United Concrete Products, Inc. v. NJR Construction, LLC

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UNITED CONCRETE PRODUCTS, INC. v. NJR
CONSTRUCTION, LLC, ET AL.
(AC 42244)
Moll, Devlin and Flynn, Js.
Syllabus
The plaintiff subcontractor sought to recover damages for, inter alia, the
breach of a contract it had entered into with the defendant N Co., the
general contractor on a bridge construction project, which required the
plaintiff to provide various concrete elements, including beams that
would form the deck of the bridge. N Co. had contracted with the
Department of Transportation to replace a bridge on Route 74 by August
31, 2016. To complete the work, N Co. was to detour traffic for no longer
than eight weeks. The contract further specified that N Co. could earn
incentive payments for each day Route 74 was reopened prior to the
expiration of the eight week period. N Co. triggered the eight week
period when it closed the bridge on June 13, 2016, which thereby required
that Route 74 be reopened by August 8, 2016. To receive the maximum
incentive payment, N Co. had to reopen Route 74 on or before July 19,
2016. Pursuant to statute (§ 49-41), N Co., as principal, also obtained
from the defendant A Co., as surety, a bond that secured payment for
labor and materials on the project, and made N Co. and A Co. jointly
and severally liable for any unpaid balance on the subcontract. The
plaintiff was required under the subcontract to deliver the concrete
elements to N Co. at the jobsite on or before June 7, 2016, and N Co.
was to pay the plaintiff the contract price. Relying on information the
plaintiff provided about its production of the beams, N Co. scheduled
delivery of the beams for June 29, 2016. On June 27, 2016, the plaintiff
informed N Co. that the beams would not be ready for delivery as
scheduled. The beams were thereafter delivered on July 26, 2016, and
the project was completed on August 31, 2016. N Co. thereafter remitted
partial payment to the plaintiff under the subcontract and refused to
pay the remaining balance. In its complaint, the plaintiff alleged that N
Co. breached the subcontract by failing to pay the remaining balance,
and sought attorney’s fees and interest pursuant to statute (§ 49-41a
(c)). The plaintiff also sought payment from A Co. under the bond
pursuant to statute (§ 49-42). N Co. filed a two count counterclaim,
alleging that the plaintiff breached the subcontract as a result of the
delayed delivery of the beams and engaged in unfair trade practices in
violation of the Connecticut Unfair Trade Practices Act (§ 42-110a et
seq.). The trial court rendered judgment for the plaintiff on its breach
of contract claim against N Co. The court found that the plaintiff was
entitled to recover the contract amount because N Co. had ultimately
accepted the beams. The court denied the plaintiff’s claim under § 49-
41a (c) for attorney’s fees and interest from N Co., as well as its claim
against A Co. for payment on the bond under § 49-42. The court reasoned
that those claims were barred because the plaintiff materially breached
the subcontract by virtue of its delayed delivery of the beams. The court
also found that N Co. was entitled to damages and attorney’s fees on
its breach of contract counterclaim. It further determined that the plain-
tiff had not proven that N Co. failed to mitigate its damages. The court
also determined that the plaintiff’s false and misleading statements with
respect to the readiness of the beams and the timing of their delivery
constituted a violation of CUTPA. On the plaintiff’s appeal to this
court, held:
1. The plaintiff could not prevail on its claim that the trial court’s use of
the June 7, 2016 delivery date to calculate N Co.’s damages on its
breach of contract counterclaim was clearly erroneous; under the court’s
timeline, using June 7, 2016, as a start date, and combined with a thirty-
six day period of completion pursuant to a nonaccelerated work pace,
when construed as a worst case scenario, N Co. would have earned the
maximum incentive payment by reopening Route 74 on or before July
19, 2016, as the court determined that N Co. was on track to earn the
maximum incentive payment when it scheduled delivery on June 29,
2016, and was working at an accelerated pace at that time; moreover,
the court determined, even if N Co. had worked at a nonaccelerated pace
and had endured delays in rescheduling subcontractors and equipment
rental, it would have reopened Route 74 by July 13, 2016, at the latest, had
the beams been delivered on time; furthermore, as the beams necessarily
were to be ready for delivery on or before June 7, 2016, to coincide
with commencement of the road closure, the June 29, 2016 scheduled
delivery date did not alter the plaintiff’s contractual obligation to have
the beams ready and available by June 7.
2. Contrary to the plaintiff’s claim that the trial court improperly declined
to find that N Co. failed to mitigate its damages by failing to work on
the project at an accelerated pace once the beams were delivered,
the record supported the court’s finding that N Co. acted reasonably
following delivery of the beams; N Co. already had lost the opportunity
to earn any incentive payment and could not recover the expense of
accelerating the work, it had lost its subcontractors in terms of when
they would be able to come back to the project, and the acceleration
costs would have caused N Co. to sustain significant losses that may
have been passed on to the plaintiff.
3. The trial court erred in rendering judgment for A Co. on the plaintiff’s
payment bond claim, which was based on the court’s determination that
the plaintiff could not prevail on its claim for interest and attorney’s
fees under § 49-41a (c): no language in the payment bond or in §§ 49-
41a or 49-42 prevented A Co. from being held jointly and severally liable
for the amount that N Co. was liable, even though the court did not
award the plaintiff interest and attorney’s fees pursuant to § 49-41a (c)
against N Co., the court, in analyzing the plaintiff’s claims against both
defendants under § 49-41a while making no mention of § 49-42, effec-
tively made A Co.’s liability under § 49-42 dependent on the plaintiff’s
succeeding against N Co. under § 49-41a; moreover, although the express
terms of the payment bond made A Co. jointly and severally liable with
N Co., the court concluded that N Co. was liable for the unpaid contract
price, and, in the absence of N Co.’s having made payment for all
materials and labor used or employed, A Co.’s obligation remained in
full force and effect; accordingly, the judgment was reversed as to the
plaintiff’s payment bond claim, and the case was remanded for a new
trial on that claim.
4. This court declined to address the plaintiff’s claim, which was raised for
the first time on appeal, that the trial court erred by failing to award it
attorney’s fees and interest pursuant to § 49-41a (c) on the ground that
it did not substantially perform under the subcontract; the plaintiff failed
to raise at trial its assertion that, because the court failed to recognize
that N Co. had implicitly waived the subcontract’s time is of the essence
provision, the plaintiff was not contractually required to deliver the
beams by June 7, 2016, and, thus, substantially performed by delivering
the beams on July 26, 2016.
5. The plaintiff’s claim that the trial court incorrectly concluded that its
actions constituted unfair trade practices was unavailing: contrary to
the plaintiff’s contention that it merely breached the subcontract, and
that there was no evidence of aggravating circumstances or that its
statements were made with ill intent, the record supported the court’s
factual findings that the plaintiff’s unfounded assurances that beam
fabrication was progressing on schedule, and, later, that the beams were
fabricated and available so that a delivery date could be scheduled,
constituted prevarications that were clearly immoral, unethical, and/or
unscrupulous; moreover, the plaintiff’s false information deterred N Co.
from taking remedial action and caused it to incur additional expense
by leading it into making unnecessary and/or premature plans and expen-
ditures for labor allocation, equipment procurement and an inutile con-
struction schedule.
6. The trial court’s award of attorney’s fees and expenses to N Co. was not
erroneous in light of the court’s finding that the plaintiff failed to supply
the beams with promptness and diligence, the subcontract having
expressly stated that N Co. had the right to recover attorney’s fees and
other expenses it incurred as a result of that failure.
Argued January 15, 2020—officially released September 21, 2021
Procedural History
Action to recover damages for, inter alia, the named
defendant’s alleged breach of a construction contract,
and for other relief, brought to the Superior Court in the
judicial district of Tolland, where the named defendant
filed a counterclaim; thereafter, the case was tried to
the court, Sferrazza, J.; subsequently, the plaintiff with-
drew the complaint in part as to the defendant Aegis
Security Insurance Company; judgment in part for the
plaintiff on the complaint and for the named defendant
on the counterclaim, from which the plaintiff appealed
to this court. Reversed in part; further proceedings.
Eric M. Grant, with whom, on the brief, was Melissa
A. Scozzafava, for the appellant (plaintiff).
Robert J. O’Brien, with whom was Andrea L. Gomes,
for the appellees (defendants).
Opinion
MOLL, J. This appeal arises out of the delayed con-
struction of a bridge over the Hockanum River on Route
74 in Vernon. The plaintiff subcontractor, United Con-
crete 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) con-
cluded that the plaintiff’s conduct violated the Connecti-
cut Unfair Trade Practices Act (CUTPA), General Stat-
utes § 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 (con-
tract).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 pre-
stressed deck beams. The beams measured approxi-
mately 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 base-
line 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 suffi-
ciently 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 produc-
tion, 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 representa-
tive, 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, respec-
tively, 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 pro-
posed schedule. NJR remitted $66,074.75 under the sub-
contract 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 dam-
ages.
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 deci-
sion, 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 per-
form its contractual obligations to NJR and, conse-
quently, materially breached the subcontract by virtue
of its delayed delivery of the beams.11 Although a mate-
rial 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, respec-
tively, the court concluded that the plaintiff’s material
breach barred its recovery under that statutory frame-
work.
The court next addressed NJR’s counterclaim. First,
in light of the damages caused by the plaintiff’s breach
in failing to deliver the beams by June 7, 2016, the
court concluded that NJR was entitled to recover on its
breach of contract count in the amount of $138,900.44,13
plus attorney’s fees pursuant to the subcontract to be
determined at a later date by agreement of the parties.14
The court also concluded that the plaintiff had not
proven that NJR failed to mitigate its damages because,
after it was determined that NJR could not realize the
full potential of the incentive payments, NJR was
required only to employ reasonable efforts to mitigate
its damages, which it had done. Second, the court con-
cluded that Tenedine’s and Borkowski’s false and mis-
leading statements with respect to the readiness of the
beams and the timing of their delivery constituted a
violation of CUTPA, whereupon the court awarded NJR
compensatory damages in the amount of $14,700, which
it considered to be reflected in its award on the breach
of contract count of NJR’s counterclaim. The court
declined to award additional attorney’s fees under
CUTPA in light of its award of fees pursuant to the
subcontract. This appeal followed. Additional facts and
procedural history will be set forth as necessary.
Before addressing the merits of the plaintiff’s claims,
we note that several claims involve challenges to the
trial court’s factual findings. Therefore, we set forth the
standard of review generally applicable to our review
of those types of challenges. ‘‘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 mis-
take has been committed. . . . Because it is the trial
court’s function to weigh the evidence and determine
credibility, we give great deference to its findings. . . .
In reviewing factual findings, [w]e do not examine the
record to determine whether the [court] could have
reached a conclusion other than the one reached. . . .
Instead, we make every reasonable presumption . . .
in favor of the trial court’s ruling.’’ (Internal quotation
marks omitted.) Connecticut Light & Power Co. v. Proc-
tor, 324 Conn. 245, 258–59, 152 A.3d 470 (2016).
I
The plaintiff’s first claim, which relates to the breach
of contract count of NJR’s counterclaim, presents a
challenge to the trial court’s factual finding that the
plaintiff’s failure to deliver the beams to NJR by June
7, 2016, caused a delay in the completion of the project
until August 31, 2016. Specifically, the plaintiff contends
that the court’s use of the date June 7, 2016—rather
than June 29, 2016 (the date the beams were actually
scheduled for delivery)—to measure damages was
clearly erroneous and overinflated NJR’s damages
award on count one of its counterclaim by including
the maximum incentive payment of $60,000. In
response, NJR contends that the use of June 7, 2016,
was not clearly erroneous because the subcontract
specified a delivery date of June 7, 2016, and, in the
alternative, it argues that any error was harmless
because the evidence demonstrated that, had the plain-
tiff delivered the beams on June 29, 2016, NJR would
have been able to reopen the road by July 19, 2016, in
order to earn the maximum incentive payment. For the
reasons that follow, we conclude that the court’s use
of June 7, 2016, inasmuch as it underpins the court’s
damages calculation, was not clearly erroneous.
The following additional factual findings are relevant
to our resolution of this claim. At the outset of its
memorandum of decision, the court emphasized the
time sensitive nature of the project, referring to the 161
day completion requirement and the time restricting
provision of the contract regarding the road closure.
The court observed that, with respect to the incentive
provision of the contract, NJR was ‘‘[o]bviously’’ eager
to earn the maximum amount. NJR devised a fast-track
work schedule to achieve this goal—a goal of which
the plaintiff was distinctly aware. The court recognized
that the subcontract specified a delivery date of no later
than June 7, 2016. NJR ultimately scheduled delivery
of the beams for June 29, 2016. With that delivery date
scheduled, NJR anticipated earning the maximum
$60,000 incentive payment and reopening Route 74
‘‘well ahead’’ of the August 8, 2016 deadline. The plaintiff
did not deliver the beams until July 26, 2016, and NJR
completed the work on August 31, 2016.
The court found that, once the delay in delivery from
June 7, 2016, to July 26, 2016, occurred, NJR reasonably
abandoned its costly fast-track approach because it
would no longer be able to earn any incentive payment.15
In determining damages, the court explained that,
‘‘[e]ven working at the nonaccelerated pace and endur-
ing delays by having to reschedule subcontractors and
equipment rental, NJR would have reopened Route 74
by July 13, 2016, at the latest, had [the plaintiff] delivered
the beams on time.’’ That time frame was calculated
by utilizing June 7, 2016, as a start date and adding
thirty-six days, representing the actual time of comple-
tion once the beams were delivered.
The plaintiff argues that the court’s reliance on June
7, 2016, in its calculation of damages was clearly errone-
ous because NJR scheduled the beams’ actual delivery
for June 29, 2016, which would necessitate a finding
that Route 74 would not reopen until August 4, 2016
(i.e., thirty-six days later)—a date well after July 19,
2016, the date by which NJR would have had to reopen
Route 74 in order to earn the full incentive payment.
We disagree.
Applying the principles articulated previously in this
opinion governing our review of this claim, we highlight
the following facts in evidence. NJR and the plaintiff
signed the subcontract on February 3, 2016. Paragraph
4 thereof, titled ‘‘TIME,’’ provides: ‘‘Supplier shall imme-
diately begin work to insure that delivery of the Prod-
ucts shall be made in accordance with the requirements
of the Schedule. Time is of the essence of this Purchase
Order, and it is essential that the Products be provided
to Purchaser in a manner and in accordance with the
Schedule so as to permit Purchaser to complete con-
struction of the Project in the fastest and most efficient
manner possible. The dates indicated in Exhibit A may
be modified only in accordance with the written consent
of the Purchaser.’’ This provision expressly referred
to the delivery schedule set forth in exhibit A, which
provided in part that the department ‘‘has scheduled
the closure of Route 74 for the period from June 7, 2016
to August 26, 2016. Accordingly, Supplier’s products are
to be delivered to the jobsite on or before June 7, 2016.’’
Construing the subcontract’s provisions together, we
conclude that the beams necessarily were to be ready
for delivery on or before June 7, 2016, to coincide specif-
ically with the commencement of the scheduled closure
of Route 74, which the subcontract indicated was sched-
uled by the department for the period June 7, 2016, to
August 26, 2016. That NJR ultimately requested delivery
of the beams for June 29, 2016, instead of June 7, 2016,
did not alter the plaintiff’s contractual obligation to
have the beams ready and available for NJR by June 7,
2016, ergo any date requested after June 7, 2016. For that
reason, the plaintiff improperly focuses its argument
on the date NJR ultimately requested for the actual
delivery of the beams, rather than the language of the
subcontract, the intentions and expectations of the par-
ties, and the practical realities of the project that led
to the scheduling of the June 29, 2016 delivery date.
The trial court utilized June 7, 2016, as the starting date
to conclude that, ‘‘[e]ven working at the nonaccelerated
pace and enduring delays by having to reschedule sub-
contractors and equipment rental, NJR would have
reopened Route 74 by July 13, 2016, at the latest, had
[the plaintiff] delivered the beams on time.’’ (Emphasis
added.)
On the basis of our careful review of the evidence,
we construe the court’s timeline using June 7, 2016, as
a start date, combined with a thirty-six day period of
completion pursuant to a nonaccelerated working pace,
as an ostensible worst case scenario.16 Under that sce-
nario, NJR would have earned the maximum incentive
payment by reopening Route 74 on or before July 19,
2016. Because the court also determined that NJR was
on track to earn the maximum incentive payment when
it scheduled the beams to be delivered on June 29, 2016,
and that NJR was working at an accelerated pace at
that time, we cannot conclude that the court’s use of
June 7, 2016, to support its damages calculation was
clearly erroneous.17
II
The plaintiff next claims that the court improperly
declined to find that NJR failed to mitigate its damages
by failing to work on the project at an accelerated pace
once the beams were actually delivered on July 26,
2016.18 We are not persuaded.
‘‘We have often said in the contracts and torts con-
texts that the party receiving a damage award has a
duty to make reasonable efforts to mitigate damages.
. . . What constitutes a reasonable effort under the
circumstances of a particular case is a question of fact
for the trier. . . . Questions of fact are subject to the
clearly erroneous standard of review. . . . To claim
successfully that the plaintiff [or counterclaim plaintiff]
failed to mitigate damages, the defendant [or counter-
claim defendant] must show that the injured party failed
to take reasonable action to lessen the damages; that
the damages were in fact enhanced by such failure; and
that the damages which could have been avoided can
be measured with reasonable certainty. . . . Further-
more, [t]he duty to mitigate damages does not require
a party to sacrifice a substantial right of his own in
order to minimize a loss.’’ (Citations omitted; internal
quotation marks omitted.) Sun Val, LLC v. Commis-
sioner of Transportation, 330 Conn. 316, 334, 193 A.3d
1192 (2018). The burden to prove the failure to mitigate
damages rests with the breaching party. Webster Bank,
N.A. v. GFI Groton, LLC, 157 Conn. App. 409, 424, 116
A.3d 376 (2015).
The trial court found the following additional facts.
Once the plaintiff delivered the beams on July 26, 2016,
NJR abandoned its fast-track approach to the project
because it was no longer able to realize any incentive
payment. The court stated that it ‘‘[did] not fault NJR
for its decision to adopt a nonaccelerated work sched-
ule’’ and recognized that NJR had been investing addi-
tional resources to maintain the accelerated work
schedule. Applying the principles regarding the duty to
mitigate damages, the court found that NJR slowed its
pace of work when it determined that it could not realize
any incentive payment as a result of the plaintiff’s
delayed delivery of the beams and that NJR thereafter
‘‘employed a more typical effort to complete the proj-
ect.’’ The court concluded that NJR’s efforts to complete
the project were reasonable, NJR was not required to
use extraordinary and more expensive methods follow-
ing the plaintiff’s belated delivery of the beams, and,
as a result, NJR had not failed to mitigate its damages.
In support of its claim, the plaintiff argues that NJR
should have accelerated its work following the delivery
of the beams in order to minimize the disincentive pen-
alty that it ultimately incurred. This argument is unavail-
ing. As previously explained, a party need only employ
reasonable efforts to mitigate its damages, and, on
appellate review, we will disturb the trial court’s find-
ings to that end only if they were clearly erroneous.
Sun Val, LLC v. Commissioner of Transportation,
supra, 330 Conn. 334. The record provides ample sup-
port for the court’s finding that NJR acted reasonably
following delivery of the beams. For instance, Nicholas
Mancini, the owner of NJR, testified that accelerating
the work between July 26, 2016 (when the plaintiff
delivered the beams) and August 19, 2016 (when the
department requested that NJR reaccelerate its work)
would have been akin to ‘‘throw[ing] good money after
bad’’ because NJR already had lost the opportunity to
earn any incentive payment. Additionally, Mancini testi-
fied that NJR could not recover the expense of acceler-
ating the work and that it ‘‘had lost [its] subcontractors
as to when they would be able to come back to the
project.’’ Giguiere also explained that the acceleration
costs would have caused NJR to sustain significant
losses—losses that may have been passed on to the
plaintiff. Furthermore, NJR sent a letter to the depart-
ment requesting relief from the entire disincentive pen-
alty in the amount of $66,000, a request that was granted
in part. See footnote 8 of this opinion.
In sum, because there was evidence in the record to
support the trial court’s finding that NJR acted reason-
ably with respect to the completion of the project fol-
lowing the delayed delivery of the beams, the plaintiff’s
claim fails.
III
The plaintiff’s third claim is that the court improperly
rendered judgment in favor of Aegis on the plaintiff’s
payment bond claim pursuant to the Little Miller Act,
specifically, § 49-42 (i.e., count three of the complaint),
solely on the basis that the plaintiff could not prevail
on its claim for interest and attorney’s fees under § 49-
41a (c). We agree.
The following additional facts and procedural history
are relevant to our resolution of this claim. Count three
of the plaintiff’s complaint alleged in part that, on or
about December 14, 2015, Aegis executed and delivered
a payment bond on behalf of NJR, as principal, to secure
payment for labor and materials supplied to the project.
The payment bond provided in relevant part: ‘‘That NJR
Construction, LLC . . . as Principal, and Aegis Secu-
rity Insurance Company . . . as Surety, are firmly
bound and held unto the State of Connecticut as Obli-
gee, in the sum of One Million Nine Hundred Eighty
Two Thousand One Hundred Eighty One Dollars and
No Cents ($1,982,181.00) for the payment whereof said
Principal binds itself, its successors and assigns, him-
self, his heirs, executors, administrators and assigns,
and said Surety binds itself, its successors and assigns,
jointly and severally firmly by these presents. . . .
NOW, THEREFORE, if [NJR] shall make payment for
all materials and labor used or employed in the perfor-
mance of such contract, to the extent, and in the manner
required by the contract or by the General Statutes of
Connecticut, as revised, then this obligation shall be
null and void, otherwise it shall remain and be in full
force and effect.’’ The plaintiff further alleged that, on
or about September 27, 2016, it put Aegis on notice of
its claim against the payment bond in the amount of
$252,020.60, and that, since such notice, it received a
partial payment from NJR, leaving an unpaid balance
of $179,500. The plaintiff alleged that Aegis was liable
to it, pursuant to § 49-42, for that amount, plus interest,
costs, and attorney’s fees. It is undisputed that Aegis
issued a payment bond in favor of NJR, as principal,
in connection with the project and that the plaintiff
complied with the notice requirements of § 49-42 with
regard to its claim against the payment bond.
In its memorandum of decision, the trial court ana-
lyzed the plaintiff’s Little Miller Act claims against NJR
in count two (pursuant to § 49-41a) and against Aegis
in count three (pursuant to § 49-42) together, making
no mention of § 49-42 and focusing only on the rights
and obligations set forth in § 49-41a. The court con-
cluded that, because the plaintiff had materially
breached the contract with NJR, it did not ‘‘substantially
perform’’ its work pursuant to § 49-41a (c), and ‘‘[c]on-
sequently, [the plaintiff] cannot prevail on the second
and third counts of its complaint . . . .’’ (Emphasis
added.) According to the court, despite the fact that
the plaintiff could recover from NJR under the UCC as
a result of NJR’s acceptance of the beams, the plaintiff
could not recover from Aegis against the payment bond
because it failed to substantially perform under the
contract.
Our resolution of the plaintiff’s claim requires us to
interpret the relevant provisions of the Little Miller Act,
specifically, §§ 49-41a and 49-42. Accordingly, we exer-
cise plenary review. See, e.g., Trinity Christian School
v. Commission on Human Rights & Opportunities,
329 Conn. 684, 694, 189 A.3d 79 (2018) (questions of
statutory interpretation command plenary review).
‘‘The process of statutory interpretation involves the
determination of the meaning of the statutory language
as applied to the facts of the case, including the question
of whether the language does so apply. . . . When con-
struing a statute, [o]ur fundamental objective is to
ascertain and give effect to the apparent intent of the
legislature. . . . In other words, we seek to determine,
in a reasoned manner, the meaning of the statutory
language as applied to the facts of [the] case, including
the question of whether the language actually does
apply. . . . In seeking to determine that meaning, Gen-
eral Statutes § 1-2z directs us first to consider the text
of the statute itself and its relationship to other statutes.
If, after examining such text and considering such rela-
tionship, the meaning of such text is plain and unambig-
uous and does not yield absurd or unworkable results,
extratextual evidence of the meaning of the statute shall
not be considered.’’ (Internal quotation marks omitted.)
Boisvert v. Gavis, 332 Conn. 115, 141–42, 210 A.3d 1(2019).
In addition, because the payment bond executed by
Aegis is a contract, the following principles of contract
interpretation apply to our interpretation of the bond.
‘‘The standard of review for the interpretation of a con-
tract is well established. Although ordinarily the ques-
tion of contract interpretation, being a question of the
parties’ intent, is a question of fact . . . [when] there
is definitive contract language, the determination of
what the parties intended by their . . . commitments
is a question of law [over which our review is plenary].
. . . If the language of [a] contract is susceptible to
more than one reasonable interpretation, [however] the
contract is ambiguous. . . . Ordinarily, such ambiguity
requires the use of extrinsic evidence by a trial court
to determine the intent of the parties, and, because
such a determination is factual, it is subject to reversal
on appeal only if it is clearly erroneous.’’ (Internal quota-
tion marks omitted.) Joseph General Contracting, Inc.
v. Couto, 317 Conn. 565, 575, 119 A.3d 570 (2015). Fur-
ther, ‘‘[w]here a statutory bond is given, the provisions
of the statute will be read into the bond. . . . If the
law has made the instrument necessary, the parties are
deemed to have had the law in contemplation when
the contract was executed.’’ (Citations omitted; internal
quotation marks omitted.) New Britain Lumber Co. v.
American Surety Co., 113 Conn. 1, 5–6, 154 A. 147 (1931).
‘‘It is a fundamental precept of suretyship law that
the liability of the surety is conditioned on accrual of
some obligation on the part of the principal; the surety
will not be liable on the surety contract if the principal
has not incurred liability on the primary contract. . . .
In the absence of limitations or restrictions contained
in the (surety) contract, the liability of the surety is
coextensive with that of the principal. . . . The sure-
ty’s promise is in the same terms as that of the principal
and the consequent duty similar and primary . . . .’’
(Citations omitted; internal quotation marks omitted.)
Star Contracting Corp. v. Manway Construction Co.,
32 Conn. Supp. 64, 66, 337 A.2d 669 (1973). Stated differ-
ently, a surety stands in the principal’s shoes and may
assert defenses that are available to the principal. Board
of Supervisors v. Southern Cross Coal Corp., 238 Va.
91, 96, 380 S.E.2d 636 (1989).
In general terms, the Little Miller Act, set forth in
General Statutes §§ 49-41 through 49-43, ‘‘provide[s] for
the furnishing of bonds guaranteeing payment (payment
bonds) on public works construction projects, [and
was] enacted to protect workers and materials suppliers
on public works projects who cannot avail themselves
of otherwise available remedies such as mechanic’s
liens. . . . Section 49-41 requires that the general con-
tractor provide a payment bond with surety to the state
or governmental subdivision, which bond shall guaran-
tee payment to those who supply labor and materials
on a public works project. . . . Section 49-42 provides
that any person who has performed work or supplied
materials on a public works project, but who has not
received full payment for such materials or work, may
enforce his right to payment under the payment bond.
‘‘This legislation, known as the Little Miller Act (act),
was patterned after federal legislation popularly known
as the Miller Act; [40 U.S.C. § 3131 et seq., formerly]
40 U.S.C. §§ 270a through 270d; and, therefore, [our
Supreme Court has] regularly consulted federal prece-
dents to determine the proper scope of our statute. . . .
The federal precedents, like our own, counsel liberal
construction of statutory requirements other than those
relating to specific time constraints. . . . As the United
States Supreme Court has stated, the federal Miller Act
is highly remedial in nature . . . [and] entitled to a
liberal construction and application in order properly
to effectuate the [legislative] intent to protect those
whose labor and materials go into public projects.’’
(Citations omitted; footnotes omitted; internal quota-
tion marks omitted.) Blakeslee Arpaia Chapman, Inc.
v. EI Constructors, Inc., 239 Conn. 708, 714–16, 687
A.2d 506 (1997). ‘‘The very purpose of a surety bond
under the Miller Act, and indeed, generally, is to ensure
that claimants who perform work are paid for the work
in the event and even if the principal does not pay.’’
United States on Behalf of Kitchens To Go v. John C.
Grimberg Co., 283 F. Supp. 3d 476, 483 (E.D. Va. 2017).
Section 49-41 (a) provides in relevant part: ‘‘Each
contract exceeding one hundred thousand dollars in
amount for the construction . . . of any public build-
ing or public work of the state . . . shall include a
provision that the person to perform the contract shall
furnish to the state . . . on or before the award date,
a bond in the amount of the contract which shall be
binding upon the award of the contract to that person,
with a surety or sureties satisfactory to the officer
awarding the contract, for the protection of persons
supplying labor or materials in the prosecution of the
work provided for in the contract for the use of each
such person . . . .’’ (Emphasis added.)
Section 49-41a relates to the enforcement of payment
obligations pursuant to a public works contract by a
general contractor to a subcontractor and by a subcon-
tractor to its subcontractors. Subsection (a) thereof
provides in relevant part: ‘‘When any public work is
awarded by a contract for which a payment bond is
required by section 49-41, the contract for the public
work shall contain the following provisions: (1) A
requirement that the general contractor, within thirty
days after payment to the contractor by the state or a
municipality, pay any amounts due any subcontractor,
whether for labor performed or materials furnished,
when the labor or materials have been included in a
requisition submitted by the contractor and paid by the
state or a municipality . . . .’’
Section 49-41a (c), on which the trial court relied in
its disposition of the plaintiff’s § 49-42 claim against
Aegis, provides in relevant part: ‘‘If payment is not made
by the general contractor . . . in accordance with such
requirements, the subcontractor shall set forth his claim
against the general contractor . . . through notice by
registered or certified mail. Ten days after the receipt
of that notice, the general contractor shall be liable to
its subcontractor . . . for interest on the amount due
and owing at the rate of one per cent per month. In
addition, the general contractor, upon written demand
of its subcontractor . . . shall be required to place
funds in the amount of the claim, plus interest of one
per cent, in an interest-bearing escrow account in a
bank in this state, provided the general contractor . . .
may refuse to place the funds in escrow on the grounds
that the subcontractor has not substantially performed
the work according to the terms of his or its employ-
ment. In the event that such general contractor . . .
refuses to place such funds in escrow, and the party
making a claim against it under this section is found
to have substantially performed its work in accordance
with the terms of its employment in any arbitration
or litigation to determine the validity of such claim,
then such general contractor . . . shall pay the attor-
ney’s fees of such party.’’ (Emphasis added.)
We pause at this juncture to emphasize that the term
‘‘substantially performed’’ appears in two places in § 49-
41a (c). First, the term appears in connection with a
general contractor’s (or subcontractor’s) ability to
‘‘refuse to place the funds in escrow on the grounds
that the subcontractor [making the claim] has not sub-
stantially performed the work according to the terms
of his or its employment.’’ (Emphasis added.) Second,
the term appears in connection with a subcontractor’s
ability to recover attorney’s fees under § 49-41a (c),
namely, when the principal refuses to place such funds
in escrow and the subcontractor ‘‘is found to have sub-
stantially performed its work in accordance with the
terms of its employment in any arbitration or litigation
to determine the validity of such claim . . . .’’ (Empha-
sis added.) There is no language in § 49-41a (c) or § 49-
42 to suggest that either of these provisions was
intended to be engrafted into § 49-42.
Section 49-42 (a), pursuant to which the plaintiff
brought its claim against Aegis, provides in relevant
part: ‘‘(1) Any person who performed work or supplied
materials for which a requisition was submitted to . . .
the awarding authority and who does not receive full
payment for such work or materials within sixty days
of the applicable payment date provided for in subsec-
tion (a) of section 49-41a . . . may enforce such per-
son’s right to payment under the bond by serving a
notice of claim on the surety that issued the bond and
a copy of such notice to the contractor named as princi-
pal in the bond not later than one hundred eighty days
after the last date any such materials were supplied or
any such work was performed by the claimant. . . .
Not later than ninety days after service of the notice
of claim, the surety shall make payment under the bond
and satisfy the claim, or any portion of the claim which
is not subject to a good faith dispute, and shall serve
a notice on the claimant denying liability for any unpaid
portion of the claim. The surety’s failure to discharge
its obligations under this section shall not be deemed
to constitute a waiver of defenses the surety or its
principal on the bond may have or acquire as to the
claim, except as to undisputed amounts for which the
surety and claimant have reached agreement. If, how-
ever, the surety fails to discharge its obligations under
this section, then the surety shall indemnify the claim-
ant for the reasonable attorneys’ fees and costs the
claimant incurs thereafter to recover any sums found
due and owing to the claimant. . . .
‘‘(2) If the surety denies liability on the claim, or any
portion thereof, the claimant may bring an action upon
the payment bond in the Superior Court for such sums
and prosecute the action to final execution and judg-
ment. . . . In any such proceeding, the court judgment
shall award the prevailing party the costs for bringing
such proceeding and allow interest . . . computed
from the date of service of the notice of claim, provided,
for any portion of the claim which the court finds was
due and payable after the date of service of the notice
of claim, such interest shall be computed from the date
such portion became due and payable. The court judg-
ment may award reasonable attorneys’ fees to either
party if upon reviewing the entire record, it appears
that either the original claim, the surety’s denial of liabil-
ity, or the defense interposed to the claim is without
substantial basis in fact or law. . . .’’
Section 49-42 explains the enforcement procedure
a subcontractor must undertake to recover against a
payment bond. As set forth in subdivision (1) of subsec-
tion (a), a subcontractor may enforce its right to pay-
ment under a bonded public works contract by serving
a notice of claim on the surety not later than 180 days
after the last delivery of materials or completion of
work. The surety is required to satisfy the claim within
ninety days of service of the notice, unless the claim,
or any portion thereof, is subject to a good faith dispute.
If the surety fails to comply with these provisions, and
the subcontractor thereafter initiates proceedings to
recover the amounts owed from the surety, it must
indemnify the subcontractor for reasonable attorney’s
fees and costs. General Statutes § 49-42 (a) (1). Subdivi-
sion (2) explains how a subcontractor may recover from
the surety in the event the surety denies liability on
the claim.
As this court stated in Blakeslee Arpaia Chapman,
Inc. v. EI Constructors, Inc., 32 Conn. App. 118, 628
A.2d 601 (1993), although remedies pursuant to §§ 49-
41a and 49-42 ‘‘may be pursued jointly in a single action
against both the general contractor and the surety, these
two statutory rights are separate and distinct, designed
by the legislature to accomplish separate and distinct
ends.’’ Id., 128; see also Nor’easter Group, Inc. v. Colos-
sale Concrete, Inc., 207 Conn. 468, 482, 542 A.2d 692(1988) (notice provision of § 49-41a (b) ‘‘is not . . .
a statutory prerequisite to the initiation of suit by a
subcontractor under § 49-42, a remedy that existed long
before § 49-41a (b) came on the scene’’).
With the relevant statutory framework and language
of the payment bond in mind, we conclude that the
court erred in rendering judgment in favor of Aegis on
the plaintiff’s § 49-42 claim. As an initial matter, we
observe that, although Blakeslee Arpaia Chapman, Inc.
v. EI Constructors, Inc., supra, 32 Conn. App. 128,
instructs that a subcontractor’s statutory rights against
its general contractor and the surety serve distinct ends,
by analyzing the plaintiff’s Little Miller Act claims
against NJR and Aegis together under § 49-41a, while
making no mention of § 49-42, the court effectively
made Aegis’s liability under § 49-42 dependent on the
plaintiff’s succeeding against NJR under § 49-41a. How-
ever, there is no language in the payment bond or the
Little Miller Act to prevent Aegis from being held jointly
and severally liable for the amount for which NJR, as
the bonded principal, is liable under the UCC, even
though the court did not award the plaintiff interest
and attorney’s fees pursuant to § 49-41a (c) against NJR.
Instead, pursuant to the express terms of the payment
bond, Aegis is jointly and severally liable with NJR
for the unpaid balance of the subcontract. The court
concluded that NJR was liable under the UCC for the
‘‘unpaid contract price’’ and rendered judgment accord-
ingly, in favor of the plaintiff, on count one in the
amount of $178,597.75 plus costs.19 In the absence of
NJR’s ‘‘mak[ing] payment for all materials and labor
used or employed in the performance of’’ the subcon-
tract, as stated in the payment bond, Aegis’ obligation
remains in full force and effect. Moreover, as explained
previously in this opinion, neither § 49–41a (c) nor § 49-
42 contains any language to suggest that the substantial
performance language of the former applies to a sub-
contractor’s claim under the latter against a surety.20
To reach a contrary conclusion would contradict the
plain meaning of § 49-42 and would run afoul of the
highly remedial nature of the Little Miller Act, which
serves to protect those whose materials are used in
public projects. On the basis of the foregoing, we con-
clude that the court erred in rendering judgment in
favor of Aegis on the plaintiff’s § 49-42 claim on the
basis that the plaintiff could not prevail on its claim for
interest and attorney’s fees under § 49-41a (c). Accord-
ingly, we reverse the judgment as to count three and
remand the case for a new trial on that count only.21
IV
The plaintiff’s fourth claim is that, in connection with
count two of its complaint, which was directed against
NJR, the court erred by failing to award it attorney’s
fees and interest pursuant to § 49-41a on the ground that
it failed to substantially perform under the subcontract.
The plaintiff limits this claim to its contention that the
trial court erred by failing to recognize that NJR had
implicitly waived the ‘‘time is of the essence’’ provision
in the subcontract. In response, NJR contends, inter
alia, that the plaintiff’s claim is not reviewable because
the plaintiff raises it for the first time on appeal. We
agree with NJR.
‘‘Our appellate courts, as a general practice, will not
review claims made for the first time on appeal. . . .
[A]n appellate court is under no obligation to consider
a claim that is not distinctly raised at the trial level.
. . . [B]ecause our review is limited to matters in the
record, we [also] will not address issues not decided
by the trial court. . . . The requirement that [a] claim
be raised distinctly means that it must be so stated as
to bring to the attention of the court the precise matter
on which its decision is being asked.’’ (Internal quota-
tion marks omitted.) IP Media Products, LLC v. Suc-
cess, Inc., 191 Conn. App. 413, 421, 215 A.3d 1226, cert.
denied, 333 Conn. 926, 217 A.3d 994 (2019).
In its memorandum of decision, the court, relying on
the five factors set forth in § 241 of the Restatement
(Second) of Contracts,22 concluded that the plaintiff had
not substantially performed its contractual obligations,
such that it could not recover its attorney’s fees under
§ 49-41a. See General Statutes § 49-41a (c) (subcontrac-
tor making claim against general contractor under § 49-
41a must be ‘‘found to have substantially performed its
work in accordance with the terms of its employment
in any arbitration or litigation to determine the validity
of such claim’’ in order to recover attorney’s fees from
general contractor). On appeal, the plaintiff claims that
the court incorrectly applied such factors because it
failed to recognize that NJR implicitly waived the ‘‘time
is of the essence’’ provision in the subcontract. Thus,
the plaintiff argues, it was not contractually required
to deliver the beams by June 7, 2016, and it substantially
performed under the subcontract by delivering the
beams on July 26, 2016, notwithstanding NJR’s request
that the beams actually be delivered on June 29, 2016.23
NJR contends that the plaintiff did not raise at trial the
issue of whether NJR waived the ‘‘time is of the essence’’
provision in the subcontract. Notably, the plaintiff does
not contend otherwise in its appellate reply brief, and
our review of the record reveals no such claim. There-
fore, we decline to address it for the first time on appeal.
See, e.g., IP Media Products, LLC v. Success, Inc., supra,
191 Conn. App. 421.
V
The plaintiff next claims that the court incorrectly
concluded that its actions rose to the level of a CUTPA
violation. We disagree.
We begin by setting forth the standard of review and
the applicable principles of law. ‘‘It is well settled that
whether a [party’s] acts constitute . . . deceptive or
unfair trade practices under CUTPA, is a question of
fact for the trier, to which, on appellate review, we
accord our customary deference. . . . [W]here the fac-
tual 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.’’ (Internal quo-
tation marks omitted.) Pedrini v. Kiltonic, 170 Conn.
App. 343, 353, 154 A.3d 1037, cert. denied, 325 Conn.
903, 155 A.3d 1270 (2017).
Our Supreme Court has stated that ‘‘[General Statutes
§] 42-110b (a) provides that [n]o person shall engage
in unfair methods of competition and unfair or decep-
tive acts or practices in the conduct of any trade or
commerce. It is well settled that in determining whether
a practice violates CUTPA we have adopted the criteria
set out in the cigarette rule by the [F]ederal [T]rade
[C]ommission for determining when a practice is unfair:
(1) [W]hether the practice, without necessarily having
been previously considered unlawful, offends public
policy as it has been established by statutes, the com-
mon law, or otherwise—in other words, it is within at
least the penumbra of some [common-law], statutory,
or other established concept of unfairness; (2) whether
it is immoral, unethical, oppressive, or unscrupulous;
(3) whether it causes substantial injury to consumers,
[competitors or other businesspersons]. . . . All three
criteria do not need to be satisfied to support a finding
of unfairness. A practice may be unfair because of the
degree to which it meets one of the criteria or because
to a lesser extent it meets all three. . . . Thus a viola-
tion of CUTPA may be established by showing either
an actual deceptive practice . . . or a practice
amounting to a violation of public policy. . . . In order
to enforce this prohibition, CUTPA provides a private
cause of action to [a]ny person who suffers any ascer-
tainable loss of money or property, real or personal, as
a result of the use or employment of a [prohibited]
method, act or practice . . . .’’ (Internal quotation
marks omitted.) Harris v. Bradley Memorial Hospi-
tal & Health Center, Inc., 296 Conn. 315, 350–51, 994
A.2d 153 (2010), quoting Ramirez v. Health Net of the
Northeast, Inc., 285 Conn. 1, 18–19, 938 A.2d 576 (2008).
In the absence of aggravating circumstances, a simple
breach of contract is insufficient to establish CUTPA
liability. See Landmark Investment Group, LLC v.
Chung Family Realty Partnership, LLC, 125 Conn.
App. 678, 704–705, 10 A.3d 61 (2010), cert. denied, 300
Conn. 914, 13 A.3d 1100 (2011).
The following additional findings and observations
by the trial court are relevant to our consideration of
this claim. The court first recognized that ‘‘NJR does
not claim, nor could it, that [the plaintiff’s] failure to
meet the delivery deadline in the purchase order agree-
ment was, per se, an unfair or deceptive trade practice
under CUTPA.’’ Instead, NJR’s CUTPA claim focused
on the deceptive conduct of the plaintiff’s employees
and/or agents, namely, Tenedine and Borkowski. As
found by the trial court, on May 5, 2016, Giguiere
e-mailed Tenedine to inquire about when the beams
would be ready. Tenedine responded that they would
be ready by May 27. On the basis of that time frame,
Borkowski instructed Giguiere to schedule delivery of
the beams for June 29 through the plaintiff’s shipping
department. Around June 13, 2016, Giguiere spoke with
Borkowski by telephone to arrange the dry fit test.
Borkowski assured Giguiere that the beams were ready,
despite the fact that none of the beams had been poured
by June 13, 2016. On June 27, 2016, just two days before
the scheduled delivery, at 6:45 a.m., the plaintiff
informed Giguiere that none of the ten beams was ready.
Giguiere then tried to communicate with Borkowski
several times without any response. At the emergency
meeting on June 29, 2016, with the department, neither
Borkowski nor Tenedine provided a specific explana-
tion for the failure to produce the beams. As the court
stated: ‘‘The court infers that [the plaintiff’s] misleading
statements were communicated in response to direct
inquiries by NJR regarding the status of the beams,
to conceal from NJR the true state of affairs. These
deceptive responses deflected NJR from further inquiry
and the possibility of devising ways to remedy or miti-
gate the problem.’’
Against this backdrop, the court found that Tene-
dine’s ‘‘communicating to NJR unfounded assurances
that beam fabrication was progressing on schedule, and
the false declaration by Borkowski that the beams were
fabricated and available, so that a delivery date could
be scheduled through [the plaintiff’s] dispatcher’’ con-
stituted ‘‘prevarications [that] were clearly immoral,
unethical, and/or unscrupulous.’’ The court went on to
find that ‘‘[s]uch misleading information substantially
injured NJR by leading NJR into making unnecessary
and/or premature plans and expenditures for labor allo-
cation, equipment procurement, and an inutile con-
struction schedule. Also, customers, such as NJR, were
reasonably likely to assume a sense of confidence and
security based on these inaccuracies and to pass that
misinformation along to others, including [the depart-
ment]. That put NJR’s competency in a bad light and
required an emergency meeting with [the department]
to seek out some resolution.’’ Finally, the court found
that ‘‘the unwarranted representations deterred NJR
from taking remedial action had it known of the true
state of affairs.’’ On the basis of the foregoing, the court
concluded that the plaintiff’s deceptive conduct vio-
lated CUTPA. The court further concluded that the
plaintiff’s CUTPA violations resulted in an ascertainable
loss to NJR in the form of monetary expenditures to
rent equipment and to reschedule other subcontractors
and/or utility providers. Those expenses totaled
$14,695.44.
On appeal, the plaintiff contends that the court’s find-
ings that the plaintiff’s incorrect and/or unwarranted
representations about the readiness of the beams were
‘‘clearly immoral, unethical, and/or unscrupulous’’ are
clearly erroneous because there was no evidence that
such statements were made with ‘‘ill intent.’’ The plain-
tiff argues that, at most, NJR’s claim is one for a simple
breach of contract and that the evidence is devoid of
the requisite aggravating circumstances to rise to the
level of a CUTPA violation. We are not persuaded.
Contrary to the plaintiff’s contentions, it did not
merely breach the subcontract. Stated plainly, it com-
municated false information that caused NJR to incur
additional expense. The factual findings recited pre-
viously in this opinion regarding the nature of the false-
hoods conveyed to NJR, coupled with the effect that
such conduct had on NJR, readily support the imposi-
tion of CUTPA liability on the plaintiff. See Milford
Paintball, LLC v. Wampus Milford Associates, LLC,
156 Conn. App. 750, 762–66, 115 A.3d 1107 (evidence
that plaintiff detrimentally relied on defendant’s negli-
gent misrepresentations sufficient to impose CUTPA
liability), cert. denied, 317 Conn. 912, 116 A.3d 812(2015); Landmark Investment Group, LLC v. Chung
Family Realty Partnership, LLC, supra, 125 Conn. App.
708 (defendant’s pattern of bad faith conduct in
breaching parties’ agreement, as well as aggravating
circumstances, amply supported finding of CUTPA vio-
lation). Although we are cognizant that ‘‘[n]ot every
misrepresentation constitutes a CUTPA violation’’;
Calandro v. Allstate Ins. Co., 63 Conn. App. 602, 617,
778 A.2d 212 (2001); the court’s findings were supported
by the record and, therefore, were not clearly errone-
ous.
VI
The plaintiff’s final claim is that the court erred in
awarding attorney’s fees to NJR pursuant to the subcon-
tract because NJR did not incur attorney’s fees as a
result of any default on the part of the plaintiff. NJR
asserts that the plaintiff’s argument is premised on a
flawed interpretation of the subcontract. We agree
with NJR.
The plaintiff’s claim requires us to determine what
the parties intended by the language of the ‘‘default-
remedies’’ provision in their subcontract. Therefore, we
exercise plenary review. See Auto Glass Express, Inc.
v. Hanover Ins. Co., 293 Conn. 218, 225, 975 A.2d 1266(2009). ‘‘The intent of the parties as expressed in [writ-
ing] is determined from the language used interpreted
in the light of the situation of the parties and the circum-
stances 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, natu-
ral, and ordinary meaning and usage where it can be
sensibly applied to the subject matter of the [writing].
. . . Where the language of the [writing] is clear and
unambiguous, the [writing] is to be given effect
according to its terms. A court will not torture words
to import ambiguity where the ordinary meaning leaves
no room for ambiguity. . . . Similarly, any ambiguity in
a [written instrument] must emanate from the language
used in the [writing] rather than from one party’s subjec-
tive perception of the terms.’’ (Internal quotation marks
omitted.) Id., 226.
It is well established that parties may contract around
the traditional American Rule for attorney’s fees, pursu-
ant to which each party bears its own expenses. See
Ferri v. Powell-Ferri, 326 Conn. 438, 451–52, 165 A.3d
1137 (2017). In the present case, where the hearing on
the amount of attorney’s fees to be awarded has been
stayed pending our decision on appeal; see footnote 14
of this opinion; we need to determine only whether the
award of attorney’s fees was permitted by the parties’
contract.24
Mindful of the foregoing, we turn to the language of
the subcontract. Section 8, titled ‘‘DEFAULT-REME-
DIES,’’ provides in relevant part: ‘‘Should Supplier [i.e.,
the plaintiff] at any time: (a) fail to supply the Products
[defined to include the beams at issue] in sufficient
quantities and of required quality to perform its obliga-
tions hereunder with the skill, conformity, promptness
and diligence required hereunder . . . or (c) fail in the
performance or observance of any of the covenants,
conditions, or other terms of this [p]urchase [o]rder,
then in any such event, each of which shall constitute
a default hereunder by Supplier, Purchaser [i.e., NJR]
shall have the right to exercise any one or more of the
following remedies . . . (iii) recover from Supplier all
losses, damages, penalties and fines . . . and all rea-
sonable attorneys’ fees and other expenses suffered or
incurred by Purchaser by reason or as a result of Sup-
plier’s default.’’ (Emphasis added.) By the express
terms of the subcontract, a ‘‘fail[ure] to supply’’ the
beams with ‘‘promptness and diligence’’ by the plaintiff
‘‘shall constitute a default’’ on the part of the plaintiff.
The provision goes on to provide that NJR has the right
to recover, among other things, all reasonable attorney’s
fees and other expenses it incurred as a result of such
default. In light of the court’s finding that the plaintiff
failed to supply the beams with promptness and dili-
gence—a finding that we leave undisturbed—we con-
clude that the court’s determination that reasonable
attorney’s fees and expenses incurred by NJR as a result
of such failure should be awarded pursuant to the sub-
contract was not in error.
The plaintiff claims that NJR is not entitled to recover
attorney’s fees pursuant to the foregoing provision
because NJR is the defendant in the present action
and, therefore, NJR has incurred attorney’s fees only
in defending the action, rather than commencing it as
a result of the plaintiff’s default. The plaintiff’s argument
is belied by the language of the provision at issue. Sim-
ply put, nothing in the provision prevents NJR from
recovering attorney’s fees on a successful breach of
contract claim that is premised on the plaintiff’s failure
to supply the beams in a prompt and diligent manner
simply because the claim was prosecuted as part of a
counterclaim.
The judgment is reversed only with respect to the
plaintiff’s claim against Aegis pursuant to § 49-42 and
the case is remanded for further proceedings consistent
with this opinion; the judgment is affirmed in all other
respects.
In this opinion the other judges concurred.
1
The trial court rendered judgment in favor of the plaintiff on its breach
of contract claim against NJR in the amount of $178,597.75, plus costs. NJR
has not cross appealed from that judgment.
2
Pursuant to General Statutes § 49-41, NJR procured a payment bond,
with Aegis as surety, in the amount of $1,982,181.
3
Because this appeal involves two contracts, one between the department
and NJR, and one between NJR and the plaintiff, we will refer to the former
as the ‘‘contract’’ and the latter as the ‘‘subcontract’’ throughout this opinion
for clarity.
4
A handwritten note adjacent to the delivery date term in the subcontract
indicates ‘‘date dependent upon timely turn around of shop drawings.’’ The
trial court’s memorandum of decision indicates that the shop drawings were
promptly approved and caused no attributable delay beyond the June 7,
2016 delivery date. Neither party makes any claim on appeal with respect
to that finding.
5
The court found that the department wanted the closure of Route 74 to
‘‘coincide with the school vacation period in [the] summer,’’ as the project
required the closure of a main school bus route.
One hundred and sixty-one days from March 24, 2016, was August 31, 2016.
6
The court explained: ‘‘It takes about one week to set up the mold for
the beams. Then, prestressed steel strands and other items are inserted and
inspected. Next, concrete is poured. This takes about two days. A crane
removes the hardened beams and stores them until a dry fit is performed.
Then, [the plaintiff] schedules delivery. The eight interior beams are identical
and can be formed using the same mold. The two end beams require assembly
of a different mold. . . . A dry fit seeks to ensure that all the beams match
up correctly before shipment so that adjustments can be made at the fabrica-
tion yard rather than at the job site during attempts at installation.’’
7
NJR states that the term ‘‘prestress’’ necessarily refers to the ten bridge
beams because they were the only products supplied by the plaintiff that
were prestressed. The only items in the subcontract that were delineated
as ‘‘prestressed’’ were the ten beams. In addition, the plaintiff’s briefing
refers to the beams as ‘‘prestressed concrete beams.’’
8
Because the project was completed twenty-three days after August 8,
2016, the court found that NJR incurred a disincentive penalty of $69,000.
An amount of $4795 was later excused by the department.
9
At the start of trial, the plaintiff withdrew count four of its complaint
against Aegis.
10
Section 241 of the Restatement (Second) of Contracts provides: ‘‘In
determining whether a failure to render or to offer performance is material,
the following circumstances are significant:
‘‘(a) the extent to which the injured party will be deprived of the benefit
which he reasonably expected;
‘‘(b) the extent to which the injured party can be adequately compensated
for the part of that benefit of which he will be deprived;
‘‘(c) the extent to which the party failing to perform or to offer to perform
will suffer forfeiture;
‘‘(d) the likelihood that the party failing to perform or to offer to perform
will cure his failure, taking account of all the circumstances including any
reasonable assurances;
‘‘(e) the extent to which the behavior of the party failing to perform or
to offer to perform comports with standards of good faith and fair dealing.’’
2 Restatement (Second), Contracts § 241, p. 237 (1981).
11
A fair reading of the court’s memorandum of decision indicates that
it concluded that the plaintiff materially breached its contract with NJR.
‘‘[S]ubstantial performance is the antithesis of material breach; if it is deter-
mined that a breach is material, or goes to the root or essence of the contract,
it follows that substantial performance has not been rendered . . . .’’ (Inter-
nal quotation marks omitted.) 21st Century North America Ins. Co. v. Perez,
177 Conn. App. 802, 815, 173 A.3d 64 (2017), cert. denied, 327 Conn. 995,
175 A.3d 1246 (2018).
12
Specifically, the court applied General Statutes § 42a-2-607, which pro-
vides in relevant part: ‘‘(1) The buyer must pay at the contract rate for any
goods accepted. . . .’’ NJR does not challenge the determination that it was
required to pay the balance of the subcontract amount because it accepted
the untimely delivery of the beams.
13
This amount included a disincentive penalty of $64,205, the loss of a
$60,000 incentive payment, and additional equipment rental fees of
$14,695.44.
14
Following the entry of judgment and the plaintiff’s filing of this appeal,
NJR filed a motion for attorney’s fees. The plaintiff filed a motion to stay
the adjudication of the motion for attorney’s fees pending the resolution of
this appeal, which was granted by the trial court.
15
The court found that NJR had ‘‘sustained losses by virtue of [the]
rescheduling of other subcontractors and added equipment rental costs’’
totaling $22,320. The court also stated that the fast-track approach required
NJR to provide added manpower and overtime wages, expenditures that
NJR reasonably did not make following the seven week delay in delivery.
16
This conclusion is further bolstered by the testimony of Nicholas Man-
cini, NJR’s owner, that the beams were to be ready by June 7, 2016, so that
NJR could then schedule their delivery to the jobsite.
17
Even if the use of June 7, 2016, rather than June 29, 2016, was clearly
erroneous, it was harmless because, under either date, NJR was in line to
receive the maximum incentive payment. ‘‘Where . . . some of the facts
found [by the trial court] are clearly erroneous and others are supported
by the evidence, we must examine the clearly erroneous findings to see
whether they were harmless, not only in isolation, but also taken as a whole.
. . . If, when taken as a whole, they undermine appellate confidence in the
court’s [fact-finding] process, a new hearing is required.’’ (Internal quotation
marks omitted.) LeBlanc v. New England Raceway, LLC, 116 Conn. App.
267, 281, 976 A.2d 750 (2009). A trial court’s decision that ‘‘rests on a clearly
erroneous factual finding’’ requires a new trial. Downing v. Dragone, 184
Conn. App. 565, 573, 195 A.3d 699 (2018).
As we have explained, the court found that NJR was on track to earn the
maximum incentive payment, achieved by opening Route 74 on or before
July 19, 2016, when it scheduled delivery of the beams for June 29, 2016.
Although the court did not make a particular finding that the road would
have been opened in twenty days—between June 29 and July 19, 2016—
the evidence presented at trial was sufficient to do so. Giguiere explained,
in detail, the tasks that NJR was to undertake had the beams arrived on
June 29, and the amount of time needed for each task. For example, on
June 14, 2016, Giguiere requested the installation of the bridge’s handrail
during the week of July 11, 2016. According to Giguiere, this was one of
the last items to be completed prior to opening Route 74. Several of the
activities following the delivery of the beams could have been completed
simultaneously. Indeed, he testified that NJR was on track to open the bridge
on July 18, 2016. Therefore, even if the court’s use of June 7, 2016, was
clearly erroneous, it was harmless because had it used the later date, it
could have reached the same conclusion. Put differently, under either date,
the court had sufficient evidence to reach the same result with respect to
NJR’s earning of the maximum incentive payment. We are not persuaded,
then, that the error was harmful to the plaintiff.
The plaintiff relatedly contends that NJR failed to prove its damages with
reasonable certainty. Specifically, the plaintiff argues that, with respect to
the incentive payment, there was no evidence that NJR could have opened
Route 74 in twenty days. The plaintiff also points to the fact that the project
schedules did not reflect a July 19, 2016 completion date and that NJR did
not proffer a schedule analysis at trial. We reject these arguments. The
court was presented with evidence that NJR was set to earn the maximum
incentive payment had the beams been timely delivered. In addition, because
NJR was incentivized to recoup that payment, and because there was testi-
mony indicating that NJR could work at a faster pace than reflected in
the project schedules, the plaintiff’s argument, which hinges on the dates
provided in the schedules, is not convincing.
Finally, the plaintiff avers that NJR failed to prove that the disincentive
penalty it incurred was caused by the plaintiff’s delayed delivery on July
26, 2016, because NJR failed to accelerate its work once delivery occurred.
That contention fails for the reasons set forth in part II of this opinion.
18
Although the plaintiff introduces this claim in its principal appellate
brief by stating that ‘‘the trial court committed legal error in failing to apply
the duty to mitigate to NJR,’’ the plaintiff does not provide any support for
the notion that the court refused to apply failure to mitigate principles or
failed to otherwise recognize the plaintiff’s second special defense to both
counts of NJR’s counterclaim, alleging a failure to mitigate. Indeed, the trial
court expressly applied such principles and found that the plaintiff (as the
counterclaim defendant) had failed to prove a failure to mitigate on the part
of NJR. What the plaintiff actually challenges on appeal are the trial court’s
findings of fact. We consider the plaintiff’s claim accordingly.
19
We iterate that no cross appeal was taken from the judgment as to
count one.
20
Section 49-42 does, however, permit a surety to withhold payment on
a claim that is subject to a good faith dispute. In the present case, the trial
court made no findings as to whether the plaintiff’s claim for payment under
the bond was, in fact, such a claim. On remand, any adjudication by the
court of count three shall express a finding as to what portion, if any, of
the plaintiff’s claim against Aegis was subject to a good faith dispute.
21
On remand, the trial court will have to determine the scope of Aegis’s
liability under § 49-42 once the remaining claims for costs, interest, and
attorney’s fees are adjudicated on a fully developed record.
22
See footnote 10 of this opinion.
23
The plaintiff does not otherwise challenge the trial court’s application
of the Restatement factors.
24
Notwithstanding the fact that the trial court has yet to determine the
amount of attorney’s fees, the award of attorney’s fees in favor of NJR on
its breach of contract claim is a final judgment under Ledyard v. WMS
Gaming, Inc., 330 Conn. 75, 89–90, 191 A.3d 983 (2018), because it does
not constitute a supplemental postjudgment award of attorney’s fees.