Opinion
No. CV05-400 49 88 S, CV 06-500 13 30 S
August 8, 2008
MEMORANDUM OF DECISION
Procedural Background
These two related cases arise out of a business relationship between James DeVito ("DeVito") and Salvatore Dinardo ("Dinardo"), and a parcel of real property at 575 Asylum Street, Bridgeport (the "Property"). The Property is owned by a company, Pay Day, Inc. ("Pay Day"), of which Dinardo is a part owner. Site clearing work at the Property was performed by Waterview Site Services, Inc. ("Waterview"). a company partially owned by DeVito. In one action, DeVito personally brought an action against Dinardo and Pay Day. In the other related action, Waterview brought suit against Pay Day. By the consent of all parties, and because these actions arise out of essentially the same set of circumstances, both matters were consolidated for trial to the court. The court hereby issues its decision. The allegations of each case will be discussed as they are relevant to the court's findings.
DeVito v. Dinardo et al.
The operative complaint by DeVito in this case, filed in his personal capacity, contains nine counts, all of which were denied by Dinardo and Pay Day, and tried to the court:
Two additional CUTPA claims against Dinardo and Pay Day were withdrawn by DeVito.
(1) breach of contract against Dinardo,
(2) breach of contract against Pay Day,
(3) breach of partnership agreement against Dinardo,
(4) breach of joint venture agreement against Dinardo,
(5) breach of the implied covenant of good faith and fair dealing against Dinardo,
(6) breach of the implied covenant of good faith and fair dealing against Pay Day,
(7) quantum meruit/unjust enrichment against Dinardo,
(8) quantum meruit/unjust enrichment against Pay Day, and
(9) breach of fiduciary duty against Dinardo.
Waterview v. Pay Day et al.
Waterview's amended two-count complaint against Pay Day seeks in the first count to foreclose a mechanic's lien on the Property, and alleges the existence of a contract to perform site work at the Property. Pay Day filed a motion to discharge the mechanic's lien, which was objected to by Waterview. The second count sounds in unjust enrichment based on site work that Waterview performed at the Property, work for which Waterview allegedly was not paid. Pay Day denied the existence of a contract with Waterview, and also asserts two special defenses. First, that Pay Day had no knowledge of Waterview performing site work at the Property, and that any such work was done without the agreement or authorization of Pay Day. As a second special defense, Pay Day asserts a setoff against any recovery by Waterview, alleging that Waterview's actions at the Property resulted in the mining and removal of stone and soil without the permission of Pay Day, which damaged the Property and reduced its value.
Pay Day also filed a counterclaim against Waterview in which it alleged that Waterview had no right to enter the Property and perform site work and remove natural resources, and that the removal of such materials was done without the consent of Pay Day. Waterview denied those allegations, and asserted three special defenses to Pay Day's counterclaim. First, that Pay Day agreed to participate in and benefited from the site work done by Waterview; second, that Pay Day's counterclaim is subject to a setoff as a result of the unjust enrichment Pay Day enjoyed as a result of Waterview's work at the Property; and third, that Pay Day's failure to object to Waterview's actions mean that such claims are barred by waiver and estoppel.
On the theory that DeVito himself might be liable to Pay Day for all or part of a successful claim by Pay Day, DeVito became a third-party defendant in the Waterview v. Pay Day action. The operative third-party complaint of Pay Day against DeVito is in two counts, both of which were denied by DeVito. Count one alleges that DeVito possessed the Property from December 2002 through June 2004, and caused damage to the Property and to Pay Day by removing and selling soil and stone from the Property. Count two alleges that the work performed by Waterview was done without the consent of Pay Day, and was the responsibility of DeVito as the tenant on the Property. DeVito asserted three special defenses to the third-party complaint. First, that Pay Day agreed, participated or benefited from the work; two, that Pay Day's claims are subject to a setoff because it benefited from DeVito's actions; and three, that Pay Day's claims are barred by waiver and estoppel in that Pay Day failed to notify DeVito and/or object and/or consented to his actions.
Discussion
This litigation centers around the Property, a vacant lot in an industrial area of Bridgeport, and the divergent expectations of the parties as to its business use and purposes during an approximate 18-month period ending in the summer of 2004. DeVito is a general contractor who is an owner or officer of several different companies such as Waterview. He has been engaged in all aspects of construction business in the area for almost 35 years. Dinardo is an area real estate investor with over 30 years experience, and serves as an officer of many different companies created in connection with his extensive real estate holdings. These companies include Pay Day, which owns the Property.
The business relationship between DeVito and Dinardo actually goes back several years before the Property figured into their plans. It started in the mid-1990s when Dinardo supplied crushed stone for DeVito to sell at a location in the city of Norwalk, where DeVito also maintained a contractor's yard. The two men created a company for the sale of construction products, as well as another entity in which the two were equal partners, 70 Water Street, LLC, ("Water Street") named after the address where DeVito rented space for his business. Water Street ended up purchasing the property where DeVito was doing business. Dinardo later ended up buying out DeVito's interest in Water Street, while DeVito remained on there as a tenant. The Norwalk history between the parties stands in contrast to their dealings with the Property in Bridgeport, as the Norwalk dealings are somewhat supported by documents such as a promissory note and an executed lease agreement. Other transactions between the parties around this time included a six figure loan from Dinardo to DeVito for the purchase of another property by DeVito, but no promissory note evidenced that loan.
Pay Day had purchased the Property in 2001, which stood empty. Zoning enforcement issues had developed by that time with the city of Norwalk over DeVito's and Waterview's continued business operation on Water Street at the location owned by Dinardo's company. Looking to avoid a zoning battle and the possible loss of other tenants at Water Street, Dinardo approached DeVito with a proposal for the Property sometime in late 2001 or early 2002. The parties offered conflicting testimony as to what that proposal was. Dinardo and Pay Day contend that they entered into an oral lease for the Property with DeVito and his company Waterview. The oral lease called for DeVito and Waterview to use the Property as a contractor's yard or construction yard, which was a permitted use for the premises under Bridgeport zoning regulations. Dinardo and Pay Day essentially deny any further business relationship with the plaintiffs at the Property, other than that of landlord-tenant under an oral lease.
DeVito and Waterview contend that they entered into an oral agreement with Dinardo and Pay Day to establish a rock crushing and processing operation on the Property. DeVito knew the site improvements to the Property to make it commercially viable would be very expensive, and he did not have sufficient funds to pay for such work himself or through his companies. Plaintiffs contend that an oral agreement existed to purchase a rock crushing machine and portable office trailer for the Property, with the cost to be shared equally by the parties. DeVito contends that once Waterview completed work on the Property so that a rock crushing operation and earth material supply yard could be established, again sharing the cost of such improvements, the Property would be transferred by Dinardo and Pay Day to a company equally owned by Dinardo and DeVito. DeVito also understood that the Property was to include a depot or contractor's yard for use by DeVito's companies.
The plaintiffs' use and occupancy of the Property ended after the defendants commenced an eviction proceeding in June 2004. It was only after the relationship between the parties soured, and it was apparent that the parties had no future working together, that Waterview sought payment for its work from Pay Day. In September 2004, Waterview provided Pay Day with specific invoices detailing Waterview's work on improving the Property, starting in January 2003. Those invoices were received into evidence, and total $260,959.24. The court finds those invoices represented reasonable expenditures which improved the Property.
The original amount sought by Waterview was somewhat higher, and was later adjusted downward.
Before the plaintiffs began working on the Property, it was overgrown and had been unoccupied for a number of years. Due to its proximity to the Bridgeport transfer station, it was loaded with garbage and debris such as appliances, couches, abandoned cars and tree stumps, all of which had to be removed. It was also adjacent to both the city dog pound and a "contaminated pond." At Dinardo's direction, an earthen berm was constructed by Waterview on the Property. The Property contained a great deal of ledge, which necessitated blasting. A rock crusher was purchased to transform the blast rock into gravel that was then used by Waterview to level out the Property. A site manager, Mike Cleary, was hired to coordinate work at the Property. Cleary's testimony corroborated that of DeVito, and his belief in the existence of some form of agreement beyond a mere contractor's yard for Waterview. Cleary was present at two discussions as to plans for the Property between DeVito and Dinardo, and he also spoke to Dinardo briefly several other times when Dinardo visited the Property while work by Waterview was underway.
The trial court is faced with interpreting a course of dealing between DeVito and Dinardo, two parties with a history of doing business with each other, often through their respective companies. It must determine whether or not their relationship as to the Property rose to the level of a contract, joint venture, or a partnership, or whether or not either party was unjustly enriched, or received an improper financial benefit at the expense of the other.
As fact finder, the court is tasked with fixing the terms and scope of the undertakings between the plaintiffs and defendants. The parties have failed to commit their business relationship as to the Property to any form of writing, let alone a writing containing any degree of precision. Precise words and clear contract language serve many beneficial purposes. They ensure not only that a person reading a contract in good faith can understand it, but that a person reading a contract in bad faith cannot misconstrue it, or pretend to misunderstand it. Notwithstanding the lack of such writings here, if an agreement existed, the parties are entitled to the respective benefits which flowed to each of them from their agreement. The lack of documentation memorializing and reducing that agreement to writing is not fatal to the fact finding process. It is, rather, the beginning, not the end, of the court's inquiry.
In pursuit of its fact-finding function, "[i]t is within the province of the trial court . . . to weigh the evidence presented and determine the credibility and effect to be given the evidence . . . Credibility must be assessed . . . not by reading the cold printed record, but by observing firsthand the witness' conduct, demeanor and attitude . . . An appellate court must defer to the trier of fact's assessment of credibility because [i]t is the [fact finder] . . . [who has] an opportunity to observe the demeanor of the witnesses and the parties; thus [the fact finder] is best able to judge the credibility of the witnesses and to draw necessary inferences therefrom . . . Because the trial court is the sole arbiter of witness credibility, it has discretion to reject even uncontested evidence . . ." (Citations omitted; internal quotation marks omitted.) Blum v. Blum, 109 Conn.App. 316, 329 (2008).
The court is thus left to gather the relation between the parties from the testimony and evidence. Clearly a great deal of time and effort went into some form of business venture on the Property. Such an undertaking is fairly to be implied. We are dealing here with an oral understanding between two parties submitted to a fact finder. Whether it be an oral lease for the Property, as the defendants contends, or a full blown partnership, joint venture, or contract, as alleged by the plaintiffs, it is in the nature of things that one or both of the disputing parties may quibble with those findings of fact. Such is the result which is invited and risked when an agreement is not reduced to writing, and a lawsuit ensues. As Professor Corbin noted many years ago in his classic treatise on the law of contract, "[I]t is of much greater importance to realize that the courts must determine the requirements of justice and that the legal effects thus given to expressions of agreement are seldom exactly what one or both of the agreeing parties supposed or expected." A. Corbin, Contracts (1952) § 9, p. 15. With the requirements of justice in mind, the court analyzes herein the respective claims of the parties.
1. Allegations of a Breach of Contract/Joint Venture/Partnership
"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.) Bross v. Hillside Acres, Inc., 92 Conn.App. 773, 780-81, 887 A.2d 420 (2005). Whether stated orally, memorialized in writing, or cast in stone, in order to form a binding contract, there must be mutual assent or a meeting of the minds at the time the contract was formed. In order for there to be a meeting of the minds, the parties must agree that they have entered into a contract and must have similar understanding as to the essential terms. In order to form a binding contract, there must be mutual assent or a meeting of the minds at the time the contract was formed. In order for there to be a meeting of the minds, the parties must agree that they have entered into a contract and must have similar understanding as to the essential terms. Bridgeport Pipe Engineering Co. v. DeMatteo Construction Co., 159 Conn. 242, 249, 268 A.2d 391 (1970).
At the outset, the court notes that its finding as to whether or not a form of contract existed between either DeVito and Dinardo, or their respective corporate entities, is dispositive of many of the issues raised in these consolidated cases. If no contract is found, it would also rule out the existence of a joint venture, much less a partnership, as many of the operative legal principles allowing recovery for the breach of such mutually cooperative arrangements are so closely related. If a contract is found, it would be improper to consider on the same subject matter any implied in law contract remedies such as the doctrine of unjust enrichment. Meaney v. Connecticut Hospital Ass'n., Inc., 250 Conn. 500, 517, 735 A.2d 813 (1999); 1 E. Farnsworth, Contracts (2d Ed. 1998) § 2.20, p. 176.
The pleadings themselves make this abundantly clear, as DeVito's complaint states, " By virtue of the oral agreement entered into between Defendant Dinardo and Plaintiff, a partnership was created." Similarly, the same complaint alleges, " By the agreement entered into between Defendant Dinardo and Plaintiff they agreed to participate in a joint venture . . ." (Emphasis added.)
In a similar vein, the allegations by DeVito of a breach of the covenant of good faith and fair dealing against both Dinardo and Pay Day are also dependent upon a contractual evidentiary foundation, for such covenants are a principal of contract law. "Every contract carries an implied covenant of good faith and fair dealing requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement." (Emphasis added.) Gupta v. New Britain General Hospital, 239 Conn. 574, 598 (1996).
The allegation of a breach of a fiduciary duty owed by Dinardo to DeVito is dependent not upon a finding of a mere contract, but must arise out of a partnership agreement between the two, as alleged in DeVito's complaint. Only then could Dinardo be said, as a matter of law, to have been in a fiduciary relationship with DeVito. In the absence of a finding of a partnership agreement, this claim must fail. Pursuant to General Statutes § 34-44, a partnership is defined as an association of two or more persons to carry on a business for profit. "The distinction between a partnership and a joint venture is often slight, the former commonly entered into to carry on a general business, while the latter is generally limited to a single transaction." Travis v. St. John, 176 Conn. 69, 72, 404 A.2d 885 (1978). To determine the nature of an association, the court must look to the intent of the parties. Id., 73.
Based on this record, the court is unable to find a true "meeting of the minds" such that it can discern the obligations the parties intended to create by agreement, and which the court could therefore enforce as a matter of contract law. Due to the discrepancies in the evidence, compounded by a lack of a written agreement, the court finds that many aspects of the relationship between the parties as to the Property were far too informal to support DeVito and Waterview's burden of proving by a fair preponderance of the evidence the existence of a contract, joint venture or partnership with Dinardo and/or Pay Day based on a common understanding. It is therefore impossible to use a contractual analysis to determine whether or not a breach has occurred, and if so, the measure or extent of the damages resulting from such a breach.
2. Allegations of Quantum Meruit/Unjust Enrichment
In both actions consolidated for trial, DeVito and Waterview allege causes of action against Dinardo and Pay Day sounding in unjust enrichment. "[U]njust enrichment applies wherever 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 . . . A right of recovery under the doctrine of unjust enrichment is essentially 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 . . . With no other test than what, under a given set of circumstances, is just or unjust, equitable or inequitable, conscionable or unconscionable, it becomes necessary in any case where the benefit of the doctrine is claimed, to examine the circumstances and the conduct of the parties and apply this standard . . . Unjust enrichment is, consistent with the principles of equity, a broad and flexible remedy." (Internal quotation marks omitted.) Vertex, Inc. v. Waterbury, 278 Conn. 557, 573, 898 A.2d 178 (2006).
Appellate review of a trial court's finding of unjust enrichment is governed by the well established principle that "the determinations of whether a particular failure to pay was unjust and whether the defendant was benefited are essentially factual findings for the trial court that are subject only to a limited scope of review on appeal . . . Those findings must stand, therefore, unless they are clearly erroneous or involve an abuse of discretion . . . This limited scope of review is consistent with the general proposition that equitable determinations that depend on the balancing of many factors are committed to the sound discretion of the trial court." (Citations omitted.) Hartford Whalers Hockey Club v. Uniroyal Goodrich Tire Co., 231 Conn. 276, 283, 649 A.2d 518 (1994).
The fact that plaintiffs have not sustained their burden of proving the existence of a contract due to a lack of a meeting of the minds by both sides should not obscure the fact that the court finds that DeVito himself believed some form of contract, joint venture or partnership existed. Otherwise, DeVito and Waterview never would have gone to the lengths they did in expending substantial sums in time and money working on improving the Property to the benefit of Pay Day. Particularly as in this case, where the parties are not strangers to each other, it is not the presence or absence of a writing, but the belief that an agreement is in place and will be performed that a party relies upon when he changes his position or incurs expenses because of it. It is clear through their work on the Property that DeVito and Waterview contemplated the performance of an agreement, rather than its breach.
In most matters of human affairs, absolute certainty is seldom attained. This case is unexceptional in that regard. All circumstances surrounding the work done on the Property must be taken into consideration. When weighing the record in a case so laden with circumstantial evidence, the court, mindful of the appropriate burden of proof, forms its opinion of the truth of facts by the greater number of probabilities on one side or the other. In addition, the court heard the testimony and assessed the credibility of all the witnesses, including DeVito and Dinardo themselves. The court finds that Dinardo and Pay Day consented and acquiesced in the performance of the work done at the Property. They cannot plausibly "preserve deniability." The court further finds that the Property owned by Pay Day was improved by the work done by Waterview, which has proven its right to recover money damages against Pay Day based on unjust enrichment. Injustice would result from denying such a remedy. There is ample precedent for this court's decision.
Wainwright v. Talcott, 60 Conn. 43, 22 A. 484 (1891), dealt with a case in which a property owner received the benefit of certain improvements wrought by another person's labor. In that case, the plaintiff allegedly had been assured that his family would inherit the defendant's property. Although the defendant had acquiesced in the plaintiff's improvements to the property, he ultimately devised the improved real estate to another party. Id., 49-50. Identifying the principle animating the complaint, the Supreme Court stated: "The cause of action in such cases is not the refusal to perform a contract, or keep a promise or engagement upon which another relied, but it is the consequent unjust infliction of loss or injury upon one party, and the consequent benefit and advantage resulting to the other, from the violation or breach of a faith and confidence which, under the circumstances, a court of equity deems to have been rightly reposed in him." Id., 52-53.
In 1963, the Supreme Court had occasion to review a case in which the defendant offered and agreed to sell a property to his nephew, the plaintiff, when the defendant reached retirement age. Misisco v. La Maita, 150 Conn. 680, 681-82, 192 A.2d 891 (1963). Although the nephew made substantial alterations and improvements to the property in reliance on his uncle's assurances, the defendant repudiated the agreement. Id., 682. The court stated: "The cause of action . . . is to recover for the loss which the plaintiff has incurred as a result of making, to the enrichment of the defendant, expenditures for and the improvements to the property in reliance on a course of conduct by the defendant which led the plaintiff to believe that the defendant would sell the property to him . . . It is an action in quasi contract, i.e. an obligation, arising by law, on which the same remedy is given as would be given if the obligation arose out of contract . . . Although the right of recovery is based on equitable principles, it is nevertheless an action at law, the purpose of which is to prevent unjust enrichment . . . The only remedy is in an award of money damages." (Citations omitted.) Id., 683-84.
Notwithstanding the claims of Dinardo and Pay Day that Pay Day was not enriched by the work on the Property performed by Waterview, the court finds that it was. The clearing and grading of the Property was done at great trouble and expense by Waterview. It would not have made economic sense to do so without a belief by DeVito and Waterview that they were engaged in a joint venture, for the amount expended far exceeded any rent plaintiffs might reasonable have paid for a construction yard elsewhere, and work on the Property consumed significant portions of labor and money that might have been used in more profitable ventures elsewhere. Pay Day unjustly enriched itself by not compensating Waterview for the enhancement in the value of the Property that was attributable to the services rendered by Waterview. Pay Day's special defenses are not supported by the record.
Defendant Dinardo is a sophisticated businessman; by his own testimony he has been a real estate developer for over 30 years, and controls about 70 different companies. He controls so many that at times he has difficulty remembering his position in each entity. Dinardo uses LLCs such as Pay Day to hold title to his various real estate holdings. He testified that he owns approximately two million square feet of properties, with rent rolls of approximately $800,000 to $900,000 per month. The court finds that Dinardo, in his dealings with Waterview and DeVito, was acting as a vice president and agent of Pay Day, the limited liability company which owns the Property. While the court believes Waterview has established its right to recover as against Pay Day on the theory of unjust enrichment, the plaintiffs have not met their burden of establishing how Dinardo himself should be held individually responsible for any liability attributed to Pay Day.
A court's disregard of an entity's structure is commonly known as "piercing the corporate veil," where the court makes available the personal assets of the owners to satisfy a liability of the corporate entity. Litchfield Asset Management Corp. v. Howell, 70 Conn.App. 133, 148-49, 799 A.2d 298, cert. denied, 261 Conn. 911, 806 A.2d 49 (2002). "The concept of piercing the corporate veil is equitable in nature and courts should pierce the corporate veil only under exceptional circumstances . . . Moreover, it is the party seeking to pierce the corporate veil that bears the burden of proof." Old Farms Associates v. Commissioner of Revenue Services, 279 Conn. 465, 488-89, 903 A.2d 152 (2006).
The plaintiffs have failed to adequately address Dinardo's potential personal liability, and failed to satisfy their burden of proof on this issue. Therefore, the court finds that plaintiffs cannot recover against Dinardo personally on a theory of unjust enrichment. The unjust enrichment flowed to the corporate entity Pay Day, the owner of the Property. In a similar vein, the court finds that plaintiff DeVito is only one of several owners of Waterview. The evidence established that the work at the Property was done by Waterview and invoiced by Waterview to Pay Day. This is reinforced by the mechanic's lien in this case, filed against one corporate entity, Pay Day, by another corporate entity, Waterview, seeking payment for work performed on the Property by that entity. The court finds that DeVito has failed to establish his personal entitlement for money damages for expenses and losses, including the purchase of any machinery, machinery which is still in his possession and has been used by Waterview for other jobs. Accordingly, DeVito himself cannot recover personally against Pay Day. To reiterate, such is the result invited and risked when parties fail to commit their business relationship to writing.
Damages
"Mathematical exactitude in the proof of damages is often impossible, but the plaintiff must nevertheless provide sufficient evidence for the trier to make a fair and reasonable estimate . . . Proof of damages should be established with reasonable certainty and not speculatively and problematically . . ." (Citations omitted; internal quotation marks omitted.) Carrano v. Yale-New Haven Hospital, 279 Conn. 622, 650, 904 A.2d 149 (2006). The court awards damages to Waterview in the amount of $260,959.24 representing the amount of the invoices for work on the Property which benefited Pay Day.
Dinardo and Pay Day assert that they are entitled to a set off for the value of stone and soil removed from the Property. However, Defendants have not provided any basis for the court to determine the amount of any setoff for such materials. In the interests of justice, however, the court does grant Pay Day a set off for the value of the rent for Waterview's use of the Property as a contractor's yard for an 18-month period, running from January 2003, the month when Waterview first began to occupy the Property, through June 2004, the end of the month in which the notice to quit was served. The use of the Property by Waterview as a yard is one area where the court finds the parties were in agreement, and the court finds that no rent was paid by Waterview during that time period. There is also sufficient basis for the court to determine this value, as DeVito testified that contractor's yards in Bridgeport rent for anywhere from $1,500.00 up to $3,000.00 per month for a prime location. Given that range, the court finds a figure of $2,000.00 per month for the Property is appropriate. Accordingly, the judgment of $260,959.24 is offset by $36,000.
Dinardo also testified to other, unrelated business dealings with DeVito, and situations where DeVito did not pay Dinardo for goods or services that Dinardo or one of his companies had provided to DeVito in years past. This testimony was some times interjected by Dinardo in a nonresponsive manner. However, even if such testimony is true, it is still not directly relevant to the claims of the parties as to the Property, but the court believes it may help explain why no payments were made by Pay Day on the invoices Waterview submitted. It also illustrates that perhaps Dinardo takes a more expansive view than the law allows of the equitable concept of setoff for any money Pay Day may be found to owe Waterview for work on the Property.
Waterview also asks the court for statutory interest on its judgment. "The decision of whether to grant interest under § 37-3a is primarily an equitable determination and a matter lying within the discretion of the trial court." Chapman Lumber v. Tager, 288 Conn. 69, 99 (2008). The court finds that equity warrants the imposition of interest in this case, dating from September 14, 2004, the date Waterview provided Pay Day with its invoices for improvements to the Property.
3. Foreclosure of Mechanic's Lien by Waterview
In count one of its complaint against Pay Day, Waterview seeks to foreclose its mechanic's lien on the Property. A certificate of such lien and a notice of intent to claim the lien were received into evidence. The court finds that the date of filing of the lien by Waterview does not render it invalid, as alleged by Pay Day. Despite the court's finding that no express contract between the parties existed in these cases, such a finding does not defeat the mechanic's lien. Judgment has been rendered on behalf of Waterview against Pay Day for unjust enrichment, an implied contract theory. In a case construing the validity of a mechanic's lien in the absence of an express contract, the Supreme Court held, ". . . [I]t is not necessary that the materials shall be furnished under an express contract, but it is enough if they are furnished with the consent of the owner of the land, so that there is an implied contract by him to pay for them." (Emphasis added.) Peck v. Brush, 90 Conn. 651, 654, 98 A. 561 (1916). Accordingly, the court having previously found such consent on the part of Dinardo and Pay Day, foreclosure of Waterview's mechanic's lien on the Property is hereby granted.
CONCLUSION DeVito v. Dinardo
Judgment shall enter for Dinardo and Pay Day on all counts.
Waterview v. Pay Day et al.
Judgment of foreclosure of Waterview's mechanics lien on the Property shall enter as to count one of Waterview's complaint. The matter is continued to October 20, 2008 at 10:00 A.M. for further proceedings for the parties to establish the fair market value of the Property, and for the court to set law days and/or a sale date, award attorneys fees, and make other findings consistent with this judgment.
Judgment shall enter for Waterview on count two of Waterview's complaint alleging unjust enrichment against Pay Day in the amount of $260,959.24, which judgment is offset by $36,000. Total $224,959.24, plus statutory interest from Sept. 14, 2004.
Judgment shall enter for Waterview on counterclaim plaintiff Dinardo's counterclaims.
Judgment shall enter for DeVito on third-party plaintiff Dinardo's third-party complaint.