Opinion
No. CV03-0178452S
September 22, 2005
MEMORANDUM OF DECISION
At the outset this case looked like a simple collection matter. In a one-count, two-sentence complaint, the plaintiff claims that it bargained, sold and delivered goods, wares, materials and merchandise to the defendant in the amount of $9,930.58. Twenty-three days later in an amended complaint, it made the exact same allegation, but this time the value of the goods was claimed to be $143,436.66. On July 3, 2003, the defendant filed an Answer denying the two-paragraph complaint and also filed a Special Defense claiming it had a Certificate of Full Payment and Release of all claims against it executed by the plaintiff.
In reviewing the pleading file, it would be impossible to know what the case was even about. The only clue was the name of the plaintiff, Scott Swimming Pools, so this case must be about swimming pools. The trial was scheduled to begin on July 8, 2005. The day before the defendant for the first time noticed an expert to testify on the subject of defective workmanship by the plaintiff in building the pools.
The trial began predictably with James Scott, the owner of the plaintiff for some 42 years, describing the two contracts with the defendant to build both an indoor and outdoor pool at a new housing project of the defendant called Bellefair. The contract price was approximately $263,200 and Scott began building the two pools. He claims he received one late payment of $92,835 on the job and when subsequent bills were not paid, he left the job. He testified that when his company left the job the value of the labor and materials supplied to the job and not paid for was $143,436.66.
On cross-examination of Scott, defense counsel immediately attempted to probe the subject of defective workmanship and the failure to procure municipal permit. This was met with an immediate formal Motion in Limine by plaintiff's counsel on the basis that no special defense of defective workmanship had ever been pled and the notice of the expert witness was untimely.
The court took the matter under consideration and in doing so, realized that the plaintiff also had a problem with its complaint. The complaint only alleged goods and merchandise delivered, but made no claim for labor. Mr. Scott, in testifying, only gave one figure for what his company was owed $143,436.66 for labor and materials, with no breakdown as to how much was for labor and how much was for goods.
The court retook the bench, confronted plaintiff's counsel with the problem with his complaint and advised him that as a result of the complaint and the testimony, it might only be able to award the plaintiff $1. The court advised counsel to sit down with the presiding judge to see if they could settle the case, which they had done earlier that morning, or if that failed, could they come to some agreement as to amending the pleadings so the court could actually decide the case on the merits.
The parties returned to the courtroom and announced they could resolve nothing. Defense counsel stated he would not file a special defense alleging defective workmanship and was waiving the issue.
Plaintiff's counsel then moved to amend the complaint to add labor or services to the complaint which the defendant objected to and which the court sustained. The entire case through discovery and depositions had only been about goods, wares, merchandise and materials.
The court did advise plaintiff's counsel that it would allow him to reopen his direct examination of Mr. Scott to deal with the subject of presenting evidence of the value of the goods and materials separately.
The following morning the plaintiff's counsel filed a written motion and brief to amend the complaint, when that was denied, filed a Motion for Mistrial, basically blaming the court, not counsel, for the deplorable state of the pleadings which motion was denied and finally a motion to withdraw the case, which was also denied. The court did however, grant plaintiff a continuance until August 18, 2005, to proceed with trial. The court asked plaintiff's counsel to provide the detail of the breakdown of costs for goods and materials to defense counsel as soon as possible.
That apparently wasn't done until August 15, 2005, and when the trial was recommenced on August 18, 2005, defense counsel motioned the court to deny plaintiff the opportunity to present its evidence because of the late delivery of the material. The court denied the motion. Although a general claim of prejudice was raised it was never made specific and the court subsequently found no evidence of prejudice.
On August 18, the plaintiff presented the testimony of Fay Platt, who has been Mr. Scott's secretary and bookkeeper for 41 years. She basically keeps track of all labor and materials going into each job and was familiar with the Bellefair job. As invoices are paid they are added to the job. She went through all the invoices for this job assembled in Plaintiff's Exhibit 17, those items specifically ordered for the job and those items out of inventory that she also priced out of paid invoices. Her testimony was clear, thorough and convincing. She then presented Plaintiff's Exhibit 18, which was her summary and recapitulation of the cost of all materials, goods, wares and merchandise sold to the Bellefair job that were related to the outdoor pool. All materials had been supplied to that project and not paid for.
Those invoices totaled $66,394.96 to which she added sales tax at 6 3/4% in the amount of $4,481.65 to that she added a 15% charge for delivery in the amount of $9,959.24 plus a markup for profit and overhead in the amount of $34,759.41 for a total of $115,595.26. Mr. Scott then testified that the 15% markup for delivery is fair and reasonable in the industry. He then described how the arithmetic is done for the profit and overhead in coming up with the figure of $34,759.41 and testified that is the industry standard and fair and reasonable. The defendant's expert John C. Romano, whose company, All American Custom Pools Inc. finished the job, confirmed that these numbers were in fact the industry standard, and fair and reasonable.
At the close of the plaintiff's case, the defendant filed an oral Motion to Dismiss on the basis that the plaintiff had sued the wrong party. The named defendant was Spectrum Skanska, Inc. Defense counsel argued that no exhibit or testimony mentioned Spectrum Skanska, Inc. That is true. The first purchase order, Plaintiff's Exhibit 1 for the outdoor pool describes the buyers as Bellefair Home and Land Company c/o Spectrum SkanskaUSA and the second purchase order for the indoor pool, Plaintiff's Exhibit 2, which was partially cut off, names the buyer as Spectrum SkanskaUSA, but also names Bellefair.
The address for Bellefair Home and Land Company, 249 Lincoln Avenue, Rye Brook, NY 10573, is also the address at which Spectrum Skanska, Inc was served process in this case.
The court denied the motion orally and stated its reasons on the record. The defendant on the merits in raising this issue again. The court rather than repeating what it said in denying the Motion to Dismiss will adopt what it said for purposes of the case in chief and incorporate it as part of this memorandum. In addition, the testimony of Andrew Stark, a defense witness, is now pertinent to this issue. He is a Senior Vice President of Spectrum Skanska, Inc. and a member of the partnership Bellefair Home and Land Company, which actually owned the land on which the two pools were partially constructed. Stark was the project manager for the Bellefair project. He testified as to the relationship between Spectrum Skanska, Inc., its DBA Spectrum SkanskaUSA, Spectrum Bellefair Corporation and Bellefair Home and Land Company.
All of the evidence is supportive of the court's earlier decision that Spectrum Skanska, Inc was a permissible defendant to sue. The most persuasive evidence of that is that this defendant did nothing pleading wise to defend on that subject or raise it in any way. What it did do, was specifically plead in a Special Defense that it was released from any further payment by a Certificate of Full Payment and Release [Defendant's Exhibit G) that it claims was signed by someone on behalf of the plaintiff. That release does not specifically mention Spectrum Skanska, Inc., but only it's associated companies. It wants to at the same time make use of the release in which it was not named and if that fails say it is the wrong party defendant, because it had no contractual relationship to the plaintiff. This court rejects that position.
On that subject the plaintiff cites the case of Namura v. Machulsky, 96 Conn. 465 (1921) as supportive of its claim that in order to raise the issue of wrong party defendant, the defendant was required to plead it as a special defense or it has waived the issue. The defendant cites the case of Pacelli v. Butte, 1999 WL 1212227 (unreported) as supportive of its claim that a wrong party defendant defense does not have to be specially plead.
Neither case is on point factually with this case and neither is directly supportive of either the plaintiff's or the defendant's argument on this issue. In Machulsky, plumbers Balthrush and Mitchell were sued individually instead of in their corporate capacity, Balthrush and Mitchell Incorporated. The plumbers asserted a defense based on the failure to name the incorporated entity. The court held that the defense of corporate liability instead of individual liability should have been specially pleaded.
In Pacelli, the plaintiff sued the individual defendant Ivan Butts to recover the value of a trailer it claimed was held by the defendant as bailee. In his defense the defendant testified that at all times he was acting in his corporate capacity as President of Stillman Auto Sales, Inc. The plaintiff objected to that evidence. The court held that because the issue of corporate capacity was never pled, it was waived.
Section 10-50 of the Connecticut Rules of Practice states "No facts may be proved under a general or special denial except such as show that the plaintiff's statements of fact are true or untrue." Facts that are consistent with such statements, but show notwithstanding that the plaintiff has no cause of action must be specially alleged. An example of that would be a "release" which was specially pled as a defense herein.
That is simply not the issue here. Here the plaintiff chose to sue a particular defendant, Spectrum Skanska, Inc. for goods sold and delivered to it. This defendant denied that fact and claims the plaintiff has not proven any contractual relationship between the parties. The court finds that defense need not have been specially pled.
For reasons, however, previously stated this court finds the defendant was a proper party defendant. Though this court abhors this kind of sandbag practice, it cannot do much about it. A simple answer would be to agree with the plaintiff that a special defense was required but I don't believe the rules require it. The pleadings in this case would provide a textbook on how not to plead a case. Despite that the defendant has filed an appearance in the case, denied the allegations of the complaint, and offered a special defense of payment and release even though it is not even mentioned in the release. It seems to argue that Bellefair Home and Land Company would have been the proper or better defendant. It doesn't argue that Bellefair and this defendant don't have certain obvious connections. Its main witness, Andrew Stark, was a Vice President of this defendant and the project manager for Bellefair in building out the project. Both Bellefair and this defendant utilize the same business address which in fact is where this defendant was served in this case.
The last and most disturbing part of the case is the Contractor/Supplier/Vendor Certificate of Full Payment and Release (Defendant's Exhibit G) dated January 16, 2002. It is disturbing because it implicates two witnesses' testimony, James Scott and Andrew Stark. They testified to the existence or non-existence of a settlement agreement. Although it is difficult to sometime accept, one of them in committing perjury. Hopefully the court does not think it needs to specifically decide that issue.
Mr. Stark testified that he had a telephone conversation with James Scott in the summer of 2001 about the job. He claims that Scott called him again in the fall of 2001 asking to be paid the $143,436 he claims he was owed. Apparently there was another small invoice in the amount of $767.78 from Scott to Bellefair for chemicals that also was unpaid.
Stark claimed he offered to pay the $767 invoice for a full release of the $143,436 claim and that Scott agreed. He then had a check cut for $767 and that somehow on January 16, 2002, someone on behalf of Scott picked up the check, signed the release and the check was cashed. Unfortunately, the original of that release was somehow lost by Stark although he was aware of its importance.
A copy of the release was introduced as Defendant's Exhibit G. There is a signature block ostensibly signed by someone on behalf of Scott Pools, that is simply undecipherable. The claim is that it is a William Holland, who did at the time work for Scott Pools. That signature was notarized by Samantha Castrignano, an employee of the defendant or one of its entities. The defense then introduced as Defendant's Exhibit E a W-4 tax form ostensibly signed by William Holland which can be read. It then seems to ask the court to become a handwriting expert and conclude from two unknowns, that William Holland signed Defendant's Exhibit G. That simply can't be done and the court specifically does not find that.
On the other hand, Mr. Scott, on rebuttal, testified that he has had one conversation in his life with Andrew Stark and that was in July of 2000, when he was in the outdoor pool at Bellefair and that Mr. Stark was there complaining about some cracked tiles. He says that there were no conversations with Stark in 2001 and there was no settlement. He acknowledges that he did employ a William Holland in 2002, that he played a minor role in the company, had nothing to do with the Bellefair job and had no signing authority of any kind for the company. Only Scott or Fay Platt could sign.
What is so bizarre about this conflict is that neither side called either Holland or Castrignano to testify as to the execution of the original of Defendant's Exhibit G on January 16, 2002 or offered any insight or explanation as to whether either was available or unavailable. Certainly the defendant's employee, Samantha Castrignano could testify as to Holland's identity, whether she asked for his authority to sign the release or even asked for photo identification from him.
The defendant has raised the special defense of payment and release and has the burden of proof to establish it. It has completely failed to do so. Because the court doesn't find proven who, if anyone, signed the original to Defendant's Exhibit G, it doesn't need to decide the subject of real or apparent authority. If it did, it would find no such apparent authority. Essential to the creation of apparent authority are words or conduct of the principal, communicated to a third party, that give rise to the appearance and belief that agent possesses authority to enter into a transaction. Hallock v. State of New York, 64 NY.2d 224, 231 (1984). There was no such testimony or evidence. Everything about the purported Release, including losing it, and the casual and uncaring execution of such an important document, leads the court to doubt its authenticity. The special defense has not been proved.
Judgment will therefore enter for the plaintiff in the amount of $115,595.26. The plaintiff is also seeking interest at 10% pursuant to C.G.S. § 37-3a. That is awardable in the court's discretion in a situation where the court concludes it was a liquidated sum and it was being wrongfully withheld. I can't conclude that on the record here. The plaintiff sued only for goods and merchandise while at the same time asking for the costs of labor. It never provided in discovery the basis of its claim even though it was requested and it had it available. It originally demanded payment of $143,536 by counsel's letter, subsequently sued for $9,930 and then amended the amount to $143,436.66. The claim for interest is denied.
Gormley, J.T.R.