Opinion
No. CV 04-0083317
January 12, 2006
MEMORANDUM OF DECISION
The Complaint in this matter is in two counts, the first alleging breach of contract and the second alleging a violation of the Connecticut Unfair Trade Practices Act (CUTPA). The plaintiff seeks compensatory damages for the breach-of-contract claim and punitive damages and attorneys fees pursuant to CUTPA. In his original Answer, the defendant denies the operative allegations of plaintiff's complaint, and alleges special defenses asserting that the plaintiff herself was in breach of contract and attempted to unilaterally modify the contract without the defendant's consent. In that Answer, the defendant admitted paragraph 8 of the first count of plaintiff's complaint, which paragraph asserted that the plaintiff had made payments to the defendant in the amount of $8,000. In an Answer filed to conform to the proof presented at trial that only 3 payments of $2,120 had been made, defendant denied receipt of $8,000.
In December of 2001, Mary Ellen Briga and Janis Briga met with Louis D'Amico at property the Brigas owned, but on which they had not as yet constructed a home, in Marlborough, Connecticut, to devise and procure an estimate for clearing some trees from an area on that property. The boundaries of the removal area had been delineated by trees that had been marked with duct tape and ribbons were put on certain trees to reflect that they should not be taken down. Mr. D'Amico's recollection of the first meeting was that he offered to do the job for $12,000, however, a reduced price of $10,000 was eventually agreed upon in exchange for the opportunity of Mr. D'Amico taking certain of the downed trees for their lumber value.
Mr. D'Amico prepared a proposal on a preprinted form, the caption of which read "Louie's Tree Service, LLC." The form also stated: "Owner: L. D'Amico." This proposal was signed by Mr. D'Amico. As to the work to be done, the proposal stated that it was at the property of "Mary Ellen Briga," the only plaintiff in this action. Mr. D'Amico delivered the proposal to the home of the Brigas, and he left the written proposal with them in their home after they indicated that they wanted to look it over before signing it. Mr. D'Amico telephoned some time after that, indicating that he had time to start the work, and he was advised by Mrs. Briga that she was all set; he could start the work; and she would get the signed proposal to him. Mr. D'Amico contends that, based on these representations, he began work on the property. Louis D'Amico claims that, at some time later during the course of his work at the site, Mary Ellen Briga told him she had signed the contract and he asked her to simply leave it in his truck at the site. It is clear is that he did not review the signed proposal until after this lawsuit was commenced, apparently assuming that the proposal had simply been signed by the Brigas when Mrs. Briga left it. There was no evidence whatsoever that either Mr. or Mrs. Briga advised Mr. D'Amico that they had changed the terms of the proposal.
Mary Ellen Briga did not testify at trial. Her husband, Janis Briga, testified that he is quite certain that the proposal was signed and mailed to Mr. D'Amico before Mr. D'Amico commenced the work. The copy of the proposal presented at trial is signed only by Mary Ellen Briga and, as to the work to be performed, it provides:
Clear 4 Acers (sic) + ( as walked) Take wood. Grd + pull stps. Chips stay on sight (sic) Level with bulldozer Finishing ( Bury stumps too large to grind.)
There is an attempted "white out" in the acreage description and the prior entry appears to be: "approx. 5." The 2 entries in boldface above were not part of the proposal submitted by Mr. D'Amico and, indeed, were added by Mrs. Briga before she signed and returned the proposal. Mr. D'Amico testified that, not only did he never agree to "bury the stumps," but also that he could not do that under state and local law prohibiting same due to the potential risk of contamination of well water. The written document provides for a flat cost of $10,000 to be paid in 5 installments.
The work commenced some time in December 2001 and continued for approximately 3 weeks into January when the defendant did not do any more work. During the period of time that work was in progress, Mr. Briga would come to the site approximately every third day and Mrs. Briga would come just about every day. Payments, by check, were given to Mr. D'Amico or one of the workers on the site, at the site, and usually after a request for same had been made. According to Mr. D'Amico, the appropriate amount of work had always been completed upon his request for payment and, because of the Brigas' frequent appearance at the site, the progress could be verified by them before payment.
According to Mr. D'Amico, during the course of the work, Mr. Briga kept expanding the extent of the work to be completed — for example, as to some of the large trees that were to remain on the property, there was a request for pruning of those trees, which request entailed labor additional to that of the contract. In addition, there were several requests for cutting down trees that were not originally contemplated at the time of the proposal, thus expanding the area to be cleared. According to Mr. D'Amico, the only named plaintiff, Mary Ellen Briga, told him that she was pleased with the work that was being accomplished. According to Mr. D'Amico, upon completing about 80% of the work, he sought a fourth installment payment and he stopped work when he was not paid. In a phone message left on the plaintiff's machine some time thereafter, Mr. D'Amico related that he felt he had completed all the work the contract required, except for one large tree in the front of the property. At trial, Mr. D'Amico also admitted that he had yet to "flatten out" the property and that he had not as yet ground the stumps when he stopped work on the project.
According to Mr. D'Amico, the original proposal for the work was premised on the amount of time estimated to complete the job, at the rate of $1,250 per day, and the additional work requested during the project expanded the time on the job. Indeed, it appears that at the time Mr. D'Amico stopped work, the crew had already worked one additional day over the estimated time.
Mr. Briga denies making any additional requests for work outside of the proposal specifications and further testified that four payments had been made. As to the payments made to Mr. D'Amico, the documentary evidence reveals only 3 checks, each in the amount of $2,120 (tax added even though the contract specifies "tax included" in the $10,000 price listed). The first two of these checks is from the account of Janis and Mary Ellen Briga with an Amston address listed. The third check is drawn from another bank and from an account listing Irene Alise Briga, Janis M. Briga and Janis I. Briga, all with a Colchester address. There was no documentary proof at trial of the claimed fourth payment. Mr. Briga testified that this fourth payment was through a newly offered account for which he did not have records readily available and/or that might not be available. He further explained that this fourth payment was in the nature of a "loan" for which he had to pay interest, made in response to some mail solicitation because the fact that the Brigas could not have otherwise paid at that time. The evidence reflects, however, that in March 2005 discovery production responses, signed under oath by the named plaintiff, Mary Ellen Briga, in response to a May 2004 discovery request for "all canceled checks regarding payments made by you to the Defendant as alleged in paragraph 8 of the first and second counts of the complaint," the named plaintiff had provided only copies of the three checks set forth above. Mr. D'Amico testified that he had sought discovery as to the payments because he had no record or recollection of payment of the $8,000.
By the time of trial, the Brigas had done considerably more work on the property at issue, including the construction of a house. Mr. Briga claimed that, although there was no barn on the property, the plan was to have their horse use this cleared, then seeded, and eventually grassy area as a pasture, and he asserted that this was delayed 8 months because of the claimed breach of contract. He also claimed that someone else had to remove certain trees, and also had to remove the stumps.
Some time prior to November 1, 2000, Louis D'Amico had retained an attorney to create a limited liability corporation (LLC); had signed all of the documents prepared by the attorney; had paid all of the attorneys fees and filing fees for same; had received and reviewed all of the communications from the attorney as to the responsibilities and consequences of the existence of an LLC; and had set up separate bank accounts, letterhead, etc. for the newly created "Louie's Tree Service, LLC." When Mr. D'Amico was served with this lawsuit, naming him individually as a defendant, he learned from his attorney that the filing of the LLC had not been accomplished at the office of the Secretary of State for the State of Connecticut. The attorney then immediately filed a second set of Articles of Organization for "Louie's Tree Service, LLC." It is the position of Mr. D'Amico that the proper defendant in this action is the de facto limited liability corporation and that he is not personally responsible.
Conclusions of Fact and Governing Law
The defendant has asked this court to draw a negative inference because of the failure of Mary Ellen Briga to testify. Although it may have been helpful to have, first hand, the testimony of this individual, and that testimony may indeed have benefited the plaintiff, the court declines to base its findings on the lack of testimony from this individual. Instead, the court's findings are premised on the testimony and the evidence that was presented at trial and no inferences have been made.
Based on all of the evidence presented to the court, the court finds that the additions to the proposal submitted to Mr. D'Amico constituted a counter-offer that had not been accepted by Mr. D'Amico, who had already begun work on the project which he and the Brigas had discussed when the counter-offer was given to him. It is basic contract law that a change in the terms of an offer constitutes a rejection of the offer and a counteroffer. Pleines v. Franklin Construction Co., 30 Conn.App. 612, 616 (1993). Consequently, the alleged "contract" on which plaintiff premises her claim of "breach of contract" simply is not an operative contract. Furthermore, although plaintiff may argue that the continued work of Mr. D'Amico on the project constitutes his acceptance of her counteroffer, the court rejects that based on the facts found by the court. Sandella v. Dick, 53 Conn.App. 213, 220 (1999); Shulman v. Hartford Public Library, 119 Conn. 428, 433 (1935). Mr. D'Amico was never apprised by either of the Brigas that they had changed the proposal language after he had already commenced work on the project. The amended proposal was simply left in Mr. D'Amico's truck without alerting him that there were changes. The court further finds that Mr. D'Amico had completed 80% of the work he had proposed to do, and had also done additional work requested by Mr. Briga during the course of the project, at the time he sought payment for the fourth installment that was then due. That payment was not made.
In light of the court's conclusions set forth above, there is no need to address the issues as to the legal status of the defendant as it pertains to the plaintiff's claims.
There was no breach of any obligation on the part of Louis D'Amico or Louie's Tree Service, LLC, and, consequently, judgment is to enter on defendant's behalf on both the first and the second count of the plaintiff's complaint.