JSF LLC v. LLC (2013)

MEMORANDUM OF DECISION

This cause of action arises out of an agreement between Omar Tork, who operated an indoor soccer rink and Jason Flaster, who operated a small residential landscaping business.   Tork agreed to pay Flaster the sum of $5,700 to install grass on an undeveloped piece of land behind the building where his soccer rink was located to use as a practice field.   Flaster claims Tork failed the balance of monies due and owing on the contract and Tork claims Flaster failed to complete the terms and conditions of the contract.

Based on the credible evidence submitted during the trial and the post-trial briefs filed by the respective parties, the court has reached the following legal and factual conclusions.

The writ summons and complaint, dated July 7, 2009 lists the party plaintiff as JSF Landscaping, LLC. With respect to the complaint, the plaintiff filed a revised complaint, consisting of 12 counts alleging a claim of breach of contract, breach of the Covenant Good Faith and Fair Dealing, unjust enrichment and violations of the Connecticut Unfair Trade Practices against Omar Tork. There was a claim of breach of contract, breach of the Covenant of Good Faith and Fair Dealing, unjust enrichment and a violation of the Connecticut Unfair Trade Practices Act as to Goooal Sports, LLC.

The owner of the property leased by Tork was the defendant, Dagoberto Marante the plaintiff included him as a defendant claiming breach of contract, breach, the Covenant of Good Faith and Fair Dealing, unjust enrichment and a violation of the Connecticut Unfair Trade Practices Act against Marante as owner of the property.   The plaintiff claimed $15,000 in damages.

The defendants denied the allegations of the complaint and filed counterclaims, in summary, claiming that the plaintiff failed to comply with the terms and conditions of the contract himself.   The defendants claimed damages of $2,800 to complete the contract.

At the time of trial, the plaintiff's attorney advised the court that he had determined the JSF Landscaping, LLC was not in existence at the time of the contract.   He filed a motion to substitute the plaintiff as a d/b/a.   Pursuant to C.G.S. § 52–109 which provides:  “When any action has been commenced in the name of the wrong person as plaintiff, the court may, if satisfied that it was so commenced through mistake, and that is necessary for a determination of the real matter in dispute to do so, allow any other person to be substituted or added as plaintiff.”   As was within its discretion, the court granted this technical substitution.

The defendants objected then and throughout the trial claiming they were “surprised” at the last minute change.   In fact, the defendants themselves, in filing well over 20 pleadings listed the plaintiff as a d/b/a, JSF Landscaping.   For some reason, the docket for the cause of action was actually changed to JSF Landscaping.   It would appear that rather than surprised, the defendants were disappointed that the plaintiff discovered a technical mistake.   The court overruled the objection but indicated that it would determine the status of the parties after all the evidence had been submitted.

There were relatively few disagreements as to the facts in this case, but those few are significant.   Both parties agreed that Omar Tork, operator of an indoor soccer field, called Jason Flaster, who operated a small landscaping business to bid on installing grass in an undeveloped parcel of land behind the building where the soccer field was located.   It was not a second soccer field, but simply a grass area he intended to use for practice.

The two agreed on a price of $5,700 to be paid in agreed-upon installments.   Although taking longer than expected, the plaintiff completed all of the phases except the final seeding, payment for which was to be $700.   Because of the delays, Tork indicated he would make the final payment once the grass was seeded.   An attempt by the plaintiff to seed the property was unsuccessful and he agreed to come back the following year when the season permitted reseeding.

The next contact Tork had with Flaster was a demand letter from Flaster seeking $15,000 in additional charges.   Flaster testified that Tork agreed to pay the additional charges while the work was being done.

Tork claimed that as a result of the failure of Flaster to install grass, he hired an additional landscaper to complete the contract for $2,800.

While the defendants maintained their objection that the court ruled that it was ordering the pleadings to be amended in compliance with the evidence, which at that time appeared to be the plaintiff was a d/b/a.   The plaintiff's attorney proceeded to file a revised complaint, contradicting himself and the court's initial order by changing the caption from JSF Landscaping to JSF Landscaping, LLC. Actually complying with the defendant's objections He represented that he was initially mistaken and the LLC was in existence at the time of the contract.   Although this complied with their objection, the defendants now claimed the plaintiff was an unregistered d/b/a.   The defendants then filed eight various motions for new trial.

After reviewing all the evidence and testimony submitted, the court in conjunction with its order that it would amend the pleadings to conform to the evidence denied the motions and ruled that Jason Flaster, and Omar Tork had engaged in this business relationship in their individual capacity as opposed to representing a business entity and that the real parties in interest were Jason Flaster and Omar Tork. This was a simple issue of a contract between two individuals acting in their individual capacity, which was fully litigated.

“A trial court has wide discretion in granting or denying amendments to the pleadings and rarely will this court overturned the decision of the trial court.”  Hansen Dev., Co. v. East Great Plains Shopping Center, 195 Conn. 60, 67 (1985).

The evidence, which form the basis for the court's finding is as follows:

Throughout the entire transaction neither Tork or Flaster represented or was aware of the other representing any separate business entity.

Jason Flaster, and Omar Tork, individually, formulated and executed the entire contract.

It was a verbal contract with no signed writing indicating either of the two were doing so in a representative capacity for any business entity.

The consideration was paid in cash installments with no checks or receipts indicating any business capacity.

The plaintiff submitted eight invoices from B & C Sand and Gravel Inc. All the Invoices were in the name of “Jason Flaster” individually, and no reference to any business entity.   The plaintiff also submitted an invoice from Madison Supply Company which was billed and sent to “Jason Scott Flaster,” also making no reference to any business entity.

The defendant, Omar Tork, submitted an invoice from Home Depot for a jackhammer rented to break up the concrete on the back property.   It was billed to “Omar A Tork” with no reference to a business entity.   Tork submitted a proposal form from a landscaper that he claimed finished the contract.   Except for the signature of the landscaper.   There is no other signature on the document and there is no reference to any person, property or business entity.

With respect to damages, Jason Flaster submitted a letter from his attorney dated February 5, 2009 which claimed that the “total costs for the project include:” The letter contained a list of expenses totaling $14,957.   There was also a claim of $1,000 for the final payment.   The letter failed to give him credit for the $5000 paid to Flaster.   The list included alleged payments to two laborers for a total of $10,625.   The court ruled that the letter was self-serving and that evidence would be required to substantiate any damages.   The plaintiff submitted two invoices, one from a sand and gravel company and one from a rental service for a backhoe loader.   The gravel company invoices listed several properties with the exception of Stratford Avenue where the defendants soccer field was located.   There was no evidence submitted exactly what was delivered, that the invoices were ever paid and the total of both was much less than the amount paid to Flaster.   The two laborers were never brought to court, and there was no evidence submitted with respect to any payment either by check or affidavit.

Of most significance, the court finds, based on the more credible testimony, that Tork never agreed to pay anything above the initial contract price.

It is the conclusion of the court that Jason Flaster failed to establish that he was entitled to any damages from Omar Tork.

With respect to the property owner, Marante, the plaintiff did not have a contract with the owner but he did have a contract with the tenant which was fully paid.   There was no evidence of any additional enhancement of the property.   Accordingly the court finds for the defendants with respect to all counts of the plaintiff's complaint.

With respect to the claim of Omar Tork for the additional monies paid to complete the final seeding, the only document submitted was a proposal form from a landscaper with a line through the printed reference to “proposal” and the words “bill to” written in.   There is no other name or address on the document, nor any other signature but apparently the landscaper.   It describes estimates for “spring cleanup, tacking and plugging service, power seed grass.”   The defendant's counsel did not call the landscaper testify and the court had no required basis to determine if, when and what services were rendered.   There was no evidence of any specific payment with respect to a final seeding.

In summary, the evidence submitted by both parties served no probative value as to damages.

Tork, however, did incur damages as a result of Flaster's failure to complete the terms and conditions of the contract.   There was an agreement between Flaster and Tork that the value of the remaining work was $700.   Tork, however, retained the $700, and therefore incurred no further damages.   Accordingly, the court finds for the plaintiff as to the counterclaim.

Summarily, judgment is entered for the defendants on the complaint, and for the plaintiff on the counterclaim.

GILARDI, J.T.R.

Gilardi, Richard P., J.T.R.