Opinion
CV146046957
12-06-2016
Hanlon's Plumbing Company, LLC v. J. Francis Builders, LLC et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE COURT TRIAL
Judge Richard E. Arnold.
The plaintiff commenced this action by way of a complaint dated November 5, 2014, bearing a return date of December 2, 2014. The complaint consists of two counts. The First Count is brought against the defendant, J. Francis Builders, LLC., and alleges a breach of contract. The Second Count is brought against the defendants, Fred Collazo and Ida Collazo and alleges unjust enrichment. On July 28, 2015, the default was entered against J. Francis Builders, LLC. for its failure to plead. Thereafter, on July 9, 2015, the plaintiff moved for a judgment on the default and requested the sum of $14, 000.00. The court (Stodolink, J.T.R.) granted the motion entering judgment for the plaintiff, as against the defendant, J. Francis Builders, LLC, in an amount of $14, 000.00. Thereafter, the pleadings were closed as to the remaining Collazo defendants, and the matter was claimed for a court trial.
The Second Count of the complaint alleging unjust enrichment by the Collazo defendants states that Mr. and Mrs. Collazo, in October 2013, were the owners of a residence located at 4 Fernwood Drive, Monroe, Connecticut. It is alleged that they hired J. Francis Builders, LLC. as a general contractor to perform construction work on their property as a result of fire damage. On or about that time, the plaintiff, Hanlon's Plumbing Company, LLC. was hired by J. Francis to perform various plumbing services at the subject property, which included furnishing and installing plumbing and heating related materials in the master bathroom, main bathroom, powder room, kitchen, outdoor spigots and heating for the house. The estimated costs of labor and materials was $26, 500.00. The plaintiff claims that it only received the sum of $7, 000.00 from J. Francis Builders, LLC. for its services. The plaintiff claims that the Collazo defendants knew or should have known that the plaintiff was working on the plumbing and heating projects, and as the plaintiff has fully performed, the Collazos have been enjoying the benefits of Hanlon's work, and thus, they have been unjustly enriched.
The Collazos deny the plaintiff has fully performed or that they have been unjustly enriched and have filed three special defenses. First, the Collazos state they did not employ the plaintiff; nor do they have a contractual relationship with Hanlon's Plumbing. Second, the Collazos allege that if any of the plaintiffs alleged work was, in fact, done to their property, it was not done with their permission; was it not done in a workman like manner; nor was the alleged work ever completed. Third, the Collazo defendants state that any sums claimed to be owed to the plaintiff are due and owing from the defendant, J. Francis Builders, LLC., and not from the defendants.
A court trial was held on July 26, 2016. The court then ordered that the parties file a memorandum of law, to include a proposed finding of facts, on or before August 25, 2016. The plaintiff's " Post-Trial Brief" is dated August 25, 2016 and filed that same date. The Collazo defendants' " Post-Trial Brief" is dated August 28, 2016 and was filed August 29, 2016.
On July 26, 2016, legal counsel for J. Francis Builders, LLC, filed a request to be excused from the trial for the reason that J. Francis Builders, LLC, is a single member, limited liability company, whose only member, John Kiernan, became deceased on October 23, 2015. Counsel represented that the LLC, possessed no assets, other than some equipment, which was abandoned at the Collazo's residence, and for which, no claim was being made by the LLC or the decedent's estate. There is no indication the request was ever acted upon by the court, but neither legal counsel for, or a representative of, J. Francis Builders, LLC, appeared at the time of trial.
The Collazo defendants were given permission to extend the time for their post-trial brief.
During the course of the trial the court heard testimony from Chris Hanlon, the principal of Hanlon's Plumbing Company, LLC, (" Hanlon's") and the defendant property owner, Fred Collazo. The following full exhibits were entered into evidence for the plaintiff:
Ex. 1: An unsigned " Proposal" from Hanlons' to J. Francis Builders, for labor and materials at the defendant's residence, dated October 28, 2013, in the amount of $26, 500.00;
Ex. 2: Copy of a check from J. Francis Builders, LLC., payable to Hanlon's, dated January 27, 2014, in the amount of $7, 000.00 marked as a " progress payment";
Ex. 3: Invoice from Plimpton & Hills Corp. (Lewin P& H Supply Co.) to Hanlon's for materials in the amount of $1, 382.36.
The following full exhibits were entered into evidence as defendants' exhibits:
Ex. A: Construction Agreement between J. Francis Builders, LLC. and Fred and Ida Collazo, dated June 2, 2013 and signed June 2, 2013, in the amount of $290, 320.61;
Ex. B: Town of Monroe Plumbing Permit, issued to Chris Hanlon, dated April 9, 2014 for plumbing and heating work at 4 Fernwood Road, Monroe, Connecticut;
Ex. C: Town of Monroe Application for Plumbing Permit, issued to Hocon Propane, dated September 18, 2014 for work at 4 Fernwood Road, Monroe, Connecticut;
Ex. D: Town of Monroe Plumbing Permit, issued to Fred Collazo, dated October 20, 2014, for the installation of fixtures, boiler and propane gas lines at 4 Femwood Road, Monroe, Connecticut;
Ex. E: Copies of two checks from Wells Fargo Home Mortgage dated June 13, 2013 and December 10, 2013, in the amounts of $71, 417.48 each (totaling $142, 834.96), both payable to J. Francis Builders, LLC and Freddie and Ida Collazo;
Ex. F: Work log from March 26, 2014, through April 1, 2014;
Ex. G: Printed copy of e-mail correspondence between John Kiernan (J. Francis Builders, LLC) and Fred Collazo dated March 11, 2014 and March 13, 2014.
Ex. H, I, J, K, L and M: photos of interior work at 4 Fernwood Road, Monroe, Connecticut.
Discussion
The Collazo defendants contracted with the co-defendant J. Francis Builders for repairs to their fire damaged house by way of a Construction Agreement, dated June 2, 2013. The total cost of the construction repairs agreed upon was to be $290, 320.61. (Ex. A.) The general scope of the work description contained in the agreement states, " [p]rovide demolition, clean-up and reconstruction of existing dwelling damages by fore on existing foundation." The agreement also does not provide for any exclusions for specific labor or materials, including but not limited to plumbing and heating labor and materials. The agreement does provide that deviations from the scope of work referred to in the agreement would be treated as " additional work, " which would be reflected in a subsequent written document known as a " change order." The agreement provided for an initial deposit by the Collazo defendants to J. Francis in the amount of $96, 773.53, which represented one-third of the contract price, and would be subject to issuance by the Collazos' bank, Wells Fargo, the mortgage lender. The agreement between the Collazos and J. Francis did not mention the plaintiff as a subcontractor; nor did the agreement include a specific cost for plumbing and heating work. According to the agreement, J. Francis was to commence work on July 1, 2013, and was to complete all repairs within an approximate five month period, which translates to a December 2013, completion date.
No " change orders" have been submitted to the court.
Other than the total contract price and the initial deposit amount, the agreement is silent as to specific costs for any subcontractor or category of repair, including plumbing fixtures.
Subsequent to the signing of the agreement between the Collazos and J. Francis, on June 2, 2013, the plaintiff was contacted by the co-defendant, J. Francis Builders, LLC (" J. Francis") to perform specific plumbing work at the residence of the Collazo defendants, which is located at 4 Fernwood Road, Monroe, Connecticut. The plaintiff's submitted a proposal to J. Francis for the cost of the plumbing work at the Collazo residence. The terms of the proposal are contained in the written " Proposal, " dated October 28, 2013, was $26, 500.00 for labor and materials. (Ex. 1.) The scope of the work set forth in this Proposal was to furnish and install all plumbing related materials to accommodate fixtures in the master and main bathrooms, powder room, kitchen, outdoor spigots and heating. The Proposal specifically provides that " all fixtures shall be provided by others." The Proposal is not signed by a representative of either Hanlon's Plumbing Company, LLC., or J. Francis. However, the court finds the Proposal was acceptable to J. Francis, as the plaintiff began work at the site in December 2013, and received a progress payment from J. Francis in the amount of $7, 000.00 on January 27, 2014. (Ex. 2.) The progress payment made to the plaintiff by J. Francis was to allow the plaintiff to purchase materials to be used at the job-site.
Fred and Ida Collazo were not parties to this proposal and there is no evidence they were aware of its existence.
The work started work by Hanlon at the Collazo residence in December 2013, entailed " rough work, " which was described by Hanlon as placing pipes behind walls; installing heat line pipes from the attic to the boiler area; and completing a tie-in for the septic system and water lines. Subsequently, he requested that the Collazos pick out plumbing fixtures to be installed, and they did so, from Lewin P& H Supply Company in Fairfield, Connecticut. Exhibit 3 consists of two invoices for plumbing and heating supplies. The first invoice dated April 6, 2014, totals $1, 382.38, and the second invoice dated April 17, 2014, totals $1, 718.32. The invoices indicate that all items were shipped to the Hanlon's Plumbing Company to the Collazo residence on Fernwood Drive, Monroe, Connecticut. Despite his testimony that he had no obligation to do so, Hanlon testified that he paid for these fixtures and materials to avoid further delay at the job-site, while he was awaiting another progress payment from J. Francis in an amount of $10, 400.00. This leads the court to conclude that Hanlon expected payment for these items from J. Francis and not direct payment from the Collazos. These fixtures and materials from Lewin shown in Exhibit 3 were ultimately installed or left at the Collazo residence. Exhibits H, I, J, K, L and M are photographs of materials and fixtures installed at the Collazo residence, as well as, photographic evidence of pipe and drain work completed by Hanlon. Shortly after obtaining the plumbing permit from the Town of Monroe Hanlon testified he ceased work at the site, due to his dispute with J. Francis, and shortly after he obtained the first plumbing permit from the Town of Monroe, which is dated April 9, 2016. (Ex. B.) However a work log kept by Fred Collazo indicates that Hanlon last worked at the premises on March 30, 2014. (Ex. F.) Hanlon claims he completed seventy-five percent (75%) of the work listed in the Proposal he gave to J. Francis. Thus, according to Hanlon's computations he was entitled to $19, 875 representing seventy-five percent (75%) of the original Proposal price, which was $26, 500.00. He received $7, 000.00 from J. Francis (Ex. 2), leaving a balance due of $12, 875.00, plus the fixture costs in the amount of $3, 100.70 (Ex. 3) for a total of $15, 975.70. However, at trial Hanlon testified that he was demanding the sums of $10, 400.00 and the fixture costs in the amount of $3, 100.70 (Ex. 3) for a total claim in the amount of $13, 500.70.
There is no indication on the invoices that they were paid, and Hanlon has not provided a paid receipt or a canceled check as proof of payment.
Hanlon admitted that all plumbing and heating work at the site that was done prior to the April 9, 2014 was done without the benefit of any permit from the Town of Monroe. Ex. B also indicates the total cost of the work to be performed was $20, 000.00, which is less than the price indicated in the Proposal to J. Francis (Ex. 1), which was $26, 500.00.
Hanlon claims he also did extra work at the premises, but has not provided any firm details or additional invoices.
The defendant Fred Collazo agrees that the materials and fixtures shown in photographic Exhibits H, I, J, K, L and M were installed at the Collazo residence by Hanlon, who started work at the residence in December 2013. However, Collazo stated that he was informed by Mr. Kiernan of J. Francis Builders that the progress of the renovations were lagging due to delays by Hanlon. (Ex. G.) This prompted Collazo to keep a written work log verifying that between March 26, 2014 and April 1, 2014, Hanlon was at the premises only on March 30, 2014. Hanlon informed Colazzo that Hanlon could only work at the Collazo residence on Sundays, due to work commitments Hanlon had the other six days of the week.
Ex. G is a print-out of e-mail correspondence between Fred Collazo and John Kiernan of J. Francis Builders, dated March 11, 2014 and March 13, 2014.
Collazo also testified that he contracted with J. Francis Builders for a total job price of $290, 302.61 and was never made aware of any Proposal between Hanlon and J, Francis regarding the subcontracting of the plumbing work. He stated that Hanlon refused to discuss the terms of any subcontracting price for plumbing and heating work. Therefore, Collazo was aware of the contract price he agreed to with J. Francis, but was unaware of what Hanlon was charging J. Francis for plumbing and heating work at the premises. Collazo expected to pay J. Francis for the materials and fixtures selected at Lewin Plumbing and Heating, but was never informed of the price and was never presented a contract addendum or change order indicating an increase in the job price by J. Francis, which would include the purchase of the plumbing fixtures and additional material that Hanlon now claims he paid for.
Colazzo presented copies of two bank checks dated June 13, 2013 and December 10, 2013, from the Wells Fargo Home Mortgage division of Wells Fargo Bank, N.A., each payable to J. Francis Builders, LLC and Freddie and Ida Collazo. (Ex. E.) Each check was in the amount of $71, 417.48 for a total payment of $142, 834.96. These checks were given to John Kiernan of J. Francis Builders and were deposited by J. Francis Builders.
Collazo further testified that because J. Francis and Hanlon never completed the construction, plumbing and heating work, he had to hire an additional contractor and plumber to complete the renovations to the fire damaged house . . . The additional plumbing costs were $12, 000.00 to $15, 000.00 according to Fred Collazo. However, Collazo presented no invoices and no witnesses regarding these additional expenses. Collazo testified that he discharged J. Francis Builders from the job in May 2014.
Collazo did enter into evidence two additional plumbing permits from the Town of Monroe dated September 18, 2014 (Ex. C) and October 20, 2014 (Ex. D), as evidence that additional plumbing and heating work had to be completed. These permits noted such things as the installation of fixtures, boiler and gas lines at a total estimated cost of $11, 699.14.
In claiming that the Collazo defendants owe him $10, 400.00 for work performed at the premises, the plaintiff, Hanlon, argues that the payments by the Collazos to J. Francis Builders, the general contractor, does not absolve the homeowners from making payments to Hanlon, the subcontractor. In support, the plaintiff relies upon Andy's Oil Serv. v. Hobbs, 125 Conn.App. 708, 89 A.3d 433 (2010). In Andy's, supra, the homeowners contracted with the general contractor, Hobbs, for certain improvements to the homeowners' residence. Hobbs, in turn, subcontracted out the installation of a heating and air conditioning system to the subcontractor, Andy's Oil Service. Andy's performed its duties, but was not compensated. Andy brought a breach of contract action against Hobbs and an unjust enrichment action against the homeowners. Id., 722. Among other defenses, the homeowners argued that they made good faith payments to the general contractor, Hobbs, and that these payments absolved them from any payments to the subcontractor, Andy's. Id., 710-12.
The Appellate Court ruled that Andy's could bring an action for unjust enrichment against the defendant homeowners. Id., 720-21. However, Andy's is not on point with the facts of the present case. In Andy's, supra, the Appellate Court found that the defendant homeowners unjustly did not pay, the plaintiff subcontractor who installed heating and air conditioning system for the home because although the homeowners did make payments to the general contractor, Hobbs, pursuant to the homeowners' contract with the general contractor, which required progress payments, Hobbs testified that he received the first three progress payments from the homeowners and that none of those payments covered installation of the heating and air conditioning system installed by Andy's. The general contractor, testified that the homeowners informed him that they were refusing to make the final progress payment upon completion of the work called for in the contract with Hobbs, which resulted in an unjust enrichment to the homeowners for the completed work, including the work performed by Andy's. Id., 721-22.
In the present case, there is no evidence that the defendant homeowners withheld payments from J. Francis Builders or that the payments they made in the amount of $142, 834.96 did not cover the amount of work Hanlon, the subcontractor, performed pursuant to the Proposal agreement that Hanlon had with the general contractor, J. Francis for plumbing and heating work at the premises. Unlike Andy's Oil Serv. v. Hobbs, supra, 125 Conn.App. 708, and unfortunately for the plaintiff, the general contractor, who is deceased, was not available to testify as to how the payments made to him by the Collazos were applied or whether or not the Collazos withheld any scheduled progress payments. Absent such evidence and testimony, the court concludes that the Collazo defendants' payments were made in good faith. These defendants had no reason to believe that payments to Hanlon would not be made from the payments they made to J. Francis. The defendants were never made aware of the Proposal agreement between Hanlon and J. Francis and what amounts Hanlon was charging for his services.
The equitable remedy of unjust enrichment may be invoked when justice requires that a party be compensated " 'for property or services rendered under a contract, and no [legal] remedy is available by an action on the contract.' 5 Williston, Contracts (Rev.Ed.) § 1479." Cecio Bros., Inc. v. Greenwich, 156 Conn. 561, 564, 244 A.2d 404 (1968); Bolmer v. Kocet, 6 Conn.App. 595, 612, 507 A.2d 129 (1986). As an equitable right, unjust enrichment is based on the principle that in a given situation, " it is contrary to equity and good conscience for the defendant to retain a benefit which has come to him at the expense of the plaintiff." National CSS, Inc. v. Stamford, 195 Conn. 587, 597, 489 A.2d 1034 (1985). " All the facts of each case must be examined to determine whether the circumstances render it 'just or unjust, equitable or inequitable, conscionable or unconscionable, ' to apply the doctrine." Bolmer v. Kocet, supra, 6 Conn.App. 613, 507 A.2d 129.
" The right of recovery for unjust enrichment is equitable, its basis being that in a given situation it is contrary to equity and good conscience for [one] to retain a benefit which has come to him at the expense of [another]." (Internal quotation marks omitted.) National CSS, Inc. v. Stamford, 195 Conn. 587, 597, 489 A.2d 1034 (1985). A court may award a plaintiff damages under the doctrine of unjust enrichment if the plaintiff can establish " (1) that the [defendant was] benefitted, (2) that the [defendant] unjustly did not pay the [plaintiff] for the benefits, and (3) that the failure of payment was to the [plaintiff's] detriment." (Internal quotation marks omitted.) Polverari v. Peatt, 29 Conn.App. 191, 201, 614 A.2d 484, cert. denied, 224 Conn. 913, 617 A.2d 166 (1992). The burden of proving unjust enrichment is placed on the plaintiff. Montanaro Bros. Builders, Inc. v. Snow, 190 Conn. 481, 490, 460 A.2d 1297 (1983).
The plaintiff, Hanlon, demonstrated that the Collazos derived a benefit from the plaintiff's agreement with J. Francis Builders, that is, plumbing and heating contracting services performed on the premises owned by the Collazos. Yet, if the Collazos paid its contractor, J. Francis Builders, for these services, then any enrichment, in the absence of fraud, was not unjust. The record does not demonstrate that the Collazo defendants failed to pay J. Francis any payments that were required or that there was any fraud involved. While the plaintiff has proved enrichment, he has failed to prove that enrichment to be unjust. See, Garwood & Sons Const. Co., Inc. v. Centos Associates Ltd. Partnership, 8 Conn.App. 185, 511 A.2d 377 (1986) (holding that where subcontractor merely demonstrated that property owner had received a benefit but failed to show that owner had not paid contractor or that there was any fraud involved, subcontractor could not recover under the theory of unjust enrichment). Thus, the defendants do not owe the plaintiff that portion of his claim that totals $10, 400.00.
The fixtures and materials chosen by the Collazos from Lewin P& H Supply Company in April 2014 (Ex. 3), in the amount of $3, 100.70, however, present a different problem. The Proposal between Hanlon and J. Francis specifically provides that " all fixtures shall be provided by others." Thus, there is no doubt that both Hanlon and J. Francis did not expect those costs to be paid by Hanlon. The Construction Agreement (Ex. A) between Fred and Ida Collazo and J. Francis Builders contained a condition that deviations from the scope of work referred to in the agreement would be treated as " additional work, " which would be reflected in a subsequent written document known as a " change order."
The Collazos were aware that they were to pay J. Francis any additional costs associated with plumbing fixtures that they selected. While the Collazos did not receive an expected contract addendum from J. Francis showing an increased price, which would reflect the costs of the materials and fixtures the Collazos chose, they were aware that there was a price to be paid. The selection of these materials and fixtures at Lewin P& H by the Collazos and with their consent occurred in April 2014, ten months after their initial payment to J. Francis in the amount of $71, 417.48 and four months after their second payment to J. Francis in the amount of an additional $71, 417.48. The court does not find it credible that these two payments by the Collazos were to be applied for plumbing and heating materials and fixtures that had yet to be selected, ordered or purchased. The Collazos realized that these items would be extras to be reflected in a change order/contract addendum. The defendant, Fred Collazo, agrees the items shown on the two Lewin invoices were, in fact, used and installed at his home.
The two Lewin invoices (Ex. 3) do not reflect payment for the fixtures and materials listed, therein. The plaintiff testified that he, in fact, paid for the items, which totaled $3, 100.70. While the plaintiff did not present a paid receipt or a canceled check indicating payment, the defendants have not claimed that they paid for these items and do not disagree that the items were installed at their residence. The court finds that the plaintiff's testimony credible and he has met his burden of proof that more probably or likely than not, Hanlon paid the invoice amounts to Lewin Plumbing & Heating, as shown on exhibit 3. Having reached that conclusion, the court finds that the defendants have benefitted from the installation of these items at their residence; they did not pay for this benefit; and that non-payment has been to the plaintiff's detriment. Therefore, the Collazo defendants have been unjustly enriched in an amount $3, 100.70.
Verdict
Accordingly, for the reasons set forth, herein the court finds in favor of the plaintiff, Hanlon's Plumbing Company, LLC., as against the defendants, Fred and Ida Collazo in the amount of Three thousand, one hundred and 70/100 dollars ($3, 100.70) and enters judgment in the plaintiff's favor.