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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 Purpura, 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 complaint 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, rendered 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 construction contract (contract) with the state to build the new

technology center. The plaintiff, a Connecticut corporation that fabricates and installs glass and curtain walls,

entered into a subcontract with the contractor to provide 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 subcontract.

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 subcontract 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 contractorfor 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 allegations 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 demonstrates 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 contractor’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 reasoning 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 proposal 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, LawrenceBrunoli, 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 responsibility and made payment. Any changes to the subcontract were to be executed in writing or by written

change order from the contractor. The plaintiff’s subcontract 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 curtain wall to the pedestrian bridge and directed the plaintiff 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

orfive other‘‘jobs’’ and that the project was ofrelatively

low importance to the plaintiff. The plaintiff generally

assigned only two to four laborers to work on the project, 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 information 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 contractor’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 paragraph 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 ofits glass. On December 30, 2008, the representative certified under oath that 99 percent of the plaintiff’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 completed. The last day the plaintiff worked on the project

was May 7, 2009. The plaintiff filed a certificate of substantial 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 presented 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 distinguish 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 contended that the damages it suffered arose, not from a

delay, but from the contractor’s hindrance and interference.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, therefore, 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 contractor, 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 plaintiff 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 instructions, construction change directives,requests forinformation 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 contractor countered that delays are inevitable on a construction 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 persuasive. The plaintiff called Joel Baranowski, the state’s

project manager,to testify on its behalf, but under crossexamination, 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 evidence 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 memorandum of decision, the court stated that it had

addressed the plaintiff’s claims for retainage in adjudicating 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 violated § 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 discretion 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 opinion; we conclude that the plaintiff has failed to demonstrate that it was harmed.

We begin with the standard of review applicable to

evidentiary rulings. ‘‘[T]he trial court has broad discretion 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 reasonable presumption in favor of upholding the trial court’s

ruling, and only upset it for a manifest abuse of discretion. . . . Moreover, evidentiary rulings will be overturned on appeal only where there was an abuse of

discretion and a showing by the [appellant] of substantial 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 verdict 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 precluding him from testifying as to his observations and perceptions 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 Cianfaglione 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 scheduling expert, to review change orders, permits, supplemental instructions, and schedules during the course

of the project. He also met with the contractor on

numerous occasions. Cianfaglione authored and submitted 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 subpoena 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 protective 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 deposition.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 putting 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 plaintiff identified Cianfaglione as a fact witness and marked

for identification several reports Cianfaglione had prepared 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 prejudiced.

On November 21, 2014, the plaintiff called Cianfaglione 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 Cianfaglione an expert, the plaintiff had disclosed Cianfaglione 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 testimony, 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 conversations with the contractor, and (2) would not permit

the plaintiff to put ‘‘instrumental evidence’’ into evidence. 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 orthe 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 judgment 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 provides: ‘‘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 permitted 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 overruled 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 testimony would have shown that the contractor, not the

state or architect, hindered and interfered with the

plaintiff’s ability to perform. That representation, however, is a legal conclusion, not the facts to which Cianfaglione 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 discretion when it denied its oral motion to disclose Cianfaglione 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 Cianfaglione 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 sanctions on a party for failure to comply with the requirements 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 consequence thereof on the sanctioned party’s ability to prosecute 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 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

testimony, in accordance with this section. The requirements 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 testifying 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 discretion 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 discretion, 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 introducing any evidence, documents or testimony, in support 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 September, 2010, and the responses the contractor provided 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 documentation, 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, including 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 preferred 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 contractor 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 deductions 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 [contractor] to put up the evidence, whatever is from his personal 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 contractor 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 represent’’ 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 interrogatories, which includes a full accounting of all of the deletions 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 addition, she represented that counsel for the plaintiff visited her office and ‘‘tagged’’ the disclosure.

Counsel for the plaintiff reviewed what the contractor’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 information,the plaintiff neverreceived it.Because the plaintiff never received the information, it filed the motion

in limine. Overthe plaintiff’s objection,the court permitted Neagle to testify as to specific setoffs and/or deductions 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 ofreversal

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 contractor 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 plaintiff 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 concerns the deductions the contractor took from the subcontract 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 Ceilings, 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 interference. The court found that the plaintiff ‘‘did not man

the job properly’’ and that Berkun, the plaintiff’s president, 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 sophisticated commercial entities and concluded that the language 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 plaintiffrelies on CentralCeilings,Inc.,

to support its claim that a delay is an action that prevents 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 plaintiff claims happened in the present case. We are not persuaded.

We first examine the allegations of the plaintiff’s complaint to determine the basis of its claim. ‘‘The interpretation of pleadings is always a question of law for the

court. . . . In addition, [t]he allegations of the complaint 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 substantial 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 instructions, construction change directives,requests forinformation, 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 aforementioned delays, [the plaintiff‘s] actual period of performance ran from January 25, 2007 to July 23, 2009, more

than sixteen (16) months longer than originally scheduled. . . . 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 language tracks the language of paragraph V of the subcontract, which also contains the provision that the plaintiff

agrees not to assess any delay damages or claims

against the contractor. The plaintiff’s complaint contains no specific factual allegations as to how the contractor 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 damages.’’ (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 Suffolk 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 matter 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 contractually-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 damages, as the principal reason the project was not completed 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 distinguishable from the present case, and the trial court

properly declined to adopt it in adjudicating the present 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, automotive, 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 Massachusetts 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 testimony, 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 counsel 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 proceeding?

‘‘[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 [contractor’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 conversations 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 personally 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 compliance 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, obviously, 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 subcontract.