Export Development Canada v. T. Keefe & Son, LLC

• Decision Date: 09 November 2016
• Docket Number: CV095032894S
• Court: Superior Court of Connecticut
• Parties: Export Development Canada v. T. Keefe and Son, LLC

Export Development Canada v. T. Keefe and Son, LLC

No. CV095032894S

Superior Court of Connecticut, Judicial District of New Haven, New Haven

November 9, 2016

UNPUBLISHED OPINION

MEMORANDUM OF DECISION

Robin L. Wilson, J.

I STATEMENT OF CASE AND PROCEDURAL HISTORY

The plaintiff, Export Development Canada, commenced this action by way of writ, summons and complaint dated November 24 2009, against the defendant, T. Keefe & Son, LLC. The plaintiff filed a one-count complaint sounding in breach of contract which alleges the following facts. The plaintiff is a Federal Crown Corporation of the government of Canada doing business in Ottawa. The defendant is a limited liability company located in Connecticut. On or about January 31, 2007, and May 28, 2007, at the request of the defendant, the plaintiff's assignor, Metal Perreault, Inc. (Metal Perreault), sold and delivered goods to the defendant, the value of which was $189, 500. On February 28, 2008, Metal Perreault assigned the defendant's debt of $189, 500 to the plaintiff. The assignment gave the plaintiff all rights to seek full recovery of the debt from the defendant. After all offsets, credits and payments, there is now a debt due and owing from the defendant to the plaintiff by way of the assignment in the amount of $189, 500. The defendant has failed, refused and neglected to pay the plaintiff this amount. As a result, the plaintiff demands money damages and costs.

The defendant filed its answer, special defenses, and a counterclaim on August 9, 2010. The defendant denied that Metal Perreault delivered goods to T. Keefe, the value of which was $189, 500. As to the plaintiff's amount in demand, the defendant claimed that it was entitled to a set off; that there were mutual debts which arose from the debt claimed as due by the plaintiff; the defendant was required to contract for replacement materials and services to replace those materials manufactured by the plaintiff which were of such inferior quality and workmanship that the defendant was required to scrap the same; and the defendant's right of set off was greater than the debt claimed as due by the plaintiff. The defendant also alleged the following special defenses: accord and satisfaction; foreign corporation and lack of standing as to Metal Perreault; foreign corporation and lack of standing as to the plaintiff; and collateral source of payments. The defendant also filed a counterclaim which alleged claims under the UCC.

On September 9, 2010, the plaintiff filed a motion to strike the defendant's answer as to the plaintiff's amount in demand as well as the counterclaim. On June 2, 2011, the court (Woods, J.), granted the plaintiff's motion to strike. The defendant did not replead its counterclaim. As to the special defenses, the defendant withdrew its special defenses regarding standing as to both the plaintiff and Metal Perrault, and its claim of collateral source of payments. The remaining special defense is accord and satisfaction to which the plaintiff did not file a reply. On September 22, 2011, and July 23, 2012, the plaintiff filed motions for summary judgment, which this court denied. See Export Development Canada v. T. Keefe and Son, LLC, Superior Court, judicial district of New Haven, Docket No. CV-09-5032894-S, (February 17, 2012, Wilson, J.); Export Development Canada v. T. Keefe and Son, LLC, Superior Court, judicial district of New Haven, Docket No. CV-09-5032894-S, (December 10, 2012, Wilson, J.).

The matter was tried to the court on June 30, 2016, and July 5, 2016. The plaintiff's sole witness was Simon Harnois, a project manager of Metal Perreault and the defendant's witnesses were Jason Keefe and Thomas Keefe, members of the defendant, LLC. At the conclusion of the trial, by order of the court, the parties submitted proposed findings of fact and conclusions of law on August 5, 2016.

II STANDARD OF REVIEW

" It is an abiding principle of our jurisprudence that [t]he sifting and weighing of evidence is peculiarly the function of the trier [of fact]. [N]othing in our law is more elementary than that the trier [of fact] is the final judge of the credibility of witnesses and of the weight to be accorded to their testimony . . . The trier has the witnesses before it and is in the position to analyze all the evidence. The trier is free to accept or reject, in whole or in part, the testimony offered by either party." (Internal quotation marks omitted.) Welsch v. Groat, 95 Conn.App. 658, 664, 897 A.2d 710 (2006).

The trier of fact must " observe the demeanor of the parties and their witnesses and to draw inferences therefrom as to the motives underlying their testimony and conduct." Christie v. Eager,, 129 Conn. 62, 64-65, 26 A.2d 352 (1942). " [T]he trier of fact's assessment of the credibility of . . . witnesses . . . is made on the basis of its firsthand observation of their conduct, demeanor and attitude . . . The weight to be given to the evidence and to the credibility of witnesses is solely within the determination of the trier of fact." (Internal quotation marks omitted.) Machado v. Statewide Grievance Committee, 93 Conn.App. 832, 839, 890 A.2d 622 (2006). " It is well established that [t]he trier of fact may accept or reject the testimony of any witness . . . The trier can, as well, decide what--all, none, or some--of a witness' testimony to accept or reject." (Citation omitted; internal quotation marks omitted.) Wilson v. Hryniewicz, 51 Conn.App. 627, 633, 724 A.2d 531, cert. denied, 248 Conn. 904, 731 A.2d 310 (1999).

III BURDEN OF PROOF

The burden of proof is on the plaintiff to prove all of the essential allegations of its complaint and on the defendant to prove all of the essential elements of its counterclaim and affirmative defenses. Lukas v. New Haven, 184 Conn. 205, 211, 439 A.2d 949 (1981). " While the plaintiff is entitled to every favorable inference that may be legitimately drawn from the evidence, and has the same right to submit a weak case as a strong one, the plaintiff must still sustain the burden of proof on the contested issues in the complaint and the defendant need not present any evidence to contradict it . . . The general burden of proof in civil actions is on the plaintiff, who must prove all the essential allegations of the complaint [by a fair preponderance of the evidence]." (Citations omitted.) Gulycz v. Stop & Shop Cos., 29 Conn.App. 519, 523, 615 A.2d 1087, cert. denied, 224 Conn. 923, 618 A.2d 529 (1992). Failure to do so results in judgment for the defendant. Id. In Connecticut, " [a] special Defense is an affirmative defense that must be [pled and] proven by the defendant." (Internal quotation marks omitted.) Caciapoli v. Lebowitz, Superior Court, judicial district of New Haven, Docket No. CV-08-5020658-S, (March 4, 2010, Berdon, J.T.R.), aff'd, 309 Conn. 62, 68 A.3d 1150 (2013). Like the plaintiff, the defendant must plead and prove all of the essential elements of its affirmative defense and counterclaim by a fair preponderance of the evidence.

IV FINDINGS OF FACT

The court finds the following facts to have been proven by a fair preponderance of the evidence.

The plaintiff is a Federal Crown Corporation of the Government of Canada organized and doing business in Canada.^[1] The defendant is a limited liability company organized and existing under the laws of the state of Connecticut, with an office in Guilford, Connecticut. The defendant is an ironworks company which is in the business of the installation of steelwork that involves anything in the ironworkers trade.

Metal Perreault is a Canadian corporation that has been in business since 1987 as a structural and miscellaneous steel fabricator. The defendant, who is an ironworks subcontractor, secured a contract with a general contractor, Perini Building Company (Perini), to supply and erect certain metal components at a garage structure being constructed by Perini at the Foxwoods Casino in Ledyard, Connecticut. In connection with the contract, the defendant sought bids from suppliers of structural and miscellaneous metals for the metal components to be supplied and erected at the project, including a bid from Metal Perreault. At the request of the defendant, Metal Perreault submitted its written bid quotation to the defendant on or about September 15, 2006, and the defendant accepted Metal Perreault's bid quotation in a written purchase order on or about October 12, 2006. Jason Keefe, owner and member of the defendant, was the project manager on the construction project.

Metal Perreault's quotation provided a detailed breakdown by category of metal goods to be supplied with prices allocated to each category. Each category of metal goods is referred to in the quotation as a " breakdown" and numbered 1 through 10 and 15. The total agreed-upon price for all breakdowns in the quotation was $377, 000. The quotation provided that the metal goods would be made in conformity with the original architect's drawings for the project which are referenced in the quotation by drawing numbers and dates, but are not attached to the quotation. The architect's drawings referred to in the quotation were drawings showing the intended construction of the concrete garage structure that did not reflect the actual measurements of the " as built" structure after it was erected. In order for Metal Perreault to fabricate the required metal goods, it had to know the actual dimensions of the " as built" concrete structure erected by others. According to Simon Harnois, vice president and project manager for Metal Perreault, concrete structures frequently vary from the original design drawings because of normal variations that occur in concrete construction. The actual as-built measurements are determined by...