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

Decision Date26 January 2021
Docket NumberAC 41486
Citation202 Conn.App. 315,245 A.3d 804
CourtConnecticut Court of Appeals
Parties NORTHEAST BUILDERS SUPPLY & HOME CENTERS, LLC v. RMM CONSULTING, LLC, et al.

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.

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) 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.

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.

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 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."

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.

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, 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.

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."

The defendants timely amended their counterclaim for a second time on March 8, 2016. Count one of the counterclaim, which they labeled as "breach of contract/reasonable reliance," and count three, which remained unidentified as to the cause of action it purported to allege, were essentially unchanged. Count two contained several new factual allegations and was labeled by the defendants as asserting a cause of action for "abuse of process/CUTPA." The defendants also made changes to count four, which purportedly now asserted a cause of action for slander of title resulting from the prejudgment remedies of attachment pursued by the plaintiff in conjunction with this action.

In response to the second amended counterclaim, the plaintiff filed an extensive request to revise, to which the defendants objected. On May 17, 2016, the court, Hon. George N. Thim , judge trial referee, issued an order overruling the defendants’ objections with respect to the requested revisions except for a couple of objections with respect to which the court agreed with the defendants that the plaintiff improperly sought the disclosure of evidentiary materials.

Following the court's order, the defendants filed a revised counterclaim on June 22, 2016, which is the operative counterclaim at issue in this appeal. The first count of the counterclaim continued to allege breach of contract by the plaintiff. The second count of the counterclaim,...

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