Summary
In Duplissie v. Devino, No. CV000158151, 2005 WL 1391107 (Conn.Super. May 9, 2005), the Connecticut Superior Court found that, "although the term `periodically' is not defined by statute, the manifest purpose of the provision is to cover employment wages that are payable on recurring, fixed intervals."Id. at *5.
Summary of this case from Quiello v. Reward Network Establishment ServicesOpinion
No. CV 00-0158151
May 9, 2005
MEMORANDUM OF DECISION
This is an action for money damages brought by the plaintiff Glenn Duplissie, against his former employers, Kenneth M. Devino and Building Structures, Inc. ("BSI"). The plaintiff claims that the defendants breached various oral agreements regarding the compensation to be received by the plaintiff prior to the termination of his employment. This action was tried to the Court on December 15, 2004 and December 16, 2004. The parties submitted post-trial briefs and the Court heard oral argument on March 2, 2005. The Court finds for the plaintiff in part, and the defendants in part, as set forth below.
I. FINDINGS OF FACT
The Court finds the following facts. In February 1986, the plaintiff Glenn Duplissie, was hired by the defendant, Kenneth Devino, as a full-time construction manager. Mr. Devino, doing business as Industrial Development Group ("IDG"), built commercial and industrial buildings in and around Waterbury, Connecticut on land owned by himself and others through various real estate partnerships. Mr. Devino and IDG would then lease the buildings to various tenants.
When Mr. Duplissie began working for Mr. Devino, he received base wages of $400 per week, plus additional benefits of paid sick and vacation days and health care insurance. After a short 90-day trial period, Mr. Duplissie's base wages were increased to $600 per week. Until the employment relationship ended on August 22, 1997, Mr. Duplissie received periodic increases to his base salary.
A. Oral Agreement for Lump Sum Compensation
Prior to beginning full-time employment with Mr. Devino, Mr. Duplissie owned and operated a small construction business that built custom additions to residential properties and performed other simple carpentry and landscaping services. Mr. Duplissie continued to perform this work in his spare time after he became employed full-time by Mr. Devino.
Sometime in June of 1986, Mr. Devino learned that Mr. Duplissie continued to perform construction work for others. Mr. Devino discussed the matter with Mr. Duplissie and the parties orally agreed that, in exchange for Mr. Duplissie foregoing any additional "moonlighting" activities, Mr. Devino would pay Mr. Duplissie a lump sum of $10,000 each July while Mr. Duplissie remained employed by Mr. Devino. The parties agreed that this payment was to be in addition to Mr. Duplissie's base salary and other benefits. Mr. Devino and Mr. Duplissie also agreed that the plaintiff would have the option of temporarily foregoing receipt of the yearly $10,000 payment and, instead, allow it to be held by IDG. Any funds temporarily retained by IDG were to accrue interest at the compounded rate of 10% per annum for the benefit of the plaintiff until such time as he elected to exercise his right to receive the funds.
Pursuant to this agreement Mr. Devino paid the plaintiff the lump sum compensation in 1987, 1988 and 1989. In 1990, the defendant asked the plaintiff pursuant to their oral agreement, to defer receiving the $10,000 payment for that year because of the declining real estate market. The plaintiff agreed. The parties reaffirmed their prior agreement that the plaintiff would receive interest for any sums that the plaintiff allowed Mr. Devino to hold back.
In 1991, Mr. Devino paid the plaintiff $8,500 pursuant to their oral agreement. Although this payment was made prior to the July date established by the parties' oral agreement, the Court rejects, as a factual matter, Mr. Devino's claim that these payments were discretionary bonuses that he was not obligated to make. The plaintiff never received the remaining $1,500 in lump sum compensation for that year.
In 1992, Mr. Duplissie demanded the payment of the funds, with interest, for which he was entitled from prior years. At this time, Mr. Devino paid Mr. Duplissie $8,000 as either partial payment toward this obligation or as part of the $10,000 lump sum compensation that the plaintiff was owed for that year. The Court rejects Mr. Devino's assertion that this payment constituted a loan to the plaintiff. The plaintiff never received the additional $2,000 owed for 1992.
This payment was made by a check drawn on an account of Building Structures, Inc. The Court finds that Mr. Devino used his various companies and entities interchangeably to satisfy obligations not necessarily incurred by the entity or person making the payment.
In fact, Mr. Devino voluntarily withdrew with prejudice a lawsuit he filed against Mr. Duplissie to recover the alleged loan. See Building Structures, Inc. v. Duplissie, CV 02-0169161 S (J.D. Waterbury).
Mr. Duplissie did not receive any additional lump sum compensation from 1993 until his termination on August 22, 1997.
B. Oral Agreement for 10% Commission on Profits from Building Structures, Inc.
Beginning sometime in 1989, the real estate market in the Greater Waterbury area suffered a significant downturn and Mr. Devino's business was negatively impacted. As a result, Mr. Devino formed an entity called Building Structures, Inc. The purpose of BSI was to provide construction services for properties that were not owned by Mr. Devino or any of his related partnerships or entities. Mr. Devino assigned Mr. Duplissie to be the construction manager for any building projects that BSI performed.
Although Mr. Duplissie spent a substantial amount of his time during this period working for BSI, he continued to be paid from the payroll of IDG and/or other related Devino entities, such as Devino Fuels. Mr. Devino often allocated payroll expenses for various employees to the financial books of his various entities with little regard for the amount of time the employee spent working for that entity. See also footnote 1.
In 1991, Mr. Duplissie and BSI, through Mr. Devino, entered into a separate oral agreement that BSI would pay the plaintiff a commission for each of the construction projects that BSI performed while Mr. Duplissie was employed by BSI, The defendants agree that Mr. Devino made this promise. Specifically, the parties agreed that Mr. Duplissie would receive 10% of the profit BSI made on these jobs. This commission, if any, was to be paid in addition to the wages and benefits that Mr. Duplissie received from IDG, and in addition to the annual July lump sum payment of $10,000. The parties explicitly agreed, or at least implicitly understood, that the amount of profit would be determined by subtracting the job costs from the contract price for each BSI job.
BSI completed four construction jobs during the plaintiff's employment. The parties agree that the plaintiff was in fact paid a commission for two of these jobs, the so-called Edison Chemical and Capital Light projects. The other two projects are discussed seriatim.
In this instance, BSI paid the plaintiff the entire profit from the project because Mr. Devino did not believe, prior to its inception, that the project would yield any profit.
1. Petro Automation Project
In 1992, pursuant to a written agreement, BSI contacted with Michael and Patricia Petro to construct a 7,500 square foot building on land located in Watertown, Connecticut. The total contract price for the project was $333,450. The total job costs for this project were $266,110.11, thereby giving BSI a profit of $67,340.
In light of this profit, Mr. Duplissie was entitled to receive from BSI $6,734 pursuant to the 10% commission agreement. BSI did not pay Mr. Duplissie the commission for this job.
The Court reaches this conclusion in light of (1) Mr. Duplissie's testimony that he was never paid and (2) Mr. Devino's testimony that he could not find the cancelled check demonstrating payment to the plaintiff.
2. New England Country Bakers Project
In 1994, BSI entered into a contract with David Spivak to construct a building in Watertown for Mr. Spivak's business, New England Country Bakers. The total contract price, including any supplemental agreements (so-called "change orders"), for this project was $715,716. The total job costs for this project were $497,094, thereby resulting in a profit to BSI of $218,622. Consequently, Mr. Duplissie was entitled to receive $21,862 as a commission for this project.
Mr. Duplissie never received any commission payment for this project. Although Mr. Devino originally asserted that he had paid the plaintiff, in cash, the defendants subsequently withdrew that testimony. In addition, there is no record of this transaction, and Mr. Duplissie was never issued by Mr. Devino, BSI or IDG an I.R.S. 1099 supplemental income tax form as would have been required by federal tax law. There is also simply no reason to believe that a sophisticated business man such as Mr. Devino would fail to document such a large payment made for the purpose of satisfying a liability of his company if the payment had in fact been made.
C. Devino's Agreement to Convey 5% of IDG to Duplissie
In 1989, at the time IDG began to suffer the ill effects of the downturn of the real estate market, Mr. Duplissie discussed the issue of his job security with Mr. Devino. At that time, Mr. Devino told the plaintiff that he would receive a 5% interest in "IDG," as an additional benefit of his employment at the time he retired from, or ended his employment with, Mr. Devino. The plaintiff concedes that the parties did not discuss whether the 5% interest related to the total value of all of the assets "held" by IDO or whether it related to the equity value of such holdings.
Although Mr. Duplissie subjectively believed that Mr. Devino had promised him an interest in IDG, there is insufficient evidence for the Court to find what the parties understood regarding how that interest would be measured. For example, it is entirely unclear whether Mr. Devino had promised him 5% of the net value of the company, that is, the value of the assets of IDG minus any outstanding liabilities such as mortgages on real property, or whether Mr. Duplissie was entitled to 5% of the gross assets of IDG. There is also no credible evidence that there was any meeting of the minds between the parties as to what point in time the value of the interest would be calculated, that is, at the time this promise was made, or at the time Mr. Duplissie left Mr. Devino's employment.
Moreover, the Court finds that the plaintiff could not have reasonably understood that the defendant was entering into a legally enforceable agreement to convey 5% of IDG to him. Any reliance on this alleged promise was not justifiably reasonable. The plaintiff understood that IDG was simply a trade name for a number of a series of real estate partnerships that in turn held a number of industrial and commercial properties in the Waterbury area. The plaintiff also understood that other people, including Mr. Devino's brother, may have held an interest in one or more of real estate partnerships.
Finally, there is little or no evidence in this record from which the Court could even begin to approximate or determine the value of 5% of IDG, at either the time the parties discussed the transfer or at the time the parties' employment relationship ended.
Additional facts are set forth below when necessary.
II. LEGAL CONCLUSIONS
A. Oral Agreement for Lump Sum Compensation
The first four counts of the plaintiff's complaint seek money damages from Kenneth Devino related to the defendant's breach of an oral agreement to pay the plaintiff a yearly lump sum of $10,000 per year in addition to his other wages.
Specifically, the First Count seeks double damages and attorneys fees for the defendant Devino's alleged violation of Conn. Gen. Stat. § 31-72, which provides in relevant part: "When an employer fails to pay an employee wages in accordance with the provisions of Section 31-71a to 31-71I, inclusive, such employee . . . may recover, in a civil action, twice the full amount of such wages with costs and reasonable attorneys fees as may be allowed by the court . . ." The Second Count alleges breach of contract. The Third Count alleges a common-law conversion. The Fourth Count alleges the tort of fraudulent misrepresentation.
As an initial matter, for the plaintiff to prevail on any of the first four counts, he must establish by a preponderance of the evidence that he and the defendant entered into an enforceable oral agreement to pay the plaintiff, in addition to his standard wages, a yearly lump sum of $10,000 per year, plus 10% per annum interest on any amount the plaintiff elected to defer receiving until later years. "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.) Rosato v. Mascardo, 82 Conn.App. 396, 411, 844 A.2d 893 (2004).
"To form a valid and binding contract in Connecticut, there must be a mutual understanding of the terms that are definite and certain between the parties. To constitute an offer and acceptance sufficient to create an enforceable contract, each must be found to have been based on an identical understanding by the parties. If the minds of the parties have not truly met no enforceable contract exists. An agreement must be definite and certain as to its terms and requirements. So long as any essential matters are left open for further consideration, the contract is not complete . . . A contract requires a clear and definite promise. See Suffield Development Associates Ltd. Partnership v. Society for Savings, . . . 243 Conn. [832,] 843, [ 708 A.2d 1361 (1998)]." Geary v. Wentworth Laboratories, Inc., 60 Conn.App. 622, 628, 760 A.2d 969 (2000).
"A court may, however, enforce an agreement `if the missing terms can be ascertained, either from the express terms or by fair implication.' Presidential Capital Corp. v. Reale, 231 Conn. 500, 507-08, 652 A.2d 489 (1994). Thus, an agreement, previously unenforceable because of its indefiniteness, may become binding if the promise on one side of the agreement is made definite by its complete or partial performance. See Augeri v. C.F. Wooding Co., 173 Conn. 426, 430, 378 A.2d 538 (1977)." Geary v. Wentworth Laboratories, 60 Conn.App. 622, 627-28, 760 A.2d 969 (2000).
In this case, the plaintiff has met his burden of establishing that the plaintiff and the defendant entered into an enforceable oral agreement regarding yearly lump sum wages that were to be paid to the plaintiff by the defendant in addition to his regular wages and benefits. Based upon the facts found above, the Court concludes that the defendant expressly promised this benefit to the plaintiff, the promise was supported by adequate consideration, the promise was accepted by the plaintiff and the terms and requirements are sufficiently clear. This conclusion is bolstered by the Court's finding that the oral agreement was performed for several years.
1. Defendant's Statute of Limitations Defense
The defendant, Kenneth Devino, asserts that recovery on the first four counts of the plaintiff's complaint is barred by the two-year statute of limitation contained in Conn. Gen. Stat. § 52-597, which provides in relevant part: "No action for the payment of remuneration for employment payable periodically shall be brought within two years after the right of action accrues. Specifically, the defendant argues the right of action accrued August 22, 1997, when the plaintiff was discharged from employment and thus the action should have been filed on or before August 22, 1999. The plaintiff brought this action on March 1, 2000, the date the defendants, Kenneth Devino and BSI, were served.
The Court rejects the defendant Devino's statute of limitations claim as to the first four counts of the plaintiff's complaint. The two-year statute of limitation contained in § 52-597 only applies to remuneration for employment "payable periodically." Although the term "periodically" is not defined by statute, the manifest purpose of the provision is to cover employment wages that are payable on recurring, fixed intervals. See, e.g., Mace v. Conde Nast Publication, Inc., 155 Conn. 680, 683-84, 237 A.2d 360 (1967) (holding that lump sum severance payment, unlike weekly or monthly wages, do not constitute remuneration payable periodically). Indeed, Mr. Devino himself in his post-trial brief recognizes that the term "periodical" is generally defined as "recurring at fixed intervals; to be made or done, or to happen, at successive periods separated by determined intervals of time, as periodic payments of interest on a bond." BLACK'S LAW DICTIONARY, 4th Ed.
Under the particular — and perhaps unique — circumstances of this case, the agreement to pay yearly lump sum compensation to the plaintiff does not fall within the statute. Although the plaintiff had the right to receive the $10,000 on a periodic and fixed basis, i.e., yearly, he also had the right to defer receiving the compensation for an undetermined period of time during which any amount not received would accrue interest at the rate of 10% per annum. In fact, the plaintiff exercised this right on at least one occasion. (A decision that arguably benefited both the plaintiff and the defendant.) Consequently, because the remuneration was not necessarily "payable periodically" the two-year statute of limitations contained in § 52-296 does not apply.
The defendant's reliance on § 52-596 is also belied by his own argument that the plaintiff's action accrued on August 22, 1997 when the plaintiff was discharged from employment. The test for determining when an action accrues "is to establish the time when the plaintiff first could have successfully maintained an action." Engelman v. Connecticut General Life Ins. Co., 240 Conn. 287, 294 n. 7, 690 A.2d 822 (1997). If the amount was payable periodically and the statute applied, as the defendant argues, the action would have had to accrue much earlier than August 22, 1997. Under the defendant's theory, for example, an action to recover the 1992 annual payment should have been brought on or before July 1, 1994, not on August 22, 1997, the date he admits it accrued.
2. Breach of contract — Second Count
Because the Court concludes (1) that an enforceable, oral agreement for lump sum compensation agreement existed, and (2) the plaintiff's right to recovery is not barred by the two-year statute of limitation contained in § 52-597, the plaintiff is entitled to damages for the defendant's breach of that contract. In awarding damages, pursuant to Count Two of the complaint, "[it] is axiomatic that the sum of damages awarded as compensation in a breach of contract action should place the injured party in the same position as he would have been in had the contract been performed." Argentinis v. Gould, 219 Conn. 151, 157, 592 A.2d 378 (1991).
In the present case, based upon the factual finding set forth above, the plaintiff did not receive the yearly lump sum compensation to which he was entitled for the calendar year 1990. In 1991, the plaintiff did not receive $1,500 of the lump sum compensation to which he was entitled for that year. In 1992, the plaintiff did not receive $2,000 of the lump sum compensation to which he is entitled for that year. The plaintiff did not receive any lump sum compensation for the calendar years 1993, 1994, 1995, 1996, and 1997.
Consequently, the plaintiff is entitled to recover those sums, plus the 10% interest, compounded annually, until the contract was breached. The court finds that, although the plaintiff made periodic demands for payments of these sums during his employment, the parties had not specifically agreed when any deferred amounts must be paid to the plaintiff. A reasonable inference is that any deferred amounts (or amount otherwise not received) must be paid no later than the date the employment relationship was terminated.
Consequently, the Court concludes that the plaintiff is entitled to the 10% interest, compounded annually, on any deferred or unpaid amounts up to August 22, 1997, when his employment was terminated. The Court calculates this amount to be $86,416.53.
The plaintiff did not offer any evidence that the parties agreed as to precisely how the compounded interest would be calculated. In the absence of such evidence, the Court has calculated, separately, compounded interest for each annual $10,000 payment, or portion thereof, that was not paid to plaintiff from July 1st of the respective year until July 1st of 1997. For example, for the $10,000 lump sum compensation due to the plaintiff on July 1, 1990, the court awarded $9,487.17 in compounded interest for the period July 1, 1990 to July 1, 1997. For the $1,500 of unpaid annual lump sum compensation due to the plaintiff on July 1, 1991, the court awarded $1,157.34 for the period July 1, 1991 to July 1, 1997. The Court then made a similar calculation for each remaining year (1992-97) and then added the total amount of applicable principal and compounded interest for each of these years and thereby reached the figure of $86,416.53 total amount. This manner of calculation inures to the benefit of the defendant because it does not aggregate the total amount of unpaid principal and compounded interest each year, thereby reducing, somewhat, the total amount each year that was subjected to compounding. Additionally, because the defendant made some of these payments prior to July 1st in the year in which they were due, the Court, in equity, and to simplify the necessary computations, has not awarded any interest for the period July 1, 1997 to August 22, 1997.
3. Civil wage claim — First Count
As noted above, the First Count of the plaintiff's complaint seeks double damages and attorneys fees for the defendant's alleged violation of Conn. Gen. Stat. § 31-72. The Court declines to award damages on this count.
The case law is clear that an award for double damages and attorneys fees pursuant to § 31-72 is inappropriate in the absence of a finding of "bad faith, arbitrariness or unreasonableness." Sansone v. Clifford, 219 Conn. 217, 229, 592 A.2d 931 (1991). Based upon this record, the Court is not persuaded that the defendant's conduct rose to the level of bad faith, arbitrariness or unreasonableness required by the statute. The defendant for several years did in fact pay the plaintiff according to their oral agreement and only began to breach the agreement when he and his business were negatively impacted by downturn of the real estate business. An award of double damages in this case would not just compensate the plaintiff for his losses but would also serve to punish the defendant. See Crowther v. Gerber Garment Technology, Inc., 8 Conn.App. 254, 266, 513 A.2d 144 (1986). The Court does not credit any testimony in this record that would justify such a sanction.
4. Conversion — Third Count
In the Third Count, the plaintiff alleges that the defendant's failure to pay him the annual lump sum compensation constitutes a conversion. Although the Court finds that the plaintiff has established the elements of a conversion; see, e.g., Epstein v. Automatic Enterprises, 6 Conn. App. 484, 488, 506 A.2d 158 (1986); it declines to award recovery on this count because any damages awarded pursuant to this count would be duplicative of the plaintiff's recovery on his breach of contract claim.
5. Fraudulent Misrepresentation — Fourth Count
Finally, the plaintiff in the Fourth Count of his complaint alleges the tort of fraudulent misrepresentation. Specifically, the plaintiff alleges that the defendant requested in 1990 that the plaintiff defer receipt of the annual $10,000 lump sum compensation. The plaintiff asserts that the defendant fraudulently misrepresented his intention to repay the plaintiff, with interest, any compensation once the real estate market recovered from its recession. The Court finds for the defendant on the Fourth Count.
"[I]t is well settled that the essential elements of fraud are: (1) a false representation was made as a statement of fact; (2) it was untrue and known to be untrue by the party making it; (3) it was made to induce the other party to act upon it; and (4) the other party did so act upon that false representation to his injury." Leonard v. Commissioner of Revenue Services, 264 Conn. 286, 296, 822 A.2d 1184 (2003) (internal quotation marks omitted). "All of these ingredients must be found to exist; and the absence of any one of them is fatal to a recovery . . . Additionally, [t]he party asserting such a cause of action must prove the existence of the first three of [the] elements by a higher standard than the usual preponderance of the evidence, which higher standard [is] described as clear and satisfactory or clear, precise and unequivocal." Harold Cohn Co. v. Harco International, 72 Conn.App. 43, 51, 804 A.2d 218, cert. denied, 262 Conn. 903, 810 A.2d 269 (2002) (internal quotation marks omitted). "Generally, misrepresentations must relate to an existing or past fact. A promise to do something in the future is not actionable unless the promise is coupled with a present intention not to fulfill the promise." New Horizon Financial Services, LLC v. First Financial Equities, Inc., 175 F.Sup.2d 348, 352-53 (D.Conn. 2001) (internal quotation marks omitted). "[A]n assurance, wholly promissory in its nature, cannot be the basis of an action for fraud . . . [I]t could not be held fraudulent unless the [individual], when he made it, knew or had reason to believe that the corporation would not assume the obligation or gave the assurance recklessly or without belief that it would do so." Lowe v. Kohn, 128 Conn. 45, 51, 20 A.2d 407 (1941) (citation omitted; internal quotation marks omitted).
The plaintiff has not met this high standard. The Court finds no credible evidence that Mr. Devino had the present intention that he would not make the agreed-upon payments to the plaintiff once the business climate improved. Accordingly, the plaintiff's claim fails.
B. Oral Agreement for 10% Commission on Profits from Building Structures, Inc. Projects
Counts Nine and Eleven of the plaintiff's complaint seek money damages for the BSI's breach of an oral promise to pay to the plaintiff a 10% commission on all profits BSI earned on BSI construction projects. Specifically, the Ninth Count alleges a breach of contract. The Eleventh Count seeks recovery under the doctrine of unjust enrichment.
The Tenth Count, seeking recovery under the doctrine of quantum meruit, and the Twelfth Count asserting a civil wage claim pursuant to Conn. Gen. Stat. § 31-72, were previously stricken by the Court, Holzberg, J.
As noted above, the Court finds that the defendant did in fact pay the agreed upon commission to the plaintiff for two of the four jobs, but did not pay the plaintiff any commission for the Petro and New England County Baker projects. The dispositive issue for the Court is whether this oral agreement is enforceable under the facts of this case.
The defendant BSI asserted in its amended special defenses, dated June 17, 2002, the special defense of payment. The plaintiff concedes that he was paid for two of the BSI projects, the Edison Coatings and Capitol Light jobs. The defendant withdrew his testimony that he paid the plaintiff for the New England Country Bakers job. Consequently, the defense of payment applies only to the Petro project, which the Court rejects on the basis of the facts found above.
BSI concedes that such a promise was made. Instead, it argues that the promise is unenforceable because there was no agreement as to how the profit from each job should be measured. The Court rejects this argument both factually and legally. First, the Court finds that the plaintiff and the defendant, at the time the promise was made, either explicitly or implicitly understood and agreed regarding how the profit was to be measured: The amount of profit would be determined by subtracting the job costs from the contract price for each BSI job. Consequently, there was a sufficient meeting of the minds to render the contract enforceable. See Suffield Development, 243 Conn. at 843 (a contract requires the parties to have a mutual understanding of terms that are definite and certain).
In fact, BSI, through Mr. Devino, demonstrated that it understood how to measure the profit from each job when it paid the plaintiff the 10% commission due on the Capitol Light project. Mr. Devino also clearly testified that "I paid him ten percent commission for all of the jobs, except for Capitol Light and Edison Chemical." In response to questioning by the Court, he conceded that profits mean "the total contract price, what you [BSI] received from doing the job from the third party, minus any contract costs that you[r] company . . . incurred in completing the job. Obviously, BSI and Mr. Devino did in fact have an understanding as to how to calculate the project for each job and that understanding was shared by the plaintiff.
The fact that BSI chose not to calculate the job costs for the BSI by including the value of the plaintiff's time as foreman, or other expenses for office staff and overhead does not, as the defendant asserts, compel a conclusion that the parties lacked a mutual understanding of how the profit for each job was to be measured. Although BSI might have been justified in calculating the overall profits from each job to be lower, its failure to do so does not alter the fundamental understanding of the agreement.
Second, even if the parties had not initially reached a mutual understanding as to how the profit was to be measured, an agreement, "previously unenforceable because of its indefiniteness, may become binding if the promise on one side of the agreement is made definite by its complete or partial performance." Geary v. Wentworth Laboratories, 60 Conn.App. at 628. In this case, the evidence established that the plaintiff completed performance on four projects for BSI and BSI partially performed its obligation by paying the plaintiff commission on two of the jobs. The defendant's partial performance and payment of these commissions would have made the terms of the oral agreement sufficiently definite to render its terms enforceable.
The defendant argues that the amount of profit was left to his sole discretion, which is evidenced by the fact he paid the plaintiff more than the 10% commission he promised to the plaintiff for the Edison Chemical and Capitol Light jobs. Based on the plaintiff's testimony, which the Court credits, the plaintiff in fact was not paid more than the 10% commission for the Capitol Light project. The profit from that job was $30,000, and the plaintiff received $3,000.
In sum, the Court finds that: (1) the parties orally agreed that the plaintiff would receive a 10% commission on the profits of any BSI job in exchange for the plaintiff's work on those projects; (2) the agreement was sufficiently definite as to its terms as to be enforceable; and (3) BSI breached this agreement with respect to the Petro and New England Country Bakers projects. Consequently, the Court concluded that the plaintiff has proven the elements of breach of contract as alleged in Count Nine of his Complaint.
The Court next turns to the plaintiff's unjust enrichment claim. "Unjust enrichment applies whenever justice requires compensation to be given for property or services rendered under a contract, and no remedy is available by an action on the contract." Meaney v. Connecticut Hospital Assn., 250 Conn. 500, 511, 735 A.2d 813 (1999) (emphasis added). Because the Court finds that a valid, enforceable oral contract existed between the parties, it is not necessary to address the plaintiff's unjust enrichment claim.
1. Building Structures, Inc.'s Statute of Limitations Defenses
BSI asserts that the plaintiff's right to recover any commission due to the plaintiff is barred by the two-year statute of limitation contained in Conn. Gen. Stat. § 52-596, or the six-year statute of limitations contained in Conn. Gen. Stat. § 52-576. The following additional facts are relevant to this claim.
The defendant and the plaintiff orally agreed that the plaintiff would receive, as a commission, 10% of the profits from any and all BSI projects that were completed. Although the timing of the commission payments were not explicitly discussed by the parties, the Court infers from the actions of the parties with respect to the Capital Light and Edison Chemical projects that any commission was to be paid at the completion of the project.
The Petro Automation project was completed on or about December 1, 1993. The New England Country Bakers project was completed on or about May 1, 1995. This action was brought on March 1, 2000, the date the defendant BSI was served.
The defendant first asserts that recovery of any commission earned on these projects is barred by Conn. Gen. Stat. § 52-596, which, as discussed above, provides that an action for the payment of remuneration for employment payable periodically shall be brought within two years after the right of action accrues. The Court concludes that § 52-596 is not applicable to the claim for the commission earned by Mr. Duplissie because such compensation was not "payable periodically" within the meaning of that statute. These commission payments were not payable to the plaintiff on fixed intervals. In fact, the plaintiff was not entitled to any compensation until and unless, if ever, the BSI projects were completed and earned a profit. Cf. Mace, 155 Conn. at 683-84.
Consequently, the Court concludes that the plaintiff's right to recover any commission due to him is governed by the six-year statute of limitations contained in Conn. Gen. Stat. § 52-576. This action was brought more than six years after the completion of the Petro Automation project. The plaintiff appears to assert that the statute of limitations was tolled because of the "unequal relationship" between the parties and the likelihood that he would lose his job if he brought suit against his employer. The plaintiff does not cite to any authority, nor could the Court find any, holding that a statute of limitation governing an action between employer and employee is tolled until the employment relationship ends. Consequently. Counts Nine and Eleven of the plaintiff's complaint are barred to the extent they seek to recover the commission due to the plaintiff from the Petro Automation project.
The statute of limitations applies to both the breach of contract count and the unjust enrichment count. "Where a party seeks equitable relief pursuant to a cause of action that would allow that party to seek legal relief concurrent legal and equitable jurisdiction exists, and the statute of limitations that would be applicable to bar the legal claim also applies to bar the equitable claim." Dowling v. Finley Associates, 49 Conn.App. 330, 335, 714 A.2d 694 (1998), rev'd on other grounds, 248 Conn. 364, 727 A.2d 1245 (1999). Consequently, even if the plaintiff had established a prima facie case for unjust enrichment for the Petro project, recovery would still be barred in this case.
The Ninth and Eleventh Count are not barred to the extent that they seek recovery for the commission due for the New England Country Bakers project. This action was brought within six years from May 1, 1995, the date of the completion of that project.
2. Damages
The plaintiff was entitled to receive a 10% commission on the profits from the New England Country Bakers project. Consequently, because the total profit from this job was $218,622, the plaintiff is entitled to recover $21,862.
C. Oral Agreement to Convey 5% of IDG to Duplissie
The plaintiff next seeks damages against Mr. Devino for his alleged breach of an oral promise to convey a 5% equity interest in IDG. Specifically, the Fifth Count alleges that the defendant's failure to pay violates Conn. Gen. Stat. § 31-72, for which he seeks double damages and attorneys fees pursuant to that statute. The Sixth Count alleges breach of contract, and the Seventh Count alleges the tort of fraudulent misrepresentation.
The Eighth Count, seeking quantum meruit recovery, was previously stricken by the Court.
The plaintiff has failed to meet his burden of proof on these counts. Although the Court concludes that Mr. Devino stated that he would give the plaintiff 5% of IDG when the plaintiff retired or otherwise left his employ, it is inconceivable to this Court that either the plaintiff or the defendant believed that the parties were entering into an enforceable oral contract. First, as noted above, a contract "must be definite and certain as to its terms and requirements. So long as any essential matters are left open for further consideration, the contract is not complete . . . A contract requires a clear and definite promise. See Suffield Development Associates Ltd. Partnership v. Society for Savings, 243 Conn. [832,] 843, [ 708 A.2d 1361 (1998)]." Geary v. Wentworth Laboratories, Inc., 60 Conn.App. 622, 628, 760 A.2d 969 (2000).
In this case, based upon the facts found above, significant terms of the alleged contract were not discussed at all and/or were left undefined. Moreover, the Court cannot reasonably imply these terms from the promise itself. Nor can the Court find any partial performance by the defendant that would shed any light on these missing terms. Under these circumstances, the promise by the defendant is so incomplete as to render it unenforceable. Accordingly, the plaintiff cannot recover on Count Five or Count Six of his complaint, both of which require an enforceable agreement.
The plaintiff also cannot recover on his fraudulent misrepresentation theory. Among other things, an action for fraud requires "justifiable reliance" on the promise by the party seeking recovery. See, e.g., Visconti v. Pepper Partners LTD Partnership, 77 Conn.App. 675, 682-83, 825 A.2d 210 (2003). In this case, the plaintiff could not have justifiably relied upon the defendant's promise in light of its vague nature. Moreover, any reliance on a oral agreement to convey such a potentially significant interest of the defendant, without requiring that (1) the key terms be better defined, (2) it be reduced to writing, (3) or without first ascertaining whether the agreement of other parties such as the defendant's brother, would be required, is simply unjustified and unreasonable. Similarly, the Court is not convinced that the plaintiff would have left his job or sought other employment in the absence of the defendant's promise.
Finally, to be entitled to recover on any of these theories, the plaintiff must establish damages for the breach of a contract or a fraudulent misrepresentation. "It is axiomatic that the burden of proving damages is on the party claiming them . . . When damages are claimed they are an essential element of the plaintiff's proof and must be proved with reasonable certainty . . . Damages are recoverable only to the extent that the evidence affords a sufficient basis for estimating their amount in money with reasonable certainty . . ." Lawson v. Whitey's Frame Shop, 241 Conn. 678, 689-90, 697 A.2d 1137 (1997) (citation omitted; internal quotation marks omitted). There is little or no evidence in this record that would allow the Court to estimate, with any degree of reasonable certainty, the plaintiff's damages even if the Court found a valid, enforceable promise to convey "5% of IDG" to the plaintiff.
D. Plaintiff's Entitlement to Prejudgment Interest
The Court now turns to whether the plaintiff is entitled to prejudgment interest for the defendant's breach of his agreement to pay the plaintiff annual lump sum compensation and to a 10% commission on the profits from the New England Country Bakers project. "The allowance of prejudgment interest under Conn. Gen. Stat. § 37-3a is a matter within the discretion of the trial court. Metcalfe v. Talarski, 213 Conn. 145, 160, 567 A.2d 1148 (1989); Solomon v. Hall-Brooke Foundation, Inc., 30 Conn.App. 136, 146-47, 619 A.2d 866 (1993); Alderman v. RPM of New Haven, Inc., 20 Conn.App. 566, 569-70, 568 A.2d 1068 (1990). This allowance turns on whether the detention of the money is or is not wrongful under the circumstances. (Internal quotation marks omitted.) Lawrence v. New Hampshire Ins. Co., 29 Conn.App. 484, 498, 616 A.2d 806, cert. denied, 224 Conn. 923, 618 A.2d 528 (1992); Solomon v. Hall-Brooke Foundation, Inc., supra, 146. If the trial court determines that one party has wrongfully detained funds, it must next determine the date the wrongful detention began. Where the claim rests on a breach of contract, statutory interest accrues from the date the contract was breached. See West Haven Sound Development Corp. v. West Haven, 207 Conn. 308, 322-23, 541 A.2d 858 (1988); Harris Calorific Sales Co. v. Manifold Systems, Inc., 18 Conn.App. 559, 566, 559 A.2d 241 (1989)." Patron v. Konover, 35 Conn.App. 504, 517, 646 A.2d 901, cert. denied, 231 Conn. 929, 648 A.2d 901 (1994).
Because the amount of damages can reasonably be determined by the terms of the parties or the oral contract itself, this case does not fall within the category of breach of contract cases in which § 37-3a does not apply. See, e.g., Foley v. Huntington Company, 42 Conn.App. 712, 739-43, 683 A.2d 397, cert. denied, 239 Conn. 931, 683 A.2d 397 (1996).
In this case, the Court concludes, with respect to the lump sum compensation agreement, that the defendant Devino has wrongfully detained funds due and owing to the plaintiff no later than August 22, 1997, the date the plaintiff was discharged from employment. Therefore, the Court awards statutory interest at the rate of 5% per year, from August 22, 1997 up to the date of judgment. See Paulus v. Lasala, 56 Conn.App. 139, 742 A.2d 379 (1999) (prejudgment interest, if awarded, runs to the date of judgment); Sears Roebuck Co. v. Board of Tax Review, 241 Conn. 749, 765-66, 836 A.2d 475 (1997) (trial court has discretion to set amount of interest up to the statutory maximum). This amount is $33,270.16.
The Court has broad discretion, pursuant to § 37-3a, to award prejudgment interest up to the statutory maximum of 10%. Sears, Roebuck Co. v. Board of Tax Review, 241 Conn. 749, 766, 699 A.2d 81 (1997). Neither party exercised the right to offer any evidence regarding available interest rates during the relevant period.
The Court also concludes that the plaintiff is entitled to prejudgment statutory interest regarding the New England Country Bakers project. The Court finds that the plaintiff was entitled to receive his 10% commission on that project on or about May 1, 1995, the date that project was completed. The defendant wrongfully detained funds belonging to the plaintiff after that date. Consequently, he is entitled to prejudgment interest in the amount of $10,952.86
CONCLUSION
For the reasons set forth above, the plaintiff is entitled to damages against the defendant, Kenneth Devino, in the amount of $86,416.53, plus prejudgment interest in the amount of $33,270.16, for total damages in the amount of $119,686.69.
The plaintiff is also entitled to damages against the defendant, Building Structures, Inc., in the amount of $21,682, plus prejudgment interest in the amount of $10,952.86, for total damages in the amount of $32,636.86.
Judgment shall enter accordingly.
Prescott, J.