New Milford v. Standard Demolition Services, Inc. ( 2022 )

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TOWN OF NEW MILFORD v. STANDARD
DEMOLITION SERVICES, INC.
(AC 43874)
Bright, C. J., and Elgo and Bear, Js.
Syllabus
The plaintiff town sought to recover damages from the defendant contractor
for breach of contract. The plaintiff owned a vacant brass mill factory
that was contaminated with, inter alia, polychlorinated biphenyls
(PCBs). The plaintiff, on the advice of consultants, applied to the United
States Environmental Protection Agency (EPA) for permission to demol-
ish and clean up the property and engage contractors to perform the
work. The plaintiff issued a notice inviting prospective contractors to
provide bids for the third phase of the project, which involved the
demolition, abatement and remediation of the property. The notice indi-
cated that the contractor would be allowed to keep the scrap value of
any structural steel salvaged from the site. The plaintiff made all public
information about the project available to prospective bidders, including
a report from one of its consultants that referenced the presence of
PCBs throughout the building. The plaintiff also provided a letter to all
prospective bidders clarifying that the selected contractor would be
responsible for the sampling and disposal of any PCB contaminated
material. The defendant submitted the winning bid for the contract, in
which it did not allocate any funds for the remediation or disposal of
any contaminated structural steel on the site, as it believed that the
steel was not contaminated and could be recycled without remediation.
Once selected, the defendant executed a certification acknowledging
that it had read and agreed to abide by all conditions set forth in the
EPA’s approval letter for the third phase of the project, which included
attachments regarding the cleanup of PCB contaminated material and
correspondence between the EPA and the plaintiff regarding the PCB
contamination of various materials, including steel beams. The parties
then entered into a contract for the phase three work, which expressly
incorporated the EPA approval letter and established a 140 day deadline
for the defendant to complete the job. Two months after the plaintiff
had issued the defendant a notice to proceed, the defendant still had
not obtained EPA approval of its contractor work plan, which was
required before it could begin any substantial demolition work, and it
had become engaged in a dispute with the plaintiff regarding the testing
and disposal of the structural steel on the property. The defendant
contended that the plaintiff mischaracterized the steel, leading it to
believe that the steel was not contaminated and could be disposed of
without remediation. The defendant claimed that it remained ready, able
and willing to perform the work on the project, but it refused to do so
if it was required to sample the steel to determine whether it was
contaminated and told the plaintiff that it had accidentally executed the
contract, as it had submitted its bid without information regarding the
contamination of the steel or knowledge that the disposal of any contami-
nated steel would be its responsibility. Thereafter, the plaintiff sent a
letter to the defendant, notifying the defendant that it was in default
because, inter alia, it would not be able to timely complete its work
under the contract and had anticipatorily breached various provisions
of the contract, and, consequently, its employment was terminated. The
plaintiff rebid the project and hired C Co. to complete the work on the
site, including the testing and disposal of the structural steel. C Co. was
unable to finish its work, however, due in part to the increased expense
and time required to finish the project as a result of the defendant’s
intervention, which led to additional testing requirements imposed by
both the EPA and the trial court. The trial court found that the plaintiff
had established its claim for breach of contract and had suffered dam-
ages, limited to the liquidated damages provision of the contract, in an
amount equal to 254 days, less the retainage held by the plaintiff. The
defendant appealed, and the plaintiff cross-appealed, claiming that the
trial court erred in its award of damages. Held:
1. The defendant’s claim that the trial court misapplied state and federal
environmental laws was belied by the trial court’s findings, which were
supported by the record: the defendant did not raise before the trial
court, nor did the trial court address, the defendant’s claims that the
plaintiff lacked proper authorization from the EPA to work on the undis-
closed waste at the site or that the plaintiff and the trial court disregarded
certain statutory (§ 22a-467) requirements relating to the disposal of
PCB contaminated material, and, accordingly, this court declined to
address those claims; moreover, the defendant’s claims that the plaintiff
failed to adequately characterize the site and that the plaintiff was
required under the contract to paint chip test the steel beams prior to
the defendant performing any work at the site lacked merit, as the trial
court found that the contract did not require paint chip testing, that the
testimony of the plaintiff’s expert witnesses that paint chip sampling
under such circumstances was not customary was credible, that there
was no express statement in the contract that the steel was not contami-
nated, that the plaintiff performed its obligations under the contract, and
that the contract overwhelmingly placed the obligation for the testing,
handling and processing of the material on the site on the defendant
and expressly made clear that the risk of the condition of the materials
being different than anticipated was solely on the defendant, and such
findings were supported by the clear and unambiguous provisions of
the contract and the documents related thereto; furthermore, this action
involved a breach of contract claim, and the defendant failed to provide
a clear explanation as to how its claims concerning the EPA regulations
circumvented the trial court’s findings regarding the contract and failed
to raise at trial its claims that the plaintiff’s conduct constituted a viola-
tion of the EPA regulations and that the trial court erred in failing to
find such a violation; additionally, although the defendant may have
made its bid and entered the contract on the basis of a mistaken basic
assumption, neither the trial court nor this court was permitted to rewrite
the contract or to relieve the defendant of its obligations thereunder,
as the defendant was a sophisticated and experienced party with respect
to the type of work covered by the contract, it had the opportunity to
address any issues it had with the proposed terms and interpretation
of the contract prior to its execution, and the circumstances of the
contract formation were not unconscionable.
2. This court declined to review the defendant’s claim that the trial court
erred in finding that the contract was not impossible to perform: because
the defendant failed to plead impossibility as a special defense, such
issue was not properly before the trial court, which, accordingly, did
not undertake the necessary analysis of such claim nor did it make any
findings thereon, and, as a result, the trial court could not have erred
in failing to find that the defendant’s performance under the contract
was impossible; moreover, it was incumbent on the defendant to seek
an articulation of the trial court’s decision as to its failure to make a
finding on a claim that the defendant alleged was properly before the
trial court, and, in the absence of such an articulation, the record was
inadequate for this court to review the claim.
3. The defendant’s challenge to the trial court’s implicit determination that
the plaintiff lawfully had terminated the contract was unavailing: the
defendant’s claim was premised on a faulty assumption, namely, that
the plaintiff was in default under the contract, because the trial court
expressly found that the plaintiff had performed its obligations under
the contract and that there was ample evidence of the defendant’s breach
of its obligations under the contract, which findings were supported by
the record.
4. The defendant’s claim that the change orders granted to C Co. in connec-
tion with additional paint chip testing requirements imposed by the
EPA—which were not a part of the defendant’s contract with the plain-
tiff—constituted an admission by the plaintiff that its contract with the
defendant could not have been performed without such testing was
contrary to the record and unavailing: the defendant’s argument failed
to acknowledge the basis for the change orders sought by C Co., namely,
that the trial court found that the plaintiff was not required to conduct
paint chip sampling under the contract with the defendant because the
EPA did not require such testing until after the plaintiff had terminated
that contract, as the requirement was instituted as a result of the defen-
dant’s unilaterally contacting the EPA with respect to the paint chip
sampling it had conducted on the site as part of this litigation; moreover,
such finding was supported by the record and was not clearly erroneous.
5. Although the amount of the trial court’s award of liquidated damages was
proper, that court erroneously failed to determine whether the plaintiff
proved that it had suffered any compensable actual or consequential
nondelay damages:
a. The trial court improperly determined that liquidated damages were
the plaintiff’s exclusive remedy under the contract: the language in the
liquidated damages provision clearly applied to damages resulting from
delay, there was no language in the contract expressly stating that such
damages were the plaintiff’s exclusive remedy for a breach unrelated to
the defendant’s delay in performance, and to interpret liquidated damages
as the plaintiff’s sole remedy would render the contract’s damages and
losses provision superfluous; accordingly, the trial court erroneously
failed to determine whether the plaintiff proved that it had suffered any
compensable actual or consequential nondelay damages and, if so, the
amount of such damages, and, as a result, the case was remanded to
the trial court for a new hearing in damages.
b. The trial court did not err in limiting the award of liquidated damages
to 254 days: the plaintiff’s claim on appeal that liquidated damages instead
should have run through the date of the trial court’s decision failed, as
the plaintiff did not make such a request at trial and the premise of
such claim no longer existed because it was based on the trial court’s
determination that liquidated damages were the plaintiff’s exclusive rem-
edy under the contract, which this court concluded was made in error.
Argued November 30, 2021—officially released April 26, 2022
Procedural History
Action to recover damages for breach of contract,
and for other relief, brought to the Superior Court in
the judicial district of Litchfield, where the defendant
filed a counterclaim; thereafter, the matter was tried
to the court, Shaban, J.; judgment for the plaintiff on
the complaint and on the counterclaim, from which the
defendant appealed and the plaintiff cross appealed to
this court. Reversed in part; further proceedings.
Raymond A. Garcia, with whom were Nyle K. Davey,
and, on the brief, Lauren Lyngholm Crowe and Jona-
than A. Krumeich, for the appellant-cross appellee
(defendant).
John D. Tower, with whom was Graham W. Moller,
for the appellee-cross appellant (plaintiff)
Opinion
BEAR, J. The defendant, Standard Demolition Ser-
vices, Inc., appeals from the judgment of the trial court
rendered in favor of the plaintiff, the town of New
Milford, on the plaintiff’s complaint for breach of a
contract entered into by the parties and as to all counts
of a counterclaim filed by the defendant. On appeal,
the defendant claims that (1) the court misapplied state
and federal environmental regulations, (2) the court
erred in not finding that the contract was impossible
to perform, (3) the court improperly determined that
the plaintiff lawfully had terminated the contract,1 and
(4) evidence of certain change orders executed by the
plaintiff in connection with a subsequent contract with
a different contractor, pursuant to which the plaintiff
had agreed to modify terms of that contract, constituted
admissions that the plaintiff’s contract with the defen-
dant was defective and could not be performed by the
defendant as written. The plaintiff has cross appealed,
claiming that the court erred in its award of damages
to the plaintiff. We affirm the judgment of the court in
favor of the plaintiff on its complaint for breach of
contract and as to all counts of the defendant’s counter-
claim, but we reverse it in part with respect to the award
of damages and remand the case for a new hearing in
damages.
At the trial of this matter, which spanned over twenty-
two days, the parties testified, presented lay and expert
witnesses, and submitted 273 documents into evidence.
In a comprehensive memorandum of decision, the
court, Shaban, J., found the following facts: ‘‘The plain-
tiff is the owner of an industrial property located at 12
Scovill Street in New Milford, which it acquired through
a tax foreclosure in 1999. The property consists of fifty-
three acres [and] includes an approximately 315,000
square foot vacant brass mill factory contaminated with
polychlorinated biphenyls (PCBs) and asbestos con-
taining materials . . . . The plaintiff renamed the site
the ‘Century Enterprise Center’ and hired consultants
to help evaluate the environmental hazards on the site.
Under the guidance of the consultants, the plaintiff
made decisions about how it would apply to the United
States Environmental Protection Agency (EPA) for per-
mission to demolish and clean up the property and
engage contractors to perform the work.
‘‘Prior to its involvement with the defendant, the
plaintiff had already completed two phases of the work
in its effort to clean up the property. In phases I and
II of the project, the plaintiff’s consultants, Tighe &
Bond, had characterized the structural steel on the site
as ‘non-porous.’2 The EPA approved the work proposed
by the plaintiff through its consultants for phases I and
II and it was completed. For phase III of the project,
the demolition, abatement, and remediation work, the
plaintiff hired TRC Environmental Corporation (TRC)
as its consultant and project manager. In performing
its evaluation of the site, TRC reviewed and relied on
the findings of the prior consultants from the phase I
and II portions of the project. During the earlier phases,
there had been extensive communication between the
prior consultants and the EPA about the project. TRC
found that the work had been allowed to proceed as
proposed and that wipe sampling of ‘porous’ surfaces
had been done.3 In 2015, after TRC set the scope of
work for phase III, the plaintiff applied for and secured
a $2.5 million grant from the Department of Economic
and Community Development . . . for the project.
‘‘Thereafter, the plaintiff issued a Notice to Bidders
[notice] inviting prospective contractors to provide bids
for the demolition, abatement, and remediation of the
property based on the proposed plan developed by TRC.
. . . Bid packages were made available to all of the
prospective bidders as part of the notice, which
included the proposed contract documents.4 The docu-
ments were also available through an on-line website.
The notice recited that additional documents were
available for review in a public reading room at the
New Milford Public Works facility. Electronic thumb
drives were also made available that included all histori-
cal records, plans, drawings, studies, and other relevant
information from phases I and II. . . . The bid forms
provided to the prospective contractors included a line
item for the scrap value of the structural steel [that]
the contractor would be allowed to keep. All of the
public information in the plaintiff’s possession regard-
ing all three phases of the project, including correspon-
dence with the EPA, was made available to prospective
bidders for inspection and review. This included a facil-
ity investigation document prepared by Tighe & Bond
that referenced the presence of PCBs throughout the
building’s interior that had likely been spread through
dust. . . . This also included an engineering evalua-
tion/cost analysis relative to the interior of the building.
. . . On May 26, 2015, a mandatory prebid meeting was
held by the plaintiff with the prospective bidders. . . .
Following that meeting, on June 2, 2015, the plaintiff
held an open house and walk-through at the site for all
prospective bidders. . . . The defendant attended the
open house and physically viewed the site. Both prior
to and following the meeting and open house, and prior
to the submission of its bid, the defendant submitted
to the plaintiff multiple requests for information about
the project to which the plaintiff responded. . . .
‘‘In addition, the plaintiff invited all potential bidders
to submit in writing any questions they may have had
about the project. By letter of June 12, 2015, the plaintiff
provided all potential bidders with the responses to a
list of those questions that had been submitted as of
June 10, 2015, in a document described as ‘Clarification
No. 1.’ . . . Several questions dealt with the sampling
and disposal of PCB contaminated materials. The funda-
mental response to each of these questions was that the
contractor selected for the project would be responsible
for the sampling and disposal of all such materials. The
plaintiff conveyed that its only obligation was to do
verification sampling of items left on-site after the job
was completed. . . .
‘‘On June 15, 2015, following completion of its inquir-
ies and review of the bid specifications, the defendant
submitted its bid in the amount of $2,713,950 on the
forms supplied by the plaintiff, which included Clarifi-
cations Nos. 1 and 2 as addenda. . . . The defendant’s
bid did not provide for the remediation, abatement, and
disposal of the contaminated structural steel on the site
based on its belief that the information made available
by the plaintiff represented or implied that the struc-
tural steel was not contaminated and could be recycled
without remediation. . . .
‘‘By letter of July 16, 2015, the plaintiff notified the
defendant that it was the successful bidder. . . . On
September 1, 2015, the EPA issued a five page approval
letter authorizing the plaintiff to move forward with
phase III of the project subject to the conditions set
forth in the letter. . . . At the time of its bid, the defen-
dant was aware that the EPA could impose additional
conditions on the work to be done beyond those set
forth in the proposed contract. Paragraph 13 of the
approval letter provides: ‘The PCB cleanup standard
for porous surfaces (i.e., concrete) and soil shall be
less than or equal to . . . 1 part per million (‘‘ppm’’)
for unrestricted use or disposal. The PCB cleanup stan-
dard for non-porous surfaces (e.g., overhead cranes,
steel beams) shall be less than . . . 10 µ/100 cm for
unrestricted disposal and/or recycling. (a) PCB contam-
inated wastes shall be removed and disposed of as
detailed in the [attached Administrative Record], except
as follows . . . (ii) Steel beams shall be disposed of
as a [greater than or equal to] 50 ppm PCB waste or
alternatively shall be sampled to determine PCB dis-
posal requirements [and] (iii) If samples are collected,
sampling analytical results and proposed waste disposal
details shall be submitted to [the] EPA for review prior
to removal of these wastes from the [s]ite.’ . . . The
EPA’s definition of the steel beams as non-porous was
consistent with the definition that had been given by
Tighe & Bond in phase II of the project. . . .
‘‘The EPA’s letter was accompanied by two attach-
ments, the first of which set forth the ‘PCB Cleanup
and Disposal Approval Conditions,’ and the second of
which was identified as the ‘Administrative Record
(Notification).’ . . . Paragraph 11 (a) [of attachment
one] required the plaintiff to provide to the EPA ‘a
certification signed by its selected abatement/demoli-
tion contractor [the defendant], stating that the contrac-
tor(s) has read and understands the Notification, and
agrees to abide by the conditions specified in this
[a]pproval . . . .’
‘‘Attachment [two] consists of a series of documents
and correspondence reviewed by the EPA prior to the
issuance of its approval . . . [some of which included]
discussions of PCB contamination of various materials
including overhead cranes and steel beams. Also, § 5.8
of the phase I PCB Source Removal Notification dated
December, 2004, prepared by Tighe & Bond references
PCB wipe sample test results for nonporous materials
such as building interior walls and beams. . . .
‘‘In its September 1, 2015 approval letter, the EPA
noted that ‘[a]ttachment [two] provides a list of support-
ing information for the [p]hase III project . . . which
[the] EPA considered for this [a]pproval. All submittals
in their entirety are considered ‘‘the Notification.’’’ . . .
The next day, September 2, 2015, the plaintiff forwarded
by e-mail a copy of the approval letter to the defendant.
. . . That e-mail had appended to it all of the materials
making up the attachments to the approval letter. In
the e-mail, Michael Zarba . . . the public works direc-
tor for the plaintiff, asked that the defendant review
the materials and let him know as soon as possible if
there were any questions. . . . In response, the defen-
dant sent by e-mail a letter dated September 3, 2015,
which was the certification relative to the ‘Notification’
that was required by the approval letter. . . . The letter
expressly states that ‘[the defendant] has read and
understands the ‘‘Self-Implementing On-site Cleanup &
Disposal Plan,’’ dated January, 2015, prepared for the
[plaintiff] for the Century Enterprise Center project.
[The defendant] agrees to abide by all aspects of the
conditions specified in the EPA approval.’ . . . This
included compliance with EPA regulations under 40
C.F.R. § 761 relative to the removal and abatement of
PCBs. The defendant did not raise any questions as to
the materials submitted or the conditions of the
approval letter. Thereafter, on September 4, 2015, the
parties executed a highly extensive and detailed con-
tract for the work on the project that expressly incorpo-
rated the approval letter. . . .
‘‘Following receipt of the certification letter and the
execution of the contract, the plaintiff issued to the
defendant a letter dated September 14, 2015, which
constituted a ‘Notice to Proceed’ as required by the
terms of the contract. . . . That notice directed the
defendant to commence work on the project and
reminded the defendant that pursuant to the terms of
the contract it had 140 calendar days to complete the
job, thereby creating a deadline of February 1, 2016.
Thereafter, the defendant commenced work on the proj-
ect, including the preparation and submission of certain
documents to TRC for its review and approval as the
plaintiff’s project manager. More specifically, the defen-
dant was required to submit a contractor work plan
(CWP) for the PCB remediation to be done by the defen-
dant on the job site. The CWP, subject to the approval
of TRC, was in turn to be submitted to the EPA for its
review and approval. The first CWP, dated September
24, 2015, was submitted to the plaintiff on September
29, 2015, and was based in part on TRC’s own Modified
Self-Implementing Phase III Remediation Plan dated
January, 2015. . . . The first CWP . . . was reviewed
by TRC and found [to be] insufficient in various ways.
The comments of TRC were forwarded to the defendant
on October 2, 2015, by e-mail and specifically referenced
that the CWP should ‘[i]nclude a discussion of steel
beam sampling and disposal means and methods per
[paragraph] 13 (a) (ii) of [the] EPA’s approval letter’
and ‘[i]nclude a statement that sampling analytical
results will be submitted to [the] EPA for review prior
to disposal per [paragraph] 13 (a) (iii) of [the] EPA’s
approval letter.’ . . . With respect to § 2.4 of the pro-
posed plan regarding remediation of overhead cranes,
TRC commented that ‘[t]he EPA’s approval states that
the beams must be handled and disposed of as a [greater
than or equal to] 50 ppm PCB waste or will be sampled
to determine disposal requirements.’ Following the
receipt of TRC’s comments, the defendant hired an inde-
pendent consultant with expertise in the handling of
PCBs and submitted the plan and TRC’s comments to
him for his review. . . .
‘‘The defendant was also required to submit to TRC
for its review and approval, a health and safety plan
. . . as well as a demolition work plan. TRC reviewed
the [health and safety plan], found it lacking and pro-
vided comments thereon to the defendant. As of Octo-
ber 19, 2015, TRC had not received a response to those
comments. . . . TRC insisted that the [health and
safety plan] and other plans had to be approved before
substantive physical work on the project could begin
despite the defendant’s belief that it was for review
purposes only. . . .
‘‘While attempting to work this out, the parties contin-
ued to work toward an acceptable CWP. Following the
review of the original CWP by the defendant’s consul-
tant for approximately one month, a second CWP was
submitted to TRC on November 6, 2015 . . . . In the
second CWP, the defendant proposed that, as part of
its operations, it would conduct wipe sampling of the
steel columns for PCB characterizations to determine
whether the structural steel could be disposed of consis-
tent with [paragraph] 13 (a) (ii) of the EPA’s approval
letter. . . . The defendant also proposed paint chip
sampling of the overhead crane steel to determine how
it should be disposed of. On November 9, 2015, TRC
rejected the proposed plan. . . . By e-mail on Novem-
ber 12, 2015, to the defendant, TRC provided specific
comments deleting the proposed paint chip sampling
language and put in language about wipe sampling con-
sistent with the EPA’s approval letter. Richard Gille of
TRC credibly testified that the reason for deleting the
paint chip test language was that such testing was
unnecessary as it would not show any PCB surface
contamination on the steel (given that paint chip sam-
pling is designed to determine if a product is manufac-
tured with PCBs, i.e., that it is bulk waste product). That
same e-mail also indicated that TRC was still awaiting
a revised [health and safety plan] from the defen-
dant. . . .
‘‘Based on the comments of TRC, the defendant sub-
mitted a third proposed CWP on November 13, 2015
. . . which deleted the paint chip sampling language.
. . . On November 18, 2015, following some additional
edits requested by TRC, the defendant submitted its
fourth proposed CWP . . . . TRC recommended to the
plaintiff that it be submitted to the EPA for approval.
. . . That recommendation was based on TRC’s con-
tractual authority to review and approve such plans.
The plan called for the defendant to conduct wipe sam-
pling of the steel columns. . . . It expressly recited
that ‘[i]n accordance with the EPA [a]pproval [l]etter,
the steel within the building is assumed to contain PCB
concentrations [greater than] 50 ppm in surface contam-
ination caused by previous transformer remediation
and/or historic site activities. Wipe sampling will be
conducted in order to prove that the structural elements
can be recycled without restriction. . . . Steel found
to contain PCB above the remedial goal will be decon-
taminated again in accordance with [40] C.F.R. [§]
761.79 and/or will be disposed of as PCB remediation
waste.’ . . . The plan was submitted to the EPA on
November 18, 2015. The plan, however, was not
approved because the EPA responded with comments
and questions it wanted addressed. This included ques-
tions about the possible wipe sampling of cranes and
steel beams and testing of the expansion joint caulking.
. . . The EPA did not suggest or ask for paint chip
sampling. In light of the comments and questions, on
December 10, 2015, the parties agreed that they would
hold off on resubmitting a CWP or doing further work
until after TRC had done testing of the expansion joint
caulking to determine if there was PCB contamination
and, if so, how it should be treated for purposes of
disposal. . . . The additional testing took six days and
was done by the plaintiff.
‘‘By letter dated December 15, 2015, the defendant
issued a formal notice of delay to the plaintiff claiming
the project had been delayed by ninety-four days due
to the actions of the plaintiff. . . . Among other things,
the formal notice cited the plaintiff’s failure to ‘initially
characterize and remove potentially PCB contaminated
paints and dust on the steel beams and expansion joint
material in the concrete.’ . . . The defendant also sub-
mitted with the letter a new work schedule indicating
a completion date of on or about May 4, 2016. On
December 16, 2015, TRC directed the defendant to ‘con-
tinue with [the] EPA work plan preparation and submit
for review by TRC using your planned method for
expansion joint removal. Disposal considerations will
be addressed later.’ . . . On December 22, 2015, the
defendant responded that it would like any test results
forwarded to it as it was likely that the EPA would
require the information in the CWP. . . .
‘‘Because it had taken approximately two months to
obtain a CWP acceptable to TRC and the plaintiff for
submission to the EPA for its consideration, the defen-
dant elected to demobilize from the site on November
20, 2015, as it had not yet obtained an approved CWP
to allow it to do any substantive demolition work. . . .
The defendant had earlier indicated to TRC that it would
not remobilize on the site until the CWP was approved.
. . . Edward Doubleday of TRC credibly testified that
he spoke with Stephen Goldblum, the president of the
defendant, who stated that the defendant would not
proceed with further work until the plaintiff took
responsibility for anything related to the contaminated
steel, including any wipe sampling. Also, during the
period from mid-September to mid-December, the par-
ties, through TRC, became engaged in a dispute over the
characterization, testing and disposal of the structural
steel on the site. The defendant contends that the plain-
tiff had mischaracterized the structural steel as nonpo-
rous and that it should have been characterized as
porous given that many steel beams were painted. The
defendant claims that the mischaracterization effec-
tively led it to believe that the steel was not contami-
nated and could be disposed of without remediation.
How the steel was characterized had cost implications
as any steel with a PCB concentration of greater than
50 ppm could only be disposed of at a limited number
of waste facilities, which, in turn, would result in higher
disposal fees and transportation costs. There were also
higher decontamination costs.
‘‘Under the terms of the contract . . . any ‘[s]teel for
salvage shall become the property of the Contractor.
. . . The risk for quantity and value of scrap shall be
the Contractor[’s]’ . . . . Line 8 of the bid form also
stated that the ‘[q]uantity and value of scrap above and
below the Lump Sum bid is at Contractor[’s] . . . sole
risk/reward.’ . . . In bidding the project on the pre-
sumption the steel was not contaminated, the defendant
had not allocated any costs associated with the disposal
of contaminated steel. The defendant took the position
that, under the contract, the steel was to be tested for
PCBs and that it was the responsibility of the plaintiff
to do so. The defendant further contended that the
failure to properly characterize the steel resulted in its
inability to recycle it in such a way that it would be
able to obtain a financial credit of at least $200,000 as
anticipated by the bid and contract for an estimated
1000 tons of steel at $200 per ton.
‘‘This issue over who was to do the PCB sampling of
the structural steel and the subsequent disposal was
discussed as early as September 22, 2015, during the
weekly job meeting. At that meeting, TRC made refer-
ence to paragraph 13 (a) (ii) of the EPA approval letter
and advised the defendant that it was [the defendant’s]
responsibility as the project contractor to do the sam-
pling of the steel. This is also evidenced, in part, by the
weekly meeting minutes, which note that the defendant
claimed several of the EPA requirements specified in
the EPA approval letter were the basis for a change in
the contract. . . . In response, TRC indicated to the
defendant on each occasion that if it was seeking a
change in the contract it should formally submit a writ-
ten request in accordance with its terms. . . . Eventu-
ally, on November 27, 2015, the defendant submitted a
written notice to the plaintiff seeking a change to the
contract based on a ‘discovery of undocumented condi-
tions,’ which were described as follows: ‘The structural
steel of the building has not been characterized to the
satisfaction of the EPA. This characterization sampling
is not included as our work in the specification.’ . . .
This notice was followed by a November 30, 2015 letter
from the defendant directly to the plaintiff detailing its
issues with the steel sampling and disposal. . . . Gen-
erally, the defendant contended that the bid documents
did not include the initial characterization of the struc-
tural steel, the final approved Modified Self-Implement-
ing Plan, and the disposal of any hazardous (contami-
nated) steel as the defendant’s obligation. The
defendant took the position that, because this informa-
tion had not been provided to it during the bidding
process, ‘the final contract was then accidently exe-
cuted by [the defendant] after the [plaintiff’s] incorpora-
tion of the EPA [a]pproval [l]etter—without price
change—despite significant increased scope and poten-
tial adverse cost impact.’ . . . Nonetheless, the defen-
dant indicated [that] it remained ready, willing, and able
to perform the work on the project. By this point in
time, approximately 55 percent of the time allocated
for the completion of the work had passed. While stating
[that] it remained ready, willing and able to do the work,
the defendant also made statements to TRC at weekly
job meetings around the same time that it would not
perform any work if it was required to sample the
steel. . . .
‘‘The plaintiff responded by letter dated December
9, 2015, effectively rejecting the defendant’s claims and
reminding it that time was of the essence relative to
the completion date under the terms of the contract.
. . . The defendant responded on December 15, 2015,
noting that, because the plaintiff ‘failed to initially char-
acterize and remove potentially PCB contaminated
paints and dusts on the steel beams and expansion joint
material in the concrete,’ it was unable to complete the
CWP, which was needed in order to allow the start of
demolition activities. . . . The defendant claimed that,
as a result of the plaintiff’s failures, it was entitled to
a compensable delay of ninety-four days in the comple-
tion of the contract. . . . Thereafter, the plaintiff
issued a letter dated January 4, 2016, notifying the defen-
dant that it was in default and was therefore terminated
from its employment under the contract, effective Janu-
ary 11, 2016. . . . As of the date of the letter, the defen-
dant had yet to provide to the plaintiff a revised CWP,
an acceptable [health and safety plan], or a demolition
work plan. The basis for the termination letter was that
the defendant would not be able to timely complete the
work, it failed or refused to comply with pertinent laws,
ordinances or the instructions of the engineer (TRC),
violated or anticipatorily breached various provisions of
the contract, and failed to press the work to completion.
Further, [the defendant having contended] in its Novem-
ber 30, 2015 letter that [it] had ‘accidently executed’
the contract, the plaintiff considered the defendant to
have renounced and anticipatorily breached the con-
tract. There was credible testimony from both parties
that no substantive work was done on the project there-
after. Based on the defendant’s own payment applica-
tion for work done through November 30, 2015, only
9.51 percent of the work on the project had been done.
. . . As of January 11, 2016, including the six day con-
tract extension provided by the plaintiff to the defen-
dant, 82 percent of the time allowed for the completion
of the work had passed (119 of the 146 days). Shortly
thereafter, on January 15, 2016, the plaintiff filed the
present complaint against the defendant.
‘‘While pursuing its complaint, the plaintiff undertook
the effort to complete the project by putting out to bid
what it saw as the remaining work to be done. . . .
Following a procedure similar to that of the original
bid, including the contractor’s bid meeting, on-site visit,
and the provision of documents for review and question
clarifications, a total of nine contractors submitted bids
on the project. [The March 31, 2016 bid of] Costello
Dismantling [Company, Inc.] (Costello) . . . of
$2,962,207 was accepted by the plaintiff. . . . The
scope of work to be done was the same as that of the
defendant except for the work that had already been
completed by the defendant. Costello commenced work
on the project shortly thereafter. Mike Costello, as proj-
ect manager for Costello, credibly testified that, at the
time of its original bid in 2015, Costello understood from
its reviews of the bid documents and specifications
that PCB contamination existed on the job site in the
concrete and expansion joint caulking. Similar to the
defendant, Costello also considered the structural steel
to be recyclable. Costello, however, recognized that it
bore the risk of the steel being contaminated and might
have to bear the cost of any testing or disposal. Upon
its rebid, in 2016, Costello understood that it might bear
the cost of the testing and disposal given the terms of
the EPA approval letter and the contract. Therefore, at
the time of both bids, Costello took into consideration
that decontamination was required by the contract
specifications consistent with what it considered to be
the surficial standard for testing as set out in the approval
letter. In other words, wipe sampling was going to be
required as part of the job.
‘‘Costello’s work on the project was interrupted when
the defendant directly contacted the EPA by e-mail
dated September 1, 2016, to provide it with information
about paint sampling that was to be done on the site
pursuant to an August [19], 2016 order of this court in
this action.5 . . . This e-mail was sent approximately
eight months after the defendant had been dismissed
from the job. What followed was a series of e-mails and
phone calls between the defendant and the EPA through
November 21, 2016. This correspondence included
reports and findings from the defendant’s consultant
and trial expert, John Insall of Partner Engineering,
regarding the paint sampling and the results thereof,
which showed that some of the samples contained PCBs
in excess of 50 ppm. . . .
‘‘During this time, Costello continued other work on
the project, providing CWPs and revisions of the plans
based on the review and comments of both TRC and
the EPA. As part of the plans, Costello, which operated
with the understanding that it had the contractual
responsibility for the sampling of PCBs on the steel
beams and other surfaces, submitted to TRC for its
approval a PCB sampling plan dated August 17, 2016,
prepared by its consultant, Strategic Environmental
Services, Inc. . . . That plan noted that previous inves-
tigations had reported PCB concentrations in excess
of EPA limits on painted metal surfaces of the main
carrying beams for the overhead cranes. TRC approved
the plan and, in turn, submitted it to the EPA for its
approval. . . . A series of correspondence followed
from September 9, 2016, to November 9, 2016, between
the plaintiff and the EPA in which additional questions
and comments, including those about painted surfaces,
were made by the EPA. . . . Included was a comment
by the EPA that should the paint chip samples sought
by the defendant (in the court action) reveal PCBs in
the paint, a change to the decontamination plan might
be necessary. . . . After the submission of the multiple
CWPs, the EPA approved Costello’s CWP on October
5, 2016. . . . Costello then began the demolition of the
structure at the site. Subsequently, following the receipt
of the paint chip sample results from the defendant
through Insall on November 21, 2016, the EPA did
require additional testing of the steel beams and other
materials. That testing was ultimately done by the plain-
tiff.
‘‘While the litigation continued, Costello still attempted
to do certain work on the property. During the course
of its work on the project, Costello submitted eleven
change order requests. Most, but not all, were approved
by TRC. . . . By September 21, 2017, nearly a year
after the EPA first approved Costello’s CWP, the EPA
approved the plaintiff’s plan for decontamination and
recycling of the structural steel. . . . The approval was
consistent with the original September 1, 2015 approval
letter subject to certain additional conditions such as
the additional testing of steel beams and other materi-
als, which were the result, in part, of the court-ordered
paint chip sample results that the defendant unilaterally
provided to the EPA on November 21, 2016. It also
required the plaintiff to provide to the EPA and the
Connecticut Department of Energy and Environmental
Protection [department] the paint chip and wipe sample
results of any waste to be shipped off-site. This was,
in effect, the requirement to do verification sampling,
which the plaintiff was already obligated to do under
the terms of the contract[s] with both the defendant and
Costello. Such conditions were within the discretion of
the EPA to add and required the plaintiff, where paint
chip samples revealed the presence of PCBs [greater
than or equal to] 50 ppm, to decontaminate or dispose
of the steel in accordance with paragraph 13 (a) (ii)
and (iii) of the original approval letter. In effect, the
EPA required the plaintiff to do nothing more than what
it was originally required to do relative to the disposal
of the steel. The letter was not amended or modified
relative to the characterization and treatment of the
steel beams, nor were any other of its terms or provi-
sions changed in that regard. As worded, the original
approval letter did not specifically detail the frequency
of sampling or preclude the decontamination of the
steel to bring the PCBs down to a level where the steel
could be recycled. . . .
‘‘Having done wipe sampling of the structural steel
as part of its work, Costello found some beams were
beyond acceptable contamination standards. Following
completion of the sampling, Costello then began decon-
tamination of those beams through a pilot decontamina-
tion program, which proved very successful. The decon-
tamination process, however, was stopped due to this
pending litigation, which had prompted the EPA to seek
the additional testing. . . . To that point there only
remained a few contaminated items. Mike Costello
credibly testified, as a disclosed expert, that had Cos-
tello been able to complete the decontamination pro-
cess, there was a disposal facility that would have
accepted the steel for recycling. Also, as part of the
scope of its work, Costello was to take down the roof
of the building, which it had done sometime in the fall
of 2016. . . . Because of the defendant’s correspon-
dence to the EPA regarding the test results, the EPA
also asked for the testing of the roofing material, which
added additional cost and delay to the completion of
the project. . . . In fact, because of the issue being
raised by the defendant, Costello was never able to
finish the project, including the treatment and disposal
of the steel for recycling. This was in part because,
rather than disposing of the steel and debris, it then
had to stockpile it on the site for examination and
testing. . . . By that point, the plaintiff’s available
funds for the project were exhausted and the work
ceased.’’ (Citations omitted; emphasis in original; foot-
notes in original; footnote added; footnotes omitted.)
In its complaint, the plaintiff alleged a single count
of breach of contract by the defendant. Specifically, the
plaintiff alleged that, via a letter dated January 4, 2016,
it had declared the defendant to be in default of the
contract and had given the defendant seven days’ notice
that the defendant’s employment under the contract
was terminated. The complaint further alleged that the
defendant breached the parties’ contract in one or more
of the ways set forth in the January 4, 2016 termination
letter, which stated that the defendant (1) had failed
to complete its work under the contract in a timely
manner; (2) had failed or refused to comply with perti-
nent laws, regulations and instructions of the engineer
for the project; (3) anticipatorily breached material pro-
visions of the contract; and (4) did not vigorously per-
form its obligations as required by article 2.1.2 of the
contract.
In response, the defendant filed an answer and nine
special defenses. The nine special defenses alleged that
the plaintiff’s action was barred, in whole or in part,
by the following: (1) the failure of the complaint to
state a claim for which relief could be granted; (2)
unilateral mistake in the terms of the contract; (3) fraud
in the inducement; (4) equitable estoppel; (5) unclean
hands; (6) waiver; (7) a failure to mitigate damages; (8)
a material breach of the contract by the plaintiff; and
(9) the plaintiff’s failure to comply with the conditions
for termination of the contract. The defendant also filed
a fourth amended, eight count counterclaim alleging,
in count one, breach of contract for failure to pay; in
count two, breach of contract for the plaintiff’s delays
in the performance of its work under the contract; in
count three, wrongful termination; in count four, negli-
gent misrepresentation; in count five, a violation of
General Statutes § 52-557n (b) (8) by the plaintiff for
failing to conduct a proper inspection of the property;
in count six,6 a violation of § 52-557n (b) (9) by the
plaintiff for failing to detect or prevent pollution of the
environment; in count seven, breach of the duty of
good faith and fair dealing; and in count eight, unjust
enrichment.7
In its lengthy memorandum of decision, the court
found that the plaintiff had established its claim for
breach of contract and had suffered damages. After
examining and rejecting the defendant’s special defenses
and the six remaining counts of its counterclaim, the
court addressed the issue of damages. The court found
that article 2, § 2.1.1 of the contract was a valid provi-
sion for liquidated damages, rather than a penalty. It
further found that, although the plaintiff had presented
considerable evidence of its actual and consequential
damages, the plaintiff could not claim both liquidated
damages and actual and consequential damages, as the
liquidated damages provision of the contract did not
‘‘allow an independent claim for actual and consequen-
tial damages.’’ The court concluded that the plaintiff
was ‘‘limited in its claim of damages to those attribut-
able under its liquidated damages provision, article 2,
§ 2.1.1. Although such damages are often typically deter-
mined by when the job is finally completed by the
breaching party, here, the plaintiff dismissed the defen-
dant from the job. Costello was hired to finish the job,
but because of the defendant’s interaction with the EPA
and the subsequent additional work and testing, it was
unable to do so, as the funds available to the plaintiff
to complete the project were exhausted. Although the
job was never completed, the plaintiff has not sought
liquidated damages beyond 260 days (adjusted to 254
days), which falls shortly after Costello received notice
of the EPA’s approval of the CWP. Thus, the total amount
of liquidated damages due the plaintiff is found to be
$508,000.’’
Next, the court addressed the retainage8 held by the
plaintiff. Pursuant to General Statutes § 49-41b, the
amount of retainage held by a municipality in any public
work contract is limited to 5 percent of any periodic
or final payment due a general contractor. In the present
case, under the contract the plaintiff was entitled to
retain 10 percent ‘‘of each estimate until final comple-
tion and acceptance of all work covered by [the] con-
tract.’’ The court found that $18,628, which represented
10 percent of the cost of the work deemed completed
by the defendant, was held by the plaintiff as retainage.
The court explained that, although that amount com-
ported with the terms of the contract agreed to by the
parties, they were, nevertheless, bound by the terms of
the statute. Accordingly, the court concluded that the
correct amount of retainage held should have been
$9314, and it set off the excess retainage against the
amount due the plaintiff in liquidated damages, which
resulted in an award in the amount of $498,686. The
remaining retainage, $9314, was credited toward the
plaintiff’s damages, which resulted in a further reduc-
tion in the award due the plaintiff to $489,372. Judgment
was rendered in favor of the plaintiff on its breach of
contract claim in that amount. This appeal followed.
Additional facts and procedural history will be set forth
as necessary.
I
THE DEFENDANT’S APPEAL
On appeal, the defendant claims that (1) the court
misapplied state and federal environmental regulations,
(2) the court erred in not finding that the contract was
impossible to perform, (3) the court improperly deter-
mined that the plaintiff lawfully had terminated the
contract, and (4) evidence of certain change orders
executed by the plaintiff in connection with its contract
with Costello, pursuant to which the plaintiff had agreed
to modify terms of that contract, constituted admissions
that the plaintiff’s contract with the defendant was
defective and could not be performed by the defendant
as written.
Before we address the defendant’s claims, we first
set forth our well established standard of review in
cases involving the issue of contract interpretation.9
‘‘The elements of a breach of contract claim are the
formation of an agreement, performance by one party,
breach of the agreement by the other party, and dam-
ages. . . . The interpretation of definitive contract lan-
guage is a question of law over which our review is
plenary. . . . By contrast, the trial court’s factual find-
ings as to whether and by whom a contract has been
breached are subject to the clearly erroneous10 standard
of review and, if supported by evidence in the record,
are not to be disturbed on appeal.’’ (Citations omitted;
footnote added; internal quotation marks omitted.) CCT
Communications, Inc. v. Zone Telecom, Inc., 327 Conn.
114, 133, 172 A.3d 1228 (2017). ‘‘[T]he intent of the
parties [to a contract] is to be ascertained by a fair and
reasonable construction of the written words and . . .
the language used must be accorded its common, natu-
ral, and ordinary meaning and usage where it can be
sensibly applied to the subject matter of the contract.
. . . Where the language of the contract is clear and
unambiguous, the contract is to be given effect
according to its terms. A court will not torture words
to import ambiguity where the ordinary meaning leaves
no room for ambiguity . . . . Similarly, any ambiguity
in a contract must emanate from the language used in
the contract rather than from one party’s subjective
perception of the terms. . . . [T]he mere fact that the
parties advance different interpretations of the lan-
guage in question does not necessitate a conclusion
that the language is ambiguous. . . . If a contract is
unambiguous within its four corners, intent of the par-
ties is a question of law requiring plenary review. . . .
When the language of a contract is ambiguous, the
determination of the parties’ intent is a question of fact,
and the trial court’s interpretation is subject to reversal
on appeal only if it is clearly erroneous.’’ (Internal quota-
tion marks omitted.) Assn. Resources, Inc. v. Wall, 298
Conn. 145, 183, 2 A.3d 873 (2010).
Moreover, ‘‘[c]ourts do not unmake bargains unwisely
made. Absent other infirmities, bargains moved on cal-
culated considerations, and whether provident or
improvident, are entitled nevertheless to sanctions of
the law. . . . Although parties might prefer to have the
court decide the plain effect of their contract contrary
to the agreement, it is not within its power to make a
new and different agreement . . . .’’ (Internal quota-
tion marks omitted.) Detar v. Coast Venture XXVX, Inc.,
74 Conn. App. 319, 323, 811 A.2d 273 (2002). ‘‘It also is
settled that [t]he individual clauses of a contract . . .
cannot be construed by taking them out of context and
giving them an interpretation apart from the contract
of which they are a part. . . . A contract should be
construed so as to give full meaning and effect to all
of its provisions . . . .’’ (Internal quotation marks omit-
ted.) FCM Group, Inc. v. Miller, 300 Conn. 774, 811, 17
A.3d 40 (2011).
A
The defendant’s first claim is that the court misap-
plied state and federal environmental laws. Specifically,
the defendant focuses on the court’s statement, which
it characterizes as erroneous, that, ‘‘[a]t the heart of
the dispute between the parties is whether the plaintiff
was obligated to do sampling of the structural steel for
PCBs under the terms of the contract, of which the
September 1, 2015 EPA approval letter was a part.’’
The defendant claims, instead, that its dispute with the
plaintiff ‘‘was about the obligation to characterize the
waste coming off the site based on the EPA regulations
and state law, not the contract.’’ The defendant further
claims that the court, by focusing on the contract, ‘‘mis-
applied the state and federal regulatory scheme as it
pertains to cleanup projects affecting regulated PCB
contamination,’’ and that, by ‘‘focusing on the steel, it
disregarded the other PCB contaminated waste
revealed by the EPA imposed testing, the requirements
of General Statutes § 22a-467, and the effect of EPA
regulations.’’
For example, the defendant asserts that the notifica-
tion provided by the plaintiff to the regulators was inad-
equate and did not comply with 40 C.F.R. § 761.61 (a)
(3) because the plaintiff, by not testing various PCB
contaminated materials, did not provide all required
information. As a result, the defendant claims that the
notification ‘‘did not provide authorization to perform
work affecting undisclosed regulated waste,’’ nor did
the approval letter ‘‘authorize the [plaintiff] to perform
work on undisclosed waste.’’ The defendant also claims
that the plaintiff disregarded the requirements of § 22a-
467 because it never had a permit to remediate the
waste from the site.
The defendant’s claims are based on its assertion that
‘‘[t]he state and federal environmental regulatory schemes
both articulate a stringent policy preventing the distur-
bance of PCB contaminated waste unless and until the
nature and extent of the contamination is determined
and disclosed to the regulators, and they approve the
plan for remediation and disposal of regulated waste.’’
In support of this proposition, the defendant cites to
40 C.F.R. § 761.61 (a) (2), which provides in relevant
part that ‘‘[a]ny person conducting self-implementing
cleanup of PCB remediation waste must characterize
the site adequately . . . .’’11 According to the defen-
dant, the plaintiff, by mischaracterizing the steel beams
as nonporous and by failing to paint chip sample the
structural steel prior to submitting its plan for approval
by the EPA, did not adequately characterize the site
and thereby violated 40 C.F.R. § 761.61 (a) (2).
The defendant’s claims of violations by the plaintiff
of state and federal statutes and regulations can be
distilled to one central claim, namely, that the plaintiff,
prior to entering into the contract with the defendant,
should have tested and analyzed samples of all of the
waste at the site in order to be able to characterize the
site adequately. As a result of the plaintiff’s failure to
do so, the defendant alleges that the information pro-
vided to the EPA was ‘‘limited or false,’’ as it did not
cover the undisclosed contaminated waste. Thus,
according to the defendant, the Notification and
approval letter from the EPA could not and did not
provide authorization to perform work on the undis-
closed waste, which precluded the defendant from per-
forming any such work until the plaintiff performed the
necessary testing and the EPA provided the necessary
authorization. We disagree and conclude that the defen-
dant’s claims are belied by the court’s findings, which
are supported by the record.
1
First, from our review of the record, it does not
appear that the defendant raised its claim before the
court that the plaintiff lacked proper authorization from
the EPA to perform work on the undisclosed waste at
the site, as it was not mentioned in the defendant’s
posttrial brief nor did the court address it in its memo-
randum of decision. Rather, the defendant argued at
trial that the plaintiff’s mischaracterization of the steel
made it impossible for the defendant to perform under
the contract and that the plaintiff breached the contract
by failing to characterize the steel properly. This court,
therefore, will not address the issue of the adequacy
of the EPA approval letter authorizing the plaintiff to
commence work on phase III of the project, as that
issue was not raised before or decided by the trial
court. See Lebanon Historical Society, Inc. v. Attorney
General, 209 Conn. App. 337, 351 n.12, 268 A.3d 734(2021) (declining to review claim that was not distinctly
raised before or decided by trial court). Moreover,
because the court did not reference § 22a-467 in its
decision, nor did the defendant raise any claim pursuant
to that statute before the court in its special defenses,
counterclaim or posttrial brief, we also decline to
address the defendant’s claim that the plaintiff, and the
court, disregarded the requirements of § 22a-467. See id.
2
The following facts are relevant to the defendant’s
claims that the plaintiff did not characterize the site
adequately and was required under the contract to paint
chip test the steel beams before the defendant could
perform any work at the site. The plaintiff submitted a
notification to the EPA seeking approval of a proposed
plan to address the removal of PCB contaminated build-
ing materials from the project site. In response, on
September 1, 2015, the EPA issued an approval letter
authorizing the plaintiff to move forward with phase
III of the project subject to the conditions set forth in
the letter and two attachments. The first attachment
required the plaintiff to provide to the EPA ‘‘a certifica-
tion signed by its selected abatement/demolition con-
tractor, stating that the contractor(s) has read and
understands the Notification, and agrees to abide by
the conditions specified in [the] [a]pproval . . . .’’ The
second attachment included documents and correspon-
dence reviewed by the EPA prior to the issuance of its
approval, which, as the court found, included ‘‘discus-
sions of PCB contamination of various materials includ-
ing overhead cranes and steel beams.’’ By e-mail, dated
September 3, 2015, the defendant, as the contractor,
provided the certification required by the approval let-
ter, stating that it read and understood the cleanup and
disposal plan for the project site and agreed to abide
by the conditions set forth by the EPA in the approval
letter, which included compliance with EPA regulations
under 40 C.F.R. § 761 relative to the removal and abate-
ment of PCBs. Subsequently, the parties entered into
the contract, and, by letter dated September 14, 2015,
the plaintiff provided the defendant with a notice to
proceed as required under the contract.
As stated previously in this opinion, the court found
that the parties’ dispute centered on whether the con-
tract obligated the plaintiff to do paint chip sampling
of the structural steel to determine the presence of
PCBs at an improper level. In addressing this issue,
the court found that the testimony of Goldblum, the
defendant’s president, and Lawrence Kurt, who pre-
pared the CWP for the defendant, made ‘‘clear that the
defendant’s position was that paint chip sampling of
the steel was necessary for it to be sold to scrap dealers
as recyclable material.’’ The general truth of that state-
ment, however, is irrelevant because the court found
that the contract does not specify any requirement for
paint chip testing, and our examination of the contract
confirms that finding. Additionally, the court found the
testimony of the plaintiff’s expert witnesses ‘‘to be cred-
ible12 and of greater weight than that of the defendant’s
expert’’; (footnote added); on the issue of whether it is
customary to require paint chip sampling under circum-
stances similar to those in the present case.13 The court
further found that, ‘‘[w]ith respect to any testing that
might have been required to comply with any regulatory
provisions under 40 C.F.R. § 761, the defendant
acknowledged that it had such an obligation when it
expressly certified in its letter on September 3, 2015,
that it had read and understood the terms of the EPA’s
Notification and agreed to abide by the specifications
set out in the approval letter.’’ The court also specifi-
cally found that ‘‘there is no express statement [in the
contract] that the steel is not contaminated,’’ which
undermines the primary basis for the defendant’s argu-
ment about the plaintiff’s alleged mischaracterization
of the site.14 Finally, the court found that ‘‘the plaintiff
performed its obligations under the contract.’’
We conclude that the court’s findings are supported
by the clear and unambiguous provisions of the con-
tract. For example, the provision of the contract govern-
ing the transportation and disposal of hazardous materi-
als requires that ‘‘[a]ll labor, materials, tools, equipment,
services, testing, insurance, and incidentals which are
necessary or required to perform the work in accor-
dance with applicable governmental regulations, indus-
try standards and codes, and these specifications, shall
be provided by the Contractor.’’ (Emphasis added.) The
contract further provides that ‘‘[a]ll characterization
sampling and analysis for disposal shall be conducted
by the CONTRACTOR, with supervision from the ENGI-
NEER, where indicated,’’ and that ‘‘[t]he Contractor is
responsible for verifying actual locations and quantities
of the items with hazardous/regulated material/waste
constituents and for their proper handling and dis-
posal.’’ Moreover, neither the contract nor the approval
letter required the plaintiff to do paint chip sampling.
As the court properly found, the contract, when viewed
as a whole, ‘‘overwhelmingly placed the obligation for
the testing, handling and processing of the materials
on the site upon the defendant.’’ Indeed, as the court
observed, ‘‘[f]rom the broadest perspective, while the
defendant argues that it was the plaintiff who was
responsible for managing and disposing of the PCBs
on the site, the very purpose of the plaintiff awarding
the contract to the defendant was to have it do that
very work,’’ and ‘‘[w]hat the defendant viewed as extra
work with respect to the testing and treatment of the
structural steel was reasonably within the scope of the
work called for by the contract and the EPA approval
letter.’’
In the present case, the court correctly found that
the contract ‘‘overwhelmingly placed the obligation for
the testing, handling and processing of the materials on
the site upon the defendant.’’ The court also thoroughly
discussed the risks assumed by the defendant under the
contract and found that the plaintiff was not obligated
to test the waste ‘‘except in the context of doing verifica-
tion testing, which the parties do not dispute. All charac-
terization of the waste that had previously been done
in phases I and II of the project, which work had been
approved by the EPA, was disclosed to the defendant
as part of the bid process and within the contract docu-
ments. The contract specifically addressed the charac-
terization of the waste . . . [and required it to be con-
ducted by the contractor]. . . . The fact that the
defendant may not have accounted for the potential
contamination or testing of some structural steel, which
had been thought to have been recyclable, and therefore
resulted in the need for additional work both in terms
of time and labor, was a risk that it contractually bore.’’
(Citation omitted.) The court further stated that ‘‘[t]he
contract expressly made clear that the risk of the condi-
tion of the materials being different than anticipated
was solely on the contractor. Hence, if it turned out
that the assumption as to the recyclability of the steel
was wrong, the risk as to the quantity and value of any
recyclable steel was to be borne by the [defendant].
Both the original bid form and the proposed/executed
contract documents so stated.’’ These findings are
amply supported by the clear language of the contract
and the documents related thereto that were submitted
into evidence. The defendant’s claim on appeal that
the plaintiff was required to do the testing that the
defendant, itself, had contracted to perform simply
lacks merit.
3
Although, on appeal, the defendant casts the primary
issue as involving the plaintiff’s obligation to character-
ize waste in accordance with the EPA regulations and
state law, this case involves a claim for breach of con-
tract, and the defendant has not challenged many of the
court’s findings and conclusions related to the plaintiff’s
breach of contract claim nor has it provided a clear
explanation as to how its claims concerning the EPA
regulations circumvent the court’s findings regarding
the contract. As we stated previously, ‘‘[t]he elements
of a breach of contract claim are the formation of an
agreement, performance by one party, breach of the
agreement by the other party, and damages.’’ (Internal
quotation marks omitted.) CCT Communications, Inc.
v. Zone Telecom, Inc., supra, 327 Conn. 133. In determin-
ing whether those elements had been satisfied, the court
thoroughly, and properly, analyzed the provisions of
the contract.
The defendant’s claim that this case concerns the
issue of the plaintiff’s obligation to characterize the
waste based on the requirements of certain EPA regula-
tions, not on the pertinent language of the contract, is
undercut by the defendant’s arguments before the court
and in its posttrial brief, which is replete with arguments
relating to the provisions of the contract. Although, in
making those arguments, the defendant referred to EPA
regulations, its claims at trial were premised on the
contract, and the defendant relied on those regulations
as a basis for its claim that the plaintiff breached the
contract. On appeal, however, the defendant, without
reference to the contract and as an excuse to escape
its contractual obligations, argues that the plaintiff’s
conduct constitutes a violation of those regulations and
that the court erred in failing to find such a violation.
The defendant cannot take one path at trial and, when
that fails, choose another on appeal. See Bligh v. Travel-
ers Home & Marine Ins. Co., 154 Conn. App. 564, 577,
109 A.3d 481 (2015) (‘‘[o]rdinarily appellate review is
not available to a party who follows one strategic path
at trial and another on appeal, when the original strategy
does not produce the desired result’’ (internal quotation
marks omitted)). The defendant’s claim, therefore, fails.
4
Finally, it is also important to note the court’s finding
that, ‘‘[i]n this transaction, the defendant was a sophisti-
cated and experienced party in a highly specialized area
of work, which had, or had available to it if it wished,
the advice of consultants or counsel prior to entering
into the transaction. In fact, the defendant’s president,
Goldblum, is himself an attorney. In the bid documents,
the defendant provided a detailed and extensive list of
its experience in the field of demolition, remediation
and abatement, referencing fifty-three projects it had
completed or [was] actively working on between 2008
and 2014.’’ The court further found that the defendant
‘‘was given every opportunity to address any issues it
had with the proposed terms and interpretation of the
contract prior to its execution,’’ that ‘‘[i]t was not an
innocent [party] that was somehow unknowingly duped
into entering into an agreement of which it had no real
knowledge or understanding,’’ and that, even though
the court understood ‘‘the source of the frustration and
dismay of the defendant as to the condition of the prop-
erty being other than that which it had assumed,’’ under
the contract, the defendant bore the risk of its failure
to account ‘‘for the potential contamination or testing
of some structural steel which had been thought to
have been recyclable . . . .’’
With the benefit of hindsight, the defendant, in an
effort to shift the burden and responsibility for site
testing from it to the plaintiff, effectively is requesting
this court to rewrite its contract with the plaintiff, which
would be contrary to the well established principle that
‘‘parties are free to contract for whatever terms on
which they may agree. This freedom includes the right
to contract for the assumption of known or unknown
hazards and risks that may arise as a consequence of
the execution of the contract. Accordingly, in private
disputes, a court must enforce the contract as drafted
by the parties and may not relieve a contracting party
from anticipated or actual difficulties undertaken pur-
suant to the contract, unless the contract is voidable on
grounds such as mistake, fraud or unconscionability.’’
Holly Hill Holdings v. Lowman, 226 Conn. 748, 755–56,
628 A.2d 1298 (1993); see also Coppola Construction
Co. v. Hoffman Enterprises Ltd. Partnership, 157 Conn.
App. 139, 159, 117 A.3d 876 (‘‘[C]ourts do not unmake
bargains unwisely made. . . . Although parties might
prefer to have the court decide the plain effect of their
contract contrary to the agreement, it is not within its
power to make a new and different agreement; con-
tracts voluntarily and fairly made should be held valid
and enforced in the courts.’’ (Internal quotation marks
omitted.)), cert. denied, 318 Conn. 902, 122 A.3d 631(2015), and cert. denied, 318 Conn. 902, 123 A.3d 882(2015). Although ‘‘the defendant may have used a mis-
taken basic assumption in making its bid and entering
into the contract,’’ that does not permit this court or
the trial court to rewrite the contract or to relieve the
defendant of its obligations thereunder, especially when
the defendant is an experienced and sophisticated com-
mercial party with respect to the type of work covered
by the contract, rather than an unsophisticated party
that was misled or deceived into entering into the con-
tract, the circumstances of which, the court concluded,
were not unconscionable.
B
The defendant next claims that the court erred in not
finding that the contract was impossible to perform.
We decline to review the claim.
This court previously has addressed the defense of
impossibility, stating: ‘‘Practice Book § 10-50 provides
that [f]acts which are consistent with [the claimant’s
allegations] but show, notwithstanding, that the plaintiff
has no cause of action, must be specially alleged. . . .
The defense of impossibility does not aim to establish
the absence of a breach of the contract; rather it
assumes breach and instead seeks to show that a party
is excused from performance because at the time [the]
contract [was] made, [his] performance under it is
impracticable without his fault because of a fact of
which he has no reason to know . . . . 2 Restatement
(Second), Contracts, Existing Impracticability or Frus-
tration § 266, p. 338 (1981). Accordingly, such defense
must be specially pleaded.’’ (Citation omitted; internal
quotation marks omitted.) Howard-Arnold, Inc. v.
T.N.T. Realty, Inc., 145 Conn. App. 696, 711–12, 77 A.3d
165 (2013), aff’d, 315 Conn. 596, 109 A.3d 473 (2015).
In the present case, the plaintiff argues that this court
should decline to review the defendant’s impossibility
claim because it was not pleaded as a special defense.
It claims that, because the defendant failed to plead
a special defense of impossibility, the court did not
undertake the necessary analysis of such a claim, nor
did it make findings thereon, and, thus, it could not have
erred in failing to find that the defendant’s performance
under the contract was impossible. In opposition, the
defendant argues that the issue of impossibility is prop-
erly before this court. Specifically, the defendant claims
that it raised the claim in its posttrial brief and that
the court addressed the issue in its memorandum of
decision. We agree with the plaintiff.
First, we note that the defendant has not addressed
in its reply brief the issue raised by the plaintiff concern-
ing the defendant’s failure to plead impossibility as a
special defense, which, by itself, is fatal to its claim, as
our case law is clear that impossibility must be pleaded
as a special defense. See id. The court, therefore, could
not have erred in failing to make a finding on an issue
that was not properly before it. Moreover, the defendant
relies on its claims that the court addressed the issue
in its decision and that the defendant raised the issue
in its posttrial brief as part of its argument that the
plaintiff materially had breached the contract. Our
review of the court’s decision, however, demonstrates
that, although the court referenced a number of the
defendant’s claims, including the claim that the plain-
tiff’s mischaracterization of the steel made it impossible
for the defendant to perform under the contract, the
court did not make any express findings regarding
whether the contract itself was impossible to perform.
The only finding regarding impossibility made by the
court was its finding that, given the course of events
that had transpired, as of December, 2015, it would
have been impossible for the defendant to complete
the work in a timely manner; the court never made
a finding that it would have been impossible for the
defendant to perform the work under the contract in
the first place beginning in September, 2015, as claimed
by the defendant on appeal.
Additionally, even if the issue of whether it was
impossible for the defendant to perform its obligations
under the contract was properly before the court,
because the court failed to make any findings as to that
issue, we would have to speculate as to whether the
court rejected the claim or simply overlooked it. It was
incumbent on the defendant to seek an articulation of
the court’s decision as to its failure to make a finding
on a claim the defendant alleges was properly before
the court. In the absence of such an articulation, the
record is inadequate for us to review the claim. See
McCarthy v. Chromium Process Co., 127 Conn. App.
324, 335, 13 A.3d 715 (2011) (‘‘It is well established that
[i]t is the appellant’s burden to provide an adequate
record for review. . . . It is, therefore, the responsibil-
ity of the appellant to move for an articulation or rectifi-
cation of the record where the trial court has failed to
state the basis of a decision . . . to clarify the legal
basis of a ruling . . . or to ask the trial judge to rule
on an overlooked matter. . . . In the absence of any
such attempts, we decline to review this issue.’’ (Inter-
nal quotation marks omitted.)).
C
The defendant next claims that the court improperly
determined that the plaintiff lawfully had terminated
the contract.15 In support of this claim, the defendant
argues that ‘‘[a] party to a contract already in default
cannot terminate the other,’’ and that the plaintiff ‘‘was
clearly in default by the end of November when the
CWP was rejected.’’ Thus, according to the defendant,
‘‘[u]nless and until the CWP was approved, [the defen-
dant] had no authority to perform any work that
affected PCB contaminated waste.’’ We are not per-
suaded.
We first note that the court did not make an express
finding that the plaintiff lawfully had terminated the
contract. Such a finding, however, can be inferred from
the court’s rejection of count three of the defendant’s
counterclaim, which alleged that the plaintiff wrong-
fully had terminated the defendant from the job.
Although the defendant appears to be challenging that
determination, its very limited briefing on the issue fails
to address the court’s determination that the defendant
had failed to establish the allegations of its wrongful
termination claim in count three of its counterclaim.
We, therefore, do not undertake an analysis of the
court’s decision relating thereto.
The defendant’s claim that the plaintiff did not law-
fully terminate the contract is premised on a faulty
assumption, namely, that the plaintiff was in default
under the contract. The record does not support that
assertion, and the court made no such finding of default
by the plaintiff. In fact, the court expressly found that
the plaintiff had performed its obligations under the
contract and that there was ample evidence of the
defendant’s breach. Specifically, the court stated: ‘‘First,
the contract contained a ‘time is of the essence’ clause
requiring the defendant to finish the job on or before
February 1, 2016. TRC had granted a six day extension
to allow for the testing of the expansion joint caulking
for PCB contamination as requested by the EPA, which
moved the deadline back to February 7, 2016. There
was credible testimony from Doubleday, Zarba and
[Richard] McManus that the defendant would not have
been able to meet that deadline. Collectively they cited
several factors, including, but not limited to: (1) the
defendant waiting seven weeks (forty-eight days)
before obtaining a demolition permit for the job site;
(2) the multiple delays in preparing an acceptable CWP,
which included over a month’s delay while the defen-
dant hired a consultant to review the plan; (3) the defen-
dant’s election to demobilize from the site on or about
November 20, 2015; (4) McManus’ opinion that the mill-
ing of the concrete called for in the contract would
take sixty-nine days as opposed to the thirty days the
defendant had estimated; (5) the ongoing dispute over
who was responsible for the testing of the steel for PCB
contamination despite the plaintiff’s continued insis-
tence that it was the defendant’s obligation to do so;
(6) the defendant’s delay between at least November
3, 2015, and November 27, 2015, in submitting a written
change order request based on its repeated oral claim
that several of the EPA requirements specified in the
approval letter were the basis for a change in the con-
tract despite TRC’s equally repeated response that such
a claim would only be considered if submitted in writing
pursuant to the contract; (7) the failure to submit a
revised [health and safety plan]; (8) the failure to submit
a demolition work plan; (9) the November 20, 2015 letter
from the defendant and statement at the December 8,
2015 job meeting advising the plaintiff that the defen-
dant would not proceed with any further work on the
job until a CWP was done; (10) its statement in that
same letter and at the job meetings on November 24,
2015, December 1, 2015, and December 8, 2015, that it
would not perform any work if [it] was required to
sample the steel; (11) that the issues on the character-
ization of the steel and the paint chip testing were still
to be resolved; (12) that less than 10 percent of the
work called for on the project had been completed as
of both December of 2015 and the date of the termina-
tion; and (13) based on its December 15, 2015 letter to
the plaintiff claiming a ninety-four day delay due to
plaintiff’s actions and the defendant’s own proposed
revised project schedule that called for a completion
date of May 4, 2016. Given these facts, it is clear that
it would have been impossible for the defendant to
have finished the job by February 6, 2016.’’ (Footnotes
omitted.)
These findings provide ample support for the court’s
determination that, in December, 2015, the defendant
could not have finished the job in a timely manner as
required under the contract. Therefore, the defendant’s
challenge to the court’s implicit determination that the
plaintiff lawfully had terminated the contract is unavail-
ing.16
D
The defendant next claims that evidence of certain
change orders executed by the plaintiff in connection
with its contract with Costello, pursuant to which the
plaintiff had agreed to modify terms of that contract,
constituted admissions that the plaintiff’s contract with
the defendant was defective and could not be performed
by the defendant as written. We disagree.
In its memorandum of decision, the court found that
Costello submitted eleven change order requests during
the course of its work on the project and that most of
those requests were approved by TRC. The court further
stated: ‘‘The defendant has argued that the court should
also consider the conduct of the plaintiff in its handling
of the similar contract with Costello following the rebid
of the project. The defendant argues that, as to Costello,
TRC allowed change orders similar to those asked for
[by the defendant] and denied to the defendant by TRC,
and that those change orders often revolved around the
requirements for testing and decontamination. This, the
defendant contends, is an admission on the part of the
plaintiff as to the actual intent of the contract, which
was that the original obligation for the testing of PCB
contamination was that of the plaintiff. To this end, the
defendant cites Putnam Park Associates v. Fahne-
stock & Co., 73 Conn. App. 1, 10–11, 807 A.2d 991 (2002),
for the general proposition that a court may use the
parties’ actions as an aid to determine the meaning of
the contract. While that general proposition is true, the
defendant’s reference to the case is misplaced, as the
defendant asks the court to look at the actions of the
plaintiff with respect to a different party on a different,
albeit similar, contract. . . . The plaintiff’s actions do
not involve the same two parties and, therefore, the
principle cited is inapplicable.’’ (Citation omitted.) We
agree with the court.
The fatal flaw in the defendant’s argument is its fail-
ure to acknowledge the basis for the change orders
sought by Costello. Approximately eight months after
the defendant’s contract with the plaintiff was termi-
nated, the defendant directly contacted the EPA by
e-mail regarding certain paint chip sampling requested
by the defendant as part of this litigation that was to
be performed on the site in accordance with an order
of the trial court dated August 19, 2016.17 This resulted
in a series of e-mails and telephone calls between the
defendant and representatives of the EPA and had the
effect of interrupting the work being performed by Cos-
tello. Subsequently, TRC submitted to the EPA a plan
proposed by Costello for PCB sampling, after which a
series of correspondence between the plaintiff and the
EPA followed. Those exchanges included ‘‘a comment
by the EPA that should the paint chip samples sought
by the defendant (in the court action) reveal PCBs in
the paint, a change to the decontamination plan might
be necessary.’’ The results of that paint chip sampling
did prompt the EPA to require additional testing of the
steel beams and other materials, including testing of
roofing material, which caused additional expenses and
delayed the project. Significantly, the court found that,
‘‘[a]t no time before the defendant unilaterally inter-
vened by contacting the EPA with the court ordered
paint chip sample results on November 21, 2016, did
the EPA expressly require the plaintiff to do any paint
chip sampling and provide the results thereof.’’
Following its examination of the language of the con-
tract and the approval letter, and its consideration of
the expert testimony presented,18 the court found that
paint chip sampling was not required to be done by the
plaintiff under its contract with the defendant. That
finding is supported by the record and is not clearly
erroneous. The defendant’s claim, therefore, that the
change orders granted to Costello in connection with
the additional paint chip testing requirements imposed
by the EPA, which were not part of the defendant’s
contract with the plaintiff, constituted an admission by
the plaintiff that its contract with the defendant could
not be performed without such testing is contrary to
the record and fails.
II
THE CROSS APPEAL
In its cross appeal, the plaintiff challenges the court’s
award and calculation of damages. Specifically, the
plaintiff claims that the court erred in its award and
calculation of damages with respect to the following:
(1) ‘‘the court interpreted the contract’s liquidated dam-
ages . . . provision . . . as the only measure of dam-
ages available for all elements of the [plaintiff’s] loss
when that provision is not the exclusive measure of
damages for breach and does not preclude the award
of the [plaintiff’s] nondelay damages, inclusive of direct
and consequential damages unrelated to delay in [the
project’s] completion’’; (2) ‘‘there is no lawful basis for
limiting per diem [liquidated damages] to 254 days’’;
and (3) ‘‘the court erred in its prospective calculation
of damages by not taking into account the $167,652
paid by the [plaintiff] to [the defendant] when it com-
pared [the defendant’s] and Costello’s contracts for the
purpose of determining the [plaintiff’s] completion
costs.’’19 We agree with the plaintiff’s first claim.
We first set forth the following findings concerning
the issue of damages made by the court in its memoran-
dum of decision: ‘‘[T]he plaintiff has submitted a sum-
mary of damages with supporting documentation claim-
ing an amount due of $1,855,936. . . . Categorically,
the claimed damages fall into three areas. First, the
difference in the contract price between the defendant
and Costello for the job to be done. Second, additional
expenses for the rebidding of the job and the engi-
neering support that went with it. Third, project dam-
ages for both contractual liquidated damages and addi-
tional work the plaintiff was required to do as a result
of the defendant’s unilateral communications with the
EPA following its dismissal from the job.
‘‘As to the first category, the difference in the contract
price, the defendant’s accepted bid in June, 2015, was
$2,713,950. Upon rebid in March, 2016, Costello was
awarded the contract for $2,962,207. The difference is
an additional cost of $248,257. . . . The bid forms pro-
vided to the bidders between the original bid and the
rebid were identical but for the assumption of the credit
for salvageable steel. The original bid form estimated
1000 tons and the rebid form estimated 2400 tons. Both
indicated that the quantity and value of the salvageable
steel was at the contractor’s sole risk/reward.
‘‘As to the second category, the additional expenses
for the rebidding of the job and the engineering support
that went with it, the plaintiff claims payments of
$167,652 made to the defendant, payments of $92,300
toward construction support in 2015, the escalation of
unit prices resulting in an additional cost of $17,913,
payments of $47,230 toward the support of the rebid
process, $23,800 for the disposal of bags with asbestos
containing material that had been left on-site by the
defendant, $10,259 for fencing, and $583 for advertise-
ment of the project rebid. These expenses total
$359,737. The court finds evidentiary support for most
of the claimed expenses. However, the expense of
$167,652 is not properly claimed as damages as these
were payments for work done by the defendant, which
had been approved by TRC following the submission
of the defendant’s first two pay applications. . . .
Accounting for that payment, the total expenses claimed
are $192,085.
‘‘As to the final category, project damages for both
contractual liquidated damages and the additional work
the plaintiff was required to do as a result of both the
court action and the defendant’s communications with
the EPA following its dismissal from the job, the plaintiff
claims a total amount due of $1,247,942. The largest
component of the figure comes from the claim of liqui-
dated damages in the amount of $520,000 for the 260
day period commencing from February 1, 2016, at the
rate of $2000 per day. In order to complete the work that
remained to be done after the defendant’s dismissal,
Costello’s March 31, 2016 bid of $2,962,207 was
accepted by the plaintiff. . . . Costello later com-
menced work on the project on essentially the same
terms as the defendant. Following Costello’s prepara-
tion of a CWP and other minor work, it received notice
from the plaintiff on October 5, 2016, that the EPA had
approved the CWP and [that it] could commence work
in earnest. . . . However, in the fall of 2016, additional
work was required to be done on the project, which
included additional PCB [testing] and . . . testing [of
asbestos containing materials], decontamination, shear-
ing and sizing of steel beams, site maintenance, and
disposal of additionally identified contaminated waste
and other tasks. These specific costs were reflected in,
but not limited to, change orders [numbers] 3, 5, 6, 7,
8, 9, 10 and 11. . . . All of the other additional work
was necessary as a result of Insall’s correspondence
on behalf of the defendant to the EPA between Septem-
ber 1, 2016, and November 21, 2016, long after the defen-
dant had been dismissed from the job. That correspon-
dence raised the issue of paint chip testing for PCB
contamination at the site and claimed that other debris
had come in contact with contaminated soil. This neces-
sitated stopping work on the project from December 5
to December 16, 2016, and eventually resulted in at
least an additional 200 paint chip tests. . . . Some of
the other damages claimed, outside of the change
orders, related to the paint study that had been initiated
but not completed, and the potential for additional dis-
posal costs related to the steel. The total amount
claimed as to all of these actual and estimated costs is
$1,247,942.
‘‘With respect to that third category, the plaintiff’s
claim of liquidated damages for the defendant’s failure
to timely complete the job is for 260 days commencing
from February 1, 2016, to October 19, 2016. . . . The
contract called for completion of the work by that date
(i.e., within 140 days). Article 2, § 2.1.1 of the contract
states: ‘Failure of the Contractor to meet this estab-
lished timeframe will result in liquidated damages being
assessed in the amount of $2,000/day for each and every
calendar day beyond the contract time limit.’ . . . In
this instance, the plaintiff claims a total of $520,000. As
previously noted, the court has found that there was
an extension of the contract to February 7, 2016. There-
fore, the claim must be adjusted to a commencement
date of February 7, 2016, for a revised total of 254 days
at $2000 per day for a total of $508,000.’’ (Citations
omitted.)
The court next examined the liquidated damages pro-
vision of the contract and determined that it was a valid,
enforceable provision of the contract, as it met the three
criteria necessary to establish that the provision is one
for liquidated damages and not a penalty. The court,
after citing the principle set forth in Hanson Develop-
ment Co. v. East Great Plains Shopping Center, Inc.,
195 Conn. 60, 64, 485 A.2d 1296 (1985), that ‘‘a seller
may not retain a stipulated sum as liquidated damages
and also recover actual damages,’’ concluded that the
plaintiff was ‘‘limited in its claim of damages to those
attributable under its liquidated damages provision,
article 2, § 2.1.1. Although such damages are often typi-
cally determined by when the job is finally completed
by the breaching party, here the plaintiff dismissed the
defendant from the job. Costello was hired to finish the
job, but because of the defendant’s interaction with the
EPA and the subsequent additional work and testing,
it was unable to do so as the funds available to the
plaintiff to complete the project were exhausted.
Although the job was never completed, the plaintiff
has not sought liquidated damages beyond 260 days
(adjusted to 254 days), which falls shortly after Costello
received notice of the EPA’s approval of the CWP. Thus,
the total amount of liquidated damages due the plaintiff
is found to be $508,000.
‘‘As to any finding of damages, it remains for the
court to address the retainage20 held by the plaintiff in
excess of the statutory limits set forth in . . . § 49-
41b,21 as noted in the discussion of count one of the
defendant’s counterclaim. That statute limits the
amount of retainage held by a municipality in any public
work contract to 5 percent of any periodic or final
payment due a general contractor. In this instance, arti-
cle 4, § 4.1.5 of the contract, entitled ‘Retainage,’ states,
‘[T]he [plaintiff] shall retain ten percent (10%) . . . of
each estimate until final completion and acceptance of
all work covered by this contract.’ . . . A review of
the pay applications submitted by the defendant and
approved by TRC show that $18,628 was held as
retainage, which represented 10 percent of the amount
of the work deemed completed by the defendant. . . .
The amounts withheld by the plaintiff comport with the
terms of the contract, which both parties had volunta-
rily and mutually agreed to. Nonetheless, they are both
bound by the statute. As a result, the correct amount
of retainage held should have been $9314. Accordingly,
the court will set off the excess retainage of $9314
against the amount due the plaintiff, bringing the total
damage award to $498,686. The remaining retainage
held by the plaintiff in the equal amount of $9314 shall
be credited toward the plaintiff’s damages pursuant to
article 5, § 5.1. That provision allows the plaintiff to
withhold any further payments to the contractor when
it has failed to complete the work within the time period
called for by the contract. Allowing this second amount
as a credit to the defendant, given that the amounts are
already in the possession of the plaintiff, an additional
adjustment of $9314 is made to the award of damages,
further reducing the total amount due the plaintiff to
$489,372.’’ (Citations omitted; footnotes added.) In mak-
ing those findings, the court relied on the testimony of
Doubleday, Zarba and Mike Costello, along with other
documentary evidence submitted by the plaintiff.
Before we address the merits of the claims on the
cross appeal, we set forth our standard of review. ‘‘As
a general rule, in awarding damages upon a breach of
contract, the prevailing party is entitled to compensa-
tion which will place [it] in the same position [it] would
have been in had the contract been properly performed.
. . . Such damages are measured as of the date of the
breach. . . . For a breach of a construction contract
involving defective or unfinished construction, dam-
ages are measured by computing either (i) the reason-
able cost of construction and completion in accordance
with the contract, if this is possible and does not involve
unreasonable economic waste; or (ii) the difference
between the value that the product contracted for
would have had and the value of the performance that
has been received by the plaintiff, if construction and
completion in accordance with the contract would
involve unreasonable economic waste.’’ (Internal quota-
tion marks omitted.) Naples v. Keystone Building &
Development Corp., 295 Conn. 214, 224, 990 A.2d 326(2010); see also Duffy v. Woodcrest Builders, Inc., 2
Conn. Cir. 137, 143, 196 A.2d 606 (1963) (‘‘[i]n the case
of a defaulting building contractor, the situation is nor-
mally that of recovering the reasonable cost of getting
the work done by another’’ (internal quotation marks
omitted)).
‘‘The [injured party] has the burden of proving the
extent of the damages suffered. . . . Although the
[injured party] need not provide such proof with [m]ath-
ematical exactitude . . . the [injured party] must nev-
ertheless provide sufficient evidence for the trier to
make a fair and reasonable estimate. . . . As we have
stated previously, the determination of damages is a
matter for the trier of fact. . . . Accordingly, we review
the trial court’s damages award under the clearly erro-
neous standard, under which we overturn a finding of
fact when there is no evidence in the record to support
it . . . or when although there is evidence to support
it, the reviewing court on the entire evidence is left
with the definite and firm conviction that a mistake has
been committed.’’ (Internal quotation marks omitted.)
DeMattio v. Plunkett, 199 Conn. App. 693, 721–22, 238
A.3d 24 (2020).
A
The plaintiff claims that the court erred in determin-
ing that the contract’s liquidated damages provision
was the exclusive measure of damages for breach of
the contract. We agree.
We first set forth general principles governing liqui-
dated damages. ‘‘The law is well established in this
jurisdiction, as well as elsewhere, that a term in a con-
tract calling for the imposition of a penalty for the
breach of the contract is contrary to public policy and
invalid, but a contractual provision fixing the amount
of damages to be paid in the event of a breach is enforce-
able if it satisfies certain conditions. . . . A contractual
provision for a penalty is one the prime purpose of
which is to prevent a breach of the contract by holding
over the head of a contracting party the threat of punish-
ment for a breach.’’ (Citations omitted.) Berger v. Sha-
nahan, 142 Conn. 726, 731, 118 A.2d 311 (1955). ‘‘A
provision for liquidated damages [on the other hand]
. . . is one the real purpose of which is to fix fair
compensation to the injured party for a breach of con-
tract. In determining whether any particular provision
is for liquidated damages or for a penalty, the courts
are not controlled by the fact that the phrase liquidated
damages or the word penalty is used. Rather, that which
is determinative of the question is the intention of the
parties to the contract. Accordingly, such a provision
is ordinarily to be construed as one for liquidated dam-
ages if three conditions are satisfied: (1) The damage
which was to be expected as a result of the breach of
the contract was uncertain in amount or difficult to
prove; (2) there was an intent on the part of the parties
to liquidate damages in advance; and (3) the amount
stipulated was reasonable in the sense that it was not
greatly disproportionate to the amount of the damage
which, as the parties looked forward, seemed to be
the presumable loss which would be sustained by the
contractee in the event of a breach of the contract.’’22
(Internal quotation marks omitted.) Tsiropoulos v. Rad-
igan, 163 Conn. App. 122, 127–28, 133 A.3d 898 (2016);
see also Banta v. Stamford Motor Co., 89 Conn. 51, 54,
92 A. 665 (1914) (‘‘ ‘As a general rule parties are allowed
to make such contracts as they please, including con-
tracts to liquidate and fix beforehand the amount to be
paid as damages for a breach of such contracts; but
the courts have always exercised a certain power of
control over contracts to liquidate damages, so as to
keep them in harmony with the fundamental general
rule that compensation shall be commensurate with
the extent of the injury. . . . When the nature of the
engagement is such that upon a breach of it the amount
of damages would be uncertain or difficult of proof,
and the parties have beforehand expressly agreed upon
the amount of damages and that amount is not greatly
disproportionate to the presumable loss, their
expressed intent will be carried out.’ ’’).
Because the plaintiff’s challenge to the court’s inter-
pretation of the liquidated damages provision in the
contract as being the plaintiff’s exclusive remedy for
the defendant’s breach of the contract involves a matter
of contract interpretation, we set forth our well estab-
lished standard of review governing such claims.
‘‘[W]here there is definitive contract language, the deter-
mination of what the parties intended by their contrac-
tual commitments is a question of law. . . . Because
a question of law is presented, review of the trial court’s
ruling is plenary, and this court must determine whether
the trial court’s conclusions are legally and logically
correct, and whether they find support in the facts
appearing in the record. . . . [T]he intent of the parties
[to a contract] is to be ascertained by a fair and reason-
able construction of the written words and . . . the
language used must be accorded its common, natural,
and ordinary meaning and usage where it can be sensi-
bly applied to the subject matter of the contract.’’ (Cita-
tion omitted; internal quotation marks omitted.) Detar
v. Coast Venture XXVX, Inc., supra, 74 Conn. App. 322–
23.
In the present case, liquidated damages are covered
by article 2 of the contract. Article 2, § 2.1, which gov-
erns the time frame of the contract, provides: ‘‘The
contract period is established from the Notice to Pro-
ceed issued by the Engineer for a period of 140 days,
including weekends and holidays. The work should be
substantially complete at that time, unless the Contrac-
tor has been granted an extension by methods defined
and prescribed herein.’’ That provision is followed by
§ 2.1.1, titled ‘‘Liquidated Damages,’’ which provides:
‘‘Failure of the Contractor to meet this established time-
frame will result in liquidated damages being assessed
in the amount of $2,000/day for each and every calendar
day beyond the contract time limit.’’ Section 2.1.2 of
article 2 further provides that time is of the essence23
for the general performance of the contract and, addi-
tionally, that, ‘‘[i]n the event the Contractor fails to
perform the work in a timely manner due to the Contrac-
tor’s poor planning, financial status, errors in construc-
tion or any other reason directly attributed to the Con-
tractor’s circumstances, the [plaintiff] may institute
default proceedings against the Contractor to recover
damages and losses.’’ (Emphasis added.)
In making its determination that liquidated damages
were the plaintiff’s exclusive remedy under the con-
tract, the court cited Hanson Development Co. v. East
Great Plains Shopping Center, Inc., supra, 195 Conn.
64, for the principle that ‘‘a seller may not retain a
stipulated sum as liquidated damages and also recover
actual damages.’’ Specifically, the court stated: ‘‘Where
the parties have entered into a voluntary agreement as
to how to address any potential damages from a breach
of contract, such agreement if validly entered into is
to be enforced. Therefore, the plaintiff’s claim for both
liquidated damages and consequential damages is an
attempt to have its cake and eat it too. In Saturn Con-
struction Co. [v. Dept. of Public Works, Superior Court,
judicial district of Hartford, Docket No. CV-XX-XXXXXXX-
S (October 17, 1994), in which the court found enforce-
able a liquidated damages provision in a state contract
that provided for liquidated damages of $1000 per day
for failure to complete a construction job in a timely
manner], Judge Sheldon noted that it is possible,
depending on the wording of the liquidated damages
provision, to obtain both under narrow circumstances:
‘[A]lthough an unrestricted liquidated damages clause
operates as a bar to the recovery of all actual or conse-
quential damages for breach of the contract; Camp v.
Cohn, 151 Conn. 623, 626, 201 A.2d 187 (1964); parties
to a contract may choose to narrow the scope of their
liquidated damages clause by clearly expressing that
intention either in the language of the clause itself or
in the remaining language of the contract.’ For example,
the clause could be limited to the loss of use of a
proposed property. In the present case, interpreting the
contract as a matter of law, the language of the liqui-
dated damages clause is not limited in any way that
would allow an independent claim for actual and conse-
quential damages. The parties having agreed upon the
terms of the liquidated damages clause, the court is not
free to disregard it or read other terms into the con-
tract.’’
We conclude that the court improperly determined
that liquidated damages were the plaintiff’s exclusive
remedy under the contract. Our Supreme Court has
‘‘long . . . held that contracting parties may decide on
a specified monetary remedy for the failure to perform
a contractual obligation.’’ Bellemare v. Wachovia Mort-
gage Corp., 284 Conn. 193, 203, 931 A.2d 916 (2007).
Moreover, ‘‘[p]arties to a contract may agree on the
remedies available in the event of a breach of contract.
If the language of the agreement discloses that the par-
ties intended to limit the remedies to those stated, the
agreement will be enforced and the party will be limited
to the exclusive remedies outlined in the agreement.
. . . A contract will not be construed to limit remedial
rights unless there is a clear intention that the enumer-
ated remedies are exclusive.’’ (Emphasis added; inter-
nal quotation marks omitted.) International Marine
Holdings, Inc. v. Stauff, 44 Conn. App. 664, 676, 691
A.2d 1117 (1997). That principle is supported by the
language of the Uniform Commercial Code and General
Statutes § 42a-2-719 (1), under which the language of
a limited remedy in a contract that is designed to be
the sole exclusive remedy must be clearly expressed.
See Gaynor Electric Co. v. Hollander, 29 Conn. App.
865, 871–72, 872 n.4, 618 A.2d 532 (1993).
The language of the contract in the present case does
not support the court’s conclusion that liquidated dam-
ages were the plaintiff’s exclusive remedy. The liqui-
dated damages provision in § 2.1.1 of article 2, which
provides that the failure of the contractor to meet the
time frame established therein will result in liquidated
damages, clearly applies to damages resulting from
delay; there is no language expressly stating that such
damages are the plaintiff’s exclusive remedy for a
breach of the contract not related to the defendant’s
delay in performance, and the fact that the contract
provided for liquidated damages caused by the defen-
dant’s failure to perform the work within the time frame
set forth in the contract does not, by itself, demonstrate
a clear intent that such delay damages are the exclusive
remedy available to the plaintiff under the contract,
which must be viewed in its entirety. See Vaccaro v.
Shell Beach Condominium, Inc., 169 Conn. App. 21,
49, 148 A.3d 1123 (2016) (‘‘[t]he contract must be viewed
in its entirety, with each provision read in light of the
other provisions . . . and every provision must be
given effect if it is possible to do so’’ (internal quotation
marks omitted)), cert. denied, 324 Conn. 917, 154 A.3d
1008 (2017). In the present case, the time is of the
essence provision in § 2.1.2 of article 2 of the contract
specifically allows the plaintiff to institute default pro-
ceedings against the defendant to recover ‘‘damages
and losses’’ if the defendant fails ‘‘to perform the work in
a timely manner due to the [defendant’s] poor planning,
financial status, errors in construction or any other
reason directly attributed to the [defendant’s] circum-
stances . . . .’’ Notably, § 2.1.2 of article 2 does not
reference ‘‘liquidated damages’’; instead, it refers to
‘‘damages and losses.’’ Because § 2.1.1 of article 2 of
the contract specifically references ‘‘liquidated dam-
ages,’’ the fact that § 2.1.2, instead, references ‘‘damages
and losses’’ is evidence of a contractual intent to allow
for the recovery of nondelay damages and losses, in
addition to the liquidated damages due to delays
allowed in § 2.1.1. To construe the contract otherwise
would render that provision in § 2.1.2 superfluous. See
Assn. Resources, Inc. v. Wall, supra, 298 Conn. 183 (‘‘the
law of contract interpretation . . . militates against
interpreting a contract in a way that renders a provision
superfluous’’ (internal quotation marks omitted)); see
also Old Colony Construction, LLC v. Southington, 316
Conn. 202, 214–15, 113 A.3d 406 (2015) (‘‘[w]hen a con-
tract expressly preserves remedies following termina-
tion, such a reservation must be given full effect absent
evidence of a more limited intent’’).
We next must reconcile our conclusion with the gen-
eral principle cited by the trial court that ‘‘a plaintiff
may not recover both liquidated damages and actual
damages.’’24 McClintock v. Rivard, 219 Conn. 417, 430
n.13, 593 A.2d 1375 (1991). We hold that, under the
specific language of the contractual provisions at issue
here, our conclusion is not inconsistent with that princi-
ple. When, as here, a liquidated damages provision is
limited in its application to damages resulting from
delays and does not expressly provide that liquidated
damages are the exclusive remedy, it does not prevent
the recovery of actual damages for items to which the
liquidated damages provision does not apply, i.e., non-
delay damages. See 22 Am. Jur. 2d, Damages § 539
(2022) (‘‘[a] provision for liquidated damages does not
prevent the recovery of actual damages caused by
events that are not covered by the liquidated damages
clause unless the contract expressly precludes the
recovery of damages other than those enumerated’’).
It stands to reason that, so long as the predicate for both
awards is not the same, the recovery of both liquidated
damages and actual or consequential damages will not
result in an impermissible double award. Accordingly,
although, because of the liquidated damages provision,
the plaintiff cannot additionally recover actual or com-
pensatory damages resulting from the delays caused by
the defendant, the liquidated damages provision of the
contract does not preclude the plaintiff from recovering
from the defendant nondelay actual and consequential
damages.
Although Connecticut courts have not yet squarely
addressed this issue,25 our conclusion is consistent with
holdings of many state courts.26 For example, in Fra-
man Mechanical, Inc. v. Dormitory Authority of the
State of New York, Docket No. A1114-14, 2019 WL
1747007, *10 (N.Y. Sup. March 7, 2019) (decision with-
out published opinion, 114 N.Y.S.3d 814 (2019)), the
Supreme Court of New York for Albany County stated:
‘‘Ordinarily, a party is awarded either actual damages
or liquidated damages, but not both when the predicate
for the awards is the same . . . . The rationale for this
rule is that liquidated damages, by their nature, are in
lieu of, not in addition to, other compensatory damages
. . . . As a corollary, both actual and liquidated dam-
ages are recoverable damages when the predicate for
the awards differ in kind . . . . As the United States
Supreme Court has observed: There is no reason why
parties competent to contract may not agree that certain
elements of damage difficult to estimate shall be cov-
ered by a provision for liquidated damages and that
other elements shall be ascertained in the usual manner.
Provisions of a contract clearly expressed do not cease
to be binding upon the parties, because they relate to
the measure of damages . . . J.E. Hathaway & Co. v.
United States, 249 U.S. 460, 464 [39 S. Ct. 346, 63 L.
Ed. 707 (1919)].’’ (Citations omitted; internal quotation
marks omitted.)
Our conclusion also gives effect to the plain language
of article 2, § 2.1.2 of the contract, providing that, if the
defendant failed to complete its work in a timely manner
due to the various reasons set forth, including poor
planning or ‘‘any other reason directly attributed to the
[defendant’s] circumstances,’’ the plaintiff could insti-
tute default proceedings to recover damages and losses,
which necessarily must mean damages and losses other
than those attributable to the delays. See Old Colony
Construction, LLC v. Southington, supra, 316 Conn.
212 (determination of whether defendant was entitled
to default based remedies was governed by express
terms of parties’ contract). It can be inferred from the
court’s many findings in its comprehensive decision
that the defendant’s failure to complete the work in a
timely manner was due to poor planning or other rea-
sons attributable to the work it agreed to perform, as
the court found that the plaintiff had performed its
obligations under the contract; that ‘‘the defendant may
have used a mistaken basic assumption in making its
bid and entering into the contract, which ultimately
resulted in consequences adverse to it’’; that the defen-
dant’s delay in doing the necessary testing and work
was primarily the result of the defendant failing to ‘‘sub-
mit an acceptable CWP, [health and safety plan] and
demolition work plan to TRC so that it could, in turn,
submit any needed documents to the EPA for its
approval, which was necessary for substantive work to
begin’’; that the defendant elected to demobilize from
the site on or about November 20, 2015; that the defen-
dant had refused to proceed with any further work until
a CWP was done or if it was required to sample the
steel; that, as of December, 2015, the defendant had
finished less than 10 percent of the work required under
the contract; and that the defendant had failed to
account for the potential contamination or testing of
some structural steel, which had been thought to have
been recyclable and which, thereby, resulted in the need
for additional work both in terms of time and labor.
We conclude, therefore, that the court erroneously
failed to determine whether the plaintiff proved that it
had suffered any compensable actual or consequential
nondelay damages and, if so, the amount of such dam-
ages. Because the court did not make any factual find-
ings about the existence and amount of the plaintiff’s
compensable nondelay related damages, we must remand
this case to the trial court for a new hearing in dam-
ages.27 At trial, the plaintiff sought three categories of
alleged nondelay damages: (1) the difference in the
contract price between what the plaintiff agreed to pay
the defendant and what it agreed to pay Costello alleg-
edly for similar work; (2) additional costs associated
with rebidding the job and the engineering support that
went with it after the contract between the defendant
and the plaintiff was terminated; and (3) additional
costs to complete the job beyond Costello’s accepted
bid. On the basis of the issues raised on appeal, we
provide the following guidance as to questions the court
should consider with respect to each category of dam-
ages, given that these issues are certain to arise on
remand.28
With respect to the first category of damages—the
difference in contract price between the plaintiff’s con-
tract with the defendant and its contract with Costello—
the plaintiff argues on appeal that ‘‘[t]he court erred in
failing to account for [the $167,652 sum it had paid to
the defendant] when it calculated the difference between
[the defendant’s] and Costello’s contract price.’’ On
remand, not only will the court need to calculate the
difference in price between the two contracts, but it
also will need to consider any differences in the scope
of the two contracts, as well as the fact that the defen-
dant’s contract with the plaintiff had been partially per-
formed, which will factor into the court’s calculation
of the cost of the remaining work covered under the
plaintiff’s contract with Costello. Put another way, the
plaintiff is entitled to damages for services that the
defendant was supposed to complete but that Costello
completed for a higher price.
As to the second category of damages—damages
associated with rebidding the project—the court will
need to determine whether the requested damages are
either delay or nondelay damages. For example, a claim
that the plaintiff incurred additional costs to oversee
the project because it was delayed would be covered
by the liquidated damages clause of the parties’ contract
and may not be additionally awarded as actual damages.
On the other hand, the costs of drafting, printing, and
distributing the new bid package and of reviewing bids
submitted in response thereto would not be delay dam-
ages because they are damages caused by the defen-
dant’s failure to perform, rather than its delayed perfor-
mance.
Finally, for the third category of damages—the plain-
tiff’s claimed additional costs to complete the job over
Costello’s contract price—the court will need to deter-
mine whether such costs naturally flow from the defen-
dant’s default of its performance obligation under the
parties’ agreement and whether they were foreseeable
to the defendant. On remand, therefore, the court must
determine if the alleged damages flowing from the
defendant’s posttermination conduct have a sufficient
nexus to its breaches of the contract, which the court
found occurred in November and December, 2015, prior
to when the plaintiff terminated its contract with the
defendant in January, 2016. See Calig v. Schrank, 179
Conn. 283, 286, 426 A.2d 276 (1979) (‘‘[i]t is hornbook
law that to be entitled to damages in contract a plaintiff
must establish a causal relationship between the breach
and the damages flowing from that breach’’); Mead-
owbrook Center, Inc. v. Buchman, 149 Conn. App. 177,
186, 90 A.3d 219 (2014) (‘‘proof of causation . . . prop-
erly is classified as part and parcel of a party’s claim for
breach of contract damages’’); 3 Restatement (Second),
Contracts § 346, p. 110 (1981) (in order to receive any-
thing other than nominal damages, party must prove
both that breach of contract ‘‘caused’’ loss and amount
of loss). Additionally, ‘‘[a]s our Supreme Court has
explained, [i]n an action founded . . . on breach of
contract . . . the recovery of the plaintiffs [is] limited
to those damages the defendant had reason to foresee
as the probable result of the breach at the time when
the contract was made. Neiditz v. Morton S. Fine &
Associates, Inc., 199 Conn. 683, 689 n.3, 508 A.2d 438(1986); see also Meadowbrook Center, Inc. v. Buchman,
[supra, 188–89] (under Connecticut law, the causation
standard applicable to breach of contract actions asks
. . . whether [the plaintiff’s damages] were foreseeable
to the defendant and naturally and directly resulted
from the defendant’s conduct).’’ (Internal quotation
marks omitted.) Bruno v. Whipple, 186 Conn. App. 299,
311–12, 199 A.3d 604 (2018), cert. denied, 331 Conn.
911, 203 A.3d 1245 (2019). For example, if, because of
the defendant’s breach, the cost of completion became
greater due to adverse weather conditions that would
not have impacted the project had the defendant prop-
erly performed its obligations, the court would have
to determine if such damages were foreseeable to the
defendant and a natural consequence of the breach. On
remand, the court will have to determine whether the
plaintiff has made that necessary connection.
B
The last issue we must address is the plaintiff’s claim
that the court erred in limiting the award of liquidated
damages to 254 days. We disagree.
In its memorandum of decision, the court specifically
found that, ‘‘[a]lthough the job was never completed,
the plaintiff has not sought liquidated damages beyond
260 days (adjusted to 254 days), which falls shortly
after Costello received notice of the EPA’s approval of
the CWP. Thus, the total amount of liquidated damages
due the plaintiff is found to be $508,000,’’ which the
court adjusted to $489,372 after it accounted for the
retainage held by the plaintiff. (Emphasis added.) In its
cross appeal, however, the plaintiff seeks additional
liquidated damages for a time period that was not
requested at trial. Specifically, in its appellate brief,
the plaintiff explains that it had calculated liquidated
damages ‘‘through the date on which Costello reached
the same point in the project where [the defendant] left
off’’ on the basis of its ‘‘understanding that [liquidated
damages] were not the exclusive measure of its dam-
ages. The exhibit [submitted into evidence by the plain-
tiff detailing the damages it sought] was compiled based
on the premise that it would be unfair to seek [liquidated
damages] against [the defendant] during Costello’s per-
formance of project work.’’ Given the court’s determina-
tion that liquidated damages were the plaintiff’s exclu-
sive remedy under the contract, however, the plaintiff
now claims on appeal that liquidated damages ‘‘should
have been run through the date of the court’s decision
on December 20, 2019, a period of 1413 days.’’
This claim requires little discussion. It is well settled
that ‘‘[a] party cannot present a case to the trial court
on one theory and then seek appellate relief on a differ-
ent one . . . . For this court to . . . consider [a] claim
on the basis of a specific legal ground not raised during
trial would . . . [be] unfair both to the [court] and to
the opposing party.’’ (Emphasis omitted; internal quota-
tion marks omitted.) Overley v. Overley, 209 Conn. App.
504, 512, 268 A.3d 691 (2021). ‘‘[A]n appellate court is
under no obligation to consider a claim that is not
distinctly raised at the trial level. . . . The requirement
that [a] claim be raised distinctly means that it must
be so stated as to bring to the attention of the court
the precise matter on which its decision is being asked.
. . . The reason for the rule is obvious: to permit a
party to raise a claim on appeal that has not been raised
at trial—after it is too late for the trial court . . . to
address the claim—would encourage trial by ambus-
cade . . . .’’ (Emphasis in original; internal quotation
marks omitted.) Id., 511. In the present case, the plaintiff
requested that the court award liquidated damages for
a period of 260 days, which was adjusted by the court
to account for a period of time in which the contract
had been extended. The court awarded the plaintiff
exactly what it had requested, with the exception of
the adjustment, which the plaintiff has not challenged.
We agree with the defendant that the plaintiff cannot
on appeal now claim that the court should have based
its award on a time period different from the one that
the plaintiff relied on and requested at trial. See White
v. Mazda Motor of America, Inc., 313 Conn. 610, 619–20,
99 A.3d 1079 (2014). Furthermore, the plaintiff’s claim
is premised on the court’s determination that liquidated
damages were the plaintiff’s exclusive remedy. Because
we have concluded that the court erred in reaching that
conclusion and that the plaintiff is entitled to actual or
consequential nondelay damages to the extent they can
be proved by a preponderance of the evidence, the
premise of the plaintiff’s claim on appeal no longer
exists. Accordingly, this claim fails.
III
CONCLUSION
In summary, the court properly rendered judgment
in favor of the plaintiff on its breach of contract claim.
Although the court’s award of liquidated damages in
the amount of $489,372 was proper, the court erred in
concluding that liquidated damages were the plaintiff’s
exclusive remedy under the contract, which does not
expressly preclude the recovery of damages other than
the liquidated damages resulting from delays and, in
fact, expressly allows the plaintiff to seek recovery for
‘‘damages and losses’’ in addition to the delay related
liquidated damages. The court, thus, erroneously failed
to determine whether the plaintiff proved that it had
suffered any compensable actual or consequential non-
delay damages and, if so, the amount of such damages.
As a result, we must remand this case to the court for
a new hearing in damages.
The judgment is reversed in part and the case is
remanded for a new hearing in damages consistent with
this opinion; the judgment is affirmed in all other
respects.
In this opinion the other judges concurred.
1
In its statement of issues, the defendant lists as its second issue
‘‘[w]hether the trial court erred as a matter of law by deciding that [the
defendant] repudiated its obligations to perform under the contract . . . .’’
In its brief, however, the defendant characterizes the issue as whether
‘‘[t]he trial court erred in holding that the [plaintiff] lawfully terminated [the
contract].’’ Because the defendant has not briefed the issue relating to its
repudiation of the contract, we decline to address it. See Regional School
District 8 v. M & S Paving & Sealing, Inc., 206 Conn. App. 523, 539 n.12,
261 A.3d 153 (2021) (declining to review claim not briefed, which was
deemed abandoned).
2
‘‘EPA regulations define a ‘non-porous’ surface, in part, as follows: ‘Non-
porous surface means a smooth, unpainted solid surface that limits the
penetration of liquid containing PCBs beyond the immediate surface. . . .’
40 C.F.R. § 761.3 [2015] . . . .’’ (Citation omitted.)
3
‘‘EPA regulations define a ‘porous’ surface as follows: ‘Porous surface
means any surface that allows PCBs to penetrate or pass into itself including,
but not limited to, paint or coating on metal . . . .’ 40 C.F.R. § 761.3 [2015]
. . . . Some of the structural steel on the site, including overhead cranes,
had painted surfaces.’’ (Citation omitted.)
4
‘‘[Article 1 of the contract defined ‘Contract Documents’ as follows]:
Whenever the term ‘Contract Documents’ is used [in the contract], it shall
include the Agreement, Information to Bidders, General Specifications, Bid
Documents, Technical Specifications, Special Notes, Addenda, and Project
Plans, including all modifications thereof incorporated in the documents
before their execution.’’
5
On May 23, 2016, the defendant had filed a motion for an order preserving
the site and for permission to inspect and test the site for possible PCBs
and other environmental contaminants. In its motion, the defendant claimed
that ‘‘[t]he tests [had to] be conducted to enable the defendant to determine
if PCBs are present on structural steel to be demolished at, above or below
acceptable levels and local, state and federal regulations,’’ and that ‘‘[t]he
testing [was] critical because an issue in this case will be whether the
structural steel, which may be contaminated or coated by PCBs, can be
recycled in an unregulated manner or must be handled as excluded PCB
bulk product waste/state of Connecticut regulated waste, PCB bulk product
waste, and/or PCB remediation waste.’’ In response, the plaintiff filed a
motion for a protective order barring the defendant from performing paint
chip sampling for PCBs on the structural steel as proposed by the defendant
in its motion for order. In an order dated August 19, 2016, which addressed
the defendant’s motion for order and the plaintiff’s motion for a protective
order, as well as the parties’ objections thereto, the court ordered the
defendant to identify, through counsel, fifteen areas from which it would
like to receive pieces of the structural components of the building, which
were to be cut in pieces three to five inches in length, and the defendant
was to have those pieces tested ‘‘in whatever way it want[ed]’’ at a laboratory
agreed to by the parties.
6
Counts five and six of the defendant’s counterclaim had been stricken
by the court, which rendered judgment in favor of the plaintiff on those
counts. They are not at issue in this appeal.
7
In response to the defendant’s counterclaim, the plaintiff alleged ten
special defenses. Specifically, the first, second, third, fourth and fifth special
defenses cite to specific provisions of the contract as a bar to recovery by
the defendant. The sixth special defense alleges that the plaintiff is protected
by governmental immunity, the seventh, that the defendant did not mitigate
its damages, the eighth, payment by the plaintiff, the ninth, that the defendant
anticipatorily breached the contract, and the tenth, that the defendant con-
tractually had assumed any risks relating to its performance under the
contract. In its memorandum of decision, the court addressed the plaintiff’s
special defenses to the six remaining counts of the defendant’s counterclaim
and stated that ‘‘the court has elected to address the plaintiff’s first, second,
third, fourth and fifth special defenses, with respect to the fourth count
of the defendant’s counterclaim alleging negligent misrepresentation. The
plaintiff has established those special defenses by a preponderance of the
evidence. However, because the court has found [that] the defendant has
failed to meet its burden of proof as to each [count] of its [counterclaim],
[the court] need not further address any of the plaintiff’s special defenses.’’
8
General Statutes § 42-158i (3) defines ‘‘ ‘retainage’ ’’ as ‘‘a sum withheld
from progress payments to the contractor or subcontractor, otherwise pay-
able to a contractor or subcontractor by an owner conditioned on substantial
or final completion of all work in accordance with the terms of a written
or verbal construction contract, but does not include any sum withheld due
to the contractor’s or subcontractor’s failure to comply with construction
plans and specifications.’’
9
In its brief, the defendant argues that this case involves a question of
statutory interpretation and, thus, that the sole applicable standard of review
is plenary review. We disagree. As the plaintiff aptly points out in its brief,
the plaintiff and the defendant have not asserted causes of action grounded
on the application of a statute, regulation, or ordinance, whether federal or
state. Instead, the causes of action asserted by the parties stem from the
contract, and the court’s ruling was based on its interpretation of that con-
tract.
10
‘‘The trial court’s findings are binding upon this court unless they are
clearly erroneous in light of the evidence and the pleadings in the record
as a whole. . . . In applying the clearly erroneous standard of review,
[a]ppellate courts do not examine the record to determine whether the trier
of fact could have reached a different conclusion. Instead, we examine the
trial court’s conclusion in order to determine whether it was legally correct
and factually supported. . . . This distinction accords with our duty as an
appellate tribunal to review, and not to retry, the proceedings of the trial
court. . . . [I]n a case tried before a court, the trial judge is the sole arbiter
of the credibility of the witnesses and the weight to be given specific testi-
mony. . . . The credibility and the weight of expert testimony is judged by
the same standard, and the trial court is privileged to adopt whatever testi-
mony [it] reasonably believes to be credible. . . . On appeal, we do not
retry the facts or pass on the credibility of witnesses.’’ (Internal quotation
marks omitted.) DeMattio v. Plunkett, 199 Conn. App. 693, 711–12, 238 A.3d
24 (2020).
11
The defendant’s reliance on 40 C.F.R. § 761.61 (a) (2) is unavailing. Any
obligation of the plaintiff to characterize the site adequately pursuant to
that regulation relates to the plaintiff’s representations in its notification to
the EPA, not to the defendant. The plaintiff’s obligations to the defendant
arise under the contract, not the federal regulation.
12
‘‘[T]o the extent that the court’s decision is founded on its credibility
determinations, we cannot second-guess those determinations on appeal.’’
Alpha Beta Capital Partners, L.P. v. Pursuit Investment Management, LLC,
193 Conn. App. 381, 441, 219 A.3d 801 (2019), cert. denied, 334 Conn. 911,
221 A.3d 446 (2020), and cert. denied, 334 Conn. 911, 221 A.3d 446 (2020).
13
The court found: ‘‘The defendant’s expert, Insall, testified that it was
his opinion that paint chip testing was required. On cross-examination,
however, Insall first acknowledged that he could not say whether the painted
steel was to be treated as bulk product waste or remediation waste. This
of course would affect what test might be appropriate, or, if any test would be
required at all. Secondly, Insall acknowledged that the EPA had information
available to it from phase II of the project that referenced painted building
columns, that the EPA had approved surficial (wipe) samples for painted
surfaces including columns, that the EPA had the discretion to allow this,
and that it never revoked its September 1, 2015 approval letter.
‘‘Insall also testified that paragraph 13 of the approval letter dealt with
site characterization. Yet, a reading of that paragraph says nothing about
characterization of the site or any action necessary to make a characteriza-
tion. Insall even conceded that if material referenced was considered as
bulk waste product, there is no characterization requirement under 40 C.F.R.
§ 761. A site characterization is done in the process of obtaining an approval
letter, not as a condition of the approval.
‘‘With respect to the disposal standards relative to contamination and
recyclability, Insall opined that the standards referenced were for the over-
head steel cranes and not the steel beams. However, this makes little sense
as the wording of the letter places the cranes and beams together in the
same sentence in the description of cleanup standards for nonporous sur-
faces. Insall further opined that there was a distinction between ‘columns’
and ‘beams’ in that columns were vertical and beams were horizontal. The
importance of the distinction to Insall was that dust accumulates on hori-
zontal beams and that paragraph 13 only covers horizontal beams. On its
face, Insall’s testimony clearly implies that dust did not accumulate on the
vertical beams, which borders on being a ludicrous statement. See State v.
Zayas, 195 Conn. 611, 620, 490 A.2d 68 (1985) (‘[i]t is an abiding principle
of jurisprudence that common sense does not take flight when one enters
a courtroom’).
‘‘While the report Insall submitted to the EPA (which was put into evi-
dence) was highly detailed, his credibility was put into issue by his testimony.
To the extent there was credible evidence put forth, it does not outweigh
the collective testimony of the plaintiff’s experts on the subjects addressed.’’
14
The basis for the defendant’s claim of negligent misrepresentation by
the plaintiff at trial was its assertion that the plaintiff had misrepresented
the condition of the steel beams. The court, however, found that the defen-
dant had failed to prove its claim of negligent misrepresentation by a prepon-
derance of the evidence and, in addition, had waived any such claim of
misrepresentations by the plaintiff as to the condition of the steel beams
under various provisions of the contract. Specifically, the court found that,
‘‘[t]he plaintiff had disclosed in advance to all prospective bidders, including
the defendant, up to the date of the signing of the contract, all project
documents and historical data that had been acquired through phases I and
II, as well as a copy of the proposed contract and supporting documents,
and eventually, the EPA approval letter.’’ The court examined the bidding
documents and contractual provisions, which make clear that the bidder
was responsible for investigating the physical condition of the site and could
not rely on information provided by the plaintiff. For example, § 3.7.1 of
article 3 of the contract provides that ‘‘[the defendant] agrees that [it] shall
not use or be entitled to use any such information made available to [it]
through the contract documents or otherwise or obtained by [it] in [its]
own examination of the site, as a basis of or ground for any claim against
the [plaintiff] . . . .’’ The court found that the § 3.7.1 disclaimer provision,
along with others in the contract, were sufficient to defeat the defendant’s
claim of negligent misrepresentation. The court further noted that Kurt, who
had prepared the CWP for the defendant, acknowledged in his testimony
that he was aware of the provision in the phase III remediation plan that
‘‘referenced that the overhead steel cranes reportedly contained [a certain
level of] surface contamination’’ and that, ‘‘[w]hen asked why the defendant
had not done greater testing in light of the information and his having
physically seen the cranes and other painted steel at the walk-through on
the site, Kurt simply stated that it was ‘my error.’ ’’ The court, thus, concluded
that the defendant had failed to establish that the plaintiff misled either the
EPA or the defendant as to the condition of the site.
With respect to the issue of waiver, the court found that, ‘‘[t]hroughout
the process, the plaintiff advised the defendant and all other potential bidders
they were not to rely on any representations made by the plaintiff, that it
offered no warranties and that they should satisfy themselves through their
own investigation as to the character and condition of the site.’’ As the court
stated, ‘‘[w]hile claiming [that] the plaintiff had misrepresented the condition
of the steel and thereby affected the ability of the defendant to properly
bid and do the job, the defendant’s own affirmative statements, which are
contractually binding, run counter to that position. The terms make clear
that the defendant had carefully reviewed the documents made available
to it, had physically viewed the site and was aware of conditions that might
affect the cost and work to be done.’’ The defendant has not challenged the
court’s findings regarding waiver on appeal.
15
See footnote 1 of this opinion.
16
To the extent that the defendant’s claim can be construed as a challenge
to the court’s finding that it breached the contract, that claim fails as well,
as the court’s finding that the defendant breached the contract was not
clearly erroneous.
17
See footnote 5 of this opinion.
18
With respect to the change orders, the court found that ‘‘there was
credible documentary and testimonial evidence from Doubleday, Zarba and
Mike Costello to establish the validity of those expenses. . . . These
expenses were a direct consequence of the defendant’s failure to complete
the contract and its unilateral correspondence with the EPA subsequent to
its dismissal from the job. That contact resulted in not only expanded PCB
testing, it raised disposal costs and required both Costello and TRC to
remain on the job much longer and to perform more work than originally
anticipated.’’ (Citations omitted.)
19
In light of our conclusion that the issue of damages must be remanded
to the court for a new hearing, we do not address the plaintiff’s third claim.
20
See footnote 8 of this opinion.
21
General Statutes 49-41b provides in relevant part: ‘‘When any public
work is awarded by a contract for which a payment bond is required by
section 49-41 and such contract contains a provision requiring the general
or prime contractor under such contract to furnish a performance bond in
the full amount of the contract price, the following shall apply . . . (3) If
the awarding authority is a municipality, (A) the municipality shall not
withhold more than five per cent from any periodic or final payment which
is otherwise properly due to the general or prime contractor under the terms
of such contract . . . .’’
We note that, although § 49-41b has been amended by the legislature since
the events underlying the present appeal; see, e.g., Public Acts 2016, No.
16-104, § 1; those amendments have no bearing on the merits of this appeal.
In the interest of simplicity, we refer to the current revision of the statute.
22
In the present case, the court found that the liquidated damages provi-
sion was enforceable because all three criteria had been met to establish
the validity of the liquidated damages provision: damages resulting from a
breach of contract were uncertain at the time the parties entered into the
contract; the parties clearly expressed their intent to liquidate damages in
advance as expressed in article 2, § 2.1.1; and the amount stipulated was
reasonable. The defendant did not challenge the enforceability of the liqui-
dated damages provision at trial, nor has it challenged on appeal the court’s
finding concerning its validity and enforceability. The court’s finding that
the provision was valid and enforceable, thus, is not at issue in this appeal.
23
‘‘When it is said that time is of the essence, the proper meaning of the
phrase is that the performance by one party at the time specified in the
contract or within the period specified in the contract is essential in order to
enable him to require performance from the other party. . . . Its commonly
understood meaning is that insofar as a time for performance is specified
in the contract, failure to comply with the time requirement will be consid-
ered to be a material breach of the agreement.’’ (Internal quotation marks
omitted.) Blackwell v. Mahmood, 120 Conn. App. 690, 699 n.4, 992 A.2d
1219 (2010).
24
‘‘Actual or compensatory damages, the terms being synonymous, are
damages in satisfaction of, or in recompense for, loss or injury sustained.’’
(Internal quotation marks omitted.) Manning v. Pounds, 2 Conn. Cir. 344,
346, 199 A.2d 188 (1963).
25
In its brief, the plaintiff argues that Dean v. Connecticut Tobacco Corp.,
88 Conn. 619, 625, 92 A. 408 (1914), and Banta v. Stamford Motor Co., supra,
89 Conn. 51, both support the principle that a liquidated damages provision
in a contract does not preclude the nonbreaching party from seeking and
being awarded damages for defective or unfinished construction, or for
nondelay damages not covered by the liquidated damages provision. We
disagree. One of the issues before our Supreme Court in Dean was whether
the defendant was harmed by a jury instruction relating to the third count
of its counterclaim, which alleged a claim for special damages through injury
to harvested tobacco resulting from delay in the completion of a warehouse
beyond the stipulated date. Dean v. Connecticut Tobacco Corp., supra, 624.
The court concluded that, because the evidence in support of the claim for
special damages was speculative, the jury instruction that there could be
no recovery of those damages was amply justified. Id., 624–25. Furthermore,
the court noted that the parties had a provision in their contract for liquidated
damages to be recoverable for any delay in the completion of the work and
stated that ‘‘[t]he parties having stipulated in advance as to the amount of
damages recoverable, further recovery, or recovery upon some other basis,
could not, of course, be had.’’ Id., 625–26. In Banta, the issue before our
Supreme Court was whether the liquidated damages provision in the parties’
contract providing for the recovery of liquidated damages in the event of
delay in the completion of the construction of a pleasure boat was a penalty,
which the law would not enforce. Banta v. Stamford Motor Co., supra, 54.
The court determined that the provision was enforceable, as the amount of
liquidated damages provided for in the contract was not unreasonable; id.,
57; and stated that, because ‘‘[t]he defendant, by its contract with the plaintiff,
agreed to pay these sums in the event named . . . [i]t must abide by its
bargain . . . .’’ Id., 54. In neither case did our Supreme Court address the
issue or conclude that a party may recover both liquidated damages and
completion or other nondelay damages.
26
See Delaware Limousine Service, Inc. v. Royal Limousine Service,
Inc., Docket No. C.A. 87C-FE-104, 1991 WL 89787, *1 (Del. Super. May 2,
1991) (following general rule that liquidated damages provision does not
prevent recovery of actual damages caused by events that are not covered by
liquidated damages clause unless contract expressly provides that damages
other than those enumerated shall not be recovered); Lawson v. Durant,
213 Kan. 772, 775, 518 P.2d 549 (1974) (same); Meyer v. Hansen, 373 N.W.2d
392, 395 (N.D. 1985) (same); Visa, Inc. v. Sally Beauty Holdings, Inc., Docket
No. 02-20-00339-CV, 2021 WL 5848758, *12 (Tex. App. December 9, 2021)
(same), petition for review filed (Tex. February 23, 2022) (No. 22-0024);
VanKirk v. Green Construction Co., 195 W. Va. 714, 719, 466 S.E.2d 782(1995) (same), cert. denied, 518 U.S. 1028, 116 S. Ct. 2571, 135 L. Ed. 2d
1087 (1996); see also A. Miner Contracting, Inc. v. Toho-Tolani County
Improvement District, 233 Ariz. 249, 258, 311 P.3d 1062 (Ariz. App. 2013)
(‘‘a party may not receive actual and liquidated damages for the same injury;
however, actual damages related to the cost of completion are separate and
distinct from liquidated damages intended to compensate for injury resulting
from delay’’), review denied, Arizona Supreme Court (March 21, 2014);
Draper v. Westwood Development Partners, LLC, Docket No. CIV.A. 4428-
MG, 2010 WL 2432896, *3 (Del. Ch. June 3, 2010) (‘‘[u]nless a contract
provides that liquidated damages are to be the exclusive remedy for a
breach, a liquidated damages provision does not preclude other relief to
the nonbreaching party, if the actual damages are caused by an event not
contemplated by the parties in the liquidated damages clause’’); Phillips v.
Gomez, 162 Idaho 803, 810, 405 P.3d 588 (2017) (‘‘a liquidated damages
clause does not preclude a party from suing for actual damages if that right
is preserved in the contract between the parties’’ (internal quotation marks
omitted)); Spinella v. B-Neva, Inc., 94 Nev. 373, 376, 580 P.2d 945 (1978)
(claim that liquidated damages clause was sole measure of damages available
was refuted by plain and unambiguous language of provision, which mani-
fested intent that liquidated damages compensated only for delay in perfor-
mance, and, thus, award of actual damages resulting from contractor’s defec-
tive workmanship was proper); Construction Contracting & Management,
Inc. v. McConnell, 112 N.M. 371, 377, 815 P.2d 1161 (1991) (‘‘an award of
actual damages unrelated to delay does not preclude an award of liquidated
damages for delay-related damages’’ as ‘‘[t]he vice to be guarded against is
a duplication of damages’’ (internal quotation marks omitted)); Noble v.
Ogborn, 43 Wn. App. 387, 390, 717 P.2d 285 (liquidated damages clause does
not preclude party from seeking actual damages when that right is preserved
in contract), review denied, 106 Wn. 2d 1004 (1986).
27
In determining whether the liquidated damages clause was a reasonable
estimate of damages and not a penalty, the court noted that the plaintiff
presented credible evidence supporting specific items of damage and the
amounts thereof. The context in which the court’s determinations were
made, in its analysis of the reasonableness of liquidated damages, however,
is different from that where the court actually would be making the required
finding that the plaintiff proved its damages by a preponderance of the
evidence. Thus, we cannot rely on the court’s findings regarding this evidence
to direct that judgment be rendered for the plaintiff on the items and amounts
identified by the court as supported by the evidence with respect to the
reasonableness of liquidated damages. Furthermore, the plaintiff argues on
appeal that the court miscalculated the amount of its actual damages with
respect to at least one category of actual damages. For these reasons, we
believe that a remand for a new damages hearing is required.
28
We do not intend this to be an exhaustive list of relevant issues for the
court to consider at the damages hearing. We merely identify and address
specific issues raised by the parties in this appeal.