LLC v. 132 LLC (2014)

MEMORANDUM OF DECISION

This action was brought in four counts by the plaintiff, Evergreen Earth Products and Services, LLC (“Evergreen Products”), against the defendant, 132 Federal Road, LLC (“132 Federal Road”).   They include Count I—Breach of Contract;  Count II—Complaint on Account;  Count III—Unjust Enrichment;  and Count IV—Quantum Meruit.

The defendant has denied the allegations in the Plaintiff's Complaint and has filed Special Defenses and a Counterclaim in four counts which include Count I—Breach of Contract;  Count II—Negligence;  Count III—Restitution;  and Count IV—Violation of Sec. 42–110a—Connecticut Unfair Trade Practices Act (CUTPA).   The plaintiff filed an Answer and Special Defenses to the Defendant's Counterclaim.

BACKGROUND 1

This is a case brought by the plaintiff, Evergreen Products, for money damages which it allegedly sustained as a result of the failure of the defendant, 132 Federal Road, to fully compensate it for certain excavation work which it performed for the defendant and, additionally, for the defendant's failure, in violation of the agreement of the parties, to allow the plaintiff to take possession of a substantial amount of loose aggregate material or debris which was created as a result of the excavation work as further compensation for the work which it performed.

In its counterclaim, the defendant seeks monetary damages from the plaintiff for costs and expenses which the defendant claims to have incurred to remediate a dangerous condition created by the plaintiff's negligent and incomplete work on the site.   The defendant also seeks restitution of all sums paid to the plaintiff in excess of the value of the work performed, including the revenue the plaintiff has received from the sale of excavated materials.   The defendant also seeks damages from the plaintiff for its allegedly unfair or deceptive acts in the conduct of its trade.

Apart from a series of invoices offered into evidence and the performance of the parties, the parties agree that there was no written contract signed by the parties concerning the scope of the work to be performed by the plaintiff or concerning the exact amount of compensation the plaintiff was to receive.

Through their pleadings, both parties have admitted that they did have a working agreement that the plaintiff would perform certain excavation work on the premises of the defendant and that it would be compensated for that work and, in addition, would be compensated in the form of its retention of excavated materials which it was to sell from its own business location.   From that point on their versions of the facts take off in considerably different directions.

FACTS FOUND

The parties appeared before the court and offered evidence and testimony over the course of eight days regarding the allegations in the pleadings.   Counsel then provided the court with trial briefs.   Having considered the evidence and testimony, the court finds the following facts.

The defendant, 132 Federal Road, contracted with the plaintiff, Evergreen, to compensate Evergreen for the construction of earthen ramps at the excavation site to be used by a rock blaster hired by Evergreen to remove sections of rock from a high rock wall running the length of the plaintiff's property.   Evergreen was also to mechanically hammer obstructions and large rocks, to process the excavated material on site and to use that material at the appropriate time to fill the excavated site to required grades as per the site plan provided by the defendant.   The ramps were intended to allow the blaster to reach higher elevations on the rock face in order to drill somewhat vertical holes in the rock face for the placement of explosive charges.   Specific sections of rock face would then be removed by detonation of the explosives and portions of the debris or aggregate would be used by Evergreen to construct the next ramp for the blaster.   The plaintiff was also responsible to then excavate the site area to get twelve inches below the established grade and leave enough blasted material for the site to be refilled to grade after future construction work.

On February 8, 2008, the parties came to an agreement as to the scope of the work and the compensation to the plaintiff.   The plaintiff was to be paid $5,000.00 for that work and, in addition, he would be entitled to remove from the site an estimated 4,000 to 6,000 cubic yards of material for resale at its processing plant, provided that there would be enough left for the completion of the site to within code specifications.

On February 21, 2008, the plaintiff, Evergreen, started work on the site.   On February 24, 2008, Cioffoletti advised Girolametti that due to extraordinary fuel prices, Evergreen would need to be paid an additional $5,000.00 to do the job.   Girolametti, though not pleased, agreed to the increase.

Cioffoletti's work at what is generally considered to be the southern and central portions of the rock wall running along the 132 Federal Road worksite was not specifically in dispute.   His excavation work along the northern portion of the rock face on that property is the focal point of this case.   It is unrefuted in the evidence that a much greater amount of rock and material was excavated by Cioffoletti in that area than in the other sections.   The parties presented two radically different theories as to why that had occurred.   Cioffoleffi testified that he performed that work as carefully as he had along the more southerly sections of the property, but that the area in question consisted of a shale-like rock which, despite his best professional efforts, continued to landslide down from the higher reaches of the rock face as he attempted to excavate the base area.   Consequently, he was required to do a great deal more work to secure the area and that work generated an excessive amount of aggregate which, by his interpretation of his agreement with Girolametti, was his for the taking.

On March 27, 2008, Evergreen indicated that it would need an additional $20,000.00 to safely complete the job due to a dangerous condition in the form of a rock overhang which had developed during the course of the plaintiff's excavation work.   Girolametti testified at trial that Cioffoletti advised him that if the defendant did not pay a total of $20,000.00 for the job, Evergreen would leave the site in its dangerous condition.   On April 2, 2008, Girolametti paid an additional $10,000.00 to keep Evergreen on the site and on April 29, 2008, Girolametti paid an additional $5,000.00.

Throughout this period, Evergreen was removing stone and aggregate material from the site to its business location in Danbury.   How much material was removed and when it was removed are facts that were not made specific during the trial.   Both parties have made claim to the aggregate that found its way to Evergreen's business location.   The plaintiff claims that it was implicit by his comparatively low ball bid of $5,000.00 at the start of the job that he was entitled to take between 4,000 and 6,000 cubic yards of that material for resale either at his business or directly off of the 132 Federal Road site.   The testimony from both sides permits the court to find that approximately 2,500 cubic yards was taken or sold by Evergreen during the period of the project and before Evergreen was discharged.   The testimony offered at trial is that this material was valued at approximately $50.00 a cubic yard or, in total, $125,000.00.   The plaintiff claims that it removed that amount and should have been allowed to obtain an additional 2,500 cubic from the site and is seeking it as part of its damages.   The defendant offered testimony that the plaintiff has already helped itself to 2,500 cubic yards of material and is seeking $125,000.00 in additional damages.

The court finds that up until it was terminated from the job, Evergreen had a right to remove the 2,500 cubic yards, but once it was fired, it had no valid claim to any additional amounts of aggregate.

On May 12, 2008, Cioffoletti advised Girolametti that the job would cost more than anticipated and proposed a time and materials approach to the project which would charge for daily work with two men and the costs of materials.   Girolametti rejected that proposal, but acquiesced to a new total price of $30,000.00.   On May 16, 2008, the final $5,000.00 was paid, bringing the total amount paid for the job to $30,000.00.

By May 27, 2008, the dangerous condition caused by the rock overhang had grown even more dangerous and Cioffoletti informed Girolametti that the cost of the job had to be increased to $75,000.00 in view of the extent of the dangerous condition involving the ever growing overhang.   Girolametti once again reluctantly agreed out of concern for the need to remedy the situation to permit a certificate of occupancy to be obtained by the defendant.   Implicit in the agreement, according to Girolametti's testimony, was the assurance by Evergreen that it would stay on and totally remediate the dangerous rock overhang.

Throughout this period, Evergreen had been cautioned that its continued excavation in the area of the overhang was exacerbating the problem, not remedying it.

Girolametti's concern was a continued delay on the job and consequential difficulty in obtaining a certificate of occupancy if the job wasn't finished in safe and completed fashion.   It was agreed by both sides that a dangerous overhang of rock existed which now had to be removed.   The plaintiff claimed it was due to the geological aspects of the area being excavated which resulted in increasing amounts of material sliding down the rock face.   The defendant maintained that it was caused by the either intentional or negligent over excavation by the plaintiff.

Girolametti believed that the “shale” theory propounded by Cioffoletti was a poor excuse by him to attempt the time and materials basis for his invoices to 132 Federal Road, LLC and that the extra work was caused by the plaintiff's negligence or was intentionally done to increase the amount of aggregate it intended to remove from the site for its own profit.   The defendant offered considerable evidence and testimony to refute the plaintiff's claim that shale-like conditions necessitated the extra work being billed for by the plaintiff.

On August 19, 2008, Cioffoletti and Girolametti met at the Evergreen facility and in the course of addressing the concerns over Evergreen's performance, Girolametti observed drill bits and rock splitting supplies which Evergreen had purchased on a 132 Federal Road credit card and which were property of 132 Federal Road and should have been used and stored at the work site.   That observation, together with the over excavation issue caused Girolametti to advise Cioffoletti that the contract was breached and Evergreen was to terminate all work at the site which it did—without having remediated the overhang problem.

The evidence and testimony elicited at trial permits the court to find that Evergreen failed to complete the job safely and completely.

The evidence also permits the court to find that throughout the contractual period, the plaintiff manufactured false and erroneous invoices concerning its dealings with the defendant and withheld them from the defendant during the period of their contractual dealings.

The evidence also permits the court to find that as a result of the plaintiff's over excavation, the defendant was obligated to retain other contractors to remediate the overhang condition to the extent that the site was deemed safe enough to allow the defendant to obtain a certificate of occupancy after considerable time and expense.

Extensive evidence and testimony was elicited by both parties to prove their respective claims concerning the rock overhang.   The court made a site visit in the company of parties and counsel.   The court was asked to take into account the height and slope of the then existing rock wall to aid it in interpretation of the many maps, site plans, surveys and expert testimony which both sides offered into evidence during the lengthy trial.   Of particular import, according to the parties, was the court's observation and judgment as to approximately where on the base of the rock wall was the northerly most location of bore holes indicating where the drilling and blasting had ended and where the digging by the plaintiff became the sole manner of excavation.

Having considered the expert testimony, the testimony of the parties and having the benefit of the site visit, the court finds that the more credible evidence establishes that no drilling or demolition by the blaster occurred in the area in question.   That evidence upholds the defendant's allegation that the continued over excavation by the plaintiff, and not any geological frailty or inherent weakness in the face of the rock slope, was the probable cause of the extraordinary amounts of aggregate and the creation of the “cave” or overhang which ultimately cost the defendant a considerable amount of time and money to remediate.   The evidence also permits the court to find that the extent and manner of the excavation performed by the plaintiff was in contravention of the site plan of Michael Mazzucco commissioned by the defendant.   The evidence permits the court to find that Cioffoletti was made aware of those plans having been given a copy by Mazzucco and having seen them both in a construction shed and in the possession of the blaster with whom he was working.

What is in dispute, and what is the essence of this case, is whether the amount of material ultimately excavated by Cioffoletti was so excessive and so detrimental to the site as to constitute a breach of contract and negligence on his part.   His failure to make use of those plans to avoid mistakes in excavation constituted negligence on the part of Cioffoletti.

Both parties offered testimony to the effect that, initially, Girolametti would pay Cioffoletti's company $5,000.00 to move mats, build ramps and do some excavation on the site.

Through a series of invoices offered as full exhibits, a totally different compensation scenario was put into evidence.   Essentially, the plaintiff, Evergreen, between the months of March through mid-August 2008, presented the defendant, 132 Federal Road, LLC, with eight separate invoices which increased the original charge for work done by the plaintiff to $77,000.00, $55,000.00 of which was concededly paid by the defendant to the plaintiff leaving, by the plaintiff's estimation, a balance of $22,014.00.   According to further testimony by Cioffoletti, 132 Federal Road also owes the plaintiff $100,000.00 for the value of the aggregate Evergreen was not allowed to remove to its site when the defendant “threw” Evergreen off the job in breach of their contract.

Evergreen offered into evidence a series of highly questionable invoices which it created regarding the work it allegedly performed for 132 Federal Road. They are the basis for the plaintiff's claim that the defendant still owes it $22,014.00 for work it performed.   The defendant offered evidence and testimony to permit the court to find that the invoices contain reference to payments, partial payments, credits, deductions, and write offs which were never part of the parties' dealings.   There was not even sufficient evidence to find that the plaintiff actually sent any of them to the defendant.   Nevertheless, the court notes the testimony of Girolametti that he did everything on a handshake.   The defendant knew what amounts it was being charged by the plaintiff right up to the final $22,014.00, which it disputes, and any and all payments made by the defendant were ultimately credited to it despite the bizarre paper trail created by the plaintiff.   There is no evidence that the defendant suffered any ascertainable harm by the creation of those invoices or by their non-delivery.

In regard to the plaintiff's claim for the value of the aggregate left behind, Cioffoletti was questioned extensively regarding the reasons why he left the material behind, why he did not make a claim for it when he had a mechanic's lien filed against 132 Federal Road, LLC in October 2008, how he could know the exact amount of the aggregate left behind at the job site and how much material he either removed to the Evergreen site or sold to purchasers directly off of the job site while he was still working there and, most specifically, why he did not make a claim for the $100,000 worth of aggregate left behind until he commenced this action in June 2011.

He testified that his best estimate of the amount of aggregate which he claims was left on site but barred from him by the defendant's actions was 2500 cubic yards.   He offered testimony that, based on market rates, that material had a value of $50 per cubic yard for a total value of $125,000.   After deducting the expense to him of $25,000 to remove the material, had he been permitted to do so, his estimate of the value of that material left on site was $100,000, which is what he claimed as damages in this suit.

His testimony as to the actual number of cubic yards which he claimed and which has been referred to as “Evergreen's rock” during testimony, was permitted over objection and with the plaintiff's representation that he would, later in the trial, proffer expert testimony regarding the volume of aggregate which he claimed to rightfully belong to Evergreen.   The testimony of Curtus C. Jones was offered to prove that claim.   Having considered the testimony of Mr. Jones, the court finds his estimate of approximately 7,160 cubic yards of material as having been removed from the rock face to the rear of 132 Federal Road to be unavailing for the reason that he could not and did not limit that estimate to the amount of material strictly to the north portion of the rock face and did not have a reliable estimate of how much material was contained in the earthen ramp which existed at the time of his evaluation.   The court finds that the plaintiff has failed to provide the court with sufficient competent evidence to find his claim to be accurate.   Consequently, his projection as to the dollar amount of that material is equally deficient.

PLAINTIFF'S COMPLAINT

AS TO COUNT I—BREACH OF CONTRACT

The court finds that there was a valid and enforceable contract between the plaintiff, Evergreen Earth Products & Services, LLC, and the defendant, 132 Federal Road, LLC, based upon the conduct of the parties.

The court further finds that the plaintiff has failed to prove by a preponderance of the evidence that the defendant breached said contract thereby causing the damages and losses claimed by the plaintiff in its complaint.

The court finds that the plaintiff failed to perform all services in a good and workmanlike manner in that it over excavated the site to the extent that it created an unworkable and dangerous condition which the defendant was obligated to remediate.   For that reason, the defendant is found to have not breached the contract when it directed the plaintiff to cease operations and to vacate the site, when it failed and refused to pay any additional sums to the plaintiff for its services and when it refused to allow the plaintiff to remove the aggregate on site that the plaintiff claimed was “Evergreen rock” or to compensate the plaintiff for its value.

Additionally, the court finds that the plaintiff, by its own breach of said contract, is not entitled to what it describes in its complaint as the bargained for benefits of the parties' contract, actual, incidental and consequential damages.

AS TO COUNT II—COMPLAINT ON ACCOUNT

Having found as to Count I that the plaintiff has failed to prove its allegation that the defendant has breached the contract of the parties, the court further finds that the plaintiff has failed to meet its burden of proof that it is entitled to the amounts claimed by it as actual, incidental and consequential damages in this count.

AS TO COUNT III—UNJUST ENRICHMENT

Having found that there was a valid and enforceable contract between the parties and that the plaintiff, itself, breached that contract and was not entitled to the payment it sought in its complaint, the court finds that the plaintiff is precluded from seeking equitable relief in the form of claims for unjust enrichment.

“Plaintiffs seeking recovery for unjust enrichment must prove ‘(1) that the defendants were benefitted, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of the payment was to the plaintiff's detriment.’  “ Bolmer v. Kocet, 6 Conn.App. 595, 612–13 (1986) as cited in Polverari v. Peatt, 29 Conn.App. 191, 200–01 (1992) (emphasis added).

AS TO COUNT IV—QUANTUM MERUIT

The court, having found that the parties had an enforceable contract and that the plaintiff, itself, breached that contract thereby causing damages and losses to the defendant, further finds that there is no reasonable value to the services of the plaintiff other than the value which it has alleged to have received for its services prior to its breach of the contract.

“A party may not recover the reasonable value of services rendered, pursuant to the doctrine of quantum meruit, when the actions for which it seeks relief were governed by an express contract.”  David M. Somers & Associates, P.C. v. Busch, 283 Conn. 396, 408 (2007).

For the foregoing reasons, the court denies the plaintiff's claim for an award based upon the reasonable value of its services.

AS TO THE DEFENDANT'S COUNTERCLAIM

COUNT I—BREACH OF CONTRACT

For the reasons stated herein above, the court finds that there was a valid and enforceable contract between the plaintiff, Evergreen Earth Products & Services, LLC, and the defendant, 132 Federal Road, LLC.

The court further finds that for the reasons stated herein above, that the plaintiff did breach its contract with the defendant by its failure to meet its obligations under the contract in that it failed to perform the job for which it was retained and paid in a safe and complete manner.   By over excavating the site it created a dangerous overhang in the rock wall which had to be remediated by the defendant after the plaintiff was properly terminated from the job, at great cost and delay to the defendant.

AS TO COUNT II—NEGLIGENCE

The court finds that the excavation procedures of the defendant were not in compliance with the site plan which had been commissioned by the property owner, the defendant, 132 Federal Road, LLC which the plaintiff is found to have been made aware of both prior to its commencement of its work on site and after the dangerous condition was first observed.   The plaintiff's negligence was due in part to its failure to make use of the site plan.   The defendant provided expert testimony which permitted the court to find that the plaintiff performed its excavation in an unsafe and negligent manner which was contrary to industry standards as alleged in the counterclaim.

The defendant is found to have proven negligence on the part of the plaintiff by a fair preponderance of the evidence.

The court further finds that as a result of the plaintiff's negligent over excavation of the site, a dangerous condition was created in the form of a large overhang on the rock wall which had to be remediated by the defendant at great cost for which the plaintiff is directly responsible.

AS TO COUNT III—RESTITUTION

While the evidence elicited at trial permits the court to find that the plaintiff breached its contract with the defendant by not completing its duties under the contract and, further, that the plaintiff was negligent in the performance of its duties, the court does not find that the plaintiff intentionally conducted itself in bad faith or engaged in deception and misrepresentation of its skills and abilities to perform the work in a safe and workmanlike manner.   The defendant, by its own testimony, hired the plaintiff after many years of working together with it and being familiar with its capabilities.   As for the fabricated invoice claim, Girolametti testified that he dealt with Cioffoletti, the plaintiff, on a handshake and that he was informed of every increase in the total cost of the job by Cioffoletti and paid every increase based on what was reported to him and that he was credited with every one of those payments.   There was no testimony that the highly questionable manner in which the invoices were generated by Evergreen caused 132 Federal Road any damages.   For those reasons the court finds that the defendant has failed to meet its burden of proof regarding the allegations in Count III—Restitution.

AS TO COUNT IV—VIOLATION OF THE CONNECTICUT UNFAIR TRADE PRACTICES ACT (CUTPA)—CONN. GEN. STATUTE SEC. 42–110a

Although the defendant has alleged that the over excavation was intentionally done by the plaintiff in an attempt to extort money from the defendant, the evidence offered was insufficient for the court to make that finding.   The court has found that the excavation performed by Evergreen was negligent in that it was done in total disregard of the site plan commissioned by Girolametti and was unacceptable by industry standards.   While that argument was not definitively resolved in view of the contradictory evidence offered at trial, the court cannot find that the defendant has proven its allegation that the plaintiff's malfeasance was done with the intent to defraud the defendant or to extort money from it.

As for the allegation that the questionable invoices and the false representation that all of them were actually provided to the defendant, those facts do indicate an attempt by the plaintiff to prevent the defendant from tracking the defendant's payments.   However, as noted above, the defendant did not prove that those acts of the plaintiff caused the defendant to sustain any appreciable loss.   It was informed of each cost overrun and for its own reasons agreed, albeit begrudgingly, to pay each and was fully credited with each payment.

As for the allegation that the plaintiff used the credit card of 132 Federal Road to purchase drill bits and other items to be used at the site and then retained them at Evergreen's business location in contravention of the parties' agreement, the evidence established that Evergreen was under contract to continue to use them on site until the very day that Girolametti went to Evergreen's offices and, upon seeing them, informed Cioffoletti that Evergreen was no longer to continue working at the site.   At that time Cioffoletti surrendered them to Girolametti.   There was no evidence or testimony that Evergreen ever intended to permanently deprive the defendant of those items.   Again, while there was evidence of questionable practices by Evergreen, there was no evidence that the defendant suffered an ascertainable loss from those acts as required by CUTPA.

For those reasons, the court finds that the defendant has not met its burden of proof as to this count alleging CUTPA violations.

ORDERS

Having found that the plaintiff, Evergreen Earth Products & Materials, LLC, breached its contract with the defendant, 132 Federal Road, LLC, by its negligent over excavation of the site and by its failure to perform its contractual duties in a safe, complete and workmanlike manner, the court awards judgment to the defendant and against the plaintiff in the amount of $178,857.23 for the costs it incurred, to remediate the condition of the site caused by the negligent and unworkmanlike performance of the plaintiff, Evergreen Earth Products & Materials, LLC. The court does not award counsel fees but does award taxable costs.

BY THE COURT,

JOSEPH W. DOHERTY, JUDGE

FOOTNOTES

FN1. The principal member of the plaintiff corporation, Evergreen Products & Services, LLC, is Robert Cioffoletti and the principal member of the defendant corporation, 132 Federal Road, LLC, is John Girolametti.   In this decision, the court uses those names in the alternative.   It is intended that acts or comments attributed to each principal member be imputed to his respective corporation..  FN1. The principal member of the plaintiff corporation, Evergreen Products & Services, LLC, is Robert Cioffoletti and the principal member of the defendant corporation, 132 Federal Road, LLC, is John Girolametti.   In this decision, the court uses those names in the alternative.   It is intended that acts or comments attributed to each principal member be imputed to his respective corporation.

Doherty, Joseph W., J.