Tricon Int'l v. United Constr., Inc.

Full title: TRICON INTERNATIONAL, LTD. v. UNITED CONSTRUCTION, INC. ET AL

Court: Connecticut Superior Court Judicial District of New Britain Complex Litigation Docket at New Britain

Date published: Apr 4, 2005

2005 Ct. Sup. 6840 (Conn. Super. Ct. 2005)

Opinion

No. X03 CV 98 0518862 S

April 4, 2005

MEMORANDUM OF DECISION ON MOTIONS FOR SUMMARY JUDGMENT

SHELDON, JUDGE.

In this case, plaintiff Tricon International, Ltd. ("Tricon"), a Delaware corporation with its principal place of business in Middletown, Connecticut, has brought suit against five defendants in connection with work they allegedly performed between 1990 and 1997 on a Project to develop land owned by Tricon off of Route 17 in Middletown ("the Parcel") into an industrial park ("the Industrial Park") and a golf driving range ("the Driving Range"). The defendants include Middletown building contractor Glenn I. Russo ("Mr. Russo") and three Connecticut corporations of which he has always been President and he and/or his wife have always been sole owners: United Construction, Inc. ("United"), Newfield Association, Inc. nka Interstate Highway and Bridge Construction, Inc. ("Interstate"), and Landmark Development Group, Inc. ("Landmark"), all presently or formerly doing business at 108 Newfield Street in Middletown. In its 27-count Amended and Revised Complaint ("Complaint") dated July 8, 1999, Tricon bases each of its claims against Mr. Russo, United, Interstate and Landmark (collectively, "the Russo defendants")¹ on the following core allegations of fact. Commencing sometime in 1990, Tricon's President, Mr. Robert Trigo ("Mr. Trigo"), entered into discussions with Mr. Russo concerning the development of the Parcel. Complaint, Counts I-XVII, XIX-XXIV, ¶ 4. During these discussions, Mr. Russo, who did not represent himself to be acting on behalf of any company or corporation, allegedly informed Mr. Trigo that he was an experienced and fully qualified contractor in the area of commercial and industrial construction who "could and would handle the Project for Tricon." Id., ¶¶ 4-6. Mr. Russo allegedly agreed with Tricon, more particularly, "that the Project would proceed in phases pursuant to a series of design-build agreements over time, where Mr. Russo would arrange and oversee both the design and construction of the Project for the benefit of Tricon." Id., ¶ 7. Tricon refers to this alleged agreement, which was never reduced to writing, as the "Master Agreement." Id.

1 The remaining defendant is a Hartford, Connecticut engineering firm known as Girard Co., Engineers.

"Pursuant to the Master Agreement," claims Tricon, "Mr. Russo arranged for Tricon to enter into . . . [six separate written] design-build contract[s]" — two with United and four with Interstate. Id., ¶¶ 8-13. These separate written contracts, which the parties refer to as Contracts I through VI, are described in the Complaint as follows:

8. . . . an initial written design-build contract with United dated July 8, 1991 ("Contract I") for the design and zoning approval of a site plan for a proposed building (the "NatureMost Facility") and access road at the Industrial park, as well as the rough grading for the access driveway in accordance with the plans developed by United under the agreement. Contract I was signed by Glenn Russo as President of United.

9. . . . a second supplemental design-build contract with United in March 1992 ("Contract II") for the design and construction of various site work required to develop the NatureMost Facility site in the Industrial Park. Contract II was signed by Glenn Russo as President of United.

10. . . . a third supplemental design-build contract with Interstate dated September 29, 1992 ("Contract III") for the design and construction of a concrete foundation for the NatureMost Facility in accordance with the plan developed by Interstate pursuant to the agreement. Contract III was signed by Glenn Russo as President of Interstate.

11. . . . a fourth, supplemental written design-build contract with Interstate dated May 19, 1994 ("Contract IV") for the design and construction of the Driving Range, all in accordance with the plans prepared by Interstate pursuant to the agreement. Contract IV was signed by Glenn Russo as President of Interstate.

12. . . . a fifth supplemental written design-build contract with Interstate dated May 24, 1995 ("Contract V") for the design and construction of certain site and road improvements at the Driving Range, all in accordance with the plans designed by Interstate under the agreement. Contract V was signed by Glenn Russo as President of Interstate.

13. . . . a sixth supplemental written design-build contract with Interstate dated December 2, 1996 ("Contract VI") for the design and construction of various work at the Industrial Park, all in accordance with the plans designed by Interstate under the agreement. Contract VI was signed by Glenn Russo as President of Interstate.

Id. ¶¶ 8-13.

On the basis of the foregoing allegations, which the plaintiff has repleaded in each count of its Complaint, the plaintiff asserts separate claims for damages against the Russo defendants on the following theories of liability: (1) as to defendant United: breach of contract under Contract I (First Count) and Contract II (Second Count); negligence (Ninth Count), fraudulent misrepresentation (Twelfth Count), negligent misrepresentation (Thirteenth Count) and violation of the Connecticut Unfair Trade Practices Act ("CUTPA") (Nineteenth Count) with respect to work performed under Contracts I and II; and successor liability for the wrongful acts of Interstate, its alleged predecessor, with respect to work performed under Contracts III through VI; (2) as to defendant Interstate (fka Newfield): breach of contract under Contract III (Third Count), Contract IV (Fourth Count), Contract V (Fifth Count) and Contract VI (Sixth Count); and negligence (Tenth Count), fraudulent misrepresentation (Fourteenth Count), negligent misrepresentation (Fifteenth Count), and violation of CUTPA (Twentieth Count) with respect to work performed under Contracts III through VI; as to defendant Landmark: successor liability for the wrongful acts of United and Interstate, its alleged predecessors, with respect to work performed under Contracts I through VI; and as to defendant Glenn Russo: breach of contract under the alleged Master Agreement (Count Seven) and breach of fiduciary duty (Count Eight) in connection with alleged breaches by United and Interstate of Contracts I through VI; negligence (Eleventh Count), fraudulent misrepresentation (Sixteenth Count), negligent misrepresentation (Seventeenth Count) and violation of CUTPA (Twenty-Fourth Count) with respect to work performed under Contracts I through VI; and piercing the corporate veil (Twenty-Third Count) with respect to all actionable conduct by United, Interstate and Landmark.

The Russo defendants have denied all claims of liability against them and asserted several special defenses, to which the plaintiff has responded with denials and/or pleas in avoidance.

The case is now before the Court on two motions for summary judgment filed by the Russo defendants. The first is their Amended Motion for Summary Judgment dated June 4, 2001 ("Amended MSJ"), which was originally filed in virtually identical form, albeit with a scrivener's error as to the date of the operative complaint, on June 12, 2000. In the Amended MSJ, the defendants ask the Court to enter summary judgment for Mr. Russo on each and every count of the Complaint that pertains to him. They argue, more particularly, that each such claim must fail because it is based on at least one of the following factual propositions which the evidence of record disproves as a matter of law: (1) that Mr. Russo and Tricon actually entered into the alleged Master Agreement; (2) that Mr. Russo actually assumed fiduciary duties to Tricon; and (3) that Mr. Russo so controlled and operated United, Interstate and Landmark as to justify piercing the corporate veil against him and imposing personal liability upon him for their wrongful conduct.

The second motion now before the Court is the Russo defendants' Supplemental Motion for Summary Judgment dated September 7, 2001 ("Supplemental MSJ"). In the Supplemental MSJ, the defendants ask the Court to enter summary judgment in their favor on some or all of the claims made against them in the following counts: as to the plaintiff's claims of breach of contract under Contracts I and II against United and under Contract III against Interstate, as pleaded in Counts One, Two and Three of the Complaint, respectively, that such claims are barred by special provisions in those contracts limiting the period within which suit may be commenced thereon; as to the plaintiff's claims of negligence, fraudulent misrepresentation, negligent misrepresentation and violation of CUTPA against United with respect to work performed under Contracts I and II, that said claims, as pleaded in the Ninth, Twelfth, Thirteenth and Nineteenth Counts, respectively, are barred by applicable statutes of limitations; as to the plaintiff's breach-of-contract claim against Glenn Russo (Count Seven), and all of its tort claims against Mr. Russo (Counts Eight, Eleven, Sixteen, Seventeen and Twenty-Four) and Interstate (Counts Ten, Fourteen, Fifteen and Twenty), that insofar as those claims are based on work performed under Contracts I through IV, they are barred by applicable statutes of limitations.

Both of these Motions have been fully briefed and argued by counsel on the basis of the pleadings and substantial evidentiary submissions by the parties, including sworn affidavits with attached exhibits from Mr. Russo and Mr. Trigo.

I. SUMMARY JUDGMENT STANDARD

"Summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Practice Book § 17-49; Sherwood v. Danbury Hospital, 252 Conn. 193, 201 (2000); Alvarez v. New Haven Register, Inc., 249 Conn. 709, 714 (1999); Rivera v. Double A Transportation, Inc., 248 Conn. 21, 24 (1999); Nichols v. Lighthouse Restaurant, Inc., 246 Conn. 156, 163, 716 A.2d 71 (1998); Peerless Ins. Co. v. Gonzalez, 241 Conn. 476, 481, 697 A.2d 71 (1997).

The party moving for summary judgment bears the burden of proving the absence of a dispute as to any material fact which, under applicable principles of substantive law, entitle him to a judgment as a matter of law; and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. Rivera v. Double A Transportation, Inc., supra, 248 Conn. at 24. "To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact." Witt v. St. Vincent's Medical Center, 252 Conn. 363, 373 n. 7 (2000).

In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. The test is whether a party would be entitled to a directed verdict on the same facts. Sherwood v. Danbury Hospital, supra, 252 Conn. at 201; Serrano v. Burns, 248 Conn. 419, 424 (1999); Connell v. Colwell, 214 Conn. 242, 246-47 (1990). In Connecticut, a directed verdict may be rendered only if, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed. United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 380 (1969); Vuono v. Eldred, 155 Conn. 704, 705 (1967).

In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine if any such issues exist. Nolan v. Borkowski, 206 Conn. 495, 500 (1998); Telesco v. Telesco, 187 Conn. 715, 718 (1982).

II. FINDINGS OF FACT

1. The plaintiff in this action, Tricon International, LTD. ("Tricon"), is a Delaware corporation with its principal place of business in Middletown, Connecticut. At all times relevant to this case, Tricon has been owned by Mr. Robert Trigo and his wife, Mrs. Kay Trigo. Mr. Trigo is Vice President of Tricon.

2. Mr. Trigo is also sole owner and President of another business headquartered in Middletown known as NatureMost of New England, Inc. ("NatureMost"). NatureMost is a natural foods business with over twenty employees.

3. By the end of the 1980s, NatureMost's business had increased to the point that it had outgrown its existing place of business. In 1989, when Tricon purchased the Parcel off of Route 17 in Middletown, it intended to develop it into an Industrial Park where NatureMost could move it headquarters into a new and larger building to be constructed on the site.

4. To initiate work on the Industrial Park, Tricon, through Mr. Trigo, hired two design professionals. The first, engineer Rod Hewitt, was commissioned to develop site plan drawings for the development of the entire site as an industrial subdivision, on which one lot was to be used for the new NatureMost Facility. The second, architect Geoffrey Bray, was commissioned to design the future NatureMost Facility. To that end, Mr. Bray created a set of drawings to illustrate the exterior of the new building, the building floor plan and the site layout.

5. After taking these initial steps, Tricon began to seek a contractor to construct the new NatureMost Facility and to perform all associated site work. Upon discussing his plans with his lawyer, Attorney Michael Downey, Attorney Downey referred him to defendant Glenn Russo, another of his clients, whom he described to Mr. Trigo as an experienced local contractor with strong ties to the area, most especially to Xavier High School in Middletown, where Mr. Trigo coached track. Impressed by these credentials, Mr. Trigo set up a meeting with Mr. Russo to discuss the Project as he then envisioned it and his engineer and architect had preliminarily designed it.

6. At his initial meeting with Mr. Russo, Mr. Trigo explained that, although Tricon ultimately intended to develop the entire Site, its first priority was to develop the NatureMost site. Thereafter, he explained, it would develop and sell the remaining lots in the subdivision. So informed, Mr. Russo reportedly assured Mr. Trigo that he had the experience necessary to develop the site and to develop and constrict the NatureMost Facility. Mr. Trigo asserts that Mr. Russo convinced him that it would be in Tricon's best interest to have one contractor, Mr. Russo himself, do the whole Project. "Russo offered and I agreed that Russo would act on Tricon's behalf to arrange and oversee the design and construction of the Project." Trigo Affidavit, ¶ 14. Later, claims Mr. Trigo, "Russo frequently reminded me that the most benefit would come from using Russo for every part of the Project." Id.

7. Based upon his initial conversation with Mr. Russo, as described above, Mr. Trigo claims to have understood that Mr. Russo and Tricon had entered into a "Master Agreement" under which Mr. Russo would work on the Project "on Tricon's behalf and would function as the designer, builder and owner's representative" on the Project. Id., ¶ 15. "Russo," he further claims, "would be compensated by the payment for construction." The so-called "Master Agreement," however, was never reduced to writing, and never particularized as to either the scope or duration of the work to be performed thereunder or amount of compensation Mr. Russo would receive for such work. Indeed, the parties concededly never used the term Master Agreement or any comparable term to describe a separate undertaking between Tricon and Mr. Russo personally until its existence was first claimed in this lawsuit.

8. Notwithstanding the claimed existence of the Master Agreement between Tricon and Mr. Russo, Mr. Trigo concededly expected Mr. Russo to perform the work he had agreed to perform on the Project under a series of written contracts — one for each phase of the work — for which Mr. Russo would supply the necessary contract documents. Hence, the only surprise Mr. Trigo claims he had when Mr. Russo presented the first such contract ("Contract I") to him was that the contracting party listed on it was not Mr. Russo, but one of his companies, United Construction, Inc. ("United"). Upon questioning Mr. Russo about this unexpected change, Mr. Trigo was assured by Mr. Russo that United was his company, and thus that he would personally supervise and be responsible for all work to be performed under the contract. Id. After receiving this explanation, Mr. Trigo signed the contract as President of Tricon and Mr. Russo signed it as President of United. Mr. Trigo claims that he received similar assurances from Mr. Russo each time he and Mr. Russo, on behalf of Tricon and one of Mr. Russo's companies, signed a new contract for additional work on the Project. In all, they signed six different contracts ("Contracts I-VI") in the foregoing manner before their relationship ended in March of 1997.

9. As described by Mr. Trigo, all six contracts between Tricon and one of Mr. Russo's companies were "lump sum design-build contract[s] in which the Russo companies agreed to provide the design and constriction services necessary to perform the scope of the work." Id., ¶ 20. In presenting such contracts to Tricon, however, Mr. Russo allegedly assured Mr. Trigo "that he would continue to oversee the construction personally." Mr. Trigo has averred that, "[o]n Tricon's behalf, I relied on Russo's representations that he would be personally involved and would see that the work was properly performed. Russo's active involvement further assured me that Russo was going to perform the Project until it was completed." Id. ¶ 20.

Contract I

10. As alleged in Paragraph 8 of the plaintiff's Complaint, Contract I was a "written design-build contract between Tricon and United for the design and zoning approval of a site plan for a proposed building (the "NatureMost Facility") and access road at the Industrial Park, as well as the rough grading for the access driveway in accordance with the plans developed by United under the agreement." The Contract, which was signed by Mr. Trigo as the president of Tricon and by Mr. Russo as the president of United, specified that the access driveway was to be built "from Rt. 17 west to the proposed building, approximately 66' wide and 950' long, as delineated on [the] attached map entitled Exhibit A." Id., p. 1.

11. Prepared on a standard industry form for design-build agreements known as "ACG Document 415," Contract I contained the following relevant provisions concerning performance of and payment for the work required thereunder:

ARTICLE 1

The Construction Team and Extent of Agreement

1.1 THE CONSTRUCTION TEAM: The Contractor, the Owner, and the Engineer called the "Construction Team" shall work from the beginning of design through construction completion. The services of CARRUTHERS ENGINEERING as the Engineer will be furnished by the Contractor pursuant to an agreement between the Contractor and the Engineer.

1.2 EXTENT OF AGREEMENT: This Agreement represents the entire agreement between the Owner and the Contractor and supersedes all prior negotiations, representations or agreements. When the Drawings and Specifications are complete, they shall be identified by amendment to this Agreement. This Agreement shall not be superseded by any provisions of the documents for construction and may be amended only by written instrument signed by both Owner and Contractor.

1.3 DEFINITIONS: The Project is the total construction to be designed and constructed of which the Work is a part. The Work comprises the completed construction required by the Drawings and Specifications. The term day shall mean calendar day unless otherwise specifically designated.

ARTICLE 2 Contractor's Responsibilities

2.1 Contractor's Services

2.1.1 The Contractor shall be responsible for furnishing the Design and for the Construction of the Project. The Contractor shall develop a design and construction phase schedule and the Owner shall be responsible for prompt decisions and approvals so as to maintain the approved schedule. Any design, engineering, architectural, or other professional service required to be performed under this Agreement shall be performed by duly licensed personnel.

2.1.2 The Contractor shall prepare and the Owner approve a design phase schedule as follows: PHASE 1: Based upon the Owner's Project requirements, Design Studies will be prepared by the Engineer. These Schematics are for the purpose of assisting the Owner in determining the feasibility of the project. PHASE 2: Upon approval of Schematic Designs, Engineer shall prepare Design Development documents to fix the size and character of the Project as to materials and other appropriate essential items in the Project. These Development Documents are the basis for the design and construction of the Project. PHASE 3: From approved Design Development Documents the Engineer will prepare working Drawings and Specifications setting forth the requirements for the construction of the Project, and based upon codes, laws or regulations which have been enacted at the time of their preparation.

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2.2 Responsibilities With Respect to Construction

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2.2.3 The Contractor will prepare and submit for the Owner's approval an estimated progress schedule for the Project. This schedule shall indicate the dates for the starting and completion of the various stages of the design and construction. It shall be revised as required by the conditions of the Work and those conditions and events which are beyond the Contractor's control.

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2.4 Warranties and Completion

2.4.1 The Contractor warrants to the Owner all Work will be of good quality, free from improper workmanship and defective materials and in conformance with the Drawing and Specifications. The Contractor agrees to correct all Work performed by him under this Agreement which proves to be defective in workmanship within a period of one year from the Date of Substantial Completion as defined in Paragraph 5.2. This warranty is expressly in lieu of all other rights and remedies at law or in equity.

2.4.2. The Contractor will secure required certificates of inspection, testing or approval and deliver them to the Owner.

* * * * * * * * * * * * ARTICLE 3 Owner's Responsibilities

3.1 The Owner shall provide information regarding his requirements for the Project.

3.2 The Owner shall designate a representative who shall be fully acquainted with the Project, and has authority to approve changes in the scope of the Project, render decisions promptly, and furnish information expeditiously and in time to meet the dates set forth in Subparagraph 2.2.3.

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3.6 If the Owner becomes aware of any fault or defect in the Project or nonconformance with the Drawing or Specifications, he shall give prompt written notice thereof to the Contractor.

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3.9 The services and information required by the above paragraphs shall be furnished with reasonable promptness at the Owner's expense and the Contractor shall be entitled to rely upon the accuracy and the completeness thereof.

* * * * * * * * * * * * ARTICLE 5 Contract Time Schedule

5.1 The Work will be performed under this Agreement shall be commenced on or about July 5, 1991 and shall be substantially completed on or about November 29, 1991.

5.2 The Date of Substantial Completion of the Project or a designated portion thereof is the date when construction is sufficiently complete in accordance with the Drawing and Specifications so the Owner can occupy or utilize the Project or designated portion thereof for the use for which it is intended. Warranties called for by this Agreement or by the Drawing and Specifications shall commence on the Date of Substantial Completion of the Project or designated portion thereof. This date shall be established by a Certificate of Substantial Completion signed by the Owner and Contractor and shall state their respective responsibilities for security, maintenance, heat, utilities, damage to the Work and insurance. This Certificate shall also list the items to be completed or corrected and fix the time for their completion and correction.

5.3 If the Contractor is delayed at any time in the progress of the Project by any act or neglect of the Owner or by any separate contractor employed by the Owner, or by changes ordered in the Project, or by labor disputes, fire, unusual delay in transportation, adverse weather conditions not reasonably anticipated, unavoidable casualties, or any causes beyond the Contractor's control, or a delay by the Owner pending arbitration, then the Date for Substantial Completion shall be extended by Change Order for the period caused by such delay.

ARTICLE 6 Lump Sum Price

6.1 The Lump Sum price for the Project is ($50,0000.00). FIFTY THOUSAND.

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6.4 Allowances.

6.4.1 Allowances included in the Lump Sum are as set forth below:

$25,0000.00 Starting date rough grading

$25,000.00 Substantial completion date

ARTICLE 7 Changes in Project

7.1 The Owner, without invalidating this Agreement, may order Changes in the Project within the general scope of this Agreement consisting of additions, deletions or other revisions. The Lump Sum, and the Contract Time Schedule shall be adjusted accordingly. All such Changes in the Project shall be authorized by Change Order.

7.1.1 A Change Order is a written order to the Contractor signed by the Owner or his authorized agent and issued after the execution of this Agreement, authorizing a Change in the Project and/or an adjustment in the Lump Sum or the Contract Time Schedule.

* * * * * * * * * * * * ARTICLE 8 Payments to the Contractors

8.1 Payments shall be made by the Owner to the Contractor according to the following procedure:

8.1.1 On or before the 15th day of each month after Work has commenced, the Contractor shall submit to the Owner an Application for Payment based on the Work completed and materials stored on the site and/or at locations approved by the Owner for the period ending on the 1st day of the month.

8.1.2 Within ten (10) days after his receipt of each monthly Application for Payment, the Owner shall pay directly to the Contractor the appropriate amounts for which Application for Payment is made therein. This payment request shall deduct the aggregate of amounts previously paid by the Owner.

8.1.3 If the Owner should fail to pay the Contractor at the time the payment of any amount becomes due, then the Contractor may, at any time thereafter, upon serving written notice that he will stop Work within, seven (7) days after receipt of the notice by the Owner, and after such seven (7) day period, stop the Project until payment of the amount owing has been received. Written notice shall be deemed to have been duly served if sent by certified mail to the last known business address of the Owner.

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8.4 Final payment constituting the unpaid balance of the Project shall be due and payable when the Project is delivered to the Owner, ready for beneficial occupancy, or when the Owner occupies the Project, whichever event first occurs, provided that the Project be then substantially completed and this Agreement substantially performed. If there should remain minor items to be completed, the Contractor and the Owner shall list such items and the Contractor shall deliver, in writing, his guarantee to complete said items within a reasonable time thereafter.

8.6 The making of Final Payment shall constitute a waiver of all claims by the Owner except those rising from: unsettled liens; improper workmanship or defective materials appearing within 3 months after the Date of Substantial Completion; and terms of any special guarantees required by the Drawings and Specifications.

8.7 The acceptance of Final Payment shall constitute a waiver of all claims by the Contractor except those previously made in writing and unsettled.

ARTICLE 12 Miscellaneous Provisions SUBSTANTIAL COMPLETION BALANCE WILL BE PAID IN 5 MONTHLY PAYMENTS OF $5,000.00 ON THE 28th DAY OF EACH MONTH. PAYMENTS WILL START AS SOON AS SUBSTANTIAL COMPLETION OCCURS.

12. In his sworn affidavit dated September 6, 2001, ("Second Russo Affidavit") Mr. Russo averred: (a) that "[f]inal payment on Contract I was made by Tricon on or about June 5, 1992[;] id., ¶ 12; (b) that "[t]he work and services provided by United under Contract I had been completed prior to the date of the final payment by the plaintiff[,]" id., ¶ 13; and (c) that [n]o work or services were performed or materials provided on Contract I after receiving final payment." Id., ¶ 14.

13. In his countering Affidavit, by contract, Mr. Trigo averred that Mr. Russo and his companies never completed the work required by Contract I. Trigo Affidavit, ¶¶ 34, 46. He claims, in particular, that "United never graded the access driveway to permit access of construction vehicles for the prescribed length" of 950 feet, and "never stabilized [the grading it did] perform . . . to prevent erosion." Id., ¶ 53. As a result, he claims that Tricon was later required to have the road graded and compacted by another contractor. Id.

14. Mr. Trigo further averred that he did not discover any of the above-described problems with the work performed by Mr. Russo and United under Contract I until it was brought to his attention by one Joseph Sarcia, an electrical contractor introduced to him by Mr. Russo who had bought a lot for his business in the Industrial Park, that Tricon's new NatureMost Facility had been built with thinner walls than it had contracted for with Newfield, another of Mr. Russo's companies under Contract III. Trigo Affidavit ¶ 50. Upon making this discovery, claims Mr. Trigo, Tricon and its consultants "took a closer look at the other phases of the Project," including the work performed under Contract I, and discovered "major deficiencies and/or overcharges" in each and every one of them. Id., ¶ 52.

15. Mr. Trigo attributes his failure to discover such deficiencies and/or overcharges earlier to:

a. His own inexperience with commercial or industrial construction; Trigo Affidavit, ¶ 21;

b. His complete reliance on Mr. Russo, which Mr. Russo had allegedly gone out of his way to foster since their very first meeting; id., ¶¶ 14, 15, 18, 37

c. Mr. Russo's. personal involvement in all facets of the Project; id., ¶ 19; his repeated assurances that he would guide Tricon through the entire Project; id., ¶ 22; his constant encouragement to Mr. Trigo that he focus his attention on his NatureMost work; id., and his invocation of his own experience in the construction business, a basis upon which Mr. Trigo should agree to proposed change orders and construction delays; id., ¶¶ 24, 25; and

d. Mr. Russo's strong urging not to hire or even consider hiring, other (non-Russo) contractors for any phase of the work. In fact, on the one occasion, on Contract VI, when he did solicit bids from others contractors his efforts assertedly enraged Mr. Russo, who first warned "that it would not go well if we changed contractors," then lowered his price and promised Tricon further savings if it kept him as its sole contractor. Id., ¶ 31.

16. In any event, Mr. Trigo contends that none of Mr. Russo's companies substantially completed its work on any of their six contracts with Tricon and Tricon never made final payment under any such contract because Mr. Russo never provided a Certificate of Substantial Completion or any other documentation establishing that work under any contract was substantially complete or that Tricon was making final payment. Id., ¶ 62. Nor, he contends, did Mr. Russo ever provide a progress schedule required under Section 2.2.3 of the Agreement; keep full and detailed accounts necessary for proper financial management under Section 2.2.7; secure required certificates of inspection, testing or approval and deliver them to Tricon under Section 2.4.2; or submit a detailed application for payment under Section 8.1.1.

Contract I

17. Contract II, as alleged in paragraph 9 of the plaintiff's Complaint, was a "second supplemental design-build contract with United in March 1992 for the design and construction of various site work required to develop the NatureMost Facility site in the Industrial Park." The Contract, which was signed by Mr. Trigo as the president of Tricon and by Mr. Russo as the president of United, listed the work to be performed thereunder as follows:

CLEAR STUMPS TO EXISTING PILES

STRIP TOPSOIL WITHIN WORK AREA

BULK EXCAVATION ±1 FOOT

CONSTRUCT RETENSION (sic) POND

DRAINAGE SWALES AND TRENCH DRAINS

SPREAD TOPSOIL AND SEED ALL DISTURBED (sic) AREAS, WITHIN 50 FEET OF WORKING AREA

18. Prepared, like Contract I, on an ACG Document 415 form contract, Contract II was identical in form and substantially similar in content to Contract I, with the following relevant exceptions:

a. The Work to be performed under the Contract was to have commenced on or about May 1, 1992 and to have been substantially completed on or about September 29, 1992. Contract II, ¶ 5.1.;

b. The Lump Sum price of the Contract was set at $56,000.00. Id., ¶ 6.1

c. The $5,000 per month payment obligation for Work to be performed under the Contract was moved from the Miscellaneous Provisions of the Contract, where it had been in Contract I, to the Payment provisions in Paragraph 8.1.2.

d. The improper-workmanship-or-defective-materials exception to the waiver-of-claims-by-final-payment provision in Paragraph 8.6 of the Contract was extended to include all improper workmanship or defective materials "appearing within a year after the Date of Substantial Completion."

19. In his September 6, 2001 Affidavit, Mr. Russo averred: (a) that "final payment on Contract II was made by Tricon on or about April 6, 1993"[;] id., ¶ 19; (b) that "[t]he work and services provided by United under Contract II had been completed prior to the date of the final payment by the plaintiff"[;] id., ¶ 20; and (c) that "[n]o work or services were performed or materials provided on Contract II after receiving final payment from the plaintiff." Id., ¶ 21.

20. Mr. Trigo, in his countering affidavit, averred to the contrary that Mr. Russo and his companies never completed the work required by Contract II. Trigo Affidavit, ¶¶ 34, 47. He claims, in particular, that the Work on Contract II was incomplete and/or inadequate in two ways. First, United assertedly failed to grade the NatureMost Facility site to within one foot of the elevations stated on the contract plan. Thus, he claimed many areas of the site were left untouched, while others were left over three feet higher than specified. Id., ¶ 54. As a result, claimed Mr. Trigo, it became impossible to obtain the elevations reflected on the contract plan, thereby dramatically altering the slopes of the site. Second, although Contract II called for United to construct a retention pond, drainage swales, and trench drains, none of these features was ever installed. Id., ¶ 55. As a result of United's failure to take these water control measures, as well as its alleged failure to stabilize the site with topsoil and grass, erosion plagued the site.

21. Mr. Trigo was aware that the retention pond, drainage swales and trench drains had not been built in the time frame originally contemplated for its construction, because, at Mr. Russo's urging, he had agreed to postpone their installation until later, when other construction was no longer taking place on the site. Trigo Deposition, pp. 65-66. Eventually, he concedes, Mr. Russo did apply a credit for work not done on Contract 11 — albeit an inadequate one — to payments allegedly due on a later contract. Trigo Affidavit, ¶ 47.

Contract III

22. Contract III, as alleged in Paragraph 10 of the plaintiff's Complaint, was a "third supplemental design-build contract with Interstate dated September 28, 1992 for the design and construction of a concrete foundation for the NatureMost Facility in accordance with the plan developed by Interstate pursuant to the agreement." It was signed by Mr. Trigo as the president of Tricon and by Mr. Russo as the president of Newfield.

23. Prepared, like Contracts I and II, on an ACG Document 415 form contract, Contract III was identical in form and substantially similar in content to the earlier contracts, with the following relevant exceptions:

a. Contract III named Girard Co., Engineers as the Architect/Engineer on the Project. Id., ¶ 1.1.

b. The Work to be performed under Contract III was to have commenced on or about October 25, 1992 and to have been substantially completed on or about December 25, 1992. Id. ¶ 5.1.

c. The Lump Sum Price for the contract was set at $64,015.00. Id., ¶ 6.1.

d. The $5,000 per month payment obligation for work performed under the Contract was listed in paragraph 8.1.2 of the Contract, as it had been in Contract 11, not in the Miscellaneous Provisions of the Contract, as it had been in Contract I.

e. Paragraph 8.3 of the Contract, which had been deleted from Contracts I and II, provided as follows: "No Progress Payment nor any partial or entire use or occupancy of the Project by the Owner shall constitute an acceptance of any work not in accordance with the Drawings and Specifications." Id., ¶ 8.3.

f. Paragraph 8.4 of the Contract contained the following additional language, which had been deleted from Contracts I and II:

The Owner may retain a sum equal to 150 percent of the estimated cost of completing any unfinished items, provided that said unfinished items are listed separately and the estimated cost of completing any unfinished items is likewise listed separately. Thereafter, the Owner shall pay to the Contractor, monthly, the amount retained for incomplete items as each of said items is completed.

Id., ¶ 8.4.

g. Paragraph 8.5 of the Contract, which had been deleted from Contracts I and II, provided as follows: "Before issuance of Final Payment, the Owner may request satisfactory evidence that all payrolls, materials bills and other indebtedness connected with the Project have been paid or otherwise satisfied." Id., ¶ 8.5.

h. The improper-workmanship-and-materials exception to the waiver-of-claims-by-final-payment provisions in Paragraph 8.6 was extended, as it had been in Contract II, to include all improper workmanship or defective materials "appearing within one year after the date of Substantial Completion." Id., ¶ 8.6.

24. In his September 6, 2001 affidavit, Mr. Russo averred: that: (a) "[f]inal payment on Contract III was made by Tricon on or about May 13, 1994"[;] id., ¶ 26; (b) that [t]he work and services provided by [Interstate fka] Newfield Under Contract III had been completed prior to the date of final payment by the plaintiff"[;] id., ¶ 27; and (c) that "[n]o work or services were performed or materials provided on Contract III after receiving final payment by the plaintiff. Id., ¶ 28.

25. Mr. Trigo, in his countering affidavit, disagreed with Mr. Russo on this subject, contending that Mr. Russo and his companies did not complete the work defined in Contract III and poorly performed the work they did attempt to complete in several significant ways. He noted, in particular, that:

Russo significantly deviated from the design for the foundation, without the approval of either the project engineer or the town building officials. The foundation footings were all undersized by about 20%. The footings were not installed deep enough. The foundation was significantly out of square and out of level. The foundation was mounded over with unstable material requiring excavation. Interior piers were not installed. Provisions were not made for utilities. The foundation did not allow for the required loading dock. The concrete contained air pockets, or honeycombs, that needed to be torn out and replaced. As a result of these deficiencies, Tricon incurred substantial remedial costs to use the foundation.

Trigo Affidavit, ¶ 56.

26. As previously noted, Mr. Trigo did not learn of any of the above-described deficiencies in the foundation of the NatureMost Facility until its undersized walls were first pointed out to him by Mr. Sarcia. Only then, upon having a local architect and another contractor investigate the situation, were Interstate's other errors in building the foundation discovered.

27. Though Mr. Trigo conceded in his deposition that he could at any time have taken out a ruler and measured the thickness of the foundation walls, he testified that he had no reason at all to do so because he trusted Mr. Russo to do what he had agreed to do. Trigo Deposition, pp. 68-69. As for the deficient depth of the foundation footings, however, he testified that that error could not be seen until it was excavated by the contractor he hired to help investigate problems with the foundation. Id., 70. He had gotten no earlier notice of the problem because Mr. Russo had never advised him that there was one and no inspector was ever brought on site to conduct an independent inspection of the foundation. Id.

28. As for the foundation being out of square and out of level, Mr. Trigo similarly claimed in his Affidavit that such problems were not readily detectable by visual inspection and that he had no reason to believe that Mr. Russo had made any such errors before discovering the wall thickness error that prompted his later review of all work done by Mr. Russo's companies on the Project. Until that point, he claims that he trusted Mr. Russo to take care of everything for him, just as Mr. Russo had assured him he would do. Id., pp. 73-74.

29. As for the alleged inadequacy of the foundation to construct a loading dock, Mr. Trigo claimed that this deficiency was not detected until it was determined that the elevation of the building was improper. The problem, as he described it in his deposition, was that with the inappropriate increase in elevation, the foundation was not dug deep enough to start below the frost line. Id., p. 75. Mr. Russo, he testified, had never told him of this problem, which was not visible to the naked eye. Id., p. 76. "Honeycombs" formed by air pockets in the concrete were also not discovered until the foundation was dug out in the course of the 1997 investigation prompted by the discovery of the wall thickness error. Id., p. 76.

Contract IV

30. As alleged in Paragraph 11 of the plaintiff's Complaint, Contract IV was a fourth "supplemental written design-build contract with Interstate [fka Newfield] dated May 19, 1994 for the design and construction of the Driving Range, all in accordance with plans prepared by Interstate pursuant to the agreement." The Contract which was signed by Mr. Trigo as the president of Tricon and Mr. Russo as the President of Newfield, listed the work to be performed thereunder and the prices to be charged for it as follows:

Field Stake out 500 Cut and Clear trees 23,437 Stump trees 28,066 Silt Fence 755 Water Line 4,735 Parking lot and 6,000 Driveway 1,300 Septic System 6,863

*Does not include any rock excavation or dewatering.

31. Prepared on an ACG Document 415 form contract, Contract IV was identical in form and substantially similar in substance to Contracts 1, 11 and III, with the following exceptions:

a. The Architect/Engineer on the Project was listed as Blanchet Associates, P.C. Id., ¶ 1.1;

b. The Work on the Project was to have commenced on or about August 9, 1994 and to have been substantially completed on or about July 30, 1994. Id., ¶ 5.1.

c. The Lump Sum price for the Contract was set at $63,450.00. Id., ¶ 6.1.

d. The $5,000 per month payment obligation was imposed under Paragraph 8.1.2 of the Contract, as it had been under Contracts II and III, not in the Miscellaneous Provisions of the Contract, as in Contract I. "In addition to [such monthly payments]," the new last sentence of Paragraph 8.1.2 required Tricon to "pay directly to contractor $30,000.00 within 3 weeks of completion of tree clearing."

32. Mr. Russo, in his September 6, 2001 Affidavit, averred: (a) that [t]he work required under Contract IV was commenced by [Interstate fka] Newfield on or about May 9, 1994 and completed in a timely fashion[;] id., ¶ 31; that (b) "Newfield certainly had completed Contract IV prior to the winter of 1994-95, though I do not have the records to determine the actual date of substantial completion of this contract due to the passage of time"[;] id., ¶ 33; and (c) that "[n]o work or services were performed or materials provided on Contract IV following the substantial completion of Newfield." Id., ¶ 34.

33. Mr. Russo also averred that Tricon did not complain about the quality of the work on Contract IV or any of the three contracts that proceeded it, did not claim that the work on any such contract had not been completed, and did not claim that such work had been conducted in an improper and unworkmanlike manner, such work was substantially completed or full and final payment was made therefore. Id. ¶ 35.

34. In his countering affidavit, Mr. Trigo averred that Mr. Russo issued numerous change orders on Contract IV which significantly increased the contract sum despite only negligible changes in the work. Trigo Affidavit, ¶ 57. When he was deposed on this subject, however, Mr. Trigo could not recall any of the particulars of this very general allegation. Trigo Deposition, pp. 77-78.

Contract V CT Page 6862

35. As alleged in Paragraph 12 of the plaintiff's Complaint, Contract V was a "fifth supplemental written design-build contract with Interstate dated May 24, 1995 for the design and construction of certain site and road improvements at the Driving Range, all in accordance with the plans designed by Interstate under the Agreement."

3. In his countering Affidavit Mr. Trigo averred that "Contract V was a lump sum ($77,228) design-build contract . . . Russo issued numerous change orders on Contract V. These changes significantly increased the contract sum." Trigo Affidavit.

Contract VI

36. As alleged in Paragraph 13 of the plaintiff's Complaint, Contract VI was a "sixth supplemental written design-build contract with Interstate dated December 2, 1996 for the design and construction of various work at the Industrial Park, all in accordance with the plans designed by Interstate under the agreement." The purpose of this Contract, for which Mr. Trigo admittedly solicited and received bids from outside contractors before negotiating a final agreement with Interstate for a better price than that originally offered by the disgruntled Mr. Russo, was to run utilities from Route 17 to the site of Mr. Sarcia's newly purchased lot in the Industrial Park. Trigo Affidavit, ¶¶ 28, 31. The Contract was signed by Mr. Trigo as President of Tricon and by Mr. Russo as President of Interstate.

37. Interstate was not permitted to complete its work on Contract VI because Mr. Trigo was advised by others, in the early stages of such work, that "the work was not progressing in a proper manner." Id. ¶ 32. The event that precipitated his order that the work be discontinued was the washing of soil onto Mr. Sarcia's newly purchased lot in the Industrial Park. Id. Mr. Trigo contends that this event resulted from Mr. Russo's failure to install any erosion control measures in the Industrial Park and his failure to compact the material used to build the driveway from Route 17 to the NatureMost Facility. Id. Upon being ordered to cease all work under Contract VI, Mr. Russo assertedly discontinued all work on the Project. Id., ¶¶ 32, 49. According to Mr. Trigo, Mr. Russo has thus far failed and refused to issue an appropriate credit for his incomplete work on Contract VI.

The Russo Companies CT Page 6863

38. In the six-year period in which Mr. Russo's companies performed work on Contracts I-VI, each of those companies was wholly owned by Mr. Russo's wife, who was its sole shareholder. Russo Deposition, pp. 40-41. Mr. Russo, as the President and only director of each such company, made all of the corporate decisions for each of them. Id., p. 69, 406. Mr. Russo took no compensation for his services from any of his companies, from 1990 forward. Id., pp. 98-99. All profits from the companies' contracts with Tricon were thus distributed in the manner determined by the Board of Directors, of which he was the only member. Id., pp. 40-41, 69.

39. Mr. Russo has a practice of disposing of documents after a year or two. Russo Deposition, pp. 56, 392. As a result of this practice, he claims that he is unable to identify any of the employees who worked for United, Newfield, or Interstate on Contracts I-VI. Id., p. 70.

40. During this same time period, all of Mr. Russo's companies operated from the same address; Russo Deposition (9/6/01) p. 8; used the same telephone line; id., pp. 82-83; used the same office staff; id., pp. 80-81; and used the same company vehicles. Id., pp. 391-92.

III. CONCLUSIONS OF LAW A. Amended MSJ 1. Seventh Count — Claim of Breach of Contract (the Alleged "Master Agreement") Against Mr. Russo

The first claim on the defendants' Amended MSJ is that Mr. Russo is entitled to judgment as a mater of law on the Seventh Count of the plaintiff's Complaint, pleading breach of an alleged "Master Agreement" between himself and Tricon, on the ground that no such Master Agreement ever existed. Tricon has alleged that under the Master Agreement, Mr. Russo agreed to arrange and oversee, for the benefit of Tricon, the design and construction of its multiphase Project to develop its Parcel off of Route 17 in Middletown into the Industrial Park and the Driving Range. As part of said Master Agreement, Mr. Russo assertedly agreed and warranted that the Project would be constructed in a manner free from defect and in conformance with all applicable law standards, and codes, and that he personally would oversee the effort to complete the Project for the benefit of Tricon. Tricon therefore claims that when Mr. Russo attempted to carry out the Master Agreement by arranging to have certain of his companies — specifically, United, Newfield, and Interstate — perform work on the Project under Contracts I-VI, he became personally liable under the Master Agreement for all breaches by his companies of their respective contractual obligations.

The defendants challenge Tricon's assertion that any Master Agreement ever existed between Mr. Russo and Tricon by invoking settled principles of contract law, under which "an agreement[,]" to be enforceable as a valid contract, "must be definite and certain of its terms and requirements." Dunham v. Dunham, 204 Conn. 303, 313, 528 A.2d 1123 (1987), quoting Augeri v. C.F. Wooding Co., 173 Conn. 426, 429-30, 378 A.2d 538 (1977). "To constitute an offer and acceptance sufficient to create an enforceable contract," the defendants rightly note, "each must be found to have been based on an identical understanding by the parties." LR Realty v. Connecticut National Bank, 53 Conn.App. 524, 534, 732 A.2d 181, cert. denied, 250 Conn. 901, 734 A.2d 984 (1999). "If the minds of the parties have not truly met," they remind the Court, "no enforceable contract exists . . . So long as any essential matters are left open for further consideration, the contract is not complete." Id.

Here, claim the defendants, the evidence before this Court does not reasonably. support a finding that Mr. Russo ever entered into any agreement with Tricon separate and apart from any of the individual design-build agreements that he and Mr. Trigo signed and entered into as the Presidents of their respective companies. Indeed, they claim, and this Court agrees, that all the evidence is to the contrary.

To begin with, the supposed Master Agreement was never reduced to writing. Indeed, it was not even referenced in any writing authored by either party. It thus was not claimed to exist by any name or title, including the name "Master Agreement," until Tricon brought this lawsuit. As such, the Master Agreement has never been claimed, even by Mr. Trigo, to have any definite terms, such as a start date, an end date, a description of the work to be performed thereunder or of the compensation or other consideration to be paid therefor, or any other standard terms in a construction contract or a personal services agreement. Indeed, the only specific term of the alleged Agreement that Mr. Russo claimed to recall at his deposition — that Mr. Russo would obtain the zoning approval for the Parcel — was admittedly the subject of Contract I, which Mr. Trigo and Mr. Russo signed, respectively, as the Presidents of Tricon and United.

In fact, the dealings between the parties are completely consistent with the existence of a mutual understanding between Mr. Russo and Tricon that he would deal with Tricon only as the official representative of one of his companies, and thus that he would serve Tricon's interests by performing work agreed to under the companies' contacts with Tricon, not as a private individual.

Accepting as true, as it must on these Motions, Mr. Trigo's claim that he was surprised when he first received the documents from Mr. Russo setting forth an initial proposed design-build agreement between Tricon and United which, when signed, would became Contract I, the Court must also accept as true the explanation for his claimed surprise. Importantly, he was not surprised that the work described in Contract I would be performed under a written contract, but only that that contract would be with United, one of Mr. Russo's companies, instead of with Mr. Russo personally. This explanation makes two things clear. The first is that notwithstanding the breadth of any prior discussions he may have had with Mr. Russo as to his company's ultimate plans for the development of the Parcel, Mr. Trigo always understood that if Mr. Russo was to perform any work on the Project, he would do so under a series of contracts of particular scope and duration, for which particular compensation would be paid, not under an open-ended arrangement with uncertain terms, expectations, and responsibilities. When, moreover, he assured Mr. Trigo that the job would in fact be done right because United was his company and he would be on the job, he thereby made it clear that all of his prior assurances of good and faithful performance, like his present assurances, had been given on behalf of his company, not on behalf of himself. Thus his long-standing message to Tricon was not that he could be counted on to supervise United in the performance of work under the contract, as if he were a construction manager or owner's representative who had hired United to work as a subcontractor or an independent contractor, but rather that United could be counted on to do the work correctly because it was his company and he would take part directly in its performance of the work. This representation, which Mr. Trigo accepted, put his prior conversations with Mr. Russo in a new light which Mr. Trigo, an experienced businessman who had entered into many prior contracts, well understood. Just as Mr. Trigo had engaged in those prior conversations with Mr. Russo on behalf of his company, Tricon, Mr. Russo had engaged in such conversations on behalf of United. Hence, by signing Contract I as the President of Tricon, along with Mr. Russo, who signed it as the President of United, Mr. Trigo agreed, on behalf of Tricon, that the contract "represent[ed] the entire agreement between the Owner and Contractor and supersede[d] all prior negotiations, representations or agreements." Contract I, ¶ 1.2.

In fact, the language of Contract I and of all succeeding contracts between Tricon and Mr. Russo's companies expressly contemplated that Tricon, as the Owner of the site where the Work was to be performed and the party for whose benefit it was to be done, would retain full control over all aspects of site development including the design and performance of the Work required under each particular Contract. With respect to the Work to be performed under each particular Contracts, the Owner was not only designated, along with the Contractor and the Engineer and/or Architect, as a member of the Construction Team; see, e.g., Contract I, ¶ 1.1; but was expressly charged with preparing itself to serve as an effective and efficient member of that Team. On this score, the Contracts expressly made the Owner responsible for making prompt decisions and issuing prompt approvals so as to maintain the approved design and construction schedule; Contract I, ¶ 2.1.1; required the Owner to "work closely together [with the Contractor and the Engineer] to monitor the design in accordance with prior approvals so as to ensure that the Project can be constructed within the Lump Sum as defined in Article 6"[;] id., ¶ 2.1.3; and to that end, mandated that it "designate a representative who shall be fully acquainted with the Project, and has authority to approve changes in the scope of the Project, render decisions promptly, and furnish information expeditiously and in time to meet the dates set forth in Subparagraph 2.2.3." Id., ¶ 3.2. Nothing in this language cedes control of the Work to be performed under the Contract, much less the overall development of the site, to any other person or entity. Notably, it does not cede any such power to Mr. Russo, whose name only appears on the Contract in the form of his signature as the President of United. In fact, Tricon invariably chose to act through Mr. Trigo, not through Mr. Russo, for despite his protestations of inexperience with such matters and his very busy schedule running NatureMost, he personally oversaw every aspect of each of Tricon's contracts with the Russo companies, from start to finish. Thus it is that he reviewed and exercised authority, on behalf of Tricon, to approve or disapprove all requests for change orders and construction delays presented to him by Mr. Russo. The fact that Tricon chose him, with his claimed inexperience, to serve as its representative for this important purpose is hardly attributable to Mr. Russo, for Tricon could freely have selected someone more knowledgeable than him to serve in that capacity if it truly felt that it was necessary to meet its obligations under Paragraph 3.2 of the Contracts.

The Contract, moreover, expressly contemplated that the Owner could hire other, completely separate contractors to perform work on the Project, without ever securing the approval of Mr. Russo or any of his companies. References to such separate contractors can be found in many parts of the Contracts, including the following Paragraphs from Contracts I-IV: (a) Subparagraph 2.2.6, which provides in part "that the Contractor shall have no responsibility for the elimination or abatement of safety hazards created or otherwise resulting from the Work at the job site caused by other persons or forces directly employed by the Owner as separate contractors and tenants to abide by and fully adhere to all applicable provisions of federal, state and municipal safety laws and regulations and to comply with all reasonable requests and directions by the Contractor for the elimination or abatement of any such safety hazards at the job site"[;] (b) Paragraph 4.1, which provides that "[a]ll portions of the Work that the Contractor does not perform with his own forces shall be performed under subcontracts[,]" when read in light of Paragraph 4.2, which defines a "Subcontractor" as "any person or entity who has a direct contract with the Contractor to perform any Work in connection with the Project[, but . . .] not . . . any separate contractor employed by the Owner or the separate contractors' subcontractors"[;] (c) Paragraph 5.3, which discusses the effect upon the Date of Substantial Completion of any delay in the progress of the Project caused "by any separate contractor employed by the Owner"[;] and (d) Subparagraph 9.1.2, which provides in part that "[t]he Owner shall cause any other contractor who may have a contract with the Owner to perform work in the areas where the Work will be performed under this Agreement, to agree to indemnify the Owner and the Contractor and hold them harmless from all claims for bodily injury and property damage . . . that may arise from that contractor's operations." The upshot of these provisions is that they empowered Tricon to hire separate contractors to perform all or any part of the remaining Work on the Project without input from, much less control by, Mr. Russo or any of his companies.

Finally, it must be noted that both Mr. Trigo and Mr. Russo were well aware of Tricon's continuing power to control the development of its own site, including its right to hire separate contractors, unaffiliated with Mr. Russo or any of his companies, to do the Work. In the case of Mr. Trigo, who had been working on this Project independently for some time before he first met Mr. Russo, this awareness was most vividly illustrated by his solicitation of bids from other contractors for the Work to be performed under Contract VI. Mr. Trigo never doubted that he had the independent power and authority to solicit those bids, and certainly never suggested, in his deposition, his affidavit or elsewhere, that by so doing he had bypassed, and thus breached some unwritten "Master Agreement" with Mr. Russo.

Indeed, Mr. Russo's reported response to Mr. Trigo's effort was even more telling, for although he is claimed to have expressed anger that Mr. Trigo would consider hiring other contractors, his actions belied any belief on his part that Tricon could not freely do so because of any separate contractual commitment to him. Indeed, although he reportedly began his tirade with veiled threats that "things would not go well" for Tricon if it failed to contract with him for fixture Work, he only "urged" the plaintiff not to contract with others without demanding that he do so, and in the end he capitulated to Tricon's implicit threat to bring its business elsewhere by slashing his price for Contract VI and promising Tricon further benefits from continued dealings with his companies. These are not the actions of a person who believes he has an enforceable contract, but those of one who clearly knows he does not.

Against this background, Tricon's claim that there was a Master Agreement has nothing in the record to support it except for Mr. Trigo's bare insistence that it did. Its claim that Mr. Russo defined the scope of Work for each phase of the Project and designated which of his companies would perform that Work is utterly belied by the foregoing discussion as to Tricon's continuing authority to proceed as it wished to and to contract with whomever it chose, whenever it chose, without even the input, much less the approval, of Mr. Russo. Each of Tricon's six Contracts with a Russo defendant was negotiated by and between Mr. Trigo and Mr. Russo, two experienced businessmen, each of whom could have sought the assistance of others for technical guidance anytime he wished to, and ultimately could have accepted or rejected what the other proposed. Mr. Trigo cannot complain of his relative inexperience at this remove because of his own poor choice, if poor it was, to name himself as Tricon's representative who had the power and authority to approve such matters as change orders and construction delays.

As for Mr. Russo's restated commitment to do the job right, such a commitment is no different than that implied by any businessman who represents that his product or service is worth buying. When made, however, by a corporate President prefatory to signing a contract with an integration clause specifically providing that the language of the contract supersedes all prior discussions and negotiations, it can hardly be viewed as the firm foundation of a separate personal undertaking between himself individually and his corporation's contracting partner.

There is nothing sinister or unusual, moreover, in Mr. Russo's personal involvement in performing the Work which his own company has contracted to perform. That he directed such Work, as approved by the Owner under the specifications of the Contract itself, hardly suggests or supports the existence of some separate undertaking by him for the special benefit of his corporation's contracting partner.

Tricon further argues that Mr. Russo provided services for it beyond the scope of Contracts I-VI. Such added Work, it claims, tends to show the existence of a separate contract between them. Russo, it claims, performed the following kinds of added services not called for by his companies' Contracts: he defined each phase of the Project; he solicited the professional services needed for the Project; he had drawings prepared for the Project in advance; he obtained a quotation for architectural construction drawings for the NatureMost Facility; he helped Tricon to locate Mr. Sarcia as a potential buyer; and he was a full service constriction manager and advisor.

A quick examination of his companies' Contracts with Tricon, however, reveals that most of these services were in fact called for by the terms of those Contracts. Defining phases of the Project, for example, is called for by Subparagraph 2.1.2 of Contracts I-IV, which provides that "[t]he Contractor shall prepare and the Owner approve a design phase schedule . . . Solicitation of professional services needed for the Project is impliedly required by contractual language making the Contractor "responsible for furnishing the Design and for the Construction of the Project"[;] see, e.g., Contact I, ¶ 2.1.1; requiring it to use its own forces to complete the Work on the Project or to hire Subcontractors for that purpose; id., ¶¶ 4.1, 4.2; and requiring it to ensure that "[a]ny design, engineering, architectural, or other professional service required to be performed under this Agreement shall be performed by duly licensed personnel. Id., ¶ 2.1.1. Helping find Mr. Sarcia as a potential buyer here means simply referring an acquaintance who might have an interest in purchasing a lot. There is no evidence before the Court to suggest, however weakly or insubstantially, that it was undertaken as part of any contractual undertaking between Mr. Russo and Tricon.

As for the final claim of extra work — Mr. Trigo's central allegation that Mr. Russo performed as Tricon's full-service construction manager on the Project — that, again, has no support on this record except for Mr. Trigo's bare say-so. In short, though the plaintiff devoutly wishes to make this an issue in this case, his wishful thinking unsupported by any evidence at all does not make it so. For all of these reasons, the defendants' Amended MSJ must be GRANTED as to the Seventh Count of the plaintiff's Complaint.

2. Eighth Count — Claim of Breach of Fiduciary Duty Against Mr. Russo

The second claim made on the defendants' Amended MSJ is that Mr. Russo is entitled to judgment as a matter of law on the Eighth Count of the plaintiff's Complaint, wherein Tricon has pleaded that he breached a fiduciary duty to it by personally participating in and being directly responsible for his companies' alleged breaches of contractual duties under Contracts I-VI, and in so doing exploiting his relationship of trust and confidence with Tricon, to its detriment and for his own personal gain and the profit of his companies, United and Interstate. Complaint, Count VIII, ¶ 34. According to Tricon, Mr. Russo assumed such a special relationship of trust and confidence with Tricon, as part of the alleged Master Agreement, to ensure that the design and construction of the Project would be performed in a manner that complied with the terms of Contracts I-VI, in the best interests of Tricon and for Tricon's benefit. Id., ¶ 31. As a result of that relationship of trust and confidence, Tricon allegedly relied upon Mr. Russo's claimed high level of expertise and experience in commercial and industrial construction, which Tricon did not have, by giving Mr. Russo sole responsibility to supervise the development of the Project and to make all arrangements for approvals, design, construction, and inspections of the Project. Id., ¶ 31. By participating directly in his companies' breaches of their contracts and profiting therefrom, Mr. Russo allegedly breached his fiduciary duties to Tricon and caused it to suffer damages.

The defendants challenge the sufficiency of the plaintiff's basis for claiming that Mr. Russo had a fiduciary relationship with Tricon, based upon well-established Connecticut authority defining the essential characteristics of such a relationship. Under those authorities, "It is well settled that a `fiduciary or confidential relationship is characterized by a unique degree of trust and confidence between the parties, one of whom had superior knowledge, skill or expertise and is under a duty to represent the interests of the other.'" Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 38 (2000) (citing Konover Development Corp. v. Zeller, 228 Conn. 219, 653 A.2d 798 (1994); Dunham v. Dunham, 204 Conn. 303, 322, 528 A.2d 1123 (1987); Alaimo v. Rouer, 188 Conn. 36, 41, 448 A.2d 207, (1982); Harper v. Adametz, 142 Conn. 218, 225, 113 A.2d 136 (1955)). A fiduciary relationship exists where the fiduciary is either in a "dominant position, thereby creating a relationship of dependency," or is "under a special duty to act for the benefit of another." Id. The Supreme Court thus has said that "[i]n the cases in which this court has, as a matter of law, refused to recognize a fiduciary relationship, the parties were either dealing at arm's length, thereby lacking a relationship of dominance and dependence, or the parties were not engaged in a relationship of special trust and confidence." Id., 39.

"Although [the Supreme Court] has refrained from defining a fiduciary relationship in precise detail and in such a manner as to exclude new situations; Harper v. Adametz, supra, 142 Conn. at 225; [it has] recognized that not all business relationships implicated the duty of a fiduciary. Hemingway v. Coleman, 49 Conn. 390, 391 (1881). In particular instances, certain relationships, as a matter of law, do not impose upon either party the duty of a fiduciary." Hi-Ho Tower v. Com-Tronics, Inc., supra, 255 Conn. at 38.

The Court in Hi-Ho Tower held that the defendant, a corporation engaged in the business of selling, servicing and installing two-way radio equipment, did not have a fiduciary relationship with the plaintiff, a corporation engaged in the business of owning, operating and maintaining a communications tower and facility. Id., 38. According to the Court in that case, in order to show a fiduciary relationship a party must prove more than mere reliance upon the other party. Id., 41.

The fact that one business person trusts another and relies on the person to perform its obligations does not rise to the level of a confidential relationship for purposes of establishing a fiduciary duty." Garrison Contractors, Inc. v. Liberty Mutual Ins. Co., 927 S.W.2d 296, 301 (Tex.App. 1996). Although the plaintiff relied on the defendants to perform and manage technical services at the tower as agreed between the parties, this reliance did not confer upon the defendants the authority to exercise over the plaintiff the control, dominance or influence characteristic of fiduciary relationships.

Id.

Further, "[s]uperior skill and knowledge alone do not create a fiduciary duty among persons involved in a business transaction." Hi-Ho Towers, supra, 255 Conn. at 42 (citing High Plains Genetics Research, Inc. v. J K Mill-Iron Ranch, 535 N.W.2d 839, 842 (S.D. 1995). The Court in Hi-Ho Towers reasoned that the record before it failed to show that "the defendants exercised dominance or influence over the plaintiff as a result of their superior knowledge and skill and, furthermore, fail[ed] to show that they undertook to act primarily for the benefit of the plaintiff. This failure is fatal to the plaintiff's claim. If we were to agree with the plaintiff, all parties that possess a superior, technical skill, including electricians, plumbers and mechanics, would owe a special duty to their clients." Id., 43.

In this case, the Court has already rejected as a matter of law the central underlying premise of the plaintiff's claim, which of course is that Mr. Russo and Tricon entered into a Master Agreement, for the benefit of Tricon, to ensure that it would receive the full benefit of each of its contracts to develop its Parcel into an Industrial Park and a Driving Range. Had such a relationship been supported by the evidence, giving rise to an inference that Mr. Russo was under a contractual duty to render personal services to Tricon for its benefit, e.g. as its construction manager or owner's representative instead of as the President of a corporation doing business with it, then a fiduciary relationship might fairly be found to have existed between them based upon the existence of that Master Agreement and its underlying duty to the plaintiff. Having found to the contrary, however, that there is no evidence to support the existence of such a Master Agreement or other undertaking primarily for the benefit of the plaintiff, the Court is left, like the Court in Hi-Ho Towers, with substantial evidence of reliance by the plaintiff upon Mr. Russo, based solely upon the latter's greater experience in the construction business, but nothing else. Absent a separate undertaking between them, Mr. Russo dealt with Tricon through his corporations on an arm's length basis, under a series of contracts of limited scope and duration which Tricon was free to accept or reject as it chose. It was not bound to enter into contract with Mr. Russo or any of his companies for any purpose, or to agree with them, if it did decide to contract with them, as to any aspect of any proposal they presented or discussed. It thus could have negotiated with the defendants to the particular scope, duration or timing of any Work the Russo defendants proposed to it or it desired to have performed, or it could have contracted elsewhere for such work, or any part of it, with any other contractor. In short, Tricon was completely free to do as it pleased with respect to the further development of its Parcel and Project, as it clearly and convincingly demonstrated to Mr. Russo by soliciting independent bids for the Work that became the subject of Contract VI. That episode clearly showed that the parties understood what their Contracts empowered them to do vis-a-vis each other: Simply, they had the plenary power to negotiate and agree to any terms and conditions they found desirable or, for lack of common ground, they could walk away. Just as Mr. Trigo, on behalf of Tricon, initially chose to work with design professionals before meeting with Mr. Russo, and to work with another contractor and an engineer much later to investigate the Russo companies' possible contract breaches, he retained the power, on behalf of Tricon, to deal with Mr. Russo at arm's length throughout the period of their mutual dealings.

If, in this context, while acting on behalf of Tricon, Mr. Trigo placed undue reliance upon any of Mr. Russo's experience-based suggestions as to how he should proceed with any phase of the work, such as whether to approve a change order or to agree to a delay in constriction, it was not because of any structural dominance in their relationship arising from those Contracts. Instead, the Contracts, which defined their respective rights and responsibilities thereunder, placed them on a completely level playing field. All Tricon needed to do to take full advantage of its opportunities under any of its Contracts with the Russo companies was to designate a competent, knowledgeable representative to deal to handle Contract issues.

In sum, the Court concludes that in the absence of a special undertaking like the alleged Master Agreement, the relationship between Mr. Russo and Tricon was no more marked by the hallmarks of a fiduciary relationship than that between the defendant and the plaintiff in Hi-Ho Towers. Since mere differential competence is an inadequate basis upon which to predicate the existence of a fiduciary relationship, and that is all we have here, the defendants' challenge to the Eighth Count of the plaintiff s Complaint must also be GRANTED.

3. Twenty-third Count — Piercing the Corporate Veil Against Mr. Russo

The third claim presented on the defendants' Amended MSJ is that Mr. Russo is entitled to judgment in his favor on the claim that he had complete control of the Russo Companies and used that control to take advantage of Tricon. The instrumentality test for piercing the corporate veil requires, in any case but an express agency, proof of three elements: "complete domination, not only of finances but of policy and business practice with respect to the transaction attacked so that the corporate entity as to that transaction had at the time no separate mind, will or existence of its own; (2) that such control was used by the defendant to commit fraud or wrong, to perpetrate the violation of a statutory or other positive legal duty, or to do a dishonest or unjust act in contravention of plaintiff's legal rights; and (3) that the aforesaid control and breach of duty proximately caused the injury or loss complained of." Davenport v. Quinn, 53 Conn.App. 282, 300, 730 A.2d 1184 (1999).

Though this Court is well aware that piercing the corporate veil must only be done with great caution, under exceptional circumstances, it is not prepared on this record to find that there is no genuine issue of material fact on that subject. In this regard, the Court would note that while Mr. Russo has made sworn representations as to his corporations' filing of separate tax returns, separate valid incorporation in this State, and non-commingling of funds, the record reveals that several unusual business practices were followed by those corporations in the relevant time frame, including operation for nearly identical purposes out of the same business premises, with the same telephone numbers, the same office staff, the same vehicles, and quite possibly the same professional construction personnel. The latter fact is unknown to Mr. Russo and, he claims, is unknowable, because of his practice, also unusual in the Court's judgment, of discarding business records after merely two years.

The Court would also note throughout the relevant time frame, Mr. Russo was the President and sole director of each corporation, while his wife was their sole owner and shareholder. In light of his position, Mr. Russo completely controlled the finances of the corporations, as well as their corporate policies in all other regards. Mr. Russo drew no salary from any such corporation, however, and received no other compensation from them from 1990 through at least 2001, and perhaps thereafter.

Whether and how these corporations maintain their finances, make distributions and pay creditors is difficult to determine in the absence of corporate records. It could be very important to determine here, however, especially since at least one such corporation as to which substantial claims have been made has allegedly been dissolved with inadequate assets to cover the claims made against it. At trial, of course, it is possible that the nonexistence of such discarded records may inure to the defendant's benefit, for there the burden of proof will rest solely with the plaintiff On this Motion, however, that advantage is lost, for without the records, the clouds covering the defendant's financial dealings cannot so readily be dissipated. There is a genuine issue of material fact as to whether the defendant, whose corporations have been accused of myriad acts of wrongdoing in which he personally is claimed to have participated, was so completely dominated and controlled by him that they had no separate mind, will or existence of their own, whether so controlled and dominated, if indeed they were, they were manipulated by him to commit dishonest or unjust acts as here alleged in contravention of the plaintiff's rights, and whether such control and breach of duty, if proved, have proximately caused the plaintiff injury. Davenport v. Quinn, supra, 53 Conn.App. at 300.

For the foregoing reasons, the Court concludes that the defendants request for summary judgment on the Twenty-third Count of the plaintiff's Complaint must be DENIED.

4. Eleventh, Sixteenth, Seventeenth, and Twenty-fourth Counts — Respectively Alleging Negligence. Fraudulent Misrepresentation, Negligent Misrepresentation and Violation of CUTPA Against Mr. Russo The fourth and final claim presented on the defendants' Amended MSJ is that judgment should be entered for Mr. Russo as a matter of law on the Eleventh, Sixteenth, Seventeenth and Twenty-fourth Counts of the plaintiff's Complaint because they are predicated upon the alleged existence of a "Master Agreement" between Mr. Russo and Tricon and an alleged fiduciary duty owed by him to Tricon which it has failed to establish as a matter of law.

The plaintiff opposes this Motion on the ground that, since the challenged Counts set forth claims brought against Mr. Russo both as an individual and as President of his corporations, and a corporate officer or employee can be found personally liable for all torts he commits on behalf of his corporation, Mr. Russo's potential liability under such Counts remains intact, albeit on a narrower theory, despite the Court's rejection of its claims of liability based upon alleged breach as an individual of the supposed Master Agreement and/or breach of fiduciary duty.

The Court agrees with the defendants that insofar as the challenged Counts state claims against Mr. Russo based upon alleged breach of the supposed Master Agreement or alleged breach of fiduciary duty, which he is claimed to have committed while acting as a private individual, not as President of his corporation, summary judgment must be GRANTED as to such claims. On the other hand, the Court agrees with the plaintiff that insofar as the challenged Counts base claims of liability against Mr. Russo upon conduct which he allegedly engaged in in his capacity as President of one of the defendant corporations, such conduct falls outside the scope of its breach-of-Master-Agreement and breach-of-fiduciary-duty claims, and thus should not be dismissed. As to such claims, the defendants' Motion is hereby DENIED.

B. Supplemental MSJ 1. First. Second and Third Counts — Alleging Breach of Contracts I and II Against United and Breach of Contract III Against Interstate (fka Newfield)

The Court hereby orders that the defendants' first claim on their Supplemental MSJ — that the plaintiff's claims of breach of contract against United under Contracts I and II and claim of breach of contract against Interstate (fka Newfield) under Contract III, as set forth in the First, Second and Third Counts of the plaintiff's Complaint, respectively, are all barred by contractual waiver-of-claims provision in Paragraph 8.6 of those Contracts — be DENIED. The basis for this ruling is as follows.

Paragraph 8.6 of each challenged Contract provides in relevant part, that "[t]he making of Final Payment shall constitute a waiver of all claims by the Owner except those rising from: . . . improper workmanship or defective materials appearing within 3 months (Contract I) [a year (Contract II)] [one year (Contract Three)] after the Date of Substantial Completion[.]" The claims of breach of contract presented by the Owner (Tricon) in this case as to Contracts I, II and III all rise from alleged improper workmanship or defective materials appearing in or about 1997, more than one year after Final Payment is alleged to have been made on each of those Contracts. That fact notwithstanding, the contractual waiver-of-claims period for claims rising from improper workmanship or defective material established by Paragraph 8.6 of the Contracts does not begin to run until the Date of Substantial Completion thereunder, as established in accordance with Paragraph 5.2 thereof. Paragraph 5.2 of the Contracts provides in relevant part as follows: "Warranties called for by this Agreement or by the Drawings and Specifications shall commence on the Date of Substantial Completion of the project or designated portion thereof This date shall be established by a Certificate of Substantial Completion signed by the Owner and Contractor and shall state their respective responsibilities for security, maintenance, heat, utilities, damage to the Work and insurance. This Certificate shall also list the items to be completed or corrected and fix the time for their completion or correction." In this case, no Date of Substantial Completion was ever established by the foregoing procedure for any of the Contracts here at issue — Contract I, II or III. Therefore, there is at least a genuine issue of material fact as to whether the time specified in Paragraph 8.6 of any such Contract has ever begun to run. Against this background, the Court cannot find that the plaintiff's claims of breach of contract under Contract I or II, against United, or under Contract III, against Interstate (fka Newfield), is contractually barred under Paragraph 8.6

2. Ninth, Tenth, Eleventh, Twelfth, Thirteenth, Fourteenth, Fifteenth, Sixteenth and Seventeenth Counts — Alleging Divers Tort Claims Against United, Interstate (fka Newfield) and/or Mr. Russo Based Upon Work Performed Under Contracts I, II, III and/or IV The second claim presented on the defendant's Supplemental Motion for Summary Judgment is that they are entitled to judgment as a matter of law on each remaining count of the plaintiff's Complaint, or portion thereof, wherein any of them is claimed to have engaged in tortious conduct while performing work on the Project under Contracts I, II, III and/or IV. The basis for this claim is that since all of their work under Contracts I-IV was completed, and thus all acts or omissions by them in performing such work were necessarily committed, more than three years before the commencement of this lawsuit, all tort claims founded upon such acts or omissions are barred by Connecticut's general three year statute of limitations for tort actions, General Statutes § 52-577.

In support of its position on this claim, the defendants presented the affidavit of Mr. Russo dated September 6, 2001, in which he averred, as previously noted in the Findings of Fact, that all work on Contracts I-IV was completed prior to the winter of 1994-95. He stated, more particularly, that: all work on Contract I was completed prior to the date of the final payment by the plaintiff, on or about June 5, 1992; Russo Affidavit (9/6/01), ¶¶ 12-13; all work on Contract II was completed prior to the date of the final payment by the plaintiff on or about April 6, 1993; all work on Contract III was completed prior to the date of the final payment by the plaintiff on or about May 13, 1994; and all work on Contract IV was completed prior to the winter of 1994-95, and thus no later than late December of 1994. On the basis of that evidence and of the incontrovertible fact that this action was not commenced by the service of process until May of 1998, the defendants claim that this action is barred as to all tort claims arising from their work under Contracts I-IV because such claims were not brought "within three years from the date of the act or omission complained of," as required by Section 52-577.

The plaintiff has responded to this aspect of the defendants' Supplemental Motion for Summary Judgment by claiming that the running of the statute of limitations was tolled until the time when this action was commenced in two basic ways: First, it claims that the statute of limitations was tolled by the defendants' continuing course of conduct until the Spring of 1997, when it finally abandoned all work on the Project, approximately one year later. Second, it claims that the statute of limitations was tolled until the Spring of 1997 by Mr. Russo's fraudulent concealment until that time of the several claims and causing of action he and his companies now seek to bar. On either both of these basis, the plaintiff insists that this action was timely filed with respect to all tort claims against the defendant arising from their work on the Project under Contracts I-IV.

Claim of Continuing Course of Conduct

In Connecticut, it is well established that, "[w]hen the wrong sued upon consists of a continuing course of conduct, the statute does not begin to run until that course of conduct is complete." Handler v. Remington Arms, Co., 144 Conn. 316, 321, 130 A.2d 793 (1957). "In order to support a finding of continuing course of conduct that may toll the statute of limitations there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto. That duty must not have terminated, prior to the commencement of the period all owed for bringing an action for such a wrong (Citation omitted). Giuletti v. Giuletti, 65 Conn.App. 813, 784 A.2d 905 (2001).

Our Supreme Court has specified, moreover, that, "where we have upheld a finding that a duty continued to exist after cessation of the `act or omission' relied upon, there has been evidence of either a special relationship between the parties giving rise to such a continuing duty or some later wrongful conduct of a defendant related to a prior act." Fichera v. Mine Hill Corp., 207 Conn. 204, 209, 541 A.2d 472 (1988). One type of special relationship that can support such a continuing duty is a fiduciary relationship. The Supreme Court has thus observed that "[t]he statute of limitations does not run so long as [a] . . . fiduciary relationship exists." McDonald v. Hartford Trust Co., 104 Conn. 169, 189, 132 A. 902 (1926). "Ordinarily the relationship of principal and agent[,]" in which the agent owes a fiduciary duty to the principal when engaged in the conduct of the principal's business, ". . . continues until completion of the transaction upon which the agent is employed." Id.

Here, the plaintiff claims, as it did in the Eighth Count of its Complaint, that there was a special fiduciary relationship between Mr. Russo and Tricon which extended from the earliest days of his discussions with Mr. Trigo through the Spring of 1997, when he abandoned all work on the Project while his company, defendant Interstate, was still performing work under Contract VI. Moreover, it claims that because there is a legal identity between Mr. Russo and his companies, sufficient to permit the piercing of the corporate veil between him and each of them, his maintenance of that special relationship with Tricon until the Spring of 1997 constitutes a continuing course of conduct by his companies sufficient to cause the tolling of the statute of limitations with respect to claims against them.

This Court has already determined, in Part III.A.2 of this Memorandum of Decision, that there is no genuine issue of fact that there was no fiduciary relationship between Mr. Russo and Tricon in the relevant time frame. Therefore, on that same basis, it rejects this aspect of the plaintiff's continuing course-of-conduct claim, both as to Mr. Russo and as to his companies, United and Interstate (fka Newfield).

The plaintiff also claims, however, that Mr. Russo and his companies, to which he is claimed to be, and may in fact be, identical, engaged in later wrongful conduct related to his initial wrongful conduct — tortious acts or omissions allegedly committed by them while performing work under Contract I-IV — and thereby engaged in a continuing course of conduct sufficient to toll the statute of limitations until the Spring of 1997, when they abandoned the Project. Such continuing conduct, as the plaintiff summarized it in its Memorandum in Opposition to Defendant's Supplemental Motion for Summary Judgment dated March 15, 2002, involved "perform[ing] defective work, continuously fail[ing] to perform portions of work at all, regularly l[ying] about the necessity for delaying items of work, fraudulently obtain[ing] inflated change orders, over-pricing] the work, and abandon[ing] the Project." Id., p. 41.

In making this claim, the plaintiff has made no attempt to demonstrate how any of the later conduct to which it has adverted relates to the original wrongful acts for which it seeks tort remedies in this case. Thus the only connection between such later conduct and the defendants' original wrongful conduct, as here alleged, is that the later conduct was engaged in by the same persons or entities or their successors while working on different aspects of the same Project on the same job site. The later conduct is not claimed to have repeated, renewed or compounded, and thus carried forward on a continuing basis, the original tort, thus prolonging or extending the commission of the original tort and restarting the running of the statute of limitations thereon. Cf. Giglio v. Connecticut Light Power, Co., supra, 180 Conn. at 242 (wherein the defendant's later conduct consisted of the repetition of prior, allegedly erroneous advice and instructions as to the operation of a furnace switch which when used in accordance with such advice and instructions caused the plaintiff harm.)

The defendants, by contrast, have provided evidence, again through Mr. Russo, that at no time after they completed all work on Contracts I, II and IV did they make any verbal or written representations as to the quality of the work and services performed or the materials provided under those contract. Russo Affidavit, ¶ 40. With respect to Contract III, moreover, Mr. Russo averred that while he did indeed make such representations to Mr. Trigo at a meeting at the construction site on July 25, 1997, neither he nor any of the defendants made any earlier representations on that subject. Because these averments are unrebutted, and none establishes that any potentially wrongful conduct related to earlier wrongful conduct was repeated within three years of the earlier acts to which it might have related, the Court concludes that it has no basis on this record to believe that there is a genuine issue of material fact as to the plaintiff's claim that the statute of limitations was tolled, on any basis, under the continuing course of conduct rule.

Claim of Fraudulent Concealment

The plaintiff's alternative contention that the running of the three-year statute of limitations on its tort claims have challenged, was tolled by the defendants' fraudulent concealment of those claims from Tricon until the spring of 1997 arises under General Statutes § 52-595. That statute provides that:

If any person, liable to an action by another, fraudulently conceals from him the existence of the cause of such action, such cause of action shall be deemed to accrue against such person so liable therefor at the time when the person entitled to sue thereon first discovers its existence.

Id.

A plaintiff seeking to rely on a claim of fraudulent concealment as a basis for avoiding the bar of the statute of limitations must affirmatively plead his claim, either in the body of his complaint or in a plea in avoidance submitted along with or as a part of his reply. At trial, moreover, a plaintiff who has pleaded fraudulent concealment must prove his claim by the heightened standard applicable to all fraud claims of "clear, precise and unequivocal evidence." Plainly, fraudulent concealment is not a claim to be lightly raised or pursued.

Here, of course, the plaintiff's claim of fraudulent concealment, which it has pleaded both in its Complaint and in its plea in avoidance, has been raised in response to a Motion for Summary Judgment based on special defenses asserted under the statute of limitations. The threshold question thus presented is under what standard should evidence supporting the plaintiff's claim of fraudulent concealment be assessed? Must it, more particularly, meet some special standard of clarity or sufficiency to raise a genuine issue of material fact about the viability of the defendants' defense under the statute of limitations, or is it to be assessed for this purpose like any other evidence offered to oppose a summary judgment motion on a different ground or basis?

The foregoing questions were clearly answered by our Appellate Court in Siudyla v. Chemical Relocation Systems, 23 Conn.App. 180, 182, 579 A.2d 578 (1990), where the trial court was found to have erred by refusing to credit, as a basis for opposing a summary-judgment motion grounded on the statute of limitations, an affidavit as to fraudulent concealment which it found not to establish that claim by clear, precise and unequivocal evidence. In reaching this result, the Siudyla Court simply reiterated the well-established principle that, in ruling on a motion for summary judgment, "the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Id., 184 (citing Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988)). "If a genuine issue exists," the Court continued, "it must be left to a later determination after a full hearing." Siudyla v. Chemical Relocation Systems, supra, 23 Conn.App. at 184 (citing Telesco v. Telesco, 187 Conn. 715, 718, 447 A.2d 752 (1982).

In deciding this aspect of the Supplemental Motion for Summary Judgment, this Court must therefore decide, as on any other claim of fact raised in opposition to a motion for summary judgment, whether or not the evidence presented in support of the plaintiff's claim of fraudulent concealment is sufficient to raise a genuine issue of material fact as to the viability of that claim. If it does, then the relevant portions of the defendant's Supplemental MSJ to which it relates must be denied.

"Under our case law," our Supreme Court has noted,

to prove fraudulent concealment, the plaintiff is required to show: (1) a defendant's actual awareness, rather the imputed knowledge, of facts necessary to establish the plaintiff's cause of action; (2) that defendant's intentional concealment of these facts from the plaintiff; and (3) that defendant's concealment of the facts for the purpose of obtaining delay on the plaintiff['s] part in filing a complaint on [its] cause of action. Colwell v. Colwell, 214 Conn. 242, 250-51, 571 A.2d 116 (1990); Bound Brook Assn. v. Norwalk, [ 198 Conn. 660], 665-66 [ 504 A.2d 1047, cert denied, 479 U.S. 819, 107 S.Ct. 81, 93 L.Ed.2d 36 (1986)]; Lippitt v. Ashley, 89 Conn. 451, 480, 94 A. 995 (1915).

Bartone v. Robert L. Day Co., 232 Conn. 527, 533, 656 A.2d 221 (1995).

Here, claims the plaintiff, each element of fraudulent concealment is established as follows:

(1) Russo had actual knowledge of the omitted and deficient work performed under Contract I though IV because he personally directed or performed the work. [Trigo] Affidavit ¶ 61; (2) Russo intentionally concealed the omitted and deficient work in two manner. First, Russo discouraged Trigo from visiting the work site and prevented Trigo from talking to any of Russo's employees. [Trigo] Affidavit, ¶¶ 22 and 23. Second, Russo continuously assured Trigo that the work was being performed properly and that some of the work was necessarily delayed until later in the Project. [Trigo] Affidavit, ¶¶ 25 and 60; and (3) Russo's concealment of his omitted and defective work was obviously to avoid being held accountable to Tricon for those breaches, and was, therefore, for the purchase of obtaining delay on Tricon's part in pursuing this action.

Memorandum in Opposition to Defendant's Supplemental Motion for Summary Judgment, p. 43.

The defendants object strenuously to the adequacy of the plaintiff's showing of fraudulent concealment for several reasons. Initially, when anticipating the plaintiff's claim of fraudulent concealment in its opening Memorandum in Support of Defendant's Supplemental Motion for Summary Judgment, it contends as follows:

Arguably the [plaintiff] will insist that the defects and breaches within the contracts were known to the defendant. Even assuring the defendant knew that it was defective when built, the plaintiff's claims are still barred by the statute of limitations.

Id., p. 27. The defendants offer no legal analysis whatsoever in support of the foregoing proposition.

Continuing, the defendants argue — again, by way of anticipation — that the plaintiff's claim of fraudulent concealment, as pleaded, is deficient because it fails to allege "affirmative acts of concealment of a cause of action, as opposed to the defect itself, or any acts which induce the plaintiffs not to bring suit within the applicable limitations period." Id. In support of this proposition, it cites only a single Superior Court decision. Kivlen v. Town of New Fairfield, Docket No. 29 57 70, 1992 Conn. Super. LEXIS 1889, *8 (J.D. Danbury June 25, 1992) (Fuller, J.).

This Court well recognizes that more is required to prove fraudulent concealment than that a hidden defect causing injury did not become apparent until after the statute of limitations had run. Instead, it has been held, especially in construction cases, that a hidden defect produced by tortuous conduct is not fraudulently concealed unless the tortfeasor who had it both knew it was a defect and, acting with that knowledge, intentionally hid it for the purpose of delaying or otherwise frustrating the plaintiff's ability to make a claim based upon it.

Prior cases discussing this issue however, have not gone so far as to say that a defendant who knowingly creates a hidden defect can avoid liability for it by the simple expedient of leaving it as it is until the statute runs in the hope that it won't be uncovered until that time. Such a repugnant course of action is, in fact, inconsistent with our case law, which in discussing such claims has always focused particularly on the state of the defendant's knowledge at the time the defect was created and hidden.

In the seminal case in this area, Bound Brook Association v. Norwalk, supra, 198 Conn. 660, our Supreme Court reverted the denial of a motion to set aside the jury's verdict for the plaintiffs in an action against a town building inspector and his former municipal employer for negligence, nuisance and fraudulent and reckless representations with respect to several defectively built houses built on defective pilings which the inspector had approved based on expert input from a well-regarded engineer. The pilings were later found to be unsuitable for the area in question because it was a marsh with a functioning water table and the pilings were untreated. In declaring that the inspector had not fraudulently concealed the condition of the pilings even though, perhaps negligently, he had failed to obtain certain test data about them before issuing his approval, the Court explained its conclusion as follows:

There was no evidence whatsoever that Guarnieri knew when he issued the building permits and certificates of occupancy that the piling foundations as designed and constructed were deficient or that the untreated wood pilings used were inappropriate for the area, nor was there any evidence that he intended to conceal these deficiencies.

Id., 668. (Emphasis added.) As to a deputy building inspector who had filed certain incorrectly completed field inspection reports, moreover, the Court further observed as follows:

There was no evidence whatsoever that the deputy was aware of any deficiencies in the construction of the piling foundations at the time he signed the reports. On the contrary, the evidence established that he relied on the engineer's representations that the construction satisfied code specifications when he made his reports. The plaintiffs conceded in oral argument before this court that there was no evidence that the defendant Guarnieri knew that the inspection reports contained misleading statements. Without such knowledge, he could hardly have intended to conceal the rights the plaintiff now claim to have.

Id. (Emphasis added.)

In the end, after similarly concluding that the defendant building inspector had not committed fraudulent concealment by failing to warn the plaintiffs of problems of which he had no clear notice until the ground floor of one building built on such pilings collapsed, the Court declared that:

In the absence of clear evidence that he knew of the problems before that time, his failure to act could not reasonably support a finding that he intended to conceal a cause of action from the plaintiffs.

Id., 669. In so ruling, the Court specifically declined to decide "whether affirmative acts of concealment are always necessary to satisfy General Statutes § 52-595, as the trial court instructed the jury, or whether a failure to act would be sufficient" Id. 665.

The upshot of Bound Brook for the purposes of this case is clear: Whether or not there is a genuine issue of material fact as to the defendant's intent to conceal a cause of action depends upon whether or not there is proof that he knew of the defect giving rise to the cause of action. On a Motion for Summary Judgment, where the plaintiff has no burden of proof, even some evidence of such knowledge will be adequate to put fraudulent concealment in issue, and thus to defeat the defendant's motion, even if such evidence is not "clear, precise and unequivocal," as it must later be to prevail on it at trial.

Against this background, the Court's initial inquiry on this issue must be whether or not the record contains some evidence that the defendant knew of all or some of the alleged defects or deficiencies in his workmanship or materials which form the basis for the plaintiff's challenged claims. If there is evidence that he did, then if further evidence shows that he so incorporated such defects or materials into his work product as to make it unlikely that the plaintiff would discover them, it can fairly be inferred that the defendant fraudulently concealed both the defects or defective materials and the likely cause of action based upon them from the plaintiff.

Anticipating this argument as well, the defendants next argue that the particular defects or deficiencies in its workmanship or materials, or other aspects of the performance of its work under Contracts I-IV, were not at all hidden from the plaintiff but in fact well known to it, or at the very least rather easily discoverable by it. As a result, beyond asserting, as they did, that they never fraudulently concealed any aspect of their work under the first four Contracts from the plaintiff, they claim that their alleged conduct should not toll the running of the statute of limitations because it did not delay the plaintiff from discovering and asserting his present claims.

With respect to Contract I, where the plaintiff complains about the defendant's alleged failure to construct the driveway from Route 17 to the NatureMost Facility a full 950 feet and alleged failure to compact the materials in the area of the driveway, the Court must agree with the defendants that there is absolutely nothing about these alleged defects that was not open and obvious from the date work began under Contract I until the expiration of the three-year limitations period almost four years later. As for the driveway, whether or not it extended all the way to the facility was apparent to anyone who went there including, especially, Mr. Trigo, who did not complain of its condition until this lawsuit was filed in 1998. The contract, moreover, listed the length of the driveway as "approximately" not exactly, 950 feet. The defendants' conduct, whatever else may be said of it, did not conceal, much less fraudulently conceal, this alleged defect or deficiency in the defendants' work under Contract I from the plaintiff.

Similarly, the Court concludes that there is no evidence before it to show how any conduct by the defendants actually, or even possibly, concealed the condition of the driveway from the plaintiff. Any such defect, including runoff or blowing dust from failure to compact it, would have been open and obvious to Mr. Trigo ab initio, and he has not claimed to the contrary. Accordingly, the Court concludes that the defendants are entitled to summary judgment on each part of every claim against the defendants that seeks damages for alleged tortious conduct in the performance of work under Contract I.

As for the plaintiff's claims of tortious conduct based upon work performed under Contract II, the particular complaints made by the plaintiff are of two sorts: first, that major portions of the work originally agreed to under that Contract, including installation of a retention pond, a drainage swale and trench drains, were not done; and second, that the property was not properly graded, with some sections left untouched and others built much higher than originally planned. As for the work that was not done, the defendants rightly note that Mr. Trigo, on behalf of Tricon, was well aware that it was not done, for he and Mr. Russo had discussed it and agreed to postpone it until a later time. Plainly, the defendants' nonperformance of such work was not concealed, much less fraudulently concealed, from the plaintiff.

Similarly, there is no explanation at all in the record as to how Mr. Russo or his companies concealed from Mr. Trigo and Tricon their allegedly conspicuous failures to grade parts of the property and radical departures from grading on other parts of the property. Mr. Trigo claims, to be sure, that Mr. Russo tried to persuade him to stay away from the site, but that plainly did not prevent him from going there, as he freely did, whenever he pleased. Even, moreover, if he was told not to speak to Mr. Russo's employees, that could have added very little, and nothing evidenced by this record, to his ready appreciation of the fact that his property had been badly misgraded. He did not claim that he failed to see the poor grading on the property, or say that anything Mr. Russo said or did actually prevented him from seeing or understanding it. Accordingly, on these claims based upon the defendants' allegedly tortious performance of work under Contract II, the Court must conclude, as it did on the plaintiff's parallel claims based upon work performed under Contract I, that there is no evidence to suggest that the defendants concealed, much less knowingly concealed, the basis for any such claims from plaintiff Tricon.

In light of the foregoing determinations that the statute of limitations was not tolled by the defendants' fraudulent concealment of any claims based upon alleged tortious conduct by them in their performance of work under Contracts I or II, defendant United, which performed all such work, is entitled to summary judgment under the statute of limitations on all Counts based exclusively upon such claims. Therefore, the defendants' Supplemental MSJ must be GRANTED as to, and summary judgment is hereby entered for United on, the Ninth, Twelfth and Thirteenth Counts of the Complaint.

As for the plaintiff's claims for damages based upon allegedly tortious conduct in the performance of work under Contract III, the defendants first argue that the alleged defects which form the basis for those claims could readily have been discovered by Mr. Trigo and Tricon, and that he has afforded the Court no basis for finding that that is not so. Those defects, of course, include the undersized walls of the foundation of the NatureMost Facility, the out-of-square and out-of-level configuration of that foundation, the failure to install a loading dock because they did not start below the frost line, the mounding of unsuitable materials around the foundation, the lack of internal piers in the foundation and the formation of air pockets or honeycombs in the concrete. The defendants claim that all of these defects could have been discovered in 1993 had the plaintiff pulled a ruler from his pocket to measure the thickness of the walls or excavated around the foundation as he later did in 1997 once the wall thickness error was first brought to his attention. For the following reasons, the Court cannot agree.

To begin with, with the possible exception of the thickness of the walls, which a non-exempt, non-builder might well not be trained to appreciate, the plaintiff had no notice at all that undersized materials might be used to build his headquarters' new foundation. There is at least a genuine issue of material fact as to whether the defendants' failure to install a properly sized foundation should have been obvious to Mr. Trigo, for he had seen it frequently and presumed it to be of correct size as he indicated in his conversation with Mr. Sarcia, who told him otherwise.

The defendants, however, had purchased and installed and/or supervised the installation of the foundation. They had supplied the specifications for it and, as experienced builders and developers, surely knew what it was supposed to look like.

Their knowledge of its deficiency, coupled with their appreciation of the unlikelihood of the plaintiffs discovering it ever, if at all, supports an inference of intentional concealment of the cause of action sufficient to defeat the defendants' present claim.

As for the balance of the claimed defects and deficiencies in the defendants' work under Contract III which underlie the plaintiff's challenged tort claims, the Court finds, in similar fashion, that there is sufficient evidence on this record to raise a genuine issue of material fact that such defects and deficiencies were actually known to the defendants when they erected them, were contemporaneously appreciated by the defendants to afford the basis for legitimate claims against them for improper workmanship and/or defective materials, yet intentionally incorporated them into the work, without notice to the plaintiff, with knowledge that they would probably not be discovered in time to bring a timely claim based upon them. The knowing incorporation of such undisclosed defects and deficiencies into their work in such a way that the plaintiff was unlikely to detect them and/or understand their defective or deficient nature gives rise to a reasonable inference of fraudulent concealment sufficient to defeat the defendants' claim for summary judgment based upon the statute of limitations with respect to them. Accordingly, this aspect of the defendants' Supplemental MSJ must be DENIED as to all claims made against Interstate (f/d/a Newfield) in Counts Ten, Fourteen and Fifteen of the plaintiff's Complaint, and all parallel claims made against Mr. Russo in Counts Eleven, Sixteen and Seventeen, to the extent that such claims are based upon alleged tortious conduct in the performance of work under Contract III.

With respect to the defendants' alleged tortious conduct in the performance of work under Contract IV, the Court must note that the plaintiff's challenged claims are based exclusively upon Mr. Russo's alleged issuance of certain change orders during the Contract period which are claimed to have significantly increased the Lump Sum price of the Contract while adding only negligibly to the scope of the work. There is absolutely nothing about this conduct, however, even if it was entirely unjustified and self-serving, to suggest that it was or could have been hidden from Mr. Trigo and Tricon, for under the procedures clearly specified in Article 7 of the Contract, each change order had to be signed and approved by the Owner or its authorized representative — here Tricon, always by and through Mr. Trigo — not issued unilaterally by the Contractor, Interstate (fka Newfield), or its representative, Mr. Russo. Even, then, if the need for any particular change order suggested by Mr. Russo was nonexistent, or if the resulting adjustment in the Lump Sum price of the Contract was outsized, there is no basis whatsoever for claiming that its issuance and financial consequences were in any way concealed from Mr. Trigo, who personally signed and approved them all. For these reasons, the Court categorically rejects any claim by the plaintiff that the defendants, by their conduct, concealed, much less fraudulently concealed, any cause of action from Tricon based upon its conduct in performing work under Contract IV. Accordingly, it concludes that, insofar as the defendants' Supplemental MSJ seeks judgment in their favor on each portion of each tort claim now pending against them which is based upon such conduct, the defendants are entitled to such relief under General Statutes § 52-577, because this action, and thus those claims, were not brought "within three years of the act or omission complained of," as required by that statute. Id. On that basis, the Court hereby orders that partial summary judgment enter on those claims, as they have been made against Interstate (fka Newfield) in Counts Ten, Eleven, Fourteen and Fifteen of the plaintiff's Complaint, and as they have been made against Mr. Russo in Counts Sixteen and Seventeen thereof

3. Nineteenth, Twentieth and Twenty-fourth Counts — Claims of Alleged Violations of CUTPA Against United. Interstate (fka Newfield) and Mr. Russo Based Upon Unfair and Deceptive Trade Practices In Performing Work Under Contracts I-IV

The defendants' final set of claims in their Supplemental MSJ challenge the timeliness of the plaintiff's claims against them for alleged violation of CUTPA, General Statutes § 42-110a et seq., based upon alleged unfair and deceptive trade practices by them in performing work under Contracts I-IV, as pleaded in Counts Nineteen (against United), Twenty (against Interstate (fka Newfield)) and Twenty-four (against Mr. Russo) of the Complaint. In support of these claims, which are based on the mandatory three-year statute of limitations set forth in General Statutes § 42-110g(f), the defendants argue, as they did on their challenges to plaintiff's parallel tort claims, that all of their work under Contracts I-IV was fully performed more than three years prior to the commencement of this action, and thus that all CUTPA claims based upon such work are barred by Section 42-110g(f).

The plaintiff's only response to this well-supported argument is based upon its claim, which this Court has already rejected, that the defendants, through Mr. Russo, were engaged in a continuing course of conduct through the spring of 1997, when they finally abandoned all work on the Project. Because there is no basis on this record for finding that the defendants ever engaged in such a continuing course of conduct, either by maintaining, through Mr. Russo, a special relationship of trust and confidence with Tricon or by later wrongful conduct related to their initial allegedly wrongful conduct on which these claims are based, the Court must agree with the defendants that they are entitled to summary judgment on each portion of each of the plaintiff's pending CUTPA claims which is based upon the alleged commission of unfair or deceptive trade practices by them in the performance of work under Contracts I-IV. Accordingly, the Court hereby orders that summary judgment enter for United on the plaintiff's CUTPA claim against it in Count Nineteen, which is based entirely upon alleged wrongdoing by it in the performance of work under Contracts I and II, that partial summary judgment enter for Interstate (fka Newfield) on the plaintiff's CUTPA claim against it in Count Twenty, insofar as it is based upon alleged wrongdoing by it in performing work under Contracts III and IV, and that partial summary judgment enter for Mr. Russo on the plaintiff's CUTPA claim against him in Count Twenty-four, insofar as it is based upon alleged wrongdoing by him in performing work under Contracts I-IV.

CONCLUSION

For all of the foregoing reasons, the Court hereby rules as follows:

A. The defendants' Amended MSJ is

1. GRANTED as to the breach of contract claim presented against Mr. Russo in the Seventh Count of the Complaint;

2. GRANTED as to the breach of fiduciary duty claim presented against Mr. Russo in the Eighth Count of the Complaint;

3. DENIED as to the piercing the corporate veil claim presented against Mr. Russo in the Twenty-third Count of the Complaint; and

4. GRANTED IN PART as to the divers claims presented against Mr. Russo in the Eleventh, Sixteenth, Seventeenth, and Twenty-fourth Counts of the Complaint, insofar as such claims are based upon the claimed existence of a Master Agreement and/or a fiduciary relationship between Mr. Russo and plaintiff Tricon.

B. The defendants' Supplemental MSJ is

1. DENIED as to the breach of contract claims presented against United in the First and Second Counts of the Complaint;

2. DENIED as to the breach of contract claim presented against INTERSTATE (fka Newfield) in the Third Count of the Complaint;

3. GRANTED as to the tort claims presented against United in the Ninth, Twelfth and Thirteenth Counts of the Complaint;

4. DENIED as to the tort claims presented against Interstate (fka Newfield) in Counts Ten, Fourteen and Fifteen of the Complaint, insofar as such claims are based upon alleged tortious conduct in the performance of work under Contract III, but GRANTED as to all such claims, insofar as they are based upon alleged tortious conduct in the performance of work under Contract IV;

5. DENIED as to the tort claims presented against Mr. Russo in Counts Eleven, Sixteen and Seventeen of the Complaint, insofar as such claims are based upon alleged tortious conduct in the performance of work under Contract III, but GRANTED as to all such claims, insofar as they are based upon alleged tortious conduct in the performance of work under Contracts I, II and/or IV;

6. GRANTED as to the CUTPA claim presented against United in Count Nineteen of the Complaint;

7. GRANTED IN PART as to the CUTPA claim presented against Interstate (fka Newfield) in the Twentieth Count of the Complaint, insofar as that claim is based upon work performed under Contracts III and/or IV; and

8. GRANTED IN PART as to the CUTPA claim presented against Mr. Russo in the Twenty-fourth Count of the Complaint, insofar as that claim is based upon work performed under Contracts I, II, III and/or IV.

IT IS SO ORDERED.

Michael R. Sheldon, J.