Opinion
No. CV 03 0822436 S
September 28, 2005
MEMORANDUM OF DECISION
After a bench trial on June 28, 2005, the parties presented post-hearing memoranda of law, including replies, dated August 29, 2005. After considering the evidence and the arguments of the parties, the court issues this memorandum of decision.
I PROCEDURAL BACKGROUND
This matter involves disputes over claimed expenses for the removal of used tires from storage containers, and for the removal of the storage containers from real property. In count one of its two-count complaint, dated December 30, 2002, the plaintiff, Kelly Container, Inc. (Kelly), which is engaged in the business of leasing storage containers, seeks relief against the defendants, Joseph D. Carey (Carey) and J.D.C. Enterprises, Inc. (JDC), based on General Statute § 22a-16.
General Statute § 22a-16 provides, in pertinent part, "The Attorney General, any political subdivision of the state, any instrumentality or agency of the state or of a political subdivision thereof, any person, partnership, corporation, association, organization or other legal entity may maintain an action in the superior court for the judicial district wherein the defendant is located, resides or conducts business . . . for declaratory and equitable relief against . . . any person, partnership, corporation, association, organization or other legal entity, acting alone, or in combination with others, for the protection of the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction . . ."
Kelly claims that, in October 2000, it leased five 40-foot storage containers (the containers) to Ralph Curtis, d/b/a Curtis Tire (Curtis), who represented to Kelly that it was in possession of real property located on Naubuc Avenue in Glastonbury, Connecticut (the Glastonbury property), and that Curtis had permission from Carey and JDC to use that location for storage. Kelly claims that, at all relevant times, Carey was the owner of the Glastonbury property and exercised complete domination and control over JDC. Kelly alleges that, pursuant to its agreement with Curtis, it delivered the containers to the Glastonbury property.
Kelly further alleges that the containers contained used tires, which are or contained hazardous materials and substances. In June 2002, by letter from JDC, Kelly was notified that JDC deemed the containers to be abandoned and that, unless they were removed within ten days, they would become Carey's property, who would legally dispose of them and their contents. See Plaintiff's Exhibit 1.
Kelly claims that, on September 10, 2002, after Kelly's offer to assist in removal and proper disposal was rejected, Carey and JDC illegally, improperly and without permit "placed, dumped or otherwise disposed of said used tires on" Kelly's property located on South Street in Enfield, Connecticut (the South Street property). See complaint, count one, ¶ 9. Kelly alleges that these actions constitute illegal or improper littering or dumping in violation of General Statute § 22a-250, that the vehicles used lacked a permit to transport the used tires, and are in violation of General Statute § 22a-250a.
In count one, paragraph 12, Kelly claims that Carey's and JDC's actions "has, is reasonably likely to, pollute, impair, or destroy the public trust in the air, water or other natural resources of the State in violation of [General Statute §]22a-16." Kelly alleges that it has and continues to expend costs and attorneys fees "and seeks relief in the form of an award for costs and attorney's fees in addition to a positive injunction against Carey and JDC requiring them, at their sole cost and expense, to remove the tires . . . and properly dispose of the same." See complaint, count one, paragraph 13. At trial, Kelly claimed to have engaged a contractor, CWPM, to remove and dispose of the tires, and to have expended funds in payment for that service. Accordingly, while it continues to seek an award of costs and attorneys fees, injunctive relief is no longer requested.
In its count two, the allegations of count one are incorporated by reference. In addition, Kelly pleads that Carey's and JDC's actions "have caused or permitted the discharge of hazardous materials or substances on the South Street property in violation of [General Statute §]22a-452." See complaint, count two, ¶ 13. Kelly alleges that the defendants "knew or should have known that their conduct could result in soil and ground water contamination and that as a result of their conduct, [Kelly] has been and continues to be damaged in having to incur the costs of containing, removing and mitigating the pollution effects." See complaint, count two, ¶ 13. In the second count, Kelly seeks reimbursement of reasonable costs expended to mitigate the alleged discharge.
Section 22a-452(a) provides, in pertinent part, "Any person, firm, corporation or municipality which contains or removes or otherwise mitigates the effects of oil or petroleum or chemical liquids or solid, liquid or gaseous products or hazardous wastes resulting from any discharge, spillage, uncontrolled loss, seepage or filtration of such substance or material or waste shall be entitled to reimbursement from any person, firm or corporation for the reasonable costs expended for such containment, removal, or mitigation, if such oil or petroleum or chemical liquids or solid, liquid or gaseous products or hazardous wastes pollution or contamination or other emergency resulted from the negligence or other actions of such person, firm or corporation."
In its prayer for relief, Kelly sought an injunction requiring the defendants to remove the tires, money damages, costs, and attorneys fees. No request for declaratory relief was set forth.
In response to the complaint, the defendants' answer denied its salient allegations and set forth special defenses. See # 113. In addition, by way of setoff, recoupment, and counterclaim, Carey and JDC allege that Kelly placed the containers on the Glastonbury property without permission, and failed and refused to remove them, causing the defendants, at their own expense, to remove them. They claim that these actions amounted to trespass, negligence, and a violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a, et seq (CUTPA).
In their reply brief (#124), p. 4 n. 4, the defendants stated that, if the court enters judgment in their favor on the complaint, they stipulate that the court need not adjudicate their counterclaim.
Kelly filed a reply and special defenses to the counterclaim (# 111). At the trial, Paul Montinieri, Kelly's owner, and Carey testified and the plaintiff presented documentary evidence.
II DISCUSSION A Section 22a-452
The court first addresses Kelly's claim in count two, based on General Statute § 22a-452. Remedial environmental statutes, such as § 22a-452, are to be liberally construed. Knight v. F.L. Roberts and Company, 241 Conn. 466, 474, 696 A.2d 1249 (1997). Section 22a-452 allows reimbursement of remediation costs "only if a plaintiff has contain[ed] or remove[d] or otherwise mitigate[d] pollution or contamination." (Internal quotation marks omitted.) Augelli v. Matos, Superior Court, judicial district of Waterbury at Waterbury, Docket No. CV01-0163496S (July 29, 2003, Dubay, J.) ( 35 Conn.L.Rptr. 228); Albahary v. City and Town of Bristol, Connecticut, 963 F.Sup. 150, 156 (D.Conn. 1997).
"In a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony . . . It is within the province of the trial court, as the fact finder, to weigh the evidence presented and determine the credibility and effect to be given the evidence." (Citation omitted and internal quotation marks omitted.) Cadle Co. v. D'Addario, 268 Conn. 441, 462, 844 A.2d 836 (2004). As the trier of fact, the court "can . . . decide what — all, none, or some — of a witness' testimony to accept or reject." (Internal quotation marks omitted.) State v. Reid, 85 Conn.App. 802, 807, 858 A.2d 892, cert. denied, 272 Conn. 908, 863 A.2d 702 (2004).
"The trial court has broad discretion in determining whether damages are appropriate . . . To recover damages, the plaintiff must offer evidence sufficient to prove the claimed loss." (Citations omitted.) Robert S. Weiss Associates, Inc. v. Wiederlight, 208 Conn. 525, 541, CT Page 13225 546 A.2d 216 (1988). The rule is "well established . . . that damages are essential to the plaintiff's proof and must be shown with reasonable clarity." Id., 542-43.
Here, Montinieri testified that Kelly paid CWPM $9,301.50 to remove the tires from the South Street property. See Plaintiff's Exhibit 5. Kelly seeks recovery of that amount, plus an amount based on claimed time spent by its own personnel dealing with the tire-filled containers.
The court is unpersuaded. Montinieri's testimony was vague and contradictory. He testified that the events in question occurred in September 2002, but later said that they occurred in July. Also, while he stated that two of the containers were left by the defendants in protected wetlands, the court was provided with no map or plan depicting wetlands on the South Street property. See Ress v. Suffield, 80 Conn.App. 630, 633, 836 A.2d 475 (2003), cert. denied, 267 Conn. 920, 841 A.2d 1191 (2004) (trial court concluded that use by the plaintiff's appraiser of a not to scale soil survey was "not a credible substitute for a soil engineer's survey of the wetlands on the subject lots . . .").
The only documentary evidence presented as to the claimed amount paid to CWPM is Plaintiff's Exhibit 5. This "invoice" is blank where the space for the identification of CPWM's customer is provided next to the words "BILL TO." Similarly blank is the space next to "LOCATION." No location where the alleged services were performed is mentioned. Neither Kelly's name nor the location of the South Street property appears on the document. No one from CWPM testified at the trial to explain the "invoice." Rather than corroborate Kelly's damages claims, this exhibit undermines them.
Further, although Montineri testified to his prior experience as the controller for another company, no check was presented showing that CWPM was paid. Likewise, no entry from Kelly's business records was presented to corroborate the claim that payment was made. The court is similarly unpersuaded by the vague claim for reimbursement based on time spent by Kelly's personnel.
The strength of the plaintiff's evidence was further undermined by the lack of expert testimony concerning alleged pollution or contamination of wetlands. "Evidence of general environmental impacts, mere speculation, or general concerns do not qualify as substantial evidence." River Bend Associates, Inc. v. Conservation and Inland Wetlands Commission of the Town of Simsbury, 269 Conn. 57, 71, 848 A.2d 395 (2004). "Determining what constitutes an adverse impact on a wetland is a technically complex issue . . . Inland wetlands agencies commonly rely on expert testimony in making such a finding." (Citation omitted.) Id., 78.
Kelly has not met its burden of proof as to its claim for reimbursement of remediation costs in count two. See General Statute § 22a-452.
B Section 22a-16
The court next addresses the plaintiff's count one, which, as noted above, is based on General Statute § 22a-16. Since it claims to have removed the tires itself, Kelly no longer seeks an injunction requiring the defendants to remove the tires. Rather, in the conclusions of both of its post-trial memoranda, it specifically seeks to recover its claimed disposal costs, costs of suit, and reasonable attorneys fees. See post-trial brief (#120), p. 16; post-trial reply brief (#123), p. 6. Thus, although Kelly alludes to seeking "injunctive and equitable relief," see Kelly's post-trial brief, p. 6, and post-trial reply brief, p. 2, no request for such relief was set forth. Obviously, that is because there is no such relief which the court could now grant.
As Kelly notes in its post-trial reply brief, at p. 2, it does not purport to seek damages under § 22a-16. Section 22a-16 authorizes "declaratory and equitable relief," not the recovery of disposal costs or damages. Rather, Kelly seeks to recover "its clean-up costs under C.G.S. § 22a-452(a) and attorneys fees under C.G.S. § 22a-18," which Kelly claims "survives the cleanup and disposal of the tires." See post-trial reply brief, p. 2. The court has addressed above the claim for disposal costs in count two, which is based on General Statute § 22a-452.
"The common law rule in Connecticut, also known as the American Rule, is that attorneys fees and ordinary expenses and burdens of litigation are not allowed to the successful party absent . . . a contractual or statutory exception . . . Because we must respect the legislative prerogative of choosing the special circumstances under which [attorneys fees] awards may be made . . . we require a clear expression of the legislature's intent to create a statutory exception [to the rule] . . . Thus, it is apparent that when the General Assembly want[s] to authorize the award of attorneys fees it kn[ows] how to do it . . ." (Citations omitted; internal quotation marks omitted.) Ames v. Commissioner of Motor Vehicles, 267 Conn. 524, 532-33, 839 A.2d 1250 (2004).
General Statute § 22a-18(e) provides that "[t]he court may award any person, partnership, corporation, association, organization or other legal entity which maintains an action under section 22a-16 or intervenes as a party in an action for judicial review under section 22a-19, and obtains declaratory or equitable relief against the defendant, its costs, including reasonable costs for witnesses, and a reasonable attorneys fee." (Emphasis added.)
Thus, in § 22a-18(e), our legislature set forth two requirements for eligibility for awards of costs and attorneys fees. First, the plaintiff must maintain an action under § 22a-16. Second, it must obtain declaratory or equitable relief against the defendant. Here, as noted, Kelly no longer even seeks an injunction, and, in its prayer for relief no declaratory relief was sought. It has not requested declaratory relief. Kelly has not obtained declaratory or equitable relief against the defendants. Under the circumstances here, this court may not award costs and attorneys fees under § 22a-18(e). In the absence of clear statutory language authorizing such relief, the court will not presume that the legislature intended for § 22a-18(e) "to operate in derogation of our long-standing common-law rule disfavoring the award of attorneys fees to the prevailing party." Ames v. Commissioner of Motor Vehicles, supra, 267 Conn. 533.
This case does not involve intervention in an action for judicial review under section 22a-19.
"It is axiomatic that, when events have occurred that preclude a court from granting practical relief to a party through a disposition on the merits, the case is moot." Commission On Human Rights and Opportunities v. Board of Education, 270 Conn. 665, 684, 855 A.2d 212 (2004). "Because courts are established to resolve actual controversies, before a claimed controversy is entitled to a resolution on the merits it must be justiciable. Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute . . . (2) that the interests of the parties be adverse . . . (3) that the matter in controversy be capable of being adjudicated by judicial power . . . and (4) that the determination of the controversy will result in practical relief to the complainant." (Internal quotation marks omitted.) Wallingford v. Department of Public Health, 262 Conn. 758, 766-67, 817 A.2d 644 (2003). This is not a case involving collateral consequences, such as where the court's decision would substantially affect another pending action. See Crest Pontiac Cadillac, Inc. v. Hadley, 239 Conn. 437, 439 n. 3, 685 A.2d 670 (1996). Further, in view of the deficiencies in the plaintiff's evidentiary presentation, discussed above in connection with count two, this is not a case where the plaintiff has shown that any "environmental consequences" occurred. See New Haven v. Connecticut Siting Council, Superior Court, judicial district of New Britain, Docket No. CV 02-0513195 (August 21, 2002, Schuman, J.) ( 33 Conn.L.Rptr. 187).
Since, as a matter of law, the only relief now sought by Kelly under count one may not be awarded, adjudication thereof would not result in practical relief to Kelly. Accordingly, count one is moot.
C Request To Amend
Kelly requests leave to amend its complaint to assert a CUTPA claim, in accordance with a previous request to amend, dated March 8, 2005 (#116.00), "to meet the facts proven at trial." See Kelly's post-trial brief, p. 14. The previous request was denied by the court (Hale, J.T.R.), by order dated April 7, 2005, in advance of the trial. In their March 17, 2005 objection to that request (#117.00), the defendants noted that the deadlines for the completion of written discovery and disclosure of experts had passed according to a January 2005 scheduling order issued by the court.
"A trial court may allow, in its discretion, an amendment to pleadings before, during, or after trial to conform to the proof . . . Factors to be considered in passing on a motion to amend are the length of the delay, fairness to the opposing parties and the negligence, if any, of the party offering the amendment . . . The essential tests are whether the ruling of the court will work an injustice to either the plaintiff or the defendant and whether the granting of the motion will unduly delay a trial." Martin Printing, Inc. v. Sone, 89 Conn.App. 336, 342, 873 A.2d 232 (2005).
Judge Hale's order denying Kelly's previous request to amend is the law of the case. "Underlying the law of the case doctrine is the view that `[a] judge should hesitate to change his own rulings in a case and should be even more reluctant to overrule those of another judge.' Breen v. Phelps, 186 Conn. 86, 99, 439 A.2d 1066 (1982). The doctrine provides that [w]here a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance." (Internal quotation marks omitted.) Wasko v. Manella, 87 Conn.App. 390, 395, 865 A.2d 1223 (2005). Here, this court is of the opinion that Judge Hale correctly denied the previous request to amend.
There is no new or overriding circumstance which merits overruling the previous decision. Kelly did not renew its request to amend at trial. As noted, it did not raise the issue until it filed its post-trial brief. Thus, the record here differs markedly from that in Martin Printing, Inc. v. Sone, supra, 89 Conn.App. 336, cited by Kelly. There, on the first day of trial, September 10, 2003, the defendant's counsel addressed the court and requested that if the plaintiff was going to proceed on a personal guarantee, that it amend its pleadings to conform to the proof which was offered. The plaintiff's counsel then said, "Yes, Your Honor, we can do that." See id., 340, 342. The court found that the plaintiff's subsequent second amended complaint had been filed pursuant to an order of the court "at the specific request of the defendant, which request was made in open court." Id., 342. "Any variance between the original pleading and the proof did not mislead or surprise the defendant and was waived by the defendant in this case." Id., 344.
Here, the defendants made no such request and did not waive the issue. To the contrary, they reiterated their objection in their reply brief and by filing another objection (#122).
Kelly's belated attempt to amend its complaint after trial was inexcusably delayed. To allow it now, after trial, and after Judge Hale's pre-trial ruling, would amount to misleading the defendants about what Kelly's claims were at trial. "`The allegations of a complaint limit the issues to be decided on the trial of a case and are calculated to prevent surprise to opposing parties . . . It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of his complaint.' (Citations omitted; internal quotation marks omitted.) Lundberg v. Kovacs, 172 Conn. 229, 232, 374 A.2d 201 (1977)." Provenzano v. Provenzano, 88 Conn.App. 217, 225, 870 A.2d 1085 (2005). Permitting Kelly to amend in order to assert a new claim, after trial, and after permission to amend was denied before trial, would be unfair to the defendants. In the exercise of the court's discretion, Kelly's post-trial request to amend is denied.
CONCLUSION
For the foregoing reasons, judgment may enter in favor of the defendants and against the plaintiff on both counts of the complaint. In view of the defendants' stipulation, referred to above in footnote three, the court need not address their counterclaim, which, accordingly, is deemed to be withdrawn. Plaintiff's post-trial request to amend is denied. It is so ordered.
BY THE COURT
ROBERT B. SHAPIRO
JUDGE OF THE SUPERIOR COURT