Ultimate Services Professional Grounds Management, Inc. v. Susan Summer et al. (2011)

MEMORANDUM OF DECISION

FACTUAL BACKGROUND

The plaintiff is a landscaping company located in Wolcott, Connecticut, and hereafter identified as “Ultimate Services.”   Susan Summer and Strawberry Ridge Vineyard, Inc., the named defendants, are the owners of a private residence and vineyard located at 17 and 23 Strawberry Ridge Road in New Preston, Connecticut (“Strawberry Ridge”).   The plaintiff claims the defendants owe for landscaping services rendered at the subject property and the case was heard by the court pursuant to a complaint alleging four ¹ counts—a breach of contract count as against the individual defendant, two (2) counts in unjust enrichment as against both defendants, and a claim alleging quantum meruit directed to the corporate defendant.

At trial on March 10, 2011, the plaintiff stated he was proceeding under the breach of contract count only (Tr. at p. 9, lines 21–23);  though the trial transcript was available to the plaintiff and cited frequently in its post-trial brief, the plaintiff there resuscitated the quantum meruit claim.   The court here addresses both the contract count and the claim in quantum meruit in Count Five.² The unjust enrichment counts were abandoned by counsel both at trial and in his post-trial brief.

BREACH OF CONTRACT

The first agreement between the parties was entered into on March 1, 2002 (Plaintiff's Exh. 2) and a second agreement was executed on March 22, 2002 (Plaintiff's Exh. 3).   There is no dispute with regard to either of these contracts, the first of which provided for landscaping services at the individual defendant's residence and the second of which called for the pruning and cleanup of various trees and plantings on both properties as well as the application of fertilizers, fungicides, insecticides, etc.   Both writings were executed by John Chiarella, the plaintiff's president and owner, and Rebecca Belarge, the defendants' Property Manager with the authority to sign.   The work contemplated by both contracts was completed and ultimately the parties agreed to aggregate the amounts due and owing under both agreements and to monthly installment payments (to include taxes), each in the amount of $1,340.24 (Tr., at p. 23, lines 9–12).   The parties agree two (2) of the agreed installment payments remain unpaid.   That amount is $2,680.48.   Additionally, an invoice dated 6/24/02 for work allegedly done on May 23, 2002 (described as “weekly service” and “weeding”—See Exh. 8) was submitted to the defendants in the amount of $2,634.10.   That amount was sharply reduced—by agreement of the parties—to $800.   Asked the reason for the reduction, Mr. Chiarella's response was, “I'm not sure.”   He also testified he believed the reduction was by “agreement of the parties.”   Tr., at 26, lines 11–18.³  That $800 payment remains outstanding.

The central dispute between the parties stems from a telephone call made by defendant Summer to Chiarella on Sunday, May 5, 2002, when Summer related that she called Chiarella to ask whether he could help her men “do a spring cleanup” the following day (Tr. at 127, lines 16–18 ⁴ ) because she was expecting guests from California who “wanted us to invest in their property and they would look over our property to manage it for our investment into (sic) their property.”   Tr., at 129, lines 12–14.   Significantly, there was no discussion with regard to the cost of Chiarella “helping out” or to the number of men Chiarella would bring onto the property on Monday, May 6, 2002, and, significantly, neither she nor Belarge was on the property on a Monday.⁵  Chiarella's testimony was that he needed to bring thirty-five (35) men onto the property on that Monday because the expected visitors were “important,” the vineyard was “huge”—”6 or 7 acres” (Tr., at 27, lines 13–21), and the expected visitors were coming “within a week or two.”  Id. at lines 11–12.

For the work done on divers dates from 5/6/02 through 5/18/02 (a period of less than two weeks), Chiarella rendered a bill for $33,624.26 (Exh. 10)—of which amount $21,449 was for work done on 5/6/02 and $8,452 was for work done on 5/13/02.   Though that bill was dated 5/24/02 (eighteen [18] days after the services were rendered), the testimony of Belarge was that it was not received until late August or early September of that year (Tr., at 138, lines 25–27;  Tr., at 139, lines 1–6).   The plaintiff could not state with certainty when it was sent.   The bill remains outstanding this date.

APPLICATION OF LAW TO FACTS

The plaintiff's First Count does not articulate whether what is claimed is the breach of an oral or written contract—or both.   It references only a “series of agreements.” ¶ 1.   As herein earlier stated, there is no dispute that two (2) monthly installment payments and the $800 amount agreed upon for services rendered regarding Exh. 8 remain due and owing—in the amount of $3,480.48.

For a contract to be enforceable—albeit an express or implied contract, it must be definite and certain as to its essential terms and requirements.   Presidential Capital Corp. v. Reale, 231 Conn. 500, 506–07 (1994);  Dunham v. Dunham, 204 Conn. 303, 313 (1987);  1A Corbin, Contracts (Rev. Ed.1996) § 4.1, p. 525.

“A contractual promise cannot be created by plucking phrases out of context;  there must be a meeting of the minds between the parties ․ In order to support contractual liability, the defendants' representations must be sufficiently definite to manifest a present intention on the part of the [defendant] to undertake immediate contractual obligations to the plaintiff.”   (Citations omitted;  internal quotation marks omitted.)  Burnham v. Karl & Gelb, P.C., 50 Conn.App. 385, 389 (1998), affd., 252 Conn. 153 (2000).

There was no written or oral agreement between the parties regarding the work to be done on May 6, 2002.⁶  There was no discussion—much less a mutual understanding—as to how many workers would be used, how many hours they would work, what materials—if any—Chiarella would bring onto the property and at what cost, what the hourly worker rate and/or project cost would be, etc.   If the minds of the parties have not met, there is no enforceable contract.   Fortier v. Newington Group, Inc., 30 Conn.App. 505, 510 (1993), cert. denied, 225 Conn. 922 (1993).   Both the offer and acceptance must be found to have been based on an identical understanding by the parties.  Bridgeport Pipe Engineering Co. v. DeMatteo Construction Co., 159 Conn. 242, 249 (1970).   There was no reason for Summers to expect a bill of such magnitude or that a request of Chiarella that he “help out” the defendants' three full-time employees would eventuate in the presence of more than ten times the number of her own employees.

The credibility of Mr. Chiarella was diminished both by his trial testimony and Exhs. # 9 and # 10 (offered in support of the bill for $33,624.26).   Neither at trial nor at a deposition given shortly before trial was Chiarella able to produce any records to support his claim of the number of workers used;  no payment records of the workers used on May 6, 2002, were ever produced—despite their having been requested on more than one occasion.   Because this case had first been brought in 2003 (one year after the event of 5/6/02), it is—at best—”difficult” to believe the work and expense records were not available to Chiarella then.   The 2003 case was then withdrawn (without a resolution on the merits) in 2005 and commenced again (by present counsel) in 2007.   No explanation has ever been offered with regard to why the records were not preserved or were not made available in this suit—particularly since Chiarella's clear intent was to seek new counsel and to commence this second suit.   Additionally, Exh. 9, p. 1 indicates plaintiff's workers started the job at 6:30 a.m. and stopped at 9:00 p.m.;   in 2002, it was dark at 9:00 p.m. on 5/6 and therefore “unlikely” any of the laborers were working either at 9:00 p.m. or soon prior to that hour.   On the same page 1 of Exh. 9, there is an entry which reads, under “Travel to Job,” “Per Mrs. Summer for Monday Work & Party (sic) at 10 a.m. on Tues.” There was no testimony the California visitors were expected on Tues. (May 7) and, as already here stated, Chiarella testified at trial that Summer had told him she expected the visitors “that week or the following week.”   Why then the need to bring thirty-five workers to the property and to work from sun-up to sundown on 5/6?   What necessitated four hundred eighty-four (484) hours of labor on that date and why wouldn't a businessman have preserved records confirming such an enormous effort at such customer cost?  (Of the $33,624.26 in expenses listed on Exh. 10, $21,449 was for the work done on 5/6/02.)   Page 1 of Exh. 9 indicates 1,002 bags of mulch were used on 5/6/02 and P. 1 of the Invoice (Exh. 10) shows the cost of the same as $4,509.00.   If, on 5/24/02 (the date the invoice was prepared), the plaintiff knew both the cost per bag and the total number of bags used, why has there not been provided documentation of the same—either at trial or deposition?

The service provided on May 6, 2002 is described on P. 1 of Exh. 10 as a “weekly service.”   Both Summers and Belarge testified there never was an agreement for the same and Chiarella did not testify the defendants made any such request.   The dates of service and the references to “weekly services” on Exh. 10 are incompatible.   The first entry was for 5/6/02 and was noted there as a “weekly service.”   The next date on which any labor was performed was on 5/10/02 (four days after 5/6/02) when pesticide, fungicides, and insecticides were applied to various trees and shrubs;  the application of those materials was not, however, described as a “weekly service.”   There was work allegedly done on 5/13/02—which would have been one week after the 5/6/02 visit and would also have been a Monday (when neither Summer nor Belarge would have been expected to be there)—but the work done on that date is not described as a “weekly service.”   Two (2) days later, on 5/15/02 (which would have been a Wednesday), at least ten (10) workers (perhaps as many as fifteen) cut the lawn, cleaned walkways of grass clippings, and applied various materials to plants and shrubs—all of which was described as a “weekly service”;  yet, that date was only two (2) days after the prior visit and nine (9) days after the last visit identified as “weekly service” (5/6/02).   Neither the bill nor the three-page supporting document regarding the charge of $33,624.26 withstands close scrutiny.

Chiarella testified at trial that, regarding the 5/6/02 work, he had to pull men off other jobs already scheduled in order to secure thirty-five (35) workers to prepare the property for the expected visitors;  the implication was that, because the other lost job opportunities meant lost profits for plaintiff, those profits needed to be recouped by the work done on defendants' property.   Exh. 10, however, specifically states, “There is No Additional Charge for emergency services performed.  (When men are pulled from scheduled jobs to perform services at the summer house.)  (Sic).”  Id., at p. 1. It is presumed that language was not mere surplusage without intended meaning.

The defendants' testimony, however, was not without similar difficulty.   Though they claim never to have agreed to “weekly services” by plaintiff, it is clear they executed contracts providing for the same.   Exh. B is a 3/14/02 fax from Ms. Belarge inviting Chiarella to quote on that season's “vineyard spraying.”   Exh 3 (Chiarella's proposal dated 3/22/02) is a three-page response to that invitation which included four (4) pages of contract “conditions.”   Paragraph 3 of p. 1 of those “conditions” clearly provides for “weekly services.”   On 3/26/02, Ms. Belarge accepted the contract, having been authorized to do so by Ms. Summer.   See last page of Exh. 3. On that very date, Ms. Belarge also sent Chiarella a fax stating “Susan” (Summer) had “agreed to go ahead with the Lilacs, Wisteria, and Hydrangea pruning” and that she (Belarge) is therefore “sending back your contract signed.”   Exh. 4. The work involving the lilacs, climbing hydrangea, and wisteria constituted only a portion of the contract Chiarella submitted and Belarge signed.   If Exh. 4 was an acceptance of only a limited portion of Exh. 3 (plaintiff's proposal), why then did Ms. Belarge execute a contract which also provided for care of nine (9) apple trees and numerous rose plantings and which called for weekly applications of sundry materials?

Additionally, a facsimile from Belarge to Chiarella on 3/1/02 states Ms. Summer had “approved the contract” and she (Belarge) was sending a signed copy to Chiarella.   The “contract” referenced was necessarily Chiarella's proposal of the same date (3/1/02)—Exh.   2 (It could not have been a reference to Exh. 3 which was Chiarella's proposal of 3/22 /02).   Exh. 2 also contained similar “Conditions” as found in Exh. 3. (See Paragraph B–3, p. 4 of 6, which also provided for “weekly services.”)   It therefore is not so, as defendants testified, that they never had a “weekly services” contract with the plaintiff nor is it true, as Ms. Summer testified, that she had never paid more than $2,400–$3,500 for a seasonal cleanup (Tr., at p. 165) in view of the defendants' acceptance of Exh. 2 by Ms. Belarge in Exh. A. The amount of that “Horticultural Program” was $6,500 plus tax.

Finally, the defendants created a document entitled “Strawberry Ridge Property Agreement,” which was sent Chiarella by Ms. Belarge on 3/1/02—prior to the work done in May 2002.   He signed the agreement (included as part of Exh. A) on 3/4/02.   The final requirement of that Property Agreement reads as follows:

Written estimates must be given and signed by either Becky 7 or the Summers before any work is to be done on the property.   If you take it upon yourself to do any job without a signed agreement it will be assumed that you are donating your time and materials to do the job at hand as you will not be paid.

There was no written estimate provided by plaintiff with regard to the work requested on 5/5/02 and performed on 5/6/02.   Tr., at. 16.   The plaintiff, having executed the defendants' Property Agreement on 3/4/02, bore the risk of not being paid for work performed after that date without a written estimate signed (as “accepted”) by the defendants.

There was no enforceable written contract regarding any work done on defendants' property after that date because there was neither a meeting of the minds regarding the terms of the agreement nor an agreement sufficiently definite to enforce.

QUANTUM MERUIT

As the court has already found, there was not an enforceable agreement between the parties.   An express contract did not exist because there was no written agreement which stated all of the terms to which the parties had agreed.   An implied contract is one whose terms are not so stated.   1 S. Williston, Contracts (4th Ed. Lord 1990) § 1:5, pp. 18–20.   In an implied contract, some or all of the terms are inferred from the conduct of the parties and the circumstances of the case—though not expressed by words.   17A Am.Jur.2d 48–49, Contracts § 12 (2004).   For the plaintiff to recover on the basis of quantum meruit, the court must find the absence of an express contract.  Schreiber v. Connecticut Surgical Group, P.C., 96 Conn.App. 731, 736 (2006).   Quantum meruit [is a form] of the equitable remedy of restitution by which a plaintiff may recover the benefit conferred on a defendant in situations where there is no express contract.⁸  A determination whether recovery on this basis is appropriate requires a factual determination of the circumstances and of the conduct of the parties;  it is a task for the trial court (as opposed to an appellate court) as the trier of fact.  Biller Associates v. Rte. 156 Realty Co., 52 Conn.App. 18, 30 (1999), aff'd, 252 Conn. 400 (2000).   The pleadings must allege facts to support the theory that the defendant, by knowingly accepting the plaintiff's services, impliedly promised to pay for the services rendered (internal quotation marks omitted).  Total Aircraft, LLC v. Nascimento, 93 Conn.App. 576, 582, n.5, cert. denied, 277 Conn. 928 (2006).

The facts alleged in the Complaint—and asserted both at trial and in the plaintiff's post-trial brief—support recovery in quantum meruit.   The plaintiff clearly established that, with regard to the work done on May 5, 2002, the defendant Summer telephoned Chiarella and asked that he assist her three full-time employees in preparing the property for visitors expected within the next week or two.   Because he had historically charged for the landscaping services performed for the defendants and because the defendants historically paid for such work (albeit sometimes late), there was, based on the parties' prior business dealings, an implied promise to pay for services rendered.

The plaintiff's response, however, to the defendant's request is nothing short of astonishing.   The claim is that thirty-five (35) workers worked from sunrise to dark—far more than ever had been brought to the property on any prior occasion.   As stated, the plaintiff was unable to produce any documentation of the presence of such a workforce nor was he ever able to produce any documentation of what was paid the workers or what he expended for materials (mulch, insecticides, etc.)—despite having been presented with a discovery request he do so.   Where were the records he had to have had in 2003 (one year post-incident) when he instituted—and later withdrew—the first lawsuit brought?   Why weren't they kept secure with an accountant who would have needed them to prepare yearly tax filings and which records were required to be kept for a number of years thereafter?   Since the work need not have been performed on the day following Ms. Summer's phone call, why did the plaintiff choose to do it all on the day following the telephone call (which the plaintiff testified required the rescheduling on very short notice of other jobs) and on a day (Monday) when neither Summer or Belarge could be expected to be on the premises?   On what did the plaintiff base his estimate that 1,002 bags of mulch were needed for the work to be done on 5/6/02 and that an additional 626 bags were needed to accomplish the work performed on Monday, 5/13/02?   If, in fact this bill for services was not provided to the defendants until months later, what was the reason for the delay?   The bill in the total amount of $33,624.26 (P1.Exh. 10) contains charges for disputed services on 5/6/02 (in the amount of $21,449) and disputed services on 5/13/02 (to “finish” edging and mulching begun on 5/6/02—in the total amount of $8,452).   Thus, $29,902 (of the bill for $33,624.26) represents the disputed services.⁹

JUDGMENT

To the undisputed amount of $5,300.48 due and owing,¹⁰ the court awards $8,500.00 for the value of the work performed on 5/6/02 and the benefit rendered defendants.   While neither the size of the workforce dispatched by plaintiff nor the hours worked on that date or cost of materials applied were reasonably to be expected as a result of the telephone call on Sunday, May 5, 2002, both Summer and Belarge agreed the appearance of the defendants' property was significantly enhanced by the work done on Monday, May 6, 2002.   The sum of $8,500.00 is in line with the amount previously charged by plaintiff for a seasonal cleanup, which cost ($6,500) was agreed to by defendants.   See Tr., at P. 165 re acceptance of Exh. 2 by Ms. Belarge in Exh. A.

No interest is awarded.   The award of interest under Connecticut General Statute § 37–3a is discretionary with the court and the circumstances here presented do not present as wrongful detention of sums owed.   See e.g., Hartford Steam Boiler v. Underwriters of Lloyd's, 121 Conn.App. 31, 61 (2010);  Urich v. Fish, 112 Conn.App. 837, 843–44, cert. denied, 292 Conn. 909 (2009)

No attorney fees are awarded.   No exception to the American rule that litigants pay their own attorney fees and the ordinary expenses of litigation presents in the absence of an enforceable contract providing for the same or statutory authority.   See Broadnax v. City of New Haven et al., 270 Conn. 133, 178 (2004).

Judgment for the plaintiff enters this date in the amount of $13,800.48.

SHEEDY, J.

FOOTNOTES

FN1. The complaint also stated a claim against Summer for wrongful termination of contract;  that count has been withdrawn..  FN1. The complaint also stated a claim against Summer for wrongful termination of contract;  that count has been withdrawn.

FN2. The complaint counts are mis-numbered.   The claim in quantum meruit is in fact Count Five and not Count Four as there indicated..  FN2. The complaint counts are mis-numbered.   The claim in quantum meruit is in fact Count Five and not Count Four as there indicated.

FN3. The court concludes the invoice was suspect for numerous reasons.   Since the only date referenced on the invoice was that of 5/23/02, an invoice for one day's services to consist of the mowing of the lawn and the cleaning of tree and flower beds in the stated amount is—at best—” steep.”   Defendant Summer testified she had no need to employ the plaintiff for such services because she employed three (3) full-time employees to do that work.   No backup paperwork accompanied the invoice though the invoice indicated that, on 5/23/02, seventy-one (71) hours of labor was expended.   The defendant offered no contract to support the finding of an agreement between the parties.   It is therefore not surprising the defendant agreed to accept less than 1/3 of the original charge as payment in full of that invoice..  FN3. The court concludes the invoice was suspect for numerous reasons.   Since the only date referenced on the invoice was that of 5/23/02, an invoice for one day's services to consist of the mowing of the lawn and the cleaning of tree and flower beds in the stated amount is—at best—” steep.”   Defendant Summer testified she had no need to employ the plaintiff for such services because she employed three (3) full-time employees to do that work.   No backup paperwork accompanied the invoice though the invoice indicated that, on 5/23/02, seventy-one (71) hours of labor was expended.   The defendant offered no contract to support the finding of an agreement between the parties.   It is therefore not surprising the defendant agreed to accept less than 1/3 of the original charge as payment in full of that invoice.

FN4. She testified those three (3) full-time employees “mow the lawn ․ do anything involved in the vineyard, the vineyard mowing, vineyard pruning, anything to do with the beds and the edging.”  Id., lines 23–25.   Chiarella testified Summer told him there was “a lot of work to be done.”   Tr., at 27, lines 2–3.   Also in dispute is the charge for services on 5/13/02..  FN4. She testified those three (3) full-time employees “mow the lawn ․ do anything involved in the vineyard, the vineyard mowing, vineyard pruning, anything to do with the beds and the edging.”  Id., lines 23–25.   Chiarella testified Summer told him there was “a lot of work to be done.”   Tr., at 27, lines 2–3.   Also in dispute is the charge for services on 5/13/02.

FN5. Summers and her husband typically came from New York to New Preston on Friday and returned to the city Sunday evening.   Belarge never worked at the property on Monday because she was a Jehovah Witness who did her ministry on Monday.   Tr., at 160, lines 1–3.   She had only been on the property on Monday two or three times in the twelve years of her employment.   Tr., at 152, lines 24–27..  FN5. Summers and her husband typically came from New York to New Preston on Friday and returned to the city Sunday evening.   Belarge never worked at the property on Monday because she was a Jehovah Witness who did her ministry on Monday.   Tr., at 160, lines 1–3.   She had only been on the property on Monday two or three times in the twelve years of her employment.   Tr., at 152, lines 24–27.

FN6. The three-year statute of limitations applicable to oral contracts had run when this suit was brought.   See Connecticut General Statute § 51–584..  FN6. The three-year statute of limitations applicable to oral contracts had run when this suit was brought.   See Connecticut General Statute § 51–584.

FN7. “Becky” is a reference to Rebecca Belarge, the Property Manager for both the residence and vineyard..  FN7. “Becky” is a reference to Rebecca Belarge, the Property Manager for both the residence and vineyard.

FN8. In its Prayer for Relief, the plaintiff made a specific demand for equitable relief..  FN8. In its Prayer for Relief, the plaintiff made a specific demand for equitable relief.

FN9. The remaining charge of $1,820 for 5/15/02 was not in response to the defendants' request of 5/5/02 but represents the “weekly services” of lawn cutting and clearing of debris and the weeding of flower, shrub and the beds.   The court considers this to be an undisputed charge..  FN9. The remaining charge of $1,820 for 5/15/02 was not in response to the defendants' request of 5/5/02 but represents the “weekly services” of lawn cutting and clearing of debris and the weeding of flower, shrub and the beds.   The court considers this to be an undisputed charge.

FN10. The amount due and owing for the two (2) unpaid monthly installments is $2,680.48;  $800 represents the as yet unpaid amount with reference to Exh. 8;  $1,820.00 is the unpaid sum for services rendered on 5/15/02..  FN10. The amount due and owing for the two (2) unpaid monthly installments is $2,680.48;  $800 represents the as yet unpaid amount with reference to Exh. 8;  $1,820.00 is the unpaid sum for services rendered on 5/15/02.

Sheedy, Barbara J., J.