Ne. Builders Supply & Home Ctrs., LLC v. RMM Consulting, LLC, AC 41486

CourtAppellate Court of Connecticut
Writing for the CourtPRESCOTT, J.
Citation202 Conn.App. 315,245 A.3d 804
Parties NORTHEAST BUILDERS SUPPLY & HOME CENTERS, LLC v. RMM CONSULTING, LLC, et al.
Docket NumberAC 41486
Decision Date26 January 2021

202 Conn.App. 315
245 A.3d 804

NORTHEAST BUILDERS SUPPLY & HOME CENTERS, LLC
v.
RMM CONSULTING, LLC, et al.

AC 41486

Appellate Court of Connecticut.

Argued June 15, 2020
Officially released January 26, 2021


245 A.3d 809

Irve J. Goldman, Bridgeport, with whom was Bruce W. Diamond, for the appellants (defendants).

Bruce L. Elstein, Bridgeport, for the appellee (plaintiff).

Keller, Prescott and Devlin, Js.

PRESCOTT, J.

202 Conn.App. 317

The action underlying this appeal involves a dispute over payment for building supplies provided by the plaintiff, Northeast Builders Supply & Home Center, LLC, to the defendants, RMM Consulting, LLC (RMM); Todd Hill Properties, LLC (Todd Hill Properties); Maureen Morrill; and Clifford Jones. The defendants appeal, following a trial to the court, from the judgment rendered in favor of the plaintiff on its one count breach of contract complaint and from the court's earlier partial judgment rendered against the defendants on several counts of their counterclaim following the granting of a motion to strike those counts.1

On appeal, the defendants claim that the court improperly (1) granted the plaintiff's motion to strike four counts of their counterclaim on the ground that the counts were improperly joined because they failed the transaction test set forth in Practice Book § 10-10,2 and (2) rendered judgment in favor of the plaintiff on its complaint and on the sole remaining count of the counterclaim because the court (a) incorrectly determined that the plaintiff was the seller of the goods at issue, (b)

202 Conn.App. 318

wrongly concluded that the individual defendants, Jones and Morrill, were liable as buyers of the goods rather than as guarantors only, (c) failed to properly consider the defendants’ defense of revocation of acceptance, (d) rendered judgment for the plaintiff despite having found that some of the goods at issue were defective and that the plaintiff had refused to remedy or replace them, and (e) incorrectly found that the plaintiff proved its damages to a reasonable degree of certainty.3 We affirm the judgment of the court.

245 A.3d 810

The record reveals the following facts and procedural history relevant to our review of the claims on appeal.4 In September, 2006, the defendants executed a credit application form (agreement) provided to them by an employee of the plaintiff for the purpose of establishing a $100,000 open line of credit with the plaintiff in the names of the defendants RMM and Todd Hill Properties.

202 Conn.App. 319

The agreement was approved and signed by the plaintiff on September 26, 2006.

The "general terms and conditions" section of the agreement provides in relevant part that, in exchange for the extension of credit by the "[s]eller," the "[b]uyer" agrees to make payments in accordance with the terms specified in the agreement.5 The agreement expressly defines the term "[s]eller" as including "[the plaintiff], its subsidiaries , divisions, or its assigns and Divisions: Bridgeport ‘Do It Best’ Lumber, Weed & Duryea Lumber and Home Center, and The Kitchen & Home Planning Center ...."6 (Emphasis added.) The term "[b]uyer" is defined in the agreement as including "any member of the business entity" seeking credit. In addition to agreeing to make all required payments, the buyer agreed that, if legal action was needed to enforce payment, "the [b]uyer will be responsible for all reasonable costs and expenses of collection, including [attorney's] fees and court costs ...." As a condition of approval by the plaintiff, the agreement required that a "[p]ersonal [g]uarantor or [i]ndividual [b]uyer" sign the agreement to ensure an "unlimited guaranty of payment and a primary and unconditional obligation intending to cover

202 Conn.App. 320

all existing and future indebtedness of the [b]uyer to the [s]eller including but not limited to payment of interest and attorney's fees and costs due upon default as provided above and including an[y] indebtedness in excess of the credit limit approved."

245 A.3d 811

Morrill, who was the sole member of both RMM and Todd Hill Properties, signed the agreement in two places—once on a line designated for the buyer and, again, on a separate line marked "Personal Guarantor (2nd/Spouse)." Jones, who is Morrill's husband and a building contractor, signed on a line marked "Personal Guarantor or Individual Buyer."

Soon after establishing their line of credit with the plaintiff, the defendants began to purchase and receive various building materials from the plaintiff for use in several construction projects, including a project converting a property located at 11 Cornwall Road from a multifamily residence into a bed and breakfast.7 The plaintiff provided the defendants with invoices for all materials purchased and also provided regular monthly statements for the credit account, which included any outstanding balances due.8 Beginning in June, 2008, the defendants failed to make payments when they were due, and, by the end of July, 2008, the defendants’ account had fallen into arrears.

202 Conn.App. 321

The plaintiff commenced the underlying action on December 31, 2008. In its one count complaint, the plaintiff alleged that the defendants had failed to pay amounts due and owing to it under the parties’ agreement, despite its demands for payment. According to the complaint, the balance due and owing on the defendants’ credit account was $68,886.58, plus interest. The plaintiff also alleged that it was entitled to recover attorney's fees that it incurred in seeking to collect payment. Together with the complaint, the plaintiff served the defendants with notice of an ex parte prejudgment remedy in accordance with General Statutes § 52-278f.9

The defendants filed their initial answer to the complaint in April, 2009. In that answer, the defendants admitted "that they purchased some items from the plaintiff" but denied that they had done so at any agreed upon price or that they had failed to make required payments. The initial answer included four special defenses and a two count counterclaim directed against the plaintiff. The counts of the counterclaim sounded in breach of contract and a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq.

In June, 2010, the plaintiff filed notice with the court that Morrill had filed a Chapter 11 bankruptcy petition in March, 2010. This resulted in a stay of further proceedings in the underlying action until July, 2015, at which time the Bankruptcy Court, with the consent of the parties,

245 A.3d 812

granted relief from the automatic bankruptcy stay to allow the parties "to proceed with the state court action to conclusion."

On September 2, 2015, the defendants filed an amended answer, special defenses, and counterclaim.

202 Conn.App. 322

In the amended answer, the defendants no longer admitted to having purchased items from the plaintiff, leaving the plaintiff to its proof on that allegation. The defendants also added a fifth special defense in which they asserted that they had not purchased any of the goods and materials referenced in the complaint from the plaintiff and that any such items were supplied by and purchased from the plaintiff's subsidiary, Northwest Lumber and Hardware (Northwest Lumber). The defendants also added two new counts to the counterclaim. Counts one and two continued to sound, respectively, in breach of contract based on the defendants’ alleged receipt of defective materials and a CUTPA violation. The third count challenged, inter alia, whether the agreement was "an effective obligation or guarantee of debts incurred as a result of goods and materials sold and delivered by Northwest [Lumber]."10 The fourth count sought to recover damages that had arisen because of the plaintiff's allegedly improper use of prejudgment remedies in this matter.

The plaintiff filed a motion to strike the amended counterclaim, arguing that the defendants had failed to join Northwest Lumber as a party despite the allegations that suggested that Northwest Lumber was the proper party plaintiff and counterclaim defendant, and that the allegations of damages arising as a result of prejudgment attachments were insufficient to state any cause of action upon which the court could grant relief. The defendants filed an objection. The court, Radcliffe , J ., issued an order granting the motion to strike as to counts two and four of the counterclaim without prejudice to the defendants’ refiling within fifteen days. As part of that order, the court also stated: "The court makes a further finding that there is only one counterclaim defendant, which is the [plaintiff] and there is no other party to the counterclaim."

202 Conn.App. 323
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9 practice notes
  • Wallace v. Caring Sols., AC 43975
    • United States
    • Appellate Court of Connecticut
    • 5 Julio 2022
    ...121 Conn.App. 503, 518 n.12, 997 A.2d 573 (2010); see also Northeast Builders Supply & Home Centers, LLC v. RMM Consulting, LLC, 202 Conn.App. 315, 338, 245 A.3d 804 ("[f] actual allegations contained in pleadings upon which the cause is tried are considered judicial admissions and hence ir......
  • Bernblum v. The Grove Collaborative, LLC, AC 44177
    • United States
    • Appellate Court of Connecticut
    • 19 Abril 2022
    ...mistake has been committed." (Internal quotation marks omitted.) Northeast Builders Supply & Home Centers, LLC v. RMM Consulting, LLC, 202 Conn.App. 315, 353, 245 A.3d 804, cert, denied, 336 Conn. 933, 248 A.3d 709 (2021). Here, the theory of the plaintiff was that it made significant chang......
  • Bernblum v. Grove Collaborative, LLC, AC 44177
    • United States
    • Appellate Court of Connecticut
    • 19 Abril 2022
    ...mistake has been committed." (Internal quotation marks omitted.) Northeast Builders Supply & Home Centers, LLC v. RMM Consulting, LLC , 202 Conn. App. 315, 353, 245 A.3d 804, cert. denied, 336 Conn. 933, 248 A.3d 709 (2021). Here, the theory of the plaintiff was that it made significant cha......
  • Onthank v. Onthank, AC 43949
    • United States
    • Appellate Court of Connecticut
    • 20 Julio 2021
    ...(Citations omitted; internal quotation marks omitted.) Northeast Builders Supply & Home Centers, LLC v. RMM Consulting, LLC , 202 Conn. App. 315, 353, 245 A.3d 804, cert. denied, 336 Conn. 933, 248 A.3d 709 (2021).The following additional facts, as found by the trial court, are relevant to ......
  • Request a trial to view additional results
9 cases
  • Wallace v. Caring Sols., AC 43975
    • United States
    • Appellate Court of Connecticut
    • 5 Julio 2022
    ...121 Conn.App. 503, 518 n.12, 997 A.2d 573 (2010); see also Northeast Builders Supply & Home Centers, LLC v. RMM Consulting, LLC, 202 Conn.App. 315, 338, 245 A.3d 804 ("[f] actual allegations contained in pleadings upon which the cause is tried are considered judicial admissions and hence ir......
  • Bernblum v. The Grove Collaborative, LLC, AC 44177
    • United States
    • Appellate Court of Connecticut
    • 19 Abril 2022
    ...mistake has been committed." (Internal quotation marks omitted.) Northeast Builders Supply & Home Centers, LLC v. RMM Consulting, LLC, 202 Conn.App. 315, 353, 245 A.3d 804, cert, denied, 336 Conn. 933, 248 A.3d 709 (2021). Here, the theory of the plaintiff was that it made significant chang......
  • Bernblum v. Grove Collaborative, LLC, AC 44177
    • United States
    • Appellate Court of Connecticut
    • 19 Abril 2022
    ...mistake has been committed." (Internal quotation marks omitted.) Northeast Builders Supply & Home Centers, LLC v. RMM Consulting, LLC , 202 Conn. App. 315, 353, 245 A.3d 804, cert. denied, 336 Conn. 933, 248 A.3d 709 (2021). Here, the theory of the plaintiff was that it made significant cha......
  • Onthank v. Onthank, AC 43949
    • United States
    • Appellate Court of Connecticut
    • 20 Julio 2021
    ...(Citations omitted; internal quotation marks omitted.) Northeast Builders Supply & Home Centers, LLC v. RMM Consulting, LLC , 202 Conn. App. 315, 353, 245 A.3d 804, cert. denied, 336 Conn. 933, 248 A.3d 709 (2021).The following additional facts, as found by the trial court, are relevant to ......
  • Request a trial to view additional results

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