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All American Pools, Inc. v. Lato

Court of Appeals of Connecticut

February 6, 1990

ALL AMERICAN POOLS, INC.
v.
Frank LATO et al.

Argued Dec. 12, 1989.

James J. Farrell, Norwalk, for appellants (named defendants, et al.).

Simon Sumberg, Norwalk, for appellee (plaintiff).

Page 563

Before DALY, NORCOTT and FOTI, JJ.

[20 Conn.App. 626] NORCOTT, Judge.

This appeal arises out of the plaintiff's action to foreclose a mechanic's lien filed against certain property owned by the defendant Rosalie Lato to secure payment allegedly due under a contract for the repair of a pool located on that property. The defendants Frank and Rosalie Lato (hereinafter defendants) appeal from the trial court's judgment accepting the report of the attorney trial referee and ruling in favor of the plaintiff, All American Pools, Inc. They claim that the attorney trial referee erred (1) in finding that the Home Solicitation Sales Act [1] did not apply to the parties' agreement, (2) in finding that the defendants failed to prove that the plaintiff did not hold the necessary licenses and permits required by the Home Improvement Act, [2] (3) in finding that the plaintiff did not use a fictitious name in violation of General Statutes § 35-1 [3] or § 42-110b, [4] (4) in finding that the agreement between the parties was not void as a matter of public policy and not awarding sums already paid to the plaintiff and attorney's fees to the defendant, and [20 Conn.App. 627] (5) in allowing the plaintiff to amend its pleadings after trial in order to conform to the requirements of new case law. We find no error.

Most of the relevant facts in this case are not in dispute. The plaintiff and the named defendant, the husband of the defendant Rosalie Lato, entered into a written service contract dated June 10, 1984, for repair work to be performed on the defendants' pool. The services described in that agreement were performed, and Frank Lato made the full cash payment. Subsequently, the plaintiff performed additional services on the defendants' pool. That additional work is the subject of this appeal.

The plaintiff claims that these additional services were performed pursuant to an agreement between the plaintiff and Frank Lato, who acted with his wife's knowledge. The defendants do not deny this contention, but rather they assert that the agreement is unenforceable because the services fall under the Home Solicitation Sales Act.

The defendants challenge several factual findings made by the attorney trial referee. In addressing a challenge to the facts found by the attorney referee, this court's function is to determine whether those findings are clearly erroneous. Practice Book § 4061; Nor'easter Group, Inc. v. Colossale Concrete, Inc., 207 Conn. 468, 473, 542 A.2d 692 (1988). Only if they are clearly erroneous can we reverse the findings. "The resolution of conflicting factual claims falls within the province of the trial court." Id. This court cannot retry those facts or pass on the credibility of the witnesses. Id.

The defendants claim that the attorney referee erred in finding that the Home Solicitation Sales Act was inapplicable to this case because the initial contact between the parties occurred at the plaintiff's place of [20 Conn.App. 628] business. They further claim that the referee erred in finding that the plaintiff held the necessary licenses and

Page 564

permits required by General Statutes § 20-418 et seq. to perform home improvement work and that the plaintiff did not use an unregistered and fictitious name in violation of General Statutes § 35-1 or General Statutes § 42-110b.

The plaintiff's president, John Romano, testified that the initial contact between the parties took place at its place of business. The defendants testified that no contact took place at the plaintiff's office, but rather, that the contract was entered into at their home and that, therefore, the agreement fell under the Home Solicitation Sales Act. Romano also testified Before the referee that he was a licensed contractor and that a plumbing permit, which the defendants claim was necessary, was not specifically required for the work that his company performs. The defendants, although alleging a violation by the plaintiff of the Unfair Trade Practices Act for using an unregistered or fictitious name, produced no evidence to support this claim.

The attorney referee found the following facts. Rosalie Lato initially contacted the plaintiff at its place of business to engage its services to repair the defendants' pool. Frank Lato then entered into a written agreement with the plaintiff. After performance of the work outlined in the written contract was completed, the plaintiff advised the defendants that additional work was required, and Frank Lato agreed. He agreed to pay the amount due, $2561, within one week after completion. Upon completion of the work, the plaintiff sent bills to the defendants, but they did not pay.

Upon review of the entire record, we can find no reason to disturb the attorney referee's findings of fact. The finder of fact is in the best position to pass on the credibility of witnesses; Nor'easter Group, Inc. v. [20 Conn.App. 629] Colossale Concrete, Inc., supra; and she was free, therefore, to believe the plaintiff's witness. Because the referee's findings are adequately supported by the record, we conclude that there is no error.

Having concluded that the attorney referee did not err in finding that the initial contact between the parties occurred in the plaintiff's office, it follows that she correctly held the Home Solicitation Sales Act inapplicable to this case. Further, because we have concluded that the referee was reasonable in finding no statutory violation by the plaintiff, the defendants' claim that the contract was void as against public policy, based upon these alleged violations, also must fail.

Finally, the trial court did not err in allowing the plaintiff to amend its pleadings after trial in order to conform with the proof presented at trial and with new case law that was decided during the trial. See Wilson v. R.F.K. Corporation, 19 Conn.App. 548, 550, 563 A.2d 738 (1989). " 'The trial court may allow, in its discretion, an amendment to pleadings.... Such a ruling can be reversed only upon a clear showing of an abuse of discretion.... Factors to be considered in determining whether there has been an abuse of discretion include unreasonable delay, fairness to opposing parties and the negligence of the party offering ...


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