J. Wm. Foley, Inc. v. United Illuminating Co. ( 2015 )

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J. WM. FOLEY, INC. v. THE UNITED
ILLUMINATING COMPANY
(AC 36194)
Gruendel, Mullins and Mihalakos, Js.
Argued November 19, 2014—officially released June 23, 2015
(Appeal from Superior Court, judicial district of
Hartford, Complex Litigation Docket, Bright, J.)
Ira S. Sacks, with whom were Gerard P. Brady, and,
on the brief, Alan J. Sobol and Paul G. Ryan, for the
appellant (plaintiff).
Jonathan M. Freiman, with whom were Timothy A.
Diemand and Ivana D. Greco, for the appellee
(defendant).
Opinion
MULLINS, J. The plaintiff, J. Wm. Foley, Inc. (Foley),
appeals from the judgment of the trial court, after a
bench trial, rendered in part in favor of the defendant,
The United Illuminating Company (United). Foley
claims that the court improperly: (1) denied its claim
for compensation arising from delays in a construction
project in which Foley served as a contractor; (2) con-
cluded that it was not entitled to a 10 percent markup on
United’s settlement payments to Foley’s subcontractors
pursuant to a markup provision in the parties’ contract;
(3) denied its claims for interest; (4) rejected its tort
claims; and (5) denied its request for leave to file a
fifth amended complaint. We affirm the judgment of
the trial court.
The relevant facts found by the court in its memoran-
dum of decision are as follows. To meet the growing
energy demands of southwest Connecticut, United
undertook the construction of a sixty-nine mile power
transmission line. As a part of that endeavor, United
was required to install an underground power transmis-
sion line over a six mile stretch of land between Bridge-
port and Stratford (project). ‘‘Doing so was not simply
a matter of digging a single six mile trench through
open land, laying a six mile transmission line in the
trench, and then filling it in. [United’s] route passed
through congested residential and commercial areas,
and included work on public roads. In addition, to pro-
tect the transmission line, concrete would be poured
into the trench to encase the line in a ‘duct bank.’
Finally, the transmission line would be laid in segments
and connected to other segments along the length of
the duct banks. These connection points are known as
splice chambers. . . .
‘‘To complete the work required on the project,
[United] sought bids from qualified contractors who
would be responsible for digging the trenches, laying
the transmission line, installing the duct banks and
splice chambers, laying the transmission line into the
splice chambers and filling in the trenches. On or about
January 25, 2006, Foley submitted a bid of $43,344,000
to do all of this work, except for supplying and installing
the transmission line. . . .
‘‘In submitting this bid, Foley considered the draw-
ings [United] gave to potential bidders as part of the
bid package. These drawings showed various obstruc-
tions a contractor should expect to encounter when
doing the trenching and laying work called for by the bid
request. Among these obstructions were other utilities
already in the area where the work was to be performed.
[United] notified Foley that it was the low bidder on the
contract, and Foley and [United] then began negotiating
the terms of a contract.’’
On or about September 29, 2006, United and Foley
entered into a contract for Foley’s work on the project
(contract). The contract reflected an understanding by
the parties that Foley could encounter site conditions
not identified in the drawings. Specifically, the contract
provided that ‘‘in the event that [Foley] encounters
unknown or misidentified site conditions whose pres-
ence will cause a change in [Foley’s] scope of work or
delay in the critical path’’ Foley would be entitled to
additional compensation. ‘‘Critical path’’ was defined
in the contract as ‘‘the particular sequence of tasks,
activities, and/or other [m]ilestones associated with
performance of the [w]ork which must be accomplished
as scheduled in order for the [w]ork and the [p]roject
as a whole to be completed on time and in accordance
with the [c]ontract [d]ocuments, including the [p]roject
[s]chedule.’’1 The contract included a lump sum con-
tract price of $53,348,057.
Article 6 of the contract outlined a mechanism for
compensating Foley for the expenses that it incurred
from unexpected obstacles. When Foley sought addi-
tional compensation, § 6.4 (a) required that Foley sub-
mit to United a ‘‘[c]hange [o]rder’’ request. The change
order request had to include ‘‘an equitable schedule
and/or price adjustment to compensate [Foley] for the
actual, demonstrable delay in the [c]ritical [p]ath and/
or the cost of [Foley’s] additional [w]ork.’’ Section 6.1
(d) provided that claims for additional compensation
would be ‘‘irrevocably waived and released’’ unless
Foley submitted its change order request within ten
business days of the event or decision giving rise to the
claim (ten day rule). ‘‘Pursuant to § 6.1 (e), [United]
then had ten business days to respond to Foley’s pro-
posal. . . . Pursuant to § 6.3, if [United] agreed with
the proposal, a change order would issue. . . . Thus,
based on the structure of the agreement, the parties
. . . intended that any price adjustments related to
delay were to be resolved as part of the above process
and addressed on a change order by change order
basis.’’
United hired Black & Veatch to serve as its consultant
on, and coordinator of, the project.2 Foley hired as sub-
contractors Manafort Brothers, Inc. (Manafort) and
A.M. Rizzo Electrical Contractors, Inc. (Rizzo). Mana-
fort dug the trenches and installed the duct banks and
splice chambers. Rizzo installed the piping in the
trenches that would include the transmission line. After
Rizzo installed the piping, Manafort then refilled the
trenches.
According to their anticipated schedule, the parties
expected the project to take approximately one year
to complete. Foley was to commence construction in
October, 2006, and have construction substantially com-
pleted3 by November, 2007. Foley did not notify United
that the project was substantially complete, however,
until November, 2008, approximately one year after the
expected completion date.
There were many reasons for delays to the project.
On the one hand, United was responsible for some of
those reasons, which included: failing to secure neces-
sary easements; postponing work on the project due to
the construction of a separate transmission line; tardily
remediating soil contamination; and failing to resolve
a municipal zoning dispute in a timely manner. On the
other hand, various performance and workmanship
issues by Foley and its subcontractors also slowed the
project. For example, Manafort’s use of trench boxes
that were ill suited for the densely populated urban
conditions encountered during construction caused
delays to the project.
‘‘By far though, the biggest obstacles the parties
encountered on the project were unknown under-
ground utilities and other conditions [that] were not
shown on the project drawings. Foley and Manafort
started encountering these obstacles as early as Janu-
ary, 2007. They continued to encounter them through-
out virtually the entire project. The unknown conditions
encountered included everything from abandoned
water pipes ranging in size up to 60 inches in diameter
located in positions different than what was shown on
the project drawings; gas lines and other underground
utilities not shown on the drawings at all; unexpected
amounts of rock; a culvert that was missing one side
that everyone thought was there; and soil contaminated
by PCBs.4 Overall, while the number of expected under-
ground interferences shown in the project drawings
was 415, over the life of the project Foley and Manafort
encountered 1209.’’ (Footnote added.)
Almost immediately after construction began, Foley
encountered undisclosed obstacles and, pursuant to
§ 6.4 (a) of the contract, requested additional compen-
sation for the resulting costs by submitting to United
change order requests. ‘‘By the summer of 2007 though,
Foley and [United] were in dispute over what level
of detail needed to be provided in the [change order
requests]. Given the number of obstacles and issues it
was encountering, Foley thought that it was impractical
for it to identify the critical path impact associated with
each submittal it made. Consequently, it proposed [to
United] that the parties resolve the direct cost part of
the [change order requests] when presented and reserve
for later any resolution of critical path impact.’’
In particular, on July 23, 2007, Foley proposed alter-
ing the procedures set forth in § 6.4 (a), whereby Foley
would be permitted to include in its change order
requests only the direct costs associated with an obsta-
cle, while reserving to the parties ‘‘all rights, remedies
and defenses’’ concerning critical path delays. On
August 3, 2007, however, United declined that proposal,
and informed Foley that claims for additional compen-
sation must comply with article 6 of the contract. Upon
receipt of United’s refusal, Foley reiterated to Manafort
that change order requests must include ‘‘a cost and
resource loaded schedule showing impact to the critical
path,’’ that ‘‘[a]ll claims must have all of the information
shown in Article 6,’’ and that ‘‘the time limitations out-
lined in Article 6 are in effect.’’
On August 15, 2007, Manafort informed Foley that it
believed that United’s requirements were impractical,
and inquired whether, after submitting change order
requests, it should continue work or halt construction
until United issued a change order. On August 20, 2007,
Foley replied: ‘‘[United] is not waiving the time limits
for submitting a claim as contained in the [c]ontract,
Article 6. . . . Please also be reminded that requests
for adjustments to the critical path schedule affecting
your subcontract work must be received in time for
Foley to make any necessary adjustments to the overall
critical path schedule and submit its proposal to
[United] for such change in the work.’’ (Emphasis in
original.) That same day, Foley forwarded Manafort’s
inquiry to United, and submitted another proposal to
adjust the change order process. Foley suggested that
United issue change orders in two parts: the first part
would pertain to increased direct costs; the second part
would address adjustments for delays in the critical
path.
In a letter dated August 28, 2007 (August, 2007 letter),
United represented to Foley that it would modify the
change order process, but in a manner different from
what Foley had proposed. Under the adjusted proce-
dure, United first would negotiate the direct costs asso-
ciated with the obstacle, and then United and Foley
would negotiate ‘‘the number of days delay to the crew
. . . .’’ United clarified, however, that this modification
pertained only to crew delays, and not critical path
delays.5
Specifically, United explained: ‘‘When the negotia-
tions are complete, a change order will be drafted in
the agreed dollar amount (Direct Costs). The change
order will also list the agreed amount of crew-day delay;
not schedule delay. The idea is to keep the crew delays
with the appropriate change order event. The listing
of the crew-day delay will not signify that [United]
has waived any provision of the contract. A day of
delay to a particular crew shall not be understood as
being equal to a day of delay of the project schedule
[a critical path delay]. These change orders will not
affect either party’s rights or liabilities for delay and
impact costs, except that the change order will have
settled the issue of how many days delay was experi-
enced by the impacted crew only.’’ (Emphasis added.)
As construction progressed, Foley continued to
encounter unanticipated obstacles and, in turn, submit-
ted to United change order requests for direct costs
and crew delays. United continued to issue change
orders that provided additional compensation to Foley.6
In spite of that, however, ‘‘Foley never, during the
course of the project, submitted a critical path delay
analysis or claim with any [change order request]. While
it did regularly submit updates to critical path schedules
. . . those schedules did not assign responsibility for
any particular delay to any particular event or party.’’
On October 10, 2008, as work on the project was in
its final stages, Foley, for the first time, submitted to
United a claim for a delay of the project, a critical path
delay. This claim, however, did not include a critical
path delay analysis. In its submission, ‘‘Foley basically
claimed that the project took thirteen months longer
than expected, the entire delay was [United’s] fault,
and, as a result, Foley had additional overhead and
related costs of $6,174,122.45 for which [United] was
responsible. . . . While Foley attached documents in
support of its claimed increased costs, it did not submit
a critical path delay analysis with its claim.’’
United refused to compensate Foley for the delay
claim. Thereafter, Foley filed the present action seek-
ing, inter alia, compensation for ‘‘delays in the critical
path caused by unknown or misidentified site condi-
tions, and caused by the extra, additional, and impacted
work ordered, directed, or otherwise required on the
project.’’7
In 2011, Foley submitted to United two additional
versions of its delay claim, neither of which included
a critical path delay analysis. Again, ‘‘Foley had taken
a ‘global cost approach’ to the claim. . . . Essentially,
Foley was claiming that all delays on the project were
clearly [United’s] responsibility and it had to prove noth-
ing more than the amount of costs it incurred because
the project took longer to complete than planned.’’
In June, 2012, Foley, for the first time, presented
United with a time impact analysis pertaining to delays
in the critical path. This analysis was prepared by Riv-
erso Associates, Foley’s scheduling consultant during
the project. In connection with this report, ‘‘[o]n August
10, 2012, approximately one month before the start of
trial, Foley submitted a fourth version of its [delay]
claim to [United]. The amount of this claim was
$4,854,206.93.’’ During trial, however, Foley’s primary
witness on damages acknowledged errors in Foley’s
delay claim, and Foley reduced the amount that it was
claiming to $4,691,882.44.
On September 3, 2013, after a bench trial, the court,
Bright, J., issued a memorandum of decision. The court
concluded that Foley had ‘‘irrevocably waived and
released’’ its delay claim because it had failed to timely
submit its claim to United. The court further concluded
that, even if notice had been timely, Foley did not dem-
onstrate that the delays for which United allegedly was
responsible delayed the critical path of the project.
Accordingly, the court rendered judgment in favor of
United on the breach of contract count regarding the
delay claim.
The court, additionally, rejected Foley’s tort claims,
the breach of the implied covenant of good faith and
fair dealing claim, and its claim that United violated
the Connecticut Unfair Trade Practices Act (CUTPA),
General Statutes § 42-110a et seq. The court also denied
Foley’s claim to recoup 10 percent of the settlement
payments made by United to Foley’s subcontractors,
and rejected Foley’s claim for unanticipated legal costs.
The court found in Foley’s favor, however, on three
change order requests for additional direct costs that
Foley claimed United wrongfully had rejected, and
awarded Foley $1,051,143.30. The court, nonetheless,
rejected Foley’s claim for statutory interest on all
amounts unpaid by United.8 This appeal followed.
Additional facts and procedural history will be set
forth as necessary.
I
DELAY CLAIM
Foley first claims that the court improperly denied
its delay claim. Specifically, Foley contends that the
court incorrectly determined that: (A) the ten day rule
in the contract applied to critical path delay claims;
and (B) Foley did not timely submit its critical path
delay claim to United and, therefore, irrevocably waived
and released its delay claim.9 We are not persuaded.
Initially, we set forth our standard of review. Foley’s
delay claim sounds in breach of contract. ‘‘It is well
settled that in order to recover for breach of contract,
a plaintiff must prove that he or she sustained damages
as a direct and proximate result of the defendant’s
breach.’’ Warning Lights & Scaffold Service, Inc. v.
O & G Industries, Inc., 102 Conn. App. 267, 271, 925
A.2d 359 (2007). ‘‘[W]hether there was a breach of con-
tract is ordinarily a question of fact. . . . Our review,
therefore, is under the clearly erroneous standard.’’
(Internal quotation marks omitted.) Smithfield Associ-
ates, LLC v. Tolland Bank, 86 Conn. App. 14, 21, 860
A.2d 738 (2004), cert. denied, 273 Conn. 901, 867 A.2d
839 (2005).
A
Applicability of Ten Day Rule
First, Foley claims that the ten day rule did not apply
to the delay claim. We are not persuaded.
Foley’s claim requires us to construe the meaning of
the contract. In construing a contract, ‘‘[t]he contract
must be viewed in its entirety, with each provision read
in light of the other provisions . . . and every provision
must be given effect if it is possible to do so.’’ (Citation
omitted.) United Illuminating Co. v. Wisvest-Connecti-
cut, LLC, 259 Conn. 665, 671, 791 A.2d 546 (2002).
‘‘Although ordinarily the question of contract interpre-
tation, being a question of the parties’ intent, is a ques-
tion of fact . . . [when, like here] there is definitive
contract language, the determination of what the parties
intended by their . . . commitments is a question of
law [over which our review is plenary].’’ (Citation omit-
ted; internal quotation marks omitted.) Bristol v. Ocean
State Job Lot Stores of Connecticut, Inc., 284 Conn. 1,
7, 931 A.2d 837 (2007).
Here, reading the contract provisions as a whole and
in light of each other, as we must, the language of the
contract unambiguously demonstrates that critical path
delay claims are subject to the ten day rule. Indeed,
§ 6.4 (a) of the contract provided that United would
compensate Foley for ‘‘the actual, demonstrable delay
in the [c]ritical [p]ath.’’ In order to be entitled to that
compensation, however, the contract specifically pro-
vided that, after encountering unknown or misidentified
site conditions, Foley had ten business days within
which to submit a claim for compensation arising from
delays in the critical path, or that claim would ‘‘be
irrevocably waived and released . . . .’’ The ten day
notice requirement pertained to ‘‘[a]ny [c]laims by
[Foley] for increased compensation or extension of
completion deadlines . . . .’’ Critically, § 6.4 (b) pro-
vided that the ‘‘[d]iscovery of unknown or misidentified
site conditions shall not relieve [Foley] of any of its
obligations under this [a]greement.’’
Consequently, it is clear that the language of the con-
tract provided that the ten day notice rule applied to
any claims for which Foley sought additional compen-
sation as a result of the extension of completion dead-
lines. This obviously encompassed both unknown or
misidentified site conditions as well as anything else
that Foley believed caused a demonstrable delay in the
critical path and impacted the completion date of the
project.10 Thus, the court correctly determined that
Foley’s delay claim was subject to the ten day rule.
Given that we have determined that the court prop-
erly applied the ten day rule to the delay claim, it is
evident that Foley did not timely submit its claim for
compensation arising from delays in the critical path.
Indeed, the court determined that Foley failed to submit
a critical path delay claim that included an analysis
identifying the impact of individual delays on the proj-
ect’s final completion date until June, 2012, when it
submitted an analysis prepared by Riverso Associates.
This submission was more than three and one-half years
after construction had been completed. Thus, the court
properly concluded that Foley’s untimely ‘‘claim for
delay damages [was] irrevocably waived and released.’’
B
Waiver of Ten Day Rule
Next, Foley claims that, even if the ten day rule did
apply to the delay claim, it had submitted a valid delay
claim because United waived its right to receive notice
within ten days. Specifically, Foley argues that United
relinquished its right to notice under the ten day rule
because United’s August, 2007 letter was tantamount
to a waiver of that notice provision. We reject this claim
because the record demonstrates, consistent with the
court’s conclusion, that United ‘‘never waived the notice
requirements of article 6 as they relate to damages
resulting from delays to the critical path.’’
‘‘Waiver involves an intentional relinquishment of a
known right. . . . There cannot be a finding of waiver
unless the party has both knowledge of the existence
of the right and intention to relinquish it. . . . Waiver
may be inferred from the circumstances if it is reason-
able so to do. . . . Whether conduct constitutes a
waiver is a question of fact. . . . The issue of waiver
is a question of fact, dependent on all of the surrounding
circumstances and the testimony of the parties. (Cita-
tion omitted; internal quotation marks omitted.) Roy v.
Metropolitan Property & Casualty Ins. Co., 98 Conn.
App. 528, 532, 909 A.2d 980 (2006). Being a question of
fact, a finding of waiver or lack thereof is subject to the
clearly erroneous standard of review. See Smithfield
Associates, LLC v. Tolland Bank, supra, 86 Conn.
App. 21.
Foley’s claim that United waived the ten day rule
lacks merit. To support its claim that United waived
the ten day rule, Foley relies on the August, 2007 letter
written by United in response to a request by Foley
that the ten day rule not apply to critical path delay
claims. Foley claims that, in the letter, United agreed
that, henceforth, Foley would not be required to include
critical path delay claims in change order requests, but
that Foley’s rights would be reserved to submit critical
path delay claims after the ten day notice period had
elapsed. We disagree.
In its memorandum of decision, the court found the
following: ‘‘[The] language [in the August, 2007 letter]
in no way gave Foley the relief it was seeking from
article 6 of the contract. To the contrary, it confirmed
that [United] was, in fact, not waiving any provision of
the contract. It also made clear that resolution of direct
costs and crew delays had nothing to do with whether
there was a delay in the critical path. Finally, it con-
firmed that the procedure outlined would not affect
either party’s rights for delay and impact costs. Any
rights Foley had to such costs were predicated on it
meeting its obligations under the contract. Similarly,
[United] retained the rights it had regarding such delay
claims, including to a timely submittal.’’ The court’s
conclusions are supported by the record.
In the August, 2007 letter, United agreed to a proce-
dure for issuing change orders that would compensate
Foley for direct costs and crew delays. The letter clari-
fied, however, that crew delays were distinct from criti-
cal path delays, and that United did not forfeit any
contractual right, including the right to timely notice
of delay claims. Specifically, the letter provided: ‘‘The
listing of the crew-day delay will not signify that
[United] has waived any provision of the contract. A
day of delay to a particular crew shall not be understood
as being equal to a day of delay to the project sched-
ule.’’11 This language demonstrates that, although
United agreed to modify the process by which it issued
change orders arising from crew delays, that modifica-
tion would not affect the way United processed critical
path delay claims. Indeed, United specified in the letter
that crew delays were different from critical path
delays, and that its contractual rights were reserved
regarding critical path delays. Therefore, our review of
the August, 2007 letter reveals that its language sup-
ported the court’s conclusion that United did not waive
the ten day rule.12
The court’s determination that United did not waive
the ten day rule is buttressed further by the conduct
of United and Foley in the months following the August,
2007 letter. In response to a request by Foley for addi-
tional compensation, United submitted a letter to Foley,
dated November 27, 2007, reiterating its expectation
that critical path delay claims would be submitted with
change order requests. In that letter, United wrote: ‘‘We
acknowledge that Foley has made a number of requests
to have [United] recognize the impact to various crews
as a result of differing site conditions, but Foley has
never submitted a Change Proposal that includes an
impacted critical path as called for by the [contract].’’
(Emphasis added.)
Foley, likewise, demonstrated that it understood that
United did not waive the ten day rule. In a letter that
it submitted to Manafort, dated December 10, 2007,
Foley demanded that its subcontractor ‘‘immediately
produce an impacted schedule showing which delays
and impacts you now believe are the responsibility of
[United], Foley, or [Rizzo]’’ so that Foley could make
a claim on Manafort’s behalf.
Additionally, Foley insisted that, in providing that
information to Foley, Manafort ‘‘carefully review Article
11 of the [subcontract between Foley and Manafort]
entitled ‘Delays.’ ’’ Article 11 of the subcontract pro-
vided in relevant part that Foley would forward to
United ‘‘reasonable claims as may be prepared by
[Manafort] in accordance with the terms of the [con-
tract] with respect to the delays . . . .’’ Foley, thus,
demanded that Manafort provide a critical path delay
claim to comply with article 6 of Foley’s contract with
United. The language in the August, 2007 letter and the
subsequent conduct of the parties, thus, supports the
court’s conclusions that United did not waive the ten
day rule, and that Foley ‘‘irrevocably waived and
released’’ its untimely submitted delay claim.13
II
10 PERCENT MARKUP
Next, Foley claims that the court improperly con-
cluded that it was not entitled to a 10 percent markup
on settlement payments that United made to Foley’s
subcontractors pursuant to a markup provision of the
contract. Foley argues that the court’s determination
is at odds with the plain language of the contract.14
We disagree.
The following facts and procedural history are rele-
vant to this claim. The trial court found that ‘‘provisions
in the Manafort and Rizzo subcontracts allowed them
to be compensated for changed conditions by following
the procedures outlined in article 6 of the contract.’’
Thus, after encountering unexpected conditions that
allegedly delayed or increased the scope of their work,
pursuant to the subcontract, Manafort and Rizzo sub-
mitted change order requests to Foley. Foley forwarded
the requests to United. ‘‘Under [Foley’s contract with
United] Foley was entitled to charge a 10 percent
markup on change order requests submitted by Mana-
fort and Rizzo.’’ Specifically, the bid proposal that Foley
submitted to United (markup agreement) provided for
a 10 percent markup ‘‘[i]f [c]ost [p]lus work is encoun-
tered on this project that requires materials, equipment
and subcontractors not shown in [the bid proposal’s]
schedules . . . .’’ ‘‘Foley regularly, although not
always,’’ submitted to United requests for those
markups.
After the project was completed, Manafort and Rizzo,
respectively, filed legal actions against United and
Foley, in which they sought unreimbursed construction
expenses. Their claims were not limited, however, to
change order requests. They also alleged tort and
CUTPA claims. ‘‘Thereafter, [United] mediated the sub-
contractors’ claims directly with Manafort and Rizzo.
Foley was invited to attend the mediation, but chose
not to [attend]. [United] settled Manafort’s claim for
$9,675,000 and Rizzo’s claim for $200,000.’’
At trial, Foley claimed that it was entitled to a 10
percent markup on the settlement payments pursuant to
the markup agreement. The court determined, however,
that ‘‘the [c]ontract [was] silent’’ on whether the markup
encompassed the settlement payments. The court
observed that ‘‘[p]arties often settle for a variety of
reasons,’’ and stated that it would ‘‘not attempt to divine
the reasons behind [United’s] decisions to pay Manafort
and Rizzo what it did.’’ The court noted that it was
‘‘clear . . . that the settlement was not an admission
of liability.’’ It concluded that ‘‘Foley [was] not entitled
to a 10 percent markup.’’ We discern no error in this
ruling.
The markup agreement provided that Foley was enti-
tled to a markup of 10 percent for ‘‘[c]ost [p]lus work
. . . that require[d] . . . subcontractors not shown in
[the bid proposal’s] schedules . . . .’’ There is no dis-
pute that, pursuant to this provision, Foley was entitled
to a markup on change order requests submitted by
Manafort and Rizzo. This provision does not state that
settlement payments also are encompassed within the
markup agreement. ‘‘A term not expressly included will
not be read into a contract unless it arises by necessary
implication from the provisions of the instrument.’’ Tex-
aco, Inc. v. Rogow, 150 Conn. 401, 408, 190 A.2d 48(1963). Indeed, the agreement included no language
indicating that Foley was entitled to a markup on settle-
ment payments. There is also nothing in the provisions
of the contract that necessarily imply that Foley is enti-
tled to a markup on settlement payments. We will not
read such language into the contract.15 Consequently,
the record supports the court’s determination that Foley
was not entitled to a 10 percent markup on settlement
payments that United made to Foley’s subcontractors.
III
INTEREST PAYMENTS
Foley claims that the court’s decisions to deny its
claims for interest were improper. Specifically, Foley
maintains that the court should have determined (1)
that it was entitled to prejudgment interest (prejudg-
ment interest claim), and (2) that it was entitled to
interest on United’s late payment of contract retainage
(retainage interest claim). We disagree. Each claim will
be addressed in turn.
A
Prejudgment Interest Claim
First, Foley contends that the court improperly
rejected its claim for prejudgment interest pursuant to
General Statutes § 37-3a.16 We are not persuaded.
The following additional facts are relevant to our
consideration of this claim. At trial, Foley sought ‘‘pre-
judgment interest pursuant to . . . § 37-3a on all
amounts unpaid by [United].’’ The court denied that
request. The court determined that, pursuant to articles
8 and 17 of the contract, United ‘‘had the right to dispute
each of the issues on which it withheld payment.’’ The
court additionally observed that ‘‘on most issues, the
court has agreed with [United],’’ and that, even on the
issues in which it found in Foley’s favor, ‘‘there was a
good faith basis for [United’s] position.’’ Finally, the
court determined that, ‘‘apparently to gain some per-
ceived advantage in this litigation,’’ Foley had refused
United’s offer of full payment to resolve a dispute on
a particular change order to which United conceded
Foley was entitled. The court, thus, stated that it would
not award Foley prejudgment interest because it was
‘‘difficult for the court to award a party interest when
it engages in such gamesmanship.’’
Foley argues that ‘‘the court mischaracterized Foley’s
actions and failed to give proper weight to the evidence
demonstrating [United’s] wrongful conduct.’’ We
disagree.
‘‘[T]he decision of whether to grant interest under
§ 37-3a is primarily an equitable determination and a
matter lying within the discretion of the trial court. . . .
In determining whether the trial court has abused its
discretion, we must make every reasonable presump-
tion in favor of the correctness of its action. . . . [T]he
court’s determination regarding the award of interest
should be made in view of the demands of justice rather
than through the application of any arbitrary rule. . . .
Whether interest may be awarded depends on whether
the money involved is payable . . . and [considera-
tions such as] whether the detention of the money is
or is not wrongful under the circumstances.’’ (Citation
omitted; internal quotation marks omitted.) MedValUSA
Health Programs, Inc. v. MemberWorks, Inc., 273 Conn.
634, 666, 872 A.2d 423, cert. denied sub nom. Vertrue,
Inc. v. MedValUSA Health Programs, Inc., 546 U.S. 960,
126 S. Ct. 479, 163 L. Ed. 2d 263 (2005); see also DiLieto
v. County Obstetrics & Gynecology Group, P.C., 310
Conn. 38, 53–54 n.13, 74 A.3d 1212 (2013).
In the present case, the court’s conclusion that United
had a contractual and good faith basis to oppose Foley’s
claims and withhold payment was supported by the
record. Articles 8 and 17 of the contract provided United
the right to dispute claims for compensation made by
Foley. Moreover, Foley does not dispute that United
fulfilled hundreds of its requests for compensation for
direct costs during the course of the project. As the
court found, during construction ‘‘Foley submitted 492
[change order requests], which resulted in 294 change
orders being issued.’’17 Indeed, the court observed that
‘‘of the [change order requests] submitted, only twelve
that seek additional direct costs were at issue by the
time this case went to trial.’’18
At trial, United prevailed on the majority of the dis-
putes upon which Foley alleged that United wrongfully
withheld money. Although Foley now asserts that
United, and not itself, actually was the party that par-
took in ‘‘gamesmanship’’ during the project and the
subsequent litigation, such a factual determination is
beyond the province of this court. See Cadle Co. v.
D’Addario, 268 Conn. 441, 462, 844 A.2d 836 (2004)
(‘‘[i]t is within the province of the trial court, as the
fact finder, to weigh the evidence presented and deter-
mine the credibility and effect to be given the evidence’’
[internal quotation marks omitted]).
The court relied on appropriate equitable considera-
tions that were within its discretion. The court’s deci-
sion not to award prejudgment interest to Foley
pursuant to § 37-3a, therefore, was not an abuse of dis-
cretion.
B
Retainage Interest Claim
Next, Foley claims that it is entitled to interest on
the late payment of the contract retainage19 pursuant to
General Statutes § 42-158j.20 Foley argues that it sought
interest under that statute for the defendant’s failure
to pay timely the retainage, but that the court ‘‘failed
to address this specific statute or render a decision on
the merits.’’ According to Foley, the court should have
awarded it ‘‘statutory interest on the balance of
retainage improperly withheld by [United] following
substantial completion of the project.’’ We are not per-
suaded.
The following facts and procedural history are rele-
vant to this claim. On November 19, 2008, Foley notified
United that the project was substantially complete.
‘‘While [United] initially agreed that substantial comple-
tion had occurred . . . [United] rescinded that confir-
mation and later took the position that substantial
completion occurred on March 19, 2009. Despite this
acknowledgment, [United] did not release any of the
approximately $4,000,000 in retainage it was holding
on the project until May 15, 2009, when it released
$2,000,000. . . . The balance of the retainage was not
paid until February 24, 2010.’’ (Citations omitted.)
In its complaint, Foley alleged that United had vio-
lated CUTPA by directing Foley to undertake additional
work while knowing that it did not have sufficient funds
to pay Foley, and by failing to make timely payments
of the amounts due, including interest, despite repeated
requests under § 42-158j. The court rejected Foley’s
CUTPA claim. The court specifically found that there
‘‘was nothing deceptive or unfair in [United’s] conduct
during the project. The parties had a number of good
faith disputes. On some, they reached agreement. On
others, they did not. The evidence proved nothing
more.’’21 The court, however, did not refer to § 42-158j
in its decision.
Foley first argues that the court failed to rule on its
retainage interest claim. We disagree.
Our reading of the court’s memorandum of decision
indicates that, although it did not expressly identify the
statute, the court’s implicit denial of Foley’s claim for
interest under § 42-158j is clear. Foley presented this
claim in its complaint, and in its posttrial brief, as one
of the predicates for its CUTPA claim. The court
rejected the CUTPA claim in its entirety. Additionally,
the court made findings supporting a determination that
the retainage in question was not an ‘‘amount due and
158j (c) (4). For example, in rejecting the prejudgment
interest claim, the court found that, under the contract,
the defendant ‘‘had the right to dispute each of the
issues on which it withheld payment,’’ and that it had
acted in good faith.
Foley additionally contends that the court should
have awarded it interest pursuant to § 42-158j. We are
not convinced.
Under § 42-158j (c) (4), a court may award contrac-
tors statutory interest for ‘‘amount[s] due and owing.’’
In the present case, however, the court concluded that
‘‘[u]nder [a]rticles 8 and 17 of the contract, [United]
had the right to dispute each of the issues on which it
withheld payment.’’ Additionally, the court determined
that, even on the issues in the litigation in which it
found in favor of Foley, ‘‘there was a good faith basis
for [United’s] position.’’ United’s contractual right to
dispute Foley’s claims, as well as its good faith basis
for doing so, supported the court’s conclusion that
United had not withheld an ‘‘amount due and owing’’
from Foley. Therefore, the court’s decision not to award
Foley prejudgment interest under § 42-158j was not an
abuse of its discretion.
IV
ADDITIONAL CLAIMS
Foley claims that the court improperly rejected addi-
tional claims that it had pursued against United. Specifi-
cally, Foley contends that the court should have
concluded that it established causes of action against
United sounding in (1) negligence and (2) violations of
CUTPA. We disagree. Each claim will be addressed
in turn.
A
Negligence
Foley contends that the court improperly rejected its
negligence claim. The following facts are relevant to
our resolution of this claim. Foley alleged in its com-
plaint that United was negligent because it breached
its duty of care to Foley by, inter alia, ‘‘provid[ing]
defective, inadequate and incomplete plans’’ for the
project, and ‘‘fail[ing] to determine and to make known
to Foley the true nature of soil and subsurface condi-
tions existing at the project site . . . .’’ The court
rejected those claims.
The court determined that: ‘‘The parties rights and
obligations are spelled out in the contract. There was
no evidence presented by Foley, either fact or expert
[testimony], that [United] owed some duty to Foley that
did not arise out of the contract.’’ The court further
explained: ‘‘Foley offered no evidence defining the stan-
dard of care that applied to a party like [United] on a
project such as this. Nor did it offer any evidence of how
[United] breached this undefined standard of care.’’ The
court also stated that Foley’s negligence claim was
undermined because, based on the industry standard,
it was the contractor, Foley, and not the owner, United,
that was the party responsible for conducting explor-
atory trenching, performing ‘‘pot holing,’’ and identi-
fying obstructions. The court concluded: ‘‘[T]he
contract provided a remedy for Foley in the event it ran
into unidentified obstructions or environmental issues.
Given the existence of that remedy, the court fails to
see how not identifying every condition Foley might
encounter breached some unidentified standard of
care.’’22
On appeal, Foley claims that the court should have
concluded that United was negligent because (1) United
failed to identify all underground utilities, and (2)
United failed to perform soil testing and communicate
the results to Foley. We disagree.
‘‘The essential elements of a cause of action in negli-
gence are well established: duty; breach of that duty;
causation; and actual injury. . . . Contained within the
first element, duty, there are two distinct considera-
tions. . . . First, it is necessary to determine the exis-
tence of a duty, and then, if one is found, it is necessary
to evaluate the scope of that duty.’’ (Internal quotation
marks omitted.) Considine v. Waterbury, 279 Conn.
830, 858–59, 905 A.2d 70 (2006).
‘‘The issue of whether a duty exists is a question of
law . . . which is subject to plenary review. We some-
times refer to the scope of that duty as the requisite
standard of care.’’ (Citations omitted.) LePage v. Horne,
262 Conn. 116, 123, 809 A.2d 505 (2002). ‘‘[O]nly if such
a duty is found to exist does the trier of fact then
determine whether the defendant violated that duty in
the particular situation at hand. . . . Put another way,
the question of what a reasonable person would have
done under the circumstances is a question to be deter-
mined by the trier of fact, except where the individual’s
conduct clearly has or has not conformed to what the
community requires, and that no reasonable [trier of
fact] could reach a contrary conclusion.’’ (Internal quo-
tation marks omitted.) Considine v. Waterbury, supra,
279 Conn. 859.
1
Undisclosed Utilities
Foley argues that the court improperly rejected its
negligence claim because it demonstrated that United
breached its duty to disclose all underground utilities.
To support its contention, Foley relies on a contract
entered into between Black & Veatch and United, pursu-
ant to which Black & Veatch was responsible for ‘‘locat-
ing all [underground] utilities in the proposed route.’’
Based on that contract’s language, Foley claims that
‘‘[United] had a duty to fulfill its contractual obligations
with the degree of care which a public utility provider
of ordinary prudence would have exercised under the
same or similar conditions,’’ and that it breached that
duty by failing to disclose to Foley all underground
utilities. We are not persuaded.
At the outset, we note that it is unclear exactly how
a contractual duty that Black & Veatch owed to United
was transformed into a duty that United owed to Foley.
Nevertheless, we need not decide whether Foley dem-
onstrated the existence of a duty by United to disclose
all underground utilities to Foley because, even assum-
ing that such a duty a existed, Foley failed to demon-
strate that United breached a standard of care required
of it.
First, to prove its negligence claim, Foley was
required to present expert testimony as to United’s stan-
dard of care to establish that United breached an alleged
duty to disclose to Foley all underground utilities. See
Santopietro v. New Haven, 239 Conn. 207, 226, 682 A.2d
106 (1996) (‘‘[i]f the determination of the standard of
care requires knowledge that is beyond the experience
of an ordinary fact finder, expert testimony will be
required’’). Foley does not dispute the court’s assess-
ment, however, that ‘‘Foley offered no evidence defining
the standard of care that applied to a party like [United]
on a project such as this.’’ Moreover, the court found
that ‘‘the only credible evidence’’ regarding the industry
standard was from Luis Cabreriza. Cabreriza testified
that the industry practice actually was for the contrac-
tor, not the owner, to have the ‘‘responsibility of per-
forming pot holing to identify utilities . . . .’’ This
credibility finding is unassailable on appeal. See Ruiz
v. Gatling, 73 Conn. App. 574, 576, 808 A.2d 710 (2002)
(‘‘[w]here the trial court is the arbiter of credibility, this
court does not disturb findings made on the basis of
the credibility of witnesses’’).
Second, the record supports the court’s conclusion
that United did not breach an unidentified standard of
care by ‘‘not identifying every condition Foley might
encounter . . . .’’ The court heard testimony that it
was impossible to identify every underground obstacle
in an urban environment, some of which had been aban-
doned for more than a century, before digging began.
Foley does not dispute the court’s finding that, before
construction commenced, United ‘‘told Foley that [it]
would encounter more obstacles than were shown on
the drawings.’’ The court’s conclusion that United did
not breach a duty owed to Foley is buttressed by the
language of the contract specifications, which disclosed
that Foley ‘‘shall conduct [its] operations on the basis
that underground installations may exist that are not
indicated on the drawings,’’ and that ‘‘the accuracy and
completeness of [the drawings] is unknown and is pre-
sented solely to assist [Foley] in an approximate deter-
mination of underground installations.’’
Indeed, the contract provided a mechanism by which
Foley could request compensation after encountering
unexpected underground obstacles. Thus, the change
order request process outlined in the contract sup-
ported the court’s conclusion that the parties contem-
plated encountering unexpected underground utilities
during construction. Consequently, the court’s conclu-
sion that United did not breach a duty owed to Foley
because it did not disclose every underground utility
was legally correct and supported by the record.
2
Soil Testing
Foley additionally claims that the court improperly
rejected its negligence claim because it had demon-
strated that United ‘‘had a duty to perform soil testing
and communicate the results to Foley,’’ and that Unit-
ed’s ‘‘failure to identify and reveal the true nature of
the soil conditions’’ damaged Foley. We disagree.
Similar to Foley’s negligence claim pertaining to
underground utilities, the court found that there was
no testimony or evidence presented regarding the stan-
dard of care required of a public utility company when
testing soil and communicating the results to its con-
tractor. Although Foley asserts that United ‘‘had a duty
to fulfill its contractual obligations with the degree of
care [of] a public utility provider of ordinary prudence,’’
there was no evidence in the record from which the
court could have ascertained the appropriate standard
of care. The determination of the standard of care
expected of United when testing soil and communicat-
ing the results to Foley ‘‘require[d] knowledge that [was]
beyond the experience of an ordinary fact finder’’ and,
thus, required expert testimony. Santopietro v. New
Haven, supra, 239 Conn. 226. Therefore, the court’s
rejection of Foley’s negligence claim was supported by
the record.
B
CUTPA
Foley claims that the court improperly rejected its
claim that United’s conduct during the project violated
CUTPA. Foley argues that it ‘‘proved numerous
instances of unfair and deceptive acts or practices com-
mitted by [United],’’ which included United’s failure:
(1) to disclose the true extent of underground obstacles;
(2) to disclose the extent of environmental hazards; (3)
to process and pay change order requests in a timely
manner; and (4) to ‘‘make timely payments to Foley for
undisputed amounts that were due and owing.’’ We are
not persuaded.
‘‘CUTPA provides in relevant part that [n]o person
shall engage in unfair methods of competition and
unfair or deceptive acts or practices in the conduct of
any trade or commerce. General Statutes § 42-110b (a).
It is well settled that in determining whether a practice
violates CUTPA we have adopted the criteria set out
in the cigarette rule by the federal trade commission
for determining when a practice is unfair: (1) [W]hether
the practice, without necessarily having been pre-
viously considered unlawful, offends public policy as
it has been established by statutes, the common law,
or otherwise — in other words, it is within at least the
penumbra of some common law, statutory, or other
established concept of unfairness; (2) whether it is
immoral, unethical, oppressive, or unscrupulous; (3)
whether it causes substantial injury to consumers,
[competitors or other businesspersons]. . . . All three
criteria do not need to be satisfied to support a finding
of unfairness. A practice may be unfair because of the
degree to which it meets one of the criteria or because
to a lesser extent it meets all three. . . .
‘‘It is well settled that whether a defendant’s acts
constitute . . . deceptive or unfair trade practices
under CUTPA, is a question of fact for the trier, to
which, on appellate review, we accord our customary
deference. . . . [W]here the factual basis of the court’s
decision is challenged we must determine whether the
facts set out in the memorandum of decision are sup-
ported by the evidence or whether, in light of the evi-
dence and the pleadings in the whole record, those
facts are clearly erroneous.’’ (Internal quotation marks
omitted.) Centimark Corp. v. Village Manor Associates
Ltd. Partnership, 113 Conn. App. 509, 523, 967 A.2d
550, cert. denied, 292 Conn. 907, 973 A.2d 103 (2009).
On the basis of our review of the record, we conclude
that the evidence supports the court’s conclusions, and
therefore, Foley’s CUTPA claim has no merit. In
rejecting Foley’s prejudgment interest claim, we con-
cluded that the evidence supported the court’s determi-
nations that United ‘‘had the right to dispute each of
the issues on which it withheld payment,’’ and that,
even ‘‘[o]n the issues where the court has agreed with
Foley . . . there was a good faith basis for [United’s]
position.’’ Additionally, in rejecting Foley’s negligence
claim, we found support in the record for the court’s
determination that ‘‘not identifying every condition
Foley might encounter’’ did not breach any duty that
United may have owed to Foley. The same evidence
upon which those findings were predicated also pro-
vided the basis for the court’s determination that the
defendant did not engage in any conduct prohibited
by CUTPA.
Finally, the court heard testimony from United’s proj-
ect manager, Charles Maresca, that, when United solic-
ited bids from potential contractors, it disclosed
potential obstacles in a way intended to ‘‘ensure that
the maximum amount of information that we could
possibly give to all the bidders was going to be por-
trayed, be total[ly] represented on the plans . . . .’’ The
record, thus, supports the court’s conclusion that Foley
did not demonstrate that United engaged in unfair or
deceptive acts or practices. We therefore reject Foley’s
CUTPA claim.
V
REQUEST FOR LEAVE TO AMEND COMPLAINT
Finally, Foley claims that the court improperly denied
its request for leave to amend its complaint. We
disagree.
The following facts and procedural history are rele-
vant to the resolution of this claim. On June 1, 2012,
Foley filed a request for leave to file a fifth amended
complaint, in which Foley attempted to add counts
sounding in negligent misrepresentation and common-
law fraud. In a memorandum supporting its request,
Foley asserted that the ‘‘two additional counts of negli-
gent misrepresentation and common-law fraud by non-
disclosure are variations of the tort counts previously
pleaded.’’ United objected to Foley’s request on the
grounds that the added claims were untimely, did not
relate back to the operative complaint, and granting
the request would delay the trial.
On July 25, 2012, the court denied Foley’s request for
leave to file an amended complaint. In an oral ruling, the
court reasoned that the proposed fraud and negligent
misrepresentation counts related exclusively to Unit-
ed’s alleged conduct before the parties entered into the
contract, but the allegations in the operative complaint
pertained to United’s alleged conduct after the parties
had entered into the contract. The court, thus, con-
cluded that the new counts in the proposed complaint
did not relate back to the fourth amended complaint
and, as a result, denied Foley’s request for leave to
amend.
On appeal, Foley asserts that the court improperly
denied its request for leave to amend its complaint
because ‘‘[t]he requested amendments did not present
an ‘entirely new and different factual situation,’ but
expanded the existing pleading.’’ We are not persuaded.
Our standard of review of the plaintiff’s claim is well
defined. ‘‘While our courts have been liberal in permit-
ting amendments . . . this liberality has limitations.
Amendments should be made seasonably. 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 motion to amend is addressed
to the trial court’s discretion which may be exercised
to restrain the amendment of pleadings so far as neces-
sary to prevent unreasonable delay of the trial. . . .
Whether to allow an amendment is a matter left to the
sound discretion of the trial court. This court will not
disturb a trial court’s ruling on a proposed amendment
unless there has been a clear abuse of that discretion.
. . . It is the [plaintiff’s] burden in this case to demon-
strate that the trial court clearly abused its discretion.’’
(Citations omitted; internal quotation marks omitted.)
Wagner v. Clark Equipment Co., 259 Conn. 114, 128,
788 A.2d 83 (2002).
‘‘Our relation back doctrine provides that an amend-
ment relates back when the original complaint has given
the party fair notice that a claim is being asserted stem-
ming from a particular transaction or occurrence,
thereby serving the objectives of our statute of limita-
tions, namely, to protect parties from having to defend
against stale claims. . . . To relate back to an earlier
complaint, the amendment must arise from a single
group of facts. . . . In determining whether an amend-
ment relates back to an earlier pleading, we construe
pleadings broadly and realistically, rather than narrowly
and technically. . . . [T]he complaint must be read in
its entirety in such a way as to give effect to the pleading
with reference to the general theory upon which it pro-
ceeded, and do substantial justice between the parties.
. . . Our reading of pleadings in a manner that
advances substantial justice means that a pleading must
be construed reasonably, to contain all that it fairly
means, but carries with it the related proposition that
it must not be contorted in such a way so as to strain
the bounds of rational comprehension. . . . Finally, in
the cases in which [our Supreme Court has] determined
that an amendment does not relate back to an earlier
pleading, the amendment presented different issues or
depended on different factual circumstances rather
than merely amplifying or expanding upon previous
allegations.’’ (Citations omitted; internal quotation
marks omitted.) Grenier v. Commissioner of Transpor-
tation, 306 Conn. 523, 559–60, 51 A.3d 367 (2012).
Both parties agree that the proposed counts were
barred by the applicable statute of limitations unless
the relation back doctrine applied. Our review of the
fourth amended complaint reveals that its allegations
exclusively pertained to the parties’ conduct after the
parties entered into the contract.23 Specifically, the
fourth amended complaint included nine counts. In five
of the counts, Foley alleged either breach of contract
claims, or sought damages related to that breach. In
three of the other counts of the fourth amended com-
plaint, Foley pleaded that United breached the implied
covenant of good faith and fair dealing contained in the
contract, interfered with Foley’s contractual relation-
ships with its subcontractors, and violated CUTPA
through its conduct after the parties already had entered
into the contract. In the sole remaining count of the
fourth amended complaint, Foley pleaded that United
was negligent because it breached its duty to Foley
by not properly performing ‘‘its obligations and duties
under the . . . contract.’’ (Emphasis added.)
The fifth amended complaint, however, included alle-
gations of fraud and negligent misrepresentation that
related solely to United’s alleged misconduct before the
parties entered into the contract. Specifically, in both
proposed counts, Foley alleged that ‘‘[p]rior to the exe-
cution of the contract, [United] became aware that
Foley would encounter many more utilities and obsta-
cles that were not shown on the revised plans and
specifications.’’ (Emphasis added.) In the negligent mis-
representation count, Foley pleaded that United ‘‘let
Foley enter into the contract’’ despite having this knowl-
edge. In the common-law fraud count, Foley alleged
that United ‘‘expected that if it informed Foley of the
inaccuracies in the revised plans and specifications that
Foley would bid the project differently.’’ (Emphasis
added.) Foley also alleged that, nevertheless, United
‘‘made the business decision not to disclose this infor-
mation to Foley.’’
In the present case, the allegations in the proposed
counts pertained exclusively to United’s alleged mis-
conduct prior to entering into the contract and, as a
result, presented a different factual situation than the
allegations of the fourth amended complaint, which
pertained solely to postcontract conduct. The proposed
complaint, thus, ‘‘present[ed] a new and different fac-
tual situation that would require the presentation of
different evidence.’’ Sherman v. Ronco, 294 Conn. 548,
556, 985 A.2d 1042 (2010). Our Supreme Court has deter-
mined that, in circumstances such as these, the court
acts within its discretion by denying a request for leave
to amend the complaint. See, e.g., Alswanger v. Smego,
257 Conn. 58, 61, 776 A.2d 444 (2001) (allegation of lack
of informed consent regarding resident’s participation
in surgery did not relate back to allegation that defen-
dants had failed to disclose all material risks in connec-
tion with plaintiff’s surgery, care and treatment).
Consequently, the court’s decision to deny Foley’s
request for leave to amend the complaint was not an
abuse of discretion and is supported by the record.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Thus, in simpler terms, a delay in the critical path is a postponement to
construction that affects the final completion date of the project.
2
Black & Veatch coordinated the project on behalf of United and acted
as United’s agent during all relevant negotiations with Foley. Therefore,
unless otherwise noted, Black & Veatch and United are referred to inter-
changeably throughout this opinion.
3
The contract defines ‘‘substantial completion’’ in relevant part as ‘‘the
date on which [Foley] has successfully completed the [w]ork . . . .’’
4
Polychlorinated biphenyls are commonly referred to as ‘‘PCBs.’’ See
Northeast Ct. Economic Alliance, Inc. v. ATC Partnership, 272 Conn. 14,
20, 861 A.2d 473 (2004). The court heard testimony that PCBs were a form
of soil contamination.
5
The record reveals that two distinct types of delays occurred during the
project: crew delays and critical path delays. Crew delays quantified ‘‘how
many days delay was experienced by the impacted crew . . . .’’ Critical
path delays, on the other hand, measured delays to activities that determined
the end date of a project. Crucially, crew delays did not equate to critical
path delays.
6
During the course of the project, Foley submitted 492 change order
requests, which resulted in United issuing 294 change orders.
7
The nine count operative fourth amended complaint included five counts
sounding in breach of contract, a claim United breached the implied covenant
of good faith and fair dealing, two tort claims, which sounded in negligence
and tortious interference, and a claim that United’s conduct violated the
Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq.
8
The court ruled against United on a counterclaim in which United sought
indemnification for settlement payments made to Foley’s subcontractors.
United has not appealed from any aspect of the court’s ruling.
9
Foley also claims that the court improperly determined that, even if
timely, Foley had failed to prove its delay claim. This was a separate and
independent ground upon which the court denied Foley’s delay claim.
Because we conclude that the court correctly ruled that Foley irrevocably
waived and released its delay claim, we need not reach the court’s separate
ground for denying Foley’s delay claim on its merits. See Weiss v. Smulders,
313 Conn. 227, 265, 96 A.3d 1175 (2014).
10
Foley claims that certain delays were ‘‘undisputed’’ and solely attribut-
able to United, and therefore were sufficient proof of critical path delays
without any need to provide notice pursuant to the ten day rule. We disagree.
In fact, we see no reason why those delays somehow would be exempt
from the ten day rule as well as the requirement of providing an analysis
as to how those delays affected the completion deadline. Indeed, the contract
authorized Foley to submit a claim for additional compensation for ‘‘[a]ny
[c]laims’’ that caused an extension of the completion deadlines.
11
The court also heard from two witnesses that further clarified the crew
delay/critical path delay distinction. Stephen Pitaniello, United’s expert wit-
ness, explained: ‘‘[A] day of delay on the critical path affects the end date
of the project by a day. There are other delays that don’t impact the critical
path. So something may start late, something may end late, but if it’s not
on the critical path, it doesn’t affect the end date of the project.’’ Jeremy
Robards of Black & Veatch testified that, when delays occurred to one area
of construction, a contractor might have the ability to divert its crew to
another area, or work around the delayed area, and, thus, would be able
to avoid delaying the end date of the project.
12
Similarly, Foley claims that the language that United included in its
change orders following the issuance of the August, 2007 letter renders
erroneous the court’s determination that United did not waive the ten day
rule. We are not persuaded.
Following the release of the August 2007 letter, United included the follow-
ing language in its change orders: ‘‘It is agreed that [a specified number of]
crew days are attributable to this change and that the significance of this
designation of time and the delay and impact costs associated with same
shall be in accordance with [United’s] letter dated August 28, 2007 . . .
which shall be part of this agreed change.’’
This language, like that of the August, 2007 letter, merely distinguished
crew delays from critical path delays. This language did not signify that
United had waived the ten day rule in relation to critical path delay claims.
13
Foley claims, for the first time on appeal, that the court improperly
failed to find that it ‘‘substantially complied’’ with the notice provision of
the contract. Because this claim was not raised before the trial court, we
decline to address the claim on appeal. See DuBaldo Electric, LLC v. Mon-
tagno Construction, Inc., 119 Conn. App. 423, 443, 988 A.2d 351 (2010) (‘‘[t]o
review claims articulated for the first time on appeal and not raised before
the trial court would be nothing more than a trial by ambuscade of the trial
judge’’ [internal quotation marks omitted]).
14
Foley additionally claims, for the first time on appeal, that the court’s
interpretation of the markup provision ‘‘has the absurd consequence of
promoting litigation as a way to avoid payment of valid contractual markup
provisions.’’ Foley did not make this claim in the trial court and, instead,
relied solely on its argument regarding the contract’s plain language. Accord-
ingly, we decline to consider this claim on appeal. See Practice Book § 60-
5 (‘‘[t]he court shall not be bound to consider a claim unless it was distinctly
raised at the trial or arose subsequent to the trial’’); Alexandre v. Commis-
sioner of Revenue Services, 300 Conn. 566, 585–86, 22 A.3d 518 (2011).
15
As the court accurately noted, ‘‘[p]arties often settle for a variety of
reasons.’’ ‘‘The numerous factors that affect a litigant’s decision whether to
compromise a case or litigate it to the end include the value of the particular
proposed compromise, the perceived likelihood of obtaining a still better
settlement, the prospects of coming out better, or worse, after a full trial,
and the resources that would need to be expended in the attempt.’’ (Internal
quotation marks omitted.) United States Securities & Exchange Commis-
sion v. Citigroup Global Markets, Inc., 752 F.3d 285, 295 (2d Cir. 2014).
16
General Statutes § 37-3a (a) provides in relevant part: ‘‘[I]nterest at the
rate of ten per cent a year, and no more, may be recovered and allowed in
civil actions or arbitration proceedings under chapter 909, including actions
to recover money loaned at a greater rate, as damages for the detention of
money after it becomes payable. . . .’’
17
The record reflects that these change orders resulted in more than
$25,000,000 in additional compensation for Foley.
18
The court only addressed eleven change order requests in its memoran-
dum of decision because the parties resolved one change order request
during trial.
19
General Statutes § 42-158i (3), contained within chapter 742b governing
construction contracts, defines retainage in relevant part as ‘‘a sum withheld
from progress payments to the contractor or subcontractor, otherwise pay-
able to a contractor or subcontractor by an owner conditioned on substantial
or final completion of all work . . . but does not include any sum withheld
due to the contractor’s or subcontractor’s failure to comply with construc-
tion plans or specifications.’’
20
General Statutes § 42-158j governs the required contract provisions
regarding the timely payment of contractors and the remedy for untimely
payments. Subsection (c) (4) of § 42-158j entitles a contractor to receive
interest at the rate of 1 percent per month after the other party to the
contract has received notice of an outstanding ‘‘amount due and owing.’’
See also General Statutes § 42-158j (a).
21
Foley additionally challenges the court’s rejection of its CUTPA claim.
We address that claim in part IV B of this opinion.
22
Foley asserts that the court improperly ‘‘denied Foley’s negligence
claims based on its conclusions that there was no evidence ‘that [United]
owed some duty to Foley that did not arise out of the contract.’ ’’ Our review
of the court’s decision, however, reveals that the court based its conclusion
not only on the lack of evidence of a duty United owed to Foley, but also
on Foley’s failure to present evidence as to the standard of care and Foley’s
failure to demonstrate that United breached that undefined standard.
23
For the purposes of the relation back doctrine, a subsequent amended
complaint may be compared to an earlier amended complaint so long as
the earlier amended complaint has been filed within the applicable statute
of limitations. See Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745,
775, 905 A.2d 623 (2006).