home-improvement-contractorCan an unlicensed contractor testify as an expert witness, even though the state requires that he register?

The plaintiff, a custom homebuilder, appealed the judgment of the trial court for the defendants, two individuals, on its claim for foreclosure of its mechanic’s lien and finding against it on the defendants’ counterclaim. On appeal to the Connecticut Court of Appeals, the plaintiff claimed that the court, among other issues, permitted an unregistered home improvement contractor to testify as an expert witness.

The homebuilder and the defendants contracted for the construction of a new home. The defendants obtained construction loan financing, and a budget was prepared for the construction by the bank. The plaintiff reviewed and approved the construction budget, which provided for payment in five installments during the stages of construction. The budget explained the work that needed to be performed and the requirements that had to be met before the release of a payment.

Six months later at the closing, the homebuilder received payments for their work. The house, however, was not completed at the time of the closing. Soon thereafter, the parties signed a contractor’s affidavit, which affirmed that work was performed and paid for up through stage four.

The defendants moved into the house before a final certificate of occupancy was issued. The house failed its first two inspections, but passed a third. The homebuilder had been paid a portion of the budgeted amount for stage five work, but several items remained incomplete. In February 2008, the homebuilder filed a mechanic’s lien with respect to services rendered in the development of the property. The defendants filed an answer and counterclaims, alleging that the plaintiff breached its contract with them, failing to comply with the New Home Construction Contractors Act.

The trial court found for the defendants on the plaintiff’s mechanic’s lien claim; for the plaintiff on one the defendants’ counterclaims (untruthful or misleading advertising); for the defendants another counterclaim (unfair or deceptive business practice, awarding $25,000 in damages plus attorney’s fees and costs); and for the defendants on their third counterclaim (awarding $10,000 in damages for plaintiff’s failure to timely complete any task, as specified in a written contract of sale).

The court found that the plaintiff’s actions constituted a “conscious and reckless disregard by the plaintiff for both the condition of this dwelling and for the [defendants’] safety.” Plaintiff’s agent did not show remorse for “the disaster of a home” it left for the defendants, nor any concern as to the safety issues that were left at the house. The court calculated the cost of completion to be $34,000 and the value of the mechanic’s lien to be $8700. Based on these factors, the court awarded the defendants $25,000 plus attorney’s fees and costs.

The plaintiff claimed that allowing an unregistered home improvement contractor to offer expert witness testimony was an abuse of discretion. It maintained that the witness engaged in the home improvement business in the state without registering with the department of consumer protection. As a result of this violation of Connecticut law, he was not qualified to be an expert witness. Judge Richard A. Robinson of the court of appeals did not agree.

At trial, the defendants called an expert witness to testify about the repairs needed at the property. He indicated that he was a general contractor with nearly 40 years of experience in the field, and that he had completed approximately six new home constructions. Upon further questioning by the plaintiff’s attorney, he testified that he did not have a home improvement contractor’s license, a major contractor’s license, or a certificate of registration as a new home construction contractor. The expert testified about his experience in plumbing, electrical work, roofing, landscaping, deck construction and renovations, cement stair relocation, cabinetry work, toilet relocation, and tile work. He also spoke to his educational background. On the basis of his testimony, the court accepted him as an expert witness.

Judge Robinson cited Milton v. Robinson (Conn. App. 2012), which said “It is well settled that [t]he true test of the admissibility of [expert] testimony is not whether the subject matter is common or uncommon, or whether many persons or few have some knowledge of the matter; but it is whether the witnesses offered as experts have any peculiar knowledge or experience, not common to the world, which renders their opinions founded on such knowledge or experience any aid to the court or the jury in determining the questions at issue…. Implicit in this standard is the requirement … that the expert’s knowledge or experience must be directly applicable to the matter specifically in issue.”

In this case, the plaintiff’s counsel and the court elicited extensive information regarding the witness’ qualifications to provide an estimate of the cost of repairs to the defendant’s home. Whether he legally could complete the work that was estimated was not at issue. This also was not a factor in whether he reasonably could be qualified as an expert. The court determined that the witness’ prior experience regarding the issues with the Negrons’ home gave him “peculiar knowledge that would aid the court in determining the questions at issue.” As a result, Judge Robinson of the Court of Appeals held that the trial court did not abuse its discretion in allowing the defendant’s expert to be qualified as an expert witness.

Source: 2013 WL 9886 (Conn.App. Jan. 1, 2013).

By: Kurt Mattson, J.D. LLM