Opinion
No. CV07-5008674 S
July 12, 2011
The plaintiffs, All Phase Builders, LLC, a Connecticut limited liability company, and William Ruiz have brought a three-count action against New City Restaurants, LLC, ("New City") a Connecticut limited liability company doing business under the trade name of The Greek Olive Restaurant; Anthony Antonakis and Anna Antonakis (husband and wife) and an unrelated LLC which owned the building in which the subject restaurant was located (Olympus Realty Partners, LLC ("Olympus")). Olympus was sued for the entire unpaid claimed balance due on theories of implied contract and unjust enrichment and was defaulted for failure to appear.
The action brought against New City and Mr. and Mrs. Antonakis alleged an oral express contract entered into by the parties. The action alleged against Mr. and Mrs. Antonakis is based on "unjust enrichment."
New City was formed on October 1, 2002.
Mr. Antonakis was the principal of Roberto's Luncheonette, Inc., a restaurant located on State Street, New Haven. In order to start a new restaurant, Mr. Antonakis, the principal owner of New City, leased real property in a building which formerly housed a Howard Johnson's restaurant. The renovation of the restaurant space and the acquisition of the equipment, fixtures and furniture was financed by Mr. Antonakis' personal investment and by a bank loan obtained from the Bank of Southern Connecticut. This loan was a line of credit for $650,000.00 secured by a mortgage on the Branford residence owned by Anthony Antonakis and Anna Antonakis.
Sometime after the middle of March 2003 William Ruiz, the principal owner of the plaintiff limited liability company All Phase Builders, LLC ("All Phase") and Mr. Antonakis, acting on behalf of New City (doing business under the trade name of The Greek Olive which is the name of the restaurant) began discussing completion of the project in accordance with the plans prepared by Mr. Hunter Smith, an architect. Mr. Ruiz was furnished with a copy of the plans. The parties verbally agreed to an amount to $150,000 to be paid to the plaintiff for the construction work. The plaintiff takes the position that the original contract amount was based upon the blue prints and designs of Hunter Smith. The plaintiff alleges that there was additional work performed for which he is entitled to be compensated. The defendant alleges that the plaintiff is due only the original $150,000. The defendant admits that there is an unpaid balance of $6,752.22. The plaintiff is seeking a judgment against the defendants in the amounts of $498 to William Ruiz and $82,714 to All Phase for a total judgment of $83,212.00
During the course of the work the plaintiff All Phase was paid in the form of checks drawn on the accounts of Roberto's Luncheonette, Inc. and New City d/b/a The Greek Olive payable to William Ruiz as an employee of Roberto's Luncheonette, Inc. and then as an employee of New City.
The work proceeded from the end of March 2003 until June 30, 2003 when a certificate of occupancy was issued by the City of New Haven. The restaurant opened on July 3, 2003.
According to the defendants, in addition to the "change orders," billings were submitted for items claimed to be paid for by Mr. Ruiz in connection with restaurant supplies delivered to the premises and claimed to have been paid for by Mr. Ruiz as an accommodation to New City in connection with the formal opening of the restaurant on July 3, 2003. According to the defendants, on each occasion where such accommodation advancements were made by Mr. Ruiz, cash payments were made to him by New City at or about the time the deliveries were made (most of which charges were incurred after All Phase had completed its renovation work).
The plaintiffs assert that the defendant, Anthony Antonakis requested that the plaintiffs, All Phase and William Ruiz demolish and remodel the Banquet Hall to match the scheme of the main space/restaurant area that was being remodeled. They assert that this request was in addition to the original agreement change orders made at the request of the defendants, Anthony Antonakis and Anna Antonakis.
The plaintiffs argue that the following work was not part of the original agreement:
All work performed in the Banquet Hall; in the public men's and ladies bathrooms; in area one, the main office the change orders consisted of, providing counter top and installing it; providing filing cabinets, moving a safe to a new location and installing a new combination; providing a key box, installing it with all new keys for the facility and covering holes; in area two, the kitchen office, the change orders consisted of providing counter top and installing it, providing filing cabinets, providing wall shelves and installing them, installing trim on existing windows, installing new telephone at the location; in area three, in the pantry/closet area the change orders consisted of finishing ceilings tiles, installing shelves from rear room, installing new door hardware on two doors; in area four, the kitchen area, the change orders consisted of tile patchwork and new tiles throughout and drains up front of cooler, 7-areas matched, 4x6 tiles on wall throughout, 16x8, 3x8 kitchen floor next to bath, base and outside corners, 15x15 walk in cooler, leveling floors throughout, 15x20 surface of new wall tiles, wall repairs and to match existing, pickup and install 6 vent covers, installation of kitchen shelving; installation of stainless steel 10x8; installed 3 soap containers, 4 paper towel holders, 1 toilet holder, insulation between the floor and cooler before tiles were installed; installing a rack on the ceiling with rods, 16" from the floor, welding 7 hood holes for inspection, prepping walls for application for stainless steel covering, organizing all kitchen appliances 32 pieces, painting metal cover for grease tap to match, covering existing vent from old bath that was eliminated, cleaning all exposed existing wall throughout, cleaning all stainless steel tables, remove grease, cleaning all existing hoods for inspection, cleaning out mop sink, twice (city sewer drain), removing drywall for electrician and reinstall after completion, removing grease from existing tiles kitchen and front area; in area five, the employees bathroom, the change orders consisted of ceiling adjustments, installing baseboard installation of new bore holes on existing doors with hardware, two holes, doorstop and proper lock, providing a cart, 2 mops, 2 brooms and one bucket; in area six, the prep/serving area was not part of the original contact; in area seven, the main entry, the change orders consisted of reinforcing metal wall studs throughout, removal of existing electrical heat and installation of tiles; in area eight, the front counter area, the change orders consisted of core drilling and installing 12 pipe swivel chairs and replacing damage, 6" rubber baseboard on back wall and on the inside of front counter, installation of plywood on back wall for shelve support, additional drywall on back wall for build up, made holes on stainless steel counter for hose line of equipment, painting existing glass trim to match 43 LF, prime and painting walls throughout 2-coats, rebuilt angle soffit wall between the kitchen and the front service area, additional double layer of drywall over soffit for glass ceramic art work, installation of special art work ceramic on soffit, and round shelve desk, installation of 2 cake cooker and warmer; in area ten, the dining room, the change orders consisted of repairing window sills and cutting them back, work on window balances, paint and prime window balances, removing rotted metal frame under window sills and replace new metal insulation and plywood, frame center wall and soffit with metal studs and fire rated wood studs, support to concrete ceiling, center, bolted to concrete ceiling and inspected, repairing existing walls placing another ½" drywall on top of existing 4 layers and reinforcement; prime and paint, layout for floor tile, ceiling and light fixtures, have furniture installer fit round section into place on two corners, finish tile work under sink station; in area eleven, the bar area, the change orders consisted of making new opening to hotel entry, installation of glass doors with complete hardware, wrap area with drywall, metal framing on two other openings for handicapped access, ceiling framed and wrapped, suspended wall at bar ceiling so support cabinets — installation of fire rated double cap to support 8' metal stud wall @ 16" center above ceiling, suspended wall at bar ceiling to support cabinets installation of fire rated plywood, suspended wall at opposite of bar and angle with same details above, installation of eliason double swing door to kitchen and prep area; in area 12, the small entry to the kitchen from the bar was not part of the original contract. Also the plaintiffs assert that Areas 13 and 14 were not part of the original contract. (Exhibit 13.)
The plaintiffs assert that the defendants owe the plaintiff, All Phase $41,396.29 from "Tony's Don't Worry About List" plaintiff's exhibit 15, and owe the plaintiff, William Ruiz $498.00 for the cash payments he made as reflected on the "Tony's Don't Worry About List" (Exhibit 15), and the defendants owe the plaintiff, All Phase, an additional $41,317.71 for the change order construction services that was provided at the Greek Olive project.
To summarize, the plaintiffs seek a judgment against Anthony Antonakis, Anna Antonakis and New City in favor of the plaintiffs as follows: $498.00 to William Ruiz and $82,714.00 to All Phase for a total judgment of $83,212.00.
The defendants take the position that the alleged extra work performed by the plaintiffs was either part of the original contract; performed by others; paid for in the form of cash; or to be paid for by Olympus, the defaulted defendant which was the landlord at the time.
The defendants admit that they did not pay $6,752.22.
During his testimony, Anthony Antonakis seemed to have a faulty memory concerning much of the particulars. At other times, his testimony lacked credibility.
LAW Contract
"The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages." (Internal quotation marks omitted.) Keller v. Beckstein, 117 Conn.App. 550, 558, 979 A.2d 1055, cert. denied, 294 Conn. 913, 983 A.2d 274 (2009).
"'A contract is express if its terms are stated by the parties, either orally or in writing, and it is implied if its terms are not so stated. In other words, an implied contract is one in which some or all of the terms are inferred from the conduct of the parties and the circumstances of the case, though not expressed in words, while an express contract is one in which the parties arrive at their agreement and express it in words, either oral or written.' 17A Am.Jur.2d 48-49, Contracts § 12 (2004). 'An express contract is a contract whose terms are stated by the parties; an implied contract is a contract whose terms are not so stated.' 1 S. Williston, Contracts (4th Ed. Lord 1990) § 1:5, pp. 18-20." Schreiber v. Connecticut Surgical Group, P.C., 96 Conn.App. 731, 738, 901 A.2d 1277 (2006).
"'The existence of a contract is a question of fact to be determined by the trier on the basis of all of the evidence.' Fortier v. Newington Group, Inc., 30 Conn.App. 505, 509, 620 A.2d 1321, cert. denied, 225 Conn. 922, 625 A.2d 823 (1993). Further, the determination of whether a contract is oral or written is also a question of fact. See Union Trust Co. v. Jackson, 42 Conn.App. 413, 419, 679 A.2d 421 (1996) ('question of whether the parties had an oral contract is material, if, and only if, a trier of fact were to find that there was an oral agreement')." Avon Meadow Condominium Ass'n., Inc. v. Bank of Boston Connecticut, 50 Conn.App. 688, 695-96, 719 A.2d 66, cert. denied, 247 Conn. 946, 723 A.2d 320 (1998).
"[W]here evidence as to terms of oral contract is conflicting, it is for the trier of fact to pass upon the facts and determine the terms of the contract. 11 R. Lord, A Treatise on the Law of Contracts (1999) § 30:8, p. 95." (Internal quotation marks omitted.) A M Towing Recovery, Inc. v. Guay, Superior Court, judicial district of Hartford, Docket No. CVH 7221 (May 15, 2006, Bentivegna, J.), aff'd, 282 Conn. 454, 923 A.2d 628 (2007).
General Statutes § 52-550 provides: "(a) No civil action may be maintained in the following cases unless the agreement, or a memorandum of the agreement, is made in writing and signed by the party, or the agent of the party, to be charged: (1) Upon any agreement to charge any executor or administrator, upon a special promise to answer damages out of his own property; (2) against any person upon any special promise to answer for the debt, default or miscarriage of another; (3) upon any agreement made upon consideration of marriage; (4) upon any agreement for the sale of real property or any interest in or concerning real property; (5) upon any agreement that is not to be performed within one year from the making thereof; or (6) upon any agreement for a loan in an amount which exceeds fifty thousand dollars.
"(b) This section shall not apply to parol agreements for hiring or leasing real property, or any interest therein, for one year or less, in pursuance of which the leased premises have been or are actually occupied by the lessee, or any person claiming under him, during any part of the term."
In C.R. Klewin, Inc. v. Flagship Properties, Inc., 220 Conn. 569, 577-79, 600 A.2d 772 (1991), the court provided a history of how the Connecticut Supreme Court has analyzed oral contracts pursuant to the one-year requirement of the statute of frauds, now codified as § 52-550(a)(5). "In this century, in Appleby v. Noble, 101 Conn. 54, 57, 124 A. 717 (1924), this court held that '[a] contract is not within this clause of the statute unless its terms are so drawn that it cannot by any possibility be performed fully within one year.'" . . . In Burkle v. Superflow Mfg. Co., 137 Conn. 488, 492-93, 78 A.2d 698 (1951), we delineated the line that separates contracts that are within the one-year provision from those that are excluded from it. 'Where the time for performance is definitely fixed at more than one year, the contract is, of course, within the statute . . . If no time is definitely fixed but full performance may occur within one year through the happening of a contingency upon which the contract depends, it is not within the statute.'" (Emphasis in original.) C.R. Klewin, Inc. v. Flagship Properties, Inc., supra, 578-79. The court in C.R. Klewin, Inc. held: "We therefore hold that an oral contract that does not say, in express terms, that performance is to have a specific duration beyond one year is, as a matter of law, the functional equivalent of a contract of indefinite duration for the purposes of the statute of frauds. Like a contract of indefinite duration, such a contract is enforceable because it is outside the proscriptive force of the statute regardless of how long completion of performance will actually take." Id., 583-84.
"For a valid modification to exist, there must be mutual assent to the meaning and conditions of the modification and the parties 'must assent to the same thing in the same sense.' . . . Lar-Rob Bus Corp. v. Fairfield, 170 Conn. 397, 402, 365 A.2d 1086 (1976); see First Hartford Realty Corp. v. Ellis, 181 Conn. 25, 33, 434 A.2d 314 (1980). Modification of a contract may be inferred from the attendant circumstances and conduct of the parties. See Rowe v. Cormier, 189 Conn. 371, 372-73, 456 A.2d 277 (1983); Malone v. Santora, 135 Conn. 286, 292, 64 A.2d 51 (1949).
"Whether the parties to a contract intended to modify the contract is a question of fact. Three S. Development Co. v. Santore, 193 Conn. 174, 177-78, 474 A.2d 795 (1984); Rowe v. Cormier, supra, 189 Conn. 373. 'The resolution of conflicting factual claims falls within the province of the trial court . . .'" Herbert S. Newman Partners v. CFC Construction Ltd. Partnership, 236 Conn. 750, 761-62, 674 A.2d 1313 (1996).
"A parol modification of a contract agreed to by the parties is proper where the original agreement was not in writing and the parties to such an agreement may vary its terms by a subsequent course of dealing. 17A Am.Jur.2d 526." Wilcox Trucking, Inc. v. First Hartford Realty Corp., Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 366925 (November 23, 1992, Hammer J.).
"A modification of an agreement must be supported by valid consideration and requires a party to do, or promise to do, something further than, or different from, that which he is already bound to do." (Internal quotation marks omitted.) Harley v. Indian Spring Land Co., 123 Conn.App. 800, 822, 3 A.3d 992 (2010).
"The Restatement (2d) Contracts, § 89 takes a more liberal view. Saying that a modification 'under a contract not fully performed on either side is binding (a) if the modification is fair and equitable in view of circumstances not anticipated by the parties when the contract was made'; comment (a) does not seem to require consideration for 'fair and equitable' modifications for the evident reason that such modification would often occur at or near the time of contract formation when there are ongoing transactions between the parties, cf. 17A Am.Jur.2d 'Contracts,' § 511, p. 483-85." Southern New England Telephone Co. v. Coho, Superior Court, judicial district of New Haven, Docket No. CV 03 0476159 (September 27, 2006, Corradino, J.).
"Generally, when a builder breaches a bilateral construction contract by an unexcused failure to render substantial performance, he cannot maintain an action on the contract to recover the unpaid balance of the contract price because substantial performance, a constructive condition of the owner's duty to pay the balance, has not been satisfied. See 2 Restatement (Second), Contracts 237, comment (d); 3A A. Corbin, Contracts (1964) §§ 701, 710; see generally Lach v. Cahill, 138 Conn. 418, 421, CT Page 15607 85 A.2d 481 (1951); Sheketoff v. Prevedine, 133 Conn. 389, 392-93, 51 A.2d 922 (1947). The balance of the contract price, therefore, is not 'due' the builder. See 3A A. Corbin, supra, 701." Argentinis v. Gould, 219 Conn. 151, 157, 592 A.2d 378 (1991).
"The determination of [w]hether a building contract has been substantially performed is ordinarily a question of fact for the trier to determine . . . The analysis necessarily involves an inquiry into the totality of facts and circumstances surrounding the performance of the contract. See 2 E. Farnsworth, Contracts § 8.12. Miller v. Bourgoin, 28 Conn.App. 491, 496, 613 A.2d 292, cert. denied, 223 Conn. 927, 614 A.2d 825 (1992)." (Citation omitted; internal quotation marks omitted.) Pettit v. Hampton Beech, Inc., 101 Conn.App. 502, 506, 922 A.2d 300 (2007).
"Although such a determination may involve a factual inquiry into the intention of the parties under the circumstances of a particular case; Anderson v. Yaworski, 120 Conn. 390, 399, 181 A. 205 (1935); if the relevant inquiry turns on the language of unambiguous contractual documents, applicability of the doctrine is a question of law. Levine v. Massey, 232 Conn. 272, 277-78, 654 A.2d 737 (1995)." Mortgage Electronic Registrations Systems, Inc. v. Goduto, 110 Conn.App. 367, 374, 955 A.2d 544, cert. denied, 289 Conn. 956, 961 A.2d 420 (2008)
"The traditional explication of the test of substantial performance was that it 'contemplates the performance of all items of a building contract except for minor details, those easily remedied by minor expenditures.' Argentinis v. Gould, [ 23 Conn.App. 9, 14, 579 A.2d 1078 (1990), aff'd in part, rev'd in part on other grounds, 219 Conn. 151, 592 A.2d 1078 (1991)], citing Rosnick v. Aetna Sheet Metal Works, Inc., 146 Conn. 565, 568, 153 A.2d 435 (1959). More modern authorities set out a variety of factors for the court to consider . . ." Abatement Industries Group v. Britto, Superior Court, judicial district of Fairfield, Docket No. CV 08 5017355 (March 22, 2011, Gilardi, J.T.R.). The court in Abatement cited to 2 Restatement (Second) Contracts, § 237, comment (d) and § 241. 2 Restatement (Second), Contracts, § 241 (1981) states: "In determining whether a failure to render or to offer performance is material, the following circumstances are significant:
"(a) the extent to which the injured party will be deprived of the benefit which he reasonably expected;
"(b) the extent to which the injured party can be adequately compensated for the part of that benefit of which he will be deprived;
"(c) the extent to which the party failing to perform or to offer to perform will suffer forfeiture;
"(d) the likelihood that the party failing to perform or to offer to perform will cure his failure, taking account of all the circumstances including any reasonable assurances;
"(e) the extent to which the behavior of the party failing to perform or to offer to perform comports with standards of good faith and fair dealing." 2 Restatement (Second), supra, § 237, comment (d) provides in relevant part: "In an important category of disputes over failure of performance, one party asserts the right to payment on the ground that he has completed his performance, while the other party refuses to pay on the ground that there is an uncured material failure of performance . . . A typical example is that of the building contractor who claims from the owner payment of the unpaid balance under a construction contract. In such cases it is common to state the issue, not in terms of whether there has been an uncured material failure by the contractor, but in terms of whether there has been substantial performance by him. This manner of stating the issue does not change its substance, however, and the rule stated in this Section also applies to such cases. If there has been substantial although not full performance, the building contractor has a claim for the unpaid balance and the owner has a claim only for damages. If there has not been substantial performance, the building contractor has no claim for the unpaid balance, although he may have a claim in restitution (§ 374). The considerations in determining whether performance is substantial are those listed in § 241 for determining whether a failure is material. See Comment b to § 241. If, however, the parties have made an event a condition of their agreement, there is no mitigating standard of materiality or substantiality applicable to the non-occurrence of that event. If, therefore, the agreement makes full performance a condition, substantial performance is not sufficient and if relief is to be had under the contract, it must be through excuse of the non-occurrence of the condition to avoid forfeiture."
"There is no reason why one who has substantially performed . . . a [building] contract, but unintentionally failed of strict performance in the matter of minor details, should have imposed upon him as a condition of recovery for that of which the other party has received the benefit, the burden of showing by direct evidence its reasonable value, or why he should be deprived of all benefit of the contract which he has substantially performed . . . Edens v. Kole Construction Co., 188 Conn. 489, 494, 450 A.2d 1161 (l982)." (Internal quotation marks omitted.) Pettit v. Hampton Beech, Inc., supra, 101 Conn.App. 508.
Edens was overruled on other grounds, which pertain to a plaintiff's recovery in breach of contract actions involving a builder's failure to render substantial performance in Argentinis v. Gould, supra, 219 Conn. 152, 156.
Piercing the Corporate Veil
"Courts will . . . disregard the fiction of a separate legal entity to pierce the shield of immunity afforded by the corporate structure in a situation in which the corporate entity has been so controlled and dominated that justice requires liability to be imposed on the real actor . . ." (Internal quotation marks omitted.) Naples v. Keystone Building Development Corp., 295 Conn. 214, 231, 990 A.2d 326 (2010).
"Whether the circumstances of a particular case justify the piercing of the corporate veil presents a question of fact." (Internal quotation marks omitted.) Naples v. Keystone Building Development Corp., supra, 295 Conn. 234.
"In order to pierce the corporate veil, a plaintiff must plead and prove that the corporate shield can be pierced under either the instrumentality rule or the identity rule. Angelo Tomasso, Inc. v. Armor Construction Paving, Inc., 187 Conn. 544, 552-54, 447 A.2d 406 (1982). The instrumentality rule requires, in any case but an express agency, proof of three elements: (1) Control, not mere majority or complete stock control, but complete domination, not only of finances but of policy and business practice in respect to the transaction attacked so that the corporate entity as to this transaction had at the time no separate mind, will or existence of its own; (2) that such control must have been used by the defendant to commit fraud or wrong, to perpetrate the violation of a statutory or other positive legal duty, or a dishonest or unjust act in contravention of [the] plaintiff's legal rights; and (3) that the aforesaid control and breach of duty must proximately cause the injury or unjust loss complained of . . . The identity rule has been stated as follows: If [the] plaintiff can show that there was such a unity of interest and ownership that the independence of the corporations had in effect ceased or had never begun, an adherence to the fiction of separate identity would serve only to defeat justice and equity by permitting the economic entity to escape liability arising out of an operation conducted by one corporation for the benefit of the whole enterprise . . . Id., 553-54.
"A limited liability company is analogous to a corporation for purposes of piercing the corporate veil; the identity and instrumentality rules for piercing the corporate veil apply equally to limited liability companies and corporations. See, e.g., Litchfield Asset Management Corp. v. Howell, 70 Conn.App. 133, 147-48, 799 A.2d 298, cert. denied, 261 Conn. 911, 806 A.2d 49 (2002). Compare General Statutes § 34-133(a) (corporate veil for members of limited liability companies) with General Statutes § 33-673(b) (corporate veil for shareholders) and General Statutes § 33-1111(d) (corporate veil for corporate officers)." (Internal quotation marks omitted.) Sturm v. Harb Development, 298 Conn. 124, 131 n. 7, 2 A.3d 859 (2010).
"Courts, in assessing whether an entity is dominated or controlled, have looked for the presence of a number of factors. Those include: (1) the absence of corporate formalities; (2) inadequate capitalization; (3) whether funds are put in and taken out of the corporation for personal rather than corporate purposes; (4) overlapping ownership, officers, directors, personnel; (5) common office space, address, phones; (6) the amount of business discretion by the allegedly dominated corporation; (7) whether the corporations dealt with each other at arm's length; (8) whether the corporations are treated as independent profit centers; (9) payment or guarantee of debts of the dominated corporation; and (10) whether the corporation in question had property that was used by other of the corporations as if it were its own." (Internal quotation marks omitted.) Litchfield Asset Management Corp. v. Howell, supra, 70 Conn.App. 152-53.
While this language pertains to cases involving piercing the corporate veil where the issue of control pertains to the control of one corporation over another, Connecticut courts have also utilized this language in cases involving piercing the corporate veil where the issue was an individual's control over one corporation. E.g., Breen v. Judge, 124 Conn.App. 147, 153, 4 A.3d 326 (2010).
"'The concept of piercing the corporate veil is equitable in nature . . . No hard and fast rule, however, as to the conditions under which the entity may be disregarded can be stated as they vary according to the circumstances of each case.' . . . Angelo Tomasso, Inc. v. Armor Construction Paving, Inc., supra, 187 Conn. 555-56. 'Ordinarily the corporate veil is pierced only under exceptional circumstances, for example, where the corporation is a mere shell, serving no legitimate purpose, and used primarily as an intermediary to perpetuate fraud or promote injustice.' . . . Id., 557. The improper use of the corporate form is the key to the inquiry, as '[i]t is true that courts will disregard legal fictions, including that of a separate corporate entity, when they are used for fraudulent or illegal purposes. Unless something of the kind is proven, however, to do so is to act in opposition to the public policy of the state as expressed in legislation concerning the formation and regulation of corporations.' . . . Id., 559." Naples v. Keystone Building Development Corp., supra, 295 Conn. 233-34.
"The case law applying the principles articulated in the leading case of Angelo Tomasso, Inc. v. Armor Construction Paving, Inc., supra, 187 Conn. 544, is illustrative with respect to the equitable nature of piercing the corporate veil, and shows that courts decline to pierce the veil of even the closest corporations in the absence of proof that failure to do so will perpetrate a fraud or other injustice. Compare Campisano v. Nardi, 212 Conn. 282, 293-94, 562 A.2d 1 (1989) (rejecting attempt to hold principal of dissolving construction corporation personally liable for breach of contract when '[t]he plaintiffs do not claim that the [principal] used his control over the corporation in order to commit or to avoid liability for any personal wrongful act'), and Lewis v. Frazao Building Corp., 115 Conn.App. 324, 336-37, 972 A.2d 284 (2009) (upholding finding of fact declining to pierce corporate veil because, although construction company left incomplete work, 'there was no wrongful or deceitful intent on its part' or principal's part, and even if principal 'did have complete control of [the construction company] no fraud was committed that resulted in an injury to the plaintiff'), with Connecticut Light Power Co. v. Westview Carlton Group, LLC, 108 Conn.App. 633, 638-41, 950 A.2d 522 (2008) (proper to pierce corporate veil when principal was sole owner and manager of corporation that never filed corporate tax returns, lacked financial records to prove claim that it was losing venture, and then sold apartment buildings with principal's knowledge of power company's intention to file motion to be made receiver of rents and transferred all proceeds to its principal, leaving corporation without assets to pay electric bills)." Naples v. Keystone Building Development Corp., supra, 295 Conn. 234-35.
Unjust Enrichment
"To prevail on a claim of unjust enrichment, the plaintiff must prove (1) that the [defendant was] benefited, (2) that the [defendant] unjustly did not pay the [plaintiff] for the benefits, and (3) that the failure of payment was to the [plaintiff's] detriment." (Internal quotation marks omitted.) Hall v. Bergman, 296 Conn. 169, 182 n. 7, 994 A.2d 666 (2010).
Findings:
From the credible evidence, the court makes the following findings:
Both All Phase and New City are limited liability companies and the court does not find facts to justify "piercing of a corporate veil."
There was a contract for $150,000 and All Phase performed additional work for New City for which New City was unjustly enriched. However, some of the additional work was performed for Oympus and that will not be included in this judgment as it relates to New City.
The court finds that work performed on the roof and relating to leaks which were evidenced in Exhibits B; C; D and E are owed by Olympus. These amounts totaled $23,620.79.
New City owes All Phase $59,591.21.