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*********************************************** 
MARC ABRAMS v. PH ARCHITECTS, LLC, ET AL.

(AC 40164)

Prescott, Elgo and Blawie, Js.

Syllabus

The plaintiff homeowner sought to recover damages from the defendants,

P Co., an architectural firm, and V Co., a general contractor, which he

had hired to design and perform substantial renovations to his home

and surrounding property. The plaintiff’s complaint alleged, as to P Co.,

breach of the architectural contract, breach of warranty, and professional negligence, and, as to V Co., breach of the home construction

contract and breach of a separate contract to construct a stone wall.

The defendants each filed counterclaims alleging that the plaintiff

breached the contracts by failing to pay invoices for services rendered

and sought, inter alia, the sums that the plaintiff had withheld in

retainage. Following a trial, the court rendered judgment permitting the

plaintiff to keep a small portion of the retainage for certain work by V

Co. that was defective or incomplete, but otherwise rendered judgment

in favor of the defendants on the complaint and on their counterclaims

and awarded them damages. On the plaintiff’s appeal to this court, held:

1. The plaintiff could not prevail on his claim that the trial court improperly

failed to enforce provisions of his contracts with V Co. and P Co. pertaining to how change orders and payment requisitions were to be

initiated and processed:

a. The plaintiff’s claim that V Co. breached the construction contract

by failing to follow change order procedures was unavailing; the plaintiff

failed to allege that ground in his complaint as a basis for V Co.’s breach

of contract, the trial court did not address the claim in rejecting that

count of the complaint, as the court was limited to the allegations in

the complaint and had no duty to scrutinize the parties’ agreement

looking for potential additional breaches, and, therefore, the issue could

not form the basis of a claim on appeal that the trial court improperly

rejected the plaintiff’s claim that V Co. breached the construction

contract.

b. The trial court properly rejected the plaintiff’s claim that P Co.’s

actions in handling change orders and billing procedures amounted to

a material breach of its contract with the plaintiff; that court found no

material breach of contract with respect to P Co. while it was still on

the project and that any failure of V Co. to follow strict contract procedures after P Co. was terminated from the project could not be attributed

to P Co., and the plaintiff did not demonstrate that the court’s factual

findings were unsupported by the record or that the court failed to give

due consideration to the terms of the contract in determining that P

Co. had not breached its contract with the plaintiff regarding its handling

of change orders.

2. The plaintiff’s claim that V Co. failed to construct the wall and fence in

a particular location and with certain specifications required by the wall

contract was unavailing, the trial court having found that the specifications and location of the wall were modified by subsequent agreement

of the parties; that court found that the repositioning of the wall was

done at the plaintiff’s request when he was confronted with the potential

extra cost of building the wall at a location involving significant ledge

rock and tree removal, that any deviation from the terms of the contract

was authorized and approved by the plaintiff, and that the parties had

agreed to modify the terms of the contract by moving the location of

the wall to avoid increasing the contract price, which was an expressed

concern of the plaintiff, who failed to demonstrate that the court’s

finding regarding the modification of the contract was clearly erroneous.

3. The plaintiff could not prevail on his claim that the trial court failed to

enforce provisions of his architectural contract with P Co. that required

P Co. to provide contract administration services and to represent his

best interests with respect to the project; although the architectural

contract required P Co. to monitor the construction process and review

the final work, it also stated that the scope of P Co.’s services during
the actual construction would be finalized at a future meeting once the

scope of the project was better understood, which the court determined

left some uncertainty, no evidence was presented that a meeting to

determine the final scope of the work ever occurred, and there was no

evidentiary foundation for the plaintiff’s claim that P Co. breached its

contract prior to P Co. departing the project, as the court found that,

prior to the plaintiff terminating P Co. from the project, P Co. effectively

had complied with its contract administration duties by monitoring the

progress of the project, engaging in discussions on-site regarding the

construction of the rock wall, and reviewing and discussing with the

plaintiff a proposed change order submitted by V Co.

4. The plaintiff failed to demonstrate his claim that P Co. had breached

the professional standard of care applicable to architects: although the

plaintiff presented expert testimony from a practicing architect who

had prepared a list of purportedly incomplete or defective work, which

indicated that P Co. had failed to adequately advise the plaintiff regarding

a radiant heat system under the flooring, to design a code-compliant

pool enclosure, and to design a code-compliant cover or enclosure for

the hot tub, P Co.’s expert contradicted much of that expert’s testimony

and, as the trier of fact, the trial court had the authority to resolve that

conflict as it saw fit and was not required to credit any part of the

testimony by the plaintiff’s expert; moreover, there was an evidentiary

basis for the court’s decision to reject the testimony of the plaintiff’s

expert, as the court found that the plaintiff made a final decision regarding radiant heat after P Co. was no longer involved with the project,

that although P Co. had told the plaintiff at their first meeting that the

pool would need to have fencing around it in order to comply with the

town’s pool code, the plaintiff insisted otherwise and that a proper pool

enclosure fence was specifically not included in the scope of work that

the plaintiff set out for P Co., and that hot tub manufacturers provide

code-compliant covers for hot tubs and that such a cover was on the

tub when it was installed.

5. The trial court’s findings regarding the plaintiff’s ‘‘punch list’’ that identified

certain items of work that V Co. allegedly had left incomplete or in need

of repair were not clearly erroneous; the plaintiff’s claim called into

doubt the trial court’s calculation of the portion of the retainage that

the plaintiff was permitted to keep for incomplete or defective work,

which the plaintiff maintained exceeded $500,000, the trial court determined that the punch list and its associated pricing were rife with errors

and exaggerations and included, for example, the costs associated with

removing and reconstructing the stone wall and removing the entire

interior hardwood floor, and that court previously had determined there

was no credible evidence or economic rationale that supported taking

those the corrective actions.

Argued April 9—officially released July 31, 2018

Procedural History

Action seeking to recover damages for, inter alia,

breach of contract, and for other relief, brought to the

Superior Court in the judicial district of Stamford-Norwalk, where the defendant V.A.S. Construction, Inc.,

filed a counterclaim; thereafter, the named defendant

filed a counterclaim; subsequently, the matter was tried

to the court, Hon. Taggart D. Adams, judge trial referee;

judgment for the defendants on the complaint and counterclaims, from which the plaintiff appealed to this

court. Affirmed.

Jane I. Milas, for the appellant (plaintiff).

Jared Cohane, with whom was Alexa T. Millinger,

for the appellee (named defendant).

Gregory J. Williams, for the appellee (defendant

V.A.S. Construction, Inc.).
Opinion

PRESCOTT, J. This appeal arises out of a dispute

between a homeowner and the architectural firm and

general contractor that he hired to design and perform

substantial renovations to his home and surrounding

property in Greenwich. The plaintiff, Marc Abrams,

appeals, following a trial to the court, from the judgment

rendered against him on his complaint and on the counterclaims of the defendants, PH Architects, LLC (PH),

and V.A.S. Construction, Inc. (VAS). The plaintiff claims

on appeal that the court improperly (1) failed to enforce

provisions in his contracts with VAS and PH related to

the processing of change orders and invoices; (2) failed

to find that VAS had breached a separate contract governing the construction of a stone wall and fence on

the property; (3) failed to enforce provisions in his

contract with PH pursuant to which PH agreed to provide contract administration services; (4) failed to conclude that PH was liable for professional negligence

because it had breached the professional standard of

care for architects; and (5) made clearly erroneous factual findings with respect to a ‘‘punch list’’ that was

prepared on behalf of the plaintiff by a third party.1

We are not persuaded by the plaintiff’s claims and,

accordingly, affirm the judgment of the court.2

The following facts, which either were found by the

court or are undisputed in the record, and procedural

history are relevant to our discussion of the plaintiff’s

claims on appeal. The plaintiff is a New York attorney

employed by a firm that oversees union elections. In

2010, he purchased an existing, single-family home

located in Greenwich at 39 Hunting Ridge Road (property). The property consists of an approximately four

acre lot that, in addition to a split-level home, features

an outdoor swimming pool, a pond, a barn, and a tennis court.

On May 14, 2010, the plaintiff entered into a contract

with PH, an architectural firm, for services related to

the design of renovations and additions that the plaintiff

sought to make to the interior of the home and to the

surrounding property (architectural contract). He was

introduced to the principals of PH, Peter Paulos and

Philip Hubbard, by his realtor, and met with them at

the property on May 11, 2010, to discuss the renovation

project. At that meeting, the plaintiff conveyed to the

architects his desire to contain the overall cost of the

project, indicating to them that, in designing and quoting

the project, they should contemplate using only the

highest quality materials and labor in order to help

guard against the possibility of the project later running

over budget. He believed that by getting quotes for

high end materials and workmanship, any subsequent

changes that occurred likely would involve a reduction,

rather than an increase, in the overall price of the

project.
PH drafted a proposal dated May 12, 2010, that listed

all of the proposed work items and set forth the hourly

rates that PH would charge for various aspects of its

work, including taking detailed measurements of the

property and preparing a schematic design of the

planned house alterations. The proposal also provided

that, after completing the schematic design, PH would

prepare outline specifications to use in soliciting preliminary bids from contractors. PH would next make any

necessary changes to the schematic design, following

which it would establish a lump sum fee for preparing

complete drawings and negotiating and administrating

construction contracts. The proposal expressly left

open the cost for PH’s services during the actual construction period. The parties signed the proposal on

May 14, 2010, which all parties agree constitutes the

entirety of the architectural contract between the plaintiff and PH.

A schematic design limited to the house renovations

was completed in June, 2010. The plaintiff approved

the design, but wanted additional information regarding

potential construction costs. With the consent of the

plaintiff, PH also obtained additional landscape architectural plans from a third party. The plaintiff, however,

rejected those landscape plans. He also rejected the

initial bid that PH had obtained for the housing renovations, believing it was too high. He then authorized PH

to complete a more detailed set of structural drawings

and specifications for the residence in order to solicit

additional construction bids.

After receiving bids, PH prepared a bid comparison

sheet for the plaintiff that showed bids ranging from

$1.2 million to over $1.5 million. The plaintiff was

unhappy and wanted the overall cost of the project

reduced significantly, indicating to Hubbard that he

wanted the total cost to be closer to $600,000. In October, 2010, PH prepared a list of possible changes that

could help to reduce costs, including eliminating a proposed office and a closet addition. The plaintiff

approved many of PH’s cost saving proposals. He also

suggested, however, additional changes not in the original plan, including adding a side deck, an outdoor fireplace, and a larger master bedroom. After incorporating

the changes approved by the plaintiff, PH obtained

new bids.

VAS, a general contracting business owned by Vincent Sciarretta, consistently was the low bidder

throughout the bidding process. VAS constructs new

homes and additions to existing homes. It submitted a

bid of between $860,000 and $912,000.

On December 6, 2010, the plaintiff entered into a

contract with VAS for construction services involving

the additions and renovations to the home contained

in the architectural plans (construction contract). The
contract was a standard form American Institute of

Architects (AIA) agreement that included a total contract price for the renovations and additions of

$921,557.34.

The plaintiff later entered into an additional AIA contract with VAS on December 16, 2010, for the construction of a stone wall on the property (wall contract).

The stone wall was intended to run along the front of

the house, connect with perimeter fencing around the

remainder of the property, and include two operating

gates. The contract called for a concrete footing to be

placed three and one-half feet below grade to secure

the fencing. The total additional cost for the wall contract was $229,985.80.

Due to significant conflicts that arose between the

plaintiff and PH,3 PH left the project prior to its completion. The plaintiff never engaged a replacement architect to oversee the project. Serious conflicts also arose

between VAS and the plaintiff regarding, inter alia, certain change orders submitted by VAS. Nevertheless,

despite the plaintiff failing to make all requested progress payments, VAS continued working on the construction project, substantially completing its work by late

November or early December, 2011.

The plaintiff, who was unhappy with the results and

overall cost of the project, initiated the present action

in September, 2012. The operative amended complaint

was filed on September 20, 2013, and contained five

counts, the first three directed against PH and the

remaining two against VAS.

With respect to PH, count one alleged that PH

breached the architectural contract with the plaintiff

by ‘‘failing to provide complete and accurate plans and

specifications for the construction of the project, failing

to provide construction administration services, failing

to monitor the cost and the quality of construction of

the project, failing to correct the errors, omissions, and

deficiencies in the services and work product provided

by PH, failing to address [the plaintiff’s] reasonable

questions and concerns, and instead abandoning the

project when problems were becoming apparent to [the

plaintiff].’’ Count two alleged that PH had breached an

express warranty that guaranteed it was qualified to

perform the services undertaken in the architectural

contract and that it would do so with the care, diligence,

and skill exercised by professional architects. Count

three sounded in professional negligence, alleging that

PH breached its duty to perform with ‘‘that degree of

skill, care, and diligence [that] professional architects

normally exhibit under like and/or similar circumstances.’’

With respect to the remaining counts against VAS,

count four alleged that VAS breached both the home

construction contract and the wall contract in a variety
of ways. More particularly, the plaintiff alleged that VAS

breached the contracts by failing to complete the work,

using lesser quality materials than specified, and performing defective work that would require repair or

replacement. The plaintiff provided the following additional examples of VAS’ alleged breach of the home

construction contract: ‘‘[T]he master bedroom deck is

poorly constructed; stairs are not adequately secured

and shake significantly when walked on; plumbing fixtures in various locations are loose and not properly

centered or installed; the electrical system is incomplete and many switches do nothing; the supply ductwork in the basement has not been insulated; tile in

areas such as the laundry room is cracked; interior trim

is defective and there are many instances of miters

opening up; bilco door is not installed properly or

weatherstripped; trim boards at exterior of dining nook

are warping and delaminating below and around windows; material for front gates and fence is not what

was specified and is of lower quality; cabinets are incorrectly installed; flooring is cupping and will have to

be removed; many items of work remain incomplete.’’

Count five sounded in negligence. The plaintiff alleged

that VAS, as a general contractor, owed him a duty to

perform its work pursuant to the contract and free from

defects, and that it breached that duty, citing again the

defects set forth in the breach of contract count.

In addition to filing an answer and special defenses

denying any liability, the defendants each filed a breach

of contract counterclaim against the plaintiff. In its

counterclaim, PH alleged that the plaintiff had breached

the architectural contract by wrongfully terminating it

from the project and by failing to pay PH in full for the

engineering and architectural services rendered prior

to its termination. VAS alleged in its counterclaim that,

with the exception of certain obligations that the plaintiff wrongfully prevented or precluded it from performing, it had performed or substantially performed

all of its obligations under its contracts with the plaintiff

and, yet, the plaintiff had failed to pay invoices totaling

$132,996.18 and to release an additional $85,613.46

being held in retainer.4 The plaintiff denied the defendants’ special defenses and counterclaims.

A trial to the court, Hon. Taggart D. Adams, judge

trial referee, was conducted between April 26 and May

6, 2016. The parties each submitted a posttrial memorandum on October 12, 2016.

On February 7, 2017, the court issued its memorandum of decision, disposing of all counts of the complaint

and the counterclaims. With respect to PH, the court

concluded that the plaintiff had failed to prove any of

his causes of action, rendering judgment against him

on counts one through three of the complaint. The court

also rendered judgment against the plaintiff on PH’s

counterclaim, awarding damages of $3991.56.
With respect to VAS, the court found that the plaintiff

had failed to prove that VAS breached either the home

construction contract or the wall contract. The court

nevertheless found that the plaintiff was entitled to

keep $8450 of the retainage as a result of certain incomplete or defective work. The court rendered judgment

in favor of VAS on its counterclaim, and awarded it

damages of $132,966.18 plus 6 percent prejudgment

interest of $24,092.34, as well as $77,162.46, the net

balance of the retainage. This appeal followed.

Before turning to our discussion of the plaintiff’s

claims, we first address the appropriate standard of

review, which is disputed by the parties. ‘‘It is well

established that [i]n a case tried before a court, the

trial judge is the sole arbiter of the credibility of the

witnesses and the weight to be given specific testimony.

. . . On appeal, we do not retry the facts or pass on the

credibility of witnesses. . . . We afford great weight

to the trial court’s findings because of its function to

weigh the evidence and determine credibility. . . .

Thus, those findings are binding upon this court unless

they are clearly erroneous in light of the evidence and

the pleadings in the record as a whole. . . . A finding

of fact is clearly erroneous when there is no evidence

in the record to support it . . . or when although there

is evidence to support it, the reviewing court on the

entire evidence is left with the definite and firm conviction that a mistake has been committed.’’ (Citations

omitted; internal quotation marks omitted.) De La Concha of Hartford, Inc. v. Aetna Life Ins. Co., 269 Conn.

424, 431–32, 849 A.2d 382 (2004).

The plaintiff seeks to frame his claims on appeal as

implicating our plenary review, arguing that his claims

involve questions of contract interpretation or challenge legal conclusions of the court. It is axiomatic that

matters of law are entitled to plenary review on appeal.

See Crews v. Crews, 295 Conn. 153, 162, 989 A.2d 1060

(2010). It is similarly well settled that, if definitive contract language exists, ‘‘the determination of what the

parties intended by their contractual commitments is

a question of law.’’ (Internal quotation marks omitted.)

Tallmadge Bros., Inc. v. Iroquois Gas Transmission

System, L.P., 252 Conn. 479, 495, 746 A.2d 1277 (2000);

see also 11 S. Williston, Contracts (4th Ed.1999) § 30:6,

pp. 77–83 (‘‘[t]he interpretation and construction of a

written contract present only questions of law, within

the province of the court . . . so long as the contract

is unambiguous and the intent of the parties can be

determined from the agreement’s face’’ [internal quotation marks omitted]). Moreover, whether contractual

language is plain and unambiguous is itself a question

of law subject to plenary review. See United Illuminating Co. v. Wisvest-Connecticut, LLC, 259 Conn. 665,

669–70, 791 A.2d 546 (2002).

The defendants, by contrast, maintain that the plain-
tiff’s claims on appeal do not truly raise any substantive

questions of law or involve construction of relevant

contract provisions but, rather, only seek to have this

court reassess the credibility of witnesses and retry

the court’s factual findings underlying its determination

that the plaintiff failed to demonstrate that either defendant materially breached its contract with the plaintiff

or is otherwise liable for damages. ‘‘The determination

of whether a contract has been materially breached is

a question of fact that is subject to the clearly erroneous

standard of review.’’ Efthimiou v. Smith, 268 Conn.

487, 493, 846 A.2d 216 (2004). We agree with the defendants that the plaintiff’s claims on appeal primarily are

factual in nature. Accordingly, although we review de

novo any questions of law that arise, to the extent that

the plaintiff merely challenges the factual underpinnings for the court’s legal conclusions, we will not

engage in a wholesale reweighing of the evidence, but

will review such claims under our clearly erroneous

standard of review. With these principles in mind, we

turn to a discussion of the specific claims raised by

the plaintiff.

I

The plaintiff first claims that the court improperly

failed to enforce provisions of his contracts with VAS

and PH, specifically, provisions pertaining to how

change orders and payment requisitions were to be

initiated and processed.5 According to the plaintiff, VAS

failed to follow the procedures set forth in the construction contract, which required it to obtain the plaintiff’s

approval for any changes prior to performing the associated work. Further, he argues that, pursuant to his contract with PH, PH was required to review and approve

payment requisitions and change orders submitted by

VAS, but PH failed to insure that VAS followed the

procedures in the construction contract.

In response, VAS argues that, to the extent the plaintiff’s claim is directed at it, we should reject that claim

for three reasons. First, VAS argues that the plaintiff’s

claim falls outside the scope of the pleadings because

the plaintiff never alleged in his complaint that VAS

breached the construction contract by failing to adhere

to provisions governing change orders and payments,

nor was that issue decided by the court. Second, VAS

argues that the plaintiff has failed adequately to brief

this claim. Third, VAS argues that the claim fails on

its merits.

PH argues that the claim also fails with respect to it

because the trial court properly rejected the plaintiff’s

allegation that PH had breached its contract with the

plaintiff by failing to adhere precisely to requirements

in the change order provisions of the construction contract. PH notes that, prior to leaving the project, it was

only involved with the processing of a single change

order and that the court found that PH’s omission of
that change order on a certified payment requisition

was ‘‘not of serious moment,’’ or, in other words, not

a material breach of contract.6

The following additional facts are relevant to this

claim. Pursuant to the architectural contract, PH agreed

to provide ‘‘contract administration’’ services during

the construction phase of the project. Contract administration was defined in the architectural contract as follows: ‘‘monitoring the construction process, making

periodic site visits, representing [the plaintiff] during

the construction process, reviewing and approving

applications for payment to the contractor, review of

the final work, preparation of a punch list to complete

the work and issuing final acceptance of the work.’’ The

architectural contract contains no express provision

about PH’s responsibilities regarding the processing

and handling of change orders; such provisions are

found in the construction contract. In particular, article

7 of the general conditions of the construction contract

contains a number of provisions that governed the process by which the parties were permitted to make

changes to the work.

In its memorandum of decision, the court addressed

the plaintiff’s arguments regarding improper change

orders and invoicing procedures in addressing the plaintiff’s assertions of breach of contract against PH. In

that context, the court stated as follows: ‘‘[I]t is true

that PH did approve an application for payment to VAS

on April 29, 2011 . . . in which VAS had not included

the fact that a change order in the amount of $5141.80

had been previously approved by [the plaintiff] in writing on March 31, 2011. . . . This oversight is not of

serious moment, because [the plaintiff] had already paid

for the change order on April 26, [2011] . . . and subsequent change orders signed by [the plaintiff] clearly

showed all the additions to the original contract price

that had been approved. . . . More importantly, [the

plaintiff’s] claim that PH never submitted or reviewed

with him any proposed change orders is without evidentiary support. Indeed, it was PH’s submission to [the

plaintiff] of the VAS proposed change orders, including

the addition of radiant heat to the project, that precipitated the previously discussed virulent e-mail by [the

plaintiff] to PH on May 24, 2011. . . . In addition, on

May 13, 2011, there was a meeting at the construction

site during which a number of proposals, changes, new

architectural sketches and costs were discussed. . . .

After PH left the project there was no architect with

whom [the plaintiff] could discuss the proposed

changes.’’ (Citations omitted.)

A

We turn first to the plaintiff’s claim that VAS breached

its construction contracts with the plaintiff by failing

to comply with change order procedures. We agree with

VAS that the breach of contract claim as set forth in
the operative complaint did not include or rely upon any

allegation that VAS had failed to adhere to provisions in

the construction contract pertaining to change orders.

Accordingly, this aspect of the plaintiff’s claim fails.

‘‘The pleadings determine which facts are relevant

and frame the issues for summary judgment proceedings or for trial. . . . The principle that a plaintiff may

rely only [on] what he has alleged is basic. . . . It is

fundamental in our law that the right of a plaintiff to

recover is limited to the allegations [in] his complaint.

. . . A complaint must fairly put the defendant on

notice of the claims . . . against him. . . . The purpose of the complaint is to limit the issues to be decided

at the trial of a case and is calculated to prevent surprise.

. . . Only those issues raised by the [plaintiff] in the

latest complaint can be tried [by the trier of fact].’’

(Citations omitted; internal quotation marks omitted.)

White v. Mazda Motor of America, Inc., 313 Conn. 610,

621, 99 A.3d 1079 (2014).

In its breach of contract count against VAS, the plaintiff’s allegations specifying the manner in which VAS

allegedly breached its contracts with the plaintiff were

limited to assertions that VAS had not satisfactorily

completed aspects of the construction project, had used

inferior and unspecified materials, or had performed

defective work that would require repair or replacement. Although there was testimony at trial discussing

how change orders were handled, the plaintiff never

sought to amend his complaint to include additional

specifications of breach of contract to its count against

VAS. If the plaintiff had provided notice of this aspect

of its claim through proper pleading, VAS may have

produced additional evidence or tailored its presentation of evidence differently.

In considering a breach of contract claim, the trial

court is limited to the allegations in the complaint and

has no duty to scrutinize the parties’ agreement looking

for potential additional breaches. The court’s silence

in its memorandum of decision with respect to VAS’

alleged noncompliance with the contract’s change order

procedures is further evidence that this issue was not

properly raised to the court.

In sum, we conclude that the failure to follow change

order procedures was not raised in the operative complaint as a basis for the plaintiff’s count alleging breach

of the construction contract by VAS, nor was the issue

addressed by the trial court in rejecting that count of

the complaint. Accordingly, that issue cannot form the

basis of a claim on appeal that the court improperly

rejected the plaintiff’s allegation that VAS breached the

construction contract.

B

We next turn to the plaintiff’s claim that PH breached

its contract with the plaintiff by failing to ensure that
VAS adhered to change order and billing procedures

set forth in the construction contract. According to the

plaintiff, the trial court failed to give effect to those

contract requirements. We are not persuaded.

As a preliminary matter, we note that the plaintiff has

not claimed that the court misconstrued any particular

language in the contract that would invoke our plenary

review. The plaintiff also has failed to direct our attention to any part of the record that would support his

assertion that the trial court committed legal error by

failing to consider or give effect to any particular contract provision. To the contrary, in discussing the parties’ disputes over the procedures followed with respect

to changes to the project and the resulting change in

the contract price, the trial court specifically cited to

article seven of the contract, which, as we have indicated, contains all the relevant provisions governing

change order procedures.

We therefore construe the plaintiff’s claim as challenging the court’s rejection of his argument that PH’s

actions in handling change orders and billing procedures amounted to a material breach of its contract with

the plaintiff. It is important to reiterate that ‘‘[w]hether

there was a breach of contract is ordinarily a question

of fact. . . . We review the court’s findings of fact

under the clearly erroneous standard.’’ (Internal quotation marks omitted.) Neubig v. Luanci Construction,

LLC, 124 Conn. App. 425, 433, 4 A.3d 1273 (2010). The

court found no material breach of contract with respect

to PH while it was still on the project. Specifically,

the court found that the plaintiff had not produced an

evidentiary foundation for his claim that PH had not

consulted with him or sought his approval on change

orders. To the contrary, the court found that the evidence presented showed that such consultation in fact

had occurred. The court also determined that the plaintiff had failed to demonstrate that he was harmed by

technical problems with paperwork. Further, any failure of VAS to follow strict contract procedures after

PH left the project could not be attributed to PH because

the court found that the plaintiff ‘‘terminated Hubbard’s

services and constructively terminated Paulos’ services

by his conduct,’’ a finding that is not challenged on

appeal.

The plaintiff has not demonstrated that the court’s

factual findings are unsupported by the record nor are

we left on the basis of our review with a conviction

that a mistake has been made. We accordingly reject

his claim that the court failed to give due consideration

to the terms of the contract in determining that PH had

not breached its contract with the plaintiff regarding

its handling of change orders.

II

Next, the plaintiff claims that, in concluding that he
failed to prove that VAS breached the wall contract,

the court failed to enforce provisions of that contract

requiring VAS to construct the wall and fence combination in a particular location with certain specifications.

In response, VAS argues that we should uphold the

court’s conclusion either because the plaintiff failed to

establish proof of damages, which is a required element

of a breach of contract cause of action, or because

the court determined that the parties had modified the

contract provisions relied on by the plaintiff. We agree

with VAS that the specifications and location of the

wall were modified by subsequent agreement of the

parties, as found by the court, and that the court properly ruled in favor of VAS on that aspect of the plaintiff’s

claim of breach of contract.

The following additional facts are relevant to this

claim. VAS began work on the stone wall and fence

combination in March, 2011. Issues began to arise

regarding the construction and location of the stone

wall, which prompted an on-site meeting at the end of

March between the plaintiff, VAS, and PH. At that time,

Hubbard spray painted along the ground where he

believed the center line of the wall should run according

to the plans. Sciarretta explained to the plaintiff that if

VAS constructed the wall using Hubbard’s line, it would

involve the cutting of trees and, more importantly,

require the removal of ledge rock, each of which would

result in extra costs being added to the wall contract.

The plaintiff ‘‘eventually directed that the wall be placed

nearer the house to avoid ledge . . . and tree removal.’’

In its memorandum of decision, the court rejected

the plaintiff’s claim that VAS breached the wall contract

because the wall was not constructed on or near the

perimeter of his property along Hunting Ridge Road as

set forth in the contract and accompanying architectural drawings. The court found that VAS had constructed the wall as the plaintiff directed. Specifically,

the court found that ‘‘the repositioning of the wall was

done at [the plaintiff’s] request when he was confronted

with the potential extra cost of building the wall at a

location involving significant ledge rock and tree

removal.’’ Accordingly, any deviation from the terms of

the contract was authorized and approved by the

plaintiff.7

If parties have modified the terms of a contract, they

are contractually bound by those modified terms and,

consequently, cannot be found in breach of the original

terms. ‘‘Modification of a contract may be inferred from

the attendant circumstances and conduct of the parties.’’ Herbert S. Newman & Partners, P.C. v. CFC Construction Ltd. Partnership, 236 Conn. 750, 762, 674

A.2d 1313 (1996). ‘‘Whether the parties to a contract

intended to modify the contract is a question of fact.

. . . The resolution of conflicting factual claims falls

within the province of the trial court. . . . The trial
court’s findings are binding upon this court unless they

are clearly erroneous in light of the evidence and the

pleadings in the record as a whole. . . . We cannot

retry the facts or pass on the credibility of the witness.’’

(Citations omitted; internal quotation marks omitted.)

Id.

Here, rather than failing to enforce provisions of the

wall contract requiring VAS to construct the wall and

fence in a particular location with certain specifications, the court found that the parties had agreed to

modify the terms of the contract by moving the location

of the wall to avoid increasing the contract price, which

was an expressed concern of the plaintiff. On the basis

of our review of the record, the plaintiff has failed to

persuade us that the trial court’s finding that he agreed

to the modification of the contract and directed VAS

to build the wall where it currently stands is clearly

erroneous. We accordingly reject his claim.

III

The plaintiff next claims that, with respect to the

architectural contract between him and PH, the court

failed to enforce provisions that required PH to provide

contract administration services and to represent his

best interests with respect to the project. We disagree.

Pursuant to the architectural contract, after the

design and planning phase of the project was finished

and actual construction work had begun, PH agreed to

continue to provide services to the plaintiff for the

balance of the project. In addition to other services,

the contract provided that PH would provide ‘‘contract

administration,’’ which, as previously indicated, was

described in the agreement as ‘‘monitoring the construction process, reviewing and approving applications for

payment to the contractor, review of the final work,

preparation of a punch list to complete the work and

issuing final acceptance of the work.’’

Significantly, the contract also stated that ‘‘[t]he

scope of [PH’s] services during the actual construction

can be finalized at a future meeting once the scope is

better understood.’’ The court indicated in its decision

that this language ‘‘left some uncertainty’’ as to PH’s

contractual responsibilities during the construction

phase, particularly because no evidence was presented

that a meeting to determine the final scope of the work

ever occurred.

The plaintiff does not dispute the court’s finding that

there was no evidence of a meeting to finalize the scope

of PH’s work during construction. Nevertheless, the

plaintiff argues that the language regarding contract

administration is clear and unambiguous, and that the

court failed to give effect to that language in considering

whether PH had breached its duties to the plaintiff to

provide contract administration services.

As already discussed in part I B of this opinion, how-
ever, the court determined that there was no evidentiary

foundation for the plaintiff’s breach of contract claim

against PH, and that, prior to the plaintiff terminating

PH from the project, PH effectively had complied with

its contract administration duties by monitoring the

progress of the project, engaging in discussions on-site

regarding the construction of the rock wall, and by

reviewing and discussing with the plaintiff a proposed

change order submitted by VAS. Because the plaintiff

has not demonstrated that the court rejected his claim

on the basis of clearly erroneous factual findings, we

reject his claim.

IV

We turn next to the plaintiff’s claim that the court

improperly concluded that he had failed to demonstrate

that PH had breached the professional standard of care

applicable to architects. We do not agree.

In order to prevail on a claim of professional negligence or malpractice, a plaintiff has the burden to show

the following: ‘‘(1) a duty to conform to a professional

standard of care for the plaintiff’s protection; (2) a deviation from that standard of care; (3) injury; and (4) a

causal connection between the deviation and the

claimed injury.’’ Stuart v. Freiberg, 316 Conn. 809, 833,

116 A.3d 1195 (2015). Ordinarily, whether a professional’s conduct met the required standard of care or deviated from that standard are questions of fact to be

decided by the trier of fact. See Campbell v. Palmer,

20 Conn. App. 544, 548, 568 A.2d 1064 (1990).

To meet his burden of establishing the standard of

care applicable to architects and to show a deviation

from that standard, the plaintiff presented expert testimony from Jonathan Hodosh, a practicing architect.

His firm, George Hodosh Associates, concentrates on

residential additions and alterations. Hodosh visited the

property in March and April, 2012, and prepared a

‘‘punch list’’ of purportedly incomplete or defective

items. Hodosh’s punch list was admitted into evidence

at trial. Hodosh testified that, in his opinion, PH

breached the standard of care in three ways, by failing

(1) to advise the plaintiff adequately about installing a

radiant heat system under the flooring, (2) to design a

code-compliant pool enclosure, and (3) to design a

code-compliant cover or enclosure for the hot tub.

We agree with the court’s assessment in its memorandum of decision that the main thrust of Hodosh’s expert

testimony regarding the radiant heat system was that

PH should have brought in a mechanical engineer to

design the system and to evaluate the interactions

between it and the existing hot air system. He opined

that PH should have reconsidered use of the cherry and

oak flooring included in the initial architectural plans

in light of the decision to introduce a radiant heat system. He also was critical of the fact that PH had made
no provisions in its original plans for a protective enclosure for the hot tub and the swimming pool.

In response, PH presented its own expert, James

Lawler, also a licensed architect. Lawler contradicted

much of Hodosh’s testimony. Lawler testified that PH’s

construction drawings and specifications were both

thorough and well prepared for use by a contractor in

executing the design plan. Lawler’s professional opinion was that PH had provided the plaintiff with a high

level of service. Accordingly, the evidence before the

court regarding PH’s exercise of its professional responsibilities under the contract was conflicting. As the trier

of fact, the court had the authority to resolve this conflict as it saw fit, and was not required to credit any

part of Hodosh’s testimony. See Arroyo v. University

of Connecticut Health Center, 175 Conn. App. 493, 518,

167 A.3d 1112 (‘‘[if] expert testimony conflicts, it

becomes the function of the trier of fact to determine

credibility and, in doing so, it could believe all, some

or none of the testimony of either expert’’ [internal

quotation marks omitted]), cert. denied, 327 Conn. 973,

174 A.3d 192 (2017).

In fact, the court ultimately rejected Hodosh’s testimony, finding it unpersuasive for several reasons. First,

the court found that at the time the plaintiff made a

final decision to have radiant heat installed in the home,

PH was no longer involved with the project. The court

found that installing radiant heating was proposed in

a ‘‘VAS change order in May, 2011, [which] contain[ed]

the first cost data related to radiant heat that was forwarded by PH to [the plaintiff] for discussion and precipitated the departure of PH from the project. Prior

to that time, PH did not do any design work or coordinate with any mechanical engineer relating to radiant

heat because it was entirely uncertain from PH’s standpoint whether [the plaintiff] had a real interest in installing such a system since he had shown a strong interest

in cutting costs.’’

The court further found that Hodosh’s criticism of

PH regarding a code-compliant pool enclosure and hot

tub cover were unsupported by the evidence. The court

found that, at their very first meeting, PH had told the

plaintiff that the pool would need to have fencing

around it in order to comply with the pool code in

Greenwich. The plaintiff indicated to PH, however, that

he believed fencing around the perimeter of the property would enclose both the pool and the pond and that

the fencing needed to be in compliance with code. The

court credited Hubbard’s testimony that PH would

never have advised the plaintiff that a perimeter fence

would suffice for purposes of a pool enclosure. The

court ultimately found on the basis of the evidence

presented that ‘‘a proper pool enclosure fence was specifically not included in the scope of work [the plaintiff]

set out for PH. . . . In fact, at the end of the project,
it was VAS that apparently convinced [the plaintiff] a

proper pool enclosure was needed and had it installed.’’

With respect to the hot tub cover, the court credited

the testimony of Lawler and Sciarretta that hot tub

manufacturers provide code-compliant covers for hot

tubs, that such a cover was on the tub when it was

installed, and a code-compliant cover was on the tub

when Lawler visited the property in April, 2016.

It is clear in the present case that the court rejected

the testimony of the plaintiff’s expert and credited the

testimony of PH’s expert in finding that PH had not

breached the professional standard of care required of

architects. Our review of the record shows that there

is an evidentiary basis for the court’s decision and we

will not engage in a reweighing of the evidence or revisit

the court’s credibility determinations. Because the

plaintiff has failed to demonstrate either a legal or factual basis for disturbing the court’s decision rejecting

his claim of professional negligence by PH, we reject

his claim.

V

Finally, the plaintiff claims that the trial court made

erroneous factual findings with respect to a ‘‘punch list’’

that identified certain items of work that VAS allegedly

had left incomplete or in need of repair. Principally,

the plaintiff takes issue with the court’s references to

the monetary figures associated with the items on the

punch list as ‘‘estimates.’’ The plaintiff argues that ‘‘the

process of estimating the cost of punch list items is

well recognized in the case law as a means of putting

a dollar value to the items on a punch list’’ and that

the court based its decision ‘‘on a belief that ‘estimating’

is not an accepted methodology for pricing a punch

list.’’ We note that the plaintiff’s brief lacks clarity in

placing this claim into context; however, we construe

the claim as intended to call into doubt the court’s

calculation of damages, in particular the amount of the

retainage that the court permitted the plaintiff to keep

for incomplete or defective work. Regardless, although

the plaintiff is correct that the court rejected the costs

associated with the items on the punch list, a review

of the relevant portion of the court’s decision reveals

that it did so, not because it rejected any particular

methodology for determining damages or the use of

reasonable estimates, but because it concluded that the

punch list and the associated pricing were ‘‘rife with

errors, lack of knowledge and exaggerations.’’ Accordingly, the very premise of the plaintiff’s claim on appeal

lacks merit.

The following additional facts are relevant to the

plaintiff’s claim. The plaintiff sought to prove the

amount of his alleged damages against VAS through the

admission of a punch list that contained various items

identified by his architect expert, Hodosh, as either

being incomplete or in need of repair. In addition to
the punch list, the plaintiff entered as an exhibit at trial

the deposition transcript of an experienced contractor,

Todd Lukas. Attached as part of the transcript was

Lukas’ written report detailing his cost estimates for

completing the Hodosh punch list items. The total cost

estimated by Lukas was $563,539. Included in his calculations were costs associated with the removal of the

existing stone wall and its reconstruction at a different

location, and the removal of the entire interior hardwood floor.

The court rejected Lukas’ deposition testimony and

his estimate of costs associated with the Hodosh punch

list as unpersuasive. The court did so not because

Lukas’ costs were merely estimates and, thus, somehow

unreliable, as the plaintiff claims, but because the court

determined there was no credible evidence or economic

rationale that supported taking the corrective actions

upon which those estimates were based. For example,

because the court already had determined that the

existing wall was built at a location and in a manner

approved by the plaintiff, it naturally rejected the estimated cost of completely removing and rebuilding it.

Similarly, the court found that the plaintiff had failed

to prove that problems with portions of the existing

flooring required the complete removal of all flooring

in the home, instead crediting the testimony given by

a flooring expert that the defects complained of by the

plaintiff could be remedied by sanding and refinishing

only the affected portions of the floor. The court never

stated that estimating the cost of punch list items was

an inherently flawed methodology.8

As we have already indicated in this opinion, it was

well within the authority of the court as the trier of fact

to reject as unpersuasive Lukas’ opinion and instead to

credit the contrary testimony of other expert witnesses.

See Ferri v. Pyramid Construction Co., 186 Conn. 682,

690, 443 A.2d 478 (1982) (credibility of expert witnesses

and weight to accord their testimony within province

of trier of fact, ‘‘who is privileged to adopt whatever

testimony he reasonably believes to be credible’’ [internal quotation marks omitted]). As previously explained,

it is outside the role of this court to second-guess the

credibility determinations of the trier of fact. See, e.g.,

Computer Reporting Service, LLC v. Lovejoy & Associates, LLC, 167 Conn. App. 36, 48, 145 A.3d 266 (2016).

Because the plaintiff has failed to demonstrate that

the court’s decisions were premised upon any clearly

erroneous factual findings, we reject his claim.

The judgment is affirmed.

In this opinion the other judges concurred.

1 A ‘‘punch list’’ generally refers to a list of items that a contractor must

complete or repair before final payment on a project will become due. See

FCM Group, Inc. v. Miller, 300 Conn. 774, 783, 17 A.3d 40 (2011).

2 We note that the statement of issues in the plaintiff’s brief differs significantly and substantively from how the issues are briefed. To the extent that

the statement of issues raises additional claims that have not been briefed,
those claims are deemed abandoned. See Stamatopoulos v. ECS North

America, LLC, 172 Conn. App. 92, 96 n.3, 159 A.3d 233 (2017).

3 According to the court, the plaintiff ‘‘seemed eager to express himself

as strongly as possible throughout this project,’’ which included ‘‘some

particularly aggressive, bellicose and unpleasant e-mails authored by the

plaintiff.’’ The court set forth the following facts underlying the conflict

between the plaintiff and PH: ‘‘Serious conflicts in connection with the home

renovation project arose with change order requests submitted by VAS in

May, 2011. . . . VAS submitted suggested change orders which included

proposed pricing for the addition of radiant heating in the house. . . . A

revised request by VAS included a ‘log starter’ for indoor and outdoor

fireplaces . . . and one concerning the stone wall. The largest item was the

addition of radiant heating, about $28,000. PH e-mailed all this information

to [the plaintiff] with the comment that PH had reviewed it and was prepared

to discuss the issues with [the plaintiff] at an upcoming meeting. . . . After

receiving a negative response from [the plaintiff], Paulos replied that PH

did not approve or recommend the change order request from VAS and

suggested a ‘private discussion’ with [the plaintiff]. . . . At that point, on

May 26, 2011, at 11:39 p.m., [the] plaintiff sent a message to Paulos,

demeaning Paulos’ father-in-law, calling him a ‘scumbag fraud,’ attacking

VAS’ pricing, and stating, ‘[t]he price is going to be what I want or we settle

in court and lawsuits will be in millions. Game over. Fight back? Ask Maria

[Claudio, the plaintiff’s assistant] what will happen. I do not lose EVER.’

. . .’’

‘‘Hubbard and Paulos testified they were both shocked when they read

[the plaintiff’s] vituperative and obscene middle of the night e-mail. . . .

Paulos, who read the message the next morning while preparing his children

for school, was also nervous about his family. . . . Hubbard and Paulos

decided to contact their insurance company and attorney, and Paulos had

no further contact with [the plaintiff]; Paulos testified that from that point

‘I was not working for [the plaintiff].’ . . . Subsequently, a letter was prepared by PH terminating its services for [the plaintiff], but it was not sent,

because on June 2, 2011, [the plaintiff] e-mailed Hubbard that Hubbard’s

services were terminated, and incongruously adding that ‘[Paulos] was who

I hired and prefer to have solely involved.’ . . . With Hubbard fired and

Paulos avoiding all contact with [the plaintiff], a formal letter of PH’s withdrawal was sent to [the plaintiff’s] attorney on June 3, [2011].’’

4 VAS later amended its counterclaim to add additional counts seeking

to recover damages under alternative theories of unjust enrichment and

quantum meruit.

5 As the court aptly explained in its memorandum of decision, ‘‘[a] change

order is a means to increase or decrease the contracted price for construction

work caused by a change in the scope of work, in materials, the time

required, or otherwise.’’

6 This claim with respect to PH is closely related to the plaintiff’s additional

claim, addressed in part III of this opinion, that PH breached its agreement

to provide contract administration services, which the plaintiff argues placed

a duty on PH to oversee the project and to protect the plaintiff’s fiduciary interests.

7 The court also rejected the plaintiff’s claim that the repositioning of the

wall resulted in $305,000 in damages, which his expert had estimated to be

the cost of removing and replacing the stone wall and fence. The court

indicated: ‘‘There is no evidence or economic rationale to support incurring

the costs of removing and rebuilding the stone wall, even if the court had

not found its location to be the result of [the plaintiff’s] decisions.’’ (Emphasis added.)

8 The court did indicate that it believed the plaintiff had utilized ‘‘a makeshift method of proving damages’’; (emphasis added); however, we do not

agree with the plaintiff that this was intended to suggest that it generally

was impermissible to use estimates to assign value to punch list items.