) the individual’s knowledge of the wrongdoing at
issue—was satisfied. See Joseph General Contracting,
Inc. v. Couto, supra, 317 Conn. 589. Accordingly, Min-
eri’s claim on appeal with respect to the judgment
against him on count six fails.
With respect to extending CUTPA liability to Tim-
berwood on the basis of G & M’s conduct, the court
stated: ‘‘Although the issue of Timberwood’s CUTPA
liability is less directly governed by precedent, the logic
of both Joseph General Contracting, Inc., and of
CUTPA itself strongly indicates that Timberwood
should be held liable here. As mentioned, [the Mineris]
own Timberwood on a fifty-fifty basis. [Mineri] effec-
tively controlled both Timberwood and G & M and used
them in a common enterprise. CUTPA is intended to
protect the rights of consumers such as the [plaintiffs].
It is the express intent of the legislature that CUTPA
‘be remedial and be so construed.’ [General Statutes]
§ 42-110b (d). CUTPA further directs the courts to ‘be
guided by interpretations given by the Federal Trade
Commission and the federal courts to Section 5 (a) (1)
of the Federal Trade Commission Act (15 U.S.C. § 45
(a) (1)),’ in construing CUTPA. [General Statutes] § 42-
110b (b). The [United States] Supreme Court has
‘repeatedly held that the [c]ommission has wide discre-
tion in determining the type of order that is necessary
to cope with the unfair trade practices found . . . .’
Federal Trade Commission v. Colgate-Palmolive Co.,
380 U.S. 374, 392, [85 S. Ct. 1035, 13 L. Ed. 2d 904]
(1965). It has long been established that corporations
cannot be permitted to evade the reach of antitrust
laws by the use of holding companies and interlocking
boards of directors. ‘[T]he interests of private persons
and corporations cannot be made paramount to the
interests of the general public.’ Northern Securities Co.
v. United States, 193 U.S. 197, 352, [24 S. Ct. 436, 48 L.
Ed. 679] (1904). Courts, in cases such as this, are
allowed to mold their decrees ‘so as to accomplish
practical results—such results as law and justice
demand.’ Id., 360.
‘‘G & M, [Mineri], and Timberwood jointly coordi-
nated their activities in this case. Those activities . . .
violated CUTPA. Law and justice demand that all three
defendants be held accountable under CUTPA.’’
When the court’s decision is construed as a whole,
it is apparent that the court found Timberwood liable
under CUTPA based on a ‘‘joint coordination’’ theory.
That is, on the basis of a theory that they jointly coordi-
nated their activities, the court extended to Tim-
berwood its finding that G & M had violated CUTPA.
Although the court cited Joseph General Contracting,
Inc. v. Couto, supra, 317 Conn. 565, as supporting the
foregoing extension of CUTPA liability, such conclusion
places weight on that decision that it cannot bear. As
explained previously in this opinion, our Supreme Court
addressed in Joseph General Contracting, Inc.,
‘‘whether liability under CUTPA may be extended to
an individual who engages in unfair or unscrupulous
conduct on behalf of a business entity.’’ Id., 588. The
court did not have occasion to consider the extension of
CUTPA liability to another entity that has a controlling
shareholder or officer in common with the entity found
to have engaged in unfair or unscrupulous conduct. We
conclude that the court improperly extended its finding
that G & M violated CUTPA to Timberwood on the basis
of a so-called joint coordination theory.4
II
Timberwood also claims that the trial court erred
in rendering judgment against it on count four of the
operative complaint for violation of the warranties act,
specifically, for breach of the implied warranty that
the improvement was constructed in a workmanlike
manner. See General Statutes § 47-118 (a) (3). Tim-
berwood exclusively contends on appeal that no war-
ranties existed between it and the plaintiffs because it
was not the selling vendor and, therefore, is not a ‘‘ven-
dor’’ for purposes of § 47-118 (a). We disagree.
Whether Timberwood, as the builder of the plaintiffs’
new home, qualifies as a ‘‘vendor’’ for purposes of § 47-
118 (a) is a matter of statutory interpretation over which
our review is plenary. ‘‘Well settled principles of statu-
tory interpretation govern our review. . . . Because
statutory interpretation is a question of law, our review
is de novo. . . . When construing a statute, [o]ur funda-
mental 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 mean-
ing of the statutory language as applied to the facts
of [the] case, including the question of whether the
language actually does apply. . . . In seeking to deter-
mine that meaning, General Statutes § 1-2z directs us
first to consider the text of the statute itself and its
relationship to other statutes. 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 govern-
ing the same general subject matter . . . .’’ (Internal
quotation marks omitted.) Joseph General Contracting,
Inc. v. Couto, supra, 317 Conn. 586–87.
Resolving Timberwood’s claim requires us to inter-
pret various provisions of the warranties act. We begin
with the text of § 47-118, which provides in relevant
part: ‘‘(a) In every sale of an improvement by a vendor
to a purchaser, except as provided in subsection (b)
of this section or excluded or modified pursuant to
subsection (d) of this section, warranties are implied
that the improvement is: (1) Free from faulty materials;
(2) constructed according to sound engineering stan-
dards; (3) constructed in a workmanlike manner; and
(4) fit for habitation, at the time of the delivery of the
deed to a completed improvement, or at the time of
completion of an improvement not completed when the
deed is delivered.
‘‘(b) The implied warranties of subsection (a) of this
section shall not apply to any condition that an inspec-
tion of the premises would reveal to a reasonably dili-
gent purchaser at the time the contract is signed. . . .
‘‘(d) Neither words in the contract of sale, nor the
deed, nor merger of the contract of sale into the deed
is effective to exclude or modify any implied warranty;
provided, if the contract of sale pertains to an improve-
ment then completed, an implied warranty may be
excluded or modified wholly or partially by a written
instrument, signed by the purchaser, setting forth in
detail the warranty to be excluded or modified, the
consent of the purchaser to exclusion or modification,
and the terms of the new agreement with respect to it.
. . .’’ (Emphasis added.)
General Statutes § 47-116, which sets forth the defini-
tions for chapter 827 ‘‘unless the context otherwise
requires,’’ defines ‘‘ ‘[i]mprovement’ ’’ as ‘‘any newly
constructed single family dwelling unit, any conversion
condominium unit being conveyed by the declarant and
any fixture or structure which is made a part thereof at
the time of construction or conversion by any building
contractor, subcontractor or declarant.’’ Section 47-116
also defines ‘‘ ‘vendor’ ’’ as ‘‘any person engaged in the
business of erecting or creating an improvement on real
estate, any declarant of a conversion condominium, or
any person to whom a completed improvement has
been granted for resale in the course of his business.’’ In
addition, § 47-116 defines ‘‘ ‘purchaser’ ’’ as ‘‘the original
buyer, his heirs or designated representatives.’’
We note at this juncture that the court found that
‘‘[t]he home at issue in this case is an ‘improvement.’
It is a ‘newly constructed single family dwelling unit.’
The preexisting foundation was a ‘structure which [was]
made a part of [the newly constructed single family
dwelling unit] at the time of construction.’ ’’ The court
also found that G & M is a ‘‘ ‘vendor,’ ’’ as defined in
§ 47-116, because ‘‘it is a corporate ‘person to whom a
completed improvement had been granted for resale in
the course of [its] business.’ ’’ In addition, the court
found that Timberwood is a ‘‘ ‘vendor,’ ’’ as defined in
§ 47-116, because ‘‘it is a corporate ‘person engaged in
the business of erecting or creating an improvement
on real estate.’ ’’ The court went on to find that ‘‘[t]he
home, being an ‘improvement,’ had an implied warranty
of, inter alia, being ‘constructed in a workmanlike man-
ner.’ A home with a wet basement that periodically
floods has not been constructed in a workmanlike man-
ner, particularly when, as the evidence here shows, the
problem would have been resolvable with a modest
expenditure of funds.’’ Those particular findings remain
unchallenged on appeal. Moreover, it is undisputed that
the plaintiffs are ‘‘purchasers’’ under § 47-116.
The question before us, which appears to be an issue
of first impression, is whether the implied warranties
created by § 47-118 ‘‘[i]n every sale of an improvement
by a vendor to a purchaser’’; General Statutes § 47-118
(a); are owed by the builder/vendor of such improve-
ment to the original purchaser notwithstanding the fact
that the home was sold by an intermediary vendor. For
the reasons that follow, we answer that question in the
affirmative.
First, the definition of ‘‘vendor,’’ set forth in § 47-116,
captures, inter alia, not only ‘‘any person to whom a
completed improvement has been granted for resale in
the course of his business’’ (i.e., a selling vendor who
satisfies this definition), but also ‘‘any person engaged
in the business of erecting or creating an improvement
on real estate’’ (e.g., the builder of the new home).
Second, pursuant to § 1-2z, we consider the relationship
of § 47-118 to other statutes, specifically, General Stat-
utes § 47-119, titled ‘‘Vendor not to evade by intermedi-
ate transfer,’’ which provides: ‘‘Any vendor who conveys
an improvement to an intermediate purchaser to evade
the provisions of this chapter shall be liable to the
subsequent purchaser as if the subsequent conveyance
had been effectuated by the vendor to the subsequent
purchaser.’’ We construe these provisions to reflect the
legislature’s intent not to permit the builder of a newly
constructed single family dwelling unit, who satisfies
the definition of ‘‘vendor’’ set forth in § 47-116, to evade
liability for breach of the implied warranties otherwise
owed to an original ‘‘purchaser,’’ as defined in § 47-116.5
In sum, we conclude that the implied warranties cre-
ated by § 47-118 are owed by the builder ‘‘vendor’’ of
an ‘‘improvement’’ to the original ‘‘purchaser’’ notwith-
standing the fact that the home was sold by an interme-
diary ‘‘vendor,’’ as those terms are defined in § 47-116.
Accordingly, Timberwood’s claim that the court erred
in rendering judgment against it on count four fails.
The judgment is reversed with respect to the plain-
tiffs’ CUTPA claim against Timberwood, and the case
is remanded with direction to render judgment in favor
of Timberwood on that claim; the judgment is affirmed
in all other respects.
In this opinion the other judges concurred.
1
Judgment also was rendered against the defendant G & M Properties,
LLC (G & M). G & M is not participating in this appeal. We refer to Mineri,
Timberwood, and G & M collectively as the defendants and individually
by name.
2
G & M has not filed an appeal from the judgment, and the plaintiffs have
not filed a cross appeal.
3
Although the court also stated that ‘‘the actions alleged and proved in
counts one, two, and four constitute a CUTPA violation,’’ it appears that it
specifically intended to have its findings, vis-à-vis G & M with respect to
count one, extended to Mineri and Timberwood for purposes of CUTPA.
4
The plaintiffs argue that the judgment against Timberwood as to count
six should be affirmed because ‘‘[t]he evidence was legally sufficient for
the [court] to find [that] Timberwood committed an unfair trade practice
by its refusal to correct the basement water condition.’’ This argument is
unavailing because we do not interpret the court’s opinion as having found
Timberwood liable under CUTPA based on its refusal to correct the plaintiffs’
water problem.
The plaintiffs further argue that Timberwood’s violation of the warranties
act may also support the imposition of CUTPA liability against it, and they
suggest that this court hold that a violation of the warranties act is a per
se violation of CUTPA. We reject the notion that the judgment against
Timberwood as to CUTPA may be affirmed on these grounds. The trial court
did not conclude that Timberwood had violated CUTPA by virtue of its
violation of the warranties act. Moreover, our Supreme Court rejected such
an argument in Naples v. Keystone Building & Development Corp., 295
Conn. 214, 229 n.17, 990 A.2d 326 (2010), stating: ‘‘To the extent that the
plaintiffs claim that a violation of the warranties act is a per se CUTPA
violation, we disagree.’’ ‘‘[A]s an intermediate appellate court, we are bound
by Supreme Court precedent and are unable to modify it . . . .’’ (Internal
quotation marks omitted.) Moutinho v. 500 North Avenue, LLC, 191 Conn.
App. 608, 616, 216 A.3d 667, cert. denied, 333 Conn. 928, 218 A.3d 68 (2019).
5
Timberwood contends, without any explication, that applying the implied
warranties provisions set forth in § 47-118 to it, as a nonselling builder/
vendor, will yield an absurd result. We find this contention to be without
merit.