Jean–Pierre Ibar v. Stratek Plastic Limited (2012)

MEMORANDUM OF DECISION ¹

Upon the conclusion of the evidence presented by the plaintiff on March 9, 2012, the defendant, STRATEK PLASTIC LIMITED, (“Stratek” ² ) made an oral motion for directed verdict.   For reasons set forth below, this court grants the motion.

The plaintiff, JEAN–PIERRE IBAR, brings this action in an Amended one count complaint,³ in which he alleges that:

The [plaintiff] seeks compensation and punitive damages, attorneys fees, costs ․ and such other relief as the court may deem appropriate [for] Stratek's defrauding of Ibar's ownership in Stratek pursuant to the initial agreements of July 4, 1999.   Ibar is contracted to have 40.5% of the shares of a Corporation that owns and commercializes Ibar's inventions.   Stratek owns and commercializes Ibar's inventions, yet Ibar owns zero of Stratek or of any Company owning stock in Stratek.

On March 7, 2012, two days before the plaintiff rested his case, the court, over the objection of the defendant, allowed the plaintiff to amend his complaint to change the percentage from 45%, as was alleged in the original complaint to 40.5%. The Amendment did not remove any of the other claims that had originally been asserted—although they were, at various times during the litigation, abandoned by counsel.   The reference to the 1999 Shareholder Agreement;  and the reference to the lack of ownership in Stratek or lack of ownership in any company owning Stratek ⁴ remain.

At trial, which was bifurcated by the court,⁵ the plaintiff first advanced the theory that the defendant breached an “implied contract ” by not giving the plaintiff 45% of the shares in the defendant.   The plaintiff submitted Jury Instructions on February 23, 2012 regarding the implied contract cause of action.   Then, on March 7, 2012,⁶ the plaintiff changed his articulated theory to one based upon the breach of an “express contract.”  On March 10, 2012, the plaintiff submitted Jury Instructions regarding the breach of express contract claim.⁷

The court heard argument regarding the defendant's Motion for Directed Verdict on Friday, March 9, and Monday, March 12, 2012.   However, on Tuesday, March 13 following an in-chambers pre-charge conference for the Stratek v. Ibar et al. case, plaintiff's counsel indicated that he had filed an Objection to the Motion for Directed Verdict in this matter that morning, and asked to be permitted to re-argue his position.   This time, on March 13, 2012, plaintiff's counsel indicated that his client's claim was, in fact, based upon the 1999 Shareholder Agreement.   On March 13, 2012, plaintiff argued that Stratek breached an express contract with him because it failed to adhere to the terms of the 1999 Shareholder Agreement.

Following the submission of evidence in the plaintiff's case, the defendant moved for a directed verdict on the grounds that:

(1) There is no dispute that the 1999 Shareholders Agreement, upon which the plaintiff bases the theory of his case, involved only two signatories, the plaintiff and Jose Luis Turullols.⁸

(2) The 1999 Shareholders Agreement was a completed contract which resulted in the formation of Plastitech Limited, an offshore corporation.

(3) Stratek Plastic Limited, the defendant in this case, is an on-shore corporation, formed in Ireland, governed by duly adopted and registered Articles of Association, and controlled by its Board of Directors.

(4) As a matter of law, only the Board of Directors could enter contracts on behalf of Stratek.

(5) There was no evidence introduced during the trial of any contractual agreement between the plaintiff and the defendant regarding the plaintiff's personal ownership of shares in Stratek.

(6) Any relevant discussions or communications between the plaintiff and Mr. Turullols were personal in nature and did not constitute official communication from Stratek.

7) Stratek Plastic Limited is a separate legal entity from Plastitech Limited.

It was and is difficult to get a clearly articulated response from plaintiff's counsel to the defendant's specific arguments.⁹  Based upon what counsel said in his responses and what he said during the trial, it does not appear that the plaintiff is seriously opposing the first ground articulated by the defendant, that the 1999 Shareholder Agreement was executed between Mr. Ibar and Mr. Turullos.   However, the plaintiff does seem to argue that the terms of the 1999 agreement form the basis for the new agreement with Stratek.   As to the second ground, that the 1999 Shareholder Agreement was a completed contract, the plaintiff disputes this.   He contends that the creation of Stratek was contemplated and covered by the 1999 Shareholder Agreement.   Regarding the third and fourth arguments of the defendant, the plaintiff did not present evidence to dispute these facts or the principle of law.   So, presumably, he is not contesting this.   Relating to the fifth and sixth grounds articulated by the defendant, the plaintiff appears to claim that his conversations with Mr. Turullos form the basis for a contract between he and Stratek because of his claim that Mr. Turullols was acting in an official capacity as “Managing Director” of Stratek in those communications.   Finally, as to the final argument of the defendant, the plaintiff does not seem to dispute this.   Instead, the plaintiff argues that it does not matter whether Plastitech and Stratek were different companies because for purposes of the 1999 Shareholder Agreement, they were both governed by the agreement.

At trial, the plaintiff submitted documentary evidence and presented only two witnesses:  Jean–Pierre Ibar, the plaintiff and Mrs. Christine Ibar. The plaintiff elected not to call Jose Luis Turullols or any other individual(s) from Stratek as witnesses, although Mr. Turullols and the CEO of Stratek, Alan Stall, were present for the entire trial.   The court will now review the facts presented in the plaintiff's case,¹⁰ considered in the light most favorable to the plaintiff.

The plaintiff, a scientist and inventor, entered a Shareholder's Agreement in July 1999 with Jose Luis Turullos, who represented himself and a group of investors (“the founders”) to establish a company to commercialize the plaintiff's invention(s).¹¹

2. The parties to the 1999 Shareholder Agreement, Ibar and Turullols, established Plastitech, an off-shore company, pursuant to the agreement.¹²

3. Pursuant to the 1999 Shareholders Agreement, the plaintiff was a 45% shareholder of Plastitech;  and Mr. Turullols was a 5% shareholder.

4. Because by 2001 Plastitech needed additional funding, the company began looking for sources for additional funding and found one in an Investment firm in Spain, called Torreal, S.A.

5. Torreal agreed to invest several million dollars in a company that would commercialize the plaintiff's inventions, but refused to invest in Plastitech because it was an off-shore company.

5. Mr. Turullols was a principal negotiator in the deal which led to the creation of Stratek and he was the principal negotiator for the plaintiff.

7. Mr. Turullols represented to the plaintiff verbally and in writing that he was guiding his negotiations with Torreal with the 1999 Shareholder Agreement in mind.

8. Mr. Turullols also represented to the plaintiff that he was attempting to negotiate a deal in which the plaintiff would retain the power and control that the plaintiff had in Plastitech.

There are additional facts that are relevant and undisputed, but are not necessarily supportive of the plaintiff's claim.   Those facts are as follows:

1. Negotiations between Torreal and members of Plastitech continued in 2002 and resulted in an Agreement to form Stratek Plastic Limited in Ireland, which agreement was memorialized by a formal, signed contract.

2. Stratek Plastic Limited was incorporated in Ireland in April 2002.

3. On April 18, 2002, in Madrid, Spain, the parties to the agreement executed a Shareholders Agreement.¹³

4. The plaintiff was not a party to or a signatory on the April 18, 2002 Shareholder Agreement.

5. Plastitech is listed as the largest shareholder in the April 18, 2002 Shareholder Agreement.

6. Plastitech is listed as having 40.5% of the shares in Stratek.¹⁴

7. Prior to the execution of the agreement, the plaintiff agreed to a reduction in Plastitech's shares in Stratek from 45% to 40.5%.

8. The plaintiff's agreement to the reduction in Plastitech's shares was a necessary condition for the April 18, 2002 contract.

9. The plaintiff knew in April 2002 that he was not listed as an individual shareholder.

10. The plaintiff believed in April 2002 that he owned stock in Stratek through Plastitech.

11. At the inception of Stratek, the plaintiff was given one of the ten seats on the Board of Directors.

12. The plaintiff worked for Stratek exclusively, pursuant to a written contract, entitled, Service Agreement that he signed on April 18, 2002.

13. The plaintiff assigned various of his patents to Stratek, pursuant to a written contract, the Patent Agreement that he signed on April 18, 2002.

14. The plaintiff continued to serve on the Board of Stratek until he was terminated by the other Board members on November 16, 2006.

15. All the correspondence entered by the plaintiff from Mr. Turullols to the plaintiff addresses the plaintiff informally.¹⁵

16. The Stratek Board of Directors was an active board with annual and regular meetings at which official minutes were maintained.

17. None of the minutes or official records of Stratek memorialize any Shareholder Agreement other than the one which was signed on April 18, 2002.

18. There is no reference in any of the official documents of Stratek to the 1999 Shareholder Agreement between the plaintiff and Mr. Turullols.

19. At a General Meeting of the members of the company on April 23, 2002, the Board adopted Articles of Association to govern the company, which Articles address such topics as:  Share Capital and Variation of Rights;  Share Certificates;  Directors Authority to Allot Shares, Purchase of Shares, Calls on Shares, Transfer of Shares, General Meetings, Notice of General Meetings, Votes of Members, Directors, and Powers of Directors.

20. The Articles of Association contain no reference to a position for a “Managing Director.”   Nor did the plaintiff introduce any evidence to support his repeated reference to Mr. Turullols as the “Managing Director” of Stratek.¹⁶

The court will refer to additional facts, as necessary.

There are also a number of so-called “facts” that the plaintiff attempts to rely upon.   Many of these are actually arguments, coached as facts.   And, many of them are unsupported by the evidence.   But, the court will set them out, because the plaintiff relies so heavily upon them.

First, the plaintiff claims that the emails and other communication of Turullols prove that Stratek knew of the 1999 Shareholder Agreement.   Notwithstanding the fact that the court repeatedly admonished plaintiff's counsel that knowledge of something did not meet his burden of proving that a party agreed to the terms, he continued to refer to his “proof” that Stratek knew of the 1999 Shareholder Agreement.   While knowledge of terms would certainly be a prerequisite for agreement to terms, these purported facts only get the plaintiff so far in his case.   The Turullols emails upon which the plaintiff most relies to establish Stratek's knowledge were all written before Stratek was formed as a company.   Although Torreal was a critical party to the negotiations, and the emails refer to Torreal, none of the emails copy Torreal, and none of them are on official business letterhead.   Nor, do those emails state that any of the parties, except Ibar, Turullols and the original investors, agreed to be bound by the terms of the 1999 Shareholder agreement.   Nonetheless, the plaintiff persists in claiming that the emails are essential proof that he had a contract with Stratek to have 45% or 40.5% of the company.

Second, the plaintiff claims that the fact that 40.5% of the shares were given to Plastitech is proof that Stratek had “ratified” the 1999 Shareholder Agreement.   He relies upon a 2006 email from Turullols, which email purportedly contains a “history of capitalization.”   In the email, Mr. Turullols represents that the shares of Plastitech in Stratek remained in the 40.5% to 38% range from 2002 to 2006, through several rounds of “capitalization.”   The plaintiff relies upon this as “proof” that Stratek entered a contract with him requiring that he have 45% or 40.5% of the shares in Stratek.   He treats the text of the email as though it is official correspondence from the defendant.   Certainly, the plaintiff can rely on the email to prove certain things, namely that a representation was made to him by someone that he considered to be the “Managing Director” of Stratek about the history of capitalization.   But, to then to state that the email is proof that the parties entered a contract, without more, is a stretch.

Further, the plaintiff also argues that this email proves that Stratek gave him “free shares.”   The “free shares” to Plastitech, the plaintiff argues are further proof that Stratek entered a contract with him, individually, which contract required that he, Jean–Pierre Ibar, would have 45% or 40.5% of the shares in Stratek.

Finally, the plaintiff claims that any company that was formed which commercialized his inventions, which were referenced in the 1999 Shareholder Agreement, would be subject to that agreement.   Even though he does not dispute that there is no official record that Stratek ever formally agreed to be bound by the terms of the 1999 Agreement, even though some of the terms of the 1999 Agreement are clearly not applicable to any company that was formed after Plastitech, and even though Stratek has its own, detailed and long Shareholder Agreement, the plaintiff claims that the 1999 Shareholder Agreement is proof of the terms of his contract with Stratek.

“A trial court should direct a verdict only when a jury could not reasonably and legally have reached any other conclusion ․ Although it is the jury's right to draw logical deductions and make reasonable inferences from the facts proven ․ it may not resort to mere conjecture and speculation ․ A directed verdict is justified if ․ the evidence is so weak that it would be proper for the court to set aside a verdict rendered for the other party.”  Riccio v. Harbor Village Condominium Ass'n, Inc., 281 Conn. 160, 163, 914 A.2d 529 (2007).

There is one issue that I must address before going to the plaintiff's breach of contract claim.   Prior to trial, the parties litigated, relitigated and litigated again, the issue of whether or not Mr. Ibar was pursuing this claim for his own shares in his own name, in which case he would have standing to bring this lawsuit;  or whether he was litigating on behalf of shares issued to Plastitech, in which case he would not have had standing to pursue this lawsuit.   The plaintiff has always maintained, and the law of this case requires that, the plaintiff prove that he was deprived of shares to which he was contractually entitled as an individual.   Failing to prove that he had a contract with Stratek for individual shares in his name, would result in judgment for the defendant.   In other words, if through his proof, the plaintiff established that, by contract, it was Plastitech to whom shares were to be issued and to whom the shares were contractually owed, then the defendant is entitled to judgment as a matter of law.

Now, turning to the plaintiff's claim—that he was contracted to be issued 40.5% of the shares, this claim requires the plaintiff to establish, by a preponderance of the evidence:  (1) the existence of a contract;  and (2) a breach of the contract by the defendant.

“ ‘The elements of a breach of contract are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages.’  Chiulli v. Zola, 97 Conn.App. 699, 706–07, 905 A.2d 1236 (2006);  Whitaker v. Taylor, 99 Conn.App. 719, 728, 916 A.2d 834 (2007)” Crouse v. Mierzejewski, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 054005879 (March 13, 2008, Bellis, J.).

Express contracts, such as the one alleged here, must be shown by the direct words, whether spoken or written, of the parties.   Since there is no claim that the agreement between the parties was memorialized by a signed agreement, in order to meet his burden of proof, the plaintiff would have to prove that he reached a specific oral or written agreement with the defendant which was definite and certain as to its essential terms and requirements.   He failed to even put into evidence what the precise terms of the contract were.¹⁷  Additionally, the plaintiff was unable, through counsel, to even refer to the court to any evidence to support his claim that an agreement was reached between Stratek and the plaintiff that the plaintiff would receive 40.5% of the shares of the company in Mr. Ibar's name.¹⁸  In his objection filed on March 13, 2012, plaintiff claims that the evidence is the March 27, 2002 letter from Mr. Turullols to Mr. Ibar which does not refer to any agreement reached among the parties regarding the claimed terms.¹⁹

“The rules governing contract formation are well settled.   To form a valid and binding contract in Connecticut, there must be a mutual understanding of the terms that are definite and certain between the parties ․ To constitute an offer and acceptance sufficient to create an enforceable contract, each must be found to have been based on an identical understanding by the parties ․ If the minds of the parties have not truly met, no enforceable contract exists ․ An agreement must be definite and certain as to its terms and requirements ․ So long as any essential matters are left open for further consideration, the contract is not complete ․ A contract requires a clear and definite promise.   See Suffield Development Assoc.   Ltd. Partnership v. Society for Savings, ․ 243 Conn. [832,] 843, [708 A.2d 1361 (1998) ].”   Swift v. Ball, Superior Court, judicial district of Danbury, Docket No. CV 010344047 (February 22, 2005, Bellis, J.).

In this case, the plaintiff needed to prove by a preponderance of the evidence first that the parties agreed to the specific term, whatever he claims those terms to be.   Yesterday, I thought he was claiming that the terms of the contract were that Mr. Ibar would have 40.5% of the shares in Stratek, in his name.   But, today, apparently, the terms are those set forth in the 1999 Shareholder Agreement, that Mr. Ibar would have 45% of the shares in Stratek in his name.  (Or, perhaps it is no less than 39% of the shares that the plaintiff was contracted to have, because plaintiff's counsel, for the first time referred to that number in his argument.)   Whatever the terms, there is no evidence that such an agreement was ever reached between the parties.   There is no evidence that there was a “meeting of the minds” on this issue of individual shares to Mr. Ibar. In other words, there is no evidence that the parties understood and agreed to the same essential terms of the contract, namely that Mr. Ibar would own, in his name 45% or 40.5% or 39% of the shares in Stratek.²⁰

The plaintiff has relied, for the most part, upon letters and correspondence from Mr. Turullols, who the plaintiff refers to as “the Managing Director” of Stratek.   There are no full exhibits in evidence which use this title.²¹  The correspondence from Mr. Turullols never uses this title.   None of the Minutes, or other corporate documents refer to this title.   In fact, the corporate exhibits only refer to Mr. Turullols as a Director of Stratek.   Nonetheless, because the plaintiff makes this claim, and because the court must view the evidence in the light most favorable to the plaintiff, it considers this claim that Mr. Turullols made promises as the Managing Director of Stratek to the plaintiff that Stratek would give a certain percentage of its shares to him.

First, as noted above, the plaintiff did not present any documentary evidence that this explicit representation was made, nor did he present any evidence that an agreement was reached regarding this.   Promises and even representations are not the same thing as agreements.   Second, assuming arguendo that he had presented evidence of an agreement reached between he and Managing Director Turullols, the plaintiff would then have to establish that the corporation, itself, authorized the agreement or ratified it.   Because the defendant is a private corporation with duly registered Articles of Association, Stratek could only enter a contract that was approved by its board of directors.   This is black-letter law.   See, 19 C.J.S. Corporations § 693 (“So far as its dealings with third persons are concerned, ․ [the powers] may be exercised by its board of directors.   The authority of the board includes the power to do any act or make any contract in the conduct of the company's affairs or business ․ The corporation can be bound only by its board of directors ․ The authority of the directors to bind the corporation belongs to them collectively and not individually, and the mere fact that a person is a director ․ gives him ․ no authority to act individually for the corporation as its agent ․”).  The Articles do not give to any officers or directors the powers to enter contracts on behalf of the corporation.   Therefore, without evidence of the explicit consent of the board, Stratek would not be able to legally enter a contract.

There is no evidence that the Board of Directors of Stratek was informed of the terms of the 1999 Shareholder Agreement.²²  Further, the plaintiff produced no evidence that anyone except for he and Mr. Turullols discussed the topic of his percentage of shares in Stratek.   What Mr. Turullols and other parties discussed might be interesting and perhaps somewhat probative.   But, since he claims that the contract was with him, evidence of direct communications with Stratek is important.   More importantly for this case, though, the plaintiff failed to present any evidence that Stratek, through its board, discussed or approved an agreement that he, personally, would receive 45% or 40.5% of the shares in Stratek in his name.   Mr. Ibar had the right, as a Director of Stratek, to attend any and all meetings.   He also had the right to speak at the meetings.   He introduced no evidence that the corporation, is a legal entity, agreed to enter a contract with him requiring that he have 45% or 40.5% of the shares in the company.   Neither did he produce any evidence that he had a contract with Stratek that his shares would not be reduced below a percentage level, nor did the 1999 Shareholder Agreement provide for that.

Finally, given the articulated claim that Stratek breached its agreement with the plaintiff because it did not issue to him 40.5% of the shares in his name on April 18, 2002 when shares were distributed, the defendant's Special Defense asserting the Statute of Limitations is valid.   When the plaintiff had disclosed that he was intending to assert an implied contract claim, the defendant sought leave to file an Amended Answer, which the court granted.   In that Amended Answer, the defendant asserted a Statute of Limitations Special Defense.²³

The plaintiff then informed the court and opposing counsel that he would be pursuing an express contract claim rather than an implied contract theory.   Then, on Friday, March 9, 2012, the plaintiff limited his claim to one alleging that on April 18, 2002 he was contractually entitled to 40.5% of the shares in his own name.   Up until that time, the plaintiff had been referring to the terms of the 1999 Shareholder Agreement, and referring to actions that place during the time period from April 2002 through November 2006.   Relying upon plaintiff's counsel's representation that the breach of contract occurred in April 2002, when the plaintiff did not receive the shares to which he was contractually entitled, the court finds that the undisputed evidence establishes that this claim is time-barred.

There is no evidence that the agreement was written or signed.   Therefore, this action is governed by General Statutes, Section 52–581 which provides that “no action founded upon any express contract or agreement which is not reduced to writing or of which some note or memorandum is not made in writing and signed by the party to be charged therewith or his agent, shall be brought but within three years after the right of action accrues.”   The alleged breach occurred in April 2002, when Mr. Ibar was not issued shares in his name.²⁴  This action was brought in September 2008, more than six years after the alleged breach.   Therefore, even if the plaintiff had offered evidence that put into issue whether there was an agreement between he and Stratek regarding his ownership of 45% or 40.5% of the shares (which he did not);  and even if he had provided evidence that Stratek as a corporation ratified and entered such an agreement (which he did not);  and even if he had introduced facts that Stratek breached the agreement by failing to issue to him 40.5% of the shares when shares were issued in April 2004 (which he did not);  then the action would be time-barred.

The court grants the defendant's motion for directed verdict because, based upon the plaintiff's failure to present a prima facie case.   The evidence introduced in the plaintiff's case did not establish that there was an express contract between the plaintiff and the defendant that the plaintiff would receive 40.5% of the shares in Stratek in his name.   Further, the action, based upon the undisputed facts and the current claim of the plaintiff is time-barred.   For these reasons, the defendant is entitled to judgment.

Robinson, J.

FOOTNOTES

FN1. The jury trial, which began on February 28, 2012, involved two matters that were consolidated for trial:  Stratek Plastics Limited v. Jean–Pierre Ibar et al., CV 075010242 (a Fraudulent Conveyance Case);  and the instant matter.   This decision addresses only the Ibar v. Stratek Plastic Limited case.   The jury will still be deciding the remaining case of Stratek Plastic Limited v. Ibar et al..  FN1. The jury trial, which began on February 28, 2012, involved two matters that were consolidated for trial:  Stratek Plastics Limited v. Jean–Pierre Ibar et al., CV 075010242 (a Fraudulent Conveyance Case);  and the instant matter.   This decision addresses only the Ibar v. Stratek Plastic Limited case.   The jury will still be deciding the remaining case of Stratek Plastic Limited v. Ibar et al.

FN2. Although there was reference during the trial to the fact that there were two companies formed by the plaintiff and others using the name “Stratek”, for purposes of this Decision reference to “Stratek” will be a reference to the defendant.   The other company has been referred to, during the trial, as “Stratek of London.”.  FN2. Although there was reference during the trial to the fact that there were two companies formed by the plaintiff and others using the name “Stratek”, for purposes of this Decision reference to “Stratek” will be a reference to the defendant.   The other company has been referred to, during the trial, as “Stratek of London.”

FN3. The case was originally brought by Mr. Jean–Pierre Ibar, representing himself, in a multi-paragraph complaint.   In a decision relating to a Motion to Dismiss, this court (Holden, J.) dismissed all but one paragraph, which paragraph asserted the breach of shareholder agreement claim..  FN3. The case was originally brought by Mr. Jean–Pierre Ibar, representing himself, in a multi-paragraph complaint.   In a decision relating to a Motion to Dismiss, this court (Holden, J.) dismissed all but one paragraph, which paragraph asserted the breach of shareholder agreement claim.

FN4. The only evidence introduced during the trial was that Mr. Ibar is the owner of Plastitech, which is a company that owns shares in Stratek.   Although he, at times, disputes this, through evidence, the plaintiff did not establish that he lacked ownership in a “company that owned stock in Stratek,” as he claimed in his complaint.   In his Objection to the Motion for Directed Verdict, he erroneously argues that it was the burden of the defense to prove that he owned Plastitech.   Nonetheless, whether or not he owned Plastitech is not, ultimately, dispositive for this motion..  FN4. The only evidence introduced during the trial was that Mr. Ibar is the owner of Plastitech, which is a company that owns shares in Stratek.   Although he, at times, disputes this, through evidence, the plaintiff did not establish that he lacked ownership in a “company that owned stock in Stratek,” as he claimed in his complaint.   In his Objection to the Motion for Directed Verdict, he erroneously argues that it was the burden of the defense to prove that he owned Plastitech.   Nonetheless, whether or not he owned Plastitech is not, ultimately, dispositive for this motion.

FN5. After the long and complicated pretrial proceedings, this court decided on February 22, 2012, to bifurcate the issues.   The first issue to be litigated would be liability.   Depending upon the jury's findings, the jury would then be presented with issues relating to liability..  FN5. After the long and complicated pretrial proceedings, this court decided on February 22, 2012, to bifurcate the issues.   The first issue to be litigated would be liability.   Depending upon the jury's findings, the jury would then be presented with issues relating to liability.

FN6. Evidence in this case, the breach of contract case, began on March 6, 2012..  FN6. Evidence in this case, the breach of contract case, began on March 6, 2012.

FN7. Notwithstanding the language in the plaintiff's allegation that the defendant “defrauded” him.   The plaintiff did not advance any theory of fraud in trying the case.   Plaintiff's counsel plainly and clearly asserted on the record, and in chamber conferences that the case was tried on the theory of breach of contract.   The court repeatedly asked the plaintiff what his legal claims were.   Each response was that the claim was for breach of contract, only..  FN7. Notwithstanding the language in the plaintiff's allegation that the defendant “defrauded” him.   The plaintiff did not advance any theory of fraud in trying the case.   Plaintiff's counsel plainly and clearly asserted on the record, and in chamber conferences that the case was tried on the theory of breach of contract.   The court repeatedly asked the plaintiff what his legal claims were.   Each response was that the claim was for breach of contract, only.

FN8. There is also no dispute that Mr. Trulullols signed the 1999 Shareholder Agreement in his representative capacity for the other original investors..  FN8. There is also no dispute that Mr. Trulullols signed the 1999 Shareholder Agreement in his representative capacity for the other original investors.

FN9. I believe that it is fair to say that this has been an atypical, and unusually confusing case.   By the time the trial of the consolidated matters began on February 28, 2012, the parties appeared at trial with hundreds of exhibits and it was never entirely clear where the plaintiff was headed.   On February 22, 2012, Plaintiff's Counsel indicated to the court and opposing counsel that he would be pursuing an Implied Contract theory relying largely upon the 1999 Shareholder Agreement.   Then, on March 7, 2012, the plaintiff filed “An Amended Jury Instruction” stating he would pursue an express contract claim arguing that shares to Plastitech were to remain at 40.5% under the Agreement with Stratek.   Then, in opposition to the Motion for Directed Verdict on March 12, 2012, plaintiff's counsel argued that the claim is that the plaintiff was to have 40.5% of the shares in Stratek in his own name.   Finally, on March 13, 2012, plaintiff's counsel argued that the breach of contract occurred in November 2006, when the share of Plastitech fell below the 39% level, in violation of the 1999 Shareholder Agreement..  FN9. I believe that it is fair to say that this has been an atypical, and unusually confusing case.   By the time the trial of the consolidated matters began on February 28, 2012, the parties appeared at trial with hundreds of exhibits and it was never entirely clear where the plaintiff was headed.   On February 22, 2012, Plaintiff's Counsel indicated to the court and opposing counsel that he would be pursuing an Implied Contract theory relying largely upon the 1999 Shareholder Agreement.   Then, on March 7, 2012, the plaintiff filed “An Amended Jury Instruction” stating he would pursue an express contract claim arguing that shares to Plastitech were to remain at 40.5% under the Agreement with Stratek.   Then, in opposition to the Motion for Directed Verdict on March 12, 2012, plaintiff's counsel argued that the claim is that the plaintiff was to have 40.5% of the shares in Stratek in his own name.   Finally, on March 13, 2012, plaintiff's counsel argued that the breach of contract occurred in November 2006, when the share of Plastitech fell below the 39% level, in violation of the 1999 Shareholder Agreement.

FN10. The plaintiff rested on Friday, March 9, 2012 and the defendant moved for Directed Verdict on that date.   However, because the motion was made in the late afternoon, the court deferred deciding the motion or issuing a ruling in order to review the evidence and arguments of counsel over the weekend.   The defendant had previously arranged to have two witnesses fly in from Madrid, Spain, to testify on Monday, March 12, 2012, a fact which was known to the court and opposing counsel since the commencement of trial.   To accommodate his schedule, the defendant was therefore allowed to present the one Spanish witness who had to testify on Monday, March 12, 2012, before this court returned to addressing the issues raised by the motion for directed verdict.   The other Spanish witness voluntarily waited to present testimony until this court disposed of the motion for directed verdict.   The court is not considering any of the facts or evidence presented in the defendant's case in deciding this motion, although the individual called by the defendant on Monday, March 12, 2012 made a very compelling witness..  FN10. The plaintiff rested on Friday, March 9, 2012 and the defendant moved for Directed Verdict on that date.   However, because the motion was made in the late afternoon, the court deferred deciding the motion or issuing a ruling in order to review the evidence and arguments of counsel over the weekend.   The defendant had previously arranged to have two witnesses fly in from Madrid, Spain, to testify on Monday, March 12, 2012, a fact which was known to the court and opposing counsel since the commencement of trial.   To accommodate his schedule, the defendant was therefore allowed to present the one Spanish witness who had to testify on Monday, March 12, 2012, before this court returned to addressing the issues raised by the motion for directed verdict.   The other Spanish witness voluntarily waited to present testimony until this court disposed of the motion for directed verdict.   The court is not considering any of the facts or evidence presented in the defendant's case in deciding this motion, although the individual called by the defendant on Monday, March 12, 2012 made a very compelling witness.

FN11. The agreement, entitled “Shareholders Agreement,” which is dated and signed by the plaintiff and Mr. Turullols, was executed on July 4, 1999.   It designates the parties to the Agreement as Jean–Pierre Ibar and Jose Luis Turullols.   It provides under the heading “The agreement:” “1. The parties agree to incorporate a company, to investigate, develop and market the ․ methods [which are described], to which Mr. Ibar transfers all the aforementioned rights and Mr. Turullols the U.S. $600,000. 2. Once the company is in operations (sic), Mr. Thar will have the right to 15% of the gross revenue arising from royalties' income calculated at the source, and to 3% of the gross revenues arising from the sale of goods and services also calculated at the source. 3. The stock will be distributed as follows:  Dr. Thar 45%, Promotor, Mr. Turullols 5%, Founders 50%. 4. In the event that new issues of capital stock are voted, the company will reserve for Mr. Ibar the sufficient number of shares so Mr. Ibar will be able to maintain 51% of the capital stock.   This stock will be purchased by Mr. Ibar with proceeds from dividends distribution.”.  FN11. The agreement, entitled “Shareholders Agreement,” which is dated and signed by the plaintiff and Mr. Turullols, was executed on July 4, 1999.   It designates the parties to the Agreement as Jean–Pierre Ibar and Jose Luis Turullols.   It provides under the heading “The agreement:” “1. The parties agree to incorporate a company, to investigate, develop and market the ․ methods [which are described], to which Mr. Ibar transfers all the aforementioned rights and Mr. Turullols the U.S. $600,000. 2. Once the company is in operations (sic), Mr. Thar will have the right to 15% of the gross revenue arising from royalties' income calculated at the source, and to 3% of the gross revenues arising from the sale of goods and services also calculated at the source. 3. The stock will be distributed as follows:  Dr. Thar 45%, Promotor, Mr. Turullols 5%, Founders 50%. 4. In the event that new issues of capital stock are voted, the company will reserve for Mr. Ibar the sufficient number of shares so Mr. Ibar will be able to maintain 51% of the capital stock.   This stock will be purchased by Mr. Ibar with proceeds from dividends distribution.”

FN12. Articles of Association dated July 26, 1999, were filed with the General Registry Isle of Man on August 6, 1999..  FN12. Articles of Association dated July 26, 1999, were filed with the General Registry Isle of Man on August 6, 1999.

FN13. The Shareholders Agreement, dated April 18, 2002, Defendant's Exhibit 22, had three categories of parties:  First Party, Torreal;  Second Party, Stratek Plastics Limited;  and Third Party, named individual and corporate shareholders, including Mr. Turullols and Plastitech..  FN13. The Shareholders Agreement, dated April 18, 2002, Defendant's Exhibit 22, had three categories of parties:  First Party, Torreal;  Second Party, Stratek Plastics Limited;  and Third Party, named individual and corporate shareholders, including Mr. Turullols and Plastitech.

FN14. The fact that Plastitech was given the largest percentage of shares, and that the parties apparently agreed that the plaintiff was the owner of Plastitech certainly establishes that there was a meeting of the minds that Mr. Ibar, through Plastitech, would be the largest owner of Stratek, at its inception.   However, that fact, does not another contract make.   The plaintiff's contract claim in this case alleges, not only that he was contracted to be the largest shareholder, but that he was to be the largest shareholder in his name and that his percentage of shares was not to be reduced below a certain level..  FN14. The fact that Plastitech was given the largest percentage of shares, and that the parties apparently agreed that the plaintiff was the owner of Plastitech certainly establishes that there was a meeting of the minds that Mr. Ibar, through Plastitech, would be the largest owner of Stratek, at its inception.   However, that fact, does not another contract make.   The plaintiff's contract claim in this case alleges, not only that he was contracted to be the largest shareholder, but that he was to be the largest shareholder in his name and that his percentage of shares was not to be reduced below a certain level.

FN15. Most of the letters and correspondence from Turullols to Ibar open with the salutation—”Dear Apy,” which is the plaintiff's nickname, but the others open with “My dear Jean Pierre” or the like.   Only one of the correspondences in evidence contains a simple “To:  Jean Pierre” and “From Jose Luis.” Additionally most of the letters end with the endearment that loosely translates to warmest regards:  “je t'embrasse.”.  FN15. Most of the letters and correspondence from Turullols to Ibar open with the salutation—”Dear Apy,” which is the plaintiff's nickname, but the others open with “My dear Jean Pierre” or the like.   Only one of the correspondences in evidence contains a simple “To:  Jean Pierre” and “From Jose Luis.” Additionally most of the letters end with the endearment that loosely translates to warmest regards:  “je t'embrasse.”

FN16. In his objection, filed on March 13, 2012, the plaintiff refers to two items which were marked for ID only.   These powerpoint slides which list Turullols as “Managing Director,” the plaintiff argues, were created by Mr. Turullols and are evidence of the organizational structure of Stratek.   The plaintiff also refers to introductory remarks made by defense counsel.   He says that during jury selection, counsel for Stratek introduced Mr. Turullols as the Managing Director of Stratek..  FN16. In his objection, filed on March 13, 2012, the plaintiff refers to two items which were marked for ID only.   These powerpoint slides which list Turullols as “Managing Director,” the plaintiff argues, were created by Mr. Turullols and are evidence of the organizational structure of Stratek.   The plaintiff also refers to introductory remarks made by defense counsel.   He says that during jury selection, counsel for Stratek introduced Mr. Turullols as the Managing Director of Stratek.

FN17. Given the state of the evidence, it would be an impossible task for the jury to decide whether a contract had been breached because the plaintiff submitted no evidence about the definite and certain terms of a contract between he and Stratek.   In fact, he has been unable to articulate one consistent factual claim throughout the trial.   Did the parties contract that the plaintiff would receive 45% of the shares in Stratek, which is what the 1999 Shareholder Agreement requires?   Did the parties contract that the plaintiff would receive 40.5% of the shares in Stratek?   (The 40.5% appears nowhere in the 1999 Shareholder Agreement.)   Did the parties contract that the plaintiff would receive some other percentage of shares in Stratek?   Did they agree that Mr. Ibar would be given shares in his name?   Did the parties agree that Mr. Ibar would be given shares through Plastitech?   Did the parties agree that Mr. Ibar's percentage of shares, held in his name, would never drop below the level of 45%?   Did the parties agree that Mr. Ibar's percentages of shares, held in his name, would never drop below 40.5%?   Did the parties agree that Mr. Ibar's percentages of shares, held in his name, would never drop below 39%?   Did the parties agree that Mr. Ibar would be the majority shareholder forever?   Did the parties agree that Plastitech's percentage of shares would remain at a certain level forever?   Did the parties agree that Mr. Ibar would never be removed from the Board?   Did they agree that Mr. Ibar's Service Agreement would never be terminated?   These questions were all answered “yes” at some point during the trial by the plaintiff or his counsel..  FN17. Given the state of the evidence, it would be an impossible task for the jury to decide whether a contract had been breached because the plaintiff submitted no evidence about the definite and certain terms of a contract between he and Stratek.   In fact, he has been unable to articulate one consistent factual claim throughout the trial.   Did the parties contract that the plaintiff would receive 45% of the shares in Stratek, which is what the 1999 Shareholder Agreement requires?   Did the parties contract that the plaintiff would receive 40.5% of the shares in Stratek?   (The 40.5% appears nowhere in the 1999 Shareholder Agreement.)   Did the parties contract that the plaintiff would receive some other percentage of shares in Stratek?   Did they agree that Mr. Ibar would be given shares in his name?   Did the parties agree that Mr. Ibar would be given shares through Plastitech?   Did the parties agree that Mr. Ibar's percentage of shares, held in his name, would never drop below the level of 45%?   Did the parties agree that Mr. Ibar's percentages of shares, held in his name, would never drop below 40.5%?   Did the parties agree that Mr. Ibar's percentages of shares, held in his name, would never drop below 39%?   Did the parties agree that Mr. Ibar would be the majority shareholder forever?   Did the parties agree that Plastitech's percentage of shares would remain at a certain level forever?   Did the parties agree that Mr. Ibar would never be removed from the Board?   Did they agree that Mr. Ibar's Service Agreement would never be terminated?   These questions were all answered “yes” at some point during the trial by the plaintiff or his counsel.

FN18. Although not dispositive for this motion, the parties both entered and signed other Agreements related to Stratek, including a Service Agreement and a Patent Agreement..  FN18. Although not dispositive for this motion, the parties both entered and signed other Agreements related to Stratek, including a Service Agreement and a Patent Agreement.

FN19. Plaintiff's counsel writes in his Objection, dated March 13, 2012, “In a letter of March 27, 2002, Mr. Turullols, representing Stratek (which was just three weeks old) was reporting to Mr. Ibar on the status of his negotiations with Torreal.   Mr. Turullols quotes Torreal, who expresses concern about the 1999 Shareholder Agreement and says ․” Factually, the first part of this statement is erroneous because Stratek was not formed until April 2002.   Unfortunately, this kind of factual misrepresentation by the plaintiff occurred at several other times during the trial..  FN19. Plaintiff's counsel writes in his Objection, dated March 13, 2012, “In a letter of March 27, 2002, Mr. Turullols, representing Stratek (which was just three weeks old) was reporting to Mr. Ibar on the status of his negotiations with Torreal.   Mr. Turullols quotes Torreal, who expresses concern about the 1999 Shareholder Agreement and says ․” Factually, the first part of this statement is erroneous because Stratek was not formed until April 2002.   Unfortunately, this kind of factual misrepresentation by the plaintiff occurred at several other times during the trial.

FN20. Obviously, since the 1999 Shareholder Agreement refers only to shares to Mr. Ibar, and since Plastitech wasn't even in existence at the time it was entered, the terms of the 1999 Shareholder Agreement do not refer to giving 45% or 40.5% or 39% of the shares in any company to Plastitech..  FN20. Obviously, since the 1999 Shareholder Agreement refers only to shares to Mr. Ibar, and since Plastitech wasn't even in existence at the time it was entered, the terms of the 1999 Shareholder Agreement do not refer to giving 45% or 40.5% or 39% of the shares in any company to Plastitech.

FN21. As noted earlier, in the Objection filed yesterday, the plaintiff refers to two exhibits marked for ID. only and to statements made by counsel, as support for his claim that Mr. Turullols was and is the Managing Director of Stratek..  FN21. As noted earlier, in the Objection filed yesterday, the plaintiff refers to two exhibits marked for ID. only and to statements made by counsel, as support for his claim that Mr. Turullols was and is the Managing Director of Stratek.

FN22. The plaintiff has maintained at various times during the trial that the Board of Plastitech and the Board of Stratek were essentially the same, and that the shareholders were essentially the same.   However, he produced no evidence that either board was privy to the specific terms of the Shareholder Agreement.   Also, there was no legal requirement that the Board of Plastitech be aware of the contract.   This is not true for Stratek's board..  FN22. The plaintiff has maintained at various times during the trial that the Board of Plastitech and the Board of Stratek were essentially the same, and that the shareholders were essentially the same.   However, he produced no evidence that either board was privy to the specific terms of the Shareholder Agreement.   Also, there was no legal requirement that the Board of Plastitech be aware of the contract.   This is not true for Stratek's board.

FN23. The statute of limitations relied upon by the defendant is section 52–576, which proscribes that an implied contract or any contract in writing must be brought within six years..  FN23. The statute of limitations relied upon by the defendant is section 52–576, which proscribes that an implied contract or any contract in writing must be brought within six years.

FN24. As noted earlier, if the plaintiff's claim is related to Plastitech's shares, he lacks standing to pursue this.   Plastitech was provided shares in Stratek.   The level of Plastitech's shares was reduced.   If plaintiff is using this as the basis for his breach of contract claim, he lacks standing to do so.   The court (Alander, J. and Burke, J.) previously ordered that the claim at issue in this case is the plaintiff's personal claim, and not one on behalf of Plastitech's shares..  FN24. As noted earlier, if the plaintiff's claim is related to Plastitech's shares, he lacks standing to pursue this.   Plastitech was provided shares in Stratek.   The level of Plastitech's shares was reduced.   If plaintiff is using this as the basis for his breach of contract claim, he lacks standing to do so.   The court (Alander, J. and Burke, J.) previously ordered that the claim at issue in this case is the plaintiff's personal claim, and not one on behalf of Plastitech's shares.

Robinson, Angela C., J.