LLC v. LLC

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Superior Court of Connecticut.

Monteiro's Masonry & Construction, LLC v. Axis Point Cross Highway, LLC et al.

085016026

Decided: October 27, 2011

MEMORANDUM OF DECISION

The plaintiff, Monteiro's Masonry & Construction, LLC, brought this action against the defendant, Axis Point Cross Highway, LLC (hereafter, the defendant), to foreclose a mechanic's lien for work done to construct a masonry wall.   The plaintiff subsequently impleaded Liberty Mutual Insurance Company (Liberty Mutual) as a defendant.   As amended, the complaint is in four counts.   The first count alleges the following facts.   The defendant owns a parcel of land known as 2A Whippoorwill Lane,1 also known as lot 3 Whippoorwill Lane, in Westport.   Between June 11, 2007, and August 9, 2007, the plaintiff furnished materials and services for the moving, renovation and construction of stone walls pursuant to a written agreement.   The defendant owes the plaintiff $68,650 for those materials and services.   The first count further alleges that the plaintiff served a notice of intention to claim a mechanic's lien and subsequently served a mechanic's lien on the defendant, on Joseph B. Marks and Lisa J. Marks and on the land records.   The count is entitled:  “Foreclosure of Lot 2A (# 3) Whipporwill Lane” and references General Statutes §§ 49–34 and 49–35.

The second count is similar to the first count, except that it alleges that the defendant is the owner of parcels of land known as 140 Cross Highway and 2 Whippoorwill Lane in Westport.   The count is entitled:  “Foreclosure of 140 Cross Highway and # 2 Whipporwill Lane” and references General Statutes §§ 49–34 and 49–35.

The third count incorporates by reference the allegations of the first two counts and further alleges that, on the application of the defendant, the court permitted a surety bond in the amount of $102,975 to be substituted for the aforementioned liens.   The third count also alleges that the defendant is principal and the third-party defendant Liberty Mutual is surety on that bond.

The fourth count alleges that the defendant owns 140 Cross Highway, 2 Whippoorwill Lane and 3 Whippoorwill Lane in Westport, that the plaintiff furnished materials and services for the moving, renovation and construction of stone walls on those properties pursuant to a written agreement with the defendant and that the defendant owes the plaintiff $68,500 for materials and services.   The fourth count further alleges that the defendant has been unjustly enriched, for which the plaintiff seeks damages.

Liberty Mutual filed a cross claim against the defendant and impleaded T. Friedberg as a third-party defendant, seeking damages against both pursuant to an indemnity agreement.

The case was tried to the court, which finds the following facts.   In June 2007, the plaintiff, acting by its owner Filipe Monteiro, and the defendant, acting by its manager, Terry Friedberg, entered into an agreement whereby the plaintiff agreed to construct a stone wall on the defendant's property for the price of $9 a square foot.   Prior to beginning the work, Monteiro measured the length of the proposed wall in the presence of Friedberg's assistant, Kathy Marino.   The wall was to be 1,032.4 feet long, four feet high on each side, thirty-two inches wide with four stone pillars.   The plaintiff began work on June 11, 2007.   On June 19, 2007, the plaintiff submitted an invoice to the defendant representing that 30 percent of the work was finished and that $30,500 was due.   On July 18, 2007, the plaintiff submitted another invoice to the defendant in the amount of $35,100, representing that 80 percent of the work had been completed.   In August 2007, the plaintiff submitted a final invoice to the defendant for $32,400, representing that the entire job had been completed.   The total cost of the wall when completed was $98,650.   While the work was in progress, the defendant paid the plaintiff $30,000.   When the plaintiff completed the work the defendant refused to pay the plaintiff the balance due of $68,650.

On July 16, 2007, the defendant sold 2 Whippoorwill Lane to Joseph and Lisa Marks.

On November 5, 2007, the plaintiff filed two mechanic's liens, each in the amount of $68,650.   One lien was filed against property of the defendant at 140 Cross Highway, Westport and 2 Whippoorwill Lane, Westport.   Another lien was filed against lot 3 Whippoorwill Lane, Westport, property of the defendant and Joseph and Lisa Marks.   On May 2, 2008, the plaintiff filed a notice of lis pendens with the Westport town clerk with respect to 140 Cross Highway and 2 Whippoorwill Lane. The defendant agreed with the Marks to discharge the mechanic's lien on their property.

On November 14, 2007, the defendant applied to Liberty Mutual for a surety bond with which to release the plaintiff's mechanic's liens.   Liberty Mutual approved the application and granted the defendant a surety bond.   On November 21, 2007, the defendant filed an application in Stamford Superior Court to substitute a bond for the mechanic's lien, pursuant to General Statutes § 49–37.   On February 11, 2008, the court, by agreement of the parties, ordered the plaintiff's mechanic's lien dissolved.   A bond, with the defendant as principal and Liberty Mutual as surety, in the amount of $102,975 was substituted for the plaintiff's lien.

The plaintiff brought this action against the defendant on May 2, 2008.   On January 15, 2009, the plaintiff impleaded Liberty Mutual and asserted a claim on the bond.   Liberty Mutual subsequently impleaded T. Friedberg and asserted a claim on an indemnity agreement against the defendant and Friedberg.

Additional facts will be set forth as necessary.

I

The first two counts of the amended complaint allege the service and filing of mechanic's liens with respect to 2A Whippoorwill Lane (lot 3 Whippoorwill Lane) and 140 Cross Highway and 2 Whippoorwill Lane respectively.   However, neither in its amended complaint nor in its brief does the plaintiff seek to foreclose these liens for which, as observed supra, a bond was substituted.

II

Count three of the amended complaint is a common-law action on the bond substituted for the plaintiff's mechanic's liens, of which the defendant is principal and Liberty Mutual is surety.

The court finds the following facts:  there was an express contract between the plaintiff and the defendant for the construction of the wall and the agreed upon price was $9 per square foot;  the total cost of the wall was $98,650;  while the work was in progress, the defendant paid the plaintiff $30,000 and there remains a balance due and owing to the plaintiff from the defendant of $68,650.

The court has considered the defendant's special defenses, as to which the defendant bears the burden of proof.  Craig v. Dunleavy, 154 Conn. 100, 103, 221 A.2d 855 (1966).

The court further finds, and Liberty Mutual admits, that the defendant, as principal, and Liberty Mutual, as surety, issued a surety bond (number 102013547) in the amount of $102,975 as substitution for the plaintiff's mechanic's liens, and that the court (Tobin, J.) granted the defendant's application to substitute the bond for the liens and ordered that the bond be so substituted.

The liability of Liberty Mutual, as surety, does not depend on a previous demand by the plaintiff on the defendant, as principal, nor on default in payment by the defendant.  McCormick v. Boylan, 83 Conn. 686, 689, 78 A. 335 (1910);  see Birmingham News Co. v. Moseley, 225 Ala. 45, 47, 141 So. 689 (1932), appeal dismissed, 228 Ala. 690, 154 So. 916 (1934).  “In the absence of limitations or restrictions contained in the (surety) contract, the liability of the surety is coextensive with that of the principal ․ The surety's promise is in the same terms as that of the principal and the consequent duty similar and primary ․” (Citation omitted;  internal quotation marks omitted.)  Star Contracting Corporation v. Manway Construction Co., Inc., 32 Conn.Sup. 64, 66, 337 A.2d 669 (1973).

“The guidelines for interpreting mechanic's lien legislation are well established.   Although the mechanic's lien statute creates a statutory right in derogation of the common law ․ its provisions should be liberally construed in order to implement its remedial purpose of furnishing security for one who provides services or materials ․ Our interpretation, however, may not depart from reasonable compliance with the specific terms of the statute under the guise of a liberal construction.”  (Citations omitted.)  Nickel Mine Brook Associates v. Joseph E. Sakal, P.C., 217 Conn. 361, 364–65, 585 A.2d 1210 (1991).

The defendants argue that the mechanic's liens are invalid because:  (1) the liens were not timely filed, (2) the liens on the various lots are not blanket liens but, rather, greatly overstate the lien amount as to the individual lots, (3) the liens were not timely foreclosed and therefore were automatically extinguished by operation of law.   The court agrees with the defendants that the liens were not timely filed.

“Obviously, the plaintiff's rights on the bond can rise no higher than those acquired under the underlying mechanic's lien for which the bond is merely a substitute.”  Camputaro v. Stuart Hardwood Corporation, 180 Conn. 545, 549, 429 A.2d 796 (1980).   Therefore, “if the mechanic's lien is not valid nothing is secured by the bond.”  Hartlin v. Cody, 144 Conn. 499, 505, 134 A.2d 245 (1957).  “The liability of principal and surety on a bond which has been substituted for a mechanic's lien depends on the validity of the lien.  Six Carpenters, Inc. v. Beach Carpenters Corporation, 172 Conn. 1, 7, 372 A.2d 123 (1976).”   Atlantic Pipe Corp. v. Quadrangle Ltd., Superior Court, judicial district of New Britain, Docket No. CV 87 0336982 (October 28, 1993, Aurigemma, J.) [10 Conn. L. Rptr. 306].

General Statutes § 49–34 provides, in relevant part:  “A mechanic's lien is not valid unless the person performing the services or furnishing the materials (1) within ninety days after he has ceased to do so, lodges with the town clerk ․ a certificate in writing ․” The mechanic's liens were filed with the town clerk on November 5, 2007.

There is conflicting evidence as to when the plaintiff completed the work.   A preliminary proposal prepared by the plaintiff stated that he would begin work on June 11, 2007 and finish August 9, 2007.   The plaintiff's final invoice is dated August 7, 2007, and states:  “This is to that [sic] 100 percent of the contrated [sic] work has been completed.”  (Emphasis added.)   While the author of the invoice was no grammarian, the court cannot overlook the fact that the words “has been” ordinarily refer to a past event.   See Commonwealth v. Abdul–Salaam, 571 Pa. 219, 226, 812 A.2d 497 (2002), appeal dismissed, 606 Pa. 214, 996 A.2d 482 (2010) (observing that “[t]he language ‘has been held’ is in the past tense.   These words mean that the action has already occurred ․”).  On the other hand, the plaintiff testified that he completed the entire project on August 4, 2007, which would render the mechanic's liens untimely filed.

On June 18, 2008, Friedberg filed pro se a purported answer on behalf of the defendant, in which he admitted that the plaintiff finished the job on August 9, 2007.   The answer was stricken by the court.2  In a subsequent answer, the defendant “denies sufficient knowledge or information upon which to form a belief and therefore, leaves the Plaintiff to its proof,” as to the date of completion.   Nonetheless, while the pro se answer may not rise to the dignity of a pleading, it is a statement by Friedberg and admissible against the defendant.  General Statutes § 34–131(b) provides, in relevant part:  “If the articles of organization provide that management of the limited liability company is vested in a manager or managers:  (1) An admission or representation made by a manager concerning the business or affairs of a limited liability company within the scope of his authority as provided for by sections 34–100 to 34–242, inclusive, is evidence against the limited liability company ․”

On the other hand, Monteiro testified at trial that he finished the job on August 4, 2007.   While Monteiro is not the plaintiff, he is the owner of the limited liability company.   His statement was a judicial admission.  “Judicial admissions are voluntary and knowing concessions of fact by a party or a party's attorney occurring during judicial proceedings ․ The determination of whether a party's statement is a judicial admission or an evidentiary admission is a question of fact for the trial court ․ The distinction between judicial admissions and mere evidentiary admissions is a significant one that should not be blurred by imprecise usage ․ While both types are admissible, their legal effect is markedly different;  judicial admissions are conclusive on the trier of fact, whereas evidentiary admissions are only evidence to be accepted or rejected by the trier.”  (Citations omitted;  internal quotation marks omitted.)  LaSalle National Bank v. Freshfield Meadows, LLC, 69 Conn.App. 824, 829–30, 798 A.2d 445 (2002) (finding testimony of owner of defendant limited liability company to be binding judicial admission).

However, even if Monteiro's statement is only treated as an evidentiary admission;  Kanopka v. Kanopka, 113 Conn. 30, 154 A. 144 (1931);  the court finds it persuasive, especially when considered in connection with the August 7, 2007 final invoice.   Monteiro did not appear unsure of the date on which he completed the work.   He was in the best position to know this fact.   Moreover, it is unlikely that Monteiro had the final invoice prepared before he completed the work.   The court finds that the plaintiff completed the work on August 4, 2007.   Accordingly, the mechanic's liens were not timely filed.   Since the court has found that there was an express agreement between the parties however, which the defendant breached, judgment shall enter for the plaintiff against the defendant in the amount of $68,650.

III

The fourth count of the plaintiff's complaint seeks damages for unjust enrichment.  “Plaintiffs seeking recovery for unjust enrichment must prove (1) that the defendants were benefited, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs' detriment.”  (Internal quotation marks omitted.)  Hartford Whalers Hockey Club v. Uniroyal Goodrich Tire Co., 231 Conn. 276, 283, 649 A.2d 518 (1994).   In general, however, “an express contract between the parties precludes recognition of an implied-in-law contract governing the same subject matter.”  (Internal quotation marks omitted.)  Meaney v. Connecticut Hospital Assn., Inc., 250 Conn. 500, 517, 735 A.2d 813 (1999).   Because there was an express contract between the parties, the plaintiff is not entitled to recover for unjust enrichment.

IV

The defendant filed a setoff against the plaintiff's complaint alleging that “the Plaintiff performed such work in a negligent and unworkmanlike manner and the costs incurred and losses suffered by the undersigned Defendant are to be setoff to any claim by or award to the Plaintiff.”   There was evidence that trees were damaged during the plaintiff's construction of the wall.   The plaintiff has pleaded in avoidance;  see Practice Book § 10–57;  that the defendant released the plaintiff from all such causes of action.   The parties have not briefed this claim.

“Broadly speaking, negligence is the failure to conform one's conduct to a standard of duty prescribed by legislative authority or to conform it to the common-law requirement to exercise reasonable care under the circumstances.”   Guglielmo v. Klausner Supply Co., 158 Conn. 308, 318, 259 A.2d 608 (1969).   “Reasonable care is the care that would be exercised by an ordinarily prudent person under similar circumstances and conditions.   It does not mean extraordinary care.”  Vacca v. Della Camera, 149 Conn. 277, 281, 179 A.2d 616 (1962).   The court finds that the defendant failed to prove that the plaintiff was negligent.   The setoff is denied.

V

Although the court has found the mechanic's liens to be invalid, this does not moot Liberty Mutual's cross claim against the defendant or its third-party complaint against Friedberg based on an indemnity agreement.   That agreement provides, in relevant part:  “The undersigned (collectively ‘Indemnitor’) ․ hereby agrees with [Liberty Mutual Surety (‘Surety’) ] ․ as follows ․ to exonerate and indemnify Surety from and against all claims, losses, liability, damages of any type (including punitive), costs, fees, expenses, suits, orders, judgments, or adjudications whatsoever which Surety may incur in any manner related to the extension of surety credit ․”

A.

Liberty Mutual seeks indemnification from the defendant for attorneys fees it has incurred in connection with this action.   The defendant does not contest Liberty Mutual's entitlement to indemnification.   The court finds the issues for Liberty Mutual on the first count of its cross claim.   Judgment shall enter in favor of Liberty Mutual on the first count of the cross claim in the amount of $14,544.07.

B.

Liberty Mutual also seeks indemnification from Friedberg for attorneys fees it has incurred.   Liberty Mutual contends that Friedberg signed the indemnity agreement in his individual capacity.   Friedberg denies this.   He argues that he signed the indemnity agreement in his representative capacity only, as manager of the defendant.   The court agrees with Friedberg.

The following additional facts are necessary to the resolution of this claim.   The indemnity agreement is on Liberty Mutual's pre-printed form.3  At the bottom of the second and last page of the agreement is the following:

Signed and dated this 14th day of November 2007

Individual/Sole Proprietorship Name:  _ SSN:_

_ By_ (Seal)

Witness, Individual and Proprietor

Partnership/Limited Partnership Name:  Axis PointCross Highway Associates, LLC FEIN: 4  20–4156467

_ By:  [signed] (Seal)

Witness T. Friedberg, Manager, Individually and as Partner

_ By:  _ (Seal)

Witness, Individually and as Partner

Corporation Name:  _ FEIN:_

_ _ (Seal)_

Attest:, Secretary By:  President

Corporation Name:  _ FEIN:_

_ _(Seal)_

Attest:, Secretary By:  President

Individual and Supporting Indemnitor(s) sign here:  Witness' Signatures:

_SS#

_

David Adam Waldsman

“Before undertaking our analysis of the claim, we review the relevant rules of contract construction.”  McCann Real Equities Series XXII, LLC v. David McDermott Chevrolet, Inc., 93 Conn.App. 486, 502, 890 A.2d 140, cert. denied, 277 Conn. 928, 895 A.2d 798 (2006).  “It is a fundamental principle of contract law that the existence and terms of a contract are to be determined from the intent of the parties ․ The parties' intentions manifested by their acts and words are essential to the court's determination of whether a contract was entered into and what its terms were ․

“Ordinarily the parties' intent is a question of fact ․ Where a party's intent is expressed clearly and unambiguously in writing, however, the determination of what the parties intended ․ is a question of law ․ The intent of the parties as expressed in [writing] is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction ․ [T]he intent of the parties is to be ascertained by a fair and reasonable construction of the written words and ․ the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the [writing] ․ Where the language of the [writing] is clear and unambiguous, the [writing] is to be given effect according to its terms.   A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity ․ Similarly, any ambiguity in a [written instrument] must emanate from the language used in the [writing] rather than from one party's subjective perception of the terms.”  (Citations omitted;  internal quotation marks omitted.)  Auto Glass Express, Inc. v. Hanover Ins. Co., 293 Conn. 218, 225–26, 975 A.2d 1266 (2009).

Generally, the manager of a limited liability company is an agent of the company.   See General Statutes § 34–130(b)(2).5  It is well settled “that the agent is not liable where, acting within the scope of his authority, he contracts with a third party for a known principal.”  Scribner v. O'Brien, Inc., 169 Conn. 389, 404, 363 A.2d 160 (1975).  “An authorized agent for a disclosed principal, in the absence of circumstances showing that personal responsibility was incurred, is not personally liable to the other contracting party.”  (Internal quotation marks omitted.)  Whitlock's, Inc. v. Manley, 123 Conn. 434, 437, 196 A. 149 (1937).

Friedberg signed the document above the words “T. Friedberg, Manager.”   Ordinarily, when an agent of a corporate entity states the name of that entity on a contract and, below that name, signs the document with his corporate office stated next to his name, he intends to bind the corporate entity but not himself.  “In the context of a written agreement, the Appellate Court in Northeast Gunite & Grouting Corp. v. Chapman, 20 Conn.App. 201, 565 A.2d 265 (1989), upheld the trial court which found the defendant personally liable although the business name appeared in the agreement because there was no indication that it was a corporation, and the signature does not indicate that it was made in a representative capacity because there was no title affixed underneath.  Id., 204.   Furthermore, Superior Courts have held individuals liable when they have not identified their representative capacity;  T.P. Brewer Construction Corp., Inc. v. F & G Associates, Superior Court, Judicial District of Hartford/New Britain at Hartford, Docket No. 507885 (June 21, 1993, Hale, S.T.R.), appeal dismissed, 34 Conn.App. 714, 643 A.2d 308 (1994) (personal liability found on a contract);  and denied individual liability when that representative capacity has been shown.  Crest Mechanical Contractors and Engineers, Inc. v. Colli and Thistledown Building Corp., 9 CSCR 289 (February 25, 1994, Mulcahy, J.) (in context of a negotiable instrument);  777 State Street Extension Assoc. v. Salkovitz, Superior Court, Judicial District of Fairfield at Bridgeport, Docket No. 911201491 (May 6, 1992, Leheny, J.) (regarding a lease agreement);  Murphy v. Strol, Superior Court, Judicial District of Litchfield, Docket No. 051240 (March 1, 1991, McDonald, J.) (negotiable instrument).”   Kaplan v. Ivey, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 94 0140586 (March 23, 1995, Karazin, J.).

On the other hand, next to the typed material are the pre-printed words “Individually and as Partner.”   Whether the parties intended Friedberg to be personally bound by the obligations of the indemnity agreement is, therefore, ambiguous.   Contributing to this ambiguity is that Friedberg typed the above quoted material in the space marked “Partnership/Limited Partnership.”

This ambiguity is resolved by the rule that “[w]here there is a printed form of contract, and other words are inserted [in the printed form], in writing or otherwise, it is to be assumed that they take precedence over the printed matter.”  (Internal quotation marks omitted.)  A. Dubreuil & Sons, Inc. v. Lisbon, 215 Conn. 604, 612, 577 A.2d 709 (1990).   The court need go no further than to apply this rule.  Id., 613 (“To the extent that such an ambiguity exists, ‘the rule should be applied which says typed matter controls the printed instead of the rule which says that a contract will be construed against the author.’ ”).   Accordingly, the court finds that the parties did not intend for Friedberg to be personally bound.

Judgment may enter in favor of the defendants Axis Point Cross Highway Associates, LLC, and Liberty Mutual on the first, second and fourth counts of the amended complaint.

Judgment may enter for the plaintiff and against the defendant Axis Point Cross Highway Associates, LLC on the third count of the complaint in the amount of $68,650, plus interest of $13,470.

Judgment may enter in favor of Liberty Mutual and against Axis Point Cross Highway Associates, LLC, on the first count of the cross claim in the amount of $14,544.07.   Judgment may enter in favor of Axis Point Cross Highway Associates, LLC on the remaining counts of the cross claim.

Judgment will enter in favor of the third-party defendant T. Friedberg and against Liberty Mutual on both the first and second counts of the latter party's third-party complaint.

BY THE COURT

Bruce L. Levin

Judge of the Superior Court

FOOTNOTES

1.  FN1. The complaint refers to “Whipporwill” Lane. In the plaintiff's exhibit ten, however, the property descriptions attached to the mechanic's liens refer to “Whippoorwill” Lane.

2.  FN2. Trial courts have held that a limited liability company may not represent itself pro se.   See, e.g., Kuiken Brothers Co., Inc. v. Coastal Building, LLC, Superior Court, judicial district of Ansonia–Milford, No. CV04 0084114S (Mar. 12, 2004, Bear, J.) [36 Conn. L. Rptr. 668];  Paton v. Old Mill Builders, Superior Court, judicial district of Danbury, No. CV00 033 98 95 S (Dec. 14, 2000, Adams, J.);   Valentine v. Flexible Business Solutions, LLC, Superior Court, judicial district of Hartford, No. CV 99–0589230–S (June 22, 2000, Hennessey, J.) [27 Conn. L. Rptr. 378];  Valiant Insurance Co. v. Nurse Network, LLC, Superior Court, judicial district of Hartford, No. CV980578083 (Sept. 25, 1998, Hennessey, J.) (22 Conn. L. Rptr. 685).

3.  FN3. Words and numbers that are italicized were typed in on Liberty Mutual's form.

4.  FN4. The acronym “FEIN” stands for Federal Employer Identification Number.

5.  FN5. General Statutes § 34–130(b) provides, in relevant part:  “If the articles of organization provide that management of the limited liability company is vested in a manager or managers ․ every manager is an agent of the limited liability company for the purpose of its business or affairs, and the act of any manager, including, but not limited to, the execution in the name of the limited liability company of any instrument, for apparently carrying on in the usual way the business or affairs of the limited liability company of which he is a manager binds the limited liability company, unless the manager so acting has, in fact, no authority to act for the limited liability company in the particular matter and the person with whom he is dealing has knowledge of the fact that the manager has no such authority.”

Levin, Bruce L., J.

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