Suntech of Conn., Inc. v. Lawrence Brunoli, Inc. , 173 Conn. App. 321 ( 2017 )

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SUNTECH OF CONNECTICUT, INC. v. LAWRENCE
BRUNOLI, INC., ET AL.
(AC 38301)
Lavine, Beach and Bishop, Js.
Argued December 15, 2016—officially released May 23, 2017
(Appeal from Superior Court, judicial district of
Hartford, Wahla, J.)
Lawrence G. Rosenthal, with whom was Denise Pur-
pura, for the appellant (plaintiff).
Margaret Fogerty Rattigan, for the appellee
(named defendant).
Bradford R. Carver, for the appellee (defendant
Safeco Insurance Company of America).
Opinion
LAVINE, J. This breach of contract action arises out
of the construction of a technology center at Naugatuck
Valley Community College (project),1 which is owned
by the state of Connecticut (state). In essence, the com-
plaint alleged that the defendant general contractor
breached the subcontract by preventing the plaintiff
subcontractor from timely performing pursuant to the
terms of the subcontract and by wrongly withholding
funds from it. We affirm the judgment of the trial court.
The plaintiff subcontractor, Suntech of Connecticut,
Inc., appeals from the judgment of the trial court, ren-
dered after a trial to the court, in favor of the defendant
general contractor, Lawrence Brunoli, Inc. (contractor),
and the defendant bonding company, Safeco Insurance
Company of America (insurer).2 On appeal, the plaintiff
claims that the court (1) abused its discretion with
respect to its evidentiary rulings and (2) failed, as a
matter of law, to adopt the reasoning of a Massachusetts
trial court when adjudicating the plaintiff’s claims that
the contractor was responsible for the failure of the
project to be completed on time. Although the plaintiff’s
evidentiary claims raise troubling issues, the plaintiff
cannot prevail as it has failed to demonstrate that the
court’s alleged abuse of discretion was harmful.
In summary, the contractor entered into a construc-
tion contract (contract) with the state to build the new
technology center. The plaintiff, a Connecticut corpora-
tion that fabricates and installs glass and curtain walls,
entered into a subcontract with the contractor to pro-
vide services and materials for the project. The contract
required that the project be completed within 640 days
from the date the project commenced (completion
date), but the project was not completed within that
time. The plaintiff claims that the contractor was
responsible for the late completion and that it failed to
pay the plaintiff moneys it was owed under the sub-
contract.
On July 9, 2010,3 the plaintiff commenced the present
action against the contractor and insurer, claiming that
it suffered money damages as the result of the delayed
completion, that it performed work outside the subcon-
tract for which it was not paid, and that it was not paid
retainage4 at the completion of the project, among other
things. The plaintiff alleged four counts against the con-
tractor for breach of contract, unjust enrichment, delay,
and violation of General Statutes § 49-41a;5 and one
count against the insurer pursuant to General Statutes
§ 49-42.6 The contractor denied the substantive allega-
tions of the complaint and alleged seven special
defenses.7 The court found in favor of the defendants
on all counts, and the plaintiff appealed to this court.
On appeal, the plaintiff asserts that the evidence dem-
onstrates that during the course of the project, at the
contractor’s request, it performed work outside the
scope of the subcontract and that it was not paid for
such work. In addition, the contractor hindered and
interfered with the plaintiff’s ability to complete its
work, which resulted in the plaintiff’s being unable to
complete its work for more than two years beyond the
completion date. The plaintiff claims that the evidence
demonstrates that it suffered damages due to the con-
tractor’s hindrance and interference. In addition, the
contractor completed the project approximately two
years after the completion date and, thereafter brought
a claim against the state for approximately $7 million.
The state settled the contractor’s claim for $1.65 million,
but the contractor never paid the plaintiff for the work
it performed outside the subcontract, for retainage, or
the damages it suffered as a result of the contractor’s
hindrance and interference. Although the plaintiff
claims that the court improperly found in favor of the
defendants, it does not claim that any of the court’s
factual findings are clearly erroneous. The plaintiff’s
claims are mostly of an evidentiary nature, but also
assert that the court erred in failing to adopt the reason-
ing of a Massachusetts trial court case as to hindrance
and interference. The findings and reasoning of the
court follow.
The court issued a lengthy memorandum of decision
on July 31, 2015. Among other things, the court found
that in May, 2006, the plaintiff submitted a revised pro-
posal pursuant to the project’s design specifications
that were prepared by Amenta/Emma Architects, P.C.
(architect).8 The plaintiff’s quotation was $1,050,790;
the contractor incorporated the plaintiff’s bid in its own
bid to the state. The state awarded the project to the
contractor, and the two entered into the contract for
the project for the price of $25,015,700. The contract
required the project to begin on May 26, 2006, and to
be completed by February 22, 2008, the completion
date. On May 26, 2006, the plaintiff’s president, Michael
Berkun, signed the subcontract, and on June 29, 2006,
the contractor’s president, Lawrence Brunoli, Jr., signed
the subcontract.9 The court construed the terms of the
subcontract and found that they were not ambiguous,
and that the parties were sophisticated business
entities.
Paragraph V of the subcontract provides in relevant
part: ‘‘The Contractor agrees to begin, prosecute and
complete the entire work specified by the [state] in an
orderly manner so that the Subcontractor will be able
to begin, prosecute and complete the work described
in this subcontract . . . . The subcontractor agrees
that the construction schedule is approximate only
and is subject to change; the subcontractor agrees to
accept responsibility for adhering to a fluctuating
schedule; the Subcontractor agrees not to assess any
delay damages or claims against [the contractor]
unless the Owner accepts responsibility and payment.’’
(Emphasis added.) The court, therefore, found that the
plaintiff agreed that the construction schedule was
approximate only, was subject to change, and that the
plaintiff agreed to accept responsibility for a fluctuating
schedule and not to assess any delay damages or claims
against the contractor unless the state accepted respon-
sibility and made payment. Any changes to the subcon-
tract were to be executed in writing or by written
change order from the contractor. The plaintiff’s sub-
contract was a lump sum contract; no ‘‘human hours’’
were mentioned in it.
The court found that, due to design issues between
the Department of Public Works (department) and the
architect, construction of the pedestrian bridge delayed
completion of the project.10 The court also found that
the state determined that the plaintiff was responsible
for installing the materials necessary to attach the cur-
tain wall to the pedestrian bridge and directed the plain-
tiff to complete the work. The plaintiff, however, did
not install the materials, and the contractor had to hire
another subcontractor to attach the curtain.11
The court further found that at the time the plaintiff
was working on the project it also was working on four
or five other ‘‘jobs’’ and that the project was of relatively
low importance to the plaintiff. The plaintiff generally
assigned only two to four laborers to work on the proj-
ect, had complete control over its laborers, and was
able to utilize the building in any way that it chose.
The plaintiff failed to provide the number of laborers
necessary to complete the project, and the contractor
repeatedly sent messages and requests to the plaintiff
with respect to the ‘‘manpower’’ issue. The contractor
met with the subcontractors every week to discuss the
schedule, to coordinate work, and to provide informa-
tion regarding work areas and access to them in the
week ahead. The court found that the contractor did
not intentionally or deliberately fail to coordinate or
manage the work of the subcontractors on the project.
Despite numerous delays that were beyond the contrac-
tor’s control, the state did not grant it an extension of
time to finish the project.
The plaintiff was to be paid in accordance with para-
graph II of the subcontract, which required that its bill
be approved by the contractor and the state, and that
all payments were subject to a 5 percent retainage. The
plaintiff was not to be paid in full until all work was
completed and all warranties, guarantees, and spare
parts were in place, and the contractor had receive final
payment from the state.
On March 31, 2007, a representative of the plaintiff
certified under oath that the plaintiff had purchased 80
percent of its glass. On December 30, 2008, the represen-
tative certified under oath that 99 percent of the plain-
tiff’s work had been completed, and on November 13,
2009, representative testified under oath that 99 percent
of the plaintiff’s payment for the glass had been com-
pleted. The last day the plaintiff worked on the project
was May 7, 2009. The plaintiff filed a certificate of sub-
stantial work in January, 2009, indicating that it had
complied with the scope of the work. According to
the certificate, the last day of work should have been
January 21, 2009, not May 7, 2009. The plaintiff only
had to deliver the warranties under the specifications,
but it did not settle or deliver those warranties until
the day of trial. The warranty start date was January
21, 2009.
In the fall of 2009, in response to the contractor’s
request for delay caused by design issues, the plaintiff
claimed damages of $24,722.95. In April, 2010, pursuant
to General Statutes § 4-61, the contractor submitted a
claim to the state. The plaintiff amended its ‘‘request for
equitable adjustment,’’ seeking $555,582.31 in damages.
The plaintiff’s claim against the state could not be pre-
sented together with the contactor’s claim. Although
the state and the contractor settled the contractor’s
claim, the state did not accept responsibility for the
delay in completing the project.
The court adjudicated the five counts the plaintiff
alleged as follows. As to count one, the court found
that the plaintiff alleged that the contractor breached
the subcontract by failing to request payment from the
department and failing to remit payments to it for all
work it had performed on the project. Following the
presentation of evidence, the plaintiff sought to distin-
guish its present action against the contractor from
Suntech of Connecticut, Inc. v. Lawrence Brunoli, Inc.,
143 Conn. App. 581, 72 A.3d 1113, cert. denied, 310
Conn. 910, 76 A.3d 626 (2013) (Suntech I). The court
concluded that the legal issues in the present case are
identical to those in Suntech I.12
The essence of the plaintiff’s breach of contract claim
is that the contractor’s hindrance and interferences
resulted in the plaintiff’s not being able to complete
its work until May 7, 2009. As a consequence of the
hindrance and interference, the plaintiff claimed that
it had suffered damages in the amount of $365,289.54
plus fees and that the contractor wrongly withheld
retainage in the amount of $45,802.23. The contractor
argued that the ‘‘no damages for delay’’ clause in the
subcontract precluded recovery. The plaintiff con-
tended that the damages it suffered arose, not from a
delay, but from the contractor’s hindrance and interfer-
ence.13 The court found that the project was delayed
primarily by design issues between the department and
the architect, not by the contractor. The court, there-
fore, concluded that the plaintiff had failed to prove its
breach of contract claim.
With respect to count two, the plaintiff alleged that
the contractor benefitted from the plaintiff’s labor,
materials, equipment, and services without fully paying
for them and, therefore, had been unjustly enriched.
The plaintiff produced unpaid change orders in the
amount of $162,305.35. The contractor responded that,
as a matter of law, the plaintiff had failed to prove that
it was without a remedy under the subcontract and that
it was required to do so in order to prevail on a claim
of unjust enrichment. The court found that the contrac-
tor, in fact, had overpaid the plaintiff as the contractor
had to complete some of the work the plaintiff had
been contracted to perform, but did not. As a result,
the contractor incurred additional expenses. The court
also found that the plaintiff had failed to provide five
contractually required warranties that were acceptable
to the state. For the foregoing reasons, the court found
that the plaintiff failed to prove its claim of unjust
enrichment.
Regarding count three, the court found that the plain-
tiff embellished its breach of contract allegations by
alleging that it was ‘‘forced to contend with various
disruptions, delays, suspensions, scope changes and
changed conditions caused by or controlled by [the
contractor] due to numerous project change orders,
proposal requests, architect’s supplemental instruc-
tions, construction change directives, requests for infor-
mation and nonpayment.’’ (Internal quotation marks
omitted.) The plaintiff claimed that its performance
period ran from January 25, 2007, to July 23, 2009, which
was sixteen months longer than originally scheduled,
and the delays increased the cost of materials, labor,
and overhead in excess of $555,502.31. In its posttrial
brief, the plaintiff argued that the contractor breached
the subcontract by not providing it with access to the
site and an orderly progression of the work. The con-
tractor countered that delays are inevitable on a con-
struction project, but even if the plaintiff was able to
prove delay damages, the subcontract specifically
barred the plaintiff from claiming them unless the state
accepted responsibility for the delay and paid for it.
As to the evidence presented, the court found that
Berkun’s testimony was neither credible nor persua-
sive. The plaintiff called Joel Baranowski, the state’s
project manager, to testify on its behalf, but under cross-
examination, his testimony was damaging: the plaintiff
failed to have sufficient ‘‘manpower’’ on the project and
failed to deliver warranties due under the contract that
were acceptable to the state. Finally, the court found
that the plaintiff had been overpaid by $3361.13 and
was not due any retainage. There was no credible evi-
dence that it had performed any work outside the scope
of the subcontract for which a change order would have
been issued. The court, therefore, concluded that the
plaintiff had failed to prove that it had suffered damages
due to delay.
In count four, the plaintiff asserted a claim under
§ 49-41a. During the course of the trial, the plaintiff
stipulated that it timely had been paid all moneys due
it for any amounts included on requisitions.14 In its mem-
orandum of decision, the court stated that it had
addressed the plaintiff’s claims for retainage in adjudi-
cating count three, and, for those reasons, the plaintiff
could not prevail on count four.
Count five was alleged against the insurer. Although
the plaintiff was paid all moneys due it pursuant to
requisitions, the plaintiff alleged that it was due unpaid
retainage. The plaintiff alleged that the insurer had vio-
lated § 49-42 when it failed to pay the plaintiff’s claim
made under the bond issued to the contractor. The
court concluded that the plaintiff had failed to prove
the allegations in count five.
The court, therefore, rendered judgment in favor of
the defendants on all counts. The plaintiff appealed.
Additional facts will be set forth as needed.
I
The plaintiff claims that the court abused its discre-
tion with respect to three evidentiary rulings by (1)
failing to permit one of its witnesses to testify as an
expert, (2) failing to permit the plaintiff to disclose the
witness as an expert during the course of his testimony,
and (3) reversing its ruling on a motion in limine on
the last day of trial.15 The plaintiff perceives unfairness
in the court’s rulings. Although the court abused its
discretion by sustaining several of the contractor’s
objections to the questions posed by the plaintiff on
direct examination; see footnotes 19 and 21 of this opin-
ion; we conclude that the plaintiff has failed to demon-
strate that it was harmed.
We begin with the standard of review applicable to
evidentiary rulings. ‘‘[T]he trial court has broad discre-
tion in ruling on the admissibility . . . of evidence.
. . . The trial court’s ruling on evidentiary matters will
be overturned only upon a showing of a clear abuse of
the court’s discretion. . . . We will make every reason-
able presumption in favor of upholding the trial court’s
ruling, and only upset it for a manifest abuse of discre-
tion. . . . Moreover, evidentiary rulings will be over-
turned on appeal only where there was an abuse of
discretion and a showing by the [appellant] of substan-
tial prejudice or injustice.
‘‘[B]efore a party is entitled to a new trial because
of an erroneous evidentiary ruling, he or she has the
burden of demonstrating that the error was harmful.
. . . When determining that issue in a civil case, the
standard to be used is whether the erroneous ruling
would likely affect the result. . . . Any testimony in a
case that tends of itself or in connection with other
testimony to influence the result on a fact in issue is
material. If the testimony would tend to affect the ver-
dict of the [trier of fact], it meets the test of materiality.’’
(Citation omitted; internal quotation marks omitted.)
Mamudovski v. BIC Corp., 78 Conn. App. 715, 730, 829
A.2d 47 (2003), appeal dismissed, 271 Conn. 297, 857
A.2d 328 (2004).
A
The plaintiff first claims that the court abused its
discretion with respect to Rick Cianfaglione by preclud-
ing him from testifying as to his observations and per-
ceptions at the project site, and his conversations with
the contractor’s employees. We conclude that the court
did not abuse its discretion when it precluded Cianfagli-
one from offering expert testimony, and that, in any
event, the plaintiff has failed to demonstrate that it was
prejudiced by the court’s ruling.
The following additional facts are relevant to the
plaintiff’s claims. Prior to the commencement of the
present action, the contractor brought an action against
the state. See Lawrence Brunoli, Inc. v. State, Superior
Court, judicial district of Hartford, Docket No. CV-12-
6028601-S (Brunoli case). As part of its defense in the
Brunoli case, the state retained Cianfaglione, a schedul-
ing expert, to review change orders, permits, supple-
mental instructions, and schedules during the course
of the project. He also met with the contractor on
numerous occasions. Cianfaglione authored and sub-
mitted reports to the state in which he recorded his
findings as to the contractor’s progress.
In July, 2013, in the present action, the plaintiff
noticed Cianfaglione’s deposition and issued a sub-
poena duces tecum for him to bring all documents,
reports, and analysis that he authored with respect to
the Brunoli case. The state filed a motion for a protec-
tive order, which the trial court, Schuman, J., denied
because Cianfaglione was not an attorney, but an expert
witness. Judge Schuman ordered the plaintiff to pay
Cianfaglione’s expenses in connection with the deposi-
tion.16 Cianfaglione subsequently was deposed by the
parties.
On November 20, 2014, during the course of trial, the
contractor filed a motion to preclude the plaintiff from
presenting expert testimony from Cianfaglione and put-
ting his reports into evidence on the ground that the
plaintiff had not disclosed him as an expert witness in
violation of Practice Book § 13-4.17 The plaintiff had
disclosed three individuals as expert witnesses, but not
Cianfaglione. In its trial management report, the plain-
tiff identified Cianfaglione as a fact witness and marked
for identification several reports Cianfaglione had pre-
pared on behalf of the state in the Brunoli case. The
contractor claimed generally that it would be prejudiced
if Cianfaglione were permitted to testify as an expert
witness, but it did not explain how it would be prej-
udiced.
On November 21, 2014, the plaintiff called Cianfagli-
one to testify in its case-in-chief. At that time, the court
heard oral argument on the contractor’s motion in
limine. Counsel for the contractor argued that all of
Cianfaglione’s testimony should be precluded. The
plaintiff objected to the motion to preclude as it was
not filed prior to trial and, therefore, was not timely.
The court having reviewed the procedural history of
the case, noted that Judge Schuman had declared Cian-
faglione an expert, the plaintiff had disclosed Cianfagli-
one as a fact witness, and that he had been deposed.
The court ruled that it would permit Cianfaglione to
testify as a fact witness and that it would rule, question
by question, whether his testimony was inadmissible
expert testimony.18 During Cianfaglione’s direct testi-
mony, counsel for the contractor objected to certain
questions posed by the plaintiff, and the court sustained
the objections.19
On appeal, the plaintiff claims that the court abused
its discretion when it (1) precluded Cianfaglione from
testifying as to his perceptions, observations, and con-
versations with the contractor, and (2) would not permit
the plaintiff to put ‘‘instrumental evidence’’ into evi-
dence. It contends that the contractor had ‘‘deposed
Mr. Cianfaglione ad nauseam’’ and, therefore, could not
be surprised nor prejudiced by his testimony.
‘‘[T]he trial court has wide discretion in ruling on
the admissibility of expert testimony and, unless that
discretion has been abused or the ruling involves a clear
misconception of the law, the trial court’s decision will
not be disturbed. . . . In determining whether there
has been an abuse of discretion, the ultimate issue is
whether the court could reasonably conclude as it did.
. . . Even if a court has acted improperly in connection
with the introduction of evidence, reversal of a judg-
ment is not necessarily mandated because there must
not only be an evidentiary [impropriety], there also must
be harm. . . .
Our Supreme Court has ‘‘articulated the test for the
admission of expert testimony, which is deeply rooted
in common law. Expert testimony should be admitted
when: (1) the witness has a special skill or knowledge
directly applicable to a matter in issue, (2) that skill or
knowledge is not common to the average person, and
(3) the testimony would be helpful to the court or jury
in considering the issues. . . . In other words, [i]n
order to render an expert opinion the witness must be
qualified to do so and there must be a factual basis
for the opinion.’’ (Citations omitted; footnote omitted;
internal quotation marks omitted.) Dow-Westbrook, Inc.
v. Candlewood Equine Practice, LLC, 119 Conn. App.
703, 720, 989 A.2d 1075 (2010).
The substance of the plaintiff’s claim is that the court
abused its discretion by not permitting Cianfaglione to
testify as to his perceptions, that is, what he observed
at the site of the project. The plaintiff has cited cases
during which lay witnesses were permitted to testify
as to their perceptions, e.g., whether a step was steep;
see Mack v. LaValley, 55 Conn. App. 150, 154–58, 738
A.2d 718, cert. denied, 251 Conn. 928, 742 A.2d 363
(1999); whether an individual was too intoxicated to
operate a motor vehicle safely. See State v. Lamme, 19
Conn. App. 594, 605, 563 A.2d 1372 (1989), aff’d, 216
Conn. 172, 579 A.2d 484 (1990).20
Section 7-1 of the Connecticut Code of Evidence pro-
vides: ‘‘If a witness is not testifying as an expert, the
witness may not testify in the form of an opinion, unless
the opinion is rationally based on the perception of the
witness and is helpful to a clear understanding of the
testimony of the witness or the determination of a fact
in issue.’’ ‘‘Lay witnesses are permitted to give opinions
when the evidence as to such matters might otherwise
be difficult or impossible to obtain in any other form.
. . . A lay witness must state the facts that are within
his or her personal knowledge, however, and not give
an opinion concerning such facts.’’ C. Tait, Connecticut
Evidence (3d Ed. 2001) § 7.1.2, p. 510. ‘‘[A] lay witness
may give his impression or opinion of conditions or
circumstances which are so numerous or complicated
that he could not otherwise adequately describe them
or otherwise convey to the jury the impression which
they gave to him.’’ State v. McGinnis, 158 Conn. 124,
131, 256 A.2d 241 (1969).
‘‘A witness, who is also expert in a field, is not thereby
disqualified from testifying to personal observations on
a matter, including giving a non-expert opinion on a
subject on which a layperson could also opine.’’ C.
Tait & E. Prescott, Connecticut Evidence (5th Ed. 2014)
§ 7.1.2, p. 445. ‘‘The general rule is that witnesses must
state facts and not their individual opinions, but there
are exceptions to this rule as well established as the rule
itself.’’ (Internal quotation marks omitted.) Johnson v.
Newell, 160 Conn. 269, 277, 278 A.2d 776 (1971).
Witnesses are permitted to testify as to what they
perceive. Cianfaglione, therefore, should have been per-
mitted to testify as to what he observed when he walked
onto the project site, such as the number of laborers
present, which was a factual inquiry. The court had
ruled that it would permit the plaintiff to make factual
inquiries of Cianfaglione. The court should have over-
ruled the contractor’s objection that the answer called
for an opinion. The plaintiff’s claim fails, however,
because it has not demonstrated how it was harmed
by the court’s sustaining the contractor’s objections.
Counsel made an offer of proof that Cianfaglione’s testi-
mony would have shown that the contractor, not the
state or architect, hindered and interfered with the
plaintiff’s ability to perform. That representation, how-
ever, is a legal conclusion, not the facts to which Cian-
faglione would have testified. See id. (‘‘No offer of proof
appears in the record. Without knowing the purpose of
the offer or the answer that might be forthcoming we
are unable to rule on this assignment of error.’’) Because
the plaintiff has failed to demonstrate that the court’s
rulings were harmful to it, it cannot prevail on its claim
that the court abused its discretion by sustaining some
of the contractor’s objections to its direct examination
of Cianfaglione.
B
The plaintiff claims that the court abused its discre-
tion when it denied its oral motion to disclose Cianfagli-
one as an expert that it made during the course of
Cianfaglione’s testimony. We disagree.
During the course of Cianfaglione’s direct testimony,
the court sustained many of the contractor’s objections
to the questions posed by the plaintiff. Counsel for
the plaintiff, therefore, offered an oral motion, while
Cianfaglione was testifying on direct examination, to
disclose him as an expert witness. Counsel represented
that the contractor would not be prejudiced by such
testimony as it had deposed Cianfaglione. The court
denied the motion without explanation, despite the
plaintiff’s request for a reason.21 The plaintiff did not
file a motion for articulation. See Practice Book §§ 60-
5 and 61-10.
On appeal, the plaintiff argues that the court abused
its discretion by denying its motion to disclose Cianfag-
lione as an expert witness because the court did not
hold a hearing on its motion. The plaintiff’s claim is
predicated on Practice Book § 13-4 (h), which provides:
‘‘A judicial authority may, after a hearing, impose sanc-
tions on a party for failure to comply with the require-
ments of this section. An order precluding the testimony
of an expert witness may be entered only upon a finding
that: (1) the sanction of preclusion, including any conse-
quence thereof on the sanctioned party’s ability to pros-
ecute or to defend the case, is proportional to the
noncompliance at issue, and (2) the noncompliance at
issue cannot adequately be addressed by a less severe
sanction or combination of sanctions.’’
Practice Book § 13-4 (a) provides: ‘‘A party shall dis-
close each person who may be called by that party to
testify as an expert witness at trial, and all documents
that may be offered in evidence in lieu of such expert
testimony, in accordance with this section. The require-
ments of Section 13-15 shall apply to disclosures made
under this section.’’22
The record discloses that neither the plaintiff nor the
contractor timely complied with our rules of practice
or the court’s trial management order. Contrary to the
plaintiff’s claim that the court failed to hold a hearing
on its oral motion to disclose Cianfaglione, the court,
in substance, considered the issue when it granted the
contractor’s motion to preclude the witness from testi-
fying as an expert. Moreover, contrary to the plaintiff’s
claim, the court’s sanction was proportional. The con-
tractor sought to preclude Cianfaglione from testifying
as either a fact or expert witness. The court ruled that
Cianfaglione could testify as a fact witness. For the
foregoing reasons, the plaintiff’s claim fails.
C
The plaintiff claims that the court abused its discre-
tion by permitting the contractor to present testimony
pertaining to its special defense of setoff. We need not
decide whether the court abused its discretion by
reversing its prior ruling granting the plaintiff’s motion
to preclude, because even if the court abused its discre-
tion, the plaintiff has failed to demonstrate that it was
harmed by the court’s reversal of its prior ruling.
On or about October 27, 2014, the plaintiff filed a
motion in limine to preclude the contractor from intro-
ducing any evidence, documents or testimony, in sup-
port of its special defense of ‘‘offset.’’ In its motion, the
plaintiff outlined the allegations of its complaint and
the contractor’s ‘‘offset’’ special defense. The plaintiff
also set forth a certain interrogatory and request for
production that it had served on the contractor in Sep-
tember, 2010, and the responses the contractor pro-
vided in January, 2011. In answering the plaintiff’s
interrogatory concerning the basis of its counterclaim
or offset, the contractor responded ‘‘N/A.’’ With regard
to the corresponding production request, the plaintiff
argued that the contractor provided ‘‘minimal documen-
tation, none of which expressly or directly documents
[its] claim for setoff’’ and failed to supply supplemental
disclosure. The plaintiff contended that the contractor
should be precluded from introducing evidence, includ-
ing testimony, in support of its special defense of setoff.
The plaintiff relied on Practice Book §§ 13-14 and 13-
1523 to support its position. Counsel for the contractor
did not file a written objection to the motion in limine,
but stated during argument on the motion that she pre-
ferred to argue against the motion in court.24
The parties appeared before the court to argue the
plaintiff‘s motion in limine on November 18, 2014. The
court read into the record interrogatory 17 and request
for production 4, and the defendant’s responses thereto.
Counsel for the plaintiff argued that the plaintiff had
asked for specific information and for the contractor
to itemize the deductions or setoffs. He represented
that the contractor also failed to attach the documents
to substantiate its claimed setoffs. Counsel for the con-
tractor stated that interrogatory 17 was ambiguous in
that the contractor had not filed a counterclaim, only
a setoff special defense. The contractor did not include
a calculation of the sums deducted from the contract
balance. Counsel for the contractor argued that the
important point with regard to the interrogatory and
the request for production was that documents and
information were provided to the plaintiff during the
course of the project.25 The contractor claimed that
there was no prejudice to the plaintiff and that it should
be permitted to offer testimony regarding the deduc-
tions it took from the plaintiff’s contract price.
After hearing from the plaintiff as to its understanding
of a setoff, the court ruled stating: ‘‘Based on what is
before the court, the motion in limine is hereby granted.
All right. But, I will allow in all fairness to the [contrac-
tor] to put up the evidence, whatever is from his per-
sonal knowledge . . . . But motion for the special
defense is setoff, is hereby granted. Your motion in
limine.’’26 The court further stated: ‘‘I have granted your
motion. Let me just be clear, the claim of offset is hereby
granted. And that’s it. So, we will move on.’’
On November 25, 2014, the last day evidence was
presented, and during the testimony of Daniel Neagle,
the contractor’s vice president, counsel for the contrac-
tor asked the court to revisit its ruling on the plaintiff’s
motion in limine. At the time, the contractor presented
the court with what it purported to be its compliance
with the plaintiff’s discovery requests. The court first
addressed the motion in limine, which included the
contractor’s response to interrogatory 17 and request
for production 4. The disclosure was not attached to the
contractor’s purported discovery compliance. Counsel
for the contractor then represented to the court that
on November 18, 2014, when the court ruled on the
motion in limine, that she could not ‘‘100 percent repre-
sent’’ that the list of deductions had been disclosed
because she was unable to locate the original discovery
compliance. She also represented that on November
24, 2014, she had searched the files in her office and
found the plaintiff’s compliance in a box marked
‘‘DPW.’’27 She represented that the list of deductions
from the contract was disclosed, and the documents
were attached.28
She also stated: ‘‘But, Your Honor, we have to at least
have the court look at the responses to our interrogato-
ries, which includes a full accounting of all of the dele-
tions from the contract itself. It has a list of these
warranty issues. It has a list of every check that [the
contractor] sent to [the plaintiff]. These were reviewed
and signed by my client, and they were in fact included
in the documents that were attached to our responses.
So, we would ask that the court revisit the motion in
limine, given the disclosure that I can now make with
100 percent certainty that that list of deductions from
the contract were provided to [the plaintiff’s counsel]
and his client in January of 2011, Your Honor. That’s
when our compliance was filed with the court.’’ In addi-
tion, she represented that counsel for the plaintiff vis-
ited her office and ‘‘tagged’’ the disclosure.
Counsel for the plaintiff reviewed what the contrac-
tor’s counsel had given to the court and stated that he
did not receive the last three pages of what counsel
represented had been disclosed. He stated that although
the contractor may have intended to disclose the infor-
mation, the plaintiff never received it. Because the plain-
tiff never received the information, it filed the motion
in limine. Over the plaintiff’s objection, the court permit-
ted Neagle to testify as to specific setoffs and/or deduc-
tions that the contractor took from the plaintiff’s
subcontract.
We recognize that the court reversed its ruling on the
plaintiff’s motion in limine on the last day of evidence
pursuant to the representations of the contractor’s
counsel, not those of the plaintiff’s counsel. Assuming,
without deciding, that the court abused its discretion,
the hypothetical abuse cannot form the basis of reversal
and a new trial, which is the remedy the plaintiff seeks,
as the plaintiff has failed to prove it was harmed by the
court’s reversing its decision. ‘‘Even when a trial court’s
evidentiary ruling is deemed to be improper, we must
determine whether that ruling was so harmful as to
require a new trial. . . . In other words, an evidentiary
ruling will result in a new trial only if the ruling was
both wrong and harmful. . . . Harmful error occurs in
a civil action when the ruling would likely affect the
result. . . . It is the plaintiff’s burden to show harmful
error.’’ (Citations omitted; internal quotation marks
omitted.) Puchalski v. Mathura, 82 Conn. App. 272,
275–76, 843 A.2d 685 (2004).
The issue in the present action was whether the con-
tractor breached the subcontract and wrongly withheld
certain funds from the plaintiff. The court found that
the reason for the project delay was a design dispute
between the state and the architect. On appeal the plain-
tiff has not claimed that this finding is clearly erroneous;
its claims are primarily of an evidentiary nature. In fact,
the plaintiff does not dispute that the design issue was
not resolved until January, 2007. The present claim con-
cerns the deductions the contractor took from the sub-
contract price, which have nothing to do with the
breach. Interrogatory 7 and request for production 4
concern damages, not whether the contractor breached
the subcontract. The court’s ruling on the motion in
limine would have been harmful if the plaintiff had
proven that the contractor’s acts were the cause of the
project’s not being finished by the completion date.
Because the plaintiff has not demonstrated how it was
harmed by the court’s reversing its ruling on the motion
in limine, its claim fails.
II
The plaintiff’s nonevidentiary claim is that the court
improperly found in favor of the contractor on count
three of its complaint, which alleged that the plaintiff
sustained damage as the result of delays caused by the
contractor. The plaintiff argues that the court erred
when it failed to adopt the reasoning of Central Ceil-
ings, Inc. v. Suffolk Construction Co., Docket No.
SUCV200604129A, 2013 WL 8721044, *10–11 (Mass.
Super. December 19, 2013). We disagree.
In its memorandum of decision, the court found that
the reason for the delay in the completion of the project
was due to design issues between the state and the
architect. With respect to count three, the court found
that the plaintiff suffered no damages as a consequence
of the contractor’s actions and concluded that even
if the contractor were responsible for the delay, the
subcontract barred the plaintiff from bringing an action
on the basis of delay. Significantly, the court concluded
that the evidence presented did not support the
plaintif’s claim, whether it be delay, hindrance, or inter-
ference. The court found that the plaintiff ‘‘did not man
the job properly’’ and that Berkun, the plaintiff’s presi-
dent, was ‘‘neither credible nor persuasive.’’ There was
no credible evidence to support the plaintiff’s claim of
interference. The plaintiff’s claim that the contractor
breached the subcontract by not providing access and
orderly progression of the work is contrary to the
evidence.
The court also found that the subcontract specifically
prohibits delay damages, to wit: ‘‘[The] subcontractor
agrees not to assess any delay damages or claims
against [the contractor], unless the [state] accepts
responsibility, and payment.’’ (Internal quotation marks
omitted.) The court found that the parties are sophisti-
cated commercial entities and concluded that the lan-
guage of the subcontract is not ambiguous. The court
concluded, therefore, citing Suntech of Connecticut,
Inc. v. Lawrence Brunoli, Inc., supra, 143 Conn. App.
591, that the plaintiff was barred from seeking delay
damages from the contractor.
On appeal, the plaintiff claim is that the ‘‘no damages
for delay clause’’ in the subcontract is inapplicable
because its claim is not predicated on a delay but,
rather, on hindrance and interference caused by the
contractor. The plaintiff relies on Central Ceilings, Inc.,
to support its claim that a delay is an action that pre-
vents a party from commencing work and hindrance
or interference is an action that prevents a party from
working in an orderly fashion, which is what the plain-
tiff claims happened in the present case. We are not per-
suaded.
We first examine the allegations of the plaintiff’s com-
plaint to determine the basis of its claim. ‘‘The interpre-
tation of pleadings is always a question of law for the
court. . . . In addition, [t]he allegations of the com-
plaint must be given such reasonable construction as
will give effect to [it] in conformity with the general
theory which it was intended to follow, and do substan-
tial justice between the parties. . . . It is axiomatic
that the parties are bound by their pleadings.’’ (Citation
omitted; internal quotation marks omitted.) O’Halloran
v. Charlotte Hungerford Hospital, 63 Conn. App. 460,
463, 776 A.2d 514 (2001).
Count three of the plaintiff’s amended complaint is
titled ‘‘Delay.’’29 In paragraphs 11 through 13 and 16 of
that count, the plaintiff alleged ‘‘[o]ver the course of
the project, [the plaintiff] was forced to contend with
various disruptions, delays, suspensions, scope changes
and changed conditions caused by or controlled by [the
contractor] due to numerous project change orders,
proposal requests, architect’s supplemental instruc-
tions, construction change directives, requests for infor-
mation, and nonpayment. . . . The delays referenced
in [paragraph] 11 constitute a failure by [the contractor]
to comply with its contractual obligations to begin,
prosecute and complete the entire work on the [p]roject
in an orderly manner. . . . As a result of the aforemen-
tioned delays, [the plaintiff‘s] actual period of perfor-
mance ran from January 25, 2007 to July 23, 2009, more
than sixteen (16) months longer than originally sched-
uled. . . . The delays referenced in [paragraph] 11 of
this count have caused damages to [the plaintiff] for
increased costs of materials and labor, overhead, and
direct job costs in excess of $555,502.31 to date.’’
The key language in this allegation is that the delays
referenced in paragraph 11 constitute a failure by the
contractor ‘‘to begin, prosecute and complete the entire
work on the project in an orderly manner.’’ This lan-
guage tracks the language of paragraph V of the subcon-
tract, which also contains the provision that the plaintiff
agrees not to assess any delay damages or claims
against the contractor. The plaintiff’s complaint con-
tains no specific factual allegations as to how the con-
tractor failed to begin or prosecute the project.
‘‘The elements of a breach of contract action are the
formation of an agreement, performance by one party,
breach of the agreement by the other party and dam-
ages.’’ (Internal quotation marks omitted.) Suntech of
Connecticut, Inc. v. Lawrence Brunoli, Inc., supra, 143
Conn. App. 585.
We have read and considered the Massachusetts trial
court decision on which the plaintiff relies. See Central
Ceilings, Inc. v. Suffolk Construction Co., supra, 2013
WL 8721044. On the basis of our reading of Central
Ceilings, Inc., we conclude that the legal proposition
for which it stands, i.e., the distinction between delay,
hindrance and interference, is inapplicable to the facts
of the present case. Central Ceilings, Inc., concerned
the construction of a college dormitory complex. The
Massachusetts trial court found that the defendant Suf-
folk Construction Company, Inc. (Suffolk), failed to
coordinate the work of the precursor trades, to set
properly the elevation and control lines of construction,
to address weather, heat and flooding issues, and to
coordinate so as to avoid the ‘‘stacking of the trades,’’30
all of which Suffolk was required to do by contract. As
a consequence of Suffolk’s failure to coordinate the
construction of the dormitory, the plaintiff Central Ceil-
ings, Inc. (Central), was not able to do the necessary
framing and had to ‘‘demobilize’’ and ‘‘remobilize’’ its
workforce, materials, and equipment. Id., *4.
Pursuant to the Central Ceilings, Inc., subcontract,
Central agreed that it ‘‘shall have no claim for money
damages or additional compensation for delay no mat-
ter how caused, but for any delay or increase in the
time required for performance of this [s]ubcontract not
due to the fault of Central, Central shall be entitled only
to an extension of time for performance . . . .’’
(Emphasis omitted; internal quotation marks omitted.)
Id., * 8. The court found that Central did not cause the
delay,31 and that it requested an extension of time to
complete its work. Suffolk refused to grant Central any
extensions of time to perform. The Massachusetts trial
court found that ‘‘[b]y not granting Central its requested
extensions, Suffolk deprived Central of its contractu-
ally-mandated remedy. This deprivation is, itself, a
breach of the [s]ubcontract, and Central’s damages for
loss of productivity are a direct result of this breach.’’
In the present case, the trial court found that the
contractor was not responsible for any delay or dam-
ages, as the principal reason the project was not com-
pleted on time was the design dispute between the state
and the architect. In addition, the court found that there
was no credible evidence that the contractor prevented
the plaintiff from working in an orderly fashion. Central
Ceilings, Inc., therefore, is factually and legally distin-
guishable from the present case, and the trial court
properly declined to adopt it in adjudicating the pre-
sent action.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The project called for the construction of a new technology building
that included approximately 1 million square feet of new classroom, automo-
tive, and kitchen space; a 2000 square foot enclosed pedestrian bridge that
connected the new structure to an existing one; a new 5000 square foot
greenhouse; the demolition of seven existing annex buildings and an existing
concrete pedestrian bridge, and sidewalk; and renovations to the existing
heating, ventilation, and air conditioning systems.
2
The insurer is not a party to this appeal.
3
The court found that there have been multiple actions between the
parties since 2009.
4
The court found that the plaintiff was to be paid pursuant to paragraph
III of the subcontract, which provides in relevant part: ‘‘All billings must be
approved by (the contractor) and the (state) . . . all payments are subject
to retainage and/or other applicable provisions as contained in the contract
documents . . . .’’
5
General Statutes § 49-41a is entitled ‘‘Enforcement of payment by general
contractor to subcontractor and by subcontractor to its subcontractors.’’
6
General Statutes § 49-42 is entitled ‘‘Enforcement of right to payment
on bond. Suit on bond, procedure and judgment.’’
7
The contractor alleged the following special defenses: (1) the plaintiff
fails to state a claim on which relief can be granted; (2) the claim may be
barred by the plaintiff’s failure to comply with the terms of the subcontract;
(3) any damages allegedly incurred by the plaintiff were caused by others
over whom the contractor had no control; (4) the claim is barred or limited
by set-offs and/or back charges against the plaintiff due to its own negligent
and defective work on the project; (5) the plaintiff failed to mitigate its
damages; (6) the plaintiff has been paid what it was due under the subcon-
tract; and (7) the claim may be barred by the plaintiff’s failure to comply
with statutory notice requirements and the applicable statute of limitations.
The plaintiff denied the contractor’s special defenses.
8
The Department of Public Works hired the architect to design the project
and to serve as the construction administrator.
9
The subcontract required the plaintiff to furnish all materials, labor, and
equipment to perform the work described in the contract specification and
‘‘Division O: Bidding requirements,’’ ‘‘Division 1: General requirements,’’ and
‘‘08411-Aluminum Store Fronts and Doors; 08800-Mirrored Glazing; 08840-
Plastic Glazing; 08911-Glazed Aluminum Curtain Wall, as shown on contract
drawings prepared by’’ the architect. The subcontract price was $1,040,000.
10
The pedestrian bridge is a glass enclosed hallway connecting an existing
building to the new technology building. The design issues concerned the
manner in which the bridge was to be connected to the existing and new
buildings, and how the heating, ventilation, and air conditioning system was
to fit through the ceiling. The architect did not complete the design of the
bridge until the latter part of 2007.
11
In addition, the court found that after the completion date had passed,
the plaintiff sought permission from the state to substitute the architect’s
specified manufacturer of the curtain wall system. The plaintiff submitted
shop drawings that included a new design of the exterior glass walls.
According to the plaintiff, its proposed change order from store front glass
to curtain wall would be ‘‘a no additional cost’’ change, but it later submitted
a change order proposal for $110,500 more than the materials specified by
the architect. The state rejected the plaintiff’s proposed change.
12
The court found that the plaintiff contradicted its assertion that the
claims in the present action are different from Suntech I in its motion for
continuance filed on May 2, 2012. The plaintiff sought a continuance claiming
that the present action is identical to Suntech I, which was on appeal. The
plaintiff contended that the outcome of the Suntech I appeal would affect
the present proceedings and that it would be a waste of judicial resources
to try the present case before the appeal was decided.
13
To support its position, the plaintiff asked the court to adopt a Massachu-
setts trial court decision, which distinguishes delay from hindrance and
interference. See Central Ceilings, Inc. v. Suffolk Construction Co., Docket
No. SUCV200604129A, 2013 WL 8721044, *10–11 (Mass. Super. December
19, 2013).
14
The parties entered into the following stipulation: ‘‘Count [four]. As to
payments made on approved requisitions [the plaintiff] stipulates payments
for only those approved requisitions that were made in accordance with
[§] 49-41a. [The plaintiff] does not stipulate to payment of unapproved
requisitions or retainage due.
‘‘Count [five]. As to payments made only for approved applications for
payment, [the plaintiff] stipulates those payments were made in accordance
with the time frame set forth in [§] 49-42. [The plaintiff] does not stipulate
that payments were made for retainage or unapproved requisitions and
change orders.’’
15
We take this opportunity to note that the evidentiary issues raised in
this appeal are largely of the parties’ own making in that they failed to
comply with our rules of practice and the court’s scheduling order. When
faced with the parties’ failure to comply with our rules of practice or the
court’s orders, we cannot conclude that a court abused its discretion by
rigorously adhering to the rules of practice or a scheduling order.
16
In its motion for protective order, the state represented that Cianfaglione
had not been named as an expert in the present action and had not been
retained as a consultant by any party. The state argued that Cianfaglione’s
work with respect to the project was protected from disclosure pursuant
to the states’ work product privilege and that the parties were seeking to
obtain a free expert opinion. Judge Schuman issued the following order:
‘‘The plaintiff seeks the testimony and documents of an expert rather than
that of an attorney. Therefore, the work product doctrine does not apply.
. . . [B]ecause the plaintiff has subpoenaed an expert for deposition, it
must pay his fees and expenses as provided in Practice Book § 13-4 (d) (3).
Subject to this condition, the deposition may go forward.’’ (Citation omitted.)
17
Practice Book § 13-4 (a) provides: ‘‘A party shall disclose each person
who may be called by that party to testify as an expert witness at trial, and
all documents that may be offered in evidence in lieu of such expert testi-
mony, in accordance with this section. The requirements of Section 13-15
shall apply to disclosures made under this section.’’
18
In ruling, the court stated: ‘‘Now, to make this easy so that we move
along, this gentleman is being called as a fact witness. What facts he will
testify . . . I do not have any idea. You might have [an] idea of what facts
he is going to testify. So, the ruling on this motion is he’s not . . . an expert
witness. Anything . . . any expert testimony, any expert opinion, and expert
reports are not before this court . . . at this moment. Live fact witness, he
is a fact witness. And he will testify to facts. He will ask questions. You will
object. I’ll make the rulings, and we will move on. . . . That’s the best way,
practical way to do it: question by question. . . . I cannot blanket . . .
make a ruling . . . because he’s calling him as a fact [witness].’’
19
The plaintiff has provided the following examples of questions its coun-
sel asked of Cianfaglione on direct examination, the contractor’s objection,
and the court’s ruling:
‘‘[The Plaintiff’s Counsel]: Sir, when you were hired at the beginning by
the Department of Public Works, were you providing factual information
to the department based upon your review of the records?
‘‘[The Witness]: Well, I’m looking at the facts as they are presented and
forming an analysis on those.
‘‘[The Plaintiff’s Counsel]: Now, later on, were you hired subsequently by
the attorney general’s office to perform expert opinion work?
‘‘[The Witness]: Later on, yes.
‘‘[The Plaintiff’s Counsel]: Did you consider the work you were performing
later on—earlier on to be expert opinion work or just what you were hired
to do as part of your job?
‘‘[The Witness]: When I’m stating when I think the project is going to be
finished, I would consider that to be my opinion.
‘‘[The Plaintiff’s Counsel]: But was your opinion based upon facts that
you observed?
‘‘[The Witness]: Yes.
‘‘[The Plaintiff’s Counsel]: Okay. I’m only asking this witness about the
facts that he observed, not his opinion, Your Honor.
‘‘The Court: Sustained.
‘‘[The Plaintiff’s Counsel]: So, you’re saying that anything this person may
have seen is not admissible? . . . I’m just asking you, Your Honor, for
a clarification.
‘‘The Court: The ruling is made. Please proceed.
‘‘[The Plaintiff’s Counsel]: Sir, could you please tell us what you personally
observed when you walked the site when you were hired by the Department
of Public Works to look at the manner in which the construction was pro-
ceeding?
‘‘[The Contractor’s Counsel]: Same question; same objection, Your Honor.
‘‘The Court: And same ruling.
***
‘‘[The Plaintiff’s Counsel]: When you walked the project, what did you
observe with respect to the number of men that were on the project doing
work at any given time?
‘‘[The Contractor’s Counsel]: Objection, Your Honor, calls for expert
opinion.
‘‘The Court: Sustained.
***
‘‘[The Plaintiff’s Counsel]: Did you, sir, have discussions with the [contrac-
tor’s] representatives concerning their progress on the project?
‘‘[TheWitness]: Yes. . . .
***
‘‘[The Plaintiff’s Counsel]: Did you have discussions with [the contractor]
concerning the work proceeding in an orderly fashion?
‘‘[The Witness]: Yes.
‘‘[The Plaintiff’s Counsel]: And what was . . . what did [the contractor]
tell you about their proceeding in an orderly fashion?
‘‘[The Contractor’s Counsel]: Objection, Your Honor. If you’re talking
about a response to a conversation that he had about orderly fashion, that
would be based on this witness’ expert opinion and analysis of the schedule
so far.
‘‘The Court: Sustained.
‘‘[The Plaintiff’s Counsel]: May I be heard on that, Your Honor?
‘‘The Court: Go ahead.
‘‘[The Plaintiff’s Counsel]: The witness testified he had a conversation as
a fact witness; he had a conversation with somebody. I asked him about
what was the response to that conversation. What was he told.
‘‘The Court: Orderly fashion. Same ruling. Let’s move on.’’
20
On appeal, neither of the parties addressed whether Cianfaglione’s con-
versations with the contractor’s employees were hearsay.
21
The transcript discloses the following:
‘‘[The Plaintiff’s Counsel]: [S]ir, could you please tell us what you person-
ally observed when you walked the site when you were hired by the Depart-
ment of Public Works to look at the manner in which the construction
was proceeding?
‘‘[The Contractor’s Counsel]: Same question; same objection, Your Honor.
‘‘The Court: And same ruling.
‘‘[The Plaintiff’s Counsel]: Your honor, then I will ask for a disclosure of
the witness as an expert witness. And there is no prejudice to the defense
because they deposed this man.
‘‘The Court: Okay. The motion—oral motion—is hereby denied.
‘‘[The Plaintiff’s Counsel]: May I inquire from the court why?
‘‘The Court: Absolutely not. Ruling is made.’’
22
Practice Book § 13-15 provides in relevant part: ‘‘If, subsequent to com-
pliance with any request or order for discovery and prior to or during
trial, a party discovers additional or new material or information previously
requested and ordered subject to discovery or inspection or discovers that
the prior compliance was totally or partially incorrect or, though correct
when made, is no longer true . . . that party shall promptly notify the other
party . . . and file and serve . . . a supplemental . . . compliance.’’
23
Practice Book § 13-14 provides in relevant part: ‘‘(a) If any party has
failed to answer interrogatories or to answer them fairly, or has intentionally
answered them falsely or in an manner calculated to mislead, or has failed
to respond to requests for production . . . has failed to comply with the
provisions of Section 13-15 . . . the judicial authority may, on motion make
such order as the ends of justice require.
‘‘(b) Such orders may include the following . . .
‘‘(4) The entry of an order prohibiting the party who has failed to comply
from introducing designated matters in evidence . . . .’’ See also footnote
22 of this opinion.
24
We do not condone such litigation practice or strategy, as it fails to
provide the opposing party with notice of its position and the legal basis
thereof.
25
More specifically counsel for the contractor argued: ‘‘[M]y client did
provide a room full of documents. We provided all the documents on all
communications between the parties, including the fact that there would
be deductions from the contract specifically with respect to the installation
of the ‘WTs’ and the clips by [the contractor] because [the plaintiff] was
told that they were supposed to provide those things. And that they didn’t
provide those things. They were put on notice that [the contractor] was
going to have to do the work and was going to have to deduct whatever it
cost them from their contract. So, all of that information was made available
to this party during the construction process itself, not just in discovery in
this case. Additionally, they were provided with documents. I still have a
room set aside in my firm’s office that houses most of the documents from
this project, so, they were, in fact, provided.’’
26
The court clarified its ruling: ‘‘By ruling of this motion in limine, obvi-
ously, is gone. All right. Now, whatever counsel, when I asked her the
clarification: what is the deduction? What is the meaning of setoffs? I would
listen to the testimony of that effect.’’
27
DPW apparently stands for Department of Public Works.
28
She did not represent, however, that counsel for the plaintiff actually
received the contractor’s compliance.
29
We recognize that the caption of a pleading is not controlling, but the
substance of the allegation is controlling. See In re Brianna F., 50 Conn.
App. 805, 812, 719 A.2d 478 (1998).
30
Stacking of the trades meant that various trades were tripping over one
another to complete work and, thus, there was an interference with the
flow of work. Central Ceilings, Inc. v. Suffolk Construction Co., supra, 2013
WL 8721044, *4.
31
The Massachusetts trial court distinguished delay from hindrance and
interference. We need not address the distinction because the trial court in
the present case found that the state and the architect were responsible for
the project’s not being finished by the completion date. The plaintiff’s claims,
therefore, are controlled by the ‘‘no damages for delay’’ clause in the sub-
contract.