LLC LLC LLC v. LLC (2011)

MEMORANDUM OF DECISION

FACTS AND PROCEDURE:

The defendant, Dave Miller Builder, LLC, on or about September 12, 2009 executed a Commercial Credit Application (plaintiff's Exhibit One) to the plaintiff seeking to purchase building materials.   The application listed the owner as Mary Miller.   At or about the same time Mary Miller executed a personal Guaranty which is plaintiff's Exhibit Two. As a result of the application and request for materials by Dave Miller, Builder, LLC (hereinafter also “DMB, LLC”) ordered and was furnished with building materials in the amount of $23,883.46 none of which has been paid.   A cross-complaint was filed by Paul Miller against David Miller accusing him of forging Mary Miller's signature.   Trial was held before this Court on September 7, 2011 and September 20, 2011.   Keith Manceri testified as to the Credit Application and the Guaranty which were introduced into evidence as well as the summary of the amounts due which is plaintiff's Exhibit Three.   Marilyn Miller who is the daughter-in-law of Mary Miller testified that the signature of Mary Miller on the guaranty was not her signature.

The Court was presented with a letter from a physician stating that Mary Miller was physically/mentally unable to come to Court to testify.   Since the plaintiff requested cross examination of the physician, the Court ordered defendants' attorney to subpoena the doctor.   This was not done, and the defendants' attorney informed the Court that Mary Miller would in fact testify on September 20, 2011.   Mary Miller was not present to testify on September 20, 2011, and this Court entered a default against her for failure to appear at trial.   Previously David Miller was defaulted for failure to attend a Trial Management Conference.   Paul Miller was in Court representing himself on September 7, 2011 and cross examined the plaintiff's witness and presented his wife, Marilyn Miller to testify.   Since David Miller and Mary Miller were defaulted, the allegations against them are considered true by admission.

STANDARD OF REVIEW:

“The plaintiff in a civil case (and a defendant in Special Defenses and Cross–Complaint) sustain their burden of proof as to any essential element in their cause of action if the evidence, considered fairly and impartially, induces in the mind of the trier, a reasonable belief that it is more probable than otherwise that the facts involved in that element are true.”  Busker v. United Illuminating Co., 156 Conn. 456, 458 (1968).   This is also known as proof by a preponderance of the evidence.

In addition, this Court evaluates the credibility of the witnesses upon their appearance and demeanor on the witness stand, the consistency or inconsistency of their testimony, their memory or lack thereof of certain events, whether they were candid and forthright or evasive and incomplete, their manner in responding to questions and their interest or lack of interest in the case as well as the exhibits in the case.

Also, the Court evaluates general credibility on the basis of other testimony in this case as well as documents in evidence as to their consistency or inconsistency with other evidence.

The burden is on the plaintiff to prove his allegations by a preponderance of the evidence.   The burden is on the defendants to prove their Special Defenses and Cross–Complaint by a preponderance of the evidence.

ISSUES AND FINDINGS:

1. Credibility

The Court does not find the testimony of Marilyn Miller credible for two reasons.   The first is that she is not an expert on handwriting.   The second reason is that when she was asked whether she talked to her husband at any time about her testimony before she took the witness stand, she said “no.”   The Court does not believe that any more than the Court would believe that a witness presented by an attorney had not talked to the attorney before testifying.   It would be incredible to believe that Marilyn Miller took the witness stand with no idea as to what she was going to be asked and what her testimony would be.

Paul Miller, self-represented, lacked a certain credibility because of his actions and the way he conducted himself at the trial.¹  The plaintiff's witness, on the other hand, Keith Manceri, was credible.

2. Is Dave Miller Builder, LLC Liable to the Plaintiff?

The short answer is yes.

There was never any defense to the issue of the plaintiff supplying building materials at the request of said defendant and there was no question that the amount due is $23,883.46.   The money has been wrongfully and intentionally withheld from the plaintiff, and, therefore, the plaintiff is entitled to 10% interest per annum from the date of the last invoice, February 15, 2010, one year and seven months.   Added to the $23,883.46, judgment is entered against Dave Miller Builder, LLC in the total amount of $27,665 plus costs and attorneys fees to be determined and punitive damages to be assessed later.

Count Two is a claim against Dave Miller Builder, LLC for quantum meruit for which the Court finds said defendant liable and the same amount as in paragraph one is assessed against said defendant to run concurrently with the First Count.

3. Mary Miller is liable for the same amount as in paragraph one because of her execution of a Guaranty Agreement to guaranty payment of the debt of Dave Miller Builder, LLC. As stated above, Mary Miller was defaulted for failure to appear at trial so she is held liable for the allegations against her in the Third Count.   Further, the Court has no reason to doubt that it is her signature on the Guaranty.

Accordingly, judgment is entered on this Count against Mary Miller for the amount specified in the First Count $27,665 plus costs and attorneys fees.   Count Four is against Mary Miller because of the guaranty but is for quantum meruit;  judgment is entered against Mary Miller for $27,665 plus costs and attorneys fees as set forth in the Third Count.

4. Are the Defendants Liable for Violation, as Set Forth in the Fifth Count, of the Connecticut Unfair Trade Practices Act (CUTPA)?

The short answer is yes.

The defendants David Miller and Paul Miller were officers, members and/or agents of the defendant, Dave Miller, Builder, LLC. During the course of trade and commerce with the plaintiff the defendants David Miller, Paul Miller and Dave Miller Builder, LLC committed unfair and deceptive trade practices in violation of CUTPA because they entered into a scheme to claim that Mary Miller's signature on the guaranty was a forgery when the signature was not a forgery, and David Miller in the default entered against him on the cross-complaint by Paul Miller is liable for causing the forgery of his mother, Mary Miller's signature on the Guaranty.   Not only that, but these defendants tried to enforce an invalid Mechanics Lien filed by Paul Miller assignee of David Miller d/b/a Dave Miller Builder, LLC. It was a fraudulent conspiracy among Dave Miller Builder, LLC, David Miller and Paul Miller to bring allegations that were not true in conspiring to confuse the issue by claiming Mary Miller's signature was a forgery when it was not and at least in the case of David Miller causing the forgery of his mother's signature.   Mary Miller was defaulted and David Miller was defaulted.   Therefore, the allegations against them are considered true and proven, and the only conclusion this Court can draw is that these defendants took actions and made allegations that were for the purpose of contradicting and confusing the issue as to who owed the money and was for the purpose of avoiding liability of Mary Miller and themselves.   The Court finds these fraudulent actions by the defendants in violation of CUTPA to be by clear and convincing evidence.

Accordingly, judgment is entered against David Miller and Dave Miller Builder, LLC for violation of CUTPA jointly and separately liable in the amount of $27,665 plus costs, attorneys fees and punitive damages.   The punitive damages and attorneys fees will be set hereafter.

If within 30 days of this judgment, the plaintiff will file a motion for attorneys fees with an affidavit specifying hours and actions to make up the bill for attorneys fees, the Court will hold a hearing on same.

Judgments that have been entered and will be entered will carry interest post-judgment at the rate of 10% per annum.

As for Paul Miller, this Court, at this time, cannot enter judgment against him because on or about September 16, 2011, the Court received a notice of Paul Miller filing for bankruptcy.

Rittenband, JTR

FOOTNOTES

FN1. He tried to bargain with the Court, promising to bring Mary Miller, his mother, to testify if she was not questioned aggressively..  FN1. He tried to bargain with the Court, promising to bring Mary Miller, his mother, to testify if she was not questioned aggressively.

Rittenband, Richard M., J.T.R.