****************************************************** The ‘‘officially released’’ date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the ‘‘officially released’’ date appearing in the opinion. In no event will any such motions be accepted before the ‘‘officially released’’ date. All opinions are subjectto modification andtechnical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or ConnecticutAppellate Reports, the latest print version is to be considered authoritative. The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and inthe Connecticut LawJournal andboundvolumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut.

******************************************************J. WM. FOLEY, INC. v. THE UNITED

ILLUMINATING COMPANY (AC 36194)
Gruendel, Mullins and Mihalakos, Js. Argued November 19, 2014—officially released June 23, 2015 (Appeal from Superior Court, judicial district of Hartford, Complex Litigation Docket, Bright, J.)
IraS. Sacks, with whom were GerardP. Brady, and,
on the brief, Alan J. Sobol and Paul G. Ryan, for the appellant (plaintiff).JonathanM. Freiman, with whom were TimothyA. Diemand and Ivana D. Greco, for the appellee (defendant).Opinion MULLINS, J. The plaintiff, J. Wm. Foley, Inc. (Foley), appeals from the judgment of the trial court, after a bench trial, rendered in part in favor of the defendant, The United Illuminating Company (United). Foley claims that the court improperly: (1) denied its claim for compensation arising from delays in a construction project in which Foley served as a contractor; (2) concludedthatitwasnotentitledtoa 10percentmarkup on United’ssettlementpaymentsto Foley’ssubcontractors pursuantto amarkup provision inthe parties’ contract; (3) denied its claims for interest; (4) rejected its tort claims; and (5) denied its request for leave to file a fifth amended complaint. We affirm the judgment of the trial court. The relevantfacts foundbythe courtin its memorandum of decision are as follows. To meet the growing energy demands of southwest Connecticut, United undertook the construction of a sixty-nine mile power transmission line. As a part of that endeavor, United
was requiredto install anundergroundpowertransmissionline overasixmile stretch oflandbetween Bridgeport and Stratford (project). ‘‘Doing so was not simply
a matter of digging a single six mile trench through open land, laying a six mile transmission line in the trench, and then filling it in. [United’s] route passed through congested residential and commercial areas, and included work on public roads. In addition, to protect the transmission line, concrete would be poured into the trench to encase the line in a ‘duct bank.’ Finally, the transmissionline wouldbe laidin segments and connected to other segments along the length of the duct banks. These connection points are known as splice chambers.

. . . ‘‘To complete the work required on the project, [United] sought bids from qualified contractors who would be responsible for digging the trenches, laying the transmission line, installing the duct banks and splice chambers, laying the transmission line into the splice chambers and filling in the trenches. On or about January 25, 2006, Foley submitted a bid of $43,344,000 to do allofthiswork, exceptforsupplyingandinstalling the transmission line.

. . . ‘‘In submitting this bid, Foley considered the drawings [United] gave to potential bidders as part of the bid package. These drawings showed various obstructions a contractor should expect to encounter when doingthetrenchingandlayingworkcalledforbythebid request. Among these obstructions were other utilities alreadyintheareawheretheworkwastobeperformed. [United] notified Foleythatitwas the lowbidder onthe contract, andFoleyand [United] thenbegannegotiating the terms of a contract.’’
On or about September 29, 2006, United and Foleyentered into a contract for Foley’s work on the project (contract). The contract reflected an understanding by the parties that Foley could encounter site conditions notidentified inthe drawings. Specifically, the contract provided that ‘‘in the event that [Foley] encounters unknown or misidentified site conditions whose presence will cause a change in [Foley’s] scope of work or delay in the critical path’’ Foley would be entitled to additional compensation. ‘‘Critical path’’ was defined in the contract as ‘‘the particular sequence of tasks, activities, and/or other [m]ilestones associated with performanceofthe [w]orkwhichmustbeaccomplished
as scheduled in order for the [w]ork and the [p]roject
as a whole to be completed on time and in accordance withthe [c]ontract [d]ocuments, includingthe [p]roject [s]chedule.’’1 The contract included a lump sum contract price of $53,348,057.
Article 6 of the contract outlined a mechanism for compensating Foley for the expenses that it incurred from unexpected obstacles. When Foley sought additional compensation, § 6.4 (a) required that Foley submit to United a ‘‘[c]hange [o]rder’’ request. The change order request had to include ‘‘an equitable schedule and/or price adjustment to compensate [Foley] for the actual, demonstrable delay in the [c]ritical [p]ath and/
or the cost of [Foley’s] additional [w]ork.’’ Section 6.1 (d) provided that claims for additional compensation would be ‘‘irrevocably waived and released’’ unless Foley submitted its change order request within ten business days ofthe event or decision giving rise to the claim (ten day rule). ‘‘Pursuant to § 6.1 (e), [United] then had ten business days to respond to Foley’s proposal.

. . . Pursuant to § 6.3, if [United] agreed with the proposal, a change order would issue.

. . . Thus, based on the structure of the agreement, the parties

. . . intended that any price adjustments related to delay were to be resolved as part ofthe above process and addressed on a change order by change order basis.’’
UnitedhiredBlack&Veatchto serve asits consultant on, and coordinator of, the project.2 Foley hired as subcontractors Manafort Brothers, Inc. (Manafort) and A.M. Rizzo Electrical Contractors, Inc. (Rizzo). Manafort dug the trenches and installed the duct banks and splice chambers. Rizzo installed the piping in the trenchesthatwouldincludethetransmissionline. After Rizzo installed the piping, Manafort then refilled the trenches. According to their anticipated schedule, the parties expected the project to take approximately one year to complete. Foley was to commence construction in October, 2006, andhaveconstructionsubstantiallycompleted3 by November, 2007. Foley did not notify United that the project was substantially complete, however, until November, 2008, approximately one year aftertheexpected completion date.
There were many reasons for delays to the project. On the one hand, United was responsible for some of those reasons, which included: failing to secure necessary easements; postponing work on the project due to the construction ofa separate transmission line; tardily remediating soil contamination; and failing to resolve
a municipal zoning dispute in a timely manner. On the other hand, various performance and workmanship issues by Foley and its subcontractors also slowed the project. For example, Manafort’s use of trench boxes that were ill suited for the densely populated urban conditions encountered during construction caused delays to the project. ‘‘By far though, the biggest obstacles the parties encountered on the project were unknown underground utilities and other conditions [that] were not shown on the project drawings. Foley and Manafort started encountering these obstacles as early as January, 2007. They continued to encounter them throughoutvirtuallytheentireproject. Theunknownconditions encountered included everything from abandoned water pipes ranging in size up to 60 inches in diameter located in positions different than what was shown on the project drawings; gas lines and other underground utilities not shown on the drawings at all; unexpected amounts of rock; a culvert that was missing one side that everyonethoughtwasthere; and soil contaminated byPCBs.4 Overall, while the number ofexpectedunderground interferences shown in the project drawings
was 415, overthe life ofthe project Foley and Manafort encountered 1209.’’ (Footnote added.)
Almost immediately after construction began, Foley encountered undisclosed obstacles and, pursuant to § 6.4 (a) of the contract, requested additional compensation for the resulting costs by submitting to United change orderrequests. ‘‘Bythe summer of2007though, Foley and [United] were in dispute over what level of detail needed to be provided in the [change order requests]. Given the number of obstacles and issues it
was encountering, Foleythoughtthatitwasimpractical foritto identifythe criticalpathimpact associatedwith each submittal it made. Consequently, it proposed [to United] that the parties resolve the direct cost part of the [changeorderrequests] whenpresentedandreserve for later any resolution of critical path impact.’’
In particular, on July 23, 2007, Foley proposed altering the procedures set forth in § 6.4 (a), whereby Foley would be permitted to include in its change order requests onlythe direct costs associated with an obstacle, while reserving to the parties ‘‘all rights, remedies and defenses’’ concerning critical path delays. On August3, 2007, however, United declinedthatproposal, and informed Foley that claims for additional compensation must complywith article 6 ofthe contract. Uponreceipt ofUnited’s refusal, Foleyreiteratedto Manafort that change order requests must include ‘‘a cost and
resourceloadedschedule showingimpacttothe critical path,’’ that ‘‘[a]ll claims musthave all ofthe information shown in Article 6,’’ and that ‘‘the time limitations outlined in Article 6 are in effect.’’
On August 15, 2007, Manafort informed Foley that it believed that United’s requirements were impractical, and inquired whether, after submitting change order requests, it should continue work or halt construction until United issued a change order. OnAugust 20, 2007, Foley replied: ‘‘[United] is not waiving the time limits for submitting a claim as contained in the [c]ontract, Article 6.

. . . Please also be reminded that requests for adjustments to the critical path schedule affecting your subcontract work must be received in time for Foleyto make anynecessaryadjustments to the overall critical path schedule and submit its proposal to [United] for such change in the work.’’ (Emphasis in original.) That same day, Foley forwarded Manafort’s inquiry to United, and submitted another proposal to adjust the change order process. Foley suggested that United issue change orders in two parts: the first part wouldpertainto increased direct costs; the secondpart would address adjustments for delays in the critical path.
In aletterdatedAugust28, 2007 (August, 2007letter), United represented to Foley that it would modify the change order process, but in a manner different from what Foley had proposed. Under the adjusted procedure, United firstwould negotiate the direct costs associated with the obstacle, and then United and Foley would negotiate ‘‘the number ofdays delay to the crew

. . . .’’ United clarified, however, that this modification pertained only to crew delays, and not critical path delays.5 Specifically, United explained: ‘‘When the negotiations are complete, a change order will be drafted in the agreed dollar amount (Direct Costs). The change orderwillalsolistthe agreedamountofcrew-daydelay; not schedule delay

. The idea is to keep the crew delays with the appropriate change order event. The listing of the crew-day delay will not signify that [United] has waived any provision of the contract. A day of delay to a particular crew shall not be understood as being equal to a day of delay of the project schedule [a critical path delay]. These change orders will not affect either party’s rights or liabilities for delay and impact costs, except that the change order will have settled the issue of how many days delay was experienced by the impacted crew only.’’ (Emphasis added.)
As construction progressed, Foley continued to encounterunanticipated obstacles and, inturn, submitted to United change order requests for direct costs and crew delays. United continued to issue changeordersthatprovidedadditionalcompensationto Foley.6 In spite of that, however, ‘‘Foley never, during the
course of the project, submitted a critical path delay analysis orclaimwithany [change orderrequest]. While itdidregularlysubmitupdatesto criticalpathschedules

. . . those schedules did not assign responsibility for any particular delay to any particular event or party.’’
On October 10, 2008, as work on the project was in its final stages, Foley, for the first time, submitted to United a claim for a delay ofthe project, a critical path delay. This claim, however, did not include a critical path delay analysis. In its submission, ‘‘Foley basically claimed that the project took thirteen months longer than expected, the entire delay was [United’s] fault, and, as a result, Foley had additional overhead and related costs of $6,174,122.45 for which [United] was responsible.

. . . While Foley attached documents in support ofits claimed increased costs, it didnot submit
a critical path delay analysis with its claim.’’
United refused to compensate Foley for the delay claim. Thereafter, Foley filed the present action seeking, inter alia, compensation for ‘‘delays in the critical path caused by unknown or misidentified site conditions, and causedbythe extra, additional, andimpacted work ordered, directed, or otherwise required on the project.’’7
In 2011, Foley submitted to United two additional versions of its delay claim, neither of which included
a critical path delay analysis. Again, ‘‘Foley had taken
a ‘global cost approach’ to the claim.

. . . Essentially, Foley was claiming that all delays on the project were clearly [United’s] responsibilityandithadtoprovenothing more than the amount of costs it incurred because the project took longer to complete than planned.’’
In June, 2012, Foley, for the first time, presented United with atime impact analysis pertaining to delays in the critical path. This analysis was prepared by Riverso Associates, Foley’s scheduling consultant during theproject. In connectionwiththis report, ‘‘[o]nAugust 10, 2012, approximately one month before the start of trial, Foley submitted a fourth version of its [delay] claim to [United]. The amount of this claim was $4,854,206.93.’’ During trial, however, Foley’s primary witness on damages acknowledged errors in Foley’s delay claim, and Foley reduced the amount that it was claiming to $4,691,882.44.
On September 3, 2013, after a bench trial, the court, Bright, J ., issuedamemorandum ofdecision. The court concluded that Foley had ‘‘irrevocably waived and released’’ its delay claim because it had failed to timely submit its claim to United. The court further concluded that, even ifnotice had been timely, Foley did not demonstrate that the delays forwhich United allegedly was responsible delayed the critical path of the project.Accordingly, the court rendered judgment in favor of United on the breach of contract count regarding the delay claim.
The court, additionally, rejected Foley’s tort claims, the breach of the implied covenant of good faith and fair dealing claim, and its claim that United violated the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110aet seq. The courtalso denied Foley’s claim to recoup 10 percent of the settlement payments made by United to Foley’s subcontractors, andrejected Foley’s claimforunanticipatedlegal costs. The court found in Foley’s favor, however, on three change order requests for additional direct costs that Foley claimed United wrongfully had rejected, and awarded Foley $1,051,143.30. The court, nonetheless, rejected Foley’s claim for statutory interest on all amounts unpaid by United.8 This appeal followed.
Additional facts and procedural history will be set forth as necessary. I

DELAY CLAIM Foley first claims that the court improperly denied its delay claim. Specifically, Foley contends that the court incorrectly determined that: (A) the ten day rule in the contract applied to critical path delay claims; and (B) Foley did not timely submit its critical path delayclaimtoUnitedand, therefore, irrevocablywaived and released its delay claim.9 We are not persuaded. Initially, we set forth our standard ofreview. Foley’s delay claim sounds in breach of contract. ‘‘It is well settled that in order to recover for breach of contract,
aplaintiffmustprove that he or she sustained damages
as a direct and proximate result of the defendant’s breach.’’ Warning Lights & Scaffold Service, Inc

. v. O & G Industries, Inc., 102 Conn. App. 267, 271, 925 A.2d 359 (2007). ‘‘[W]hether there was a breach ofcontract is ordinarily a question of fact.

. . . Our review, therefore, is under the clearly erroneous standard.’’ (Internal quotation marks omitted.) SmithfieldAssociates, LLC v. Tolland Bank, 86 Conn. App. 14, 21, 860 A.2d 738 (2004), cert. denied, 273 Conn. 901, 867 A.2d 839 (2005).
A

Applicability of Ten Day Rule First, Foley claims that the ten day rule did not apply to the delay claim. We are not persuaded. Foley’s claim requires us to construe the meaning of the contract. In construing a contract, ‘‘[t]he contract mustbe viewed in its entirety, with eachprovision read in light ofthe otherprovisions

. . . and everyprovision must be given effect ifit is possible to do so.’’ (Citation omitted.) UnitedIlluminatingCo

.v. Wisvest-Connecti-cut, LLC, 259 Conn. 665, 671, 791 A.2d 546 (2002). ‘‘Although ordinarily the question of contract interpretation, being a question ofthe parties’ intent, is a question of fact

. . . [when, like here] there is definitive contractlanguage,thedeterminationofwhattheparties intended by their

. . . commitments is a question of law [overwhich ourreview is plenary].’’ (Citation omitted; internalquotationmarks omitted.)Bristolv. Ocean State Job Lot Stores ofConnecticut, Inc., 284 Conn. 1, 7, 931 A.2d 837 (2007). Here, reading the contract provisions as awhole and in light of each other, as we must, the language of the contractunambiguouslydemonstratesthatcriticalpath delay claims are subject to the ten day rule. Indeed, § 6.4 (a) of the contract provided that United would compensate Foley for ‘‘the actual, demonstrable delay in the [c]ritical [p]ath.’’ In order to be entitled to that compensation, however, the contract specifically providedthat, afterencounteringunknownormisidentified site conditions, Foley had ten business days within which to submit a claim for compensation arising from delays in the critical path, or that claim would ‘‘be irrevocably waived and released

. . . .’’ The ten day notice requirement pertained to ‘‘[a]ny [c]laims by [Foley] for increased compensation or extension of completion deadlines

. . . .’’ Critically, § 6.4 (b) providedthatthe ‘‘[d]iscovery ofunknown ormisidentified site conditions shall not relieve [Foley] of any of its obligations under this [a]greement.’’ Consequently, it is clearthat the language ofthe contract provided that the ten day notice rule applied to any claims for which Foley sought additional compensation as a result ofthe extension of completion deadlines. This obviously encompassed both unknown or misidentified site conditions as well as anything else that Foley believed caused a demonstrable delay in the critical path and impacted the completion date of the project.10 Thus, the court correctly determined that Foley’s delay claim was subject to the ten day rule. Given that we have determined that the court properly applied the ten day rule to the delay claim, it is evident that Foley did not timely submit its claim for compensation arising from delays in the critical path. Indeed, the courtdeterminedthatFoleyfailedto submit
a critical path delay claim that included an analysis identifying the impact of individual delays on the project’s final completion date until June, 2012, when it submitted an analysis prepared by Riverso Associates. Thissubmissionwasmorethanthreeandone-halfyears after construction had been completed. Thus, the court properly concluded that Foley’s untimely ‘‘claim for delay damages [was] irrevocablywaived and released.’’
B
Waiver of Ten Day RuleNext, Foley claims that, even if the ten day rule did apply to the delay claim, it had submitted a valid delay claim because United waived its right to receive notice within ten days. Specifically, Foley argues that United relinquished its right to notice under the ten day rule because United’s August, 2007 letter was tantamount to awaiverofthatnoticeprovision. We rejectthis claim because the record demonstrates, consistent with the court’sconclusion,thatUnited‘‘neverwaivedthenotice requirements of article 6 as they relate to damages resulting from delays to the critical path.’’ ‘‘Waiver involves an intentional relinquishment of a known right.

. . . There cannot be a finding of waiver unless the party has both knowledge of the existence of the right and intention to relinquish it.

. . . Waiver may be inferred from the circumstances if it is reasonable so to do.

. . . Whether conduct constitutes a waiver is a question of fact.

. . . The issue of waiver isaquestionoffact, dependentonallofthesurrounding circumstances and the testimony of the parties. (Citation omitted; internal quotation marks omitted.) Roy v. Metropolitan Property & Casualty Ins. Co., 98 Conn. App. 528, 532, 909 A.2d 980 (2006). Being a question of fact, afinding ofwaiver orlackthereofis subjectto the clearly erroneous standard of review. See Smithfield Associates, LLC v. Tolland Bank, supra, 86 Conn. App. 21. Foley’s claim that United waived the ten day rule lacks merit. To support its claim that United waived the ten day rule, Foley relies on the August, 2007 letter written by United in response to a request by Foley that the ten day rule not apply to critical path delay claims. Foley claims that, in the letter, United agreed that, henceforth, Foleywouldnotberequiredtoinclude critical path delay claims in change order requests, but that Foley’s rights would be reserved to submit critical path delay claims after the ten day notice period had elapsed. We disagree.
In its memorandum of decision, the court found the following: ‘‘[The] language [in the August, 2007 letter] in no way gave Foley the relief it was seeking from article 6 of the contract. To the contrary, it confirmed that [United] was, in fact, not waiving any provision of the contract. It also made clearthat resolution ofdirect costs and crew delays had nothing to do with whether there was a delay in the critical path. Finally, it confirmed that the procedure outlined would not affect either party’s rights for delay and impact costs. Any rights Foley had to such costs were predicated on it meeting its obligations under the contract. Similarly, [United] retained the rights it had regarding such delay claims, including to a timely submittal.’’ The court’s conclusions are supported by the record.
In the August, 2007 letter, United agreed to a proce-dure for issuing change orders that would compensate Foley for direct costs and crew delays. The letter clarified, however, that crew delays were distinct from critical path delays, and that United did not forfeit any contractual right, including the right to timely notice of delay claims. Specifically, the letter provided: ‘‘The listing of the crew-day delay will not signify that [United] has waived any provision of the contract. A dayofdelaytoaparticularcrewshallnotbeunderstood
as being equal to a day of delay to the project schedule.’’11 This language demonstrates that, although United agreed to modify the process by which it issued change orders arising from crew delays, that modification would not affect the way United processed critical path delay claims. Indeed, United specified in the letter that crew delays were different from critical path delays, and that its contractual rights were reserved regarding critical path delays. Therefore, our review of the August, 2007 letter reveals that its language supported the court’s conclusionthat United did not waive the ten day rule.12
The court’s determination that United did not waive the ten day rule is buttressed further by the conduct ofUnitedandFoleyinthe monthsfollowingtheAugust, 2007 letter. In response to a request by Foley for additionalcompensation, Unitedsubmittedaletterto Foley, dated November 27, 2007, reiterating its expectation that critical path delay claims would be submitted with change orderrequests. Inthat letter, Unitedwrote: ‘‘We acknowledge thatFoleyhas made anumberofrequests to have [United] recognize the impact to various crews as a result of differing site conditions, but Foley has
never submitted a Change Proposal that includes an impacted criticalpath as calledfor by the [contract].’’ (Emphasis added.) Foley, likewise, demonstratedthatit understoodthat United did not waive the ten day rule. In a letter that it submitted to Manafort, dated December 10, 2007, Foley demanded that its subcontractor ‘‘immediately produce an impacted schedule showing which delays and impacts you now believe are the responsibility of [United], Foley, or [Rizzo]’’ so that Foley could make
a claim on Manafort’s behalf. Additionally, Foley insisted that, in providing that informationtoFoley, Manafort‘‘carefullyreviewArticle 11 of the [subcontract between Foley and Manafort] entitled ‘Delays.’ ’’ Article 11 of the subcontract provided in relevant part that Foley would forward to United ‘‘reasonable claims as may be prepared by [Manafort] in accordance with the terms of the [contract] with respect to the delays

. . . .’’ Foley, thus, demanded that Manafort provide a critical path delay claim to comply with article 6 of Foley’s contract with United. The language in the August, 2007 letter and the subsequent conduct of the parties, thus, supports thecourt’s conclusions that United did not waive the ten day rule, and that Foley ‘‘irrevocably waived and released’’ its untimely submitted delay claim.13
II 10 PERCENT MARKUP Next, Foley claims that the court improperly concluded that it was not entitled to a 10 percent markup
on settlement payments that United made to Foley’s subcontractors pursuant to a markup provision of the contract. Foley argues that the court’s determination is at odds with the plain language of the contract.14 We disagree.
The following facts and procedural history are relevantto this claim. The trial courtfoundthat ‘‘provisions in the Manafort and Rizzo subcontracts allowed them to be compensatedfor changed conditionsbyfollowing the procedures outlined in article 6 of the contract.’’ Thus, after encountering unexpected conditions that allegedly delayed or increased the scope oftheir work, pursuant to the subcontract, Manafort and Rizzo submittedchange orderrequeststo Foley. Foleyforwarded the requests to United. ‘‘Under [Foley’s contract with United] Foley was entitled to charge a 10 percent markup on change order requests submitted by ManafortandRizzo.’’ Specifically, thebidproposalthatFoley submitted to United (markup agreement) provided for
a 10 percent markup ‘‘[i]f [c]ost [p]lus work is encountered on this projectthat requires materials, equipment and subcontractors not shown in [the bid proposal’s] schedules

. . . .’’ ‘‘Foley regularly, although not always,’’ submitted to United requests for those markups.
Aftertheprojectwas completed, Manafortand Rizzo, respectively, filed legal actions against United and Foley, inwhichtheysoughtunreimbursed construction expenses. Their claims were not limited, however, to change order requests. They also alleged tort and CUTPA claims. ‘‘Thereafter, [United] mediated the subcontractors’ claims directly with Manafort and Rizzo. Foley was invited to attend the mediation, but chose not to [attend]. [United] settled Manafort’s claim for $9,675,000 and Rizzo’s claim for $200,000.’’
At trial, Foley claimed that it was entitled to a 10 percentmarkup onthesettlementpaymentspursuantto themarkupagreement. The courtdetermined, however, that‘‘the [c]ontract [was] silent’’ onwhetherthemarkup encompassed the settlement payments. The court observed that ‘‘[p]arties often settle for a variety of reasons,’’ andstatedthatitwould ‘‘notattemptto divine the reasonsbehind [United’s] decisionstopayManafort and Rizzo what it did.’’ The court noted that it was ‘‘clear

. . . that the settlement was not an admission ofliability.’’ It concluded that ‘‘Foley [was] not entitled to a 10 percent markup.’’ We discern no error in thisruling.
The markup agreementprovidedthat Foleywas entitled to a markup of 10 percent for ‘‘[c]ost [p]lus work

. . . that require[d]

. . . subcontractors not shown in [the bid proposal’s] schedules

. . . .’’ There is no dispute that, pursuantto this provision, Foleywas entitled to a markup on change order requests submitted by Manafort and Rizzo. This provision does not state that settlement payments also are encompassed within the markup agreement. ‘‘Aterm not expresslyincludedwill not be read into a contract unless it arises by necessary implicationfromtheprovisions oftheinstrument.’’ Texaco, Inc

. v. Rogow, 150 Conn. 401, 408, 190 A.2d 48 (1963). Indeed, the agreement included no language indicatingthatFoleywas entitledto amarkup on settlement payments. There is also nothing in the provisions ofthe contractthat necessarily implythat Foley is entitled to a markup on settlement payments. We will not read such language into the contract.15 Consequently, therecordsupportsthecourt’sdeterminationthatFoley
was not entitled to a 10 percent markup on settlement payments that United made to Foley’s subcontractors.
III INTEREST PAYMENTS Foley claims that the court’s decisions to deny its claims for interest were improper. Specifically, Foley maintains that the court should have determined (1) that it was entitled to prejudgment interest (prejudgment interest claim), and (2) that it was entitled to interest on United’s late payment of contract retainage (retainage interest claim). We disagree. Each claim will be addressed in turn. A

Prejudgment Interest Claim First, Foley contends that the court improperly rejected its claim for prejudgment interest pursuant to General Statutes § 37-3a.16 We are not persuaded.
The following additional facts are relevant to our consideration ofthis claim. At trial, Foley sought ‘‘prejudgment interest pursuant to

. . . § 37-3a on all amounts unpaid by [United].’’ The court denied that request. The court determinedthat, pursuantto articles 8and 17ofthe contract, United ‘‘hadthe rightto dispute each ofthe issues on which it withheld payment.’’ The court additionally observed that ‘‘on most issues, the court has agreed with [United],’’ and that, even on the issues in which it found in Foley’s favor, ‘‘there was a good faith basis for [United’s] position.’’ Finally, the court determined that, ‘‘apparently to gain some perceived advantage in this litigation,’’ Foley had refused United’s offer of full payment to resolve a dispute on a particular change order to which United conceded Foleywas entitled. The court, thus, stated that it wouldnot award Foley prejudgment interest because it was ‘‘difficult for the court to award a party interest when it engages in such gamesmanship.’’ Foleyarguesthat‘‘the courtmischaracterizedFoley’s actions and failedto give properweightto the evidence demonstrating [United’s] wrongful conduct.’’ We disagree. ‘‘[T]he decision of whether to grant interest under § 37-3a is primarily an equitable determination and a matter lying within the discretion ofthe trial court.

. . . In determining whether the trial court has abused its discretion, we must make every reasonable presumption in favor ofthe correctness ofits action.

. . . [T]he court’s determination regarding the award of interest shouldbe made inview ofthe demands ofjustice rather than through the application of any arbitrary rule.

. . . Whether interest may be awarded depends on whether the money involved is payable

. . . and [considerations such as] whether the detention of the money is
or is not wrongful under the circumstances.’’ (Citation omitted; internalquotationmarksomitted.)MedValUSA HealthPrograms, Inc

. v.MemberWorks, Inc., 273 Conn. 634, 666, 872 A.2d 423, cert. denied sub nom. Vertrue, Inc. v.MedValUSAHealthPrograms, Inc., 546U.S. 960, 126 S. Ct. 479, 163 L. Ed. 2d 263 (2005); see alsoDiLieto

v. County Obstetrics & Gynecology Group, P.C., 310 Conn. 38, 53–54 n.13, 74 A.3d 1212 (2013).
Inthepresentcase, the court’sconclusionthatUnited hadacontractualandgoodfaithbasisto oppose Foley’s claims and withhold payment was supported by the record.Articles8and 17ofthe contractprovidedUnited the right to dispute claims for compensation made by Foley. Moreover, Foley does not dispute that United fulfilled hundreds of its requests for compensation for direct costs during the course of the project. As the court found, during construction ‘‘Foley submitted 492 [change order requests], which resulted in 294 change orders being issued.’’17 Indeed, the court observed that ‘‘ofthe [change order requests] submitted, only twelve that seek additional direct costs were at issue by the time this case went to trial.’’18
At trial, United prevailed on the majority of the disputes upon which Foley alleged that United wrongfully withheld money. Although Foley now asserts that United, and not itself, actually was the party that partook in ‘‘gamesmanship’’ during the project and the subsequent litigation, such a factual determination is beyond the province of this court. See Cadle Co. v. D’Addario, 268 Conn. 441, 462, 844 A.2d 836 (2004) (‘‘[i]t is within the province of the trial court, as the fact finder, to weigh the evidence presented and determinethe credibilityand effectto be giventhe evidence’’ [internal quotation marks omitted]).
The court relied on appropriate equitable considera-tions that were within its discretion. The court’s decision not to award prejudgment interest to Foley pursuant to § 37-3a, therefore, was not an abuse ofdiscretion.
B

Retainage Interest Claim Next, Foley claims that it is entitled to interest on the late payment ofthe contract retainage19 pursuantto General Statutes § 42-158j.20 Foley argues that it sought interest under that statute for the defendant’s failure to pay timely the retainage, but that the court ‘‘failed to address this specific statute or render a decision on the merits.’’ According to Foley, the court should have awarded it ‘‘statutory interest on the balance of retainage improperly withheld by [United] following substantial completion ofthe project.’’ We are not persuaded.
The following facts and procedural history are relevanttothis claim. OnNovember 19, 2008, Foleynotified United that the project was substantially complete. ‘‘While [United] initiallyagreedthatsubstantial completion had occurred

. . . [United] rescinded that confirmation and later took the position that substantial completion occurred on March 19, 2009. Despite this acknowledgment, [United] did not release any of the approximately $4,000,000 in retainage it was holding
on the project until May 15, 2009, when it released $2,000,000.

. . . The balance of the retainage was not paid until February 24, 2010.’’ (Citations omitted.)
In its complaint, Foley alleged that United had violated CUTPAbydirectingFoleyto undertake additional workwhile knowingthatitdidnothave sufficientfunds to pay Foley, and by failing to make timely payments ofthe amounts due, includinginterest, despite repeated requests under § 42-158j. The court rejected Foley’s CUTPA claim. The court specifically found that there ‘‘was nothing deceptive or unfair in [United’s] conduct during the project. The parties had a number of good faith disputes. On some, they reached agreement. On others, they did not. The evidence proved nothing more.’’21 The court, however, did not refer to § 42-158j in its decision. Foley first argues that the court failed to rule on its retainage interest claim. We disagree. Our reading of the court’s memorandum of decision indicates that, although it did not expressly identifythe statute, the court’s implicit denial of Foley’s claim for interest under § 42-158j is clear. Foley presented this claim in its complaint, and in its posttrial brief, as one of the predicates for its CUTPA claim. The court rejected the CUTPA claim in its entirety. Additionally, the courtmadefindingssupportingadeterminationthat the retainage in question was not an ‘‘amount due and owing’’ under the contract. See General Statutes § 42-158j (c) (4). For example, in rejecting the prejudgment interest claim, the court found that, underthe contract, the defendant ‘‘had the right to dispute each of the issues on which it withheld payment,’’ and that it had acted in good faith. Foley additionally contends that the court should have awarded it interest pursuant to § 42-158j. We are not convinced.
Under § 42-158j (c) (4), a court may award contractors statutory interest for ‘‘amount[s] due and owing.’’ In the present case, however, the court concluded that ‘‘[u]nder [a]rticles 8 and 17 of the contract, [United] had the right to dispute each of the issues on which it withheld payment.’’ Additionally, the court determined that, even on the issues in the litigation in which it found in favor of Foley, ‘‘there was a good faith basis for [United’s] position.’’ United’s contractual right to dispute Foley’s claims, as well as its good faith basis for doing so, supported the court’s conclusion that United had not withheld an ‘‘amount due and owing’’ fromFoley. Therefore, the court’sdecisionnotto award Foley prejudgment interest under § 42-158j was not an abuse of its discretion.
IV

ADDITIONAL CLAIMS Foley claims that the court improperly rejected additional claimsthatithadpursuedagainstUnited. Specifically, Foley contends that the court should have concluded that it established causes of action against United sounding in (1) negligence and (2) violations of CUTPA. We disagree. Each claim will be addressed in turn. A

Negligence Foley contends thatthe court improperly rejected its negligence claim. The following facts are relevant to
our resolution of this claim. Foley alleged in its complaint that United was negligent because it breached its duty of care to Foley by, inter alia, ‘‘provid[ing] defective, inadequate and incomplete plans’’ for the project, and ‘‘fail[ing] to determine and to make known to Foley the true nature of soil and subsurface conditions existing at the project site

. . . .’’ The court rejected those claims.
The court determined that: ‘‘The parties rights and obligations are spelled out in the contract. There was no evidence presented by Foley, either fact or expert [testimony], that [United] owed some dutyto Foleythat did not arise out of the contract.’’ The court further explained: ‘‘Foleyofferedno evidence definingthe standard of care that applied to a party like [United] on a projectsuchasthis. Nordiditofferanyevidence ofhow [United] breachedthisundefinedstandardofcare.’’ Thecourt also stated that Foley’s negligence claim was undermined because, based on the industry standard, itwas the contractor, Foley, and notthe owner, United, that was the party responsible for conducting exploratory trenching, performing ‘‘pot holing,’’ and identifying obstructions. The court concluded: ‘‘[T]he contractprovided aremedyfor Foleyinthe event it ran into unidentified obstructions or environmental issues. Given the existence of that remedy, the court fails to
see how not identifying every condition Foley might encounter breached some unidentified standard of care.’’22
On appeal, Foley claims that the court should have concludedthatUnitedwasnegligentbecause (1) United failed to identify all underground utilities, and (2) United failed to perform soil testing and communicate the results to Foley. We disagree. ‘‘The essential elements ofa cause ofaction in negligence are well established: duty; breach of that duty; causation; and actual injury.

. . . Contained within the first element, duty, there are two distinct considerations.

. . . First, it is necessary to determine the existence ofa duty, andthen, ifone is found, it is necessary to evaluate the scope ofthat duty.’’ (Internal quotation marks omitted.) Considine v. Waterbury, 279 Conn. 830, 858–59, 905 A.2d 70 (2006). ‘‘The issue of whether a duty exists is a question of law

. . . which is subject to plenary review. We sometimes refer to the scope of that duty as the requisite standardofcare.’’ (Citations omitted.)LePagev.Horne, 262 Conn. 116, 123, 809 A.2d 505 (2002). ‘‘[O]nly ifsuch
a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand.

. . . Put another way, the question of what a reasonable person would have done underthe circumstances is aquestion to be determinedbythe trier offact, exceptwhere the individual’s conduct clearly has or has not conformed to what the community requires, and that no reasonable [trier of fact] could reach a contrary conclusion.’’ (Internal quotation marks omitted.) Considine v. Waterbury, supra, 279 Conn. 859.
1

Undisclosed Utilities Foley argues that the court improperly rejected its negligence claim because it demonstrated that United breached its duty to disclose all underground utilities. To support its contention, Foley relies on a contract enteredintobetweenBlack&VeatchandUnited,pursuantto whichBlack&Veatchwas responsible for ‘‘locating all [underground] utilities in the proposed route.’’ Based on that contract’s language, Foley claims that ‘‘[United] had adutyto fulfill its contractual obligations with the degree of care which a public utility providerof ordinary prudence would have exercised under the
same or similar conditions,’’ and that it breached that duty by failing to disclose to Foley all underground utilities. We are not persuaded.
At the outset, we note that it is unclear exactly how
a contractual duty that Black & Veatch owed to United
was transformed into a dutythat United owedto Foley. Nevertheless, we need not decide whether Foley demonstrated the existence of a duty by United to disclose all underground utilities to Foley because, even assuming that such a duty a existed, Foley failed to demonstrate that United breached a standard ofcare required of it. First, to prove its negligence claim, Foley was requiredtopresentexperttestimonyastoUnited’sstandardofcaretoestablishthatUnitedbreachedanalleged duty to disclose to Foley all underground utilities. See Santopietro v.NewHaven, 239 Conn. 207, 226, 682 A.2d 106 (1996) (‘‘[i]f the determination of the standard of
care requires knowledge that is beyond the experience of an ordinary fact finder, expert testimony will be required’’). Foley does not dispute the court’s assessment, however,that‘‘Foleyofferednoevidencedefining the standard ofcare that appliedto apartylike [United]
on a project such as this.’’ Moreover, the court found that ‘‘the onlycredible evidence’’ regardingthe industry standard was from Luis Cabreriza. Cabreriza testified that the industry practice actually was for the contractor, not the owner, to have the ‘‘responsibility of performing pot holing to identify utilities

. . . .’’ This credibility finding is unassailable on appeal. See Ruiz

v. Gatling, 73 Conn. App. 574, 576, 808 A.2d 710 (2002) (‘‘[w]here the trial court is the arbiter ofcredibility, this court does not disturb findings made on the basis of the credibility of witnesses’’). Second, the record supports the court’s conclusion that United did not breach an unidentified standard of
care by ‘‘not identifying every condition Foley might encounter

. . . .’’ The court heard testimony that it
was impossible to identify every underground obstacle inanurbanenvironment, some ofwhichhadbeenabandoned for more than a century, before digging began. Foley does not dispute the court’s finding that, before construction commenced, United ‘‘told Foley that [it] would encounter more obstacles than were shown on the drawings.’’ The court’s conclusion that United did not breach a duty owed to Foley is buttressed by the language ofthe contractspecifications, whichdisclosed that Foley ‘‘shall conduct [its] operations on the basis that underground installations may exist that are not indicated on the drawings,’’ and that ‘‘the accuracy and completeness of [the drawings] is unknown and is presented solely to assist [Foley] in an approximate determination of underground installations.’’ Indeed, the contractprovided amechanismbywhichFoley could request compensation after encountering unexpected underground obstacles. Thus, the change order request process outlined in the contract supported the court’s conclusion that the parties contemplated encountering unexpected underground utilities during construction. Consequently, the court’s conclusion that United did not breach a duty owed to Foley because it did not disclose every underground utility
was legally correct and supported by the record.
2
Soil Testing Foley additionally claims that the court improperly rejected its negligence claim because it had demonstrated that United ‘‘had a duty to perform soil testing and communicate the results to Foley,’’ and that United’s ‘‘failure to identify and reveal the true nature of the soil conditions’’ damaged Foley. We disagree. Similar to Foley’s negligence claim pertaining to underground utilities, the court found that there was no testimony or evidence presented regarding the standard of care required ofa public utility company when testing soil and communicating the results to its contractor. Although Foley asserts that United ‘‘had a duty to fulfill its contractual obligations with the degree of
care [of] apublicutilityproviderofordinaryprudence,’’ there was no evidence in the record from which the court could have ascertained the appropriate standard of care. The determination of the standard of care expected ofUnited when testing soil and communicatingtheresultstoFoley‘‘require[d] knowledgethat [was] beyond the experience of an ordinary fact finder’’ and, thus, required expert testimony. Santopietro v. New Haven, supra, 239 Conn. 226. Therefore, the court’s rejection ofFoley’s negligence claim was supported by the record.
B CUTPA Foley claims that the court improperly rejected its claim that United’s conduct during the project violated CUTPA. Foley argues that it ‘‘proved numerous instances ofunfairand deceptive acts orpractices committed by [United],’’ which included United’s failure: (1)to disclosethetrue extentofundergroundobstacles; (2) to disclose the extent ofenvironmental hazards; (3) to process and pay change order requests in a timely manner; and (4) to ‘‘make timely payments to Foley for undisputed amounts that were due and owing.’’ We are not persuaded. ‘‘CUTPA provides in relevant part that [n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce. General Statutes § 42-110b (a). It is well settled that in determining whether apracticeviolates CUTPA we have adopted the criteria set out in the cigarette rule by the federal trade commission for determiningwhen apractice is unfair: (1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law,
or otherwise

— in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers, [competitors or other businesspersons].

. . . All three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one ofthe criteria or because to a lesser extent it meets all three.

. . . ‘‘It is well settled that whether a defendant’s acts constitute

. . . deceptive or unfair trade practices under CUTPA, is a question of fact for the trier, to which, on appellate review, we accord our customary deference.

. . . [W]here the factual basis ofthe court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.’’ (Internal quotation marks omitted.) Centimark Corp. v. VillageManorAssociates Ltd. Partnership, 113 Conn. App. 509, 523, 967 A.2d 550, cert. denied, 292 Conn. 907, 973 A.2d 103 (2009).
Onthe basis ofourreview ofthe record, we conclude that the evidence supports the court’s conclusions, and therefore, Foley’s CUTPA claim has no merit. In rejecting Foley’s prejudgment interest claim, we concludedthatthe evidence supportedthe court’s determinations that United ‘‘had the right to dispute each of the issues on which it withheld payment,’’ and that,
even ‘‘[o]n the issues where the court has agreed with Foley

. . . there was a good faith basis for [United’s] position.’’ Additionally, in rejecting Foley’s negligence claim, we found support in the record for the court’s determination that ‘‘not identifying every condition Foley might encounter’’ did not breach any duty that United may have owed to Foley. The same evidence upon which those findings were predicated also provided the basis for the court’s determination that the defendant did not engage in any conduct prohibited by CUTPA. Finally, the courtheardtestimonyfromUnited’sproject manager, Charles Maresca, that, when United solicited bids from potential contractors, it disclosed potential obstacles in a way intended to ‘‘ensure that the maximum amount of information that we could possibly give to all the bidders was going to be portrayed, be total[ly] represented on the plans

. . . .’’ The record, thus, supports the court’s conclusionthat Foleydid not demonstrate that United engaged in unfair or deceptive acts orpractices. We therefore reject Foley’s CUTPA claim.
V REQUEST FOR LEAVE TO AMEND COMPLAINT Finally, Foleyclaimsthatthe courtimproperlydenied its request for leave to amend its complaint. We disagree.
The following facts and procedural history are relevant to the resolution of this claim. On June 1, 2012, Foley filed a request for leave to file a fifth amended complaint, in which Foley attempted to add counts sounding in negligent misrepresentation and commonlaw fraud. In a memorandum supporting its request, Foley asserted that the ‘‘two additional counts ofnegligent misrepresentation and common-law fraud by nondisclosure are variations of the tort counts previously pleaded.’’ United objected to Foley’s request on the grounds that the added claims were untimely, did not relate back to the operative complaint, and granting the request would delay the trial. OnJuly 25, 2012, the court denied Foley’s request for leavetofile anamendedcomplaint. Inanoralruling, the court reasoned that the proposed fraud and negligent misrepresentation counts related exclusively to United’s alleged conduct before the parties entered into the contract, but the allegations in the operative complaint pertained to United’s alleged conduct after the parties had entered into the contract. The court, thus, concluded that the new counts in the proposed complaint did not relate back to the fourth amended complaint and, as a result, denied Foley’s request for leave to amend. On appeal, Foley asserts that the court improperly denied its request for leave to amend its complaint because ‘‘[t]he requested amendments did not present
an ‘entirely new and different factual situation,’ but expandedthe existingpleading.’’ We arenotpersuaded. Our standard ofreview ofthe plaintiff’s claim is well defined. ‘‘While our courts have been liberal in permitting amendments

. . . this liberality has limitations. Amendments should be made seasonably. Factors to be considered in passing on a motion to amend are the length of the delay, fairness to the opposing parties and the negligence, if any, of the party offering the amendment.

. . . The motion to amend is addressed to the trial court’s discretion which may be exercised to restrain the amendment ofpleadings so far as necessary to prevent unreasonable delay of the trial.

. . . Whether to allow an amendment is a matter left to the sound discretion of the trial court. This court will not disturb a trial court’s ruling on aproposed amendment unless there has been a clear abuse of that discretion.

. . . It is the [plaintiff’s] burden in this case to demon-strate that the trial court clearly abused its discretion.’’ (Citations omitted; internal quotation marks omitted.) Wagner v. Clark Equipment Co., 259 Conn. 114, 128, 788 A.2d 83 (2002). ‘‘Our relation back doctrine provides that an amendmentrelatesbackwhentheoriginalcomplainthasgiven the partyfairnotice that a claim is being asserted stemming from a particular transaction or occurrence, thereby serving the objectives of our statute of limitations, namely, to protect parties from having to defend against stale claims.

. . . To relate back to an earlier complaint, the amendment must arise from a single group offacts.

. . . In determining whether an amendment relates back to an earlier pleading, we construe pleadingsbroadlyandrealistically, ratherthannarrowly and technically.

. . . [T]he complaint must be read in its entiretyinsuchawayasto give effecttothepleading with reference to the general theory upon which it proceeded, and do substantialjustice between the parties.

. . . Our reading of pleadings in a manner that advancessubstantialjusticemeansthatapleadingmust be construed reasonably, to contain all that it fairly means, but carries with it the related proposition that it must not be contorted in such a way so as to strain the bounds of rational comprehension.

. . . Finally, in the cases inwhich [our Supreme Courthas] determined that an amendment does not relate back to an earlier pleading, the amendment presented different issues or depended on different factual circumstances rather than merely amplifying or expanding upon previous allegations.’’ (Citations omitted; internal quotation marksomitted.) Grenierv. CommissionerofTransportation, 306 Conn. 523, 559–60, 51 A.3d 367 (2012).
Both parties agree that the proposed counts were barred by the applicable statute of limitations unless the relation back doctrine applied. Our review of the fourth amended complaint reveals that its allegations exclusively pertained to the parties’ conduct after the parties entered into the contract.23 Specifically, the fourth amended complaintincludednine counts. Infive of the counts, Foley alleged either breach of contract claims, or sought damages related to that breach. In three of the other counts of the fourth amended complaint, Foley pleaded that United breached the implied covenant ofgood faith and fair dealing contained in the contract, interfered with Foley’s contractual relationships with its subcontractors, and violated CUTPA throughitsconductafterthepartiesalreadyhadentered into the contract. In the sole remaining count of the fourth amended complaint, Foley pleaded that United
was negligent because it breached its duty to Foley by not properly performing ‘‘its obligations and duties under the

. . . contract.’’ (Emphasis added.)
Thefifthamendedcomplaint, however, includedallegations of fraud and negligent misrepresentation thatrelated solelyto United’s alleged misconduct beforethe parties entered into the contract. Specifically, in both proposed counts, Foley alleged that ‘‘[ p]rior to the execution of the contract, [United] became aware that Foley would encounter many more utilities and obstacles that were not shown on the revised plans and specifications.’’ (Emphasisadded.) Inthenegligentmisrepresentation count, Foley pleaded that United ‘‘let Foleyenterintothecontract’’ despitehavingthisknowledge. In the common-law fraud count, Foley alleged that United ‘‘expected that if it informed Foley of the inaccuraciesinthe revisedplans andspecificationsthat Foley would bid the project differently.’’ (Emphasis added.) Foley also alleged that, nevertheless, United ‘‘made the business decision not to disclose this information to Foley.’’
In the present case, the allegations in the proposed counts pertained exclusively to United’s alleged misconduct prior to entering into the contract and, as a result, presented a different factual situation than the allegations of the fourth amended complaint, which pertained solelytopostcontract conduct. Theproposed complaint, thus, ‘‘present[ed] a new and different factual situation that would require the presentation of different evidence.’’ Sherman v. Ronco, 294 Conn. 548, 556, 985A.2d 1042 (2010). OurSupreme Courthasdetermined that, in circumstances such as these, the court acts within its discretion by denying arequest for leave to amend the complaint. See, e.g., Alswangerv. Smego, 257 Conn. 58, 61, 776A.2d 444 (2001) (allegation oflack of informed consent regarding resident’s participation in surgery did not relate back to allegation that defendants had failedto disclose all material risks in connection with plaintiff’s surgery, care and treatment). Consequently, the court’s decision to deny Foley’s request for leave to amend the complaint was not an abuse of discretion and is supported by the record.
The judgment is affirmed.
In this opinion the other judges concurred.

1 Thus, in simpler terms, a delay in the critical path is a postponement to construction that affects the final completion date of the project.

2 Black & Veatch coordinated the project on behalf of United and acted

as United’s agent during all relevant negotiations with Foley. Therefore, unless otherwise noted, Black & Veatch and United are referred to interchangeably throughout this opinion.
3 The contract defines ‘‘substantial completion’’ in relevant part as ‘‘the date on which [Foley] has successfully completed the [w]ork

. . . .’’

4 Polychlorinated biphenyls are commonly referred to as ‘‘PCBs.’’ See Northeast Ct. Economic Alliance, Inc

. v. ATC Partnership, 272 Conn. 14, 20, 861 A.2d 473 (2004). The court heard testimony that PCBs were a form of soil contamination.

5 The record reveals that two distinct types ofdelays occurred during the project: crew delays and critical path delays. Crew delays quantified ‘‘how many days delay was experienced by the impacted crew

. . . .’’ Critical path delays, onthe otherhand, measureddelaysto activitiesthatdetermined the end date of a project. Crucially, crew delays did not equate to critical path delays.
6 During the course of the project, Foley submitted 492 change order requests, which resulted in United issuing 294 change orders.7 Thenine countoperative fourthamended complaintincludedfive counts soundinginbreachofcontract, aclaimUnitedbreachedtheimpliedcovenant ofgood faith and fair dealing, two tort claims, which sounded in negligence and tortious interference, and a claim that United’s conduct violated the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. 8 The courtruled againstUnited on acounterclaiminwhichUnited sought indemnification for settlement payments made to Foley’s subcontractors. United has not appealed from any aspect of the court’s ruling.
9 Foley also claims that the court improperly determined that, even if timely, Foley had failed to prove its delay claim. This was a separate and independent ground upon which the court denied Foley’s delay claim. Because we conclude that the court correctly ruled that Foley irrevocably waived and released its delay claim, we need not reach the court’s separate ground for denying Foley’s delay claim on its merits. See Weissv. Smulders, 313 Conn. 227, 265, 96 A.3d 1175 (2014).

10 Foley claims that certain delays were ‘‘undisputed’’ and solely attributable to United, and therefore were sufficient proof of critical path delays withoutanyneedtoprovidenoticepursuanttotheten dayrule. We disagree. In fact, we see no reason why those delays somehow would be exempt from the ten day rule as well as the requirement of providing an analysis

astohowthosedelaysaffectedthe completiondeadline. Indeed, thecontract authorized Foley to submit a claim for additional compensation for ‘‘[a]ny [c]laims’’ that caused an extension of the completion deadlines.

11 The court also heard from two witnesses that further clarified the crew delay/critical path delay distinction. Stephen Pitaniello, United’s expert witness, explained: ‘‘[A] day of delay on the critical path affects the end date ofthe project by a day. There are other delays that don’t impact the critical path. So something may start late, something may end late, but if it’s not

on the critical path, it doesn’t affect the end date of the project.’’ Jeremy Robards ofBlack & Veatch testified that, when delays occurred to one area of construction, a contractor might have the ability to divert its crew to another area, or work around the delayed area, and, thus, would be able to avoid delaying the end date of the project.

12 Similarly, Foley claims that the language that United included in its change orders following the issuance of the August, 2007 letter renders

erroneous the court’s determination that United did not waive the ten day rule. We are not persuaded. Followingtherelease oftheAugust2007letter, Unitedincludedthefollowing language in its change orders: ‘‘It is agreed that [a specified number of]

crew days are attributable to this change and that the significance of this designation of time and the delay and impact costs associated with same shall be in accordance with [United’s] letter dated August 28, 2007

. . . which shall be part of this agreed change.’’ This language, like that of the August, 2007 letter, merely distinguished

crew delays from critical path delays. This language did not signify that United had waived the ten day rule in relation to critical path delay claims.
13 Foley claims, for the first time on appeal, that the court improperly failed to find that it ‘‘substantially complied’’ with the notice provision of the contract. Because this claim was not raised before the trial court, we decline to address the claim on appeal. See DuBaldo Electric, LLCv. Montagno Construction, Inc., 119 Conn. App. 423, 443, 988A.2d 351 (2010) (‘‘[t]o review claims articulated for the first time on appeal and not raised before the trial court would be nothing more than a trial by ambuscade ofthe trial judge’’ [internal quotation marks omitted]).

14 Foley additionally claims, for the first time on appeal, that the court’s interpretation of the markup provision ‘‘has the absurd consequence of promoting litigation as a way to avoid payment ofvalid contractual markup provisions.’’ Foley did not make this claim in the trial court and, instead, reliedsolelyonits argumentregardingthe contract’splainlanguage. Accordingly, we decline to consider this claim on appeal. See Practice Book § 60- 5 (‘‘[t]he court shall not be boundto considera claim unless it was distinctly raised at the trial or arose subsequent to the trial’’); Alexandre v. Commissioner ofRevenue Services, 300 Conn. 566, 585–86, 22 A.3d 518 (2011).

15 As the court accurately noted, ‘‘[p]arties often settle for a variety of reasons.’’ ‘‘The numerous factors that affect a litigant’s decision whether to compromise acase orlitigate itto the end include thevalue ofthe particular proposed compromise, the perceived likelihood of obtaining a still better settlement, the prospects of coming out better, or worse, after a full trial, and the resources that would need to be expended in the attempt.’’ (Internal quotation marks omitted.) United States Securities & Exchange Commis-sion v. Citigroup Global Markets, Inc., 752 F.3d 285, 295 (2d Cir. 2014).

16 General Statutes § 37-3a (a) provides in relevant part: ‘‘[I]nterest at the rate of ten per cent a year, and no more, may be recovered and allowed in civil actions or arbitrationproceedings under chapter 909, including actions to recover money loaned at a greater rate, as damages for the detention of money after it becomes payable.

. . .’’

17 The record reflects that these change orders resulted in more than $25,000,000 in additional compensation for Foley.
18 The court only addressed eleven change order requests in its memorandum of decision because the parties resolved one change order request during trial.
19 General Statutes § 42-158i (3), contained within chapter 742b governing construction contracts, defines retainage in relevantpart as ‘‘asumwithheld from progress payments to the contractor or subcontractor, otherwise payableto acontractororsubcontractorbyanownerconditionedonsubstantial

or final completion ofall work

. . . but does not include any sum withheld due to the contractor’s or subcontractor’s failure to comply with construction plans or specifications.’’

20 General Statutes § 42-158j governs the required contract provisions regarding the timely payment of contractors and the remedy for untimely payments. Subsection (c) (4) of § 42-158j entitles a contractor to receive interest at the rate of 1 percent per month after the other party to the contract has received notice of an outstanding ‘‘amount due and owing.’’ See also General Statutes § 42-158j (a).

21 Foley additionally challenges the court’s rejection of its CUTPA claim. We address that claim in part IV B of this opinion.

22 Foley asserts that the court improperly ‘‘denied Foley’s negligence claims based on its conclusions that there was no evidence ‘that [United] owed some dutyto Foleythat did not arise out ofthe contract.’ ’’ Ourreview ofthe court’s decision, however, reveals that the court based its conclusion not only on the lack of evidence of a duty United owed to Foley, but also

on Foley’s failure to present evidence as to the standard ofcare and Foley’s failure to demonstrate that United breached that undefined standard.
23 For the purposes of the relation back doctrine, a subsequent amended complaint may be compared to an earlier amended complaint so long as the earlier amended complaint has been filed within the applicable statute of limitations. See Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 775, 905 A.2d 623 (2006).