Thomas Roy v. Richard Buzon, Sr. et al. (2014)

MEMORANDUM OF DECISION

As of the summer of 2009, the plaintiff, Thomas Roy (Roy), had been in the construction business (“concrete foundation, slabs, excavation work”) for some 40 years. 5.

The defendants here, Richard Buzon, Sr., and his wife, Leanne Buzon, owned land east of and abutting North Road (Route 117) in Groton.   They had approval to develop a five-lot subdivision.   The Buzons plan called for preparation of a roadway through the site which would provide access to and from North Road for each of the 5 lots.

Roy and the Buzons met socially while sailing during the summer of 2009. 6. Eventually, the Buzons' subdivision was discussed.

Richard Buzon, Sr. (Buzon) had obtained two “bids” for preparation of the roadway (or driveway) through the subdivision which provided access to North Road (subdivision roadway).   The bids were $92,000 and $88,000. 69.   When told this, Roy said the amounts were too high, he could do it for $72,000.

Roy estimated the preparation of the subdivision roadway would take him 3–4 months.   Buzon asked Roy for a contract.   Roy would not give Buzon a contract saying:  “I can do it cheaper if I do it week by week.” 69.

Roy began the subdivision roadway work in September 2009.   Throughout his work on the subdivision roadway, Roy had machinery problems, breakdowns, with attendant delays.

At random intervals, Roy gave Buzon an undated invoice.   Upon Buzon's receipt of Roy's invoice, Buzon would put the date of his receipt of Roy's invoice on the top of the invoice.   Within a day thereafter, Buzon gave Roy a check to cover the invoice.   Exhibits B, C, D, E, F, G, H, I, J, K, and L. Roy was paid at least $57,209.74 for his subdivision roadway work.   Exhibit L.

In March 2010, Roy was still working on the subdivision roadway.   Work on the subdivision roadway was essentially complete from North Road to just beyond (east of) Lot # 1.

In early March 2010, Buzon told Roy he wanted to put the subdivision roadway work in abeyance and concentrate on building a house on Lot # 1, the lot closest to North Road, in order to sell it to raise cash.

Roy and Buzon agreed upon what work Roy was to do on Lot # 1.   Price and a payment provision were agreed upon.   Roy was to prepare a written contract.   Roy began the Lot # 1 work by mid-March.   Roy ceased working on the subdivision roadway when he began work on Lot # 1.

As of April 10, 2010, Roy had not written up the contract.   So Buzon did.   On April 10, 2010, the parties executed a contract which described the work to be done by Roy on Lot # 1.   Exhibit 1. The contract price was $29,000.   The contract also provided:  “Full and final payment of $29,000.00 for material and labor to be paid upon completion of sale of lot 1 house.”   Exhibit 1.

In September 2011 Roy brought this action for work he claimed he had performed on Lot # 1.   Roy alleged:

3.  Between April 15, 2010 and May 14, 2010, the Plaintiff dug and poured a house and garage foundation and provided other materials and services to the Defendants ․ for use in building a home in Groton Connecticut.

4. At that time, the Plaintiff submitted a bill to Defendants ․ for those materials and services in the total amount of $18,427.86.

5. To date, the Defendants ․ have failed to pay any part of that bill.

Complaint, September 2, 2011.

The defendants generally denied the allegations of Roy's complaint and specifically denied the paragraphs just quoted.

The defendants counterclaimed.   They claimed that Roy was paid for such work as he had done on Lot # 1.   The work Roy was to do according to the April 10, 2010 contract, Exhibit 1, was not completed.   Further, Roy's work on Lot # 1 “was done in a negligent, unworkmanlike and unskillful manner.”   Answer & Counterclaim, December 21, 2011[102].   The defendants seek recovery for the work Roy did not perform and for rectification for the work Roy performed improperly.

Paperwork was not Roy's strong suit.

The heart of this suit as stated in Roy's complaint is recovery of the amount of an alleged bill for $18,427.86.

There was no proof at trial of a bill for $18,427.86 or for any other amount sent in roughly May 2010.   In fact, there was no evidence of any bill or invoice which by its content was identifiable as being for Lot # 1 work.   There was no evidence of when or how the alleged bill was “submitted” to defendants.   There was no evidence of how Roy arrived at the $18,427.86 figure.   Roy did not plead or testify as to the date of the alleged bill.   In fact, Roy's evidence at trial was entirely silent as to the alleged bill and how it was calculated.   Thus, even if his complaint stated a cause of action, there was no evidence consistent with the allegations of the complaint or which would prove the allegations of the complaint.

In plaintiff's trial memorandum,, May 22, 2013[120], Roy makes no mention of the $18,427.86 bill.   Not a word!   That puts an end of any thought of Roy's recovering on the complaint, and for that matter, recovering anything in this action.

Judgment shall enter for the defendants on the complaint.

Turning to the counterclaim, the defendants claim sums are due them because Roy did not complete the work called for in Exhibit 1, and, also for the costs incurred to correct Roy's work.

Resolution of the counterclaim raises a purely factual dispute;  the defendants clearly paid Roy a substantial sum, $78,462.23.   Defendants claim Roy was paid in full for his work to date on the subdivision roadway, $57,249.   Exhibit L. Defendants also claim Roy was paid $21,252.49 for his work on Lot # 1.   Exhibit R. Roy claims he was not paid anything for his work on Lot # 1.

If Roy is correct, it means he was paid $78,462.23 for the subdivision roadwork, work he told the Buzons he could do for $72,000 or less when he was trying to persuade the Buzons to hire him.   It must be remembered that the subdivision roadway was not completed;  it was incomplete to the east of Lot # 1 where it provided access to the other 4 lots in the subdivision.   There is no evidence of the cost to finish the subdivision roadway.

There is much confusion caused by Roy's lack of precision or anything close to it in his invoices.

Roy contends that the costs for materials necessary to do the work on Lot # 1 called for in the April 10, 2010 contract, Exhibit 1, could not be charged to the defendants:

Also, the invoices contain charges for materials which would not be charged under the terms of the contract.

Plaintiff's Trial Memorandum, May 23, 2013[120].

This statement is patently wrong.

First, there were no Roy invoices identifiable solely by the invoice's content as being for work on Lot # 1 or for the work the Buzons claim they paid Roy for work on Lot # 1 which Roy did before he stopped working on Lot # 1 sometime in May 2010.

Second, the contract for the Lot # 1 work, Exhibit 1, concludes with the sentence:  “Full and final payment of $29,000 for material and labor to be paid upon completion of sale of lot # 1 house.”  (Emphasis added.)   Exhibit 1.

Necessarily, materials would be involved in performing the work on Lot # 1.   Foundations are made of concrete;  water lines require pipe, etc.   The contract price for the Lot # 1 work was a lump sum, $29,000.   The lump sum was for the actual work and the materials necessarily involved in the work.

Exhibit L lists the amounts defendants claim they paid Roy for work on the subdivision roadway.   Each listed Exhibit contains a check and an undated Roy invoice.   In each such Exhibit, the check is for the amount called for in the corresponding invoice.   Exhibits B, C, D, E, F, G, H, I, J, and K.

Beginning in early March 2010, Roy's efforts were directed to Lot # 1. He no longer was working on the subdivision roadway.   The precise date of the cessation of work on the subdivision roadway and the start of work on Lot # 1 is unknown.

Roy claims he did not submit invoices for Lot # 1 work because his contract, Exhibit 1, called for a lump sum payment of $29,000.   As Roy interprets Exhibit 1, he would not be paid the lump sum until the house on Lot # 1 was sold.   It is true that Exhibit 1 did not mandate payment of the lump sum, or any part thereof, until the property was sold.   However, advances towards payment of the lump sum were not prohibited.

It must be kept in mind that until March 2010, all Roy's work was for the subdivision roadway.   Thus, there was no need until then to differentiate on invoices which job was the subject of the invoice amount, subdivision roadway or Lot # 1.

Exhibit R is a list of the checks the defendants wrote to Roy and which defendants claim were paid for Roy's Lot # 1 work.   Exhibits M, N, O, P, and Q.

However, in tabulating the payments made for the Lot # 1 work, there were no invoices which could be identified as being for Lot # 1 work.   This favors Roy as it is consistent with his position that pursuant to Exhibit 1, he was not to be paid until the Lot # 1 house was sold.

The seven checks the defendants claimed were in payment of Roy's Lot # 1 work are listed here by exhibit letter, date and amount:

M 3/28/2010 600

M 3/17/2010 5,400

M 3/25 2010 6,893.63

N 4/15/2010 2,000

O 4/30/2010 2,000

P 4/30/2010 2,000

Q 5/17/2010 2,358.86

$21,252.49

Exhibit R.

The heart of the dispute to be resolved here is whether the defendants paid Roy $57,209.74 for the subdivision roadway, Exhibit L, and also $21,252.49 for work on Lot # 1.   Exhibit R.

The record does not contain any bill or invoice which from its content alone shows whether it was for subdivision roadway work or for work on Lot # 1.

There is no question that the payments listed in Exhibit L totaling $57,209.74 were for work on the subdivision roadway.   The last 2 checks for subdivision roadway work were dated March 4, 2010.   Exhibit L. This establishes that Roy's work on the subdivision roadway was done before March 4, 2010.

In sworn responses to interrogatories, Roy was asked whether the contract was written or verbal.   Roy, under oath, answered:

The contract was verbal when the job started in March 2010 and later, at the request of the Defendant, the Defendant wrote up a contract.

Exhibit FF.

Roy had started the Lot # 1 work before the April 15, 2010 contract for the same was signed.

The first check the defendants paid for Lot # 1 work for $5,400 was dated March 17, 2010.   Exhibit M. A Roy invoice for $5,400 is included in Exhibit M. That invoice has Buzon's notation, “3/17/10” showing Buzon received the that invoice on that date.   That invoice describes the work being billed as “Stumping and Gradig (sic.).”   That description befits work on Lot # 1 considering the time (March 2010) and the operation likely going on for Lot # 1.   Grading and stumping usually occurs as the first operation on a project such as was being done on Lot # 1 pursuant to Exhibit 1. This description is more appropriate to describe work being done on Lot # 1 as of the first half of March 2010 than for subdivision roadway work.

Of the seven checks paid to Roy by the defendants for Lot # 1, five were for an even hundred dollars, e.g., $5,400, 600, 2,000.

All seven checks bore March 2010 dates or later dates.   The earliest check is dated March 17, 2010.   Roy was to have ceased subdivision roadway work and to be doing Lot 1 work exclusively by that date.

There are only two Roy invoices which (by the amount) correlate with the Buzons' payments to Roy for Lot # 1 work.   One is for $6,893.63 and is included in the Exhibit M;  the other is for $2,358.86 and is included in Exhibit Q. The bare content of each of these invoices alone does not state which work—subdivision roadway v. Lot # 1—was the subject of the billing.

The court believes Roy's invoice # 247959 for $8,958.86, a part of Exhibit Q is decisive here.

The Buzons' last payments for the subdivision roadwork were by checks for $1,800 and $2,400 both dated March 4, 2010.   Exhibits K and L. This goes to establish that the last of Roy's subdivision roadway work had occurred before March 4, 2010.

Plaintiff's Exhibit 12 is an invoice numbered 247959.   It is undated.   The total amount of the invoice is $8,958.86.   One line item on Exhibit 12 reads “Paid Terry 600.00.”

Exhibit 13 shows why Roy “Paid Terry $600.”   Terry was Roy's surveyor for the subdivision.   Exhibit 13 was a bill Terry rendered to Roy for Terry's work done on various dates.   The last item Terry charged for on Exhibit 13 reads:

3/10/10 Shoot site to tie into survey, Download, Rotate nodes to survey, Add approximate house locations;  4 Hr. @ 50 $200.

Exhibit 13.

Plaintiff's Exhibit 13 is an undated bill to Roy for work done by Terry on 9/14/09, 9/14/09, 9/15/09, and 3/10/10.   The $200 for the 3/10/10 entry on Exhibit 13 is included in the total charge in Exhibit 13.

Exhibit 13 is significant because it shows when the approximate house locations were determined.   The house approximate location for Lot # 1 was not established until March 12, 2010.   The record does not inform when Roy received the final house location—as opposed to approximate house location.   The house location was a prerequisite for completion of the excavation for the house and garage foundations.   Knowing the location of the concrete footings for the foundation walls had to predate completion of the excavation for the house and garage.

Exhibit 13 shows conclusively that the approximate house location for the house to be built on Lot # 1 was not fixed until March 12, 2010.   Thus, the forms for the footings for the house and garage could not be built before that date.

It is known, that the first concrete was delivered to the site on April 12, 2010.   Exhibit 2. The amount of the concrete was 6.4 cubic yards.   That relatively small amount is consistent with the volume of the footings.   The court concludes that the concrete delivered on April 12 was for footings.

The record does not show where the house and garage were located on Lot # 1.   But, the house and garage had to be located on a plot roughly 180 feet (east-west) by 160 feet (north-south) where building was permissible.   Exhibit A.

The record does not reveal when the final location of the house and garage were given to Roy. It was no earlier than March 12, 2010.   Exhibit 12.   The footings were poured on April 12, 2010, at the earliest.   Exhibit 2. During that one-month interval, the stumping and grading would have been complete in the immediate area of the location of the house and garage, the excavation for the house and garage would have to be dug, the water line trench would have to be dug to a point near where the foundation was to exist, the pipe for the water line laid and backfilled, the same for the utility lines, and the forms for the foundation footings built.

The excavation was sizeable.   The house and garage were attached.   Exhibit S. The width of the house and garage was 58 feet.   The house/garage from front to back was at least 28 feet.   The depth of the excavation had to be at least 6 feet.   The excavation had to exceed the first two dimensions by 8 to 10 feet to permit the machinery in and forms to be placed. 82.

Roy testified as to the progress of this work which culminated with footing concrete pour on April 12, 2010.   The unrefuted testimony was that Roy had trouble with his machinery during this period.   The excavation was done by Roy's backhoe with a flat tire because his excavator was broken down.

Furthermore, Roy's testimony on when various operations occurred and the time actually taken was unworthy of reliance.   His memory as to what occurred was questionable.   His testimony revealed Roy's memory of the work for the Buzons was unreliable and laced with words showing he was filling in memory gaps with knowledge gained by his long experience.   He lacked an actual memory of significant details of the Buzon job.

The court discounts this testimony because it is uncorroborated by any records in evidence and was not specific regarding this job.

The court finds and concludes that Roy was paid $21,252.49 by the Buzons for work on Lot # 1.

The Buzons incurred expenses to complete and correct the work specified in Exhibit 1. The Buzons incurred an expense of $11,211.01 for work Bill Geer did to finish and correct Roy's work on Lot # 1.   Exhibit CC;  101–10.

The Buzons also paid Paul Wawrzynowicz $2,490 to correct and/or finish Roy's work.   Exhibit CC;  110–13.

These total $13,701.01.

In his post-trial brief, Plaintiff's Trial Memorandum, May 22, 2013[120], plaintiff concedes the Buzons incurred this expense.

The Buzons paid Roy $21,252.49 for Lot # 1 work.   They are entitled to credit for the work to finish and correct, i.e. $13,701.01.   These amount to $34,953.50.   The contract price was $29,000.   The Buzons are entitled to recover the difference, $5,953.50.

Judgment shall enter for the defendants Buzons against the plaintiff Roy for $5,953.50.

Parker, J.T.R.

Parker, Thomas F., J.T.R.