Argued
May 3, 2018
Procedural
History
Action
to recover damages sustained as a result of, inter alia, the
defendant's alleged negligence, brought to the Superior
Court in the judicial district of Litchfield and tried to the
court, J. Moore, J., judgment for the plaintiff, from which
the plaintiff appealed. Affirmed.
Neal
L. Moskow, with whom were Stephanie Dellolio and, on the
brief, Deborah M. Garskof, for the appellant (plaintiff).
Christine Jean-Louis, assistant attorney general, with whom
were Charles Walsh, assistant attorney general, and, on the
brief, Eileen Meskill, assistant attorney general, and George
Jepsen, attorney general, for the appellee (defendant).
Palmer, McDonald, Robinson, Mullins and Kahn, Js. [*]
OPINION
MULLINS, J.
The
plaintiff, Sun Val, LLC, appeals[1] from the judgment of the
trial court rendered in its favor against the defendant, the
Commissioner of Transportation. On appeal, the plaintiff
contends that the trial court improperly (1) applied the
wrong environmental regulations to determine whether
materials left on the plaintiff's property were
contaminated and, as a result, failed to award appropriate
damages for removal of those contaminated materials, (2)
determined that the plaintiff failed to mitigate its damages,
and (3) rejected the plaintiff's claim for lost profits.
We disagree and, accordingly, affirm the judgment of the
trial court.
The
record reveals the following facts, as found by the trial
court, and procedural history relevant to our resolution of
this appeal. The plaintiff was formed in August, 2002, for
the limited purpose of purchasing and managing a parcel of
real property (property) located in the town of New Milford.
The property, consisting of slightly less than eleven and
one-half acres, had been used for a variety of purposes over
the years, including as a farm, a gravel quarry, and an
all-terrain vehicle course. In September, 2002, the plaintiff
purchased the property with the intent to regrade it and
resell it for possible development.
In the
summer of 2006, Hallberg Contracting Corporation (Hallberg)
was hired as a subcontractor for a highway reconstruction
project undertaken by the defendant. Shortly thereafter, and
with the defendant's consent, Hallberg entered into an
oral contract with Dominick Peburn, an individual that
Hallberg believed had authority to act on behalf of the
plaintiff, to use the property for ‘‘crushing and
stockpiling'' construction materials related to the
project. Without verifying Peburn's authority, Hallberg
proceeded to haul approximately thirty-two truckloads of
‘‘mostly soil and clay like material, including
only a minimal amount of milled asphalt and concrete,
'' and deposited it in an area occupying one-quarter
acre in the northwest corner of the property.[2] In September,
2006, the plaintiff's real estate agent visited the
property and informed the plaintiff's members that
material was being deposited on the property. Thereafter,
Peter Joseph and Jeffrey Serkes visited the property on
behalf of the plaintiff to examine the materials deposited by
Hallberg.
While
pursuing its legal remedies for the unauthorized dumping on
its property, in December, 2006, the plaintiff entered into a
contract to sell the property to BTP New Milford, LLC (Bow
Tie) for $2, 025, 000. The contract of sale included
contingency provisions relating to, inter alia, clear title,
compliance with applicable laws, regulations, and ordinances,
and the payment of taxes. Under the contract, Bow Tie was
obligated to perform standard due diligence on the property,
including engineering studies, a market analysis, a Phase I
environmental assessment, and to investigate the applicable
zoning regulations. Phase I environmental assessments are
limited, and include the following three components: (1)
identify areas of concern or previously recognized
environmental conditions; (2) review historical record
research back to 1940 or the earliest known development; and
(3) conduct visual site visits and interviews. A Phase I
environmental assessment does not involve sampling or testing
of soil or material on the property.
The
contract also contained additional contingencies as a result
of the recent dumping on the property. Specifically, the
plaintiff agreed to hire an environmental consultant to
perform both a Phase I and Phase II environmental assessment
of the property. A Phase II environmental assessment is field
oriented and involves taking test samples from areas of
concern previously identified in the Phase I environmental
assessment. Samples may be taken by digging, drilling, or
boring.
The
contract provided that, in the event that the test results
revealed evidence of contamination on the property, Bow Tie
would have the option of terminating the contract if the cost
to remediate the soil was greater than $150, 000. The
contract, however, did not specify whether the assessments
would be limited to only areas of new dumping. The plaintiff
hired an engineering and environmental consulting firm to
perform the Phase I and Phase II environmental assessments.
Prior to this time, the plaintiff had not requested or seen
the results of any Phase II environmental assessment on the
property and, therefore, had not reviewed results of soil
sampling on the property. The results of the Phase I
environmental assessment were issued on January 31, 2007, and
the results of the Phase II environmental assessment were
issued on February 20, 2007. After receipt of these
assessments, the contract for the sale of the property to Bow
Tie terminated.
As
early as November, 2006, Hallberg offered to remove thirty
truckloads of material from the plaintiff's property.
Then, in January, 2007, Hallberg again presented the
plaintiff with a written offer to restore the property to its
original condition.[3] Hallberg offered, inter alia, to remove
approximately thirty truckloads of material, the amount that
Hallberg admitted to depositing on the property. In return,
Hallberg demanded a release from all liability of itself, its
agents, and its employees associated with dumping the
materials on the plaintiff's property. The plaintiff
rejected Hallberg's offer.
Subsequently,
the plaintiff commenced the present action, [4] alleging, inter
alia, that the defendant negligently authorized Hallberg to
deposit construction materials on the property. The plaintiff
sought damages in the amount of $483, 864 for remediation of
the property and $1, 146, 500 for lost profits. In response,
the defendant pleaded, inter alia, failure to mitigate
damages as a special defense. The case was tried before the
court.
At
trial, both parties presented numerous exhibits, and the
court heard testimony from multiple witnesses pertaining to
the amount, quality, and location of material deposited by
Hallberg. Indeed, each party introduced testimony from
environmental professionals[5]who testified about the
appropriate manner in which to remove the dumped material
from the plaintiff's property.
The
plaintiff introduced testimony from Brian Conte, a licensed
environmental consultant who primarily performs field work as
part of environmental due diligence for real estate
transactions. Conte submitted a plan for removing the
Hallberg material from the property, which suggested that 60
percent of the material be sent to a high level, more
expensive, facility; 30 percent of the material be sent to a
low level, less expensive, facility; and 10 percent of the
material be sent to a recycling facility. Under this plan,
the cost of removing thirty-two truckloads would be $105,
122.[6]
Conte also produced a report in which he opined that the
material on the property was ‘‘lightly
polluted'' and that it ‘‘would not
qualify as clean fill under [applicable] solid waste
regulations.''
The
defendant introduced testimony from Douglas Martin, a
licensed environmental professional with more than thirty
years of professional environmental experience and expertise
in the area of environmental site assessments. Martin
testified and submitted a plan for removing the Hallberg
material from the property. In his plan, he opined that 90
percent of the material should be sent to a low level, less
expensive, facility, and that 10 percent of the material
should be sent to a recycling facility at a cost of $60, 492.
In support of this plan, Martin produced a report stating
that ‘‘much of the subject material appears to be
consistent with the definition of [clean fill] under the
[solid waste] regulations . . . .''
In
addition to testimony from these experts regarding the
quality of the material deposited by Hallberg, photographs of
the property were presented, which also provided insight into
the quality of material attributable to Hallberg. These
photographs, which were taken by Hallberg's risk manager,
Brian Festa, revealed that the northwest corner of the
property contained regularly sized piles of earth and clay,
which were not present throughout the rest of the property.
Alan Antonelli, a Hallberg employee, provided testimony that
Hallberg only deposited soil and clay-like material on the
property.
After
considering all of the testimonial and documentary evidence
presented at trial, the trial court found that the Hallberg
material must be removed, but did not adopt either
Conte's or Martin's proposed plan in full. Instead,
the court explained that Conte's plan was partly based on
flawed assumptions and extrapolations and that Martin's
plan was ‘‘too conservative.'' The court
also credited the photographs showing the material dumped on
the northwest corner of the property to largely consist of
soil or clay and Antonelli's corroborating testimony,
thus suggesting that a larger portion of the material could
be sent to the low level facility.
The
trial court agreed with both experts that thirty-two
truckloads would comprise 640 tons. The trial court then
compared the costs for disposal in each of the expert's
reports. The trial court found that Conte's costs for
disposal were lower because the report was five years older
than the report from Martin. Therefore, the trial court used
the higher figures from Martin's report. Because Martin
did not opine that any materials should go to the high level
facility, he did not include a cost for removal to that
facility. To arrive at a disposal cost for the high level
facility, the trial court added 10 percent to the cost used
by Conte for the high level facility. Accordingly, the court
calculated the disposal costs using a cost of $29 per ton for
the recycling facility, $65 per ton for the low level
facility, and $144.65 per ton for the high level facility.
Using these rates, the court further found that
‘‘70 percent of the material, 448 tons, could
legally be disposed of at a low level [facility] for a cost
of $29, 120 . . . 20 percent of the material, 128 tons, needs
to be legally . . . disposed of at a higher level [facility]
at a cost of $18, 515.20 . . . and 10 percent, 64 tons, could
be recycled for a cost of $1856 . . . . The court also agrees
with [Martin] as to ancillary costs, such as survey at $1625,
clearing and grubbing at $2715, erosion control measures at
$801.80, excavation and direct load out at $3949.24, and
engineering and consulting fees at $11, 140. Therefore, the
court concludes that the plaintiff has proven that the
defendant caused the plaintiff to sustain $69, 722.24 in
remediation costs.''
At the
conclusion of trial, the court made the following factual
findings: (1) ‘‘the plaintiff has proven the
defendant negligent in its authorization of Hallberg to use
the property for the disposal of materials from the
project''; (2) ‘‘the amount of damages
proven by the plaintiff is $69, 722.24''; and (3)
‘‘the defendant has proven that the plaintiff
failed to mitigate its damages in the amount of $34, 598.41
and that, as a result, the $69, 722.24 should be reduced by
$34, 598.41.'' The trial court then reduced the
amount remaining by an additional 15 percent on the basis of
the plaintiff's comparative negligence and, accordingly,
awarded $29, 855.26 in damages. This appeal followed.
Additional relevant facts will be set forth as necessary.
I
A
The
plaintiff first claims that the trial court improperly
applied regulatory provisions governing remediation; see
Regs., Conn. State Agencies § 22a-133k-1 et seq.
(remediation regulations); instead of regulatory provisions
governing the disposal of solid waste; see Regs., Conn. State
Agencies § 22a-209-1 et seq. (solid waste regulations);
in determining the plaintiff's damages. The plaintiff
further claims that the trial court failed to award
sufficient damages as a result of the failure to apply the
solid waste regulations. The defendant responds by asserting
that the trial court applied the proper regulations.
Specifically, the defendant claims that the trial court
relied on the report and opinion of Conte, who utilized the
solid waste regulations. We agree with the defendant.
‘‘The
scope of our appellate review depends upon the proper
characterization of the rulings made by the trial court. To
the extent that the trial court has made findings of fact,
our review is limited to deciding whether such findings were
clearly erroneous. When, however, the trial court draws
conclusions of law, our review is plenary and we must decide
whether its conclusions are legally and logically correct and
find support in the facts that appear in the
record.'' (Internal quotation marks omitted.)
Stratford v. Jacobelli, 317 Conn. 863, 869,
120 A.3d 500 (2015).
On
appeal, the plaintiff claims that the trial court applied the
wrong regulations and then posits that this claim presents an
issue of law over which we exercise plenary review. For the
reasons which follow, we disagree that the plaintiff's
claim regarding the trial court's award of damages
presents a question of law.
A
review of the trial court's memorandum of decision
reveals no indication that the court relied on the
remediation regulations as opposed to the solid waste
regulations. Instead, the record reveals that both
parties' experts indicated at some point during their
testimonies that the remediation regulations did not apply to
removal of the Hallberg material from the property.
Specifically, Conte, the plaintiff's expert, testified
that the remediation regulations are ‘‘a good
reference, but [they have] no bearing'' if there is
no remediation taking place on the soil. He further testified
that the remediation regulations ‘‘were actually
set up as a means to determine when you're essentially
done with your remediation. . . . [T]here's not
remediation here, but it's the only standards we have in
the state to compare to.'' Likewise, the
defendant's expert, Martin, when asked on direct
examination if the remediation regulations applied to the
property, responded ‘‘[n]ot as far as I'm
aware.'' He further opined that
‘‘[r]emediation, typically, you need [a] better
definition of what it is you're removing and . . . the
basis for the limits of what you're removing. And,
typically, you know, in Connecticut, if you're performing
a remediation, then you would . . . perform sampling and
postremediation sampling, post-excavation sampling in this
case, with the idea that you're trying to meet some
regulatory end point.''
Consistent
with the testimony of the experts, the trial court's
ninety page memorandum of decision is devoid of any findings
regarding specific contamination levels or application of the
remediation regulations. Rather, the memorandum of decision
reveals that the trial court made a factual determination as
to the percentages of the waste that could be allotted to the
different disposal facilities on the basis of qualitative
information provided by the parties' experts. This
analysis by the trial court is consistent with the
definitions supplied in the solid waste regulations.
Furthermore, during closing arguments, the trial court
pointed out that removal is not the only option for polluted
soil ‘‘under [the] definition of ‘clean
fill' [in the solid waste regulations].'' The
court made no reference to the remediation regulations. We
conclude that the trial court, after weighing the credibility
of each expert and on the basis of the information they
provided, made a factual determination regarding the
appropriate plan for removal. Accordingly, we reject the
plaintiff's claim that the issue before us is one of law.
Instead, we understand the plaintiff's claim to be that
the findings of the trial court regarding the percentages of
the waste that could be allotted to the different disposal
facilities and the costs associated with these removal
methods were clearly erroneous.
We now
turn to that question. In doing so, we apply the clearly
erroneous standard of review. ‘‘Although we give
great deference to the findings of the trial court because of
its function to weigh and interpret the evidence before it
and to pass upon the credibility of witnesses . . . we will
not uphold a factual determination if we are left with the
definite and firm conviction that a mistake has been
made.'' (Internal quotation marks omitted.)
Wyszomierski v. Siracusa, 290 Conn. 225,
237-38, 963 A.2d 943 (2009).
Throughout
the course of the trial, the court heard significant
testimony regarding the amount and nature of the material
dumped on the plaintiff's property by Hallberg and the
appropriate manner in which to remove that material. To begin
with, the trial court heard testimony from a Hallberg
employee, Antonelli, who described the material brought to
the property by Hallbergas ‘‘fill material,
'' essentially ‘‘a fill of dirt
material'' with ‘‘maybe a little clay in
it.'' This description of the Hallberg material was
consistent with photographs that were presented to the court,
which ultimately described the deposits on the northwest
corner of the property as ‘‘regularly-sized piles
containing earth and clay-like material . . . .''
Antonelli also testified that discarded material, such as
asphalt, bricks, catch basins, and drainage pipes, depicted
in additional photographs of the remainder of the property,
were not brought there by Hallberg. Antonelli explained that,
at the time of the dumping on the property, the highway
reconstruction project was not in a phase where materials
such as bricks, catch basins, and drainage pipes would have
been removed from the project site.
Next,
Conte testified over the course of three days regarding his
suggested plan for removal of the Hallberg material.
Specifically, he described how he relied on data contained in
the two environmental assessments that he had performed for
the plaintiff in2006 in connection with the pending sale of
the property to Bow Tie. Conte explained that the
assessments, which involved taking samples from various soil
piles, ‘‘indicated [that] petroleum and semi
volatile organics were present in [the] soil piles throughout
the site, '' the source of which was
‘‘likely coal ash or bituminous asphalt,
'' and that it was his professional opinion that it
was from site wide fill material. He further testified that
his proposed removal plan was ‘‘based on whether
or not the soil [was] polluted . . . and whether or not the
soil piles were present there . . . [b]etween 2005 and
2006'' using ...