Supreme Industries v. Bloomfield

Full title: Supreme Industries, Inc. v. Town of Bloomfield

Court: Connecticut Superior Court Judicial District of Hartford, Complex Litigation Docket at Hartford

Date published: Mar 8, 2007

2007 Ct. Sup. 9958 (Conn. Super. Ct. 2007)

2006 Ct. Sup. 3730

Opinion

No. X03 CV 03 4022269

March 8, 2007

MEMORANDUM OF DECISION

PECK, A. SUSAN, JUDGE.

This case arises out of an agreement between the parties for the plaintiff, Supreme Industries, Inc., to build the Wintonbury Hills Golf Course for the defendant, town of Bloomfield, in that town. The plaintiff filed an amended eight-count complaint¹ on September 14, 2004, against the defendant, which alleged the following: breach of contract based on wrongful termination (counts one and two); breach of contract based on a failure to pay the contract balance (count three); quantum meruit (count four); fraud and intentional misrepresentation (count five);² negligent misrepresentation (count six); statutory theft in violation of General Statutes § 52-564 (count seven); and the plaintiff's entitlement to punitive damages (count eight). On April 21, 2003, the defendant filed an eight count counterclaim, thereafter withdrawing all but the first count on February 25, 2005. The remaining count alleged breach of contract.

1 An amended complaint was filed on September 14, 2004, by agreement of counsel inasmuch as the plaintiff's counsel indicated that the original complaint did not include a prayer for relief. (See transcript, [tr.], 9/8/04, pp. 1-2.) After reviewing the original and amended complaints, the court notes that each complaint did in fact contain a prayer for relief. The counts and the prayers for relief in each complaint are verbatim, except that the plaintiff also claimed relief on behalf of its "subcontractors" in the original complaint's prayer for relief, which was not stated in the amended complaint's prayer for relief.

2 On May 6, 2005, during final argument, the plaintiff's attorney stated that the plaintiff was withdrawing the fifth count of the amended complaint. (See tr., 5/6/05, p. 107.) Although no withdrawal was filed, the court will rely on the representation made by counsel in open court and will not consider that count. Additionally, in the absence of a filed withdrawal, the court finds that the plaintiff has failed to prove this claim by a clear and satisfactory standard of evidence. See Wallenta v. Moscowitz, 81 Conn.App. 213, 220, 839 A.2d 641, cert. denied, 268 Conn. 909, 845 A.2d 414 (2004).

The case was tried to the court over twelve days, wherein the court heard testimony from eight witnesses and admitted over 300 exhibits.³ On December 23, 2005, the defendant filed a notice with the court indicating its objection to the court entering judgment in this matter asserting that pursuant to General Statutes § 51-183b, more than 120 days had elapsed since the filing of the final post-trial brief on August 19, 2005. The plaintiff filed an opposition to the defendant's notice on January 4, 2006, in which it responded by way of affidavit, that during an off-the-record discussion on May 6, 2005, the day of final argument, counsel for both sides specifically waived the 120-day requirement at the request of the court. Second, the plaintiff argued that because the parties agreed to bifurcate the issue of damages on the defendant's counterclaim, the trial was not "completed" within the meaning of § 51-183b. On January 30, 2006, at a status conference with counsel, the court overruled the defendant's objection for the following reasons: As the court recounted to counsel on that date, the court and the court officer share the specific recollection of the plaintiff's counsel that both sides waived the 120-day requirement at the request of the court during an off-the-record chambers conference at which defense counsel was present.⁴ Further, in an effort to accommodate defense counsel's service as a juror, combined with some reported difficulty scheduling the defendant's damages expert, the parties agreed to bifurcate the issue of damages on the counterclaim pending a ruling by the court on the liability issues. (See tr., 1/7/05, pp. 595-96; tr., 5/6/05, pp. 114-15.) In addition, in its final memorandum filed with the court on July 15, 2006, and on several other occasions, the defendant made its position clear that additional testimony would be necessary as to the issue of damages on the counterclaim. Most recently, the defendant noted that "[f]urther hearings should be scheduled for the presentation of evidence as to the defendant's consequential damages allowable under the counterclaim." (Defendant's reply memorandum, July 15, 2006 [defendant's reply], p. 15.)

3 The evidentiary portion of the trial was held on the following dates: September 8, 9, 14, 15, 21, 28, 29, 2004; October 6, 7, 2004; December 22, 2004; and January 7, 2005. An outstanding evidentiary issue was resolved and final argument was held on May 6, 2005. Final memoranda were filed by the defendant and the plaintiff on July 15, 2005 and August 19, 2005, respectively.

4 The order entered by the court on January 30, 2006, reads as follows:

To the extent that General Statutes section 51-183 [b] is applicable, the defendant, by and through its counsel, expressly waived the time limit stated therein. The notice of objection (entry #146) is therefore overruled.

Section 51-183b provides that the 120-day requirement set forth therein may be waived by the parties. The court finds that counsel for the defendant expressly waived this provision in the presence of the plaintiff's counsel and the court. See Ridgefield v. Eppoliti Realty Co., 71 Conn.App. 321, 341, 801 A.2d 902, cert. denied, 261 Conn. 933, 806 A.2d 1070 (2002). In light of the court's previous findings and the statements of the plaintiff's counsel and the court on this issue, it is perplexing that in more recent communication with the court, counsel for the defendant persist in this argument. Finally, until the decision rendered herein foreclosing the necessity of continued hearings on damages as to the counterclaim, it was not yet determined that the trial of the matter was actually concluded.

After reviewing all of the testimony and exhibits, the court finds that the following facts have been established by a preponderance of the evidence. In the fall of 2001, the town of Bloomfield (town) invited bids to construct the Wintonbury Hills Golf Course in that town. The invitation to bid indicated that this project would be an eighteen-hole "Pete Dye" designed golf course. (Plaintiff's exhibit [pl.'s ex.] 1.) A pre-bid meeting was held on October 3, 2001, wherein prospective bidders were provided with a question and answer period, the plans and specifications of the project were reviewed and a walk-through of the site was conducted. During this meeting, the town indicated that it had not received all of the permits required for construction to begin, but it expected to have these permits by mid-December 2001, with a substantial completion date of October 15, 2002. Supreme Industries, Inc. (Supreme) was one of the ten prospective bidders on this project. Supreme reviewed certain plans and specifications that defined the scope of the work on the golf course in preparation of its bid. On or about November 1, 2001, Supreme, using a form supplied by the town in its project manual, submitted its lump sum bid of $5,145,000.

After receiving the bids, the town interviewed the three lowest bidders to qualify them as contractors. Supreme, as one of the three lowest bidders, was asked to perform "value engineering" in order to reduce the cost of the project. On January 4, 2002, Supreme submitted to the town a revised bid of $5 million. During February of 2002, Supreme was advised that the town had not appropriated sufficient funds to award the contract in Supreme's entire bid amount, but that the town would have sufficient funding after a voter referendum. (Boucher testimony, 9/8/04, pp. 26-27.) Thereafter, on February 21, 2002, a letter of intent was signed by Supreme, the town and Golf Management, Inc. (GMI), the construction manager. (Pl.'s ex. 23). In pertinent part, the letter of intent stated that GMI would prepare a "Standard Form of Agreement Between Owner and Contractor (AIA Document)," which would be signed by them, and that the initial contract amount would be zero dollars. After the letter of intent was signed, GMI, in fact, submitted an AIA Document dated February 20, 2002, and entitled "Standard Form of Agreement Between Owner and Contractor" (AIA 101);⁵ (see pl.'s ex. 12); and AIA Document A201-1997 entitled "General Conditions of the Contract for Construction" (AIA general conditions or AIA 201); (pl.'s ex. 13); to Supreme for its review and consideration. (See Boucher testimony, 9/8/04, p. 84; Chapman testimony, 10/7/04, p. 516.) The AIA general conditions were incorporated by reference in articles one and nine of the AIA 101 document and together constitute the "contract documents."⁶ (Pl.'s ex. 12.) The AIA agreement was not signed by either party.

5 The acronym, AIA, stands for American Institute of Architects. (See pl.'s ex. 12; Boucher testimony, 9/8/04, p. 27.)

6 Article one states in relevant part: "The Contract Documents consist of this Agreement, Conditions of the Contract (General, Supplementary and other Conditions), Drawings, Specifications, Addenda issued prior to the execution of this Agreement, other documents listed in this Agreement and Modifications issued after execution of this Agreement; these form the Contract and are as fully a part of the Contract as if attached to this Agreement or repeated herein . . ." (Pl's ex. 12.) Article nine states in relevant part: "The Contract Documents, except for Modifications issued after execution of this Agreement, are enumerated as follows . . . The Agreement is this executed Standard Form of Agreement Between Owner and Contractor, AIA Document A101 . . . The General Conditions are the General Conditions of the Contract for Construction, AIA Document A201 . . . The Supplementary and other Conditions of the Contract are those contained in the Project Manual . . ." (Pl.'s ex. 12.)

Construction of this golf course required seven different permits or approvals to be issued by various local, state and federal agencies.⁷ When Supreme commenced work on this project on February 25, 2002, the town had not obtained all of the necessary permits, nor did it have the approval for the full $5 million contract amount. On April 16, 2001, the town's inland wetlands and watercourses commission approved the town's application to build the golf course, subject to the town's submission of staff-approved final plans to the commission. (See defendant's exhibit [def.'s ex.] 721.) The final plans were not submitted to the commission until February 27, 2002. (Castaldi testimony, 9/8/04, p. 149.) The Connecticut Department of Environmental Protection (DEP) permit was not issued until April 18, 2002, and the Army Corps of Engineers (Army Corps) permit was issued at some point thereafter. (See def's ex. 504.) In February 2002, the town only had $2 million approved for work on the golf course and it was not until June 25, 2002, that the remaining $3 million was approved by a voter referendum.

7 Specifically, construction required the following permits and approvals: the town of Bloomfield wetland permit; the town of Bloomfield planning and zoning permit; the Army Corps of Engineers (Army Corps) wetland permit; the Connecticut Department of Environmental Protection (DEP) diversion and water quality permit; the Connecticut DEP state land lease change approval; the Connecticut DEP storm water control permit; and the Northeast Utilities project approval. (Pl.'s ex. 3.)

During the course of its work constructing the golf course, Supreme and the town continued to exchange draft versions of the AIA agreement. On April 19, 2002, Supreme faxed to GMI a copy of GMI's February 20, 2002 AIA agreement with Supreme's additions, including handwritten changes to the document and a separate typed sheet indicating changes to § 4.1 (contract sum) and § 5.6.1 (progress payments) of the agreement.⁸ (Pl.'s ex. 28.) On August 22, 2002, Supreme faxed to the town an AIA agreement with various changes dated August 23, 2002.⁹ (Pl.'s ex. 64.) On September 11, 2002, Supreme faxed to the town a copy of its August 22, 2002 fax cover letter and an AIA agreement dated August 23, 2002. (Pl.'s ex. 152.) This AIA agreement made no changes to the agreement Supreme faxed to the town on August 22, 2002. Thereafter, on September 13, 2002, Supreme sent a fax to the town inquiring as to the status of the "final version" of the contract that they forwarded to the town on September 11, 2002. (Pl.'s exs. 75 and 153.)¹⁰ Three days later, Bainie Wild, on behalf of the town, sent an email to Supreme, a copy of which was sent to the town manager, Louie Chapman, stating that there were two changes that needed to be made to the draft contract. (See pl.'s ex. 76.) Specifically, the town did not agree with Supreme's verbiage regarding the substantial completion date or the retainage percentage rate included in contract item 5.1.8 (progress payments). (PL's ex. 76.) Boucher testified that Supreme agreed to reduce the retainage percentage rate, but that it did not agree with the town's substantial completion date. (Boucher testimony, 9/9/04, p. 62.)

8 Supreme's April 19, 2002 version of the contract updated the contract amount to reflect what amount had been paid on the contract, the amount due and owing on the contract, and changed the retainage percentage rate.

9 The court notes that the plaintiff's exhibits 12 and 28 are 1992 versions of the AIA agreement while plaintiff's exhibit 64 is a 1997 version of that agreement. In addition to the various insignificant differences between the 1992 and the 1997 AIA agreements, Supreme updated the contract amount to reflect the amount paid, the amount still due, the various additions and credits thus far, and changed the retainage percentage rate. Supreme also added language to the substantial completion date, subjecting it to additional time based on a three-week delay in construction that Supreme claimed was not of its making. Supreme altered due dates for the applications for payments and the payments themselves.

10 The plaintiff's exhibits 75 and 153 appear to be the same document. (See also pl. exs. 64 152.)

While these drafts were being exchanged, Supreme submitted its requisitions for payment to the town on the AIA payment requisition forms used in accordance with the AIA agreement. (Pl.'s exs. 24, 26, 29, 32, 38, 55, 72, 85, 86, 121, 130 157; Boucher's testimony, 9/8/04, pp. 37-38, 47-49.) These payment requisitions were submitted pursuant to article five of the AIA agreement. (Boucher testimony, 9/8/04, p. 83.) Throughout the project, the parties negotiated various additions and, deductions to the scope of work, therein increasing the contract amount to $5,107,371.20. (Plaintiff's findings of fact, February 25, 2005 [pl.'s findings of fact], p. 7; defendant's post-trial brief and proposed findings of fact February 25, 2005 [def.'s post-trial brief], p. 20.) Overall, the town paid Supreme a total of $4,089,009.42 for work done on the golf course. (Pl.'s findings of fact ¶ 28; defendant's stipulation and objections to the plaintiff's findings of fact, July 15, 2005 [def.'s stipulation and objections], ¶ 4.)

As October 2002, approached, Supreme made it clear that it would not be able to meet a substantial completion date of October 15, 2002. On August 8, 2002, William Salisbury, vice president of Supreme, wrote to the town manager stating that the "October 15th, schedule . . . [had] been severely compromised due to the project setbacks" experienced during that week. (Pl.'s ex. 54.) In Supreme's August 23, 2002 version of the contract, which was faxed to the town manager's office on or about August 22, 2002, § 3.3 indicated that the substantial completion date of October 15 would be subject to additional time inasmuch as progress on the course was three weeks behind.¹¹ (Pl.'s ex. 64.) On August 15, 2002, Salisbury informed Chapman that Supreme would not be able to mobilize more subcontractors unless it had a signed contract. Salisbury pointed out that the lack of a signed contract "[further compound[ed] and jeopardize[d] the ability to complete the project by the October 15th date." (Pl.'s ex. 57.) By letter dated August 19, 2002, Salisbury made it clear to Chapman that "Supreme . . . [could] no longer be held responsible for the October 15, 2002 completion date due to the many . . . unresolved issues." (Pl's ex. 59.)

11 This correspondence was again faxed to the town manager on September 11, 2002. (Pl.'s ex. 152.)

Thereafter, on October 30, 2002, and November 1, 2002, the town's attorney, John Rose, Jr., wrote to the architect, Tim Liddy, in order to procure an architect's certificate to terminate the plaintiff for cause in accordance with § 14.2 of the general conditions. (Pl.'s exs. 99, 103 13). When Liddy failed to provide such a certification, the town's superintendent of highways, David R. Gofstein, informed Supreme by letter dated December 11, 2002, that "due to a lack of timely completion the site [was then] under snow cover and [was] essentially closed for the winter." (Pl.'s ex. 124.) Gofstein instructed Supreme to "remove all material, equipment, and other items that [were] assets of Supreme Industries from the site [by December 21, 2002] while the owner determine[d] the scope and timing of when additional work required to be handled by [Supreme] [was] to begin, if any." (Pl.'s ex. 124.) In correspondence dated December 19, 2002, Supreme indicated to the town that it interpreted the December 11 letter to be a termination of the contract between the two parties. (Pl.'s ex. 128.) The town never responded to Supreme's letter of December 19, 2002. (Chapman testimony, 10/7/04, pp. 577-78.) In a certified letter dated February 21, 2003, Chapman explained to the plaintiff that the town was terminating it as a contractor for cause and that it should remove any of its equipment and materials from the project site to the extent that it had not already done so. (Pl.'s ex. 136.) In the present litigation, the plaintiff claims, inter alia, that the defendant breached the contract by wrongfully terminating the contract on December 11, 2002, and by failing to pay the contract balance.¹² Specifically, the plaintiff asserts that the defendant terminated the contract between them unreasonably, in bad faith and in violation of § 14.2 (termination by the owner for cause) of the general conditions by failing to obtain a certification of sufficient cause from the architect prior to termination. Further, the plaintiff asserts that the defendant breached the contract by failing to honor payment requisitions ten, eleven and twelve. The defendant counters that the plaintiff breached the parties' contract by failing to substantially complete the golf course by October 15, 2002, pay its subcontractors, and perform its work in a satisfactory and workmanlike manner.

12 In its amended complaint the plaintiff includes two counts relating to claims for breach of contract based on wrongful termination. During final argument, the plaintiff's counsel stated that there was no difference in the damages sought in these two counts. Therefore, counts one and two are essentially treated herein as one claim.

The Court: Well, are the damages claimed with respect to each of those counts the same or different?

Mr. Corey: The damages claimed for each of those counts are the same as set forth in my argument today.

The Court: Okay. So there's no difference between counts one and two.

Mr. Corey: No. (Tr., 5/6/05, p. 99.)

The court will discuss additional facts below, as needed.

I. PLAINTIFF'S AMENDED COMPLAINT

In the plaintiff's amended complaint, it alleges the following: breach of contract based on wrongful termination (counts one and two); breach of contract based on a failure to pay the contract balance (count three); quantum meruit (count four); fraud and intentional misrepresentation (count five); negligent misrepresentation (count six); statutory theft in violation of § 52-564 (count seven); and the plaintiff's entitlement to punitive damages (count eight).

A. Breach of Contract

Generally, "[t]he elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages." (Internal quotation marks omitted.) Chiulli v. Zola, 97 Conn.App. 699, 706-707, 905 A.2d 1236 (2006).

1. Contract Formation

Although the plaintiff and defendant agree that they entered into a contract to build a golf course in the present matter, they disagree as to the terms of that contract. The defendant argues that the only enforceable contract is that which "was formed whereby Supreme agreed to provide all the labor and materials needed to complete the golf course described in the plans and specifications, and the [town] agreed to pay [$5,107,371.20]¹³ for the labor and materials provided by Supreme." (Def.'s post-trial brief, pp. 23-24.) Conversely, the plaintiff argues that, although the parties never signed a contract, they agreed on all the material terms, which included the standard terms contained in the AIA contract documents. (See plaintiff's post-trial brief, February 25, 2005 [pl.'s post-trial brief], p. 13.) The plaintiff asserts that no substantial completion date was agreed to; (Boucher testimony, 9/9/04, p. 62; closing argument, Attorney Corey, 5/6/05, pp. 36-37); and the defendant concedes this fact. (See closing argument, Attorney Sheridan, 5/6/05, p. 91-92.) The parties also appear to agree that a completion date is not required in order to form an enforceable contract. (See closing argument, Attorney Sheridan, 5/6/05, p. 91; def's post-trial brief, p. 43; pl.'s post-trial brief, p. 13.)

13 The defendant explained that the parties originally agreed to a contract price of $5 million, but added an additional $107,371.20 to reflect various scope of work changes that arose after the project commenced. (Def.'s post-trial brief, pp. 23-24.)

"It is a fundamental principle of contract law that the existence and terms of a contract are to be determined from the intent of the parties . . . The parties' intentions manifested by their acts and words are essential to the court's determination of whether a contract was entered into and what its terms were . . . Whether the parties intended to be bound without signing a formal written document is an inference of fact for the trial court . . . In order for an enforceable contract to exist, the court must find that the parties' minds had truly met . . . If there has been a misunderstanding between the parties, or a misapprehension by one or both so that their minds have never met, no contract has been entered into by them and the court will not make for them a contract which they themselves did not make." (Citation omitted; internal quotation marks omitted.) Aquarion Water Co. of Connecticut v. Beck Law Products Forms, LLC, 98 Conn.App. 234, 239, 907 A.2d 1274 (2006). "[A]n agreement must be definite and certain as to its terms and requirements . . . So long as any essential matters are left open for further consideration, the contract is not complete . . . [T]here is no bright line rule describing the essential elements of any and all enforceable contracts. Whether a term is essential turns on the particular circumstances of each case." (Internal quotation marks omitted.) Duplissie v. Devino, 96 Conn.App. 673, 688-89, 902 A.2d 30, cert. denied, 280 Conn. 916, 908 A.2d 536 (2006).

Furthermore, "[m]utual assent, which is essential to the formation of a binding contract, must be manifested by each party to the other; uncommunicated assent does not create a contract. This mutual assent cannot be based on subjective intent, but must be founded on an objective manifestation of mutual assent to the essential terms of the promise; the entry of the parties into a contractual relationship must be manifested by some intelligible conduct, act, or sign. In other words, the apparent mutual assent of the parties must be gathered from their outward expressions and acts, and not from their unexpressed intentions. Thus, the question of whether a contract has been made must be determined from a consideration of the expressed or manifested intention of the parties — that is, from a consideration of their words and acts." 17A Am.Jur.2d 68-69, Contracts § 33 (2004).

The court finds that reaching an agreement on a substantial completion date was not a material term of the contract and such a term is not necessary for the court to conclude that there was a binding contract between the parties in this case.¹⁴ See Richard Rigglo Sons, Inc. v. Galiette, 46 Conn.App. 63, 65, 698 A.2d 336, cert. denied, 243 Conn. 920, 701 A.2d 343 (1997), cert. denied sub nom. Galiette v. Connecticut, 522 U.S. 1115, 118 S.Ct. 1050, 140 L.Ed.2d 113 (1998). Under the circumstances, the court notes that inasmuch as "delays are typical in transactions involving real property or building contracts, time is ordinarily not of the essence in these contracts . . ."; (citations omitted; internal quotation marks omitted) Miller v. Bourgoin, 28 Conn.App. 491, 498, 613 A.2d 292, cert. denied, 223 Conn. 927, 614 A.2d 825 (1992); Bouchard v. Boyer, Superior Court, judicial district of New London, Docket No. CV 97 0543089 (May 17, 1999, Hurley, J.T.R.); Jackson v. Fortunato, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 880096695 (April 8, 1997, Lewis, J.); and further, that time was not of the essence in this case.

14 Furthermore, the history of this case dictates a finding that a substantial completion date was not a material term to the contract. Most importantly, the parties performed under the contract despite the fact that they had not agreed to a substantial completion date. Specifically, the plaintiff was constructing the golf course while the defendant paid for much of the work performed, eventually paying the plaintiff over $4 million on the contract. Had the substantial completion date been a "deal-breaker" to the parties, it is inconceivable that the parties would have performed to the extent noted. Clearly, the parties did not feel a written agreement was a key element because they proceeded so far without one.

Based on the conduct of the parties throughout their relationship, the court finds that they intended the provisions of the AIA documents to be a material component of their contract. As noted above, the letter of intent that was signed by the parties on February 21, 2002, stated, in pertinent part, that GMI would prepare a "Standard Form of Agreement Between Owner and Contractor (AIA Document)," which was to be signed by the plaintiff and the defendant.¹⁵ (Pl.'s ex. 23.) In fact, GMI prepared the AIA contract documents (standard form agreement and general conditions), as required by the letter of intent and forwarded them to the plaintiff. (Pl's exs. 12 and 13.) Pursuant to the terms of the letter of intent the parties immediately began performing the contract according to its terms despite the lack of signed AIA documents.

15 Clearly, in the letter of intent, the parties agreed that the AIA documents would provide the framework of their agreement and they would merely add language to the AIA form that was unique to their project.

Although the defendant unquestionably agrees that the parties entered into a contract it disputes that the AIA documents were included within the applicable terms. Simply put, the defendant claims that because it did not sign the AIA documents, the provisions therein do not apply. The court disagrees. In signing the letter of intent and proceeding as it did in accordance with several of the provisions, by its conduct, the town evidenced its agreement to incorporate the AIA standard form agreement and general conditions as a material term of the contract. The several drafts of the contract exchanged between the parties were always on AIA forms with additions made to the standard form language where the parties so chose. None of the form language was modified. (Pl.'s exs. 28, 64 152.). The plaintiff sent three drafts to the town before the latter finally responded on September 16, 2002, indicating that the only contract items to which the town would not agree were the substantial completion date language and the retainage amount. (Pl.'s ex. 76.) In the entire course of the negotiations of the terms of the written contract, not once did the town ever propose changes to the general conditions. In fact, the only provisions ever specifically addressed by the parties were articles three, four, five and eight. Of those provisions, the only issues that persisted and remained unresolved at the end concerned § 3.3 (substantial completion) and § 5.1.8 (retainage).l¹⁶ (Pl. ex. 76.) The court therefore infers from these exchanges that the only provisions as to which there was lack of agreement were those which were specifically addressed and finds that despite the recent protestations of the town's employees otherwise, the parties clearly intended the AIA documents to provide the basic framework for their written contract, to which they then attempted to add mutually agreeable language specific to their project. Accordingly, the court concludes that the parties intended to be bound by the AIA form language from the outset, except for those provisions which they mutually chose to ignore (e.g., how they would handle payment requisitions and change orders) and other provisions to which they sought to add language.¹⁷

16 Boucher testified at trial that retainage issue ( § 5.1.8) was resolved. (Boucher testimony, 9/9/04, p. 62.) Section 3.3 is a new provision added to the AIA 101 form language by Supreme.

17 The following exchange between defense counsel and Boucher on cross-examination, illustrates that the issue between the parties was not the form language of the AIA documents, but rather, the language added to the form's substantial completion section (Article 3).

[Sheridan] Q. Okay. And, the fact is that from this point forward, Supreme was in constant negotiations with the Town of Bloomfield, to try to persuade the Town of Bloomfield to accept different language in the AIA document, than what was in Exhibit 12, is that correct?

[Boucher] A. Not different language that was in the AIA, different language that was added to [the] AIA.

[Sheridan] Q. Okay, that's a fair characterization. I would agree with that. You wanted to basically where Exhibit 12 simply inserts the words October 15th, 2002, under section 3.2, Supreme was negotiating to get — and I think the words you used on direct were, additional verbiage. Is that a fair statement?

[Boucher] A. Yeah, additional verbiage, more clarification, because there was still an unknown as to when the permits were going to be in place, and when the finding was going to actually take place. So it was — we couldn't commit to a date of October 15th without having those very important items addressed. (Boucher testimony, 9/15/04, pp. 94-95.)

There is other evidence reflected in the conduct of the parties which objectively indicates their mutual intent to be bound by the AIA form agreement. For example, the plaintiff submitted all of its requisitions for payment to the defendant on the AIA payment requisition forms (AIA G702) in accordance with article five of the AIA agreement (progress payments). (Pl.'s exs. 24, 26, 29, 32, 38, 55, 72, 85, 86, 121, 130 157; Boucher's testimony, 9/8/04, pp. 37-38, 47-49, 83.) All of the payment requisitions detailing work performed through September 25, 2002, were countersigned by Sean Noonan, the defendant's representative, and paid by the defendant.¹⁸ Moreover, the defendant exercised its right to refuse Wilcox Sand Gravel, Inc. (Wilcox) as a supplier in accordance with § 5.2.2 of the A201. In a letter e-mailed to the plaintiff on August 5, 2002, Noonan informed the plaintiff that Wilcox would not be allowed to supply any materials to the golf course based on the "[o]wner's right of refusal set forth in the project specifications." (Pl's ex. 50; def's ex. 517.) According to Gregory DuBois, the defendant's representative, this letter was drafted after a meeting he had with Noonan, Chapman and the town's attorney, Marc Needelman, wherein the decision was apparently made to reject the plaintiff's use of Wilcox as a supplier. (See Dubois testimony, 9/29/04, pp. 260, 271-72.) Chapman and DuBois both testified regarding the contents of this letter. When Chapman was asked to identify the location of this owner's right of refusal in the project specifications he conceded that he "believe[d] that it [was] incorporated into the general conditions under the AIA contract." (Chapman testimony, 10/7/04, pp. 580-81.) DuBois testified that at the meeting, the town (Chapman and Needelman) made clear that it did not want to use Wilcox because of their past dealings. Although DuBois was familiar with Noonan's August 2002 letter, when he was asked upon which provision of the "specifications" Noonan was relying, DuBois first pointed to § 1.11 of the project manual entitled "guarantee of materials"; (see pl.'s ex. 5, p. 216; DuBois testimony, 9/29/04, p. 270); but upon further cross examination, he claimed to have no idea as to what Noonan could have been relying on when he wrote that letter. (DuBois testimony, 9/29/04, pp. 271-72.) First, the court notes that the provision DuBois identified is only a guarantee that the contractor's materials would be "new, first class in every respect and to be free from defects in workmanship." (Pl.'s ex. 5, p. 216.) Second, DuBois's testimony was not at all credible inasmuch as he first testified that the defendant's justification for rejecting Wilcox was based on § 1.1 of the specifications, but then attempted to wash his hands of this explanation and sought to disavow knowledge of the specific basis of Wilcox's rejection. Third, the provision that Noonan and the defendant's representatives actually relied on in rejecting Wilcox is § 5.2.2 of the general conditions, as Chapman ultimately admitted during his cross-examination. (Pl.'s ex. 13.) Section 5.2.2 of the general conditions provides in relevant part: "The [c]ontractor shall not contract with a proposed person or entity to whom the [o]wner or [a]rchitect has made reasonable and timely objection." (Pl.' s ex. 13.) Clearly, the defendant rejected Wilcox based on the AIA form contract documents which, though unsigned, were relied on by both sides as setting forth the terms of their agreement that were not specifically negotiated or rejected by the parties in the several months between the letter of intent and the termination of Supreme's work in December 2002.

18 Noonan altered the payment due on application for payment number eight covering work performed through September 25, 2002, before signing this requisition on October 2, 2002. (Pl.'s ex. 86.)

In addition, the town's attempt to obtain a certificate from its architect in an effort to terminate the plaintiff for cause constitutes further objective evidence that the town intended to be bound by the specific terms of the AIA agreement. Section 14.2 of the general conditions sets forth the requirements that must be met for an owner to terminate the contractor for cause. (Pl.'s ex. 13, § 14.2 [termination by the owner for cause].)¹⁹ In accordance with this provision, the defendant attempted to obtain a certification for termination from Tim Liddy, the project architect, as evidenced by correspondence between Attorney Rose and Liddy in late October and early November of 2002. (Pl.'s exs. 99 103.) Although the town argues that the court should ignore this because the plaintiff only learned of this correspondence after the litigation commenced; (def.'s post-trial brief, p. 31.); these exhibits nonetheless constitute evidence that the town considered itself bound by the AIA form agreement during the relevant time period and sought to follow its termination provision. The fact that the grounds for termination stated by Attorney Rose in his letter to Liddy dated October 30, 2002; (pl.'s ex. 99); so specifically track the grounds for termination set forth in § 14.2, belies the town's more recent position that it never intended to be bound by the AIA form documents.

19 See, infra, p. 21, for a recitation of the provisions of § 14.2.

The defendant argues in its post-trial brief that there are many instances wherein the parties' conduct was at odds with the contract provisions and that this supports a finding that the parties did not intend to be bound by the general conditions of the contract. In support of its argument, the defendant cites to the lack of a construction schedule, progress payments being handled in a manner not in accord with article nine, the lack of an architect's certification on the payment requisitions, the lack of written change orders and the decision to bring a lawsuit rather than submit to arbitration as noted in § 4.6.2 of the general conditions. (See def.'s post-trial brief, p. 32.) The court is not persuaded. For the sake of moving forward with the project expeditiously, the parties apparently waived certain nonmaterial provisions regarding the schedule, the payment certification and schedule, and formal written change orders. The reality is that the late start and the lack of funding and timely permits greatly affected the timeline, thereby requiring the parties0 to cut out certain procedural steps. Furthermore, "an arbitration clause may be waived by the parties or by the one entitled to its benefit." (Internal quotation marks omitted.) Advest, Inc. v. Wachtel, 235 Conn. 559, 569, 668 A.2d 367 (1995).²⁰

20 The court addresses the waivability of arbitration clauses only in the context of the defendant's claim that the failure to arbitrate is proof that the parties did not intend to be bound by the general conditions.

Thus, the court finds that the parties indeed had a meeting of the minds, intended to, and did in fact, form a contract that included the AIA agreement and corresponding general conditions (AIA documents A101 and A201, respectively) as a material provision despite the fact that the agreement was not signed by the parties.

2. Performance

Regarding the second element of a breach of contract claim, the court finds that each party performed under the contract to a point. The plaintiff was constructing the golf course and the defendant paid the plaintiff over $4 million to that end.

3. Breach

Having found that the parties formed a contract, which incorporated the AIA contract documents as a material term, and that the parties performed in accordance with the contract and in reliance on several of its key provisions, the court further finds that the defendant breached the contract by wrongfully terminating the plaintiff's contract in contravention of § 14.2 of the general conditions of the contract (A201), by failing to allow a reasonable time for completion, and by failing to pay payment applications ten, eleven and twelve. (Pl.'s ex. 121, 130 134.)

a. Section 14.2 of the A201 — General Conditions of the Contract for Construction

Section 14.2 of the A201, "Termination by the owner for cause," sets forth the exclusive requirements for termination of a contractor for cause. This provision clearly and specifically details the circumstances under which an owner may terminate a contractor for cause and the process for such a termination:

14.2 TERMINATION BY THE OWNER FOR CAUSE

14.2. The Owner may terminate the Contract if the Contractor:

.1 persistently or repeatedly refuses to supply enough properly skilled workers or proper materials;

.2 fails to make payment to subcontractors for materials or labor in accordance with the respective agreements between the Contractor and the Subcontractors;

.3 persistently disregards laws, ordinances, or rules, regulations or orders of a public authority having jurisdiction; or

.4 otherwise is guilty of substantial breach of a provision of the Contract Documents.

CT Page 3742

14.2.2 When any of the above reasons exist, the Owner, upon certification by the Architect that sufficient cause exists to justify such action, may without prejudice to any other rights or remedies of the Owner and after giving the Contractor and the Contractor's surety, if any, seven days' written notice, terminate employment of the Contractor and may, subject to any prior rights of the surety:

.1 take possession of the site and of all materials, equipment, tools, and construction equipment and machinery thereof owned by the Contractor;

.2 accept assignment of subcontracts pursuant to Paragraph 5.4; and

.3 finish the Work by whatever reasonable method the Owner may deem expedient. Upon request of the Contractor, the Owner, shall furnish to the1 Contractor a detailed accounting of the costs incurred by the Owner in finishing the Work.

14.2.3 When the Owner terminates the Contract for one of the reasons stated in Subparagraph 14.2.1, the Contractor shall not be entitled to receive further payment until the work is finished.

(Pl.'s ex. 13, p. 43.)

Principally, this provision requires that an owner must first obtain a certificate from its architect in order to terminate a contractor for cause and must give seven days written notice to both the contractor and the surety. (Pl.'s ex. 13, p. 43.) The provision also enumerates four circumstances under which the contractor may be terminated for cause. (Pl.'s ex. 13, p. 43.) In certain reliance on this provision, in a letter dated October 30, 2002, the town's attorney, Rose, wrote to the architect, Liddy, on behalf of the town seeking the architect's certification to terminate the plaintiff for cause. (Pl.'s exs. 99 103.) Obviously drawing from the language of § 14.2, Rose enumerated six reasons for termination. (Pl.'s ex. 99.) Despite Rose's persistent requests, as evidenced by a second letter two days later on November 1, 2002; (pl.'s ex. 103); Liddy never provided an architect's certificate. (See pl.'s ex. 103.) Instead, in a letter dated December 11, 2002, the town's superintendent of highways, Gofstein, informed the plaintiff that the project site was closed for winter and that all of the plaintiff's materials, equipment and any other assets were to be removed by December 21, 2002. (Pl.'s ex. 124.) Gofstein stated that the defendant would then determine what "additional work," "if any," the plaintiff would be allowed to perform. (Pl.'s ex. 124.) Although Boucher wrote to Gofstein in a letter dated December 19, 2002, stating that Supreme interpreted the last two paragraphs of Gofstein's December 11, 2002 letter as "a termination of our contract;" (pl.'s ex. 128); the town basically ignored the letter and made no response. Despite this course of events, Chapman testified that the plaintiff was not terminated until February 21, 2003, when he sent a certified letter to the plaintiff stating that the plaintiff was being terminated for cause and any of the plaintiff's materials and equipment remaining on the project site must be removed. (Pl.'s ex. 136.) Chapman denied that he considered terminating the plaintiff far in advance of his February 21, 2003 letter. (Chapman testimony, 10/7/04, pp. 551-60.)

The court finds that there are numerous inconsistencies in the town and Chapman's position on termination. The evidence reflects that Noonan and DuBois were urging Chapman to terminate the plaintiff as early as August 2, 2002. (Def's ex. 517.) Moreover, Rose's letters seeking the architect's certification for termination, dated October 30, 2002, and November 1, 2002, belie Chapman's claim that he did not consider terminating Supreme very much in advance of his February 21, 2003 termination letter. (Pl.'s exs. 99, 103 136; Chapman testimony, 10/7/04, pp. 551-52, 555.) Gofstein's letter of December 11, 2002, and Boucher's response on December 19, 2002, constitute persuasive evidence that Supreme was terminated in December 2002, and that Chapman's letter of February 21, 2003; (pl.'s exs. 124, 128 136); was an afterthought which attempted to obfuscate and reinvent a tainted and wrongful termination. The court finds that Chapman's testimony on the subject of termination and the town's position on this issue are not deserving of belief.

Rose's letter of October 30, 2002, further undermines the town's credibility. In that letter, Rose represented to Liddy that the plaintiff "without authority, removed from the Project premises materials owned by the Town," refused to provide the town with evidence that subcontractors and materials providers had been paid and had gone on the project and blocked access thereto in violation of the law. (Pl.'s ex 99.) Rose had previously made the same allegations directly to2 Supreme in a letter dated October 25, 2002; (pl.' s ex. 97); all of which were refuted by Supreme in a reply faxed to Rose on October 28, 2002. (Pl.'s ex. 98.) Despite these explanations by Supreme and without further investigation, Rose sought certification for termination on these questionable grounds.

Also, it now seems apparent, that the town stopped paying the plaintiff as of December 11, 2002, the date of the Gofstein letter; (pl.'s ex. 124); after its efforts to persuade the architect to certify termination in accordance with § 14.2 failed. In this regard, the court notes that payment application number nine, the last one paid by the town, was submitted on November 14, 2002, and paid on or about December 11 or 12, 2002; (pl.'s exs. 123 157); while applications ten, eleven and twelve, were submitted on November 27, 2002, December 20, 2002, and February 6, 2003, respectively, and although application ten was apparently approved; (pl. ex. 139); no payment was made to Supreme after December 11 or 12, 2002. For all these reasons, the court finds by a preponderance of the evidence that the town breached its contract with the plaintiff by terminating their contract in contravention of § 14.2 of the AIA 201 on December 11, 2002.

b. Failure to Allow a Reasonable Time for Completion

Second, the court finds that the defendant wrongfully terminated the contract inasmuch as it frustrated the plaintiff's efforts to complete the project and, under all the circumstances, terminated the plaintiff without allowing a reasonable amount of time for completion. It is undisputed and the court has found that the parties could not agree on a substantial completion date. "When the terms of a contract's time of performance are indefinite . . . [t]he result generally reached is that the time is neither unlimited nor discretionary . . . [T]he promised performance must be rendered within a reasonable time . . . What is a reasonable length of time is ordinarily a question of fact for the trier." (Citation omitted; internal quotation marks omitted.) LaVelle v. Ecoair Corp., 74 Conn.App. 710, 725-26, 814 A.2d 421 (2003).

In determining whether an October 15, 2002 substantial completion date was a reasonable time for this project for either completion of the entire golf course or merely to complete the seeding as the defendant has recently claimed; (see def's post-trial brief, p. 43);²¹ the court has considered numerous factors, most notably, the actions of the defendant. Not only did the defendant itself impede the plaintiff's ability to perform the contract, it also used the unrealistic and artificial date of October 15th as a hammer to undermine the plaintiff's ability to complete the work. In fact, the project manual made no mention of either the duration of the project or the anticipated opening date. (Pl.'s ex. 5; DuBois testimony, 9/29/04, p. 308.) While the court believes that the parties attempted to work toward an October 2002 substantial completion date, such a date was never expressly agreed to and was not possible under the circumstances. More specifically, because of issues and actions largely attributable to the defendant, a substantial completion date of October 15, 2002, was wishful thinking and not reasonably achievable. As will be more fully articulated below, the following circumstances prohibited the plaintiff from completing the3 project by October 15, 2002: funding delays; permit delays; the lack of a signed contract; and the defendant's employees' and representatives' behavior on the project, including the town's wrongful rejection of Wilcox as a supplier.

21 The court notes that the substantial completion issue is a red herring that has been variously defined at the convenience of the defendant. In Bainie Wild's e-mail to the plaintiff on September 16, 2002, she defined substantial completion as that which was to be determined by the course architect and the owner's representative, but "shall at a minimum include the seeding of all course greens and fairways." (Pl.'s ex. 76.) This appears to agree with the definition recited at page 43 of the defendant's post-trial brief, dated February 25, 2005. The court notes, however, that this was not the standard recited by Attorney Rose in his letter of October 30, 2002; (pl.'s ex. 99); when he wrote to Liddy seeking a certificate of termination. In fact, Rose wrote as follows: "Supreme has failed to achieve Substantial Completion of the Work which, from the inception of the Project, has been set at October 15, 2002. As of the date of this letter, not one golf hole has been delivered in a state or condition capable of being approved . . ." (Pl.'s ex. 99.)

i. Funding

At the pre-bid meeting on October 3, 2001; (see pl.'s ex. 6); representatives of the town informed the bidders that the town expected to have the permits at some point between September and December 2001, with a start date of mid-December 2001. (Boucher testimony, 9/8/04, pp. 16-17.) It was under this factual scenario that the town was hoping for an October 15, 2002 substantial completion date. (See Boucher testimony, 9/8/04, p. 17.) The plaintiff submitted its bid; (pl.'s exs. 8 and 9); on or about November 1, 2001, for a lump sum contract amount of $5,145,000. (See pl.'s ex. 10.) At the request of the defendant, the plaintiff submitted a revised bid of $5 million. The letter of intent, reflecting a zero dollar contract amount, was prepared by GMI and not signed by the parties until February 21, 2002. Chapman testified that this unique dollar amount was used because he "[could not] legally obligate the town to more than was available." (Chapman testimony, 10/7/04, p. 587.) This was approximately two months after the defendant's projected start date. The plaintiff began construction four days later. (Pl.'s ex. 15.)

As previously noted, when the plaintiff mobilized, the defendant had only $2 million available on the $5 million project. The $3 million remaining was not approved by public referendum until June 25, 2002. As James D. Parry, the plaintiff's expert, testified: "Clearly, beginning a project with less than complete funds . . . has an impact on how your project flow and sequencing takes place. You normally would have all of your subcontractors lined up as soon as possible . . . [I]t has an impact on how you proceed in the course of the project, and what you can and [cannot] do at certain times, when all the money [is not] in place, where you [cannot] obligate money beyond what your contractual limit is and what your funding limit is." (Parry testimony, 9/15/04, p. 52.) Inasmuch as the parties had to wait until June 25, 2002, for the remaining $3 million to be approved by the voters, the plaintiff necessarily had to make choices as to the subcontractors with whom it would contract and which subcontracts would have to wait until full funding was available. For example, Boucher testified that he hired DAF Resources, an important subcontractor, early on, but had to wait with others because of the funding delay. (Boucher testimony, 9/15/04, pp. 100-01.) The delayed availability of funding also affected the subcontractors who had been lined up, but who could not be engaged until the funds were actually available. As of April 16, 2002, the plaintiff expected to use Athletic Field Renovators (AFR) as a subcontractor for soil preparation, seeding and sodding, but was frustrated in its ability to hire them because AFR would not wait until after the June 25, 2002 referendum date for a commitment from Supreme. (Boucher testimony, 9/14/04, pp. 68, 70-71.)

By the end of June 2002, when the referendum was passed, thereby allowing the defendant to expend an additional $3 million on this project, the plaintiff had been paid $1,168,620.85; (pl.'s ex. 38); and had an outstanding payment requisition pending with the town in the amount of $255,133.60. (Boucher testimony, 9/15/04, p. 102.) This left the plaintiff with a little over $500,000 on the original $2 million appropriation; (Boucher testimony, 9/15/04, pp. 102-03); to pay for demobilization costs for itself and its subcontractors and for costs associated with shutting down and closing up the project site, if necessary. (Boucher testimony, 9/15/04, p. 108.) Just as the defendant refused to obligate itself beyond its appropriated funds, the plaintiff could not reasonably be expected to obligate itself beyond the limitations of $2 million until the availability of the funds was assured.

ii. Permits4

Seven permits or approvals were required for construction of the golf course. (Pl.'s ex. 3.) Specifically, construction required the following permits and approvals: the town of Bloomfield wetlands permit; the town of Bloomfield planning and zoning permit; the Army Corps wetlands permit; the Connecticut DEP diversion and water quality permit; the Connecticut DEP state land lease change approval; the Connecticut DEP storm water control permit; and the Northeast Utilities project approval. (Pl's ex. 3.) The parties agree that it was always the town's sole responsibility for obtaining all of the requisite permits in accordance with the AIA agreement.²² Although all of the permits could have been obtained at approximately the same time, in this case they were secured primarily in a linear fashion, with the defendant's inland wetlands and watercourses commission's approval first, then the Connecticut DEP water diversion and water quality certificate and then the Army Corps permit.²³ (See Castaldi testimony, 9/28/04, p. 112.)

22 Section 2.2.2 of the general conditions states: "Except for permits and fees, including those required under Subparagraph 3.7.1, which are the responsibility of the Contractor under the Contract Documents, the Owner shall secure and pay for necessary approvals, easements, assessments and charges required for construction, use or occupancy of permanent changes in existing facilities." Section 3.7.1 of the general conditions states: "Unless otherwise provided in the Contract Documents, the Contractor shall secure and pay for the building permit and other permits and governmental fees, licenses and inspections necessary for proper execution and completion of the Work which are customarily secured after execution of the Contract and which are legally required when bids are received or negotiations concluded." The parties' adherence to the division of responsibility set forth in these provisions further support the finding that the parties intended the AIA documents to govern their relationship.

23 The dates of various permit approvals are still not totally clear to the court despite cross-referencing witnesses' testimony and corresponding exhibits in an extensive effort to pin down this information. Suffice it to say that timing and the specific areas covered by the permits and approvals enumerated in the plaintiff's exhibit 3 were not well presented to the court by either party because of the imprecision of the questions on this subject.

On April 16, 2001, the local inland wetlands and watercourses commission issued its initial approval of the defendant's permit application, thereby allowing "the applicant to conduct regulated activities within [the] wetlands and within the upland review areas and other areas on the site." (Castaldi testimony, 9/28/04, p. 87; see def.'s ex. 721.) This approval was issued subject to fulfilment of the recommendations in a March 21, 2001 staff report presentation to the commission of staff-approved final plans and creation of a twenty-foot vegetated buffer on hole fourteen. (Def.'s ex. 721.) A revision of the plans, which incorporated the commission's conditions of approval, was dated February 27, 2002. (See def's ex. 721 722; Castaldi testimony, 9/28/04, pp. 135-36.) Due to an oversight, an actual town inland wetlands permit was never issued, although David Castaldi, the defendant's wetlands agent and civil engineer, testified that he communicated the details of which areas the local permit did and did not cover at a preconstruction meeting that was held on February 20, 2002. (Castaldi testimony. 9/28/04, pp. 143-44.) At this preconstruction meeting, it was also made clear to the plaintiff that it could not perform any work in the wetlands or Connecticut DEP land until the permits were "in hand." (Def's ex. 723; see Castaldi testimony, 9/28/04, p. 151.) The projection was that these permits would "hopefully" be received in "early April."²⁴ (Def.'s ex. 723.)

24 The court presumes this meant April of 2002.

Although the local permit essentially provided the plaintiff with a ticket to enter the golf course,²⁵ other permits were necessary for the plaintiff to gain access to all of the land comprising the planned golf course. One such permit was the Connecticut DEP water diversion and water quality certificate (DEP permit), which was issued on April 18, 2002. (Def's ex. 504.) This permit provided a description of the authorized activities, which were subject to certain5 special and general conditions. (Def's ex. 504.) It detailed the work that was allowed within the wetlands areas and, among several other restrictions, provided for a twenty-five foot buffer restriction in the upland review area on the Tunxis Reservoir's west shore. (Def's ex. 504; Castaldi testimony, 9/28/04, pp. 90-91.)

25 Castaldi testified that the local permit was required to work on the entire site. (Castaldi testimony, 9/28/04, p. 98.)

In addition to the DEP permit, the plaintiff still needed the Army Corps permit and the Connecticut storm water control permit, which would normally be the last approval received, in order to gain full access to all areas of the golf course. (Parry testimony, 9/15/04, p. 80.) The evidence was not clear as to the exact date that the Army Corps permit was issued, but the witnesses did agree that it was issued sometime after the issuance of the DEP permit on April 18, 2002, which was a prerequisite to obtaining the Army Corps permit. (Castaldi testimony, 9/28/04, p. 115; Parry testimony, 9/15/04, p. 56.) As of May 21, 2002, the plaintiff was unaware that the DEP permit had been issued as evidenced by a letter of that date from Supreme's project manager to Noonan requesting, inter alia, the status of the DEP permit. (Pl.' s ex. 31.) Thereafter, on June 25, 2002, the parties' construction meeting minutes reflect that the plaintiff would then begin excavating the wetland mitigation area around hole seventeen. (Pl.'s ex. 36.) Based on the evidence presented, the court finds that all of the permits, with the possible exception of the Connecticut storm water control permit, were issued by June 25, 2002, at the latest.

Generally, the Army Corps permit was needed for work within the wetlands and watercourses on the project site, in addition to the wetlands adjacent to the site. (Castaldi testimony, 9/28/04, pp. 97-98.) Specifically, Castaldi testified that this permit was required for the following: for "work at the pond adjacent to the [seventh] hole"; "[f]or work at the main intake for the irrigation from the recreational pond near hole [fourteen]"; "[for the piping of the watercourse that runs through holes" four, thirteen and fifteen; "for a small filled wetlands in hole [eight]"; and "for a wetlands mitigation pond area adjacent to hole [seventeen]."²⁶ (Castaldi testimony, 9/28/04, pp. 98-99; see pl.'s ex. 155.)

26 During his testimony, Castaldi marked these areas in an orange marker on the plaintiff's exhibit 155.

Although the local wetlands permit may have had all of its conditions fulfilled as of February 27, 2002, six days after the letter of intent was signed, this did not afford the plaintiff unfettered and full access to all areas of the course. As noted above, the lack of both the DEP permit and the Army Corps permit restricted the plaintiff's ability to access fully various holes and the upland review areas. Both Castaldi, a defense witness, and Parry, the plaintiff's expert, agreed that as late as April 18, 2002, the plaintiff could not perform construction in the wetlands and watercourse areas. (Castaldi testimony, 9/28/04, pp. 115-16; see Parry testimony, 9/15/04, pp. 54, 80.) Without even taking into consideration when the Army Corps permit was issued, the plaintiff's access as of April 18, 2002, was at least four months behind schedule from the access that was anticipated when it submitted its bid. (See Parry testimony, 9/15/04, p. 57.) If this court assumes that as of May 21, 2002, there were still outstanding permits, the plaintiff had only five months of full access to the course before October 15, 2002.

Based on the evidence previously noted and Boucher's trial testimony, the court finds that in light of the failure of the town to secure all of the requisite permits in a timely manner, the plaintiff did not have full access to the following holes until sometime after April 18, 2002: one, two, seven, eight, nine, ten, eleven, fourteen, seventeen and eighteen. (Tr., 9/14/04, pp. 97-99.) The court also notes the distinction between Boucher's definition of "full access" and the definition argued by defense counsel. There is no dispute that when construction began on February 25, 2002, the plaintiff could get to the site. However, this "access" was inconsequential unless the plaintiff was able to access fully all of the necessary areas of the site. As Boucher6 explained, of the holes that had wetlands associated with them, the lack of permits directly affected those specific areas of the holes and necessarily impeded Supreme's progress. (Boucher testimony, 9/14/04, p. 100.) Dirt that was to be used for feature construction of other holes often came from the holes containing wetlands. (Boucher testimony, 9/14/04, p. 100.) This sometimes allowed the plaintiff to begin work in certain areas without regard to the requirements of the DEP and Army Corps permits, but this work could not be finished without these permits in hand. (Boucher testimony, 9/14/04, pp. 100-101.) The court agrees with Boucher that access to the holes without the ability to move the dirt to or from them was an impediment to an orderly progression of the work. (See Boucher testimony, 9/14/04, p. 101.)

Furthermore, without full access to the course for several months after construction began, the construction sequence was greatly compromised. Boucher testified that the plaintiff's normal golf course construction sequence had to be altered because of the lack of full access to the course. (Boucher testimony, 9/21/04, pp. 31-32.) Parry also testified credibly that restrictions from the lack of permits impacted where the equipment could go on the site and where clearing and grading could be accomplished. (Parry testimony, 9/15/04, p. 20.) This resulted in a constant need to remobilize equipment and labor to areas that had already received an initial phase of work. (Parry testimony, 9/15/04, p. 20.) It also meant redoing work in areas where the plaintiff's equipment was not previously allowed to travel because of the lack of permits. (Parry testimony, 9/15/04, p. 20.) In sum, Parry stated that the lack of permits meant that "obviously [it was] very difficult to plan a project . . . on the sequencing of how [you were] going to flow through this project, when you [did not] know when [you were] going to have access to the areas that you [were] restricted on." (Parry testimony, 9/15/04, p. 46.) Boucher's testimony regarding his experience on the project echoed this view.²⁷

27 Specifically, Boucher testified as follows: "First of all, you have to understand the sequence of operations on how — on what happens first on a golf course. First the clearing and grubbing usually gets done, and then earth moving would start. So in this particular instance the clearing and grubbing operation was impacted — we weren't able to complete any tree clearing on those holes that had wetlands or wetland buffer zones around them, nor were we able to start where the — most of the mass dirt excavation would have started in hole number [seven]. And that impacts the holes where the dirt was going to be going to, whether or not you could bring it there or not. So it's — it multiplies in impact based on what you're specifically allowed to do. And in this particular instance the earth moving had the biggest impact because without the earth being moved you [could not] finish your drainage or start your irrigation or do other feature construction that would need dirt from these impacted areas to go into or come out of. In addition to that, the irrigation was going to run off the biggest pond adjacent to [seven]. That was our irrigation pond. So that delayed the irrigation starting due to the fact that the pond had to be filled with water before the irrigation pump could actually start. So, like I said, multiple impacts, and we could go on and on about how it impacted number [fourteen], the wet well, the grading on [thirteen, the cart path on [two], the wetland crossing on [two], the outflow structures on [seven, the mitigation area on [seventeen]. It's huge." (Boucher testimony, 9/21/04, pp. 31-32.)

iii. Lack of a Signed Contract

The evidence concerning the extent to which the unsigned contract affected the delay of the project was limited but, based on all the evidence before the court, the lack of a signed contract did have a few very practical consequences. As previously noted, the parties were in agreement as to material terms of the contract. The lack of a signed contract meant that extensive time was needlessly wasted during construction meetings and on correspondence addressing this issue. Most significantly, the continued focus on the lack of a signed contract fostered a corrosive working relationship as the project progressed. For example, at the end of July and in August 2002, in combination with other disagreements that were developing between the parties, the7 plaintiff repeatedly advised the town that the lack of a contract constrained them from confidently engaging new contractors. The correspondence in August, September and October 2002, between the plaintiff and the defendant's representatives and employees is replete with expressions of concern by the plaintiff about not having a signed contract. (See, e.g., pl.'s exs. 43, 44, 45, 48, 49, 54, 57, 61, 64, 66, 70, 75, 76, 83, 87, 114, 152 153.)

iv. Defendant's Actions and Interference

Along with the lack of timely permits, delayed funding and lack of a signed contract, the defendant's employees' and representatives' behavior or interaction with the project impacted the period of time in which the plaintiff could reasonably be expected to construct the golf course. Although the plans and specifications for this project were created before it went out for bid, the defendant's representatives were directing changes to the construction through October 2002. (Pl.'s exs. 27, 30, 31, 45, 53, 54, 61 74; see Boucher testimony, 9/8/04, pp. 97-98, 116-17; Chapman testimony, 10/7/04, p. 570.) In fact, DuBois conceded that, as of October 1, 2002, the architect was still making changes to the project. (DuBois testimony, 9/29/04, p. 320-21; pl. ex. 84.) Throughout the month of October 2002, the plaintiff was still awaiting various change orders regarding specific work directives and changing the bunker sand supplier. (See pl.'s exs. 74 87.)

In addition to the changes in the construction of the golf course, at some point Noonan, unilaterally, or at the direction of a town official, decided to change the parties' lump sum contract into a unit price contract. Both the September and October 2002 payment requisitions were changed by Noonan to reflect a unit price contract. (Pl.'s ex. 87; Boucher testimony, 9/21/04, p. 42.) As previously noted, eventually, the defendant stopped paying the plaintiff's payment requisitions completely.

The court finds that Noonan and DuBois also interfered with the relationship between the plaintiff and at least one of its subcontractors. Robert Sutton testified for Crow Sutton Associates, Inc. (Crow Sutton), the commercial landscaping company that was hired by the plaintiff as a subcontractor to prepare the soil and install sod on the golf course. It is the third largest landscaping company in the United States. (Sutton testimony, 9/9/04, pp. 30, 34.) Crow Sutton started work on the course during the third week of September 2002. (Sutton testimony, 9/9/04, p. 34.) From the day they began work, they had daily contact directly with the owner. (Sutton testimony, 9/9/04, p. 5.) By the first week of October 2002, Crow Sutton employees stopped communicating with and receiving direction from the plaintiff; (Sutton testimony, 9/9/04, pp. 7 and 33); because Noonan and DuBois informed Sutton that the plaintiff was going to be fired from the job. (Sutton testimony, 9/9/04, p. 4.) Sutton aligned himself with the town and stopped talking to Supreme. (Sutton testimony, 9/9/04, pp. 51-52.) In January 2003, Sutton met with Rose and Chapman about leading the project in place of Supreme. (Sutton testimony, 9/9/04, pp. 6-8.)

The court accepts Sutton's testimony that Noonan and DuBois micro-managed the project on a day-by-day, hole-by-hole basis, with no plan or schedule for the construction. (Sutton testimony, 9/9/04, p. 4, 14 and 32-33.) Noonan or DuBois directed Crow Sutton as to where the sod should be laid down, sometimes stopping sod installation in order to direct Crow Sutton's employees to lay the sod down elsewhere.²⁸ (Sutton testimony, 9/9/04, pp. 14-15, 52-53, 59.) As8 a result, Crow Sutton often changed the number of workers it had on the project on a daily basis. (Sutton testimony, 9/9/04, p. 33.) These directions also resulted in duplicate charges for the cost of Crow Sutton's preparation of areas for sod installation that the plaintiff had already prepared for its own work. (Sutton testimony, 9/9/04, p. 32.) Sutton testified that this project was a total aberration of any of his other work experiences. (Sutton testimony, 9/9/04, pp. 33-34.)²⁹

28 DuBois contradicted Sutton's testimony on this issue. However, the court finds Sutton the more credible of the two for several reasons. First, DuBois wilted during cross-examination as to several aspects of his testimony. (See DuBois testimony, 9/28 29/2004, pp. 265, 269-74, 277-81, 299-300.) Second, as to several areas of testimony on direct examination, many of the key questions asked of him were leading. (See, e.g., DuBois testimony, 9/28 29/2004, pp. 224-26, 258.) In addition, DuBois was asked other questions on direct examination which were clearly beyond his expertise leaving the court in doubt about the validity of his answers. (See, e.g., DuBois testimony. 9/28 29/2004, pp. 212, 214, 224, 243-44, 248, 254.) Further, DuBois was asked questions on direct or redirect examination which called for him to speak on behalf of himself and Noonan, which left the court to question the actual source of the information and substantially undermined the quality of the testimony. (See, e.g., DuBois testimony, 9/28 29/2004, pp. 231-32, 234-35, 237-38, 327.) Finally, while DuBois answered no to a direct examination question as to whether he ever directed Crow Sutton how to do work, he was not asked if Noonan ever did. (DuBois testimony, 9/28 29/2004, p. 210.) Therefore, the statement by Sutton that Noonan directed Crow Sutton's work was never refuted by the defendant as Noonan did not testify.

29 Although there was a payment dispute between Crow Sutton and the plaintiff, that dispute has apparently been resolved. Supreme still owes Crow Sutton $9,000, but has agreed to pay them regardless of the outcome of this case. The court takes judicial notice of the fact that Crow Sutton has a separate lawsuit against both Supreme and the town which is still pending, Crow Sutton Associates, Inc. v. Supreme Industries, Inc., Superior Court, judicial district of Hartford, Docket No. CV 03 0826065. In the instant lawsuit, through Supreme, Crow Sutton seeks $103,832.25 in change orders from the town, which were beyond the scope of its contract with Supreme. (Pl.'s ex. 158; Sutton testimony, 9/9/04, pp. 7-8, 24, 56, 60.)

The defendant also provided the plaintiff with an untimely rejection of the plaintiff's sand and gravel supplier, Wilcox,³⁰ thereby affecting the time in which the project could be completed. During the bidding process, it was made clear to the plaintiff that the defendant wished to "promote the use of local suppliers" and, to that end, the plaintiff planned to use Wilcox, a local company, for the greens or root zone mix.³¹ (See Boucher testimony, 9/8/04, pp. 108-110.) From approximately the end of May 2002, through August 2002, the plaintiff had materials tested for its greens mix. (See def.'s exs. 505, 506, 507, 511, 515; pl.'s exs. 163 and 164.) Hummel Company, Inc. (Hummel),³² released to the plaintiff three different test results reflecting that the materials tested were from Wilcox and one gravel test result referencing Wilcox as the sand supplier. (See def.'s exs. 505, 507, 511 and 515.) These tests were dated May 21, 2002, June 26, 2002, July 5, 2002, and August 2, 2002. (See def.'s exs. 505, 507, 511 and 515.)

30 Boucher testified that Wilcox had the same owner as American Crushing Recycling. (Boucher testimony, 9/9/04, p. 83.)

31 Boucher explained that the root zone mix, also known as a greens mix, is a "mixture of sand and/or some sort of organic that is placed inside the collar of a green where the grass for the green grows." (Boucher testimony, 9/9/04, p. 82.)

32 Hummel is a soil testing lab that tests, inter alia, greens mix for golf course use. (Boucher testimony, 9/9/04, p. 112.)

Boucher testified that during July 2002, the plaintiff made it known to Noonan and DuBois that Wilcox would be used as a supplier. (Boucher testimony, 9/15/04, p. 142.) Boucher stated that he informed Noonan, or another town representative, of the July 5, 2002 test results. (Boucher testimony, 9/15/04, pp. 143-44.) Boucher also informed Noonan of Wilcox's location so that Noonan could visit the site himself. (Boucher testimony, 9/15/04, pp. 143-44.) Noonan and Boucher obtained samples of the different sand or peat products and submitted these materials for testing. (Boucher testimony, 9/9/04, p. 85.) DuBois testified at trial that neither he nor any other representative of the town knew about Wilcox as a potential supplier until August of 2002. (DuBois testimony, 9/29/04, p. 160.) While Wilcox's involvement may not have been known to9 town officials until early August 2002, the court finds that at least Noonan knew that Wilcox was in the picture as a supplier throughout the month of July.³³ This finding is supported by a Hummel materials test report of sand for the greens mix, dated June 26, 2002, and a copy of a fax transmittal of the results to Noonan dated July 8, 2002. (Pl.'s ex. 161.) Boucher's credibility on this issue is bolstered by the plaintiff's more contemporaneous statement concerning this issue contained in a letter to Chapman, dated August 6, 2002, in which the plaintiff asserted that its understanding was "that Sean [Noonan] and Greg DuBois [had] visited the location where the material [was] stockpiled and nothing [had] been stated until [August 5, 2002] that [this was] a problem." (Def.'s ex. 519.)

33 The court notes that although counsel for the defendant represented that Noonan was scheduled to testify, Noonan was not called as a witness at trial. (See DuBois testimony, 9/29/04, p. 236.) Rather, the defendant relied on DuBois whose testimony suffered from often being second hand, and consequently, of dubious value. (See note 28, supra; see, e.g., DuBois testimony, 9/29/04, pp. 277-80.)

As noted above, Noonan drafted a letter, dated August 2, 2002, and e-mailed it to the plaintiff on August 5, 2002, in which he cited the "[o]wner's right of refusal set forth in the project specifications" as the defendant's justification for rejecting Wilcox as a supplier. (See pl.'s ex. 50.) This letter came after DuBois and Noonan met with Chapman and Needelman to discuss Wilcox as a materials supplier of the greens mix. (DuBois testimony, 9/29/04, p. 260.) Although this was the generic reason given by Noonan in his letter, everyone clearly understood the issue to be that Wilcox had "prior legal problems" with the defendant.³⁴ (Pl.'s ex. 54; Chapman testimony, 10/7/04, pp. 529-30; DuBois testimony, 9/29/04, p. 269; Boucher testimony, 9/9/04, p. 82.)

34 Specifically, the court notes Chapman's testimony that he (Chapman) made the decision to reject Wilcox, along with Needelman, for the following reason: "The town had been involved in a long-running zoning dispute with Wilcox Sand, whatever their title is, American Crushing [] Recycling, and it had been a consistent violator of our town zoning regulations. On this property it had essentially built a mountain, and it was in violation of town zoning ordinance. The town went after him for that zoning violation and ended up getting both the violation corrected and substantial sanctions against them for the violations. And we, the collective we, didn't think that this was necessarily somebody that we wanted to do business with." (Chapman testimony, 10/7/04, pp. 529-30.)

Further, although the defendant's representatives and employees have tried to suggest otherwise in the course of this litigation, as previously noted, the court finds that the defendant rejected Wilcox based on § 5.2.2 of the AIA general conditions and not the project specifications as stated by Noonan in his letter and repeated by DuBois on the witness stand. (Pl.'s exs. 13 and 50; DuBois testimony, 9/9/04, pp. 270-71.) Section 5.2.2 of the AIA general conditions allows for the owner's reasonable and timely rejection of the contractor's subcontractors and suppliers. (See pl.'s ex. 13.) The court finds that it may have well been within the defendant's province to reject Wilcox as a supplier for the reasons it gave to the plaintiff, but the rejection was untimely in this case. The plaintiff should not be penalized because of poor communication between the defendant's representatives and employees about the fact that Wilcox was intended to be the plaintiff's local supplier. The plaintiff almost certainly would not have spent so much time and expense in testing had it known that the defendant was going to reject its supplier because of a prior history of ill will. This untimely rejection put the plaintiff at least three weeks behind schedule. (See pl.'s exs. 22, 64 and 152, contract item § 3.3.)

v. Dormant Seeding

Although the issue of dormant seeding is not an item that specifically constituted interference by the defendant's representatives or employees with the plaintiff's ability to substantial complete the project or the seeding prior to October 15, 2002, the rejection of the plaintiff's offer to0 dormant seed at no risk to the town is further evidence that the termination of the defendant was wrongful and that, at least beginning in October 2002 and thereafter, was motivated by ill will and was part of an effort, at that point in time, to frustrate and hinder the ability of the plaintiff to complete its work on the project.

On or about October 15, 2002, the plaintiff introduced to the defendant the idea of dormant seeding on the project. (Pl.'s ex. 92.) Dormant seeding is a process by which seeds are planted in the fall with the expectation that after winter, when the temperature rises, the seed will then germinate. (Boucher testimony, 9/8/04, p. 121.) On October 21, 2002, the plaintiff entered the project site with the intent to continue installing seed, as the plaintiff previously requested. (Pl.'s ex. 93; Boucher testimony, 9/9/04, p. 89.) In a letter dated October 22, 2002, Chapman informed the plaintiff that the grassing phase of the project was shut down "due to unfavorable planting conditions present on the site" and referred the plaintiff to section 2600, paragraph 1.04,³⁵ of the project manual; (pl.'s ex. 5); "for details on the matter." (Pl.'s ex. 94.)

35 Section 2600, paragraph 1.04, of the project manual, provides in relevant part: "All seeding work shall be done at dates approved by the designer. When delays in operations carry the work beyond the most favorable planting season for the species designated, or when conditions are such, by reason of drought, high winds, excessive moisture, or other factors, that satisfactory results are not likely to be obtained, the work will be stopped by the Contractor and shall be resumed only when directed. If an inspection either during seeding operations or after seeding emergence shows that strips have been left unplanted, or other areas skipped, the Contractor shall be required to sow additional seed on these areas . . ." (Pl.'s ex. 5.)

Despite the defendant's rejection, the plaintiff offered to guarantee the germination of seed planted after October 15, 2002. On October 23, 2003, the plaintiff wrote to the defendant as follows: "To further clarify our letter sent to you this morning, Supreme Industries, Inc. will guarantee the germination (either fall 2002 or spring 2003) of the seed planted after October 15, 2002. All costs to repair wash outs seedbed, refertilize reseed, etc. until germination shall be borne by Supreme Industries, Inc. At our meeting tomorrow (10/24) we will discuss the grow in responsibilities." (Pl.'s ex. 95.) Nonetheless, in response, in a letter dated October 23, 2002, Chapman stated that "the nature and extent of an offer of guarantee" of the dormant seeding was insufficient and that he needed to know exactly what the plaintiff was guaranteeing, including any costs to the defendant. (Pl.'s ex. 96.) The defendant thereby rejected what appeared to be an unequivocal guarantee. (Boucher testimony, 9/8/04, p. 121.)

At trial, Chapman testified that both DuBois and the architect, Liddy, were not in favor of dormant seeding and that he based his decision not to dormant seed on these recommendations. (Chapman testimony, 10/7/04, pp. 538-39, 574.) DuBois testified that, although he was involved in the discussions regarding whether the plaintiff would be allowed to dormant seed, he was unsure as to whether the architect was ever consulted. (DuBois testimony, 9/28/04, pp. 215-16.) There is no evidence other than Chapman's testimony in support of the defendant's claim that Liddy had recommended against dormant seeding or had even been consulted about it. (Chapman testimony, 10/7/04, p. 574.) Boucher testified that he did not believe Liddy had been consulted about this issue at all. (Boucher testimony, 9/21/04, p. 5.)

First, the court is not persuaded that Liddy recommended against dormant seeding or that he was ever consulted about it. None of the correspondence or the construction meeting minutes, which were written in October 2002, refer to Liddy being consulted about dormant seeding or otherwise indicate that he provided any recommendation. (See pl.'s exs. 92, 93, 94, 95 96.) The defendant presented no documentary evidence to support this claim and DuBois testified that he was not sure if the architect was ever consulted. (DuBois testimony, 9/28/04, p. 216.)

Second, given that there was no downside for the town, it was unreasonable for the defendant to reject the plaintiff's guarantee underlying its offer of dormant seeding. Boucher testified that, based on his own experience and after consulting with professionals, he recommended to the defendant that the plaintiff be allowed to dormant seed; (Boucher testimony, 9/9/04, pp. 89-90; 9/21/04, p. 5; see pl.'s ex. 93); and that dormant seeding could be done though the month of December. (Boucher testimony, 9/9/04. p. 96.) The plaintiff was so committed to this process that it gave the defendant a comprehensive guarantee that should the seed fail to germinate, the plaintiff would incur "all costs" to repair the washouts seedbeds, as well as refertilize and reseed. (Pl. ex. 95.)

The court rejects Chapman's claim that the offer of guarantee was unclear. (See Chapman testimony, 10/7/04, pp. 539, 574.) The guarantee is simple and unambiguous and Chapman's claim that it was unclear is not credible. The court has searched in vain for a good faith reason for the town to reject this offer and concludes that the reason for the rejection is unquestionably related to the letter to Supreme written by Rose two days later on October 25, 2002, preparatory to his letter to Liddy, written on October 30, 2002, seeking certification for termination of the plaintiff for cause. (See pl.'s exs. 97 99.) The court also credits the testimony of the plaintiff's expert on this issue. At trial, Parry testified as to the anti-erosion benefits that dormant seeding could provide to the course. (Parry testimony, 9/15/04, p. 35.) In addition, the defendant's expert, Richard Bator,³⁶ testified at his deposition that it had been his experience to dormant seed as late as December 31st. (Pl.'s ex. 166.)

36 The defendant identified Bator as one of its experts by way of its disclosure of expert witnesses, which was filed with the court. The plaintiff deposed Bator on August 18, 2004, and moved for permission to use deposition excerpts at trial inasmuch as the defendant did not intend to call Bator to testify at trial. (Plaintiff's motion for permission to use excerpts from Richard Bator testimony, September 21, 2004.) The defendant filed an objection to the plaintiff's motion on January 3, 2005. This court heard argument on the motion and the objection and allowed certain excerpts of Bator's testimony to be admitted, which is encompassed in the plaintiff's exhibit 166.

Dormant seeding would have allowed seeding to continue until December 31, 2002. The only reasonable explanation for Chapman's rejection of it was that it may have sabotaged the defendant's plan to terminate the plaintiff and undermined its ability to claim that neither the project or the seeding was substantially complete by October 15, 2002, or December 21, 2002, the plaintiff's last day on the job.

c. Failure to Pay Contract Balance

In the third count of its amended complaint, the plaintiff alleges that the defendant breached the parties' contract by failing to pay the contract balance, after deducting the value for the work left to complete the project. Specifically, the plaintiff claims the defendant materially breached the contract by failing to make progress payments ten, eleven and twelve, which were due and owing under the contract. (Pl.'s exs. 121, 130 and 134.) Payment application ten was actually approved by Noonan on November 26, 2002, and simply not paid. (Pl.'s exs. 121 139.) Payment application eleven was submitted on December 20, 2002, and not paid. (Pl. ex. 130.) Payment application twelve was submitted on February 6, 2003, and also was not paid. (Pl. ex. 134.) Article five of the A101 provides for progress payments on the contract sum to be paid to the contractor upon submission of the payment applications. (See pl.'s exs. 12, 22, 64 152.) Until November — December 2002, that had been the way it had been done. Accordingly, the court finds that the defendant breached the contract by failing to make the requisite progress payments.

For all the foregoing reasons, the court finds, by a preponderance of the evidence that the defendant wrongfully terminated the plaintiff's contract in contravention of § 14.2 of the general2 conditions of the contract (A201), by failing to provide the plaintiff with a reasonable time for completion, and by failing to pay payment applications ten, eleven and twelve.

4. Damages

In its post-trial brief and at final argument, the plaintiff argued that it was entitled to damages in the amount of $972,496.78³⁷ for the defendant's wrongful termination of the contract. (Pl.'s post-trial brief, p. 20; pl.'s findings of fact, ¶¶ 26 and 28; closing argument, Attorney Corey, 5/6/05, p. 87.) At closing argument, upon inquiry from the court, defense counsel stated that the importance of the application of the termination provision of the A201 was that it would allow the plaintiff to recover the contract balance as its damages, should the defendant have wrongfully terminated the plaintiff. (See closing argument, Attorney Sheridan, May 6, 2005, pp. 108-10.)

37 This number represents adding the original contract balance ($5,000,000), with the approved change orders ($107,371.20), and the cost of obtaining a non-local root zone mix ($172,135), then subtracting out the cost to complete the project ($218,000) and the amount already paid to the plaintiff by the defendant for work on the project ($4,089,009.42).

"It is axiomatic that the sum of damages awarded as compensation in a breach of contract action should place the injured party in the same position as he would have been in had the contract been performed . . . The injured party, however, is entitled to retain nothing in excess of that sum which compensates him for the loss of his bargain . . . Guarding against excessive compensation, the law of contract damages limits the injured party to damages based on his actual loss caused by the breach." (Internal quotation marks omitted.) Russell v. Russell, 91 Conn.App. 619, 643-44, 882 A.2d 98, cert. denied, 276 Conn. 924, 925, 888 A.2d 92 (2005).

The plaintiff and the defendant agreed that the contract price, including the additions and deductions that occurred throughout construction, was $5,107,371.20. (Boucher testimony, 9/14/04; def.'s post-trial brief, pp. 20, 24 and 47.) The defendant paid the plaintiff $4,089,009.42 for work performed on the project. (Pl.'s findings of fact, ¶ 28; def.'s stipulation and objections, ¶ 4.) The value of the work left on the contract was $218,023.³⁸ (Pl.'s ex. 16; Boucher testimony, 9/14/04, pp. 35-40; see pl.'s findings of fact, pp. 7-8.) Therefore, the amount of the plaintiff's damages, as calculated thus far, is $800,338.78.

38 The court reaches this number by adding the following remaining work items: $138,492 (Hoopes Equipment and Turf Farming); $28,178 (JSL Asphalt, Inc.); and $51,353 (Supreme's bunker sand and edging). It is noted that on the plaintiff's exhibit 162, the plaintiff lists these items as adding up to $217,923, but this is a mathematical error.

The plaintiff also claims that it was entitled to $172,135 for procurement of an outside supplier of the root zone mix once Wilcox had been rejected. The court is unable to find sufficient evidence to support this claim. Through Boucher's testimony, the plaintiff introduced exhibit 161, which included, inter alia, root zone mix quotes from Wilcox and U.S. Silica, an outside supplier. (Boucher testimony, 9/14/04, pp. 46-48.) The Wilcox quote specified a price of $16.50 per ton for 6,500 tons of the root zone mix and the U.S. Silica quote provided a price of $39.90 per ton. Thereafter, Boucher testified that it was Holliston Sand and Gravel (Holliston) that provided the root zone mix for the project. (Boucher testimony, 9/15/04, pp. 151-52; 9/21/04, p. 77; see also DuBois testimony, 9/28/02, p. 201.) Although the court was provided with U.S. Silica's quote for the root zone mix and Boucher's and DuBois' testimony that Holliston supplied the actual mix used on the project, nothing was presented to connect the two. "[W]hen damages are claimed they are an essential element of the plaintiff's proof and must be proved with reasonable certainty . . . Damages are recoverable only to the extent that the evidence affords a sufficient basis for estimating their amount in money with reasonable certainty." (Internal quotation marks omitted.) Carrano v. Yale-New Haven Hospital, 279 Conn. 622, 646,3 904 A.2d 149 (2006). The plaintiff has failed to prove with reasonable certainty the difference in cost between Wilcox, the plaintiff's rejected supplier, and Holliston, the supplier actually used on this project.

Accordingly, the court awards the plaintiff damages in the amount of $800,338.78.³⁹

39 The court calculated this amount as follows:
$5,000,000.00 + $107,371.20 — $4,089,009.42-$218,023.00 = $800,338.78

a. Prejudgment Interest Pursuant to General Statutes § 37-3a

In addition, the plaintiff requests prejudgment interest pursuant to General Statutes § 37-3a.⁴⁰ (See amended complaint, September 14, 2004, p. 13; Pl.'s post-trial brief, p. 32.) "The trier of fact may award prejudgment interest, as an element of damages, for the detention of money after it becomes payable if equitable considerations deem that such interest is warranted . . . An award of such interest is an equitable determination lying within the trier's sound discretion . . . The determination is one to be made in view of the demands of justice rather than through the application of an arbitrary rule . . . A trial court must make two determinations when awarding compensatory interest under § 37-3a: (1) whether the party against whom interest is sought has wrongfully detained money due the other party; and (2) the date upon which the wrongful detention began in order to determine the time from which interest should be calculated . . . A plaintiff's burden of demonstrating that the retention of money is wrongful requires more than demonstrating that the opposing party detained money when it should not have done so. The fact that an award of such interest is discretionary and subject to equitable considerations, rather than automatic, reflects the reality that not all improper detentions of money are wrongful." (Citation omitted; internal quotation marks omitted.) Smithfield Associates, LLC v. Tolland Bank, 86 Conn.App. 14, 26, 860 A.2d 738 (2004), cert. denied, 273 Conn. 901, 867 A.2d 839 (2005).

40 Section 37a-3a provides in relevant part that "interest at the rate of ten percent a year, and no more, may be recovered and allowed in civil actions . . ."

For all the reasons stated in this memorandum, the court finds by a preponderance of the evidence that the defendant wrongfully withheld $800,338.78 from the plaintiff and the plaintiff is entitled to interest pursuant to § 37-3a at the rate of ten percent per year from December 11, 2002, to the date of this judgment.

b. Offer of Judgment Interest Pursuant to General Statutes § 52-192a

"After commencement of any civil action based upon contract or seeking the recovery of money damages, whether or not other relief is sought, the plaintiff may, not later than thirty days before trial, file with the clerk of the court a written `offer of judgment' signed by the plaintiff or the plaintiff's attorney, directed to the defendant or the defendant's attorney, offering to settle the claim underlying the action and to stipulate to a judgment for a certain sum." General Statutes (Rev. to 2005) § 52-192a(a). The defendant may accept the plaintiff's offer within sixty days of his or her notice of the filing and prior to a jury verdict or court award. See General Statutes (Rev. to 2005) § 52-192a(a). "After trial the court shall examine the record to determine whether the plaintiff made an `offer of judgment' which the defendant failed to accept. If the court ascertains from the record that the plaintiff has recovered an amount equal to or greater than the sum certain stated in the plaintiff's `offer of judgment,' the court shall add to the amount so recovered twelve percent annual interest on said amount . . . computed from the date the complaint in the civil action was filed with the court if the `offer of judgment' was filed not later than eighteen months from the filing of such complaint . . . The court may award reasonable attorneys fees in an amount not to exceed three hundred fifty dollars, and shall render judgment accordingly." General Statutes (Rev. to 2005) § 52-192(b).4

"The purpose of § 52-192a is to encourage pretrial settlements and, consequently, to conserve judicial resources., . . . [T]he strong public policy favoring the pretrial resolution of disputes . . . is substantially furthered by encouraging defendants to accept reasonable offers of judgment . . . Section 52-192a encourages fair and reasonable compromise between litigants by penalizing a party that fails to accept a reasonable offer of settlement . . . In other words, interest awarded under § 52-192a is solely related to a defendant's rejection of an advantageous offer to settle before trial and his subsequent waste of judicial resources." (Internal quotation marks omitted.) Cardenas v. Mixcus, 264 Conn. 314, 321, 823 A.2d 321 (2603). "Moreover, an award of interest under § 52-192a is mandatory, and the application [of this statute] does not depend on an analysis of the underlying circumstances of the case or a determination of the facts." (Internal quotation marks omitted.) Id.

On March 19, 2003, the plaintiff filed an offer of judgment pursuant to Practice Book § 17-14 and General Statutes § 52-192a in the amount of $750,000. As noted above, the court awards the plaintiff damages in the amount of $800,338.78, exclusive of prejudgment interest. Accordingly, the plaintiff is entitled to interest pursuant to § 52-192a at the rate of twelve percent per annum from February 14, 2003, the date the complaint was filed with the court, as well as attorneys fees in the amount of $350.

5. Crow Sutton

The plaintiff argues in its post-trial brief that, in addition to its own claims against the town, it is also prosecuting Crow Sutton's claim for $78,867.75 in "additional costs" and $9,000 in retainage against the town in the present matter. (Pl.'s post-trial brief, pp. 21-22.) The defendant counters that the plaintiff lacks standing to recover for alleged extra work done by the subcontractor at the direction of the defendant and that Crow Sutton's damages cannot be proven with a reasonable certainty. (Def.'s post-trial brief, pp. 8-10.)

It is established that "the right of a plaintiff to recover is limited to the allegations of the complaint . . . and any judgment should conform to the pleadings, the issues and the prayers for relief." (Internal quotation marks omitted.) Journal Publishing Co. v. Hartford Courant Co., 261 Conn. 673, 686, 804 A.2d 823 (2002). In the plaintiff's amended complaint, it does not allege any facts relevant to any subcontractors' claims, nor does it request relief on behalf of any subcontractors in the prayer for relief.

Even if the plaintiff had alleged facts in its amended complaint to indicate that it was asserting a claim on behalf of Crow Sutton, the court finds that the plaintiff is not entitled to recover. "It is a fundamental concept of judicial administration that no person is entitled to set the machinery of the courts into motion unless [it is] for the purpose of obtaining redress for an injury he has suffered or to prevent an injury he may suffer, either in an individual or representative capacity . . . A plaintiff can recover only by proving that he himself is entitled to prevail on the cause of action alleged. It is not enough that he prove that some other person, not a party to the case, would be entitled to recover on that cause of action." (Internal quotation marks omitted.) CAS Construction Co. v. East Hartford, 82 Conn.App. 543, 558, 845 A.2d 466 (2004), citing Wexler Construction Co. v. Housing Authority, 149 Conn. 602, 605, 183 A.2d 262 (1962). Moreover, "[a] contractor is not necessarily, nor even generally, liable to its subcontractor for the extra work done by the subcontractor by reason of fault on the part of the owner or his agents." Wexler Construction Co. v. Housing Authority, 149 Conn. 605. "[P]roof of the liability of the prime contractor to the subcontractor is a prerequisite to recovery by the prime contractor for an injury alleged to have been sustained by the subcontractor." Walter Kidde Constructors, Inc. v. State, 37 Conn.Sup. 50, 68, 434 A.2d 962 (1981), citing Wexler Construction Co. v. Housing Authority, supra,5 149 Conn. 605. Therefore, in order to successfully sue on behalf of a subcontractor, the contractor must first allege and prove its own liability to the subcontractor. Walter Kidde Constructors, Inc. v. State, supra, 37 Conn.Sup. 72.

At trial, Sutton testified that his company was claiming damages for the following change orders: (1) $7,670 for an increased seed cost; (2) $28,000 in seed for the greens and tees;⁴¹ (3) $445 for trailer leasing; (4) $42,753.75 in overtime; and (5) $18,963.50 for extra work. (Pl.'s ex. 158; Sutton testimony, 9/9/04, pp. 11-16.) He stated, unequivocally, that these items were directed by the defendant and not attributable to Crow Sutton's contract with the plaintiff.⁴² (Sutton testimony, 9/9/04, p. 25.) Sutton also testified that the only item that Crow Sutton was due from the plaintiff was the retainage in the amount of $9,000, which the plaintiff had already agreed to pay, notwithstanding the outcome of this case. (Sutton testimony, 9/9/04, p. 24.) As the court indicated, supra, in note 29, supra, Crow Sutton has a case pending in the Hartford Superior Court against Supreme and the town in connection with the construction of this golf course.

41 Originally, Crow Sutton claimed $34,000 for the seed for the greens and tees, but Sutton amended this amount during his testimony to $28,000. (Sutton testimony, 9/9/04, p. 12; closing argument, Attorney Corey, 5/6/05, p. 86.)

42 Specifically, Sutton testified as follows regarding the change orders. The increased seed cost was based on changes in the design of the seed mix initiated by the defendant. The seed costs for the greens and tees was not in Crow Sutton's contract and the seed was purchased and turned over directly to the defendant. The trailer leasing was based on an agreement of the parties that it was in everyone's best interest in order to protect the materials. The overtime was directed by the defendant and the extra work consisted of duplicate preparation costs due to various changes made by the defendant. (Sutton testimony, 9/9/04, pp. 11-16.)

The plaintiff has not alleged in the complaint or in its post-trial brief that it is liable to Crow Sutton for any of the amounts currently claimed. Sutton specifically testified that the work was done outside of Crow Sutton's contract with the plaintiff, at the direction of the defendant, and that the only money his company was due from the plaintiff was the $9,000 retainage, which the plaintiff had agreed to pay. The court notes, however, that there has been no documentation, other than Sutton's word, to support the claim that $9,000 in retainage was owed to Crow Sutton or that the plaintiff agreed to pay this amount.⁴³

43 The court does not agree with the plaintiff's statement in its brief that inasmuch as Boucher testified that the plaintiff was prosecuting Crow Sutton's claim, this meant that the plaintiff was accepting liability for the damages claimed by Crow Sutton. (See plaintiff's post-trial reply brief, August 19, 2005 [pl.'s reply], p. 11.)

Accordingly, the court finds that the plaintiff lacks standing to prosecute its claim for damages on behalf of Crow Sutton against the defendant.

B. Quantum Meruit

In its post-trial brief, the plaintiff argues in the alternative that even if this court were to, because it was created after January 1, 1984, find that the plaintiff was not entitled to compensation on its breach of contract claims, the plaintiff is entitled to compensation based on quantum meruit. Moreover, the plaintiff argues that should the court find that the plaintiff is entitled to compensation under either cause of action, the court should award the plaintiff the greater amount.

"[Q]uantum meruit [is a form] of the equitable remedy of restitution by which a plaintiff may recover the benefit conferred on a defendant in situations where no express contract has been entered into by the parties . . . A determination of a quantum meruit claim requires a factual examination of the circumstances and of the conduct of the parties . . ." (Internal quotation marks omitted.) Schreiber v. Connecticut Surgical Group, P.C., 96 Conn.App. 731, 737, 901 A.2d 1277 (2006). "Quantum meruit is the remedy available to a party when the trier of fact determines that6 an implied contract for services existed between the parties, and that therefore, the plaintiff is entitled to the reasonable value of services rendered . . . The pleadings must allege facts to support the theory that the defendant, by knowingly accepting the services of the plaintiff and representing to her that she would be compensated in the future, impliedly promised to pay her for the services she rendered." (Internal quotation marks omitted.) Id. "[Q]uantum meruit [is] meant to provide an alternative basis for recovery in the event of a failure to prove [a] breach of contract claim . . ." United Coastal Industries, Inc. v. Clearheart Construction Co., 71 Conn.App. 506, 511, 802 A.2d 901 (2002). "The lack of a remedy under a contract is a precondition to recovery based on . . . quantum meruit." Id., 513.

Accordingly, because the court finds that the plaintiff may recover on its breach of contract claims, although it would most certainly be entitled to recover on a theory of quantum meruit if such a contract did not exist, the court finds the claim of quantum meruit inapplicable and does not further address this count.⁴⁴

44 Under either theory, the court finds that the reasonable value of the plaintiff's services for which it remains uncompensated is $800,338.78.

C. Negligent Misrepresentation

The plaintiff alleged in count six of its amended complaint that the defendant negligently misrepresented its true intentions as to executing a written contract and to pay the plaintiff for the work performed. In its post-trial brief, the plaintiff argued that the defendant misrepresented its intentions as to its future relationship with the plaintiff. The Connecticut Supreme Court "has long recognized liability for negligent misrepresentation. [It has] held that even an innocent misrepresentation of fact may be actionable if the declarant has the means of knowing, ought to know, or has the duty of knowing the truth . . . The governing principles are set forth in similar terms in § 552 of the Restatement Second of Torts [1979]: One who, in the course of his business, profession or employment . . . supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information." (Internal quotation marks omitted.) Glazer v. Dress Barn, Inc., 274 Conn. 33, 72-73, 873 A.2d 929 (2005). "Traditionally, an action for negligent misrepresentation requires the plaintiff to establish (1) that the defendant made a misrepresentation of fact, (2) that the defendant knew or should have known was false [when made], and (3) that the plaintiff reasonably relied on the misrepresentation, and (4) suffered pecuniary harm as a result." Nazami v. Patrons Mutual Insurance Co., 280 Conn. 619, 626, 910 A.2d 209 (2006).

The court finds that the plaintiff has failed to prove the elements of its negligent misrepresentation claim. There is no evidence that the defendant did not intend to enter into a contract as contemplated by the project specifications and in the letter of intent. Whether the contract was actually ever signed did not vitiate the obligation of the plaintiff to perform its duties under the contract that clearly existed between the parties.

In its post-trial brief, the plaintiff makes no reference to the facts as alleged in the sixth count. Rather, it argues that the misrepresentation related to certain follow-on work after the completion of the original contract. Specifically, the plaintiff argues that in Chapman's September 11, 2002 letter, he indicated to the plaintiff that it would be able to bid on construction of certain buildings and site work that was not included in the parties' contract. (See pl.'s ex. 71.) Chapman testified at trial that he did not think that the "[defendant] could legally preclude [the plaintiff] from bidding on the contract . . ." (Chapman testimony, 10/7/04, p. 568.) From this, it appears that the7 plaintiff indicated its interest in doing follow-on work and Chapman merely indicated that it would be allowed to bid on such work. Aside from the fact that this claim was not made in the complaint, the court finds that there is insufficient evidence that the plaintiff relied on the defendant's representation to the extent that it suffered pecuniary harm.

For these reasons, the court finds that the plaintiff has failed to sustain its claim for negligent misrepresentation.

D. Statutory Theft in Violation of General Statutes § 52-564

In the seventh count of the amended complaint, the plaintiff alleged that the defendant misappropriated the plaintiff's labor, materials and services, with the intent to deprive the plaintiff of such things, thereby entitling it to treble damages pursuant to § 52-564. In its post-trial brief, the plaintiff specified that the town misappropriated the monies due to Supreme under requisitions ten, eleven and twelve.

General Statutes § 52-564 provides: "Any person who steals any property of another, or knowingly receives and conceals stolen property, shall pay the owner treble his damages." "Statutory theft under § 52-564 is synonymous with larceny under General Statutes § 53a-119 . . . Pursuant to § 53 a-119, [a] person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or [withholds] such property from an owner . . . [S]tatutory theft requires an intent to deprive another of his property . . ." (Internal quotation marks omitted.) Deming v. Nationwide Mutual Insurance Co., 279 Conn. 745, 771, 905 A.2d 623 (2006).

In Deming v. Nationwide Mutual Insurance Co., supra, 279 Conn. 773, the Connecticut Supreme Court determined that the plaintiffs' statutory theft and conversion claims regarding their contractually provided deferred compensation failed as a matter of law inasmuch as the plaintiffs did not allege or contend in their briefs "that they ever possessed or owned legal title to [the] funds." The court noted that "[a]t best, the defendants merely [were] obligated to pay the money." Id., 773. In reaching this conclusion, the court reaffirmed that "under our case law . . . money can be the subject of statutory theft" but that a plaintiff "must establish . . . legal ownership or right to possession of specifically identifiable moneys." (Citations omitted.) Id., 771-72.

Moreover, judges of the Superior Court have observed that statutory theft cases are not appropriate in breach of contract cases concerning unpaid debts, noting that "[t]here is no Connecticut case law that holds that money owed by a debtor is the property of the creditor and allows for a cause of action in statutory theft when the debt is not paid." Delta Capital Group, LLC v. Smith, Superior Court, judicial district of Hartford, Docket No. CV 970571407 (March 31, 1998, Hale, J.). See also Robinson v. Van Dyck Printing Co., Inc., Superior Court, judicial district of New Haven, Docket No. CV 94 0360526 (April 25, 2000, Devlin, J.) (holding that the factual predicate was inadequate where the statutory theft claim arose exclusively from the contract in question).

Inasmuch as the plaintiff's claim as articulated in its post-trial brief is essentially a claim seeking payment for a debt owed, the court finds that the plaintiff is not entitled to recover on its claim of statutory theft. The court also concludes that the plaintiff has failed to meet its burden of proof with regard to the defendant's intent to deprive the plaintiff of the funds.⁴⁵8

45 The court notes that the burden of proof required in statutory theft cases might be currently unsettled. See Suarez-Negrete v. Trotta, 47 Conn.App. 517, 520, 705 A.2d 215 (1998); Freeman v. Alamo Management Co., 221 Conn. 674, 682-83, 607 A.2d 370 (1992); Howard v. MacDonald, 270 Conn. 111, 130, 851 A.2d 1142 (2004). However, the court finds that the plaintiff has failed to prove the elements of statutory theft under either a preponderance of the evidence or clear and convincing standard.

E. Punitive Damages

In count eight of its amended complaint, the plaintiff alleged that the defendant's conduct as described in the complaint was wanton, reckless and completely disregarded the plaintiff's rights. In its post-trial brief the plaintiff argued that proof of such an allegation is in the defendant's bad faith conduct beginning in August of 2002. Specifically, the plaintiff claimed that the defendant wrongfully waited a month to reject Wilcox as a supplier and then used rejection of Wilcox as a reason to try to renegotiate the contract and that the town was negotiating the final written contract while its counsel attempted to obtain an architect's certification to terminate the plaintiff for cause.

With regard to the punitive damages claim, the court begins by noting, as it did at trial, that a claim for punitive damages is not a separate count inasmuch as it is a remedy. (Tr., 5/6/05, p. 107.) To the extent that the plaintiff is requesting punitive damages as a remedy on the causes of action on which it has prevailed, the court finds that although the defendant's action toward the plaintiff was wrongful, the evidence does not support a finding that the plaintiff is entitled to punitive damages.

In Connecticut, punitive damages may be based either on statute or, in the absence of a statutory provision, common law. "Punitive damages are a remedy awarded only when the evidence shows reckless, intentional or wanton violation of the rights of others." (Internal quotation marks omitted.) Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., 97 Conn.App. 541, 577, 905 A.2d 1214, cert. denied, 280 Conn. 942, 943, 912 A.2d 479 (2006). While the court notes that the town acted badly in this matter, it cannot find that the actions of its employees rose to the level of "reckless, intentional or wanton violation[s]" of the plaintiff's rights. Accordingly, the court rejects the plaintiff's claim for punitive damages.

II. DEFENDANT'S COUNTERCLAIM

In the one remaining count of the defendant's counterclaim,⁴⁶ it alleged that Supreme breached the contract by failing to substantially complete work on the golf course by October 15, 2002, pay its subcontractors, and perform its work in a satisfactory and workmanlike manner. In its post-trial brief, the defendant argued, generally, that the plaintiff failed to complete the project in a timely manner and this failure constituted a breach of the parties' contract.⁴⁷ Furthermore, the defendant claimed that "[s]ubstantial completion on this project always was defined as completing the seeding by October 15th 2002," and that during construction of the course the plaintiff considered October 15th as a "reasonable time" in which to substantially complete the project.

46 As previously noted, supra, the defendant withdrew all other counts in the counterclaim, except for count one, which alleged a breach of contract.

47 Although DuBois testified that the plaintiff's employees rarely worked on the weekends and would often leave early on Fridays; (see DuBois testimony, 9/28/04, pp. 175-76); After a review of the plaintiff's time sheets, the court notes that the plaintiff's employees often worked at least eight hours a day and sometimes as much as thirteen hours a day. (Pl.'s ex. 536). On those few Fridays that the plaintiff did stop work early, the employees logged roughly five hours of work despite having left early. (See pl.'s ex. 536.) The court does not credit DuBois' testimony on this issue either standing alone or for the reason that this testimony does not acknowledge any of the work performed on behalf of the plaintiff by its subcontractors, and therefore, is misleading.

For all the reasons stated elsewhere in this memorandum of decision, the court finds by a preponderance of the evidence that it was the defendant which breached the contract between the parties by wrongfully terminating the plaintiff and by failing to pay the contract balance, not the9 plaintiff. It is clear to the court that it was the actions of the defendant which were wrongful and it has failed to sustain its burden of proof that the plaintiff committed a material breach of the contract. Moreover, the court finds that the parties did not agree to an October 15, 2002 substantial completion date; nor did this date provide the plaintiff with a reasonable amount of time to attain substantial completion. Rather, it was the combination of the lack of timely permits, the unique funding situation, the unsigned contract and the actions and interference of the defendant's employees and representatives that made it impossible for the plaintiff to substantially complete either the seeding or the project by October 15, 2002. Therefore, the court finds that the defendant has failed in its proof as to its counterclaim and, as such, there is no need to reach the issue of the defendant's damages, which was bifurcated by agreement of the parties.⁴⁸

48 During trial, the defendant presented limited evidence regarding damages for its claimed breach of contract other than the bare bones testimony of Chapman that the town suffered damages for additional costs of completion in the amount of $1.2 million. The parties agreed to bifurcate the issue of consequential damages due to the delayed opening of the golf course issues. (See tr., 1/7/05, p. 25; 5/6/05, p. 115-16.)

III. CONCLUSION

Accordingly, the court enters judgment in favor of the plaintiff on counts one, two and three of its complaint, and on the one remaining count of the defendant's counterclaim. In addition, the plaintiff is entitled to $800,338.78 in damages, as well as prejudgment interest pursuant to § 37-3a and offer of judgment interest pursuant to § 52-192a.

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