Opinion
No. CV 08-6003120-S
October 25, 2010
MEMORANDUM OF DECISION
On February 23, 2009 judgment was rendered after default by Bentivegna, J., against Clay Hill Associates, Ltd. Partnership, Greater Hartford Realty Management Corporation and the Estate of Richard Weaver-Bay each in the amount of $5,456.22. Richard Weaver-Bay passed away during this suit and was replaced by the Estate of Richard Weaver-Bay. At that point costs were awarded in the amount of $660.37. Accordingly, this case which was heard before this Court as a court trial was held on September 1, 2010 with the claims still viable against D.R.D., Inc., Milano Corporation, Inc., and Sovereign Asset Management, LLC.
Certain oral stipulations on the record were made by counsel for the plaintiff and the counsel for the various defendants against whom claims were still being made. They are as follows:
1. The plaintiff was hired to perform architectural services for the following projects:
a. Capewell Matter
b. The Clay Hill Project
c. The Vine Street Project
d. The Branford Property Project
e. The Berlin School Project
2. The amounts set forth due to the plaintiff on each project are as set forth in plaintiff's Exhibit 64. The claims in plaintiff's 64 on the Capewell matter project and the Branford property project have been paid in full to the plaintiff. There is no dispute that these monies were paid on these projects and there is no dispute as to the amounts claimed and the amounts due on each of the projects.
The agreed upon amounts due are:
$194,814.19 A. Clay Hill Project $6,053.92 B. Vine Street Project $2,428.36 C. Berlin School Project $203,296.47
From the totality of the evidence, the Court finds that Milano Corporation, Inc., (hereinafter also "Milano") was the developer of these projects and that D.R.D., Inc., (hereinafter also "DRD") was the general contractor for these projects. Sovereign Asset Management, LLC (hereinafter also "Sovereign") is owned equally by David Mesite (hereinafter also "Mesite") and Jason Ziegler (hereinafter also "Ziegler"). Sovereign is a property management, LLC. In addition to being a property manager, Mesite signed various documents as Vice President of Development of Sovereign Asset Management, LLC.
There were only two witnesses testifying in this trial. The first was Mesite and the second was William Crosskey, the sole owner of the plaintiff (hereinafter also "Crosskey"). Briefs were to be filed on September 22, 2010 and reply briefs on September 29, 2010. They have been filed.
STANDARD OF REVIEW:
"The plaintiff in a civil case sustains its burden of proof as to any essential element in its cause of action if the evidence, considered fairly and impartially, induces in the mind of the trier, a reasonable belief that it is more probable than otherwise that the facts involved in that element are true." Busker v. United Illuminating Co., 156 Conn. 456, 458 (1968). This is also known as proof by a preponderance of the evidence.
In addition, this Court evaluates the credibility of the witnesses based upon their appearance and demeanor on the witness stand, the consistency or inconsistency of their testimony, their memory or lack thereof of certain events, whether they were candid and forthright or evasive and incomplete, their manner in responding to questions and their interest or lack of interest in the case.
Also, the Court evaluates general credibility on the basis of other testimony in this case as well as documents in evidence as to their consistency or inconsistency with other evidence.
The burden is on the plaintiff to prove his allegations by a preponderance of the evidence. The same is true for the defendants on their special defense.
Plaintiff has cited C.G.S. § 34-314(a) which states, inter-alia, "an association of two or more entities to carry on a business for profit forms a partnership whether or not the persons intend to form a partnership." He also cites C.G.S. § 34-322(1) which states that each partner/venturer is an agent of the partnership and can bind the partnership.
The plaintiff also cites C.G.S. § 34-327 for the proposition that a joint venture under Connecticut law is treated as a partnership and liability is equal among all venturers. The Court cannot find that in said section. However, in Black's Law Dictionary, sixth edition, joint venture is defined as "A legal entity in the nature of a partnership engaged in the joint undertaking of a particular transaction for mutual profit."
More importantly however, is the description of a joint venture in the case of Doe v. Yale University, 252 Conn. 641 (2000) which states, inter-alia, as follows: "Moreover, the similarities between joint ventures and partnerships, . . . are significant. Our case law has long recognized that a joint venture also referred to as a joint adventure or joint enterprise, exists where two or more parties combine their property, money, efforts, skill or knowledge in some common undertaking . . ." (Emphasis added.) Id. 673 . . . "[W]hile the distinction between a partnership and a joint adventure is often very slight, it is commonly considered that, as respects the character of the enterprise, a partnership is formed for the purpose of carrying on a general business of one sort or another, and a joint adventure is more commonly limited to a single transaction or course of transactions." (Emphasis added) . . . "Although regarded as an informal partnership, joint ventures are generally governed by the same principles." Id. 674 . . . "and we conclude that although a profit motive is often recognized as one factor suggesting the existence of a joint venture, the absence of a profit motive is not fatal, as a matter of law, to the existence of a joint venture." Id. 678.
Even though the lack of a profit motive is not fatal as stated above to a joint venture, based upon the facts hereinafter set forth, the Court makes a strong inference that Mesite and Sovereign as well as DRD and Milano were in a course of conduct for the purpose of obtaining some compensation and/or profit. The Court cannot believe that Mesite and Sovereign were involved as described hereafter without getting some compensation or profit for their activities.
ISSUES AND FINDINGS: 1. Credibility:
The Court finds that both witnesses were credible during their testimony. Both witnesses did testify that they trusted each other from past dealings. However, the Court has to reduce its evaluation of Mesite's credibility by the evidence which shows that in an effort to avoid paying the bills justly due to the plaintiff he utilized various companies, corporations or LLCs to move around monies due the plaintiff with hopefully avoiding the liability in question when in fact there was a joint venture of DRD, Milano and Sovereign. Bills that were paid were paid from the funds of whatever entity had the funds at that time. The Court finds based upon the evidence hereinafter set forth that there was a joint venture by these three entities and it was done in part to avoid paying the bills justly due to the plaintiff. Mesite was part and parcel of all of this using different titles and representing different entities when they all shared the same address at 60 Popieluszko Court in Hartford. Not only did they share the space in the offices, but they shared the personnel at the offices, the equipment such as copy machines, telephones, fax machines, etc. They were in effect operating as one group; namely, DRD, Milano and Sovereign. The Court concludes that Mesite broke the trust that had existed between him and William Crosskey.
Even Mesite's equal partner in Sovereign, Jason Ziegler, became involved by signing checks to pay for obligations of the other two entities of the joint venture.
2. Are DRD and Milano Directly Liable to the Plaintiff For the Amounts Upon Which There is an Agreement?
The short answer is Yes.
Milano was the developer and DRD was the general contractor on the various projects for which the plaintiff rendered architectural services. The architectural work was done, there was part performance by all the parties, Crosskey, DRD and Milano, and DRD paid for some of the projects directly. Accordingly, no evidence has been presented that there is a violation of the Statute of Frauds. There was a contract, although oral in nature, between Crosskey, Milano and DRD. The plaintiff performed, as agreed, his contractual obligations. These defendants are liable for Breach of Contract for not paying the monies due, and Unjust Enrichment for receiving the benefit of the architectural services without paying for them.
3. Is Sovereign Obligated to the Plaintiff as Part of a Joint Venture with DRD and Milano for the Monies Admittedly Owed to the Plaintiff?
The short answer is Yes.
Sovereign through Ziegler and Mesite were deeply involved in obtaining the plaintiff for his architectural services for these various projects which were developed by Milano and constructed by DRD. Mesite in these projects signed documents on behalf of Sovereign Development Company as President and as defendants' original brief admits on page two Mesite was listed as Vice President of MCI (Milano Corporation). Mesite representing all three entities in this joint venture was the one who hired the plaintiff to do the work without initially telling him who would be developing and constructing the projects. However, there was no question that Mesite, and to a lesser degree, Ziegler, were involved on behalf of Sovereign in representing the other two entities.
For example Mesite in his testimony said that he was the project manager for Anchor Reef Club at Branford and had hired Crosskey to do work down there. Mesite also testified that "Sovereign . . . was a company that had resources at that time to satisfy the invoices that are mentioned here" . . ."my belief is yes that the `invoices' were done for work for Milano Corporation or DRD or it may have been part of the work for Anchor Reef Club."
This Court then asked the following question: "and Sovereign Asset Management of which you are 50% owner paid those invoices because Sovereign had money and Milano and DRD didn't." The witness answered: "that's correct sir."
Mr. Mesite, in a question from the Court stated that he did project management for DRD, that he was doing things on behalf of DRD during the period of time when Crosskey was hired and that he was also acting on behalf of Milano Corporation during that period of time. See trial transcript page 25, lines 17-27. On page 26 of the trial transcript, Mesite admitted that he was acting on behalf of Sovereign, and on behalf of Anchor Reef Club as well. On page 29 of the trial transcript Mesite testified that the plaintiff only did work for DRD and Milano but the bills were paid by Sovereign to Mr. Crosskey's company. Without going into every detail, it is clear that Sovereign who was technically a property manager also used the title of Property Development Company and made payments to Crosskey, the plaintiff, on behalf of DRD and Milano throughout the period of the work being done by the plaintiff.
There are many instances of testimony which the Court will not repeat here that show that Mesite acting on behalf of Sovereign was actively involved in the hiring of the plaintiff for work to be done on property to be developed by Milano and constructed by DRD. Mesite (Sovereign) issued checks for payment of projects in which Milano and DRD were involved. Why would Mesite/Sovereign pay funds to Crosskey and to others in payment of bills incurred by DRD and Milano? Was Mesite/Sovereign to be paid back? He certainly didn't volunteer to put up his own money for them as a gift to them. There is no evidence of that. Paying their bills without somehow being compensated for same boggles the imagination. Further, the sharing of the office with DRD and Milano as well as sharing the personnel at the office, telephones, fax machines, etc., certainly was a joint enterprise or venture and/or partnership.
Additional examples of the intra relationship between Sovereign, DRD and Milano can be found as follows:
1. Plaintiff's Exhibit One forwarding a check in the amount of $369.55 written by Sovereign Asset for Counts One through Three of the complaint and check for $2,005.65 is for Counts 13-15.
2. Plaintiff's Exhibit Three which is a letter from Mesite dated September 25, 2006 which states, inter-alia, "Currently I am working with Crosskey Architects on several projects through Milano Corporation Inc."
3. Plaintiff's Five a letter dated August 3, 2007 from the plaintiff addressed to Mr. David Mesite, Vice President of Milano Development Corporation.
4. Plaintiff's 17 a check from J. Ziegler equal partner of Mesite and Sovereign to the plaintiff dated June 28, 2006 acting on behalf of Clayhill Associates which is also listed at the same address 60 Popieluscko Court in Hartford.
5. Plaintiff's 20 a letter from the plaintiff to Mr. David Mesite Milano Development Corp., 60 Popieluscko Court, Hartford, Connecticut regarding the Berlin School.
6. Plaintiff's 26 agenda of April 27, 2006 of the Berlin Planning Zoning Commission at which the plaintiff was appearing on behalf of the Berlin School Project which was to be developed by Milano and constructed by DRD.
7. Plaintiff's 27 from the plaintiff sending the legal notice for the Berlin hearing not to DRD or Milano but to David Mesite.
8. Plaintiff's 28 from the plaintiff dated June 1, 2006 addressed to David Mesite, Milano Development Corp., regarding the Berlin School conversion to housing.
9. Plaintiff's 32 from Mesite to the plaintiff dated June 21, 2006, Mesite sending zoning information and asking to be informed as to what "our plans are."
There are several additional pieces of correspondence between Mesite of Milano Corporation and the plaintiff regarding the Berlin Project, Mesite of course being Sovereign.
10. Plaintiff's 58 a letter from David A. Mesite, Vice President of Development, Heritage Crossing LLC care of Milano Corporation to Ms. Valerie Ferro, Vice President of the TPA Design Group enclosing a check for $3,009.05 regarding payment to her, a subcontractor of the plaintiff, regarding the Berlin Project.
11. Plaintiff's 63 a letter dated July 6, 2010 from Attorney Peikes to Attorney Purtill representing Crosskey enclosing a client's fund check in the amount of $1,135.45 advising that this should clear up all accounts except for Vine Hill, Clay Hill and the Berlin School.
12. Defendants' H. an invoice to Mesite of Milano Development Corp., dated April 1, 2006 from the plaintiff regarding the Berlin School Housing in the amount of $3,242.50 showing an inter relationship between Mesite who is Sovereign and Milano and the Berlin School Housing Project.
Moreover, the only sign in front of the building that housed the various defendants including Sovereign was a sign that said only "Sovereign Asset Management."
It is abundantly clear based upon the testimony of Mesite and the plaintiff as well as the exhibits mentioned that there existed at the time these events occurred a joint venture of Milano, DRD and Sovereign resulting in the invoices described. Mesite and his partner, Jason Ziegler, who constituted Sovereign, conducted their business regarding the projects at issue as a joint enterprise, joint venture, partnership by the transfer of funds as one example and by the different aspects of defendants' conduct, even a conspiracy among Milano, DRD and Sovereign acting through Mesite and Ziegler to deprive the plaintiff of the funds justly due him. Sovereign through Mesite and Jason Ziegler were part and parcel of the projects subject of this lawsuit, and Sovereign was deeply involved with DRD and Milano not only in the moving around of funds and utilizing funds of Sovereign to pay the bills of DRD and Milano but also in sharing offices, mixing personnel, resources, supplies and equipment. This and other activities described above all constitutes a joint enterprise/venture/partnership and all three defendants Sovereign, Milano and DRD are jointly and severally liable to the plaintiff for breach of contract, quantum meruit and unjust enrichment.
CONCLUSION:
Accordingly, judgment is hereby entered on behalf of the plaintiff against Milano, DRD and Sovereign in the agreed-upon amount of $203,296.47 with post judgment interest at 10% per annum.