United Concrete Prods., Inc. v. NJR Constr., LLC

• Decision Date: 21 September 2021
• Docket Number: AC 42244
• Citation: 263 A.3d 823,207 Conn.App. 551
• Parties: UNITED CONCRETE PRODUCTS, INC. v. NJR CONSTRUCTION, LLC, et al.
• Court: Connecticut Court of Appeals

207 Conn.App. 551

263 A.3d 823

UNITED CONCRETE PRODUCTS, INC.

v.NJR CONSTRUCTION, LLC, et al.

AC 42244

Appellate Court of Connecticut.

Argued January 15, 2020

Officially released September 21, 2021

Eric M. Grant, with whom, on the brief, was Melissa A. Scozzafava, Waterbury, for the appellant (plaintiff).

Robert J. O'Brien, with whom was Andrea L. Gomes, Hartford, for the appellees (defendants).

Moll, Devlin and Flynn, Js.

MOLL, J.

This appeal arises out of the delayed construction of a bridge over the Hockanum River on Route 74 in Vernon. The plaintiff subcontractor, United Concrete Products, Inc., appeals from the judgment of the trial court, rendered as to certain claims in favor of the defendants, NJR Construction, LLC (NJR), as general contractor, and Aegis Security Insurance Company (Aegis), as surety.¹ On appeal, the plaintiff claims that the trial court improperly: (1) calculated its award of damages to NJR on the breach of contract count of NJR's counterclaim; (2) concluded that NJR did not fail to mitigate its damages; (3) failed to render judgment against Aegis on the plaintiff's payment bond claim and award interest and attorney's fees pursuant to General Statutes § 49-42 ; (4) failed to render judgment against NJR on the plaintiff's claim for interest and attorney's fees pursuant to General Statutes § 49-41a ; (5) concluded that the plaintiff's conduct violated the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. ; and (6) awarded attorney's fees to NJR pursuant to the parties’ purchase order agreement. Addressing these various contentions, we agree with the plaintiff's third claim and reverse the judgment of the trial court only with respect to count three of the complaint. We affirm the judgment in all other respects.

The following facts, as found by the trial court or as undisputed in the record, are relevant to our resolution of this appeal. On December 14, 2015, the Department of Transportation (department) contracted with NJR to replace a bridge over the Hockanum River on Route 74 in Vernon for a contract amount of $1,982,181 (contract).² On February 3, 2016, NJR and the plaintiff signed a purchase order for certain concrete elements that would be used to construct the bridge (subcontract).³ Pursuant to the subcontract, the plaintiff was to provide NJR with various concrete elements, including ten prestressed deck beams. The beams measured approximately four feet wide, one and three-quarters feet tall, and forty-six feet long, and would form the deck of the bridge. NJR agreed to pay the plaintiff a total of $244,672.50.

The subcontract further provided that the concrete elements were to be delivered at the jobsite "on or before June 7, 2016," and included a provision that time was of the essence.⁴

NJR's contract with the department specified that the project was to be completed within 161 days and that the failure to do so would cause NJR to incur liquidated damages in the amount of $2000 per day for every day that completion was delayed thereafter. The contract further contained incentive and disincentive provisions. In order to complete the replacement of the bridge, NJR was to detour the traffic on Route 74 for a period lasting no longer than eight weeks. The eight week time frame began when NJR closed the bridge and the detour took effect. In order to incentivize NJR to open the road as promptly as possible, the contract specified that NJR could earn incentive payments in the amount of $3000 per day for each day Route 74 was reopened prior to the expiration of the eight week period, with a maximum total incentive payment of $60,000. Conversely, if NJR failed to open the road at the conclusion of the eight week detour period, it would incur a disincentive penalty in the amount of $3000 per day for every day that it exceeded that time frame. Therefore, in order for NJR to receive the maximum incentive payment of $60,000, it would have had to reopen Route 74 to traffic following the replacement of the bridge at least twenty days prior to the expiration of the eight week period.

The department approved NJR's March 24, 2016 baseline schedule for the project, as required by the contract, which provided an itemized description of the work that was to take place over the course of the 161 day construction period, through August 31, 2016.⁵ NJR was incentivized to complete the bridge work ahead of that deadline. NJR triggered the eight week detour period when it closed the bridge to traffic on June 13, 2016, thereby requiring a reopening of Route 74 by August 8, 2016. Accordingly, pursuant to the incentive provision of the contract with the department, NJR would receive the entire $60,000 payment if it were to reopen Route 74 at least twenty days before August 8, 2016, i.e., on or before July 19, 2016.

NJR believed the project would be completed sufficiently in advance of the August 8 date, such that NJR would earn the maximum $60,000 incentive payment. That finding was supported by the following evidence. In March, 2016, the plaintiff had indicated that it was ready to commence production of the beams.⁶ On May 5, 2016, Ryan Giguiere, NJR's project manager, e-mailed Joe Tenedine, the plaintiff's vice president of production, to inquire about the "pour schedule." Tenedine responded that "[t]he prestress will be complete by [May 27] if all strip strengths are met each day."⁷ On the basis of that information, Giguiere scheduled delivery of the beams for June 29, 2016.

On or about June 13, 2016, the date on which NJR closed Route 74, Giguiere had a telephone conversation with Chris Borkowski, the plaintiff's sales representative, who assured Giguiere that the beams were ready for a so-called dry fit test. As of that date, however, the beams had yet to be poured. On June 27, 2016, two days before the scheduled delivery, Giguiere received a telephone call from Brian McCutcheon, the plaintiff's dispatcher, who relayed to Giguiere that none of the ten beams would be ready for delivery on June 29, 2016. In response to this development, NJR obtained an emergency meeting with the department, which was attended by both Tenedine and Borkowski on behalf of the plaintiff. As it turned out, the first three beams cast by the plaintiff, on June 21, 25 and 28, 2016, respectively, failed state inspection and had to be recast—information that NJR claimed was not provided until the emergency meeting. On July 26, 2016, the plaintiff delivered the beams to the jobsite. The project was ultimately completed on August 31, 2016. The court concluded that the delay in delivering the beams caused NJR to lose the full amount of its potential incentive payment, to incur an adjusted disincentive penalty of $64,205,⁸ incur additional expenses for the rescheduling of subcontractors and the rental of equipment, and to complete the project on August 31, well behind its proposed schedule. NJR remitted $66,074.75 under the subcontract to the plaintiff in November, 2016, and then refused to pay the remaining balance.

The plaintiff thereafter commenced this action against the defendants on February 6, 2017, by way of a four count complaint. Against NJR, the plaintiff asserted one count of breach of contract for NJR's alleged failure to pay the remaining balance of $179,500 on the subcontract (count one), and one count seeking attorney's fees and interest pursuant to § 49-41a (c) (count two). With respect to Aegis, the plaintiff asserted one count alleging entitlement to payment under the payment bond issued by Aegis on behalf of NJR, as principal, pursuant to § 49-42 (count three), and one count of breach of the covenant of good faith and fair dealing contained in the payment bond (count four).⁹ In response, NJR, in addition to numerous special defenses, asserted a two count counterclaim against the plaintiff, alleging one count of breach of contract related to damages sustained as a result of the delayed delivery of the beams (count one), and one count of an alleged violation of CUTPA (count two). The plaintiff answered NJR's counterclaim and asserted as a special defense, inter alia, that NJR failed to mitigate its damages.

The matter was tried to the court on June 5, 6 and 7, 2018. Thereafter, the parties submitted posttrial briefs. Subsequently, the court rendered judgment in favor of the plaintiff on its breach of contract claim against NJR (count one of the complaint), in favor of NJR on the plaintiff's § 49-41a claim (count two of the complaint), in favor of Aegis on the plaintiff's § 49-42 claim (count three of the complaint), and in favor of NJR on its breach of contract and CUTPA claims (counts one and two of NJR's counterclaim). In its memorandum of decision, the court addressed the parties’ various claims as follows: With respect to the plaintiff's claims against NJR, the court first applied the factors set forth in § 241 of the Restatement (Second) of Contracts¹⁰ and concluded that the plaintiff failed to substantially perform its contractual obligations to NJR and, consequently, materially breached the subcontract by virtue of its delayed delivery of the beams.¹¹ Although a material breach by one party to a contract ordinarily excuses the nonbreaching party from performance thereunder; see Bernstein v. Nemeyer , 213 Conn. 665, 672–73, 570 A.2d 164 (1990) ; the court found that, because NJR had ultimately accepted the beams by using them to complete the project, the plaintiff was entitled to recover the contract amount pursuant to article 2 of the Uniform Commercial Code (UCC).¹² Whereupon, the court awarded the plaintiff $178,597.75 plus costs on its breach of contract claim against NJR. Second, turning to the Little Miller Act claims, asserted against NJR and Aegis pursuant to §§ 49-41a and 49-42, respectively, the court concluded that the plaintiff's material breach barred its recovery under that statutory framework.

The court next addressed NJR's counterclaim. First, in light of the...