Opinion
No. CV02-0512659S
March 1, 2004
MEMORANDUM OF DECISION
This case concerns the relationship between the plaintiff who was employed by the defendant, a Limited Liability Company, as an "estimator" with respect to its electrical contracting business. The plaintiff is an experienced master licensed electrician who has extensive experience as a project manager and electrical contractor estimator. Upon closing his own electrical contracting company the plaintiff sought other employment in contacting the defendant, who had at one time been previously employed by the plaintiff.
There were discussions between the plaintiff and the defendant, the principle of the defendant, Jason Moore; with respect to an estimator position. An estimator would price up the material, labor, cost and calculate a profit and bid the job to a general contractor seeking an electrical subcontractor. The parties offered evidence of extensive negotiations and dispute whether, and/or when, any agreement was entered into. The court finds that the plaintiff proved by a fair preponderance of the evidence that plaintiff's Exhibit #3, a May 1, 2001 written agreement, is a contract which engaged the plaintiff as a consultant "estimator." The dispute between the parties concerns whether commissions provided for in the agreement were earned and are due to the plaintiff.
The parties agreed to proceed in a bifurcated fashion with the court first determining liability and then, if necessary, proceeding to a hearing on any damages which might be due to either party.
The plaintiff's complaint is in four counts: the first count asserts that the contract was one of employment; the second count asserts that the contract of May 1, 2001 employed him as an independent contractor to whom the commissions are due; the third count is a claim for unjust enrichment as to the commissions that are allegedly due and the forth count is a claim under Connecticut Unfair Trade Practices Act (CUTPA), 42-110a et. seq.
The defendant has asserted counterclaims in three counts: Count one asserts that a employment contract entered into on May 1, 2002 contains a noncompetition clause which the plaintiff violated. Count two contains a claim of breach of covenant of good faith and fair dealing and count three asserts a claim under Connecticut Unfair Trade Practices Act (CUTPA).
The court finds that the plaintiff has not met his burden of proof as to the first count of his complaint that he had an employment contract. The court finds that the plaintiff has met his burden of proof as to count two, that he had a contract as an independent contractor commencing May 1, 2001 and at the hearing on damages may pursue claims with respect to commissions due pursuant to such contract. In that the plaintiff had an express contract with the defendant, the claim in the third count for unjust enrichment is not available. See Rosick v. Equipment Maintenance Service, Inc., 33 Conn. App. 25, 37, 632 A.2d 1134 (1993); H.B. Tom's Tree Surgery, Inc. v. Brant, 187 Conn. 343, 347, 446 A.2d 1 (1982).
The CUTPA claim is based on statutory provision § 42-110a et. seq., that quote, no person shall engage in unfair methods of competition, unfair or deceptive acts or practices in the conduct of any trade or commerce. In determining what constitutes a violation of CUTPA, The Connecticut Supreme Court has held that courts must apply the so called cigarette rule which asks: 1) whether the practice offends public policy as it has been established by statutes, common law or otherwise; 2) whether it is immoral, unethical, oppressive or unscrupulous, and 3) whether it causes substantial injury to consumers (competitors or other businessmen). Larson Chelsey Realty Cele. v. Larson, 232 Conn. 4 A. 507, 656 A.2d 1009 (1995). The court finds that the plaintiff has failed to meet the requirements of the "cigarette rule" in that he has failed to demonstrate competitive injury.
Accordingly, the plaintiff may proceed only as to count two of its complaint with respect to the damages portion of the court trial. The defendant established that there was a contract between the plaintiff and the defendant, dated May 1, 2002, revising their May 1, 2001 agreement. However, the defendant failed to establish that the plaintiff violated that provision's non-competition clause. Similarly, with respect to count two, breach of covenant of good faith and fair dealing and count three, the CUTPA claim, the defendant has failed to meet his burden of proof that the plaintiff engaged in practices which either violated the contract, or the implicit covenant of good faith and fair dealing, or practices justifying a claim pursuant to CUTPA.
The parties may proceed to hearing and damages as to count two of plaintiff's complaint.
McWeeny, J.