Ed Lally & Assoc., Inc. v. DSBNC, LLC

• Decision Date: 17 September 2013
• Docket Number: No. 34497.,34497.
• Citation: 145 Conn.App. 718,78 A.3d 148
• Court: Connecticut Court of Appeals
• Parties: ED LALLY AND ASSOCIATES, INC. v. DSBNC, LLC, et al.

145 Conn.App. 718

78 A.3d 148

ED LALLY AND ASSOCIATES, INC.

v.DSBNC, LLC, et al.

No. 34497.

Appellate Court of Connecticut.

Argued April 11, 2013.

Decided Sept. 17, 2013.

John H. Parks, Somers, with whom was George C. Schober, Colchester, for the appellants (named defendant et al.).

Patrick W. Boatman, with whom were Benjamin R. Plourd and, on the brief, Jenna N. Sternberg, East Hartford, for the appellee (plaintiff).

ROBINSON, ALVORD and KELLER, Js.

ROBINSON, J.

The defendants DSBNC, LLC, D.H. Williams, Inc., Moosehorn Road, LLC (Moosehorn, LLC), and John H. Parks ¹ appeal from the judgment of the trial court rendered in favor of the plaintiff, Ed Lally & Associates, Inc., following a court trial, for the foreclosure of two mechanic's liens, breach of contract and quantum meruit. On appeal, the defendants claim that the trial court (1) did not have subject matter jurisdiction to find in favor of the plaintiff on the foreclosure of its mechanic's liens because the mechanic's liens were invalid, (2) improperly found that the plaintiff had proven damages on the breach of contract count, (3) improperly found in favor of the plaintiff on the quantum meruit count because the court previously had found in favor of the plaintiff on the breach of contract count, (4) erred in its rulings on the defendants' amendments to their answer, special defenses and counterclaim, and (5) improperly ruled that evidence of the plaintiff's ethical violations was not relevant. We affirm the judgment of the trial court.

The following facts, either undisputed or found by the trial court, and procedural history are necessary for our resolution of this appeal. In 2003, D.H. Williams, Inc., a corporation in which Douglas Williams was an officer, owned property in Granby located at 30 Moose Horn Road and 33 Moose Horn Road. ² Williams approached Edward Lally, the sole proprietor of the plaintiff, to provide engineering and surveying services on the property. After reviewing the existing maps, soil reports and data that had been generated by a previous engineering firm and speaking to the town planner of Granby, Lally agreed to accept the project, but indicated that Williams could not be in town during the design or approval process and that Williams' name could not be associated with the project because the town of Granby Inland Wetlands and Watercourses Commission was unhappy with Williams.

After this initial meeting, Williams brought Victor Shibley, a developer from Massachusetts, to a second meeting with Lally where they discussed the project. At the request of Williams, Lally drafted a proposal dated August 5, 2003, addressed to Victor Shibley Homes for a subdivision of approximately six lots on the property. The proposal listed seventeen tasks grouped into four phases that the plaintiff would need to complete as well as the cost of each task. Most of the tasks were billed under a flat fee; two items—informal review and meetings—were designated as hourly billing. The proposal also included a section for “other services,” which included additional work, reproductions, and postage, delivery and FedEx charges. The additional work section noted that “[c]hanges to the plans or additional work requested by the Client or required by the Town, State, Utility Companies, or others shall be billed hourly to the Client.” Under the section entitled, “Terms of Agreement,” the proposal noted that “[a]ll fees are estimated based on normal anticipated Surveying services expected for a project of this type. If extraordinary services are required due to site conditions, Client changes or governmental agencies, [the plaintiff] reserves the right to bill for such services on an hourly basis at their standard rate.”

Shibley signed the proposal, but title to the property remained in the name of D.H. Williams, Inc. Lally's primary contact for the property continued to be Williams. In April, 2004, Williams formed A & J Development, LLC, and thereafter instructed Lally to bill A & J Development, LLC, for work on the project. No one other than Williams was authorized to act on behalf of D.H. Williams, Inc., during that time.

In 2005, Williams requested an update on the status of the project. By letter dated March 28, 2005, and addressed to A & J Development, LLC, Lally sent Williams a project update (2005 update). The letter, the basis of which was the proposal that had been accepted by Shibley, denoted which tasks had been completed and provided for an increased price for tasks that had not yet been completed. Attached to a fax transmittal sheet dated May 31, 2005, Lally received a revised copy of the 2005 update from Parks. A & J Development, LLC, had been crossed out as the addressee and replaced with the following: “John H. Parks, Moosehorn Road LLC, 352A Billings Road, Somers, CT 06071.” Also, on the last page of the 2005 update, was the handwritten notation “Accepted” and the signatures for Parks and for Moosehorn Road, LLC, by Parks as managing member. The fax transmittal sheet also included a message that stated: “I have prepared and signed the organizational papers for a new LLC known as Moosehorn Road LLC. These papers are being sent to the Secretary of State's office. Once they have been accepted, D.H. Williams, Inc. is signing a deed to Moosehorn Road LLC. I am the managing member of Moosehorn Road LLC. I and Moosehorn Road LLC would like to accept the proposal you sent to Douglas Williams and D.H. Williams, Inc. on 3/28/05. Enclosed is a signed copy of your proposal. I am mailing you a check for $2,500.00. I would like you to begin your work. If you need more money let me know.” Subsequently, by a deed dated July 5, 2005, and recorded on July 18, 2005, D.H. Williams, Inc., transferred title of 33 Moose Horn Road to Moosehorn, LLC.

Approximately one month after Lally received the signed 2005 update from Parks, Lally, Williams and Parks met to discuss the project. Lally informed Parks and Williams of the difficulties with the project, including the need for an agreement with two abutting property owners, the Champagnes and the Chamberlains, as well as the lack of adequate frontage. Lally also discussed whether the property would support ten lots rather than the six lots originally proposed. After the meeting, Lally believed that Williams continued to direct the work of the project and would act as the representative for Parks.

Lally evaluated the feasibility of a ten lot subdivision and determined that the subdivision could only support eight lots if waivers were obtained. He communicated that information to Williams and delivered progress plans at least eight times to Williams' office. Progress plans dated March 7, 2006, were given to Williams. The progress plans showed that the proposed private road providing access to the subdivision would cross over parts of property known as lot 11 or 25 Moose Horn Road. After March, 2006, work on the project ceased for nearly one and one-half years because the issues of getting a road right-of-way, grading rights and the relocation of the drive on lot 11 had not been resolved.

In March, 2006, Parks filed the articles of organization for DSBNC. He dissolved Moosehorn, LLC, in April, 2007, but did not transfer title to 33 Moose Horn Road from Moosehorn, LLC, to DSBNC, LLC, until August, 2009. Meanwhile, in December, 2008, D.H. Williams, Inc., conveyed 30 Moose Horn Road to DSBNC, LLC.

In August, 2007, Lally met with Williams and Parks regarding the problems with the project. They discussed the fact that the property needed zoning waivers because they were asking for more lots than were normally granted and the fact that the relationship with the Champagnes was not very good. At that meeting, Lally was asked to communicate with Roy Champagne to come to a resolution so that he would not object to the waivers. Lally contacted Roy Champagne on two separate occasions, but no resolution was ever reached.

At some point, the parties decided to pursue approval by the Department of Energy and Environmental Protection (department) before seeking approval from the town because they could get approval for the major design components before resolving the subdivision problems.³ In December, 2008, Lally met with Parks to discuss the progress with the project and the progress with the submission to the department. Parks e-mailed Lally to confirm that the meeting had taken place and that the date of submission of the application to the department was to be January 31, 2009.⁴ The submission, which included eleven maps and a storm water system analysis report dated April 14, 2009, was to be submitted along with an application form that is found on the department's website. The last date that work was performed on the project was on April 22, 2009, when one of the plaintiff's employees, Thomas J. Barresi, spent two hours completing the department's application form.

The plaintiff subsequently submitted to Parks an invoice dated March 31, 2009, for work that had been performed since the December, 2008 meeting between Lally and Parks regarding the submission to the department. The amount sought for the work was $47,538. Parks responded by letter disputing the bill. After receiving Parks' letter, Lally reviewed the time slips that had been submitted and performed a final reconciliation of the account. The final calculation of the amount due to the plaintiff was $44,570.50.

On July 14, 2009, the plaintiff filed a mechanic's lien in the amount of $44,570.50 on 30 Moose Horn Road for labor and services rendered that commenced on October 5, 2003, and ended on April 22, 2009. The plaintiff asserted that it had entered into an agreement with D.H. Williams, Inc., to perform services on 30 Moose Horn Road and that the agreement subsequently was amended such that the plaintiff performed services for Shibley Construction, Ltd., A & J Development, LLC, Moosehorn, LLC, and Parks. The lien stated that 30 Moose Horn Road was ...