3M MILLARD ENTERPRISES v. DEL FAVERO VERMONT LIMITED PARTNERSHIP.

2009 Ct. Sup. 19427
No. MMX CV08 500 4512 SConnecticut Superior Court Judicial District of Middlesex at Middletown
September 21, 2009

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION
BEAR, J.

On September 2, 2009, the court tried this matter. The plaintiff was allowed to amend its complaint which was previously in one count for foreclosure of a mechanic’s lien by adding a second count for alleged quantum meruit/unjust enrichment.

The court finds the following facts by a fair preponderance of the evidence:

1. The plaintiff installs, inter alia, P-18ARL 3M window film in existing buildings on windows, including “transoms,” and on glass doors. Such windows, transoms and glass doors are referred to by the plaintiff as “lites.”

2. In April or May 2007, the plaintiff was contacted by Donna Cathcart of VHB, Inc. (“VHB”) about the possible installation of such film on glass areas in VHB’s tenant space in a building owned by the defendant Del Favero Limited Partnership (mistakenly identified by the plaintiff in its complaint as Del Favero Vermont Limited Partnership) at 54 Tuttle Place, Middletown, CT 06457. At that time, VHB was in the process of determining whether to extend its lease.

3. A representative of the plaintiff met with Ms. Cathcart and on May 23, 2007, the plaintiff submitted a revised proposal addressed to her at VHB to provide such film on 52 lites on the south and west facades of VHB’s leased space. (Exhibit 2.)

4. Such 52 lites were part of but did not include all of the glass areas on the south and west facades of the space occupied by VHB.

5. Such revised proposal provided that the price for such installation was $5,595.00 plus tax, and that the “soonest available date” for installation was July 5 and July 6, 2007. Id. Such proposal also contained provisions for a finance charge of 1.5% per month after default CT Page 19428 in payment and for “all costs of collection including a reasonable attorneys fee on the unpaid balance . . .” Id. A 50% deposit was specified on acceptance and the balance was due on completion. Another provision was as follows:

Any alteration or deviation from above specifications involving extra costs will be executed only upon written orders, and will become an Extra charge over an[d] above the estimate.

Francis Merola, a member of the plaintiff, signed the revised proposal. He testified at the trial.

6. After Ms. Cathcart and VHB learned the cost of the proposed work, they turned the proposal over to the management entity for the building. Such management entity was run by Jeffrey Del Favero, who testified at the trial.

7. At some point prior to July 5, 2007, possibly on or about July 2, 2007, such representative accepted the plaintiff’s proposal for the specified work. Such acceptance contained the following language:

The above prices, specifications and conditions are satisfactory and are hereby accepted. You are authorized to do the work as specified. Payment will be made as outlined above.

8. On July 5, 2007, the plaintiff sent by facsimile transmission invoice 8590 to

VHB, Inc.
Jeff Delfavore
54 Tuttle Place
Middletown, CT 06457

in the amount of $5,930.70, including sales tax, “to install P18ARL to 52 lites.” (Exhibit A.) The terms were C.O.D. and the seller’s representative was identified as FLM. Id.

9. On July 5 and 6, 2007, however, the plaintiff installed film on 91 (or 92) lites including the 52 lites that had previously been agreed upon by the defendant. CT Page 19429

10. On or about July 6, 2007, the defendant tendered payment of invoice 8590 by check.

11. On July 11, 2007, the plaintiff sent by facsimile transmission a summary of the VHB project that included language setting forth the original proposal of “52 lites for $5,930.70 [p]er Donna Cathcart/Mark” and the “[c]urrent [p]roject (actually done)” of “91 lites/South and West totally Per Jeff Delfavore” with a project cost “after CHANGE order” of $10,378.72. The difference was set forth as $4,448.02. (Exhibit 3.)

12. On July 16, 2007, the plaintiff’s attorney wrote to Donna Cathcart in part as follows:

Please be advised that this office represents Millard Enterprises, LLC, in their claim for reimbursement for the expenses incurred in connection with the window filming of your property. There is no question that the company filmed all of the windows that it is seeking compensation for. Regardless of whether there was an agreement for filming all of the windows, you have the benefit of this. Obviously it is my client’s position that you requested that all of the windows in question be filmed . . .
. . . the company will also be filing a mechanics lien on the property, which will entitle them to costs and attorneys fees.
(Exhibit C.) As set forth above, Ms. Cathcart was an employee of the tenant and not of the owner of the building. Mr. Merola testified that during April-July 2007, he did not perceive the difference between the owner Del Favero and the tenant VHB, and the legal significance of that difference. The defendant denied that Mr. Del Favero had requested that the plaintiff place film on the 91 (or 92) lites instead of the 52 lites referred to in the May 23, 2007, revised proposal. (Response to requests for admission 4.)

13. On or about July 30, 2007, such check in the amount of $5,930.70 was returned by the plaintiff’s attorney to the defendant’s attorney. (Exhibit B.) Such check had contained an accord and satisfaction condition. Id. The plaintiff’s counsel wrote that “. . . since the check has been forwarded with this limitation, it is not acceptable credit CT Page 19430 towards the payment.” Id.

14. On August 16, 2007, allegedly “. . . in accordance with a certain verbal contract between it . . . and Jeffrey Del Favero of The Del Favero Family Limited Partnership of Connecticut . . .” 3M Millard Enterprises placed a mechanic’s lien on property known as 54 Tuttle Place, Middletown, CT, in the amount of $10,100 plus anticipated interest and attorneys fees for a total of $15,000. The lien was “. . . for services rendered and materials furnished in the installation of Ninety-One (91) lites and window filming of said buildings located on property known as 54 Tuttle Place . . . recorded in the name of The Del Favero Limited Partnership . . .” (Exhibit 1).

15. The defendant does not dispute that it owes $5,930.70 to the plaintiff pursuant to the May 23, 2007, revised proposal for the defendant filming 52 lites in the space occupied by VHB.

16. The plaintiff failed to prove that there was an agreement between the defendant and it for extra work for the filming of an additional 39 (or 40) lites at an additional cost of $4,448.02.

17. The plaintiff did not prove (a) that the defendant owner/landlord was benefitted by the filming of the additional 39 (or 40) lites, or (b) that such defendant/owner unjustly failed to pay the plaintiff for any alleged benefits to it.

The plaintiff’s second count in its second amended complaint is entitled “Quantum Meruit/Unjust Enrichment.” In such count the plaintiff alleges that the reasonable value of the window filming including sales tax is $10,378.72 and that the defendant received an invoice in that amount but did not pay it. The plaintiff also alleges that the defendant,” . . . through its tenant who occupies said space, has received the benefit of the film for its tenant including the reduced heat costs, reduced glare and (a)esthetic value . . . Furthermore, the defendant knew that the plaintiff provided benefit in addition to what the defendant understood the agreement to be and allowed the plaintiff to install the film without objection . . . Plaintiff is entitled to payment for the reasonable value of the work performed . . . The defendant is in breach of the contract between the parties.”

In Gagne v. Vaccaro, 255 Conn. 390, 401, 408-09, 766 A.2d 416 (2001), the Supreme Court discussed and explained the interrelationship between essentially equitable quantum meruit and unjust enrichment claims:

We turn next to the doctrines of quantum meruit and CT Page 19431 unjust enrichment. See footnote 10 of this opinion. Quantum meruit is a theory of contract recovery that does not depend upon the existence of a contract, either express or implied in fact. Fischer Co. v. Morrison, 137 Conn. 399, 403, 78 A.2d 242
(1951). Rather, quantum meruit arises out of the need to avoid unjust enrichment to a party, even in the absence of an actual agreement. Fischer v. Kennedy, 106 Conn. 484, 492, 138 A. 503 (1927); see also Sidney v. DeVries, 215 Conn. 350, 351-52 n. 1, 575 A.2d 228
(1990) (quantum meruit and unjust enrichment are common-law principles of restitution; both are noncontractual means of recovery without valid contract). Quantum meruit literally means “`as much as he has deserved’ . . .” Black’s Law Dictionary (7th Ed. 1999). Centered on the prevention of injustice, quantum meruit strikes the appropriate balance by evaluating the equities and guaranteeing that the party who has rendered services receives a reasonable sum for those services. Unjust enrichment applies whenever “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 . . .” 12 S. Williston, Contracts (3d Ed. 1970) § 1479, p. 272. Indeed, lack of a remedy under the contract is a precondition for recovery based upon unjust enrichment. Not unlike quantum meruit, it is a doctrine based on the postulate that it is contrary to equity and fairness for a defendant to retain a benefit at the expense of the plaintiff. See National CSS, Inc. v. Stamford, 195 Conn. 587, 597, 489 A.2d 1034
(1985).
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As we have recognized often, “[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. Franks v. Lockwood, 146 Conn. 273, 278, 150 A.2d 215 [1959]; Schleicher v. Schleicher, 120 Conn. 528, 534, 182 A. 162 [1935]. Connecticut National Bank v. Chapman, 153 Conn. 393, 399, 216 A.2d 814
[1966]. With no other test than what, under a given set of circumstances, is just or unjust, equitable or CT Page 19432 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. Cecio Bros., Inc. v. Greenwich, [ 156 Conn. 561, 564-65, 244 A.2d 404 (1968)] . . . Providence Electric Co. v. Sutton Place, Inc., 161 Conn. 242, 246, 287 A.2d 379 (1971); Hartford Whalers Hockey Club v. Uniroyal Goodrich Tire Co., 231 Conn. 276, 282, 649 A.2d 518 (1994).” (Internal quotation marks omitted.) Meaney v. Connecticut Hospital Ass’n., Inc., 250 Conn. 500, 511-12, 735 A.2d 813
(1999).
Unjust enrichment is a very broad and flexible equitable doctrine that has as its basis the principle that it is contrary to equity and good conscience for a defendant to retain a benefit that has come to him at the expense of the plaintiff. National CSS, Inc. v. Stamford, supra, 195 Conn. 597. The doctrine’s three basic requirements are that (1) the defendant was benefited, (2) the defendant unjustly failed to pay the plaintiff for the benefits, and (3) the failure of payment was to the plaintiff’s detriment. Bolmer v. Kocet, 6 Conn.App. 595, 612-13, 507 A.2d 129
(1986). 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. Meaney v. Connecticut Hospital Assn., Inc., supra, 250 Conn. 511-12. Accordingly, in the present case, Gagne was required to prove in the trial court that Vaccaro had received a benefit at his expense under circumstances that would otherwise make it unjust for Vaccaro to retain the benefit. This highly fact-intensive inquiry was conducted by the jury in this case, and, as evidenced by its answers to the interrogatories, was determined in Gagne’s favor.

In the more recent case of Vertex v. Waterbury, 278 Conn. 557, 573, 898 A.2d 178 (2006), the Supreme Court also set forth the three elements of a successful unjust enrichment claim:

Plaintiffs seeking recovery for unjust enrichment must prove (1) that the defendants were benefited, (2) that the defendants unjustly did not pay the plaintiffs for CT Page 19433 the benefits, and (3) that the failure of payment was to the plaintiffs’ detriment. (Citations omitted; internal quotation marks omitted.) Hartford Whalers Hockey Club v. Uniroyal Goodrich Tire Co., 231 Conn. 276, 282-83, 649 A.2d 518 (1994).

In Utzler v. Braca, 115 Conn.App. 261, 267-68 (2009), the Appellate Court referred to the limited scope of review of a trial court’s factual findings with respect to whether the plaintiff has proved an unjust enrichment claim:

. . . Furthermore, 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; internal quotation marks omitted.) Hartford Whalers Hockey Club v. Uniroyal Goodrich Tire Co., 231 Conn. 276, 283, 649 A.2d 518 (1994).

In this case the court was able to observe that Mssrs. Merola and Del Favero were experienced in business. Mr. Merola, by way of example, testified that the plaintiff performed approximately 1100 jobs per year. In approximately April 2007, Donna Cathcart, an employee of VHB, a tenant in a building owned by the defendant, contacted the plaintiff to discuss placement of 3M film on at least some of the south and west lites in its leased space to reduce glare that interfered with computer screens used by employees in such tenant space. On May 23, 2007, after Mr. Merola examined the premises and spoke to Ms. Cathcart, he provided a proposal to film 52 of the lites on the south and west facades of the leased premises. After learning the cost thereof, the tenant referred the proposal to Mr. Del Favero. The tenant VHB was about to renew or extend its lease, and in order to resolve a tenant issue or matter of concern to the tenant and to encourage such renewal, Mr. Del Favero agreed on behalf of the owner to the plaintiff’s proposal for installation of film on 52 lites. The import of some of Mr. Del Favero’s testimony was that the owner was willing to accommodate the tenant but at the minimum reasonable possible cost which meant keeping to a minimum the number of lites to be filmed to alleviate the tenant employee concerns in the VHB leased CT Page 19434 space.

On July 5 and 6, 2007, without prior consultation between the plaintiff and the defendant, the plaintiff’s employees installed film on 91 or 92 of the lites on the south and west facades of the leased premises instead of on only 52 lites. The plaintiff did not prove at trial that the defendant benefitted from or was unjustly enriched by the installation of film on 39 or 40 additional lites, many of which lites were smaller transoms above tall ground level lites.

As set forth above, the defendant has not disputed that it owes the plaintiff $5,930.70 pursuant to the May 23, 2007, revised proposal that it accepted. On or before October 19, 2009, the defendant shall tender such amount to the defendant in good U.S. funds (unless this order is automatically stayed). If the defendant does not so, the court shall be notified and it will consider the defendant’s assertion concerning the effect of General States § 49-36(c) on such mechanic’s lien. If the defendant tenders such amount, the plaintiff shall cooperate as necessary with respect to placing on the land records the satisfaction and/or dissolution of such lien.

Under the circumstances at this time the plaintiff is not entitled to attorneys fees or costs.

CT Page 19435