Empire Paving, Inc. v. Milford

• Decision Date: 11 April 2000
• Docket Number: (AC 18233)
• Citation: 57 Conn. App. 261,747 A.2d 1063
• Court: Connecticut Court of Appeals
• Parties: EMPIRE PAVING, INC. v. CITY OF MILFORD

57 Conn. App. 261

747 A.2d 1063

EMPIRE PAVING, INC. v. CITY OF MILFORD

(AC 18233)

Appellate Court of Connecticut.

Argued September 29, 1999.

Officially released April 11, 2000.

Spear, Mihalakos and Daly, JS. Dominic J. Caciopoli, for the appellant (plaintiff).

Matthew B. Woods, with whom, on the brief, was Cynthia C. Anger, assistant city attorney, for the appellee (defendant).

Opinion

SPEAR, J.

The plaintiff, Empire Paving, Inc. (Empire), appeals from the judgment of the trial court rendered in favor of the defendant, the city of Milford (city), on Empire's claim that the city breached the parties' sewer construction contract. Empire claims that the trial court improperly rejected its claims for additional compensation for (1) extra paving work that was approved by the city and (2) higher than anticipated pavement cutting costs that resulted from Empire's reliance on the city's inaccurate boring logs. We affirm the judgment of the trial court.¹

The trial court found the following facts. On December 2, 1991, Empire and the city entered into a contract pursuant to which Empire agreed to install 6500 linear feet of sewage pipe for $677,801. Empire claimed that it was entitled to additional compensation for paving that was beyond that called for in the contract.² Change order request number five was in the amount of $28,879 for additional paving that was caused when a newly dug gas main trench "slid" into the sewer trench in some areas. The city allowed $9431 in additional compensation on this change order. Change order request number nine, in the amount of $20,805.25, was for repairing areas adjacent to the sewer trenches that were in poor condition. The city allowed $3116.74 on this request. The conditions reflected in these two change orders necessitated a greater width of paving than was originally anticipated in the contract.

Change order request numbers two and ten relate to Empire's claims for additional costs incurred in cutting the pavement with a saw. When Empire encountered pavement thicknesses ranging from 0.4 to 0.6 feet, as opposed to depths of 0.1 to 0.2 feet indicated in the city's boring logs, it was required to use a "road saw cutter" instead of a "pizza wheel"³ at an additional cost of $2.05 per linear foot. Request number two in the amount of $20,991.18 was for a claimed 9752 linear feet of "extra depth" saw cutting. Request number ten in the amount of $19,211.46 was for another 4744 linear feet of such cutting. Metcalf and Eddy, Inc. (engineers), the engineering firm designated in the contract, denied both of the change order requests.

Empire brought suit, claiming, inter alia, breach of contract with respect to change orders two, five, nine and ten. The trial court rendered judgment for the city, and this appeal followed.

I

Empire first claims that it was entitled to additional compensation for extra paving as per change order requests numbers five and nine. The trial court concluded that the amounts allowed by the city were proper.

The court found: "The dispute between the parties centers around the `payment width' of the sewer trenches utilized in calculating the additional compensation due [Empire] for paving performed beyond the width of said sewer trenches. The narrower the trench, the better for [Empire]; the wider the trench, the better for the [city]. [Empire] utilized a payment width of six feet (6') in calculating its claims. The [city] utilized a payment width of nine feet (9')."

Empire notified the engineers by letter dated February 27, 1992, that it intended to use a trench width of six feet. Change order request number five, relating to the gas main trench, was not submitted until May 1, 1992, and change order request number nine, relating to the repair of adjacent paving, was submitted on May 12, 1992. The work described in the change order requests was performed during March and April, 1992. The engineers notified Empire by letter dated May 21, 1992, that the additional pavement was indeed required, but rejected the six foot payment width as "invalid." The engineers substituted a nine foot width and calculated the amount due on that basis.

First, we address our standard of review and, thereafter, the reviewability of Empire's claims.⁴ With regard to the trial court's factual findings, the clearly erroneous standard of review is appropriate. "[W]here the factual basis of the court's decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous." Pandolphe's Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). The trial court's legal conclusions are subject to plenary review. "[W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision...." Id., 221. Where the contract language relied on by the trial court to resolve the dispute is definitive, the interpretation of the contract is a matter of law and our review is plenary. Chance v. Norwalk Fast Oil, Inc., 55 Conn. App. 272, 280, 739 A.2d 1275, cert. denied, 251 Conn. 929, 742 A.2d 361 (1999); Days Inn of America, Inc. v. 161 Hotel Group, Inc., 55 Conn. App. 118, 124, 739 A.2d 280 (1999).

Empire's claim is that change order requests five and nine were, in fact, offers to enter into a separate contract that the city accepted by its silence, thereby creating "a separate binding agreement to perform additional work." The operative amended complaint on which the parties proceeded to trial alleges a breach of the existing sewer construction contract and makes no claim that there was a separate binding contract created by the city's silence in the face of the change order requests. Because this claim was not presented to or decided by the trial court, we decline to review it. See HLO Land Ownership Associates Ltd. Partnership v. Hartford, 248 Conn. 350, 361, 727 A.2d 1260 (1999); Polizos v. Nationwide Mutual Ins. Co., 54 Conn. App. 724, 732, 737 A.2d 724, cert. granted on other grounds, 251 Conn. 916, 740 A.2d 865 (1999).

In resolving Empire's alternative claim that the city wrongfully refused to pay the amounts claimed on change orders five and nine in breach of the sewer construction contract, the trial court relied on § CA.4 of the contract. That section is titled, "Authority of the Engineer," and it provides in relevant part that "[t]he Engineer shall be the sole judge of the intent and meaning of the Drawings and Specifications and his decisions thereon and his interpretation thereof shall be final, conclusive and binding on all parties. ..."

We conclude that § CA.4 of the contract defeats Empire's claim. That clause required Empire to send a written protest to the city within ten days of the engineers' decision as to payment width if it disagreed with the nine foot determination. Section CA.4 provides in relevant part: "[U]nless the Contractor files such written protest ... within such ten (10) day period, he shall be deemed to have waived all grounds for protest of such direction, instruction, determination, or decision...." The trial court viewed Empire's failure to protest the engineers' decision as fatal to its claims. We agree because the plain language of § CA.4 permits no other result.

Empire also claims that, pursuant to § CA.28 of the contract, the engineers did not have authority to resolve the change order requests but merely to pass them on with a recommendation to the owner. Section CA.28⁵ provides a procedure for resolving claimed breaches of the contract and has nothing to do with processing change order requests. Change order requests were permitted by the contract, as previously noted, and cannot be classified as claims for damages for breach of the contract.

Empire further contends that its claims should not be precluded because the engineers' measurements were arbitrary and not done in good faith. The trial court found to the contrary.

Empire's primary attack on this finding is that the city allowed the trenches to be covered up before responding to the change order requests. The trial court found that the change order requests were submitted after the work was completed. This finding is supported by the evidence and is not clearly erroneous.

Empire also contends that the engineers' measurements were "demonstrably wrong." This claim failed in the trial court because the court concluded that the photographs that Empire relied on to support its claimed payment width were "inconclusive." The court also noted that the "[e]ngi...