Opinion
CV106002137S
02-28-2018
Lyon & Billard Company v. Luis Lopez et al.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): McNamara, Kathleen E., J.
MEMORANDUM OF DECISION
Kathleen E. McNamara, Judge
PROCEDURAL HISTORY
On September 14, 2010, the petitioner Lyon and Billard filed a complaint alleging nonpayment of building materials that were purchased in 2008-2009.
On September 16, 2010, an attorney entered an appearance for the respondent. Subsequent to the filing of the attorney’s appearance, the respondent was defaulted for failure to respond to the complaint on March 6, 2015.
All parties were notified of the entered judgment in the amount of $45,841.00. Numerous attempts to reach the respondent and his counsel were unsuccessful, including interrogatories that were sent on November 11, 2015. The correspondence sent to the respondent and counsel were not returned.
On May 31, 2017, the bank execution was issued. The petitioner did not hear from either the respondent nor his attorney. Once the bank execution was enacted, an amount in excess of $14,000.00 was taken from the defendant’s account at TD Bank.
The respondent filed a Motion for Exemption from Execution on September 18, 2017. A hearing on the motion was held on November 29, 2017. At the close of the hearing, in lieu of closing summations, the parties filed briefs.
The court has considered all of the evidence presented to it and carefully considered the evidence, applicable case law, the demeanor and credibility of the witnesses, and arguments of counsel in reaching the decisions reflected in the orders that issue in this decision.
It is not denied by either party that in December 2010, Ed Goralnik, President of Lyon and Billard and Mr. Lopez came to an agreement regarding the debt that was owed. The respondent was to perform work at two of the petitioner’s business locations.
The respondent testified to the requirements he was to meet regarding the agreement. The court found the testimony of the respondent to be credible.
The first location was at the petitioner’s property at 896 Old Colony Road, Meriden, Connecticut. This work required the entire cleaning out the building before any other work could be done. This work began on December 5, 2010, until completion in April 2011.
The respondent testified that there was garbage, hazardous materials and equipment almost to the ceiling. Further testimony by Lopez revealed it was necessary, due to scope of the project, to hire nine to ten employees for a period of six to eight weeks. These employees were paid at an unskilled rate of $10.00-12.00 an hour and skilled worker at $24.00-26.00 an hour. At least one worker was skilled and certified in handling and disposing of hazardous materials.
Additionally, once the building was cleaned, the respondent was to install new windows, install a bathroom, build a trim rack, demolish part of a concrete wall, install an opening between two buildings and install a beam in the opening for support.
The second assignment was to provide industrial dumpsters from December 2010 till March 2011, at the petitioner’s locations in both Meriden and at the Washington Street. Middletown, Connecticut location. The dumpsters were dropped off, transported for dumping contents and returned to the work location repeatedly by the respondent.
LEGAL DISCUSSION
The respondent relies on the defense of accord and satisfaction. The petitioner argues that the work performed by the respondent was insufficient to settle the money owed to the petitioner. The basic elements of accord and satisfaction are (1) that there was a good faith dispute about an amount claimed to be owed; (2) that a contract of accord was negotiated to settle the claim; (3) that is was supported by consideration; and (4) that the contract was performed. Herbert S. Newman & Partners v. CFC Construction Ltd. Partnership, 236 Conn. 750, 764 (1996).
A settlement agreement, or accord, " is a contract under which an oblige promises to accept a stated performance in satisfaction of the obligor’s existing duty. Performance of the accord discharges the original duty ... Thus, [u]ntil performance of the accord, the original duty is suspended unless there is such a breach of the accord by the obligor as discharges the duty of the oblige to accept performance in satisfaction. John Morgillo v. Empire Paving, Inc., 158 Conn.App. 399, 412 (2015).
The petitioner is required to prove that the respondent breached the settlement agreement. Based on the testimony and evidence presented, the court finds that the respondent completed all work required in satisfaction of the agreement. The court further finds that there was not a breach in the settlement agreement.
CONCLUSION
Therefore, the respondent’s motion is granted. Accordingly, the court enters judgment in favor of the respondent for having completed the work in satisfaction of the debt. All funds held by TD Bank are to be returned to the respondent.