ARB CONSTRUCTION, LLC v. Pinney Construction Corp., (AC 22233).

• Decision Date: 18 February 2003
• Docket Number: (AC 22233).
• Citation: 815 A.2d 705,75 Conn. App. 151
• Court: Connecticut Court of Appeals
• Parties: ARB CONSTRUCTION, LLC v. PINNEY CONSTRUCTION CORPORATION

75 Conn. App. 151

815 A.2d 705

ARB CONSTRUCTION, LLC v. PINNEY CONSTRUCTION CORPORATION

(AC 22233).

Appellate Court of Connecticut.

Argued October 23, 2002.

Officially released February 18, 2003.

Lavery, C. J., and Schaller and West, Js.

Glenn T. Terk, for the appellant (defendant).

Margaret Fogerty Rattigan, for the appellee (plaintiff).

Opinion

SCHALLER, J.

The defendant, Pinney Construction Corporation, appeals from the judgment rendered by the trial court in a breach of contract action awarding $149,616 to the plaintiff, ARB Construction, LLC. On appeal, the defendant claims that the court improperly (1) concluded that the contract between the parties was clear and unambiguous, (2) concluded that the defendant did not meet its burden of proof on its counterclaim that the plaintiff's work was unskillful, negligent or unworkmanlike and (3) prevented the defendant from introducing a site plan into evidence. We affirm the judgment of the trial court.

The court made the following factual findings in its memorandum of decision. "[The plaintiff] is owned and operated by Andrew Burnham. [The defendant] is owned and operated by Craig Pinney. On May 25, 1999, [the defendant] contracted with Silver Cove Associates, LLC (Silver Cove), to reconstruct and provide new construction at Silver Cove's shopping plaza located at 150-210 Silas Deane Highway, Wethersfield, Connecticut (the plaza). Thereafter, on June 10, 1999, [the defendant], as general contractor, entered into a one page written contract with [the plaintiff], as subcontractor, for [the plaintiff] to perform a host of site excavation and preparation tasks at the plaza. When Burnham and Pinney met on June 10, 1999, to draw the contract, they had available to them a set of plans for the plaza, substantially as approved by the Wethersfield planning and zoning commission, including an existing conditions plan, a site plan, a grading and utility plan, a landscape plan, an erosion and sedimentation control plan, a roadway plan and two pages of construction details. By the terms of the written contract [the plaintiff] was to be paid in the lump sum amount of $430,000, less a credit of $80,000 for an unrelated job, for a total of $350,000. [The plaintiff] was to undertake and complete the following tasks in accordance with the site plan: reclaimed parking lot, bituminous curbing, cut/repour front concrete curb at plaza, sidewalks, cuts and fills, drainage, sewer, gas trenching, water, sprinkler and hydrant, electrical trenching with pipe included, remove and replace light poles, demolition/excavation rear loading docks and foundations, demolition masonry at overhead doors in rear, demolition bank building and landscaping."

The plaintiff subsequently commenced work on the project. The plaintiff entered into a contract with Empire Paving, Inc. (Empire), to perform both the reclaiming and paving of the parking lot. The plaintiff was to be responsible for payment to Empire for the reclamation costs, and the defendant was to be responsible for the paving costs. The court found that the plaintiff contracted with Empire on behalf of the defendant only as a convenience.

The court concluded that paving was not included in the contract between the parties because the contract was clear and unambiguous that only a reclaimed parking lot was required. Furthermore, the court determined that the term "reclaimed parking lot" did not encompass paving. This appeal followed.

I

The defendant's first claim on appeal is that the court improperly determined that the contract was clear and unambiguous as to the inclusion of paving. The defendant argues that the contract term "reclaimed parking lot" was an ambiguous term that required paving to be done, and, therefore, the plaintiff was responsible under the contract for the paving of the parking lot.¹ We do not agree. The defendant's claim raises a mixed issue of fact and law. "A contract must be construed to effectuate the intent of the parties, which is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction. . . . [T]he intent of the parties is to be ascertained by a fair and reasonable construction of the written words and . . . the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract." (Internal quotation marks omitted.) Putnam Park Associates v. Fahnestock & Co., 73 Conn. App. 1, 8, 807 A.2d 991 (2002). Where a technical or special meaning is intended by the language of the contract, that meaning, and not the language's ordinary usage, shall be employed. See New England Petroleum Corp. v. Groppo, 214 Conn. 444, 450, 572 A.2d 970 (1990).

"Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. . . . Although ordinarily the question of contract interpretation, being a question of the parties' intent, is a question of fact . . . [w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law." (Citation omitted; internal quotation marks omitted.) Putnam Park Associates v. Fahnestock & Co., supra, 73 Conn. App. 8. "When. . . the trial court draws conclusions of law . . . we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record." (Internal quotation marks omitted.) Murphy, Inc. v. Remodeling, Etc., Inc., 62 Conn. App. 517, 522, 772 A.2d 154, cert. denied, 256 Conn. 916, 773 A.2d 945 (2001). Our standard of review, therefore, is plenary. See Aubin v. Miller, 64 Conn. App. 781, 790, 781 A.2d 396 (2001).

"Contract language is unambiguous when it has a definite and precise meaning about which there is no reasonable basis for a difference of opinion." (Internal quotation marks omitted.) Christian v. Gouldin, 72 Conn. App. 14, 20, 804 A.2d 865 (2002). "A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity, and words do not become ambiguous simply because lawyers or laymen contend for different meanings." (Internal quotation marks omitted.) Mallozzi v. Nationwide Mutual Ins. Co., 72 Conn. App. 620, 628, 806 A.2d 97, cert. denied, 262 Conn. 915, 811 A.2d 1292 (2002). "[A] presumption that the language used is definitive arises when, as in the present case, the contract at issue is between sophisticated parties and is commercial in nature." United Illuminating Co. v. Wisvest-Connecticut, LLC, 259 Conn. 665, 670, 791 A.2d 546 (2002).

Here, the court engaged in a two step process in construing the contract. First, the court concluded that the contract was clear and unambiguous because paving was not expressly listed as a task to be performed on the contract. The plaintiff, therefore, was responsible for only a reclaimed parking lot. We agree with the court. The contract clearly lists the jobs to be performed, and paving is not listed. The contract is clear and unambiguous that only a reclaimed parking lot was required.

Because the contract clearly and unambiguously required a reclaimed parking lot, the court then proceeded to construe the contract according to that term. See Putnam Park Associates v. Fahnestock & Co., supra, 73 Conn. App. 8. That required the court to define reclaimed parking lot as it is used in the construction field.² The court made the following factual finding in its memorandum of decision: "Reclaiming a parking lot means digging up the existing asphalt surface, including asphalt curbing and islands, and digging up the subsurface base to a depth of several inches. All the material is simultaneously dug up and ground up by a milling machine and deposited evenly over the compacted subsurface area. Depending upon the desired finished grade, the operator may then skim off some surface inches of the reclaimed material for use elsewhere or he or she may not. What remains of the parking lot is graded and rolled. That completes the reclaiming of the parking lot. . . . The reclaiming of a parking lot is entirely separate from the paving of a parking lot. . . . A reclaimed parking lot may remain in a reclaimed condition without any paving."

The court's determination of the special meaning of the term "reclaimed parking lot" is based on a finding of fact. We review the court's finding of fact using the clearly erroneous standard. Id., 11. "A finding of fact is clearly erroneous 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.) Id., 12. The court's definition of "reclaimed parking lot" is not clearly erroneous. Burnham testified that a reclaimed parking lot is "when you grind it up to a material that's less than three inches in diameter." That requires the use of a machine that "turns the pavement up" and "fluffs it." The parking lot could be left in that condition without paving. The plaintiff's expert, John R. Cullina, defined reclaiming as "a method of pulverizing or scarifying or removing the material with a machine that would place the material pulverized right behind the machine, fluffed up . . . . And what it does is, it allows you to use this material for other . . . various uses." The defendant's expert, Deborah Brown, testified that reclaiming a parking lot included grinding up the old pavement and that this could be rolled over before paving to compact it and that it would then be overlaid with asphalt. Furthermore, Gary Zimmitti, the owner of Technical Excavation, stated that reclaiming includes pulverizing the old pavement, removing unsuitable reclaimed material, grading the reclaimed material and that then pavement would be...