E. I. du Pont de Nemours & Co. v. Chemtura Corp. ( 2021 )

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E. I. DU PONT DE NEMOURS AND COMPANY v.
CHEMTURA CORPORATION
(SC 20329)
Robinson, C. J., and Palmer, McDonald, D’Auria,
Mullins, Kahn and Ecker, Js.*
Syllabus
The plaintiff, D Co., sought, inter alia, to recover damages from the defendant
for breach of contract in connection with D Co.’s purchase of the defen-
dant’s fluorine chemical business and related equipment. The parties
had previously entered into an asset purchase agreement, governed by
New York law, pursuant to which the defendant agreed to indemnify D
Co. for any losses arising from a breach of the defendant’s representa-
tions and warranties relating to prior and ongoing compliance with
various laws in connection with the operation of the defendant’s plant.
The agreement’s notice provision provided that notice and other commu-
nications under the agreement must be sent to the defendant’s general
counsel with a simultaneous copy to the defendant’s outside counsel.
Following the purchase of the business, D Co. requested reimbursement,
pursuant to the agreement’s indemnification provisions, to cure several
alleged deficiencies, but the parties ultimately were unable to settle
their differences. Thereafter, C Co. was substituted as the plaintiff. At
trial, the defendant claimed that D Co. had failed to provide notice in
accordance with the provisions of the agreement because D Co. had
communicated with the defendant’s associate general counsel but not
the defendant’s general counsel, and New York law required strict com-
pliance with notice provisions in a commercial contract. C Co. claimed
that New York law did not require strict compliance and that the commu-
nications between the parties to the agreement provided actual notice
to the defendant. The trial court rendered judgment for the defendant,
concluding, inter alia, that D Co. had failed to provide proper notice in
accordance with the agreement, and C Co. appealed. Held that the trial
court improperly rendered judgment for the defendant on the ground
that D Co. had failed to strictly comply with the notice provision of the
asset purchase agreement: although a time limitation provision in the
agreement provided that the defendant would not be liable for a breach
of representations or warranties ‘‘unless’’ D Co. notified the defendant
of such a claim in writing within four years of the closing date, that
provision merely set a time limitation for bringing a claim for indemnifi-
cation, as it did not contain unmistakable language conditioning indemni-
fication on compliance with precise notice procedures; moreover, New
York law does not require strict compliance with a commercial contract’s
notice provision when the other party to the contract receives actual
notice and is not prejudiced by the lack of strict compliance, and,
although D Co. did not strictly comply with the agreement’s notice
provision, it was clear from the trial court’s factual findings and the
record, including testimony by D Co.’s plant manager that he had regu-
larly discussed the deficiencies and corresponded with various employ-
ees of the defendant on the subject, e-mail correspondence between
the parties, and a detailed claims list chart, prepared by the defendant’s
associate general counsel, summarizing the parties’ positions on various
deficiencies at the plant, that the defendant was aware that D Co. was
seeking indemnification and, thus, had actual notice of D Co.’s claims,
and the defendant did not claim that it was prejudiced as a result of D
Co.’s failure to strictly comply with the notice provision.
Argued November 19, 2019—officially released July 2, 2020**
Procedural History
Action to recover damages for breach of contract,
and for other relief, brought to the Superior Court in
the judicial district of Waterbury, where The Chemours
Company FC, LLC, was substituted as the plaintiff;
thereafter, the case was tried to the court, Brazzel-
Massaro, J.; judgment for the defendant, from which
the substitute plaintiff appealed. Reversed; further pro-
ceedings.
Proloy K. Das, with whom were Jennifer M. DelMon-
ico and, on the brief, Terence J. Brunau, for the appel-
lant (substitute plaintiff).
Thomas J. Donlon, with whom, on the brief, were
Joseph L. Clasen and Brian J. Wheelin, for the appel-
lee (defendant).
Opinion
McDONALD, J. The principal issue in this appeal is
whether New York law requires a party to strictly com-
ply with a notice provision in a commercial contract
in order to recover for the other party’s breach of the
contract. The trial court concluded that the plaintiff, E.
I. du Pont de Nemours and Company (DuPont),1 had
not strictly complied with the notice provisions of an
asset purchase agreement (APA) and rendered judg-
ment in favor of the defendant, Chemtura Corporation.
On appeal, the plaintiff contends that the trial court
improperly required strict compliance with the APA’s
notice provisions because New York law distinguishes
between public contracts and private commercial con-
tracts, and does not require strict compliance in com-
mercial contracts when the contracting party receives
actual notice and suffers no prejudice from the devia-
tion. We agree with the plaintiff and, accordingly,
reverse the judgment of the trial court.
The record reveals the following relevant facts, as
found by the trial court and supplemented by the record,
and procedural history. In 2007, the parties, DuPont
and the defendant, negotiated the purchase of the defen-
dant’s fluorine chemical business and related equip-
ment located in El Dorado, Arkansas. On behalf of
DuPont, Brian Engler negotiated the terms of the APA
with Arthur Fullerton, the defendant’s associate general
counsel, and Arthur Wienslaw, the defendant’s director
of strategy and licensing. The parties ultimately entered
into the APA on December 14, 2007. Because the parties
were competitors in this field, DuPont’s precontractual
ability to inspect the defendant’s plant and equipment
and to conduct other due diligence was limited. Officials
of DuPont conducted only one brief, after-hours tour
of the plant prior to signing the APA. As a result, the
defendant made certain representations and warranties
in the APA, including that the transferred assets were
in good repair and condition and were sufficient to
conduct business as of the closing date, and that the
business had been and was currently being operated
in accordance with applicable laws.
To further protect DuPont, given its limited ability
to inspect the plant, the parties also entered into a
side letter dated January 31, 2008, which confirmed
‘‘additional understandings’’ of the parties. The side let-
ter included the disclosure and discussion of all poten-
tial violations of codes and regulations that controlled
the operation of the plant and its products, including
potential violations of the ozone depleting substances
regulations.2 The side letter primarily addressed any
past deficiencies or violations that continued to impact
the operation of the plant at the time of closing that
DuPont would not have been able to discover given its
limited inspection of the plant. The parties closed on
the sale on January 31, 2008.
The APA contains two provisions, §§ 3.16 and 3.17,
that set forth a number of representations and warrant-
ies by the defendant related to the facility’s prior and
ongoing compliance with various laws in connection
with the operation of the plant. Under article 8 of the
APA, the defendant agreed to indemnify DuPont from
any losses arising from any breach of those representa-
tions or warranties.3 Section 8.4 (a) of the APA provides
a four year time period for indemnification as a result
of a breach of the representations or warranties con-
tained in §§ 3.16 and 3.17 and requires that DuPont
notify the defendant in writing within four years of the
closing date, ‘‘specifying the amount and factual basis
of that claim in reasonable detail to the extent known.’’
The APA’s notice provision, § 11.4, provides in relevant
part: ‘‘All notices, consents, waivers and other commu-
nications under this [a]greement must be in writing and
will be deemed given to a party when (a) delivered
to the appropriate address by hand or by nationally
recognized overnight courier service (costs prepaid),
(b) sent by facsimile or e-mail with confirmation of
transmission by the transmitting equipment or (c)
received or rejected by the addressee, if sent by certified
mail, return receipt requested, in each case to the fol-
lowing addresses, facsimile numbers or e-mail
addresses and marked to the attention of the individual
(by name or title) designated below (or to such other
address, facsimile number, e-mail address or individual
as a party may designate by notice to the other parties)
. . . .’’ To properly notify the defendant, § 11.4 of the
APA provides that the notice shall be sent to the defen-
dant’s general counsel ‘‘with a simultaneous copy’’ to
the defendant’s outside counsel, Baker & McKenzie,
LLP.
Following the closing, the parties remained in regular
contact because DuPont purchased only a portion of
the Arkansas facility and the defendant continued to
operate the remainder. Specifically, DuPont’s plant
manager, Donald Kuhlmann, communicated with Ful-
lerton, the defendant’s associate general counsel, and
Frank DiCristina, one of the defendant’s plant manag-
ers. DuPont did not communicate with the defendant’s
general counsel. DuPont subsequently discovered that
certain areas of the plant required repair or replace-
ment, and DuPont requested reimbursement pursuant
to the defendant’s indemnification obligations. Namely,
DuPont asserted that certain refrigeration units were
leaking refrigerant at an unacceptable rate, and the fire
suppression systems were not operating within applica-
ble laws at the time of the purchase. From the closing
in 2008 until 2011, the parties held discussions and
corresponded to resolve those deficiencies.4 During this
time, in March, 2009, the defendant filed for Chapter
11 bankruptcy. For the reorganized company to assume
the APA, the defendant had to cure any prebankruptcy
defaults under the APA. See 11 U.S.C. § 365 (b) (2006).
This led to extensive negotiations between the parties
over ‘‘cure claims.’’5 Ultimately, the parties summarized
their positions on various items in a claims list, which
included, among other things, the refrigeration and fire
suppression system claims. These discussions did not
resolve all of the claims, and the present action
followed.
DuPont commenced this action in June, 2014,
asserting two claims sounding in breach of contract
against the defendant. The complaint alleged violations
of the side letter and §§ 3.16 and 3.17 of the APA. DuPont
alleged that, in accordance with the APA and the side
letter, the defendant is obligated to repair or replace
refrigeration units that either are not properly working
or violate applicable regulations, as well as certain fire
suppression systems that did not comply with the appli-
cable laws at the time of the sale. Specifically, in count
one, DuPont alleged that the defendant breached the
APA because, at the time of closing, the defendant had
been operating nine areas of the plant in violation of
applicable fire safety laws and regulations. Count two
alleged that multiple refrigeration units were leaking
refrigerant at rates impermissible under applicable envi-
ronmental law.
After three and one-half years of pretrial litigation,
the case was tried in January, 2018. On the last day of
trial, the defendant claimed—for the first time, in a
motion for a directed verdict—that DuPont failed to
provide notice in accordance with the terms of the APA.
The defendant argued that DuPont did not comply with
the APA’s notice provision because it had been commu-
nicating with the defendant’s associate general counsel
rather than the general counsel. The court requested
briefing on the issue, and the plaintiff and the defendant
submitted posttrial briefs. The plaintiff and the defen-
dant agreed that, under § 11.16 of the APA, New York
law governs this dispute. The defendant argued that
New York law requires strict compliance with notice
provisions in a contract and that the plaintiff failed to
prove all the elements of breach of contract. The plain-
tiff disagreed and argued that New York law did not
require strict compliance, and that the claims list and
the correspondence between the parties to the APA
satisfied New York law because they provided the
defendant actual notice.
The trial court determined that at no time after the
closing did DuPont provide notice in accordance with
§ 11.4 of the APA. The court noted that a number of
the plaintiff’s exhibits submitted as proof of actual
notice did not rise to the level of actual notice of a
violation of the contract purchase provisions. The court
relied on a New York intermediate appellate court deci-
sion, Fortune Limousine Service, Inc. v. Nextel Com-
munications, 35 App. Div. 3d 350, 826 N.Y.S.2d 392(2006), appeal denied, 8 N.Y.3d 816, 870 N.E.2d 695, 839
N.Y.S.2d 454 (2007), for the proposition that, when there
is a denial of actual notice, the plaintiff must present
some evidence of notice. In the present case, the court
explained, the plaintiff described an ongoing discussion
over a period of years, but at no point ‘‘ha[d] the plaintiff
been able to demonstrate that the defendant was noti-
fied within the applicable four year period that [DuPont]
alleged a breach of the provisions of § 3.16 or § 3.17
[of the APA].’’ The court rejected the plaintiff’s con-
tention that the defendant had actual notice of the
claims based on various correspondence, namely, the
claims list, because these documents were ‘‘only discus-
sion for purposes of reimbursement of items pursuant
to the [APA].’’ The court further explained that, based
on the claims list, the defendant had determined that
DuPont’s claim was not valid, and, if it chose to pursue
the claim, DuPont was ‘‘obligated to follow the contract,
which means the notice and the § 8.4 time limitations,
as well as the specificity of such a claim.’’ Finally, the
court stated that, ‘‘[w]ithout a written notice outlining
the basis of the defendant’s noncompliance, the defen-
dant is prejudiced in that [it] need[s] to determine
[whether] the problem is some undisclosed violation
or simply the passage of time that has affected the
operation of the facility in accordance with the regula-
tions and permits.’’ The trial court concluded that
DuPont failed to provide proper and timely notice in
accordance with §§ 8.4 and 11.4 of the APA and ren-
dered judgment in favor of the defendant. The court
did not reach the defendant’s arguments that the plain-
tiff failed to prove the other elements of breach of
contract.
The plaintiff appealed from the judgment of the trial
court to the Appellate Court, and the appeal was trans-
ferred to this court pursuant to General Statutes § 51-
199 (c) and Practice Book § 65-1.
On appeal, the plaintiff contends that the trial court
incorrectly concluded that New York law requires strict
compliance with a notice provision in a commercial
contract. In support, the plaintiff asserts that the APA’s
notice provision is not a condition precedent to indem-
nification. The plaintiff also asserts that New York case
law draws a distinction between public contracts and
commercial contracts, and that strict compliance with
contractual notice provisions is not required in commer-
cial contracts when the contracting party receives
actual notice and suffers no detriment or prejudice by
the deviation. Finally, the plaintiff asserts that the defen-
dant’s notice claims are barred by estoppel and waiver.
The defendant disagrees and contends that the trial
court correctly concluded that lack of notice barred
the plaintiff’s claims. It asserts that New York courts
rigorously enforce provisions in contracts between
sophisticated parties, and the notice provision in the
APA is a condition precedent to indemnification. The
defendant also rejects the plaintiff’s distinction between
public and commercial contracts and argues that asser-
tions of actual knowledge are insufficient to satisfy a
notice provision under New York law. The defendant
also argues that neither estoppel nor waiver applies
in this case. Finally, the defendant contends that the
plaintiff did not prove other elements of its breach of
contract claims.
Whether the trial court correctly concluded that New
York law requires strict compliance with a notice provi-
sion in a commercial contract is a question of law sub-
ject to our plenary review. See, e.g., Hartford Courant
Co. v. Freedom of Information Commission, 261 Conn.
86, 96–97, 801 A.2d 759 (2002) (determination of proper
legal standard is question of law subject to plenary
review); see also 11 R. Lord, Williston on Contracts (4th
Ed. 1999) § 30:6, pp. 77–80 (‘‘[t]he interpretation and
construction of a written contract present only ques-
tions of law, within the province of the court . . . so
long as the contract is unambiguous and the intent of
the parties can be determined from the agreement’s
face’’ (footnotes omitted)). Because § 11.16 provides
that the APA will be governed by and construed under
the laws of New York, we look to the decisions of New
York’s appellate courts to resolve this issue.
I
We begin with the plaintiff’s contention that the APA’s
notice provision is not a condition precedent to indem-
nification. As the New York Court of Appeals has
explained, a condition precedent is ‘‘an act or event,
other than a lapse of time, which, unless the condition
is excused, must occur before a duty to perform a prom-
ise in the agreement arises . . . .’’ (Citations omitted;
internal quotation marks omitted.) Oppenheimer & Co.
v. Oppenheim, Appel, Dixon & Co., 86 N.Y.2d 685, 690,
660 N.E.2d 415, 636 N.Y.S.2d 734 (1995). New York
courts distinguish between express and constructive
conditions. ‘‘Express conditions must be literally per-
formed, whereas constructive conditions, which ordi-
narily arise from language of promise, are subject to
the precept that substantial compliance is sufficient.’’
Id. One New York intermediate appellate court has
explained that ‘‘[i]t must clearly appear from the agree-
ment itself that the parties intended a provision to oper-
ate as a condition precedent . . . .’’ (Citation omitted;
internal quotation marks omitted.) Ashkenazi v. Kent
South Associates, LLC, 51 App. Div. 3d 611, 611, 857
N.Y.S.2d 693 (2008). In determining whether a particular
agreement makes an event an express or constructive
condition, ‘‘courts will interpret doubtful language as
embodying a promise or constructive condition rather
than an express condition. This interpretive preference
is especially strong when a finding of express condition
would increase the risk of forfeiture6 by the obligee
. . . .’’ (Citation omitted; footnote added.) Oppenhei-
mer & Co. v. Oppenheim, Appel, Dixon & Co., supra,
691. Even express conditions may ‘‘yet be excused by
waiver, breach or forfeiture. The Restatement [(Sec-
ond) of Contracts] posits that ‘[t]o the extent that the
[nonoccurrence] of a condition would cause dispropor-
tionate forfeiture, a court may excuse the [nonoccur-
rence] of that condition unless its occurrence was a
material part of the agreed exchange’ . . . .’’ (Citation
omitted.) Id., quoting 2 Restatement (Second), Con-
tracts § 229, p. 185 (1981); see also Schweizer v. Sikor-
sky Aircraft Corp., 634 Fed. Appx. 827, 829 (2d Cir.
2015) (same).
New York courts look for ‘‘unmistakable language
of condition,’’ such as ‘‘if’’ and ‘‘unless and until,’’ to
establish a condition precedent. (Internal quotation
marks omitted.) MHR Capital Partners LP v. Presstek,
Inc., 12 N.Y.3d 640, 645, 912 N.E.2d 43, 884 N.Y.S.2d
211 (2009). For example, the New York Court of Appeals
has held that a contract provision that provided that
documents were not to be released ‘‘ ‘unless and until’ ’’
one party consented to the deal was an express condi-
tion precedent. Id., 645–46; see also Kingsley Arms,
Inc. v. Sano Rubin Construction Co., 16 App. Div. 3d
813, 814, 791 N.Y.S.2d 196 (2005) (contract that stated
‘‘no claim can be asserted unless, ‘as a condition prece-
dent thereto,’ the notice of claim provisions are com-
plied with’’ was express condition precedent). Similar
to the present case, however, the Fifth Circuit, applying
New York law, rejected an argument that a contractual
notice provision, which provided that one party ‘‘ ‘will
have the right to terminate the [a]greement on sixty (60)
days prior written notice,’ ’’ was an express condition
precedent, even when considered with another provi-
sion that included ‘‘unless’’ language. DuVal Wied-
mann, LLC v. InfoRocket.com, Inc., 620 F.3d 496, 501–
502 (5th Cir. 2010).
Here, the defendant claims that the word ‘‘unless’’ in
§ 8.4 of the APA creates an express condition precedent
regarding the precise form of notice. Section 8.4 (a)
provides that the defendant will have no liability for
breaches of the representations or warranties contained
in § 3.16 or § 3.17 ‘‘unless on or before the four year
anniversary of the [c]losing [d]ate, [DuPont] notifies
[the defendant] of such a claim in writing specifying
the amount and factual basis of that claim in reasonable
detail to the extent known.’’ In short, § 8.4—a provision
titled ‘‘TIME LIMITATIONS’’—sets a four year time limi-
tation for bringing a claim for indemnification under
§ 3.16 or § 3.17; it does not provide the specific require-
ments for the notice, which are set forth in § 11.4.7
Indeed, § 8.4 does not even reference § 11.4. Although
§ 8.4 contains the word ‘‘unless,’’ there is no ‘‘unmistak-
able’’ language conditioning indemnification on compli-
ance with precise notice procedures. Rather, § 8.4 is
more properly understood as setting the time limitation
for asserting a claim for indemnification. The notice
provision, § 11.4, does not contain any conditional lan-
guage. Therefore, it is not clearly apparent from the
language in the APA that the notice provision in § 11.4
is an express condition precedent based solely on the
word ‘‘unless’’ in § 8.4. See DuVal Wiedmann, LLC v.
InfoRocket.com, Inc., supra, 620 F.3d 501–502. More-
over, given that New York courts will ‘‘interpret doubt-
ful language as embodying a promise or constructive
condition rather than an express condition’’; Oppenhei-
mer & Co. v. Oppenheim, Appel, Dixon & Co., supra,
86 N.Y.2d 691; even if there is ambiguity as to whether
the notice provision was an express condition prece-
dent, New York law favors construing it as a construc-
tive condition for which substantial compliance is suffi-
cient. See id., 690–91.
II
Having concluded that the notice provision in the
APA is not an express condition precedent, we must
determine whether New York law nevertheless requires
strict compliance with the contract’s notice provision
under the circumstances of this case. We conclude that
New York law does not require strict compliance with a
commercial contract’s notice provision when the other
party to the contract receives actual notice and is not
prejudiced by the deviation.
As a general matter, the New York Court of Appeals
has noted the importance of compliance with contrac-
tual provisions. For example, the court has stated that
‘‘[c]ourts will give effect to the contract’s language and
the parties must live with the consequences of their
agreement. If they are dissatisfied . . . the time to say
so [is] at the bargaining table . . . .’’ (Citations omitted;
internal quotation marks omitted.) Eujoy Realty Corp.
v. Van Wagner Communications, LLC, 22 N.Y.3d 413,
424, 4 N.E.3d 336, 981 N.Y.S.2d 326 (2013). New York
courts respect the freedom of contract, especially ‘‘in
the case of arm’s length commercial contracts negoti-
ated by sophisticated and counseled entities . . . .’’
(Citation omitted.) Id. Additionally, the Court of
Appeals has explained that ‘‘[i]t is settled . . . that
when a contract requires that written notice be given
within a specified time, the notice is ineffective unless
the writing is actually received within the time pre-
scribed . . . .’’ (Citations omitted.) Maxton Builders,
Inc. v. Lo Galbo, 68 N.Y.2d 373, 378, 502 N.E.2d 184,
509 N.Y.S.2d 507 (1986).
The New York Court of Appeals has not squarely
addressed the question of whether New York law
requires strict compliance with a notice provision in a
commercial contract between private entities. In A.H.A.
General Construction, Inc. v. New York City Housing
Authority, 92 N.Y.2d 20, 699 N.E.2d 368, 677 N.Y.S.2d
9 (1998), the court required strict compliance with a
notice provision of a public contract between the New
York City Housing Authority and a contractor for the
construction of several public buildings and other pub-
lic works. Id., 24. The court noted that the contractor
undeniably failed to satisfy the notice provisions of the
contract, which were conditions precedent to recovery,
and nothing the housing authority did prevented the
contractor from complying with those provisions. Id.,30–33. As such, the court held that the housing author-
ity’s summary judgment motion should have been
granted because the contractor did not comply with
the contract’s notice provisions. Id., 23–24, 34.
Significantly, the court explained that important pub-
lic policy considerations favor scrutiny of claims of bad
faith, when offered by contractors to excuse noncompli-
ance with notice and reporting requirements in public
contracts. Id., 33. The court emphasized that notice
provisions are common in public works projects and
‘‘provide public agencies with timely notice of devia-
tions from budgeted expenditures or of any supposed
malfeasance, and allow them to take early steps to avoid
extra or unnecessary expense . . . mitigate damages
and avoid the waste of public funds.’’ Id., 33–34. Finally,
the court noted that the contractor’s accumulation of
additional expenses was ‘‘precisely the situation’’ that
the notice provisions were intended to prevent. Id., 34.
Although the New York Court of Appeals did not
expressly limit its holding in that case to public con-
tracts, several New York intermediate appellate court
decisions have implicitly drawn the distinction between
public and private commercial contracts.8 For example,
the New York Supreme Court, Appellate Division, has
explained that ‘‘New York case law recognizes that
prompt, written notice requirements in public works
contracts serve salutary purposes . . . and merit strict
enforcement.’’ (Citation omitted; emphasis added; inter-
nal quotation marks omitted.) Huff Enterprises, Inc.
v. Triborough Bridge & Tunnel Authority, 191 App.
Div. 2d 314, 316–17, 595 N.Y.S.2d 178, appeal denied,
82 N.Y.2d 655, 622 N.E.2d 305, 602 N.Y.S.2d 804 (1993).
In the context of private commercial contracts, how-
ever, New York’s intermediate appellate courts have
explained that ‘‘strict compliance with contractual
notice provisions need not be enforced where the adver-
sary party does not claim the absence of actual notice
or prejudice by the deviation . . . .’’ (Citations omit-
ted.) Fortune Limousine Service, Inc. v. Nextel Com-
munications, supra, 35 App. Div. 3d 353; see also
Suarez v. Ingalls, 282 App. Div. 2d 599, 600, 723 N.Y.S.2d
380 (2001); Baker v. Norman, 226 App. Div. 2d 301, 304,
643 N.Y.S.2d 30, appeal dismissed, 88 N.Y.2d 1040, 673
N.E.2d 1240, 651 N.Y.S.2d 13 (1996); Dellicarri v.
Hirschfeld, 210 App. Div. 2d 584, 585, 619 N.Y.S.2d 816(1994).9 Relevant to the present case, in which DuPont
communicated with the defendant’s associate general
counsel and not the general counsel, in Iskalo Electric
Tower LLC v. Stantec Consulting Services, Inc., 79 App.
Div. 3d 1605, 916 N.Y.S.2d 373 (2010), the intermediate
appellate court explained that, ‘‘[a]lthough . . . [the]
plaintiffs provided such notice by facsimile transmis-
sion to [the] defendant’s corporate counsel and did not
provide such notice to [the] defendant’s chief executive
officer, we nevertheless conclude that strict compliance
with the notice provision of the lease was not required
inasmuch as [the] defendant does not contend that it
did not receive actual notice . . . [or] that it was preju-
diced by the deviation . . . .’’ (Citations omitted.)
Id., 1607.10
Finally, we note that several federal courts, applying
New York law, have also concluded that strict compli-
ance with a notice provision in a private commercial
contract is not required. For example, the Second Cir-
cuit has opined that, ‘‘[u]nder New York law, strict
compliance with contractual notice provisions need not
be enforced where the adversary party does not claim
the absence of actual notice or prejudice by the devia-
tion.’’11 (Internal quotation marks omitted.) Schweizer
v. Sikorsky Aircraft Corp., supra, 634 Fed. Appx. 829;
see also Thor 725 8th Avenue LLC v. Goonetilleke, 138
F. Supp. 3d 497, 509 (S.D.N.Y. 2015), aff’d, 675 Fed.
Appx. 31 (2d Cir. 2017). The United States District Court
for the District of Columbia has explained that, ‘‘[u]nder
New York law, strict compliance with written notice
provisions is required for public contracts, with limited
exceptions. . . . But because the contract at issue in
this action is a commercial agreement between two
sophisticated, private parties, the rigid [strict construc-
tion] rule [the defendant] incorrectly argues for clearly
does not apply.’’ (Citation omitted.) Intelsat USA Sales
LLC v. Juch-Tech, Inc., 52 F. Supp. 3d 52, 60 n.6
(D.D.C. 2014).
In short, the majority of New York intermediate
appellate court opinions have concluded that strict
compliance with a notice provision in a private commer-
cial contract is not required. See, e.g., Iskalo Electric
Tower LLC v. Stantec Consulting Services, Inc., supra,
79 App. Div. 3d 1607; Fortune Limousine Service, Inc.
v. Nextel Communications, supra, 35 App. Div. 3d 353;
Suarez v. Ingalls, supra, 282 App. Div. 2d 600; Baker
v. Norman, supra, 226 App. Div. 2d 304; Dellicarri v.
Hirschfeld, supra, 210 App. Div. 2d 585. Moreover, the
most analogous Court of Appeals decision, which
required strict compliance with a notice provision in a
public contract, concluded that the notice provision
was a condition precedent and emphasized that public
policy considerations favored requiring strict compli-
ance because public contract notice provisions were
designed to prevent the accumulation of additional
expenses and to avoid the waste of public funds. See
A.H.A. General Construction, Inc. v. New York City
Housing Authority, supra, 92 N.Y.2d 33–34. These con-
cerns are not implicated in commercial contracts
between private parties. As such, we conclude that New
York law does not require strict compliance with a
commercial contract’s notice provision when the adver-
sary party receives actual notice and is not prejudiced
by the deviation.12
III
Turning to the facts of the present case, we note that
the plaintiff acknowledges that DuPont did not strictly
comply with the APA’s notice provisions but contends
that the defendant received actual notice that DuPont
was seeking reimbursement under the APA and the side
letter in connection with the refrigeration units and fire
suppression systems. Specifically, the plaintiff notes
that Kuhlmann engaged in regular discussions and cor-
respondence regarding these claims with the defen-
dant’s employees, including Fullerton and DiCristina.
The plaintiff also points to the claims list and a series
of e-mail correspondence between the parties to the
APA that it asserts memorialize the parties’ communica-
tions regarding plant deficiencies involving the refriger-
ation units and fire suppression systems. The defendant
argues that none of the correspondence between the
parties to the APA formally states that it is a notice of
a claim for indemnification or breach, none was sent
to the contractually specified individuals designated
to receive notice, and none contains the information
required by § 8.8 of the APA. The defendant does not
claim that it was prejudiced as a result of DuPont’s
failure to strictly comply with the notice provision.
The trial court’s factual findings and the record make
clear that the defendant—through its associate general
counsel and plant manager—was aware that DuPont
was seeking indemnification for the refrigeration and
fire protection systems. Specifically, Kuhlmann testified
that he engaged in regular discussions and correspon-
dence with various employees of the defendant, includ-
ing Fullerton and DiCristina, regarding the deficiencies
at the plant. Additionally, various e-mail correspon-
dence memorialize the parties’ communications regard-
ing the fire safety equipment and refrigeration units.
The record contains at least four groups of e-mail corre-
spondence between the parties over a three year period
discussing the following: problems with the refrigera-
tion and fire protection systems; estimates for repair
of that equipment; and requests by DuPont for reim-
bursement from the defendant.
Moreover, after the defendant filed for bankruptcy,
Fullerton created a detailed claims list chart that sum-
marized the parties’ positions on various deficiencies
at the plant, which confirmed that the defendant had
actual knowledge of DuPont’s claims. As previously
discussed, for the reorganized company to assume the
APA, the defendant had to cure any defaults. This led to
extensive negotiations between the parties over ‘‘cure
claims,’’ which Fullerton described: ‘‘assuming there is
a tie-in to a reimbursement obligation under the [APA],
has work been done for which either (a) an invoice has
been generated and sent to [the defendant] or (b) the
issuance of an invoice to [the defendant] is a [pro forma]
step at this point [because] the amount that would
appear on the invoice is [un]known? . . . [T]he fact
that something may not be in the ‘cure claim’ category
does not mean it never gets paid; it just means that the
claim is handled per the [APA] terms as if there had
never been a [Chapter] 11 filing.’’ (Emphasis omitted.)
The claims list included the refrigeration and fire
protection claims, in addition to other claims for which
DuPont requested reimbursement pursuant to the APA
and the side letter.13 Item 9, which was related to the fire
protection equipment, provided: ‘‘General agreement
that, regardless of how this item might be tied to obliga-
tions under the contract, no work has been done to
date and it is therefore not possible to establish an
amount that could be considered a ‘cure claim’ amount.
Accordingly, this item should be taken off the ‘cure
claim’ list.’’ The estimated cost of the work was listed
as $1.6 million. Similarly, item 12, which was related
to the refrigeration equipment, provided: ‘‘General
agreement that this item is grounded in the contract
([c]losing [s]ide [l]etter references to ‘[p]otential [ozone
depleting substances regulations] [v]iolations’), and
that there is likely disagreement as to the nature, scope
and extent of work required, but that a minimal amount
of work has been done to date. . . . [T]here is no agree-
ment on this point, and the parties desire to handle this
item by: (a) not deeming the work done to date as giving
rise to a ‘cure claim’ and (b) preserving the right of
DuPont to seek reimbursement for this item (including
as to any work performed as of the current date) from
[the defendant] under the terms of the contract, and
(c) preserving the right of [the defendant] to invoke its
rights under the contract as well. In other words, both
parties will reserve all rights they have under the con-
tract, including as applied to any work that may have
been performed as of the current date. On that basis,
this item should be taken off the ‘cure claim’ list.’’
(Emphasis added.) The estimated cost of the claim was
listed as $250,000.
Based on the foregoing, we agree with the trial court
and the defendant that DuPont did not strictly comply
with the APA’s notice provisions. DuPont did not send
notice to the defendant’s general counsel and Baker &
McKenzie, LLP, as required by § 11.4, and, in the various
correspondence between the parties, DuPont did not
reference under which sections of the APA it was seek-
ing indemnification, as required by § 8.8. As the trial
court noted, ‘‘at no point has the plaintiff been able to
demonstrate that the defendant was notified within the
applicable four year period that [DuPont] alleged a
breach of the provisions of § 3.16 or § 3.17 [of the APA].’’
Strict compliance, however, was not required because
the defendant was aware that DuPont was seeking
indemnification for the refrigeration and fire protection
systems, and the defendant does not claim that it was
prejudiced by the deviation. The various correspon-
dence took place over the course of several years, as
part of the ongoing business relationship between the
parties, and included descriptions of the deficiencies
with the equipment, as well as cost information then
available to DuPont. These claims were brought to the
defendant’s attention within four years of the closing
date.
The defendant contends that the trial court not only
concluded that DuPont failed to strictly comply with
the notice provision but also found that DuPont failed
to provide actual notice. The plaintiff argues that the
trial court applied the wrong legal standard and incor-
rectly concluded that DuPont did not provide actual
notice based on its failure to provide notice in accor-
dance with the terms of the APA. We agree with the
plaintiff.
Throughout the trial court’s memorandum of deci-
sion, the court equates actual notice with strict compli-
ance with the contractual notice provisions of the APA.
For example, the court stated that, ‘‘at no time after
the closing on January 31, 2008, was a notice provided
in accordance with § 11.4 . . . .’’ (Emphasis added.)
The trial court also rejected the plaintiff’s contention
that the claims list provided the defendant with actual
notice of the claims because the ‘‘document clearly
conveys that the defendant has determined that the
claim of [DuPont] is not valid, and, if [DuPont] [chooses]
to pursue [the claim, DuPont is] obligated to follow
the contract . . . .’’ Because strict compliance was not
required, DuPont did not have to strictly ‘‘follow the
contract’’ to provide notice. Additionally, if the defen-
dant determined that DuPont’s claims were not valid,
then it necessarily had actual notice of those claims.
Finally, the trial court concluded that ‘‘[t]he interplay
of these contracts, [the] side letter and site services
created a complicated process for the parties to
address. The list of items to be assessed was extensive.
This is precisely why the notice provisions, [which]
requir[e] the writing [of notice] . . . to specific individ-
uals and . . . that the writing outline the ‘factual basis
of the claim in reasonable detail,’ require strict compli-
ance with the notice criteria.’’ (Emphasis added.) As
such, to the extent that the trial court purports to con-
clude that DuPont failed to provide actual notice to
the defendant, it applied the wrong legal standard and
improperly limited actual notice to the technical notice
requirements of the APA.
For the reasons previously discussed, applying the
proper legal standard to the undisputed facts found by
the trial court, we conclude that there is ample evidence
in the record to establish that the defendant had actual
notice of the claims. See, e.g., State v. Donald, 325
Conn. 346, 354, 157 A.3d 1134 (2017) (‘‘[w]hen the facts
underlying a claim on appeal are not in dispute . . .
that claim is subject to de novo review’’ (internal quota-
tion marks omitted)); Tuxis-Ohr’s, Inc. v. Gherlone, 76
Conn. App. 34, 39, 818 A.2d 799 (In contract cases,
‘‘[t]he trial court’s legal conclusions are subject to ple-
nary 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 sup-
port in the facts set out in the memorandum of decision
. . . .’’ (Internal quotation marks omitted.)), cert.
denied, 264 Conn. 907, 826 A.2d 179 (2003).
Significantly, the defendant does not contend that it
was prejudiced in any way as a result of DuPont’s failure
to strictly comply with the APA’s notice provision. We
acknowledge that the trial court stated that, ‘‘[w]ithout
a written notice outlining the basis of the defendant’s
noncompliance, the defendant is prejudiced in that [it]
need[s] to determine [whether] the problem is some
undisclosed violation or simply the passage of time that
has affected the operation of the facility in accordance
with the regulations and permits.’’ The trial court, how-
ever, did not properly evaluate prejudice because it did
not determine that there was prejudice to the defendant
as required by New York law. Rather, the trial court
appears to conclude that there is prejudice to the evalu-
ation of the case. There is no question that, within four
years of the closing, the defendant was aware of the
various issues at the plant, including the problems with
the refrigeration and fire suppression systems, and that
the parties were reaching agreement on certain claims,
such as the national electric code claim. See footnote
13 of this opinion. Given the absence of any argument
by the defendant that it was prejudiced by the deviation,
DuPont was not required to strictly comply with the
notice provision.
Because New York law does not require strict compli-
ance with a notice provision in a commercial contract,
the trial court improperly rendered judgment in favor
of the defendant on the basis that DuPont failed to
strictly comply with the notice provision of the APA.14
See, e.g., Iskalo Electric Tower LLC v. Stantec Con-
sulting Services, Inc., supra, 79 App. Div. 3d 1607
(notice provided by facsimile only to defendant’s corpo-
rate counsel was effective even though contract
required notice to defendant’s chief executive officer);
Suarez v. Ingalls, supra, 282 App. Div. 2d 599–600
(notice was effective, even though it was not sent by
certified mail, as required by contract, because plaintiff
received actual notice); Huff Enterprises, Inc. v.
Triborough Bridge & Tunnel Authority, supra, 191
App. Div. 2d 317 (even in context of public contracts,
‘‘failure to give notice compliant in every technical
respect has been excused on occasion . . . when there
is an extensive record of timely written correspondence
between the contractor and agency addressing the dis-
puted subject matter’’ (citations omitted; internal quota-
tion marks omitted)); Whitmyer Bros., Inc. v. New York,
63 App. Div. 2d 103, 107, 406 N.Y.S.2d 617 (1978) (‘‘in
cases [in which] the [s]tate is apprised of the contrac-
tor’s claim that extra work beyond the contract was
being performed, the [s]tate has been precluded from
insisting [on] strict compliance with the notice provi-
sions’’ (internal quotation marks omitted)), aff’d, 47
N.Y.2d 960, 393 N.E.2d 1027, 419 N.Y.S.2d 954 (1979).
Given that the trial court required strict compliance
with the APA’s notice provision and failed to make any
other factual findings regarding the plaintiff’s breach of
contract claims, we decline to address the defendant’s
remaining contention that the plaintiff failed to prove
the other elements of its breach of contract claim. See,
e.g., St. Joseph’s Living Center, Inc. v. Windham, 290
Conn. 695, 766–67, 966 A.2d 188 (2009) (Schaller, J.,
concurring in part and dissenting in part) (when trial
court did not make factual findings, ‘‘the appropriate
remedy is to remand the case to the trial court for
further proceedings’’); see also Deroy v. Estate of
Baron, 136 Conn. App. 123, 127, 43 A.3d 759 (2012)
(‘‘[w]hen an incorrect legal standard is applied, the
appropriate remedy is to reverse the judgment of the
trial court and to remand the matter for further pro-
ceedings’’).
The judgment is reversed and the case is remanded
for further proceedings according to law.
In this opinion the other justices concurred.
* The listing of justices reflects their seniority status on this court as of
the date of oral argument.
This case originally was scheduled to be argued before a panel of this
court consisting of Chief Justice Robinson and Justices Palmer, McDonald,
D’Auria, Mullins, Kahn and Ecker. Although Chief Justice Robinson was not
present when the case was argued before the court, he has read the briefs
and appendices and listened to a recording of the oral argument prior to
participating in this decision.
** July 2, 2020, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
DuPont was the original plaintiff in this action. Shortly before trial, The
Chemours Company, FC, LLC, was substituted as the sole plaintiff. We
hereinafter refer to the substitute plaintiff as the plaintiff throughout this
opinion.
2
The ozone depleting substances regulations regulate the leakage rates
of ozone depleting substances, such as chemicals used in industrial process
refrigeration equipment. See 40 C.F.R. § 82.156 (2019).
3
Specifically, § 8.8 of the APA provides: ‘‘A claim for indemnification for
any matter not involving a third-party claim may be asserted by notice to
the party obligated to indemnify under this [a]greement. Such notice must
be provided by the [i]ndemnified [p]erson to the [i]ndemnifying [p]erson
promptly in writing describing the [l]oss incurred by the [i]ndemnified [p]er-
son, the amount or estimated amount thereof, if known or reasonably capa-
ble of estimation, and the method of computation of such [l]oss, all with
reasonable specificity and containing a reference to the provisions of this
[a]greement in respect of which such [l]oss will have occurred.’’
4
Specifically, in 2008, a site wide survey of the facility was completed,
addressing various compliance issues. A copy of the audit report was for-
warded to DiCristina. The report stated that the purpose was to ‘‘inform
[the defendant] of [a] preliminary estimate of expenses which DuPont plans
to incur between now and the end of 2009, which will be invoiced to [the
defendant] per the [APA] and the January 31, 2008 [s]ide [l]etter . . . .’’
(Internal quotation marks omitted.) In August, 2008, Kuhlmann and James
Scroggins, one of the defendant’s plant managers, also communicated about
the refrigeration units. In September, 2008, correspondence between DuPont
and the defendant outlined the scope of work required for the refrigeration
units. Throughout 2009 and 2010, the parties continued to exchange e-mails
and other correspondence about expenditures reimbursable to DuPont.
5
In an e-mail to DiCristina and Kuhlmann, Fullerton explained what the
term ‘‘cure claim’’ meant in the claims list he created: ‘‘I’ve tried to . . .
use the following criteria for putting something in the ‘cure claim’ category
for purposes of resolving this: assuming there is a tie-in to a reimbursement
obligation under the [APA], has work been done for which either (a) an
invoice has been generated and sent to [the defendant] or (b) the issuance
of an invoice to [the defendant] is a [pro forma] step at this point [because]
the amount that would appear on the invoice is [un]known? . . . [T]he fact
that something may not be in the ‘cure claim’ category does not mean it
never gets paid; it just means that the claim is handled per the [APA] terms
as if there had never been a [Chapter] 11 filing.’’ (Emphasis omitted.)
6
‘‘Forfeiture’’ is defined as ‘‘the denial of compensation that results when
the obligee loses [its] right to the agreed exchange after [it] has relied
substantially, as by preparation or performance on the expectation of that
exchange . . . .’’ (Citation omitted; internal quotation marks omitted.)
Oppenheimer & Co. v. Oppenheim, Appel, Dixon & Co., supra, 86 N.Y.2d
692 n.2, quoting 2 Restatement (Second), Contracts § 229, comment (b), p.
185 (1981).
7
Section 8.8, titled ‘‘PROCEDURE FOR INDEMNIFICATION—OTHER
CLAIMS,’’ also sets forth information to include in the notice. There is no
language in § 8.8 that suggests it is a condition precedent to indemnification,
and the defendant does not contend otherwise.
8
This court has similarly drawn a distinction between public and private
contracts and imposed special requirements for enforcing contracts involv-
ing public funds. See, e.g., State v. Lombardo Bros. Mason Contractors,
Inc., 307 Conn. 412, 440–41, 54 A.3d 1005 (2012) (state’s ability to sue for
breach of construction contract was not barred by contractual limitations
period); C.R. Klewin Northeast, LLC v. Fleming, 284 Conn. 250, 253, 932
A.2d 1053 (2007) (sovereign immunity barred enforcement of public works
contract that had not followed statutory procedure).
9
Trial courts in New York have similarly drawn such a distinction between
public and private commercial contracts when construing notice provisions.
See, e.g., J.C. Studios, LLC v. TeleNext Media, Inc., Docket No. 30606/10,
2011 WL 2651857, *7 (N.Y. Sup. July 6, 2011) (‘‘[s]trict compliance with
contract notice provisions is not required in commercial contracts when
the contracting party receives actual notice and suffers no detriment or
prejudice by the deviation’’) (decision without published opinion, 32 Misc.
3d 1211 (A), 932 N.Y.S.2d 760 (2011)).
10
We acknowledge that at least two New York intermediate appellate
court decisions have required strict compliance with notice provisions in a
private contract. See, e.g., AXA Mediterranean Holding, S.P. v. ING Ins.
International, B.V., 106 App. Div. 3d 457, 457, 965 N.Y.S.2d 89 (2013) (con-
tract provided claims for breach that expire after one year unless plaintiff
provides defendant notice in accordance with notice provision of contract);
Morelli Masons, Inc. v. Peter Scalamandre & Sons, Inc., 294 App. Div. 2d
113, 113, 742 N.Y.S.2d 6 (2002) (although notice provision did not contain
traditional conditional language, contract ‘‘specifically provided that the
failure to comply with such provision would constitute a waiver of the
subcontractor’s claim for damages’’). At least one of these cases, however,
turned on the fact that the notice provision was an express condition prece-
dent to indemnification. See Morelli Masons, Inc. v. Peter Scalamandre &
Sons, Inc., supra, 113. We decline to adopt the reasoning in these cases given
that the majority of the New York intermediate appellate court decisions
this court has reviewed did not require strict compliance in commercial con-
tracts.
11
Following oral argument, the defendant filed a notice of supplemental
authorities pursuant to Practice Book § 67-10. The defendant cites two recent
cases from the Second Circuit and the United States District Court for the
Southern District of New York that it claims are relevant to the parties’
contrary positions on the appropriate sources of New York law. During oral
argument, the plaintiff argued that, in the absence of any recent New York
Court of Appeals decision, this court should follow the Second Circuit’s
summary of New York law in Schweizer. The defendant contends that this
court should follow the decisions of New York intermediate appellate courts.
The supplemental authorities recognize that, in the absence of a Court of
Appeals decision, courts rely on, among other things, New York intermediate
appellate court cases. See Ray v. Ray, 799 Fed. Appx. 29, 30 (2d Cir. 2020);
Fica Frio, Ltd. v. Seinfeld, 434 F. Supp. 3d 80, 88 (S.D.N.Y. 2020). The
plaintiff responded and argued that the defendant’s letter was procedurally
improper and that the supplemental authorities do not undermine Schweizer.
The Second Circuit’s statement of New York law in Schweizer is consistent
with many of the decisions of the New York intermediate appellate courts.
Moreover, the supplemental cases do not stand for the proposition that the
court can look only to intermediate appellate court authority. See, e.g., Fica
Frio, Ltd. v. Seinfeld, supra, 87 (‘‘[b]ecause the New York Court of Appeals
has not explicitly addressed this question, this [c]ourt must review available
sources—including . . . state and federal case law—to predict how that
court would resolve the issue’’).
12
This conclusion is consistent with the decisions of New York’s intermedi-
ate appellate courts, which hold that ‘‘a contract should not be interpreted
to produce an absurd result, one that is commercially unreasonable, or one
that is contrary to the intent of the parties . . . .’’ (Citation omitted.) Cole
v. Macklowe, 99 App. Div. 3d 595, 596, 953 N.Y.S.2d 21 (2012). Moreover, if
a contract interpretation ‘‘depends on formalistic literalism . . . ignores
common sense, and could lead to absurd results that would leave [another
portion of the contract] without meaning’’; (citation omitted; internal quota-
tion marks omitted) Greenwich Capital Financial Products, Inc. v. Negrin,
74 App. Div. 3d 413, 415, 903 N.Y.S.2d 346 (2010); the court may reject
such a reading and adopt a construction that ‘‘produces a commercially
reasonable and practical result . . . .’’ (Citation omitted.) Id. Here, the pur-
pose of the representations and warranties and the side letter was to allow
DuPont to submit claims for indemnification, given its limited ability to
inspect the plant. It would be unreasonable to prevent the plaintiff from
recovering despite the defendant’s actual knowledge of the claims when it
is not apparent from the APA that notice was an express condition precedent
to indemnification and the defendant does not claim any prejudice from
DuPont’s failure to strictly comply with the notice provision.
13
In addition to the refrigeration and fire protection claims, the claims list
included claims for, among other things, ‘‘[national electric code] upgrades,
pharma,’’ for which the proposed resolution was: ‘‘General agreement that
the [national electric code] items . . . should all be viewed as grounded
in the contract (Closing Side Letter), and in principle considered part of a
‘cure claim’ . . . . [T]he parties will use their best effort to come up with
a ‘cure’ amount for the [national electric code] work to date.’’ (Emphasis
added.) Thereafter, the defendant paid DuPont the amounts due under the
APA and the side letter for the national electric code claims.
14
Given our conclusion that the trial court improperly required strict
compliance with the APA’s notice provision, we need not address the plain-
tiff’s contention that the defendant’s notice claims are barred by estoppel
and waiver.