MD v. Cascella & Son Construction, Inc. (2009)

MEMORMDUM OF DECISION

The plaintiff, MD Drilling & Blasting Inc.,¹ brought this action by way of writ, summons and complaint dated March 7, 2006.   On January 21, 2009, the plaintiff filed an amended complaint, alleging breach of contract and unjust enrichment against the defendants, Cascella & Son Construction, Inc. (Cascella) and Handsome, Inc., respectively.²  Additionally, the plaintiff seeks to foreclose on a mechanic's lien against certain real property known as 125 Garder Road, Monroe, Connecticut.³ (subject property).   On February 11, 2009, the defendant Cascella, filed an answer, special defenses, set-off and counterclaim.   Cascella contends that plaintiff failed to perform its obligations as set forth in the agreement and was negligent in failing to completely and adequately provide drilling and blasting services.

The court finds the following facts:

On October 30, 2003, the plaintiff and Cascella entered into a written agreement, whereby the plaintiff agreed to drill and blast a specific amount of open rock at the subject property for the lump sum of $16,500.  (Exh. 1.) The agreement was later modified by two change orders.   In the first change order, the parties agreed that the plaintiff would drill and blast additional open rock at the unit price of $3.65 per cubic yard.  (Exh. 2.) The second change order provides that, at the defendant Cascella's direction, the plaintiff would drill and blast boulders at the daily rate of $2,500.  (Exh. 3.) Both change orders were incorporated into the original agreement.  (Exhs.2, 3.)

In November 2003, the plaintiff drilled and blasted the open rock as contemplated by the original agreement.  (Transcript [Tr.], 5/29/09, p. 13.)   Due to Cascella's failure to issue payments in accordance with the terms of the agreement, the plaintiff filed a mechanic's lien against the subject property.   On August 30, 2005, Cascella issued payment of all past due amounts, including attorneys fees, and in return, the plaintiff released the lien.  (Tr., 5/29/09, pp. 21-23;  Tr., 6/2/09, pp. 158-60.)   Thereafter, in September and October, the plaintiff blasted additional open rock.  (Exhs.6, 7.) Specifically, on September 19, 2005, the plaintiff detonated a shot that blasted 3,789 cubic yards of open rock, and on September 23, 2005, the plaintiff detonated a shot that was intended to blast 5,183 cubic yards of open rock, but due to a failure in the detonation sequence, certain holes did not detonate.4  (Exh. 7.) This failure is known in the industry as a “misfire.”  (Tr., 5/29/09, p. 35.)   After the misfire, the plaintiff returned to the site and developed a plan to remediate the misfire in order to make the site safe from any unplanned detonations.5  (Tr., 5/29/09, pp. 158-62.)   The plaintiff's remediation plan required it to gain access to the holes that failed to detonate;  recover any unexploded boosters that could be located;  and then re-prime and refire the holes that did not detonate.  (Tr., 5/29/09, pp. 161-62.)

The plaintiff alleges that it commenced the remediation on September 26, 2005 and believes that it was successfully completed on October 4, 2005.  (Exhs.7, 10.)   The defendants, however, claim that the plaintiff failed to successfully remediate the misfire, and thus, has failed to meet its obligations under the agreement.   On December 20, 2005, as a result of the defendant Cascella's failure to pay, the plaintiff recorded a Certificate of Mechanic's Lien in the amount of $32,747.80 against the subject property.  (Exhs.16, 18.)   The lien was duly signed and sworn under oath, filed with the town clerk of Monroe and duly recorded in the Monroe land records at Volume 1400 and Page 265.  (Exh. 16, 18.)

Breach of Contract

As both the plaintiff and defendants each allege that the other breached the agreement, the court feels it is best to address their breach of contract claims together.   As previously stated, the plaintiff alleges that the defendant breached the agreement by failing to pay for drilling and blasting services rendered pursuant to the agreement.   Specifically, the plaintiff contends that the defendants failed to pay for the work done on September 19 and September 23, 2005.   On September 19, 2005, the plaintiff claims it detonated a shot that blasted 3,789 cubic yards of open rock, and on September 23, 2005, the plaintiff claims that it detonated a shot that was intended to blast 5,183 yards of open rock.   As a result of a misfire on September 23, 2005, the plaintiff was required to return to the site and remediate the misfire.   The plaintiff claims that they successfully remediated the misfire on October 4, 2005, and thus, satisfied the terms of the agreement and is owed payment for its services.

The defendants, however, present a different view of the facts surrounding this disputed remediation efforts.   They contend that the plaintiff breached the terms of the agreement by failing to completely and adequately provide drilling and blasting services, as approximately eighteen holes of explosives and boosters failed to ignite, fire and explode which left the quarry in a hazardous and dangerous position.   Further, the defendant contends that the plaintiff has not produced any acceptance reports for the work it is seeking payment.   The agreement states that payment shall be based upon acceptance reports signed by the defendant.

“The elements of an action based upon breach of contract are, the formation of an agreement, performance by one party, breach of the agreement by the other party and damages.”  (Citations omitted;  internal quotation marks omitted.)   Oddo v. Warren, Superior Court, judicial district of Waterbury, Docket No. CV 07 5003533 (January 3, 2008, Trombley, J.).  “The general rule in breach of contract cases is that the award of damages is designed to place the injured party, so far as can be done by money, in the same position as he would have been in had the contract been performed.   Damages for breach of contract are to be determined as of the time of the occurrence of the breach ․ As a general rule, contract damages are awarded to place the injured party in the same position as he would have been in had the contract been fully performed ․ Damages are recoverable only to the extent that the evidence affords a sufficient basis for estimating their amount in money with reasonable certainty.”  (Citations omitted;  internal quotation marks omitted.)   Dow & Condon, Inc. v. Garden Main Street, LLC, Superior Court, judicial district of Hartford, Docket No. CV 08 5020258 (July 15, 2009, Bentivegna, J.)

The court will first address the work done on September 19, 2005.   It is undisputed that on said date, the plaintiff successfully blasted 3,789 cubic yards of open rock.   Pursuant to the agreement, the plaintiff is owed $3.65 for each cubic yard blasted.   Thus, the court finds that the plaintiff is owed $13,829.85 for the work performed on September 19, 2005.⁶

In support of its position that the misfire occurred in the last row, the plaintiff relies solely on the testimony of Gordon Carmichael, the plaintiff's lead blaster for the New York-Vermont region, Jereme Caron, the plaintiff's regional superintendent and Todd Barrett, an employee of the plaintiff.   Carmichael's testimony is as follows:

On September 19, 2005, Carmichael loaded the holes, tied the shots, connected the holes and walked the shot.   On September 23, 2005, Carmichael taped the holes to make sure they were proper depth and then “began to direct the plaintiff's employees what powder to lay out in which holes” and loading the holes.  (Tr., 6/2/09, p. 89.)   After loading the holes, the shot was connected, hole by hole, and once they were all connected, Carmichael walked the shot.7  Thereafter, the shots were matted, and the area was then cleared and the shot was fired.

Immediately after the shot, there was no indication that there had been a misfire, however, after inspecting the shot, it was evident that the weight of the mats pinched the tubes going between the third and fourth row.  (Tr., 6/2/09, pp. 97, 99.)   When inspecting the shot, Carmichael saw the shock tubes still connected, which led him to believe that the weight of the mats stopped the initiated sequence in the back row.  (Tr., 6/2/09, p. 97.)   Carmichael, however, admitted that the misfire could have resulted from a product failure or human error.   He did not believe that the misfire was the result of a product failure, as product failures are rare occurrences and did not believe the misfire was the result of human error, as he walked the shot and connected the shock tubes.  (Tr., 6/2/09, pp. 97-98.)   Further, Carmichael testified that in walking the shot and inspecting the connections, he could not have known if a mat pinched the tube because “you can't see through the mat.”  (Tr., 6/2/09, p. 98.)   Immediately after the misfire, Carmichael called the fire marshal and informed him of the misfire.   Additionally, Carmichael informed him that “a lot of holes were inaccessible and that [they] were going to make [them] inaccessible by covering them with mats.”  (Tr., 6/2/09, p. 102.)   Carmichael then informed the defendant Cascella that it would take several days to “re-prime and re-shoot” the holes.   In remediating the misfire, the plaintiff and Ken Yoos, at the time an employee of the defendant Cascella, worked their way through the muck pile, gained access to the holes, then re-primed the holes and re-shot them.⁸  While digging through the muck pile, Carmichael claims that twelve of the fourteen boosters were recovered and he believes that the two boosters that were unaccounted for were destroyed in the re-shoot, although he was not “100 percent” sure that they were destroyed.  (Tr., 6/2/09, p. 102-06.)

The defendants rely on the testimony of Todd Cascella, the owner of the defendant Cascella & Son Construction, Inc., as well as Ken Yoos, a former employee of the defendant Cascella and the defendants' expert witness Thomas Treleaven of Vets Explosives,⁹ in support of their position that the plaintiff breached the terms of the agreement by failing to completely and adequately provide drilling and blasting services, as approximately eighteen holes of explosives and boosters failed to ignite, fire and explode and the plaintiff failed to remediate said misfire, which left the quarry in a hazardous and dangerous position.   With respect to the misfire on September 23, 2005, Cascella testified that “you could tell right away that there was something wrong with the shot.”  (Tr., 6/2/09, p. 164.)   Specifically, Cascella testified that there was an “uneven rumble with a delay like a stop, and then a loud boom and excessive fly rock.”  (Tr., 6/2/09, p. 164.)   Cascella testified that Carmichael, as well as other employees of the plaintiff went to site to determine what had happened.   After approximately thirty minutes, Carmichael returned from the site and told Cascella that there had been a misfire.  (Tr., 6/2/09, p. 165-66.)   Carmichael then told Cascella that one of the middle rows had misfired.  (Tr., 6/2/09, p. 166.)   In order to secure the site, Cascella's employees cleaned the flyrock from the road, while the plaintiff's employees took care of the site and notified the fire marshal.  (Tr., 6/2/09, p. 166-67.)   Cascella claims that mats were not put over the unexploded explosives.

According to Cascella, in attempting to remediate the misfire, the plaintiff's employees “put a line in the ․ muck pile approximately where they thought ․ the middle row [was located.]”   The plaintiff needed to place a line on the muck pile to show where he thought the rows of holes and boosters were located because the last row, in firing, shifted the holes in the middle rows.  (Tr., 6/2/09, p. 167-68.)   On September 26 and 27, 2005, the plaintiff visited the site and began to remediate the misfire.   Specifically, they removed boosters and hydromite.  (Tr., 6/2/09, p. 167-69.)   During the remediation process, the Cascella's excavator broke, causing a delay in the remediation.  (Tr., 6/2/09, pp. 169-70.)   According to Cascella, the re-shoot never occurred on October 4, 2005, as stated by Carmichael.  (Tr., 6/2/09, p. 170.)   Cascella believes this because he claims that he “was [at the site] most of the time after that, and [he] would have known.”   According to him, “it was physically impossible to re-shoot [the] misfire.”  (Tr., 6/2/09, p. 170.)   Additionally, Cascella testified that the site did not “look” different on October 5, 2005, than it did on October 3, 2005 and after October 4, 2005, the plaintiff did not return to the site.  (Tr., 6/2/09, p. 171.)

“In a civil action, the plaintiff bears the burden of proof.   He has the burden of proving every essential element of the case by a preponderance of the evidence.   To prove by a preponderance of the evidence means to prove that something is more likely so than not so.   A preponderance of the evidence means enough evidence, considering all the evidence in the case when considered and compared, to produce in the trier of facts mind that what is sought to be proved is more likely true than not true.   Preponderance of the evidence means, evidence that has more convincing force then that opposed to it.   If the evidence is so evenly balanced that the trier of fact is unable to say that the evidence on either side of an issue preponderates, the finding on that issue must be against the party who had the burden of proving it.   The trier of fact should consider all the evidence bearing upon every issue regardless of who produces it.   As it relates to the counterclaim, the defendant bears the burden of proof.   The defendant has the burden of proving every essential element of the counterclaim by a preponderance of the evidence.”   Palkimas v. Gorski, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 05 400507 (December 18, 2008, Karazin, J.).   Further, “[i]t is the exclusive province of the trier of fact to weigh conflicting testimony and make determinations of credibility, crediting some, all or none of any given witness' testimony.”  Bender v. Bender, 292 Conn. 696, 729, 975 A.2d 636 (2009).

After reviewing all the exhibits, expert testimony and briefs of the parties, the evidence pertaining to the plaintiff's breach of contract claim and the defendants' first counterclaim alleging breach of contract, the court finds that the evidence is so evenly balanced that it is unable to say that either side preponderated.   Rather than assist the trier of fact by producing independent witnesses or unbiased experts in support of their respective positions, each party and their biased witnesses testified in support of their claims.¹⁰  Accordingly, the court finds that the plaintiff has failed to prove by a preponderance of the evidence that the defendants breached the contract, and likewise, the defendants have failed to prove by a preponderance of the evidence that the plaintiff breached the contract.

With respect to the plaintiff's unjust enrichment claim, the plaintiff contends that it provided the defendants with valuable labor, material and services for which the defendants received a direct and material benefit for which it was not compensated.  “Unjust enrichment is a legal doctrine to be applied when no remedy is available pursuant to a contract ․ Recovery is proper if the defendant was benefited, the defendant did not pay for the benefit and the failure of payment operated to the detriment of the plaintiff ․ Although restitution for unjust enrichment often applies to situations in which there is no written contract, it can also apply to situations in which there is a written contract and the party seeking restitution has breached the contract.”  (Citations omitted;  internal quotation marks omitted.)   The Final Cut, LLC v. Sharkey, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 08 5007365 (May 5, 2009, Adams, J.).

“Unjust enrichment applies wherever justice requires compensation to be given for property or services rendered under a contract, and no remedy is available by an action on the contract ․ A right of recovery under the doctrine of unjust enrichment is essentially equitable, its basis being that in a given situation it is contrary to equity and good conscience for one to retain a benefit which has come to him at the expense of another ․ With no other test than what, under a given set of circumstances, is just or unjust, equitable or inequitable, conscionable or unconscionable, it becomes necessary in any case where the benefit of the doctrine is claimed, to examine the circumstances and the conduct of the parties and apply this standard ․ Unjust enrichment is, consistent with the principles of equity, a broad and flexible remedy ․ Plaintiffs seeking recovery for unjust enrichment must prove (1) that the defendants were benefited, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs' detriment ․” (Citations omitted;  internal quotation marks omitted.)  Vertex, Inc. v. Waterbury, 278 Conn. 557, 573, 898 A.2d 178 (2006).

“In an unjust enrichment case, damages are ordinarily not the loss to the plaintiff, but the benefit to the defendant, for which the fact finder may rely on the plaintiff's contract price when the benefit is too difficult to determine ․ The party against whom restitution is sought, however, cannot reduce the amount from which it may be liable by subtracting its expenditures from the amount of the benefit that it has received ․ If restitution were to be a proper remedy for the plaintiff's loss ․ it would be more consistent with the aims of restitution to measure the benefit conferred on the defendants, not by their benefit in gross, but by their benefit in having been relieved of the obligation of providing proper compensation to the plaintiff ․” (Citations omitted;  internal quotation marks omitted.)   Rent-A-PC, Inc. v. Rental Management, Inc., 96 Conn.App. 600, 606-07, 901 A.2d 720 (2006).

It is undisputed that on September 19, 2005, the plaintiff successfully blasted 3,789 cubic yards of open rock.   Pursuant to the agreement, the plaintiff is owed $3.65 for each cubic yard blasted.   Thus, the court finds that the defendants were unjustly enriched by not paying for the services successfully performed by the plaintiff on September 19, 2005.   Accordingly, the court finds that the plaintiff is entitled to the value of the services performed on September 19, 2005, which is $13,829.85.

“As our Supreme Court has noted, [a] plaintiff may be compensated only once for his just damages for the same injury ․ Plaintiffs are not foreclosed from suing multiple defendants, either jointly or separately, for injuries for which each is liable, nor are they foreclosed from obtaining multiple judgments against joint tortfeasors ․ This rule is based on the sound policy that seeks to ensure that parties will recover for their damages ․ The possible rendition of multiple judgments does not, however, defeat the proposition that a litigant may recover just damages only once ․ Double recovery is foreclosed by the rule that only one satisfaction may be obtained for a loss that is the subject of two or more judgments.”  MD Drilling & Blasting Inc. v. MLS Construction, LLC, 96 Conn.App. 798, 804 (2006).

While the court acknowledges that the plaintiff may not recover more than a single measure of damages, the court concludes that the plaintiff is entitled to judgment on the breach of contract and unjust enrichment claims with respect to the services rendered on September 19, 2005.   Thus, the court's decision does not allow the plaintiff to recover more than the damages to which it is entitled.   Rather, it merely allows the plaintiff to pursue those damages to which it is entitled through either the judgment of foreclosure on the mechanic's lien or on the breach of contract and unjust enrichment claims against the defendant Cascella & Son Construction, LLC or through the judgment on the unjust enrichment claim against Handsome Inc.

With respect to the second count of the defendant Cascella's counterclaim, the defendants contend that the plaintiff was negligent in failing to completely and adequately provide drilling and blasting services.   Further, as a result of the plaintiff's negligence, the defendant was required to retain another company to explode, pulverize, destroy and correct the rock face quarry to a condition that was no longer hazardous.

“The essential elements of a cause of action in negligence are well established:  duty;  breach of that duty;  causation;  and actual injury ․ The nature of the duty and the specific persons to whom it is owed are determined by circumstances surrounding the conduct of the individual ․ The statement that there is or is not a duty begs the essential question whether the plaintiff's interests are entitled to legal protection against the defendant's conduct ․ [T]he test for the existence of a legal duty of care entails (1) a determination of whether an ordinary person in the defendant's position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant's responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case ․ The first part of the test involves the question of foreseeability and the second part involves the question of policy ․ The test that is often applied in determining whether there exists a duty to use care is the foreseeability of harm.   Would the ordinarily prudent man in the position of the defendant, knowing what he knew or should have known, anticipate the harm of the general nature of that suffered was likely to result?   This does not mean foreseeability of any harm whatsoever or foreseeability that the particular injury which resulted would occur.   It is, in short, the foreseeability or anticipation that harm of the general nature of that suffered would be likely to result, which gives rise to a duty to use due care, breach of which might constitute negligence.   Foreseeability in this context is a flexible concept, and may be supported by reasonable reliance, impeding others who might seek to render aid, statutory duties, property ownership, or other factors.”   (Citations omitted;  internal quotation marks omitted.)   Doe v. Nelson, Superior Court, judicial district of Waterbury, Docket No. CV 05 5000575 (August 1, 2006, Matasavage, J.) (41 Conn. L. Rptr. 745, 747).

The court finds that the defendant has not set forth sufficient evidence to prove by a preponderance of the evidence that the plaintiff acted negligently when performing pursuant to the contract.   The defendants have not proven by a preponderance of the evidence that the plaintiff used improper methods in remediating the misfire.   Specifically, the defendants failed to show by a preponderance of the evidence that the plaintiff failed to successfully re-shoot the misfire or that the plaintiff left explosives on the defendant Cascella's site.¹¹

CONCLUSION

With respect to the first count alleging breach of contract, the court finds in favor of the plaintiff with respect to the work performed on September 19, 2005 and finds damages totaling $13,829.85 for the work performed on said date.   However, the court finds that the plaintiff failed to prove by a preponderance of the evidence that it successfully remediated the misfire, and thus, the court's award of damages does not include the work performed on September 25, 2005 or any work allegedly performed in remediating the misfire.

With respect to count two, alleging unjust enrichment, the court finds in favor of the plaintiff with respect to the work performed on September 19, 2005 and finds damages totaling $13,829.85 for the work performed on said date.   The court finds that the plaintiff has failed to prove by a preponderance of the evidence that the defendants were unjustly enriched by the work allegedly successfully performed after September 19, 2005.

Further, pursuant to the contract, the plaintiff is entitled to interest of 1 1/2% per month, as well as “any fees, costs or expenses, including legal fees, incurred by the [plaintiff] associated with receipt of payment ․” (Exh. 1.) Thus, based on the award of $13,829.85, the court awards interest in the amount of $10,441.70.   Additionally, after reviewing the affidavit of attorneys fees, the court finds that, based on the plaintiff's pre-interest award of $13,829.85, reasonable attorneys fees in this matter amount to $2,500, and awards said amount to the plaintiff as well as a reasonable appraisal fee in the amount of $500.   Accordingly, the plaintiff's total award is $27,271.55.   The court declines to award interest pursuant to General Statutes § 37-3a.¹²

Additionally, the plaintiff asks the court to foreclose on the mechanic's lien held against the property known as 125 Garder Road, Monroe, Connecticut.   The plaintiff provided the court with real property and land appraisal reports for the property at 125 Garder Road. (Exh. 12, 13.)   The court finds that the fair market value of the property to be $542,000;  (Exh. 19);  and that Hudson United Bank has a prior interest in the property by virtue of a mortgage in the face amount of $500,000.   The court finds the debt in the present matter is $27,271.55.   Further, the court finds that there is not sufficient equity in the property to warrant a foreclosure by sale, and therefore, enters a judgment of strict foreclosure with a law day of March 2, 2010 for the owner of the equity, with subsequent law days for subsequent encumbrances, if any.

Lastly, with respect to the defendants' counterclaim, the court finds that the defendants have failed to prove by a preponderance of the evidence that:  (1) the plaintiff breached the contract by failing to perform its duties and obligations under the contract.   Specifically, that the plaintiff failed to properly remediate the misfire occurring on September 25, 2009;  and (2) the plaintiff was negligent in carrying out its duties under the contract.

MINTZ, J.

FOOTNOTES

FN1. The plaintiff is a corporation organized and existing under the laws of the state of Maine, and having an office and place of business in Bloomfield, Connecticut.  (Exhibit [Exh.] 8.).  FN1. The plaintiff is a corporation organized and existing under the laws of the state of Maine, and having an office and place of business in Bloomfield, Connecticut.  (Exhibit [Exh.] 8.)

FN2. The defendant Cascella & Son Construction, Inc., is a corporation organized and existing under the law of the state of Connecticut, and having an office and place of business in Easton, Connecticut.  (Exh. 20.)   The defendant Handsome, Inc., is a corporation organized and existing under the law of the state of Connecticut, and having an office and place of business in Easton, Connecticut.  (Exh. 20.).  FN2. The defendant Cascella & Son Construction, Inc., is a corporation organized and existing under the law of the state of Connecticut, and having an office and place of business in Easton, Connecticut.  (Exh. 20.)   The defendant Handsome, Inc., is a corporation organized and existing under the law of the state of Connecticut, and having an office and place of business in Easton, Connecticut.  (Exh. 20.)

FN3. Handsome, Inc., is the owner of said property.  (Exh. 18.).  FN3. Handsome, Inc., is the owner of said property.  (Exh. 18.)

FN4. The parties do not dispute that a misfire occurred on September 23, 2005..  FN4. The parties do not dispute that a misfire occurred on September 23, 2005.

FN5. According to industry standards, remediation of a misfire means making the site safe from any unplanned detonations.  (Tr., 5/29/09, pp. 158-59.).  FN5. According to industry standards, remediation of a misfire means making the site safe from any unplanned detonations.  (Tr., 5/29/09, pp. 158-59.)

FN6. Although the defendants claim that the plaintiff failed to provide a consumer acceptance report for the services rendered on September 19, 2005, the defendants do not dispute that the plaintiff successfully blasted 3,789 cubic yards of open rock.   Further, the court does not find that the plaintiff's failure to provide a consumer acceptance report for said date is a material breach of the contract, allowing the defendant Cascella to be discharged from its obligations under the agreement..  FN6. Although the defendants claim that the plaintiff failed to provide a consumer acceptance report for the services rendered on September 19, 2005, the defendants do not dispute that the plaintiff successfully blasted 3,789 cubic yards of open rock.   Further, the court does not find that the plaintiff's failure to provide a consumer acceptance report for said date is a material breach of the contract, allowing the defendant Cascella to be discharged from its obligations under the agreement.

FN7. “Walking the shot” means doing a visual inspection of every connection on the shot.  (Tr., 6/02/09, p. 89.).  FN7. “Walking the shot” means doing a visual inspection of every connection on the shot.  (Tr., 6/02/09, p. 89.)

FN8. “Re-priming” the holes is the process of putting a new primer, which could either be a cast booster or dynamite product into the holes, re-wiring them and shooting them.  (Tr., 6/02/09, p. 110.).  FN8. “Re-priming” the holes is the process of putting a new primer, which could either be a cast booster or dynamite product into the holes, re-wiring them and shooting them.  (Tr., 6/02/09, p. 110.)

FN9. After the plaintiff stopped working on the project, the defendant Cascella hired Vets Explosives to remediate the damage done to the site by the misfire at a cost of $71,412.18..  FN9. After the plaintiff stopped working on the project, the defendant Cascella hired Vets Explosives to remediate the damage done to the site by the misfire at a cost of $71,412.18.

FN10. The defendant Cascella's witnesses had reason to be biased based on the following:  Todd Cascella is the owner of the defendant Cascella & Son Construction, Inc.;   Ken Yoos is a former employee of the defendant Cascella;  and the defendants' expert witness Thomas Treleaven is employed by Vets Explosives, which is still owed money for services rendered to the defendant Cascella and the cost of said services are part of the defendant Cascella's requested relief.   The plaintiff's witnesses had reason to be biased, as they are all employees of the plaintiff..  FN10. The defendant Cascella's witnesses had reason to be biased based on the following:  Todd Cascella is the owner of the defendant Cascella & Son Construction, Inc.;   Ken Yoos is a former employee of the defendant Cascella;  and the defendants' expert witness Thomas Treleaven is employed by Vets Explosives, which is still owed money for services rendered to the defendant Cascella and the cost of said services are part of the defendant Cascella's requested relief.   The plaintiff's witnesses had reason to be biased, as they are all employees of the plaintiff.

FN11. The defendant fails to support its claim that the plaintiff left explosives on the defendant's property with any direct evidence.   Rather, the defendant claims that a large portion of the quarry is still under water and not easily inspected.   Additionally, the defendant provided the court with pictures of explosive wrappers found at the site.   This evidence, standing alone, cannot support a finding that the plaintiff left explosives at the defendant's site..  FN11. The defendant fails to support its claim that the plaintiff left explosives on the defendant's property with any direct evidence.   Rather, the defendant claims that a large portion of the quarry is still under water and not easily inspected.   Additionally, the defendant provided the court with pictures of explosive wrappers found at the site.   This evidence, standing alone, cannot support a finding that the plaintiff left explosives at the defendant's site.

FN12. “It is clear that Connecticut case law establishes that prejudgment interest is to be awarded if, in the discretion of the trier of fact, equitable considerations deem that it is warranted.”  Paulus v. LaSala, 56 Conn.App. 139, 147, 742 A.2d 379 (1999), cert. denied, 252 Conn. 928, 746 A.2d 789 (2000)..  FN12. “It is clear that Connecticut case law establishes that prejudgment interest is to be awarded if, in the discretion of the trier of fact, equitable considerations deem that it is warranted.”  Paulus v. LaSala, 56 Conn.App. 139, 147, 742 A.2d 379 (1999), cert. denied, 252 Conn. 928, 746 A.2d 789 (2000).

Mintz, Douglas C., J.