Opinion
No. CV03 040 06 72 S
August 27, 2004
MEMORANDUM OF DECISION
Plaintiff Trio Marketers, Inc. claims that defendant Terry A. Sekelsky is responsible under a contract of guaranty for a debt incurred by TS Fuel, Inc. Sekelsky argues that the guaranty terminated before the debt was incurred and, in a special defense, contends that the plaintiff's claim is barred by a statute of limitations. The case was tried before this court. For the reasons stated below, the court awards the plaintiff $60,696.56.
In July of 1992, the plaintiff began selling on an open account home heating oil and diesel fuel to TS Fuel, Inc., which is a retail seller with a principal place of business at 6 Lisa Drive in Shelton. The plaintiff is a wholesaler of home heating oil and diesel fuel. Its last sale and delivery to TS Fuel, Inc. was made on September 2, 1997.
In 1992, defendant Sekelsky was the president and owner of TS Fuel, Inc. In July of 1992, he was asked by Douglas Wenz, who is the president and owner of the plaintiff, to give his personal guaranty for the obligations of TS Fuel, Inc. On November 24, 1992, Sekelsky signed the guaranty and gave it to Wenz. This document (Ex. 1) contains the following relevant provisions:
In consideration of Trio Marketers Inc . . . selling merchandise to TS Fuel, Inc. . . . I, Terry A. Sekelsky hereby give this continuing guaranty to Company . . . for payment in full of all indebtedness of Customer to Company together with all interest, costs of collection, attorneys fees and charges, whether due or to become due, now existing or hereafter arising . . .
This is an absolute, general and continuing guaranty . . . This guaranty shall continue in force until written notice of its discontinuance is delivered to one of Company's corporate officers and such notice of discontinuance is acknowledged in writing by one of Company's corporate officers . . .
From July of 1992 through September of 1997, the plaintiff sold home heating oil and diesel fuel to TS Fuel, Inc. The plaintiff has not been paid for what it sold between April 18, 1997, and September 2, 1997. Invoices for these purchases were directed to "TS Fuel Co., 6 Lisa Drive, Shelton." (Ex. 2). The amount due for these purchases is $52,779.56.
On December 31, 1995, Sekelsky sold TS Fuel, Inc. to his daughter, Lisa D. Powers. (Ex. B; Sale Agreement.) Sekelsky did not notify anybody in writing that he had sold the business. He did not give "written discontinuance" of the guaranty to the plaintiff or to Wenz. He did not orally revoke the guaranty.
Wenz had met Sekelsky before Trio Marketers, Inc. was organized in 1992. Wenz witnessed Sekelsky's execution of the guaranty form. At the time the form was signed, the document incorporated Wenz and Sekelsky's complete agreement with respect to the guaranty. There was no other understanding.
In 1995, Wenz gave Sekelsky a written report on the value of TS Fuel, Inc. At the time, Wenz was under the belief that Sekelsky, who owned several businesses, wanted to sell the fuel business in order to satisfy a debt. Wenz was not told about the sale to Lisa D. Powers. Wenz dealt with both Sekelsky and Lisa D. Powers. He believed that Sekelsky continued to operate the business and that Sekelsky and his daughter were "interchangeable." Wenz spoke by telephone with Sekelsky and demanded payment of the overdue invoices. The invoices have not been paid.
The plaintiff brought suit against TS Fuel, Inc., in April of 1998 and obtained judgment in July of 2002. ( Trio Marketers Inc. v. TS Fuel, Inc., judicial district of Bridgeport, Docket No. CV 980352486.) It has not collected on the judgment. The present lawsuit was commenced by service on February 22, 2003.
The defendant argues that the guaranty terminated upon his sale of the business and that he is therefore not liable for the debts that were incurred after the sale. The guaranty has no termination date. It expressly provides that it is "absolute, general and continuing . . . and shall continue in force until written notice of its discontinuance is delivered . . ." The defendant failed to exercise his right to revoke the guaranty. Under the facts of this case, it is not unreasonable to impose liability on the defendant under the guaranty. See Suzio Concrete Co. v. Birmingham Construction, 79 Conn.App. 211, 214-16, 829 A.2d 868 (2003).
The defendant argues that the plaintiff's claim is barred by a statute of limitation. In his special defenses, the defendant does specify a statute. General Statutes § 42a-3-118(g) was mentioned during oral argument. This statute does not apply. See Associated Catalog Merchandisers, Inc. v. Chagnon, 210 Conn. 734, 739 n. 2, 557 A.2d 525 (1989). The applicable statute is § 52-576, which provides for a six-year limitation. The last sale on the open account was made on September 2, 1997. Thereafter, the plaintiff demanded of the defendant that he make payment. This lawsuit was brought within six years of the time the claim accrued.
The defendant has plead other special defenses, but has not discussed them in his post-trial brief. The evidence does not support the other defenses.
The plaintiff asserts a claim for "reasonable attorneys fees." The plaintiff has not, however, pursued the proper procedure for asserting such a claim. Smith v. Snyder, 267 Conn. 457, 479, 839 A.2d 589 (2004) (the proponent must present to the court at the time of trial a statement of the fees requested and a description of services rendered).
Based on the foregoing, the court concludes the plaintiff has proven that the defendant is liable under the guaranty for $52,779.56 together with interest thereon. Interest of $7,917.00 is awarded, which is at the rate of ten percent per annum from the date this action was commenced. Judgment enters in favor of the plaintiff for $60,696.56.
THIM, J.