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

ILLUMINATING COMPANY

(AC 36194)

Gruendel, Mullins and Mihalakos, Js.

Argued November 19, 2014—officially released June 23, 2015

(Appeal from Superior Court, judicial district of

Hartford, Complex Litigation Docket, Bright, J.)

Ira S. Sacks, with whom were Gerard P. Brady, and,

on the brief, Alan J. Sobol and Paul G. Ryan, for the

appellant (plaintiff).
Jonathan M. Freiman, with whom were Timothy A.

Diemand and Ivana D. Greco, for the appellee

(defendant).
Opinion

MULLINS, J. The plaintiff, J. Wm. Foley, Inc. (Foley),

appeals from the judgment of the trial court, after a

bench trial, rendered in part in favor of the defendant,

The United Illuminating Company (United). Foley

claims that the court improperly: (1) denied its claim

for compensation arising from delays in a construction

project in which Foley served as a contractor; (2) concluded that it was not entitled to a 10 percent markup on

United’s settlement payments to Foley’s subcontractors

pursuant to a markup provision in the parties’ contract;

(3) denied its claims for interest; (4) rejected its tort

claims; and (5) denied its request for leave to file a

fifth amended complaint. We affirm the judgment of

the trial court.

The relevant facts found by the court in its 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 required to install an underground power transmission line over a six mile stretch of land between 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 transmission line would be laid in segments

and connected to other segments along the length of

the duct banks. These connection points are known as

splice chambers. . . .

‘‘To complete the work required on the project,

[United] sought bids from qualified contractors who

would be responsible for digging the trenches, laying

the transmission line, installing the duct banks and

splice chambers, laying the transmission line into the

splice chambers and filling in the trenches. On or about

January 25, 2006, Foley submitted a bid of $43,344,000

to do all of this work, except for supplying and installing

the transmission line. . . .

‘‘In submitting this bid, Foley considered the drawings [United] gave to potential bidders as part of the

bid package. These drawings showed various obstructions a contractor should expect to encounter when

doing the trenching and laying work called for by the bid

request. Among these obstructions were other utilities

already in the area where the work was to be performed.

[United] notified Foley that it was the low bidder on the

contract, and Foley and [United] then began negotiating

the terms of a contract.’’

On or about September 29, 2006, United and Foley
entered into a contract for Foley’s work on the project

(contract). The contract reflected an understanding by

the parties that Foley could encounter site conditions

not identified in the drawings. Specifically, the contract

provided that ‘‘in the event that [Foley] encounters

unknown or misidentified site conditions whose 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

performance of the [w]ork which must be accomplished

as scheduled in order for the [w]ork and the [p]roject

as a whole to be completed on time and in accordance

with the [c]ontract [d]ocuments, including the [p]roject

[s]chedule.’’1 The contract included a lump sum 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 of the event or decision giving rise to the

claim (ten day rule). ‘‘Pursuant to § 6.1 (e), [United]

then had ten business days to respond to Foley’s 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 of the above process

and addressed on a change order by change order

basis.’’

United hired Black & Veatch to serve as its consultant

on, and coordinator of, the project.2 Foley hired as 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

trenches that would include the transmission line. After

Rizzo installed the piping, Manafort then refilled the

trenches.

According to their anticipated schedule, the parties

expected the project to take approximately one year

to complete. Foley was to commence construction in

October, 2006, and have construction substantially completed3 by November, 2007. Foley did not notify United

that the project was substantially complete, however,

until November, 2008, approximately one year after the
expected completion date.

There were many reasons for delays to the project.

On the one hand, United was responsible for some of

those reasons, which included: failing to secure necessary easements; postponing work on the project due to

the construction of a separate transmission line; tardily

remediating soil contamination; and failing to resolve

a municipal zoning dispute in a timely manner. On the

other hand, various performance and workmanship

issues by Foley and its subcontractors also slowed the

project. For example, Manafort’s use of trench boxes

that were ill suited for the densely populated urban

conditions encountered during construction caused

delays to the project.

‘‘By far though, the biggest obstacles the parties

encountered on the project were unknown 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 throughout virtually the entire project. The unknown conditions

encountered included everything from abandoned

water pipes ranging in size up to 60 inches in diameter

located in positions different than what was shown on

the project drawings; gas lines and other underground

utilities not shown on the drawings at all; unexpected

amounts of rock; a culvert that was missing one side

that everyone thought was there; and soil contaminated

by PCBs.4 Overall, while the number of expected underground interferences shown in the project drawings

was 415, over the life of the project Foley and Manafort

encountered 1209.’’ (Footnote added.)

Almost immediately after construction began, Foley

encountered undisclosed obstacles and, pursuant to

§ 6.4 (a) of the contract, requested additional compensation for the resulting costs by submitting to United

change order requests. ‘‘By the summer of 2007 though,

Foley and [United] were in dispute over what level

of detail needed to be provided in the [change order

requests]. Given the number of obstacles and issues it

was encountering, Foley thought that it was impractical

for it to identify the critical path impact associated with

each submittal it made. Consequently, it proposed [to

United] that the parties resolve the direct cost part of

the [change orderrequests] when presented and reserve

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 only the direct costs associated with an obstacle, while reserving to the parties ‘‘all rights, remedies

and defenses’’ concerning critical path delays. On

August 3, 2007, however, United declined that proposal,

and informed Foley that claims for additional compensation must comply with article 6 of the contract. Upon
receipt of United’s refusal, Foley reiterated to Manafort

that change order requests must include ‘‘a cost and

resource loaded schedule showing impact to the critical

path,’’ that ‘‘[a]ll claims must have all of the information

shown in Article 6,’’ and that ‘‘the time limitations 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. On August 20, 2007,

Foley replied: ‘‘[United] is not waiving the time limits

for submitting a claim as contained in the [c]ontract,

Article 6. . . . Please also be reminded that requests

for adjustments to the critical path schedule affecting

your subcontract work must be received in time for

Foley to make any necessary adjustments to the overall

critical path schedule and submit its proposal to

[United] for such change in the work.’’ (Emphasis in

original.) That same day, Foley forwarded Manafort’s

inquiry to United, and submitted another proposal to

adjust the change order process. Foley suggested that

United issue change orders in two parts: the first part

would pertain to increased direct costs; the second part

would address adjustments for delays in the critical

path.

In a letter dated August 28, 2007 (August, 2007 letter),

United represented to Foley that it would modify the

change order process, but in a manner different from

what Foley had proposed. Under the adjusted procedure, United first would negotiate the direct costs associated with the obstacle, and then United and Foley

would negotiate ‘‘the number of days delay to the crew

. . . .’’ United clarified, however, that this modification

pertained only to crew delays, and not critical path

delays.5

Specifically, United explained: ‘‘When the negotiations are complete, a change order will be drafted in

the agreed dollar amount (Direct Costs). The change

order will also list the agreed amount of crew-day delay;

not schedule delay. The idea is to keep the crew delays

with the appropriate change order event. The listing

of the crew-day delay will not signify that [United]

has waived any provision of the contract. A day of

delay to a particular crew shall not be understood as

being equal to a day of delay of the project schedule

[a critical path delay]. These change orders will not

affect either party’s rights or liabilities for delay and

impact costs, except that the change order will have

settled the issue of how many days delay was experienced by the impacted crew only.’’ (Emphasis added.)

As construction progressed, Foley continued to

encounter unanticipated obstacles and, in turn, submitted to United change order requests for direct costs

and crew delays. United continued to issue change
orders that provided additional compensation to Foley.6

In spite of that, however, ‘‘Foley never, during the

course of the project, submitted a critical path delay

analysis or claim with any [change orderrequest]. While

it did regularly submit updates to critical path schedules

. . . those schedules did not assign responsibility for

any particular delay to any particular event or party.’’

On October 10, 2008, as work on the project was in

its final stages, Foley, for the first time, submitted to

United a claim for a delay of the project, a critical path

delay. This claim, however, did not include a critical

path delay analysis. In its submission, ‘‘Foley basically

claimed that the project took thirteen months longer

than expected, the entire delay was [United’s] fault,

and, as a result, Foley had additional overhead and

related costs of $6,174,122.45 for which [United] was

responsible. . . . While Foley attached documents in

support of its claimed increased costs, it did not submit

a critical path delay analysis with its claim.’’

United refused to compensate Foley for the delay

claim. Thereafter, Foley filed the present action seeking, inter alia, compensation for ‘‘delays in the critical

path caused by unknown or misidentified site conditions, and caused by the extra, additional, and impacted

work ordered, directed, or otherwise required on the

project.’’7

In 2011, Foley submitted to United two additional

versions of its delay claim, neither of which included

a critical path delay analysis. Again, ‘‘Foley had taken

a ‘global cost approach’ to the claim. . . . Essentially,

Foley was claiming that all delays on the project were

clearly [United’s]responsibility and it had to prove nothing more than the amount of costs it incurred because

the project took longer to complete than planned.’’

In June, 2012, Foley, for the first time, presented

United with a time impact analysis pertaining to delays

in the critical path. This analysis was prepared by Riverso Associates, Foley’s scheduling consultant during

the project. In connection with this report, ‘‘[o]n August

10, 2012, approximately one month before the start of

trial, Foley submitted a fourth version of its [delay]

claim to [United]. The amount of this claim was

$4,854,206.93.’’ During trial, however, Foley’s primary

witness on damages acknowledged errors in Foley’s

delay claim, and Foley reduced the amount that it was

claiming to $4,691,882.44.

On September 3, 2013, after a bench trial, the court,

Bright, J., issued a memorandum of decision. The court

concluded that Foley had ‘‘irrevocably waived and

released’’ its delay claim because it had failed to timely

submit its claim to United. The court further concluded

that, even if notice had been timely, Foley did not demonstrate that the delays for which United allegedly was

responsible delayed the critical path of the project.
Accordingly, the court rendered judgment in favor of

United on the breach of contract count regarding the

delay claim.

The court, additionally, rejected Foley’s tort claims,

the breach of the implied covenant of good faith and

fair dealing claim, and its claim that United violated

the Connecticut Unfair Trade Practices Act (CUTPA),

General Statutes § 42-110a et seq. The court also denied

Foley’s claim to recoup 10 percent of the settlement

payments made by United to Foley’s subcontractors,

and rejected Foley’s claim for unanticipated legal costs.

The court found in Foley’s favor, however, on three

change order requests for additional direct costs that

Foley claimed United wrongfully had rejected, and

awarded Foley $1,051,143.30. The court, nonetheless,

rejected Foley’s claim for statutory interest on all

amounts unpaid by United.8 This appeal followed.

Additional facts and procedural history will be set

forth as necessary.

I

DELAY CLAIM

Foley first claims that the court improperly denied

its delay claim. Specifically, Foley contends that the

court incorrectly determined that: (A) the ten day rule

in the contract applied to critical path delay claims;

and (B) Foley did not timely submit its critical path

delay claim to United and, therefore, irrevocably waived

and released its delay claim.9 We are not persuaded.

Initially, we set forth our standard of review. Foley’s

delay claim sounds in breach of contract. ‘‘It is well

settled that in order to recover for breach of contract,

a plaintiff must prove that he or she sustained damages

as a direct and proximate result of the defendant’s

breach.’’ Warning Lights & Scaffold Service, Inc. v.

O & G Industries, Inc., 102 Conn. App. 267, 271, 925

A.2d 359 (2007). ‘‘[W]hether there was a breach of contract is ordinarily a question of fact. . . . Our review,

therefore, is under the clearly erroneous standard.’’

(Internal quotation marks omitted.) Smithfield Associates, LLC v. Tolland Bank, 86 Conn. App. 14, 21, 860

A.2d 738 (2004), cert. denied, 273 Conn. 901, 867 A.2d

839 (2005).

A

Applicability of Ten Day Rule

First, Foley claims that the ten day rule did not apply

to the delay claim. We are not persuaded.

Foley’s claim requires us to construe the meaning of

the contract. In construing a contract, ‘‘[t]he contract

must be viewed in its entirety, with each provision read

in light of the other provisions . . . and every provision

must be given effect if it is possible to do so.’’ (Citation

omitted.) United Illuminating Co. v. Wisvest-Connecti-
cut, LLC, 259 Conn. 665, 671, 791 A.2d 546 (2002).

‘‘Although ordinarily the question of contract interpretation, being a question of the parties’ intent, is a question of fact . . . [when, like here] there is definitive

contract language,the determination of whatthe parties

intended by their . . . commitments is a question of

law [over which our review is plenary].’’ (Citation omitted; internal quotation marks omitted.) Bristol v. Ocean

State Job Lot Stores of Connecticut, Inc., 284 Conn. 1,

7, 931 A.2d 837 (2007).

Here, reading the contract provisions as a whole and

in light of each other, as we must, the language of the

contract unambiguously demonstrates that critical path

delay claims are subject to the ten day rule. Indeed,

§ 6.4 (a) of the contract provided that United would

compensate Foley for ‘‘the actual, demonstrable delay

in the [c]ritical [p]ath.’’ In order to be entitled to that

compensation, however, the contract specifically provided that, after encountering unknown or misidentified

site conditions, Foley had ten business days within

which to submit a claim for compensation arising from

delays in the critical path, or that claim would ‘‘be

irrevocably waived and released . . . .’’ The ten day

notice requirement pertained to ‘‘[a]ny [c]laims by

[Foley] for increased compensation or extension of

completion deadlines . . . .’’ Critically, § 6.4 (b) provided that the ‘‘[d]iscovery of unknown or misidentified

site conditions shall not relieve [Foley] of any of its

obligations under this [a]greement.’’

Consequently, it is clear that the language of the contract provided that the ten day notice rule applied to

any claims for which Foley sought additional compensation as a result of the 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 court determined that Foley failed to 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.

This submission was more than three and one-half years

after construction had been completed. Thus, the court

properly concluded that Foley’s untimely ‘‘claim for

delay damages [was] irrevocably waived and released.’’

B

Waiver of Ten Day Rule
Next, Foley claims that, even if the ten day rule did

apply to the delay claim, it had submitted a valid delay

claim because United waived its right to receive notice

within ten days. Specifically, Foley argues that United

relinquished its right to notice under the ten day rule

because United’s August, 2007 letter was tantamount

to a waiver of that notice provision. We reject this claim

because the record demonstrates, consistent with the

court’s conclusion,that United ‘‘never waived the notice

requirements of article 6 as they relate to damages

resulting from delays to the critical path.’’

‘‘Waiver involves an intentional relinquishment of a

known right. . . . There cannot be a finding of waiver

unless the party has both knowledge of the existence

of the right and intention to relinquish it. . . . Waiver

may be inferred from the circumstances if it is reasonable so to do. . . . Whether conduct constitutes a

waiver is a question of fact. . . . The issue of waiver

is a question of fact, dependent on all of the surrounding

circumstances and the testimony of the parties. (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, a finding of waiver or lack thereof is subject to the

clearly erroneous standard of review. See Smithfield

Associates, LLC v. Tolland Bank, supra, 86 Conn.

App. 21.

Foley’s claim that United waived the ten day rule

lacks merit. To support its claim that United waived

the ten day rule, Foley relies on the August, 2007 letter

written by United in response to a request by Foley

that the ten day rule not apply to critical path delay

claims. Foley claims that, in the letter, United agreed

that, henceforth, Foley would not be required to include

critical path delay claims in change order requests, but

that Foley’s rights would be reserved to submit critical

path delay claims after the ten day notice period had

elapsed. We disagree.

In its memorandum of decision, the court found the

following: ‘‘[The] language [in the August, 2007 letter]

in no way gave Foley the relief it was seeking from

article 6 of the contract. To the contrary, it confirmed

that [United] was, in fact, not waiving any provision of

the contract. It also made clear that resolution of direct

costs and crew delays had nothing to do with whether

there was a delay in the critical path. Finally, it 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

day of delay to a particular crew shall not be understood

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 conclusion that United did not waive

the ten day rule.12

The court’s determination that United did not waive

the ten day rule is buttressed further by the conduct

of United and Foley in the months following the August,

2007 letter. In response to a request by Foley for additional compensation, United submitted a letterto Foley,

dated November 27, 2007, reiterating its expectation

that critical path delay claims would be submitted with

change order requests. In that letter, United wrote: ‘‘We

acknowledge that Foley has made a number of requests

to have [United] recognize the impact to various crews

as a result of differing site conditions, but Foley has

never submitted a Change Proposal that includes an

impacted critical path as called for by the [contract].’’

(Emphasis added.)

Foley, likewise, demonstrated that it understood that

United did not waive the ten day rule. In a letter that

it submitted to Manafort, dated December 10, 2007,

Foley demanded that its subcontractor ‘‘immediately

produce an impacted schedule showing which delays

and impacts you now believe are the responsibility of

[United], Foley, or [Rizzo]’’ so that Foley could make

a claim on Manafort’s behalf.

Additionally, Foley insisted that, in providing that

information to Foley, Manafort ‘‘carefully review Article

11 of the [subcontract between Foley and Manafort]

entitled ‘Delays.’ ’’ Article 11 of the subcontract 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 the
court’s conclusions that United did not waive the ten

day rule, and that Foley ‘‘irrevocably waived and

released’’ its untimely submitted delay claim.13

II

10 PERCENT MARKUP

Next, Foley claims that the court improperly 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 relevant to this claim. The trial court found that ‘‘provisions

in the Manafort and Rizzo subcontracts allowed them

to be compensated for changed conditions by following

the procedures outlined in article 6 of the contract.’’

Thus, after encountering unexpected conditions that

allegedly delayed or increased the scope of their work,

pursuant to the subcontract, Manafort and Rizzo submitted change order requests to Foley. Foley forwarded

the requests to United. ‘‘Under [Foley’s contract with

United] Foley was entitled to charge a 10 percent

markup on change order requests submitted by Manafort and Rizzo.’’ Specifically, the bid proposal that Foley

submitted to United (markup agreement) provided for

a 10 percent markup ‘‘[i]f [c]ost [p]lus work is encountered on this project that requires materials, equipment

and subcontractors not shown in [the bid proposal’s]

schedules . . . .’’ ‘‘Foley regularly, although not

always,’’ submitted to United requests for those

markups.

After the project was completed, Manafort and Rizzo,

respectively, filed legal actions against United and

Foley, in which they sought unreimbursed construction

expenses. Their claims were not limited, however, to

change order requests. They also alleged tort and

CUTPA claims. ‘‘Thereafter, [United] mediated the 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

percent markup on the settlement payments pursuantto

the markup agreement. The court determined, however,

that ‘‘the [c]ontract [was] silent’’ on whetherthe markup

encompassed the settlement payments. The court

observed that ‘‘[p]arties often settle for a variety of

reasons,’’ and stated that it would ‘‘not attempt to divine

the reasons behind [United’s] decisions to pay Manafort

and Rizzo what it did.’’ The court noted that it was

‘‘clear . . . that the settlement was not an admission

of liability.’’ It concluded that ‘‘Foley [was] not entitled

to a 10 percent markup.’’ We discern no error in this
ruling.

The markup agreement provided that Foley was 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, pursuant to this provision, Foley was entitled

to a markup on change order requests submitted by

Manafort and Rizzo. This provision does not state that

settlement payments also are encompassed within the

markup agreement. ‘‘A term not expressly included will

not be read into a contract unless it arises by necessary

implication from the provisions of the instrument.’’ Texaco, Inc. v. Rogow, 150 Conn. 401, 408, 190 A.2d 48

(1963). Indeed, the agreement included no language

indicating that Foley was entitled to a markup on settlement payments. There is also nothing in the provisions

of the contract that necessarily imply that Foley is entitled to a markup on settlement payments. We will not

read such language into the contract.15 Consequently,

the record supports the court’s determination that Foley

was not entitled to a 10 percent markup on settlement

payments that United made to Foley’s subcontractors.

III

INTEREST PAYMENTS

Foley claims that the court’s decisions to deny its

claims for interest were improper. Specifically, Foley

maintains that the court should have determined (1)

that it was entitled to prejudgment interest (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 of this claim. At trial, Foley sought ‘‘prejudgment interest pursuant to . . . § 37-3a on all

amounts unpaid by [United].’’ The court denied that

request. The court determined that, pursuant to articles

8 and 17 of the contract, United ‘‘had the right to dispute

each of the issues on which it withheld payment.’’ The

court additionally observed that ‘‘on most issues, the

court has agreed with [United],’’ and that, even on the

issues in which it found in Foley’s favor, ‘‘there was a

good faith basis for [United’s] position.’’ Finally, the

court determined that, ‘‘apparently to gain some 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

Foley was entitled. The court, thus, stated that it would
not award Foley prejudgment interest because it was

‘‘difficult for the court to award a party interest when

it engages in such gamesmanship.’’

Foley argues that ‘‘the court mischaracterized Foley’s

actions and failed to give proper weight to the evidence

demonstrating [United’s] wrongful conduct.’’ We

disagree.

‘‘[T]he decision of whether to grant interest under

§ 37-3a is primarily an equitable determination and a

matter lying within the discretion of the trial court. . . .

In determining whether the trial court has abused its

discretion, we must make every reasonable presumption in favor of the correctness of its action. . . . [T]he

court’s determination regarding the award of interest

should be made in view of the demands of justice rather

than through the application of any arbitrary rule. . . .

Whether interest may be awarded depends on whether

the money involved is payable . . . and [considerations such as] whether the detention of the money is

or is not wrongful under the circumstances.’’ (Citation

omitted; internal quotation marks omitted.) MedValUSA

Health Programs, Inc. v. MemberWorks,Inc., 273 Conn.

634, 666, 872 A.2d 423, cert. denied sub nom. Vertrue,

Inc. v. MedValUSA Health Programs, Inc., 546 U.S. 960,

126 S. Ct. 479, 163 L. Ed. 2d 263 (2005); see also DiLieto

v. County Obstetrics & Gynecology Group, P.C., 310

Conn. 38, 53–54 n.13, 74 A.3d 1212 (2013).

In the present case, the court’s conclusion that United

had a contractual and good faith basis to oppose Foley’s

claims and withhold payment was supported by the

record. Articles 8 and 17 of the contract provided United

the right to dispute claims for compensation made by

Foley. Moreover, Foley does not dispute that United

fulfilled hundreds of its requests for compensation for

direct costs during the course of the project. As the

court found, during construction ‘‘Foley submitted 492

[change order requests], which resulted in 294 change

orders being issued.’’17 Indeed, the court observed that

‘‘of the [change order requests] submitted, only twelve

that seek additional direct costs were at issue by the

time this case went to trial.’’18

At trial, United prevailed on the majority of the 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 determine the credibility and effect to be given the evidence’’

[internal quotation marks omitted]).

The court relied on appropriate equitable considera-
tions that were within its discretion. The court’s decision not to award prejudgment interest to Foley

pursuant to § 37-3a, therefore, was not an abuse of discretion.

B

Retainage Interest Claim

Next, Foley claims that it is entitled to interest on

the late payment of the contract retainage19 pursuant to

General Statutes § 42-158j.20 Foley argues that it sought

interest under that statute for the defendant’s failure

to pay timely the retainage, but that the court ‘‘failed

to address this specific statute or render a decision on

the merits.’’ According to Foley, the court should have

awarded it ‘‘statutory interest on the balance of

retainage improperly withheld by [United] following

substantial completion of the project.’’ We are not persuaded.

The following facts and procedural history are relevant to this claim. On November 19, 2008, Foley notified

United that the project was substantially complete.

‘‘While [United] initially agreed that substantial 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 CUTPA by directing Foley to undertake additional

work while knowing that it did not have sufficient funds

to pay Foley, and by failing to make timely payments

of the amounts due, including interest, despite repeated

requests under § 42-158j. The court rejected Foley’s

CUTPA claim. The court specifically found that there

‘‘was nothing deceptive or unfair in [United’s] conduct

during the project. The parties had a number of good

faith disputes. On some, they reached agreement. On

others, they did not. The evidence proved nothing

more.’’21 The court, however, did not refer to § 42-158j

in its decision.

Foley first argues that the court failed to rule on its

retainage interest claim. We disagree.

Our reading of the court’s memorandum of decision

indicates that, although it did not expressly identify the

statute, the court’s implicit denial of Foley’s claim for

interest under § 42-158j is clear. Foley presented this

claim in its complaint, and in its posttrial brief, as one

of the predicates for its CUTPA claim. The court

rejected the CUTPA claim in its entirety. Additionally,

the court made findings supporting a determination that

the retainage in question was not an ‘‘amount due and

owing’’ under the contract. See General Statutes § 42-
158j (c) (4). For example, in rejecting the prejudgment

interest claim, the court found that, under the contract,

the defendant ‘‘had the right to dispute each of the

issues on which it withheld payment,’’ and that it had

acted in good faith.

Foley additionally contends that the court should

have awarded it interest pursuant to § 42-158j. We are

not convinced.

Under § 42-158j (c) (4), a court may award 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’’

from Foley. Therefore, the court’s decision not to award

Foley prejudgment interest under § 42-158j was not an

abuse of its discretion.

IV

ADDITIONAL CLAIMS

Foley claims that the court improperly rejected additional claims that it had pursued against United. 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 that the 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 duty to Foley that

did not arise out of the contract.’’ The court further

explained: ‘‘Foley offered no evidence defining the standard of care that applied to a party like [United] on a

project such as this. Nor did it offer any evidence of how

[United] breached this undefined standard of care.’’ The
court also stated that Foley’s negligence claim was

undermined because, based on the industry standard,

it was the contractor, Foley, and not the owner, United,

that was the party responsible for conducting exploratory trenching, performing ‘‘pot holing,’’ and identifying obstructions. The court concluded: ‘‘[T]he

contract provided a remedy for Foley in the event it ran

into unidentified obstructions or environmental issues.

Given the existence of that remedy, the court fails to

see how not identifying every condition Foley might

encounter breached some unidentified standard of

care.’’22

On appeal, Foley claims that the court should have

concluded that United was negligent because (1) United

failed to identify all underground utilities, and (2)

United failed to perform soil testing and communicate

the results to Foley. We disagree.

‘‘The essential elements of a cause of action in 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 of a duty, and then, if one is found, it is necessary

to evaluate the scope of that duty.’’ (Internal quotation

marks omitted.) Considine v. Waterbury, 279 Conn.

830, 858–59, 905 A.2d 70 (2006).

‘‘The issue of whether a duty exists is a question of

law . . . which is subject to plenary review. We sometimes refer to the scope of that duty as the requisite

standard of care.’’ (Citations omitted.) LePage v. Horne,

262 Conn. 116, 123, 809 A.2d 505 (2002). ‘‘[O]nly if such

a duty is found to exist does the trier of fact then

determine whether the defendant violated that duty in

the particular situation at hand. . . . Put another way,

the question of what a reasonable person would have

done under the circumstances is a question to be determined by the trier of fact, except where the individual’s

conduct clearly has or has not conformed to what the

community requires, and that no reasonable [trier of

fact] could reach a contrary conclusion.’’ (Internal 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

entered into between Black & Veatch and United, pursuant to which Black & Veatch was responsible for ‘‘locating all [underground] utilities in the proposed route.’’

Based on that contract’s language, Foley claims that

‘‘[United] had a duty to fulfill its contractual obligations

with the degree of care which a public utility provider
of ordinary prudence would have exercised under the

same or similar conditions,’’ and that it breached that

duty by failing to disclose to Foley all underground

utilities. We are not persuaded.

At the outset, we note that it is unclear exactly how

a contractual duty that Black & Veatch owed to United

was transformed into a duty that United owed to Foley.

Nevertheless, we need not decide whether Foley 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 of care required

of it.

First, to prove its negligence claim, Foley was

required to present expert testimony as to United’s standard of care to establish that United breached an alleged

duty to disclose to Foley all underground utilities. See

Santopietro v. New Haven, 239 Conn. 207, 226, 682 A.2d

106 (1996) (‘‘[i]f the determination of the standard of

care requires knowledge that is beyond the experience

of an ordinary fact finder, expert testimony will be

required’’). Foley does not dispute the court’s assessment, however,that‘‘Foley offered no evidence defining

the standard of care that applied to a party like [United]

on a project such as this.’’ Moreover, the court found

that ‘‘the only credible evidence’’ regarding the industry

standard was from Luis Cabreriza. Cabreriza testified

that the industry practice actually was for the 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 of credibility, this

court does not disturb findings made on the basis of

the credibility of witnesses’’).

Second, the record supports the court’s conclusion

that United did not breach an unidentified standard of

care by ‘‘not identifying every condition Foley might

encounter . . . .’’ The court heard testimony that it

was impossible to identify every underground obstacle

in an urban environment, some of which had been abandoned for more than a century, before digging began.

Foley does not dispute the court’s finding that, before

construction commenced, United ‘‘told Foley that [it]

would encounter more obstacles than were shown on

the drawings.’’ The court’s conclusion that United did

not breach a duty owed to Foley is buttressed by the

language of the contract specifications, which disclosed

that Foley ‘‘shall conduct [its] operations on the basis

that underground installations may exist that are not

indicated on the drawings,’’ and that ‘‘the accuracy and

completeness of [the drawings] is unknown and is presented solely to assist [Foley] in an approximate determination of underground installations.’’

Indeed, the contract provided a mechanism by which
Foley could request compensation after encountering

unexpected underground obstacles. Thus, the change

order request process outlined in the contract 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 of a 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] a public utility provider of ordinary prudence,’’

there was no evidence in the record from which the

court could have ascertained the appropriate standard

of care. The determination of the standard of care

expected of United when testing soil and communicating the results to Foley ‘‘require[d] knowledge that[was]

beyond the experience of an ordinary fact finder’’ and,

thus, required expert testimony. Santopietro v. New

Haven, supra, 239 Conn. 226. Therefore, the court’s

rejection of Foley’s negligence claim was supported by

the record.

B

CUTPA

Foley claims that the court improperly rejected its

claim that United’s conduct during the project violated

CUTPA. Foley argues that it ‘‘proved numerous

instances of unfair and deceptive acts or practices committed by [United],’’ which included United’s failure:

(1)to disclose the true extent of underground obstacles;

(2) to disclose the extent of environmental hazards; (3)

to process and pay change order requests in a timely

manner; and (4) to ‘‘make timely payments to Foley for

undisputed amounts that were due and owing.’’ We are

not persuaded.

‘‘CUTPA provides in relevant part that [n]o person

shall engage in unfair methods of competition and

unfair or deceptive acts or practices in the conduct of

any trade or commerce. General Statutes § 42-110b (a).

It is well settled that in determining whether a practice
violates CUTPA we have adopted the criteria set out

in the cigarette rule by the federal trade commission

for determining when a practice is unfair: (1) [W]hether

the practice, without necessarily having been 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 of the criteria or because

to a lesser extent it meets all three. . . .

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

constitute . . . deceptive or unfair trade practices

under CUTPA, is a question of fact for the trier, to

which, on appellate review, we accord our customary

deference. . . . [W]here the factual basis of the court’s

decision is challenged we must determine whether the

facts set out in the memorandum of decision are 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. Village Manor Associates

Ltd. Partnership, 113 Conn. App. 509, 523, 967 A.2d

550, cert. denied, 292 Conn. 907, 973 A.2d 103 (2009).

On the basis of our review of the record, we conclude

that the evidence supports the court’s conclusions, and

therefore, Foley’s CUTPA claim has no merit. In

rejecting Foley’s prejudgment interest claim, we concluded that the evidence supported the 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 court heard testimony from United’s project 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 conclusion that Foley
did not demonstrate that United engaged in unfair or

deceptive acts or practices. We therefore reject Foley’s

CUTPA claim.

V

REQUEST FOR LEAVE TO AMEND COMPLAINT

Finally, Foley claims that the court improperly denied

its request for leave to amend its complaint. We

disagree.

The following facts and procedural history are 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 of negligent 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.

On July 25, 2012, the court denied Foley’s request for

leave to file an amended complaint. In an oralruling, 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

expanded the existing pleading.’’ We are not persuaded.

Our standard of review of the plaintiff’s claim is well

defined. ‘‘While our courts have been liberal in 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 of pleadings 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 a proposed amendment

unless there has been a clear abuse of that discretion.

. . . It is the [plaintiff’s] burden in this case to demon-
strate that the trial court clearly abused its discretion.’’

(Citations omitted; internal quotation marks omitted.)

Wagner v. Clark Equipment Co., 259 Conn. 114, 128,

788 A.2d 83 (2002).

‘‘Our relation back doctrine provides that an amendmentrelates back when the original complaint has given

the party fair notice 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 of facts. . . . In determining whether an amendment relates back to an earlier pleading, we construe

pleadings broadly and realistically,ratherthan narrowly

and technically. . . . [T]he complaint must be read in

its entirety in such a way as to give effect to the pleading

with reference to the general theory upon which it proceeded, and do substantial justice between the parties.

. . . Our reading of pleadings in a manner that

advances substantial justice means that a pleading must

be construed reasonably, to contain all that it fairly

means, but carries with it the related proposition that

it must not be contorted in such a way so as to strain

the bounds of rational comprehension. . . . Finally, in

the cases in which [our Supreme Court has] determined

that an amendment does not relate back to an earlier

pleading, the amendment presented different issues or

depended on different factual circumstances rather

than merely amplifying or expanding upon previous

allegations.’’ (Citations omitted; internal quotation

marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 559–60, 51 A.3d 367 (2012).

Both parties agree that the proposed counts were

barred by the applicable statute of limitations unless

the relation back doctrine applied. Our review of the

fourth amended complaint reveals that its allegations

exclusively pertained to the parties’ conduct after the

parties entered into the contract.23 Specifically, the

fourth amended complaint included nine counts. In five

of the counts, Foley alleged either breach of contract

claims, or sought damages related to that breach. In

three of the other counts of the fourth amended complaint, Foley pleaded that United breached the implied

covenant of good faith and fair dealing contained in the

contract, interfered with Foley’s contractual relationships with its subcontractors, and violated CUTPA

through its conduct afterthe parties already had entered

into the contract. In the sole remaining count of the

fourth amended complaint, Foley pleaded that United

was negligent because it breached its duty to Foley

by not properly performing ‘‘its obligations and duties

under the . . . contract.’’ (Emphasis added.)

The fifth amended complaint, however, included allegations of fraud and negligent misrepresentation that
related solely to United’s alleged misconduct before the

parties entered into the contract. Specifically, in both

proposed counts, Foley alleged that ‘‘[p]rior to the 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.’’(Emphasis added.)In the negligent misrepresentation count, Foley pleaded that United ‘‘let

Foley enterinto the contract’’ despite having this knowledge. In the common-law fraud count, Foley alleged

that United ‘‘expected that if it informed Foley of the

inaccuracies in the revised plans and specifications that

Foley would bid the project differently.’’ (Emphasis

added.) Foley also alleged that, nevertheless, United

‘‘made the business decision not to disclose this 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 solely to postcontract conduct. The proposed

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, 985 A.2d 1042 (2010). Our Supreme Court has determined that, in circumstances such as these, the court

acts within its discretion by denying a request for leave

to amend the complaint. See, e.g., Alswanger v. Smego,

257 Conn. 58, 61, 776 A.2d 444 (2001) (allegation of lack

of informed consent regarding resident’s participation

in surgery did not relate back to allegation that defendants had failed to 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 of delays occurred during the

project: crew delays and critical path delays. Crew delays quantified ‘‘how

many days delay was experienced by the impacted crew . . . .’’ Critical

path delays, on the other hand, measured delays to activities that determined

the end date of a project. Crucially, crew delays did not equate to critical

path delays.

6 During the course of the project, Foley submitted 492 change order

requests, which resulted in United issuing 294 change orders.
7 The nine count operative fourth amended complaint included five counts

sounding in breach of contract, a claim United breached the implied covenant

of good faith and fair dealing, two tort claims, which sounded in negligence

and tortious interference, and a claim that United’s conduct violated the

Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq.

8 The court ruled against United on a counterclaim in which United sought

indemnification for settlement payments made to Foley’s subcontractors.

United has not appealed from any aspect of the court’s ruling.

9 Foley also claims that the court improperly determined that, even if

timely, Foley had failed to prove its delay claim. This was a separate and

independent ground upon which the court denied Foley’s delay claim.

Because we conclude that the court correctly ruled that Foley irrevocably

waived and released its delay claim, we need not reach the court’s separate

ground for denying Foley’s delay claim on its merits. See Weiss v. Smulders,

313 Conn. 227, 265, 96 A.3d 1175 (2014).

10 Foley claims that certain delays were ‘‘undisputed’’ and solely attributable to United, and therefore were sufficient proof of critical path delays

without any need to provide notice pursuant to the ten day rule. We disagree.

In fact, we see no reason why those delays somehow would be exempt

from the ten day rule as well as the requirement of providing an analysis

as to how those delays affected the completion deadline. Indeed, the contract

authorized Foley to submit a claim for additional compensation for ‘‘[a]ny

[c]laims’’ that caused an extension of the completion deadlines.

11 The court also heard from two witnesses that further clarified the crew

delay/critical path delay distinction. Stephen Pitaniello, United’s expert witness, explained: ‘‘[A] day of delay on the critical path affects the end date

of the project by a day. There are other delays that don’t impact the critical

path. So something may start late, something may end late, but if it’s not

on the critical path, it doesn’t affect the end date of the project.’’ Jeremy

Robards of Black & Veatch testified that, when delays occurred to one area

of construction, a contractor might have the ability to divert its crew to

another area, or work around the delayed area, and, thus, would be able

to avoid delaying the end date of the project.

12 Similarly, Foley claims that the language that United included in its

change orders following the issuance of the August, 2007 letter renders

erroneous the court’s determination that United did not waive the ten day

rule. We are not persuaded.

Following the release of the August 2007 letter, United included the following language in its change orders: ‘‘It is agreed that [a specified number of]

crew days are attributable to this change and that the significance of this

designation of time and the delay and impact costs associated with same

shall be in accordance with [United’s] letter dated August 28, 2007 . . .

which shall be part of this agreed change.’’

This language, like that of the August, 2007 letter, merely distinguished

crew delays from critical path delays. This language did not signify that

United had waived the ten day rule in relation to critical path delay claims.

13 Foley claims, for the first time on appeal, that the court improperly

failed to find that it ‘‘substantially complied’’ with the notice provision of

the contract. Because this claim was not raised before the trial court, we

decline to address the claim on appeal. See DuBaldo Electric, LLC v. Montagno Construction, Inc., 119 Conn. App. 423, 443, 988 A.2d 351 (2010) (‘‘[t]o

review claims articulated for the first time on appeal and not raised before

the trial court would be nothing more than a trial by ambuscade of the trial

judge’’ [internal quotation marks omitted]).

14 Foley additionally claims, for the first time on appeal, that the court’s

interpretation of the markup provision ‘‘has the absurd consequence of

promoting litigation as a way to avoid payment of valid contractual markup

provisions.’’ Foley did not make this claim in the trial court and, instead,

relied solely on its argument regarding the contract’s plain language. Accordingly, we decline to consider this claim on appeal. See Practice Book § 60-

5 (‘‘[t]he court shall not be bound to consider a claim unless it was distinctly

raised at the trial or arose subsequent to the trial’’); Alexandre v. Commissioner of Revenue Services, 300 Conn. 566, 585–86, 22 A.3d 518 (2011).

15 As the court accurately noted, ‘‘[p]arties often settle for a variety of

reasons.’’ ‘‘The numerous factors that affect a litigant’s decision whether to

compromise a case or litigate it to the end include the value of the particular

proposed compromise, the perceived likelihood of obtaining a still better

settlement, the prospects of coming out better, or worse, after a full trial,

and the resources that would need to be expended in the attempt.’’ (Internal

quotation marks omitted.) United States Securities & Exchange Commis-
sion v. Citigroup Global Markets, Inc., 752 F.3d 285, 295 (2d Cir. 2014).

16 General Statutes § 37-3a (a) provides in relevant part: ‘‘[I]nterest at the

rate of ten per cent a year, and no more, may be recovered and allowed in

civil actions or arbitration proceedings under chapter 909, including actions

to recover money loaned at a greater rate, as damages for the detention of

money after it becomes payable. . . .’’

17 The record reflects that these change orders resulted in more than

$25,000,000 in additional compensation for Foley.

18 The court only addressed eleven change order requests in its 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 relevant part as ‘‘a sum withheld

from progress payments to the contractor or subcontractor, otherwise payable to a contractor or subcontractor by an owner conditioned on substantial

or final completion of all work . . . but does not include any sum withheld

due to the contractor’s or subcontractor’s failure to comply with 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 duty to Foley that did not arise out of the contract.’ ’’ Our review

of the court’s decision, however, reveals that the court based its conclusion

not only on the lack of evidence of a duty United owed to Foley, but also

on Foley’s failure to present evidence as to the standard of care and Foley’s

failure to demonstrate that United breached that undefined standard.

23 For the purposes of the relation back doctrine, a subsequent amended

complaint may be compared to an earlier amended complaint so long as

the earlier amended complaint has been filed within the applicable statute

of limitations. See Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745,

775, 905 A.2d 623 (2006).