R.J. Testo & Associates v. 3388 LLC (2011)

MEMORANDUM OF DECISION

The plaintiff, R.J. Testo & Associates has brought this action in two counts sounding in breach of oral contract and unjust enrichment against the defendants, 3388 Madison Avenue, LLC, d/b/a Ziggy's Bar & Grill and Lynn Cammarota.

The gravamen of the plaintiff's complaint is a failure by the defendants to pay him for accounting work done during the years 2007 and 2008.   There was no dispute that the accounting work was performed by the plaintiff, the dispute is as to whom the services were rendered and who is responsible for by the cost of such services.

The business (“Ziggy's”) went out of business after the work was performed.   The plaintiff has made his demand for payment on Cammarota, the principal and managing member of the business.   Cammarota has refused to pay the bill, totaling $4,500.00, claiming that the work was done for the business and not her personally and that she should not be held personally liable for the bills of a defunct LLC.

General Statute § 34–133 provides in relevant part, “․ a person who is a member or manager of a limited liability company is not liable, solely by being a member or manager ․ for a debt, obligation or liability of the limited liability company, whether arising in contract, tort or otherwise ․” That is why limited liability companies are formed—to shield its members from individual liability for the obligations of the business.

The plaintiff claims that it entered into an oral agreement to perform the accounting services and that the agreement was made between its principal, Robert Testo and defendant Lynn Cammarota.   The accounting services included reconciliations and sales and use tax calculations regarding the LLC and the preparation of the LLC tax returns.

While the defendants do not disagree with those claims of the plaintiff, they offered evidence and testimony to establish that for a number of years prior to 2008–2009, the accounting work was done for the LLC, billed to the LLC and paid for by the LLC—not by Lynn Cammarota, personally.

To evidence that fact, the defendants offered Exhibit B, a compilation of invoices sent periodically by the plaintiff for services rendered.   Each of those invoices was made out to “Ziggy's Bar & Grill” and the ones that were paid were paid for by Ziggy's Bar & Grill.   No payments to the plaintiff were ever made by Lynn Cammarota personally.

The plaintiff offered into evidence identical invoices for the same dates of service and in the same amounts but each was addressed to “Lynn Cammarota and 3388 Madison Ave. LLC.” Upon questioning by the defendants' attorney, Robert Testo testified that the “Cammarota” invoices were prepared after the start of litigation and provided to the defendants' attorney in a package.

The inconsistency with the billing on the invoices does not, per se, indicate any fraud or mispresentation on the part of the plaintiff, but it does corroborate the defendants' claim that, contractually, there was no meeting of the minds between the parties as to who was responsible for the payment of the services rendered.

The contract between the parties, if there in fact was one, was not written and the burden is on the plaintiff to prove, by a fair preponderance of the evidence that Lynn Cammarota was personally liable for the cost of the services rendered.

The plaintiff, as an accountant, is deemed to be full aware of the provisions of the LLC statutes.   As noted, the basis for his claim against Cammarota was that, in derivation of the LLC provisions, they had a contract in which she, personally, had retained his services and that she was responsible for payment.   There was no claim made by the plaintiff that Cammarota entered into any agreement whereby she became the personal guarantor of the payment of the bill for services.   Having considered the evidence and testimony offered at trial, the court finds that the plaintiff has failed to meet its burden of proof regarding its claims of breach of contract or unjust enrichment against Cammarota.

For the foregoing reasons, the court finds in favor of the defendant, Lynn Cammarota, on count one and count two of the plaintiff's complaint.   Judgment is to enter accordingly.

BY THE COURT,

JOSEPH W. DOHERTY, JUDGE

Doherty, Joseph W., J.