Town of New Milford v. Standard Demolition Servs.
Decision Date | 26 April 2022 |
Docket Number | AC 43874 |
Parties | TOWN OF NEW MILFORD v. STANDARD DEMOLITION SERVICES, INC. |
Court | Connecticut Court of Appeals |
Argued November 30, 2021
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 NyleK. Davey, and, on the brief, Lauren Lyngholm Crowe and Jonathan A. Krumeich, for the appellant-cross appellee (defendant).
John D. Tower, with whom was Graham W. Moller, for the appellee-cross appellant (plaintiff)
3
The defendant, Standard Demolition Services, Inc., appeals from the judgment of the trial court rendered in favor of the plaintiff, the town of New Milford, on the plaintiffs 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 plaintiffs contract with the defendant 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 counterclaim, 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 plaintiff 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 containing 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 permission 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)
4
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.
5
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. . . .
6
[a]pproval . . . .'
To continue reading
Request your trial