Coppola Construction Co. v. Hoffman Enterprises Ltd. Partnership

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 COPPOLA CONSTRUCTION COMPANY, INC.
v. HOFFMAN ENTERPRISES LIMITED
PARTNERSHIP ET AL.
(AC 35503)
DiPentima, C. J., and Prescott and Pellegrino, Js.
Argued October 8, 2014—officially released May 12, 2015

(Appeal from Superior Court, judicial district of
Hartford, Sheldon, J.)
Lawrence G. Rosenthal, with whom, on the brief, was
Matthew T. Wax-Krell, for the appellant-appellee
(plaintiff).
Richard P. Weinstein, for the appellee-appellant
(named defendant).
 Opinion

PRESCOTT, J. This appeal and cross appeal arise out
of a dispute over payment for construction work that
the plaintiff, Coppola Construction Company, Inc., per-
formed while acting as the general contractor for a
project to build a new car storage facility on property in
Simsbury owned by the defendant Hoffman Enterprises
Limited Partnership.1 After a lengthy bench trial, the
court rendered judgment in favor of the plaintiff on
counts one and three of the operative complaint, which
sounded, respectively, in breach of contract and unjust
enrichment, and in favor of the defendant on the
remaining counts sounding in quantum meruit, tortious
interference with a contractual relationship, and viola-
tion of the Connecticut Unfair Trade Practices Act
(CUTPA), General Statutes § 42-110a et seq. The court
also rendered judgment in favor of the defendant on
four counts of its six count counterclaim, alleging a
breach of the implied covenant of good faith and fair
dealing, a violation of CUTPA and setoffs for payments
made to certain of the plaintiff’s subcontractors that
were not credited. The court found in favor of the plain-
tiff on the remaining counts of the counterclaim.
The plaintiff appeals and the defendant cross appeals
from the judgment. In particular, the plaintiff claims
that the court improperly (1) determined that there was
a ‘‘de facto’’ termination of the parties’ construction
contract, which led the court to apply an incorrect mea-
sure of damages, (2) determined that the defendant was
entitled to a setoff based on partial payments it had
made to the plaintiff with respect to certain paving
work, (3) failed to hold the defendant contractually
liable for extra work performed by the plaintiff that
was authorized by the defendant’s construction man-
ager, (4) found that the plaintiff’s attorney had issued
an ultimatum to the defendant that the plaintiff would
not return to work on the project until the defendant
had paid all outstanding invoices for work already com-
pleted, (5) failed to hold the defendant liable for tortious
interference with the plaintiff’s contractual relation-
ships with its subcontractors, and (6) found in favor of
the defendant on the counts of its counterclaim by
concluding that the plaintiff had engaged in an abuse
of process when it filed an excessive mechanic’s lien
on the Simsbury property.
By way of cross appeal, the defendant claims that
the court improperly (1) held it liable for work that the
plaintiff performed pursuant to certain change orders
despite the fact that the plaintiff had failed to provide
the defendant’s construction manager with sufficient
documentation to establish the fair and reasonable
value of such work, and (2) rejected those counts of the
defendant’s counterclaim seeking to recover expenses
that the defendant incurred in defending against
mechanic’s liens that the plaintiff’s subcontractors had
filed against the defendant’s property.2
We agree with the plaintiff that the court improperly
determined that the defendant had terminated rather
than breached the parties’ contract, and that the court
employed, in part, an incorrect measure of damages.
We reject the remainder of the parties’ claims. Thus,
we reverse the judgment of the court only with respect
to its award of damages on count one of the complaint
and remand the case to the trial court with direction
to hold a new hearing in damages consistent with this
opinion. The judgment otherwise is affirmed.
The following facts, as set forth by the court in its
memorandum of decision, and procedural history are
relevant to our resolution of the parties’ claims. Signa-
ture Construction Services International, LLC (Signa-
ture), was, at all relevant times, a limited liability
company owned by Robert L. Saunders. Saunders was
hired by the defendant to secure a general contractor
to complete a construction project on land that the
defendant owned in Simsbury. The project was part of a
larger, multimillion dollar expansion and modernization
effort being undertaken by the defendant for Hoffman
Auto Group. Hoffman Auto Group was in the process
of adding a new Nissan dealership at the Simsbury
site to its existing Honda and Toyota dealerships. In
addition, the date for the renewal of Hoffman Auto
Group’s franchise agreement with Toyota was fast
approaching, and Toyota was insisting that Hoffman
Auto Group allocate 450 new spaces for Toyota inven-
tory. The project primarily involved site preparation and
construction of two large, paved parking lots needed to
house additional new car inventory.
Before the larger of the two proposed parking lots
(upper lot) could be completed, a portion of an existing
hillside on the Simsbury property needed to be exca-
vated. In addition to that excavation work, the unexca-
vated portion of the hillside needed to be shored up to
prevent erosion and to protect against flooding, wash-
outs or collapse. The defendant hired an engineering
firm, Milone & MacBroom, which prepared construc-
tion plans and specifications for the project (plans).
The plans provided for, among other things, the building
of swales, drainage channels, a retaining wall around
the upper lot, the installation of a drainage system
within and below the lots, and the construction of a
large retention pond to hold runoff.
The defendant had informed Saunders that it sought
to complete the entire project for no more than
$600,000. In mid-2008, Saunders sought and received
bids from two contractors, each of whom informed
Saunders that the project as proposed could not be
completed for less than $1 million. They submitted writ-
ten bids of $1.2 and $1.1 million.
On the basis of a referral by a mutual acquaintance,
Saunders also approached the plaintiff about the proj-
ect. The plaintiff submitted a handwritten proposal of
$1.937 million. Saunders informed the plaintiff that its
bid was much too high and that the plaintiff would need
to do some ‘‘ ‘value engineering’ ’’ if it wanted to be
considered seriously for the contract. The plaintiff sub-
mitted a new bid of $1.796 million, which Saunders also
rejected. At no time during the bidding process did
Saunders inform the plaintiff of the defendant’s desire
to complete the entire project for no more than
$600,000.
Fearing that he would be unable to secure a general
contractor to complete the project at a price that would
be amenable to the defendant, or that the project might
not get completed before the construction season ended
in late fall, Saunders devised a new strategy. Specifi-
cally, Saunders planned to hire a contractor who would
consent to starting a portion of the total work needed
to complete the project at a price that would meet the
approval of the defendant and, thereafter, as the initially
agreed upon work progressed, would agree to take on
the remainder of the work pursuant to change orders.
The plaintiff agreed to Saunders’ approach, and, in
June, 2009, entered into a written contract with Signa-
ture as the disclosed agent for the defendant.3 Pursuant
to sections one and two of the contract, the plaintiff
agreed to act as the general contractor and to provide
all labor and materials necessary for the completion of
all work provided for in the existing plans as modified
by exhibits A and B, which were attached to the contract
and incorporated by reference. Section three of the
contract required the plaintiff to commence work on
or before July 6, 2009, and to substantially complete
the work in eight weeks from the start date. In exchange
for the plaintiff’s performance, Signature, in its desig-
nated role as the construction manager, was to pay the
plaintiff $400,000 in specified progress payments.4
Exhibit A contained a list of the work that the plaintiff
agreed to perform under the contract, including some
work that was not a part of the existing plans.5 Exhibit
B, on the other hand, expressly removed from the scope
of the work certain items that were included in the
plans in order ‘‘to lower the price to that set forth in
the [contract].’’6
Section five of the contract governed how the parties
intended to handle anticipated future changes to the
scope of work as set forth in the original contract.
Pursuant to section five, Signature, in its role as con-
struction manager, had the authority to make any addi-
tions and deletions to the work covered by the contract,
either unilaterally or by agreement, provided that any
such changes were to be in writing.7 Adjustments to
the original $400,000 contract price as a result of any
change orders were to be determined by ‘‘mutual accep-
tance of a lump sum properly itemized and supported
by sufficient data to permit valuation by [the] [c]on-
struction [m]anager.’’ In the event that the parties could
not reach an agreement as to a lump sum amount, the
contract provided that ‘‘the [c]ontractor will perform
[the] work and be paid on a time and material cost
basis. A fee of 20 [percent] will be added to the costs
for [c]ontractor overhead and profit.’’
After the project was under way, Saunders, on behalf
of Signature, signed and issued a total of six written
change orders authorizing additional work needed to
complete the project. The first such change order, dated
July 7, 2009, called for the installation of certain fixtures
into the drainage system under the new lots for a lump
sum price of $56,500. The second change order, dated
July 29, 2009, provided for the removal and replanting
of thirteen trees for a lump sum price of $1950. A third
substitute change order, issued on August 20, 2009,
authorized the plaintiff to build 13,274 square feet of
retaining walls at a price of $21.50 per square foot for
a total of $285,391, which was to be payable in four
installments. The fourth change order was signed by
Saunders on August 28, 2009, and provided for the deliv-
ery and installation of 6187.5 tons of one and one-quar-
ter inch process stone to be used as the base of the
parking lots at a price of $18.20 per ton or $144,436.78.8
On or about September 11, 2009, Saunders issued a fifth
change order that authorized the mining and excavating
of an unspecified amount of gravel, as well as the truck-
ing, placement and compaction testing of that gravel,
for use as backfill behind the new retaining walls.9 The
parties agreed to a lump sum price of $21.78 per cubic
yard. That same day, Saunders issued a sixth change
order that authorized the fine grading of the process
stone base for the two lots as well as paving, curbing,
and striping for parking spaces for a lump sum total
of $189,000. That work was to be paid for in three
installments totaling $189,000: an initial $80,000 deposit,
$70,000 when the upper lot was completed and $39,000
upon completion of the lower lot.
The plaintiff also performed other extra work on the
project that, although approved by Signature on behalf
of the defendant, was never the subject of a written
change order setting forth a lump sum payment or lump
sum unit price.10 This additional extra work included:
‘‘(1) the hammering of ledge encountered during exca-
vation; (2) the furnishing and installation of clean or
washed stone as backfill behind the new retaining walls;
(3) the hiring of IMTL, an inspection company that
[Jeffrey S. Hoffman] personally ordered the plaintiff to
bring on the site and take orders from as to backfilling
of the retaining walls in order to ensure that the job
was done correctly so that the walls would not collapse;
(4) extensive work in dewatering the job site; and (5)
the provision of certain labor and equipment on an
overtime basis during certain particularly intense weeks
of extra work on the project.’’
 In performing its obligations on the project, the plain-
tiff used a number of subcontractors and suppliers. The
plaintiff’s primary subcontractor, however, was Massey
Brothers Excavating, LLC (Massey Brothers), which
performed work on the project starting in late June,
2009, at a rate of $23,000 per week. The court stated in
its memorandum of decision: ‘‘[T]he parties developed a
procedure for verifying and authorizing the perfor-
mance of extra work in order to distinguish it, for pay-
ment purposes, from work performed under the original
contract. Under that procedure, daily work slips
describing extra work performed by Massey Brothers
would be submitted . . . to Signature’s on-site supervi-
sor . . . who would sign each slip to verify that the
work described therein had been performed as indi-
cated after confirming with [Saunders] that it had, in
fact, been approved for performance as extra work.
. . . [E]ach such work slip was made out in triplicate,
with one copy given to the plaintiff, one copy given to
[Saunders] for transmission to [Ann Marie Shackway]
of the Hoffman Auto Group, and one copy retained by
Massey Brothers for its own records.’’
The work slips also were used to authorize and verify
the performance of the additional extra work for which
there was no written change order, agreed upon lump
sum total price, or lump sum unit price. The court
stated: ‘‘Although [Shackway] was aware that extra
work had been performed on the project and that work
slips documenting such work had been prepared by
Massey Brothers, signed by [the on-site supervisor] and
submitted to [Saunders] for reconciliation . . . she
never received the set given to [Saunders] for her
review.’’ Saunders also never performed any reconcilia-
tion of Massey Brothers’ work slips to verify the plain-
tiff’s claims for payment for extra work not covered by
change orders, and he never presented any invoices for
payment to Hoffman in order to avoid what he predicted
would be Hoffman’s angry reaction over the growing
costs of the project.
By mid-September, 2009, the plaintiff had finished
the majority of the work that it had agreed to perform
under the original contract. The only work not com-
pleted was the screening and installation of the purport-
edly existing gravel bank, for which the plaintiff was
to have received an installment payment of $35,000,
and approximately one half of the general cleanup and
the final inspection, for which the plaintiff was to have
received a total of $15,000 under the contract. The
screening/installation work was not completed
because, as previously noted, no on-site gravel bank
existed, and the remainder of the cleanup work and
the final inspection could not be performed until all
other work on the project was completed. In response
to the plaintiff’s requests for payments for work per-
formed pursuant to the original contract, the plaintiff
received checks totaling $357,500, which accounted for
all but $42,500 of the original $400,000 contract price.
By mid-November, 2009, the plaintiff also had com-
pleted most of the extra work it was required to perform
under the six written change orders, as well as signifi-
cant additional extra work not covered by a written
change order. More specifically, the plaintiff had com-
pleted and been paid in full for work covered by the
first and second change orders. All work on the new
retaining walls covered by the third change order also
was completed, although the plaintiff had received only
two of the four installment payments totaling $215,000
of the $285,391 agreed upon lump sum total for that
work. All work pursuant to the fourth and fifth change
orders was also completed, but the plaintiff had
received no payments for that work. The paving work
under the sixth change order was completed only as
to the upper lot, for which the plaintiff had received
the first two installment payments totaling $150,000.
The paving work to complete the lower lot, the comple-
tion of which would have entitled the plaintiff to receive
the final installment of $39,000, remained unfinished.
With respect to the additional extra work that Signature
had authorized but never included in a written change
order, Saunders never submitted any of the plaintiff’s
invoices for such work to the defendant as it was com-
pleted, and, thus, the plaintiff had not been paid for
that work.
In total, by mid-November, the defendant had paid
the plaintiff $357,500 for work completed under the
original $400,000 contract and an additional $423,450
for extra work performed pursuant to written change
orders, for a total of $780,950. Of that total, the plaintiff
had paid out to its subcontractors $479,510.38, but still
owed them an additional $455,500 for completed work,
including $293,000 to Massey Brothers alone.
The plaintiff made several unsuccessful attempts to
contact Shackway to learn when it could expect to be
paid for the balance due for work already completed.
Meanwhile, the subcontractors and suppliers became
angry with the plaintiff because of its failure to pay
them in full for their work despite repeated demands
for payment, including demands for interest on past due
accounts. Massey Brothers’ on-site supervisor, David
Massey, also complained directly to Hoffman about the
plaintiff’s failure to pay subcontractors. Eventually,
many of the subcontractors, including Massey Brothers,
filed mechanic’s liens against the defendant’s property.
On November 17, 2009, the plaintiff had its attorney
call Hoffman directly to complain about the defendant’s
failure to pay the plaintiff in full for completed work.
The plaintiff’s attorney informed Hoffman that all ongo-
ing work on the project was suspended, and would
remain so, until the plaintiff received payment for the
work it already had completed. An itemized list of all
invoices that the plaintiff claimed to be outstanding
was also faxed to Hoffman. According to that fax, the
outstanding charges totaled $1,332,954.31. Hoffman was
very surprised by the amount demanded because, as a
result of Saunders’ failure to forward work slips and
other documentation to the defendant, Hoffman had
not seen any documents suggesting that such charges
were outstanding.
Hoffman had the defendant’s attorney convene a
meeting the next day, November 18, 2009, with Massey
to determine how much the plaintiff currently owed to
Massey Brothers for work already performed on the
project and to discover if Massey Brothers might coop-
erate with the defendant to complete the project with-
out further involvement of the plaintiff. Neither
Saunders nor the plaintiff were invited to or attended
that meeting. Following the meeting, the defendant
hired Massey Brothers to complete all unfinished site
work and to recruit a paving company to finish the
lower lot. The defendant paid Massey Brothers a total
of $50,000 for its work completing the project by checks
dated November 18 and November 19, 2009. The defen-
dant later paid the paving company hired by Massey
Brothers two installments totaling $66,000. The plaintiff
performed no further work on the project after its attor-
ney contacted the defendant on November 17, 2009.
On December 4, 2009, the plaintiff filed a mechanic’s
lien on the defendant’s property in the amount of $1.4
million.11 On December 9, 2009, the plaintiff filed an
application for a prejudgment remedy of attachment
in the amount of $1.5 million, and, shortly thereafter,
commenced the underlying civil action. The parties
later agreed to an expedited trial date in lieu of a pre-
judgment remedy hearing. In the operative third
amended complaint, the plaintiff alleged causes of
action against the defendant sounding in breach of con-
tract, quantum meruit, unjust enrichment, tortious
interference and violation of CUTPA. See footnote 1 of
this opinion. The defendant filed a counterclaim alleg-
ing breach of the implied covenant of good faith and fair
dealing, fraud, aiding and abetting a breach of fiduciary
duty, and a CUTPA violation.12 The matter was tried to
the court, Sheldon, J., over numerous days beginning on
November 16, 2010, and ending on September 28, 2011.13
On August 16, 2012, the court issued a lengthy memo-
randum of decision disposing of all claims. The court
concluded that, with respect to unpaid work that the
plaintiff had performed on the project, it was entitled
to recover from the defendant $534,157.54 in compensa-
tory damages in count one and an additional $28,556.40
for unjust enrichment. The court declined to award the
plaintiff interest pursuant to General Statutes § 37-3a.
The court further rejected the plaintiff’s claims of tor-
tious interference with contractual relationships and
violation of CUTPA, each of which was premised on
the defendant’s having hired Massey to complete the
project in place of the plaintiff.
With respect to the defendant’s counterclaim, the
court agreed with the defendant that the plaintiff inten-
tionally had overcharged it for some of the work per-
formed, but concluded that such overcharging was not
a basis for ruling in favor of the defendant on those
counts of its counterclaim alleging fraud, aiding and
abetting a breach of fiduciary duty, breach of the cove-
nant of good faith and fair dealing, or a violation of
CUTPA. Nevertheless, the court was persuaded by the
defendant’s argument that the plaintiff had engaged in
an abuse of process by filing an excessive mechanic’s
lien in this matter, and the court concluded that the
abuse of process provided an independent basis for
ruling in favor of the defendant on those counts of its
counterclaim alleging a breach of the covenant of good
faith and fair dealing and a violation of CUTPA. The
court indicated that it would award damages for costs
and attorney’s fees in defending against the excessive
mechanic’s lien, and costs and expenses expended in
prosecuting the CUTPA counterclaim, with the amounts
to be determined at a later hearing. Finally, the court
determined that the defendant was entitled to a total
of $344,544.20 in setoffs against the damages awarded
to the plaintiff because the defendant had paid directly
to the plaintiff’s subcontractors sums owed to them by
the plaintiff.
On December 4, 2012, the court issued a memoran-
dum of decision denying a motion for reargument filed
by the plaintiff. On February 21, 2013, following a hear-
ing, the court issued a supplemental memorandum of
decision awarding the defendant a combined $40,590.64
in damages on the successful counts of its counterclaim
and an additional $78,653.52 in attorney’s fees for the
CUTPA violation. Subtracting the defendant’s total
award of damages and setoffs from the damages
awarded to the plaintiff, the defendant was left owing
the plaintiff a total of $98,925.58. This appeal and cross
appeal followed. Additional facts will be set forth as
necessary.
I
We first turn to those claims on appeal related to the
court’s resolution of the plaintiff’s breach of contract
count and those counts that, in the alternative, sought
restitution. Specifically, the plaintiff claims that the
court improperly (1) determined that there was a ‘‘de
facto’’ termination for convenience of the parties’ con-
tract and used that determination as a basis for award-
ing an incorrect measure of damages; (2) determined
that the defendant was entitled to a setoff for overpay-
ing the plaintiff with respect to paving work covered
by the sixth written change order; (3) failed to hold the
defendant liable for extra work at prices that, although
not incorporated in a formal written change order, were
nevertheless orally authorized by Saunders in his capac-
ity as the defendant’s agent; and (4) made an erroneous
finding that the plaintiff had issued an ultimatum to the
defendant, refusing to return to work until all outstand-
ing invoices had been paid in full. In addition to the
claims raised by the plaintiff, the defendant claims in
its cross appeal that the court improperly held the
defendant liable for work covered by certain written
change orders, despite the fact that there was insuffi-
cient documentation that established the fair and rea-
sonable value of that work. We address each of these
claims in turn after first setting forth our standard of
review as well as some generally applicable principles
of law.
It is axiomatic that ‘‘[t]he scope of our appellate
review depends upon the proper characterization of the
rulings made by the trial court. To the extent that the
trial court has made findings of fact, our review is lim-
ited to deciding whether such findings were clearly
erroneous. [If], however, the trial court draws conclu-
sions of law, our review is plenary and we must decide
whether its conclusions are legally and logically correct
and find support in the facts that appear in the record.’’
(Internal quotation marks omitted.) United Technolo-
gies Corp. v. Groppo, 238 Conn. 761, 767, 680 A.2d
1297 (1996).
‘‘In a case tried before a court, the trial judge is the
sole arbiter of the credibility of the witnesses and the
weight to be given specific testimony. . . . It is within
the province of the trial court, as the fact finder, to
weigh the evidence presented and determine the credi-
bility and effect to be given the evidence.’’ (Citation
omitted; internal quotation marks omitted.) Cadle Co.
v. D’Addario, 268 Conn. 441, 462, 844 A.2d 836 (2004).
‘‘[I]n private disputes, a court must enforce the con-
tract as drafted by the parties and may not relieve a
contracting party from anticipated or actual difficulties
undertaken pursuant to the contract, unless the con-
tract is voidable on grounds such as mistake, fraud or
unconscionability. . . . [C]ourts do not unmake bar-
gains unwisely made. . . . Although parties might pre-
fer to have the court decide the plain effect of their
contract contrary to the agreement, it is not within its
power to make a new and different agreement; con-
tracts voluntarily and fairly made should be held valid
and enforced in the courts.’’ (Citations omitted; empha-
sis omitted; internal quotation marks omitted.)
Schwartz v. Family Dental Group, P.C., 106 Conn. App.
765, 772–73, 943 A.2d 1122, cert. denied, 288 Conn. 911,
954 A.2d 184 (2008). ‘‘In construing an unambiguous
contract, the controlling factor is the intent expressed
in the contract, not the intent which the parties may
have had or which the court believes they ought to have
had. . . . [If] . . . there is clear and definitive con-
tract language, the scope and meaning of that language
is not a question of fact but a question of law.’’ (Citation
omitted; internal quotation marks omitted.) Antonino
v. Johnson, 113 Conn. App. 72, 75, 966 A.2d 261 (2009).
The required elements necessary to sustain an action
for breach of contract are ‘‘the formation of an
agreement, performance by one party, breach of the
agreement by the other party and damages.’’ (Internal
quotation marks omitted.) Chiulli v. Zola, 97 Conn.
App. 699, 706–707, 905 A.2d 1236 (2006). ‘‘The existence
of a contract is a question of fact to be determined by
the trier on the basis of all of the evidence.’’ (Internal
quotation marks omitted.) L & R Realty v. Connecticut
National Bank, 53 Conn. App. 524, 534, 732 A.2d 181,
cert. denied, 250 Conn. 901, 734 A.2d 984 (1999).
Substantial performance by a builder or contractor
ordinarily is a constructive condition of the property
owner’s duty to pay, and, therefore, if there is an unex-
cused failure by the builder or contractor to render
substantial performance, the builder or contractor can-
not maintain an action on the contract for any unpaid
balance of the contract price. Argentinis v. Gould, 219
Conn. 151, 157, 592 A.2d 378 (1991); see also 2
Restatement (Second), Contracts § 237, comment (d)
(1981) (without substantial performance, building con-
tractor cannot recover unpaid balance of contract, but
may have claim for restitution).14 ‘‘Pursuant to the doc-
trine of substantial performance, a technical breach of
the terms of a contract is excused, not because compli-
ance with the terms is objectively impossible, but
because actual performance is so similar to the required
performance that any breach that may have been com-
mitted is immaterial.’’ (Internal quotation marks omit-
ted.) Mastroianni v. Fairfield County Paving, LLC,
106 Conn. App. 330, 340–41, 942 A.2d 418 (2008). ‘‘[T]he
general rule is that a contractor who substantially per-
forms under a building or construction contract is enti-
tled to recover the contract price minus the cost of
repairing the defects or completing the unfinished part
of the work so as to bring the construction up to the
level required by the contract . . . .’’ (Footnote omit-
ted.) 24 R. Lord, Williston on Contracts (4th Ed. 2002)
§ 66:14, pp. 448–51. ‘‘[W]hether a building contract has
been substantially performed is ordinarily a question
of fact for the trier to determine.’’ (Internal quotation
marks omitted.) Clem Martone Construction, LLC v.
DePino, 145 Conn. App. 316, 339, 77 A.3d 760, cert.
denied, 310 Conn. 947, 80 A.3d 906 (2013).
A contractor may be excused from its duty of substan-
tial performance, however, and, thus, may file an action
based upon the contract, if the owner repudiates the
contract or breaches it outright. ‘‘A repudiation is a
manifestation by one party to the other that the first
cannot or will not perform at least some of its obligation
under the contract. It may be by words or other con-
duct.’’ (Emphasis added; footnote omitted.) 2 E. Farn-
sworth, Contracts (3d Ed. 2004) § 8.21, p. 558. ‘‘[A]n
anticipatory breach discharges any remaining duties of
the nonbreaching party, and once there has been a
repudiation that party is no longer required to hold
himself ready, willing and able to perform.’’ McKenna
v. Woods, 21 Conn. App. 528, 534, 574 A.2d 836 (1990);
see also 2 E. Farnsworth, supra, § 8.20, p. 553. In con-
struction cases, we have stated that ‘‘the failure to make
progress payments is a breach of contract so substantial
as to render the contract nugatory. . . . The failure
to make installment payments when due goes to the
essence of a contract. . . . A failure to make any pay-
ments for work in progress goes to the root of the
bargain of the parties and defeats the object of the
parties in making the agreement.’’ (Citations omitted.)
Silliman Co. v. S. Ippolito & Sons, Inc., 1 Conn. App.
72, 75–76, 467 A.2d 1249 (1983), cert. denied, 192 Conn.
801, 470 A.2d 1218 (1984). Accordingly, in the face of
a property owner’s repudiation or material breach of
a construction contract, the contractor properly may
exercise its right to seek contract damages, including
lost profits, even if it has not substantially completed
its own performance under the contract. See 13 Am.
Jur. 2d 107, Building and Construction Contracts
§ 112 (2009).
‘‘It is axiomatic that the sum of damages awarded as
compensation in a breach of contract action should
place the injured party in the same position as he would
have been in had the contract been performed. . . .
The injured party, however, is entitled to retain nothing
in excess of that sum which compensates him for the
loss of his bargain. . . . Guarding against excessive
compensation, the law of contract damages limits the
injured party to damages based on his actual loss caused
by the breach. . . . The concept of actual loss accounts
for the possibility that the breach itself may result in
a saving of some cost that the injured party would
have incurred if he had had to perform. . . . In such
circumstances, the amount of the cost saved will be
credited in favor of the wrongdoer . . . that is, sub-
tracted from the loss . . . caused by the breach in cal-
culating [the injured party’s] damages.’’ (Citations
omitted; internal quotation marks omitted.) Argentinis
v. Gould, supra, 219 Conn. 157–58.
‘‘The plaintiff has the burden of proving the extent
of the damages suffered. . . . Although the plaintiff
need not provide such proof with [m]athematical exacti-
tude . . . the plaintiff must nevertheless provide suffi-
cient evidence for the trier to make a fair and reasonable
estimate.’’ (Internal quotation marks omitted.) Naples
v. Keystone Building & Development Corp., 295 Conn.
214, 224, 990 A.2d 326 (2010). With the foregoing princi-
ples in mind, we turn to the specific claims of the
parties.
A
 The plaintiff first claims that the court improperly
concluded that the parties’ contract had been termi-
nated for convenience. The plaintiff argues that, as a
result, the court limited the plaintiff’s recovery to the
actual value of time and materials provided for unpaid
work completed prior to the purported termination
rather than permitting the plaintiff to recover any expec-
tation damages for breach of contract, which would
have been calculated using the prices negotiated by the
parties and would have included recovery of lost profits
for work that the plaintiff was prevented from complet-
ing because of the defendant’s breach. In response, the
defendant argues that the court never found a termina-
tion for convenience as claimed by the plaintiff, but
rather that it found a ‘‘de facto’’ termination of the
contract that was the result of a breakdown in the
parties’ relationship, for which the court found each
party bore responsibility. The defendant also argues
that because the court found that the plaintiff had failed
to substantially complete its performance under the
contract, the plaintiff was not entitled to an expectation
measure of damages.
Having carefully reviewed the court’s memorandum
of decision, we agree with the plaintiff that the court’s
decision can only be construed as having concluded
that the defendant ‘‘de facto’’ terminated the contract
for convenience. By resolving the matter as it did, the
court failed to reach the legal conclusion that was inevi-
table based on the court’s subordinate findings, namely,
that the defendant’s actions constituted a material
breach or an anticipatory repudiation of the parties’
construction contract. We also agree with the plaintiff
that in calculating the amount that the plaintiff was
owed by the defendant for the work it had completed
prior to the purported termination, the court purported
to use the measure of damages set forth in the termina-
tion for convenience clause of the contract rather than
awarding damages based on breach of contract princi-
ples. Nevertheless, as we will explain in more detail,
our review of the court’s detailed calculations reveals
that, in large part, those calculations would not have
differed materially had the court applied an expectation
measure of damages because most of the work on the
project had been completed and, where applicable, the
court used the lump sum prices negotiated by the plain-
tiff. Accordingly, although a new hearing in damages
is, to some degree, necessary, any such hearing will be
significantly limited in scope.
Whether the contract was terminated presents a ques-
tion of fact that we review under our clearly erroneous
standard of review. We begin our discussion with an
examination of the court’s decision. The court chose
to address the first three counts of the complaint collec-
tively, presumably because each was grounded on com-
mon allegations that the defendant had failed fully to
compensate the plaintiff for work it had completed on
the project. The court further divided its discussion into
two broad categories based on the relief sought by
the plaintiff: payment of the remaining balance of the
$400,000 original contract price and payment for extra
work that the plaintiff completed above and beyond
what it had agreed to perform under the original
contract.
With respect to the work the plaintiff had agreed to
perform under the original contract, the court explained
that, by the time the plaintiff had stopped working on
the construction project in mid-November, 2009, it had
completed most of the work, for which it had received
$357,500 in payments. The plaintiff had not, however,
completed the screening and installation of the purport-
edly existent gravel bank for which work it was to have
received an additional $35,000, or approximately one
half of the general cleanup work and final inspection for
which the plaintiff was to have received an additional
$15,000. The plaintiff claimed that it was entitled to
receive the balance of the contract price or $42,500 from
the defendant because the defendant had breached the
contract by failing to make timely progress payments
on extra work and, ultimately, by replacing it with its
subcontractor, Massey Brothers. The defendant took
the position that the plaintiff had failed to substantially
perform the work under the original contract and that,
not only was the plaintiff not entitled to any additional
payment, but, in fact, the defendant had overpaid the
plaintiff and was entitled to a partial reimbursement of
the $357,500.
According to the court, whether the plaintiff was
entitled to recover any of the remaining $42,500 under
the original contract depended on the answers to three
inquiries: first, whether the original contract was
enforceable, which the defendant challenged at trial;
second, if it was enforceable, whether the work required
under the contract had been substantially completed
by the time the plaintiff stopped working on the project
in November, 2009; and third, if such work was not
substantially completed, whether the defendant never-
theless was responsible for the noncompletion ‘‘by not
paying the plaintiff for its extra work and/or by making
separate arrangements with the plaintiff’s subcontrac-
tors and others to complete the [p]roject without the
plaintiff’s further participation.’’ The court’s inquiries
are consistent with determining whether the plaintiff
had satisfied its burden of proof with respect to ele-
ments necessary to sustain an action for breach of con-
tract. See Chiulli v. Zola, supra, 97 Conn. App. 706–707.
The court rejected the defendant’s argument that the
material terms in the original contract pertaining to the
scope of the work to be completed by the plaintiff
were too indefinite and uncertain to be enforceable as
a ‘‘ ‘meeting of the minds’ . . . .’’ As a result, the court
found that the contract was enforceable. That determi-
nation is not directly challenged by the defendant in its
cross appeal.
Having found that there was an enforceable contract,
the court next turned to whether the plaintiff substan-
tially had completed its own performance under the
original contract, and, thus, was entitled to the defen-
dant’s return performance, i.e., full payment of the
$400,000 contract price. The court found that the plain-
tiff had not substantially completed its performance.
Although it determined that the screening and installa-
tion of the purported on-site gravel bank could not
be considered as unfinished work because such work
could not have been performed,15 the court found that
there was substantial additional work required by the
original contract that remained undone, including the
general cleanup work and the final inspection.16 On
appeal, the plaintiff does not challenge the court’s fac-
tual finding regarding substantial performance.
The court then turned to whether the plaintiff’s failure
to substantially perform nevertheless ‘‘was attributable
to the fault of the defendant,’’ either by the defendant
having failed to make progress payments for extra work
or by it having made arrangements to complete the
project without the plaintiff. Although not expressly
characterized as such by the court, we view this third
inquiry as encompassing whether the defendant
breached the agreement, thereby excusing any lack of
substantial performance on the part of the plaintiff and
permitting it to recover damages based on the contract
price. It is at this stage in the court’s analysis that the
court turned to the issue of contract termination.
Rather than focusing squarely on the legal question
of whether the plaintiff had presented sufficient evi-
dence to establish a breach of contract on the part
of the defendant, the court opted to take a decidedly
equitable approach to the remainder of its analysis,
including speculating about possible motivations and
justifications for the actions of the parties.17 The court
also discussed in some detail the role that Saunders
played in creating the environment that arguably led to
the parties’ contractual dispute, finding that Saunders
had ‘‘ ‘played’ ’’ the parties against each other ‘‘without
colluding or conspiring with either of them.’’18 In sug-
gesting that the defendant’s failure timely to pay the
plaintiff for extra work largely was the result of Saun-
ders’ actions, the court attached no legal significance
to the fact that Saunders was hired by the defendant
to act as its manager and, thus, its agent, and that the
defendant had a duty to oversee the actions of its agent
or risk being held accountable for the results of
those actions.
The court eventually reached the conclusion that
both the plaintiff and the defendant ‘‘bore significant
responsibility for the breakdown in the parties’ rela-
tionship, which effectively terminated their contract.
In sum, although neither party was completely at fault
for the de facto termination of the contract and its
consequences, due in major part to the connivance of
[Saunders]—the one person who plainly saw this train
wreck coming—neither was completely blameless,
either, by virtue of its own intransigent, self-serving
conduct.’’ (Emphasis added.) This language seems to
support the defendant’s view of the court’s decision,
namely, that the parties mutually had walked away from
their agreement.
The court, however, continued: ‘‘In the final analysis,
the court believes it appropriate for the defendant to
compensate the plaintiff for all of the work it actually
performed under the original contract, plus its reason-
able profits thereon, because that is the measure of
compensation to which the plaintiff would have been
entitled under the contract had the defendant formally
terminated the contract without cause, under paragraph
[eight] thereof. Although the plaintiff did not complete
all of the work required of it under the original contract,
it cannot reasonably be found to have abandoned the
work. The court finds instead that the reason for its
noncompletion of such work was the defendant’s deci-
sion to terminate its involvement in the project. That
termination, though understandable and to some degree
justifiable in light of the unexpectedly large size of the
plaintiff’s all-or-nothing demand for payment on the eve
of the closure of the asphalt plants for the winter, was
not a termination for cause, under paragraph [nine] of
the contract, because it was not preceded by proper
notice of deficiency and opportunity to cure, as required
by the contract. Instead, it was a de facto termination
without cause, which, although permitted, with proper
notice, under paragraph [eight] of the contract, had the
consequence of requiring that the plaintiff be paid for
all work it had performed to the point of termination
plus costs and reasonable profits based upon the perfor-
mance of such work. The defendant cannot reasonably
excuse itself from its obligation to make payment for
work done and profits earned under the contract prior
to termination based upon its own failure to give proper
notice of termination under the contract. Because the
defendant did effectively terminate the contract with-
out cause, without engaging in any of the formal proce-
dures called for by the contract to effect a termination
for cause, the plaintiff is entitled to compensation for
its work in an amount representing the fair value of
that work in relation to all work required of it under
the contract.’’ (Emphasis added.)
It is not entirely clear why the court incorporated
the concept of a de facto or effective termination of
the contract into its analysis. As previously noted, termi-
nation of the contract, de facto or otherwise, was not
raised as an issue in either of the parties’ posttrial briefs.
Further, the court cited no case law or treatise that
authorized a court in a breach of contract action to
balance the equities involved in some manner and to
find a ‘‘de facto’’ termination of the contract rather than
address whether a material breach had occurred as
alleged in the complaint before it. We can find no other
examples in Connecticut case law of a court finding
that a ‘‘de facto’’ termination of a contract had occurred.
Although it is generally accepted that contracting
parties may reserve the right to terminate a contract
for convenience or cause upon a specified period of
notice; 13 J. Perillo, Corbin on Contracts (Rev. Ed. 2003)
§ 68.9 (3), p. 258; ‘‘[i]f a party who has a power of
termination by notice fails to give the notice in the
form and at the time required by the agreement, it is
ineffective as a termination.’’ Id., pp. 258–59. ‘‘One who
deviates from the terms and the circumstances speci-
fied in the agreement for giving notice . . . may be
regarded as having repudiated the contract, with all the
effects of repudiation including giving the injured party
a right to damages . . . .’’ Id., pp. 260–61; see also D.
Rosengren, 13 Connecticut Practice Series: Construc-
tion Law (2005) § 1:19, p. 27 (failure to follow notice
provision of termination clause invalidates termination
and amounts to material breach of contract).
The contract at issue in the present case contained
two clauses by which the defendant, through its con-
struction manager, reserved a right to terminate the
parties’ contract upon a specified period of notice. Sec-
tion eight of the contract, titled ‘‘termination for conve-
nience,’’ provides that the construction manager may
terminate the contract at any time and without cause
‘‘on not less than five (5) days notice to the [plaintiff].’’
Section eight further provides that if the contract is
terminated for convenience, ‘‘[the plaintiff] shall have
the right to recover . . . payment for all [w]ork per-
formed to the date of termination and costs incurred
and reasonable profits sustained on that portion of the
[w]ork performed prior to termination.’’ Section nine
of the contract, titled ‘‘termination for cause,’’ similarly
provides the construction manager with the right to
terminate the contract, but only on the basis of a default
by the plaintiff in its performance and only if the plaintiff
was given notice and five days to correct any default.
The court expressly found that the defendant had
failed to give the required notice to effectuate either a
termination for cause or a termination for convenience
as those terms were understood pursuant to the con-
tract, and the defendant does not challenge those find-
ings. The court also expressly found that the plaintiff
had not abandoned its duty to perform but was pre-
vented from completing its performance because of the
defendant’s decision to end the plaintiff’s involvement
in the project prior to its completion. Although the court
stopped short of addressing whether the defendant’s
failure to follow the notice provision necessary to effec-
tuate a termination in accordance with the contract
amounted to a material breach of the contract, we con-
clude that such a conclusion necessarily follows from
the court’s other findings. To hold otherwise would
excuse the defendant’s nonperformance of a contrac-
tual obligation, and would create a new and different
agreement, which courts cannot do. See Collins v.
Sears, Roebuck & Co., 164 Conn. 369, 374, 321 A.2d 444
(1973) (in construing contract, court cannot disregard
words used by parties or revise, add to, or create new
agreement). The approach taken by the court in this
matter neglects the court’s duty to enforce, rather than
unmake, the bargains of the parties. See Schwartz v.
Family Dental Group, P.C., supra, 106 Conn. App. 773.
We agree with the plaintiff that the court’s conclusion
that there was a de facto termination of the contract
was improper and cannot stand. We do not agree with
the plaintiff, however, that a new trial is warranted
under the circumstances of this case.
A new trial is not necessary because it is inherent in
the court’s subordinate findings that there was a breach
of contract by the defendant. We recognize that the
court never made any express finding as to whether
the defendant breached the contract, although the court
did award damages in favor of the plaintiff on count
one of its complaint. We often have stated that whether
a contract has been breached is a question of fact; see,
e.g., Seligson v. Brower, 109 Conn. App. 749, 753, 952
A.2d 1274 (2008); and that this court lacks the authority
to make findings of facts or draw conclusions from
primary facts found. See Hartford v. McKeever, 139
Conn. App. 277, 283 n.7, 55 A.3d 787 (2012), aff’d, 314
Conn. 255, 101 A.3d 229 (2014). Factual conclusions
may be drawn on appeal, however, if ‘‘the subordinate
facts found [by the trial court] make such a conclusion
inevitable as a matter of law . . . or [if] the undisputed
facts [as they appear] in the record make the factual
conclusion so obvious as to be inherent in the trial
court’s decision.’’ (Citations omitted; internal quotation
marks omitted.) State v. Reagan, 209 Conn. 1, 8–9, 546
A.2d 839 (1988).
Here, a finding of a breach of contract inevitably
follows from the court’s findings that the defendant’s
actions amounted to a ‘‘de facto’’ termination without
cause of the plaintiff’s involvement in the project but
that the defendant failed to give the plaintiff proper
notice under the contract’s termination for convenience
clause. As previously stated, a party’s failure to comply
with the notice provision in a termination clause invali-
dates any attempted termination and amounts to a mate-
rial breach of the contract. See 13 D. Rosengren, supra,
§ 1:19, p. 27. The court found that there was a valid
contract and that, although the plaintiff failed to sub-
stantially complete its performance, ‘‘the reason for
its noncompletion of such work was the defendant’s
decision to terminate its involvement in the project.’’
On the basis of the record before us, we conclude that
a remand for a new trial on the merits of the breach
of contract count is unnecessary as all elements of a
cause of action for breach of contract have been proven.
Although a new trial on the merits is unnecessary, a
new hearing in damages, limited in scope, is required.
With respect to the work governed by the original con-
tract, the court determined that the plaintiff was entitled
to compensation by the defendant ‘‘for all of the work
it actually performed under the original contract, plus
its reasonable profits thereon, because that is the mea-
sure of compensation to which the plaintiff would have
been entitled under the contract had the defendant for-
mally terminated the contract without cause . . . .’’
The court found that the $357,500 that the plaintiff
already had received for work it completed under the
original contract was ‘‘a fair approximation of the fair
value it is entitled to receive for the performance of
such work.’’ The court concluded, therefore, that the
plaintiff was not entitled to any further payments from
the defendant and that the defendant was ‘‘entitled to
no credit against any sums ultimately awarded to the
plaintiff in this case on the ground of overpayment.’’
Because we have concluded as a matter of law that
the defendant breached the parties’ contract rather than
terminated it for convenience, we necessarily also con-
clude that the court should have awarded expectation
damages to the plaintiff. In other words, the court
should have sought to place the plaintiff in the same
position it would have been in had it been able to com-
plete its performance. If the plaintiff had performed all
the work it had agreed to perform under the terms of
the original contract, it would have been entitled to
collect payment of the full $400,000 contract price.19
Accordingly, in determining whether the plaintiff was
entitled to more than the $357,500 that the defendant
already had paid for work the plaintiff performed under
the original contract, the court should have started with
the contract price and then subtracted from it any costs
the plaintiff saved by not having to complete its perfor-
mance. Argentinis v. Gould, supra, 219 Conn. 157–58.
If the difference was more than $357,500, the plaintiff
was entitled to additional compensation. If not, then
the plaintiff was fully compensated and cannot establish
any additional actual loss resulting from the breach.20
Because we cannot ascertain on the basis of the record
before us what costs the plaintiff would have incurred
if it had completed all work required of it under the
original contract and, thus, cannot calculate the savings
resulting from the breach, that issue must be deter-
mined at a new hearing in damages.21
Our determination that the defendant breached the
parties’ contract and that the plaintiff therefore was
entitled to recover expectation damages applies with
equal effect to payment for any of the extra work that
the plaintiff performed pursuant to a validly executed
change order because those change orders amended
the original contract terms. Accordingly, in order to
ensure that the plaintiff received the benefit of its bar-
gain for any unpaid work covered by a change order,
the court, in calculating what the plaintiff was owed
by the defendant, was required to utilize the lump sum
or per unit price indicated on the change order, if one
existed. If there was no negotiated lump sum or per
unit price associate with a written change order, then,
in accordance with the terms of section five of the
contract, the price the plaintiff reasonably would have
expected to receive would have been the equivalent of
the actual cost expended plus a 20 percent fee repre-
senting the plaintiff’s overhead and profits. To the
extent that the court determined that the plaintiff had
performed extra work or provided materials that were
not directly covered by either the original contract or
a valid written change order, such work fell outside the
scope of the parties’ contractual agreement with respect
to the project, and, therefore, the plaintiff only was
entitled to reimbursement for its performance on a the-
ory of unjust enrichment for an amount equal to the
benefit it conferred on the defendant. See United
Coastal Industries, Inc. v. Clearheart Construction Co.,
71 Conn. App. 506, 515, 802 A.2d 901 (2002).
Our review of the extensive findings and detailed
calculations made by the court reveals that the court
consistently and properly valued the work and materials
provided by the plaintiff by using, whenever applicable,
the price negotiated by the parties. In those instances
in which the court found that work or materials pro-
vided by the plaintiff did not fall within the scope of a
written change order, the court calculated the reason-
able value conferred on the defendant and awarded
such sums to the plaintiff pursuant to the unjust enrich-
ment count. With the exception of the paving work
governed by the sixth change order, which we will
address in the following subsection, the plaintiff has
failed to raise specific challenges to the court’s calcula-
tions or findings regarding extra work and has not other-
wise demonstrated that the court’s calculations should
be revisited on remand.
In sum, we agree with the plaintiff that the court
improperly concluded that the defendant terminated
the contract for convenience and incorrectly applied
the liquidated damages provision contained in the con-
tract’s termination for convenience clause. A new hear-
ing in damages is necessary with respect to the work
completed pursuant to the original contract limited to
whether the plaintiff is entitled to any portion of the
original contract price not paid by the defendant.
B
We next turn to the plaintiff’s claim that the court
miscalculated the damages it was entitled to collect
pursuant to the sixth written change order, which gov-
erned paving work necessary to finish the upper and
lower lots. For the following reasons, we agree that the
court miscalculated both what was owed to the plaintiff
and the setoff due to the defendant for overpayment.
‘‘[W]e review [a] trial court’s damages award under
the clearly erroneous standard, under which we over-
turn a finding of fact when there is no evidence in the
record to support it . . . or when although there is
evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction
that a mistake has been committed.’’ (Internal quotation
marks omitted.) Naples v. Keystone Building & Devel-
opment Corp., supra, 295 Conn. 225. As we have already
stated, ‘‘[i]n an action for breach of contract, the general
rule is that the award of damages is designed to place
the injured party, so far as can be done by money, in
the same position as that he would have been in had the
contract been performed.’’ (Internal quotation marks
omitted.) Schlicher v. Schwartz, supra, 58 Conn. App.
88.
Pursuant to the sixth change order, the defendant
agreed to pay the plaintiff a total of $189,000 to do
paving and other related work on the upper and lower
lots. The plaintiff was to be paid in three installments:
an initial $80,000 deposit, $70,000 when the upper lot
was completed, and $39,000 upon completion of the
lower lot. By the time it stopped working on the project,
the plaintiff had completed all paving work on the upper
lot and had received the first two installment payments
totaling $150,000. Although the plaintiff initially claimed
a right to recover the remaining $39,000 balance due,
it changed its position at trial, no longer seeking any
additional payments under the sixth change order, but
arguing that it was entitled to retain all of the $150,000
it already had received. The defendant took the position
that it had done nothing to prevent the plaintiff from
performing all the work required under the sixth change
order, and, accordingly, the plaintiff was entitled to
recover for its work on the upper lot only an amount
equal to the value conferred on the defendant on a
theory of unjust enrichment, which the defendant sug-
gested was $86,103, the amount the plaintiff had paid
to its paving subcontractor to complete the work on
the upper lot. Thus, according to the defendant, it had
overpaid the plaintiff and was entitled to a reimburse-
ment of $63,897. The court ordered a reimbursement,
but not in the amount sought by the defendant.
The court first reiterated its finding that the defendant
was responsible for the plaintiff’s failure to complete
the paving work by ‘‘de facto’’ terminating the plaintiff’s
involvement in the project for convenience, albeit with-
out providing proper notice of the termination as pro-
vided for in the parties’ contract. Consistent with its
previous analysis, the court reasoned that the plaintiff
was entitled to be paid for all work it had completed
up to the point of termination, including costs and rea-
sonable profits. In calculating that amount, the court
first found that the $189,000 price that the parties had
agreed to in the sixth change order was controlling as
to the total value of all the paving work, but that the
$150,000 that the plaintiff had received upon finishing
the upper lot did not fairly reflect the value of the paving
work actually completed. The court found on the basis
of its review of the paving subcontractor’s contempora-
neous billing to the plaintiff that the subcontractor
would have charged the plaintiff $135,000 to complete
both lots. The $86,103 that the subcontractor charged
the plaintiff for completing only the upper lot thus repre-
sented 63.78 percent of the total work. The court con-
cluded that 63.78 percent of $189,000, or $120,544.20,
equaled the amount that the plaintiff was entitled
receive for the paving work on the upper lot. Because
the plaintiff had received $150,000 from the defendant,
the court agreed with the defendant that the plaintiff
was overpaid but only by $29,455.80, and it ordered a
setoff in that amount against the plaintiff’s total dam-
age award.
As set forth in the preceding subsection, the court
should have concluded that the defendant breached the
parties’ contract by terminating the plaintiff’s involve-
ment in the construction project without proper notice
and hiring Massey Brothers to oversee the remainder
of all unfinished work on the project, including the
remainder of the paving work needed to complete the
lower lot. The court’s decision to use the measure of
damages contained in the contract’s termination for
convenience clause was improper. Because the defen-
dant breached the contract, the plaintiff was entitled
to receive an amount of damages sufficient to place it
in the same position it would have been in if it had
completed all of the paving work under the sixth change
order. See Schlicher v. Schwartz, supra, 58 Conn.
App. 88.
If the plaintiff had been able to complete the work on
the lower lot it would have received payments totaling
$189,000; however, it is necessary also to credit in favor
of the defendant any amount the plaintiff saved by not
having to complete the paving work for the lower lot.
See Argentinis v. Gould, supra, 219 Conn. 158.
According to the figures found by the court, the plaintiff
would have paid its paving subcontractor a total of
$135,000, or an additional $48,897 to finish the lower
lot. Therefore, $48,897 represents a fair and reasonable
estimate of the plaintiff’s savings. Accordingly, the
plaintiff was entitled to receive $189,000 less $48,897
or $140,103 in order to achieve the full benefit of its
bargain with respect to the sixth change order. The
plaintiff received $150,000 from the defendant for its
work; accordingly, there appears to be no additional
compensatory damages as a result of the defendant’s
breach. The defendant, on the other hand, only overpaid
the plaintiff by $9897, not $29,455.80 as calculated by
the court. The defendant’s total setoff therefore must
be reduced by $19,558.80.
C
The plaintiff next claims that the court improperly
failed to hold the defendant bound by Saunders’ oral
approval of certain overtime payments for labor and
equipment that were not included as part of a written
change order. The plaintiff acknowledges that the con-
tract expressly provides that, to be effective, any and
all changes to the parties’ agreement needed to be
reduced to writing. Nevertheless, the plaintiff argues
that because Saunders was the defendant’s agent, he
waived any such requirement ‘‘due to the circum-
stances.’’ We decline to review this claim because it is
not adequately briefed.
‘‘[W]e are not required to review claims that are inade-
quately briefed. . . . We consistently have held that
[a]nalysis, rather than mere abstract assertion, is
required in order to avoid abandoning an issue by failure
to brief the issue properly. . . . [F]or this court judi-
ciously and efficiently to consider claims of error raised
on appeal . . . the parties must clearly and fully set
forth their arguments in their briefs. We do not reverse
the judgment of a trial court on the basis of challenges
to its rulings that have not been adequately briefed.
. . . The parties may not merely cite a legal principle
without analyzing the relationship between the facts of
the case and the law cited. . . . [A]ssignments of error
which are merely mentioned but not briefed beyond a
statement of the claim will be deemed abandoned and
will not be reviewed by this court.’’ (Internal quotation
marks omitted.) Paoletta v. Anchor Reef Club at Bran-
ford, LLC, 123 Conn. App. 402, 406, 1 A.3d 1238, cert.
denied, 298 Conn. 931, 5 A.3d 491 (2010).
Here, after quoting excerpts from Saunders’ trial testi-
mony without placing the quoted material into context
or explaining the significance of the language quoted,
the plaintiff asserts that the court should have found
that the defendant was bound by charges that Saunders
orally agreed to pay and that Saunders had waived any
requirement that changes to the parties’ contractual
agreement be in writing. In support of its waiver asser-
tion, the plaintiff cites to Wexler Construction Co. v.
Housing Authority, 144 Conn. 187, 128 A.2d 540 (1956),
including a parenthetical quotation indicating that con-
tract provisions requiring written change orders can be
waived by the parties so that an owner becomes liable
for extra work done by oral direction. The plaintiff’s
discussion ends there; it does not analyze the asserted
legal principle further or explain the relationship
between the facts asserted and the law cited. It does
not discuss, for example, under what circumstances
courts will find a waiver and whether such circum-
stances were present here. Because the plaintiff makes
mere conclusory assertions in its main brief regarding
this claim rather than providing us with legal analysis,
we deem the claim abandoned.
D
The plaintiff next claims that the court made an erro-
neous factual finding that the plaintiff’s attorney had
issued an ‘‘ ‘ultimatum’ ’’ to the defendant that the plain-
tiff would not return to work on the project unless all
outstanding invoices were paid. The plaintiff argues
that this allegedly erroneous finding ‘‘formed the basis
for much of the invective the trial court held against
[it] throughout the remainder of the decision’’ and that
the ‘‘error was so prejudicial to the other findings of
the trial court that a new trial is required.’’ The defen-
dant argues that there is no merit to the plaintiff’s claim
because the plaintiff admitted that fact throughout the
proceedings. We find the defendant’s argument per-
suasive.
‘‘If the factual basis of the court’s decision is chal-
lenged, our review includes determining whether the
facts set out in the memorandum of decision are sup-
ported by the evidence or whether, in light of the evi-
dence and the pleadings in the whole record, those facts
are clearly erroneous. . . . A court’s determination is
clearly erroneous only in cases in which the record
contains no evidence to support it, or in cases in which
there is evidence, but the reviewing court is left with
the definite and firm conviction that a mistake has been
made.’’ (Internal quotation marks omitted.) Baron v.
Culver & Associates, LLC, 106 Conn. App. 600, 601–602,
942 A.2d 552 (2008).
In its memorandum of decision, the trial court
included as part of its statement of facts that the plain-
tiff’s attorney, Lawrence G. Rosenthal, had telephoned
Hoffman on behalf of his client to complain about the
defendant’s failure to pay the plaintiff for completed
work, and ‘‘to inform him that all ongoing work on the
project had been suspended and would remain sus-
pended until such payments were made in full.’’ Later,
in rejecting the plaintiff’s claim of tortious interference,
the court described this interaction as the plaintiff issu-
ing an ‘‘ultimatum’’ that left ‘‘the defendant a stark
choice: pay what we demand or our work for you is
over.’’
The plaintiff argues that Hoffman was the only wit-
ness who testified at trial about the telephone conversa-
tion between himself and Rosenthal, and that Hoffmann
testified only that he was contacted on the telephone
by Rosenthal about the existence of outstanding bills
from the plaintiff to the defendant. Hoffman never testi-
fied that Rosenthal had informed him that the plaintiff
would not return to work until all outstanding bills
were paid. Accordingly, the plaintiff argues, the court’s
factual finding of an ‘‘ultimatum’’ was clearly erroneous
because it was not supported by any evidence adduced
at trial.
The defendant does not challenge the plaintiff’s asser-
tions with respect to the evidence presented at trial.
Instead, the defendant argues that the plaintiff’s claim
lacks merit because the plaintiff ‘‘admitted this fact
throughout the proceedings in this case.’’ In support
of its argument, the defendant cites to the following
statements that the plaintiff made in pleadings that are
part of the record as a whole. First, and most significant,
in the plaintiff’s posttrial proposed findings of facts,
the plaintiff stated in relevant part: ‘‘Counsel for [the
plaintiff] advised Hoffman that until he paid [the plain-
tiff] for work performed, [the plaintiff] was not
returning to the site.’’ Second, in an affidavit that the
plaintiff attached to its application for a prejudgment
remedy, the plaintiff attested that ‘‘on or about Novem-
ber 17, 2009, [the plaintiff] complained to [Hoffman]
about the lack of payment and advised him . . . that
work would cease on the project for lack of payment.’’
Finally, included in the parties’ joint trial management
report was the statement that ‘‘[the plaintiff] refused
to complete performance until payments were made.’’
We agree with the defendant that the plaintiff cannot
prevail on its claim that the court made an erroneous
factual finding because that finding is supported by the
plaintiff’s own factual admissions, which are part of
the record as a whole. ‘‘Judicial admissions are volun-
tary and knowing concessions of fact by a party or a
party’s attorney occurring during judicial proceedings.
. . . They excuse the other party from the necessity
of presenting evidence on the fact admitted and are
conclusive on the party making them. . . . Admis-
sions, whether judicial or evidentiary, are concessions
of fact, not concessions of law.’’ (Internal quotation
marks omitted.) Brye v. State, 147 Conn. App. 173, 178,
81 A.3d 1198 (2013).
The plaintiff’s own proposed findings of fact unequiv-
ocally stated that the plaintiff’s counsel had advised
Hoffman that the plaintiff would not return to the work-
site until it was paid for work already performed. The
proposed findings of facts submitted to the trial court
are akin to judicial admissions and certainly are part
of the record as a whole. Hoffman’s trial testimony in
no way conflicts with the court’s factual finding, nor has
the plaintiff cited to any other contradictory evidence in
the record that would lead us to believe that the court
made a mistake in describing the conversation between
Hoffman and the plaintiff’s counsel. In sum, the plaintiff
is estopped from arguing that the court’s finding of
fact, which was nearly identical to one of the plaintiff’s
proposed facts, was clearly erroneous.
E
 We next turn to the defendant’s claim, raised in its
cross appeal, that the court improperly calculated the
amount owed to the plaintiff for work it performed
pursuant to the third and sixth written change orders.
According to the defendant, the plaintiff failed to pro-
vide sufficient documentation prior to the approval of
the change orders to establish the fair and reasonable
value of the lump sum rates, and, therefore, the court
should not have used those amounts in its calculations.
We are not persuaded.
As previously set forth, section five of the original
contract governs how changes to the scope of work
to be performed by the plaintiff were to be handled,
including how the price to be paid for such work was
to be determined. ‘‘Although ordinarily the question of
contract interpretation, being a question of the parties’
intent, is a question of fact . . . [if] there is definitive
contract language, the determination of what the parties
intended by their contractual commitments is a ques-
tion of law.’’ (Citations omitted; internal quotation
marks omitted.) Levine v. Massey, 232 Conn. 272, 277–
78, 654 A.2d 737 (1995). To the extent that the defen-
dant’s claim requires us to review the court’s
interpretation of the language in section five of the
contract, our review is plenary.
Section five provides in relevant part that changes
to the scope of the work were to be set forth in writing
by the construction manager and that the price to be
paid for such work was to be ‘‘based on mutual accep-
tance of a lump sum properly itemized and supported
by sufficient data to permit valuation by [the] [c]on-
struction [m]anager.’’ If the parties could not agree on
such a lump sum price, the plaintiff would ‘‘be paid on
a time and material cost basis,’’ and ‘‘[a] fee of 20 [per-
cent] [would] be added to the costs for [c]ontractor
overhead and profit.’’
We find, in accordance with the trial court, no ambi-
guity in the language employed in section five. We reject
the defendant’s suggestion that section five should be
construed as mandating that any lump sum amount
could not exceed the price of costs and materials plus
20 percent. Rather, like the trial court, we read section
five ‘‘to permit the construction manager and the [plain-
tiff] to agree to the performance of extra work under
a lump sum change order provided that the work to
be performed was properly itemized and supported by
sufficient data to permit its valuation by the construc-
tion manager. In making his valuation decision, [Saun-
ders], acting for Signature in its capacity as construction
manager, had to decide if the detail presented to him
by the plaintiff as to the proposed work was sufficient
to enable him, in light of his training and experience
in the field of construction and his familiarity with pre-
vailing market prices charged for such work, to value
the work and agree to a price at which to have it per-
formed. Under the contract, the ultimate decision on
that issue belonged only to the construction manager,
not to the defendant, as its principal, or anyone else.
Hence, the true measure of the sufficiency of the data
provided by the contractor to support any price agreed
to in a lump sum change order was its sufficiency to
the construction manager to set that price.’’ (Empha-
sis omitted.)
Accordingly, resolution of the defendant’s claim thus
turns on whether Saunders’ valuation decision was sup-
ported either by data presented to him, his personal
knowledge of the construction business or some combi-
nation of both. There is nothing in the record to suggest
that Saunders had insufficient information to properly
evaluate whether lump sum rates on the change orders
were fair and reasonable.
With respect to the third change order, which author-
ized the plaintiff to obtain materials necessary to build
the retaining walls required for the project, the court
found that Saunders, acting as construction manager,
had agreed to pay the plaintiff at a lump sum rate of
$21.50 per square foot.22 The court made no specific
findings as to how the plaintiff and Saunders came to
agree on that lump sum price, and the defendant has
not cited to any portion of the record showing what
data, if any, the plaintiff provided to Saunders. The
court nevertheless found that the defendant presented
no evidence at trial that the lump sum price differed
significantly from prevailing market rates for retaining
walls of the type that were constructed, and the defen-
dant does not challenge that finding on appeal. Accord-
ingly, on the basis of the record before us, there is
nothing to support the defendant’s assertion that Saun-
ders had either insufficient data or personal knowledge
from which to approve the lump sum price on the third
change order.
Similarly, with respect to the sixth change order,
which authorized the paving work on the two lots for
the lump sum price of $189,000, the court found that
‘‘the lump sum price established in that change order
was not shown to have been excessive as agreed to,
because no evidence was presented at trial to establish
that that price was so out of line with prevailing market
prices for paving that no honest, competent construc-
tion manager could have agreed to it.’’ As with the third
change order, the defendant has failed to cite to any
portion of the record that would support its assertion
that Saunders approved the lump sum price for paving
work on the basis of insufficient data or a lack of per-
sonal knowledge of prevailing market rates. Accord-
ingly, we reject the defendant’s claim.
II
We next turn to the plaintiff’s claim that the court
improperly failed to hold the defendant liable for tor-
tious interference with the contractual relationships
between the plaintiff and its subcontractors. We are
not persuaded.
‘‘[Our Supreme Court] has long recognized a cause
of action for tortious interference with contract rights.
. . . The essential elements of such a claim include
. . . the existence of a contractual or beneficial rela-
tionship and that the [defendant], knowing of that rela-
tionship, intentionally sought to interfere with it; and,
as a result, the plaintiff claimed to have suffered actual
loss. . . . [F]or a plaintiff successfully to prosecute
such an action it must prove that the defendant’s con-
duct was in fact tortious. This element may be satisfied
by proof that the defendant was guilty of fraud, misrep-
resentation, intimidation or molestation . . . or that
the defendant acted maliciously. . . . The burden is on
the plaintiff to plead and prove at least some improper
motive or improper means . . . on the part of the
[defendant]. . . . The plaintiff in a tortious interfer-
ence claim must demonstrate malice on the part of the
defendant, not in the sense of ill will, but intentional
interference without justification.’’ (Internal quotation
marks omitted.) Landmark Investment Group, LLC v.
Calco Construction & Development Co., 141 Conn. App.
40, 50–51, 60 A.3d 983 (2013).
In the present case, the court concluded that the
plaintiff had failed to prove its claim of tortious interfer-
ence by a fair preponderance of the evidence. The court
acknowledged that, immediately after the plaintiff con-
tacted the defendant about its failure to pay for extra
work completed on the project, the defendant con-
tacted some of the plaintiff’s subcontractors and suppli-
ers to have them complete the remaining work on the
project. The court concluded, however, that such
actions were not tortious, but rather seemed to be justi-
fied under the circumstances, and that they ‘‘did not
interfere with any ongoing work by Massey Brothers
or any other subcontractor under its subcontract with
the plaintiff [because] the plaintiff had suspended all
work at the site and instructed its subcontractors to
do the same.’’ The court also concluded that the plaintiff
had failed to show how the defendant’s actions had
caused the plaintiff any actual harm.
Although the plaintiff advances several arguments on
appeal that challenge the court’s determination that the
defendant’s conduct was not tortious, the plaintiff has
not addressed in its brief the court’s finding that ‘‘the
defendant’s actions caused the plaintiff no actual
harm.’’ ‘‘[I]t is an essential element of the tort of unlaw-
ful interference with business relations that the plaintiff
suffered actual loss. . . . Thus, it must appear that,
except for the tortious interference of the defendant,
there was a reasonable probability that the plaintiff
would have entered into a contract or made a profit.
. . . Such a determination is a question for the trier of
fact, as is the question of whether the plaintiff has
suffered an actual loss.’’ (Citations omitted; internal
quotation marks omitted.) American Diamond
Exchange, Inc. v. Alpert, 101 Conn. App. 83, 97, 920
A.2d 357, cert. denied, 284 Conn. 901, 931 A.2d 261
(2007); see also Hi-Ho Tower, Inc. v. Com-Tronics,
Inc., 255 Conn. 20, 33–34, 761 A.2d 1268 (2000) (proof
some damage sustained necessary to support cause of
action for tortious interference). Because some actual
loss is necessary to support a claim of tortious interfer-
ence, and the court expressly found that the plaintiff
had failed to establish that element in the present case,
the plaintiff’s failure to challenge that finding on appeal
is fatal to its claim.
III
The plaintiff next claims that the court improperly
ruled in favor of the defendant on those counts of its
counterclaim sounding in breach of the covenant of
good faith and fair dealing, and a violation of CUTPA
on the basis of an erroneous determination that the
plaintiff had engaged in an abuse of process by filing an
excessive mechanic’s lien on the defendant’s property.23
According to the plaintiff, the mechanic’s lien issue was
not properly before the court in the present action, the
court adopted an incorrect legal standard in considering
whether the filing of the mechanic’s lien was an abuse of
process, and there was no showing of any ascertainable
loss to support a finding of a CUTPA violation. We are
not persuaded by the plaintiff’s arguments.
The following facts and procedural history are rele-
vant to our resolution of this claim. Between June and
November, 2009, the plaintiff provided materials and
services used in the defendant’s construction project.
The plaintiff provided the defendant with copies of
invoices for unpaid extra work totaling in excess of
$1.3 million, although the plaintiff was aware that this
total included intentional overcharges of at least
$463,000. The defendant, without first properly termi-
nating its contract with the plaintiff, hired the main
subcontractor to finish the project. By December 4,
2009, the defendant had made no further payments
toward any of the outstanding balances demanded by
the plaintiff, and the plaintiff filed a mechanic’s lien on
the defendant’s property in the amount of $1.4 million.
Shortly thereafter, the plaintiff also commenced the
present civil action. The plaintiff later filed a separate
action to foreclose the mechanic’s lien, which was not
consolidated with the present action and remains pend-
ing before the Superior Court.24
The defendant filed a counterclaim in the present
action asserting, inter alia, a breach of the implied cove-
nant of good faith and fair dealing, and a violation of
CUTPA.25 In support of each count of the counterclaim,
the defendant alleged that the plaintiff had intentionally
inflated the amounts it sought to recover from the defen-
dant for unpaid work and that it had filed an excessive
mechanic’s lien against the defendant’s property in
order to pressure the defendant into paying the plain-
tiff’s inflated claims. The defendant argued in its post-
trial brief in favor of its counterclaim that the plaintiff’s
action of filing and seeking to enforce a grossly inflated
mechanic’s lien amounted to an abuse of process.
Although the defendant never filed a counterclaim
directly asserting a separate cause of action for abuse
of process, which is an intentional tort consisting of
separate and distinct elements from causes of actions
sounding in breach of the implied covenant of good
faith and fair dealing and CUTPA, the court nevertheless
concluded that the defendant’s allegation regarding the
plaintiff’s filing of an excessive mechanic’s lien,
‘‘reduced to its essence, is a claim of abuse of process.’’
In support of what the court described as a ‘‘common
theory of liability,’’ the court found that, in some
instances, the plaintiff intentionally had sought to over-
charge the defendant for work performed on the proj-
ect, that the plaintiff was aware that the amount of the
mechanic’s lien it placed on the defendant’s property
was excessive due to those overcharges, and that ‘‘the
plaintiff’s primary purpose for filing that manifestly
excessive mechanic’s lien was to pressure the defen-
dant into paying more money than it justly owed for
the plaintiff’s work on the project.’’ As a result of those
findings, the court held that the defendant was entitled
to recover all costs and fees it reasonably incurred to
defend itself against the plaintiff’s excessive mechanic’s
lien, and, with respect to the CUTPA counterclaim, all
costs and attorney’s fees the defendant reasonably
incurred to prosecute the abuse of process aspect of
that claim. After later conducting a hearing in damages,
the court awarded the defendant $40,590.64 in damages
on both claims, and, as to the CUTPA claim only,
awarded attorney’s fees pursuant to General Statutes
§ 42-110g (d) of $78,653.52, for a total award of
$119,244.16.
Before turning to the arguments advanced by the
plaintiff in support of its claim that the court improperly
found in favor of the defendant on its counterclaim on
the basis of a finding of abuse of process regarding
the mechanic’s lien, we set forth some relevant legal
principles. ‘‘An action for abuse of process lies against
any person using a legal process against another in an
improper manner or to accomplish a purpose for which
it was not designed. . . . Because the tort arises out
of the accomplishment of a result that could not be
achieved by the proper and successful use of process,
the Restatement Second (1977) of Torts, § 682, empha-
sizes that the gravamen of the action for abuse of pro-
cess is the use of a legal process . . . against another
primarily to accomplish a purpose for which it is not
designed . . . . Comment b to § 682 explains that the
addition of primarily is meant to exclude liability when
the process is used for the purpose for which it is
intended, but there is an incidental motive of spite or an
ulterior purpose of benefit to the defendant.’’ (Citations
omitted; emphasis omitted; internal quotation marks
omitted.) Suffield Development Associates Ltd. Part-
nership v. National Loan Investors, L.P., 260 Conn. 766,
772–73, 802 A.2d 44 (2002). Thus, an abuse of process
requires the plaintiff to show: ‘‘(1) the defendant insti-
tuted proceedings or process against the plaintiff and
(2) the defendant used the proceedings primarily to
obtain a wrongful purpose for which the proceedings
were not designed.’’ 1 D. Pope, Connecticut Actions
and Remedies, Tort Law (1993) § 8:02. It follows, there-
fore, that to determine whether a plaintiff abused the
mechanic’s lien process, it is necessary to consider the
purpose underlying our mechanic’s lien statutes, Gen-
eral Statutes §§ 49-33 through 49-40a.
‘‘In this state, a mechanic’s lien is a creature of statute
and gives a right of action which did not exist at com-
mon law. . . . The purpose of the mechanic’s lien is
to give one who furnishes materials or services the
security of the building and land for the payment of his
claim by making such claim a lien thereon . . . . More-
over, [t]he guidelines for interpreting mechanic’s lien
legislation are . . . well established. Although the
mechanic’s lien statute creates a statutory right in dero-
gation of the common law . . . its provisions should
be liberally construed in order to implement its remedial
purpose of furnishing security for one who provides
services or materials.’’ (Internal quotation marks omit-
ted.) Intercity Development, LLC v. Andrade, 286 Conn.
177, 183–84, 942 A.2d 1028 (2008). Once a mechanic’s
lien is perfected, the lienor has one year in which to
file an action to foreclose that lien or the lien is automat-
ically extinguished. See General Statutes § 49-40a.
The legislature also has provided procedural safe-
guards by which a property owner can seek to have a
mechanic’s lien discharged or reduced as to the amount
of the lien. If no action to foreclose a lien has been
filed, General Statutes § 49-35a (a) authorizes a property
owner to file an application with the Superior Court
asking for discharge or reduction of the lien. After the
application is filed, the court will set a hearing date
and notice will issue to the lienor. At the hearing, the
property owner will have an opportunity to prove by
clear and convincing evidence that the amount of the
lien claimed is excessive and that it should be reduced.
After an action to foreclose a lien has been filed, the
property owner ‘‘may at any time prior to trial, unless
an application under subsection (a) of this section has
previously been ruled upon, move that the lien be dis-
charged or reduced.’’ General Statutes § 49-35a (c).
In addition to procedures to have a lien discharged
or reduced in amount, our statutes also permit an owner
whose property is subject to a lien to have the lien
dissolved by substituting a surety bond. See General
Statutes § 49-37. The purpose of that provision is to
allow a property owner to remove the lien from the
property’s chain of title and yet continue to ensure that
funds exist to satisfy a lienor’s claim should he or she
later obtain judgment against the property owner.
In the present case, the court made the following
factual findings in support of its conclusion that the
plaintiff’s filing of the $1.4 million mechanic’s lien
against the defendant’s property amounted to an abuse
of process. The court found that the plaintiff had insti-
tuted legal process against the defendant, namely, a
mechanic’s lien attached to the defendant’s property;
that that mechanic’s lien was ‘‘manifestly excessive’’
and that the plaintiff knew that the amount of the
mechanic’s lien was excessive because it included some
$463,000 in intentional overcharges for work the plain-
tiff had performed; and that ‘‘the plaintiff’s primary
purpose for filing that manifestly excessive mechanic’s
lien was to pressure the defendant into paying more
money than it justly owed for the plaintiff’s work on
the project.’’ (Emphasis added.)
Importantly, on appeal, the plaintiff has not chal-
lenged any of these factual findings as being clearly
erroneous. The plaintiff also has not argued that the
court’s determination that it had engaged in an abuse
of process was in some manner insufficient to support
liability either under a theory of breach of the implied
covenant of good faith and fair dealing or a CUTPA
violation. Rather, the primary arguments advanced by
the plaintiff are that the remedial purpose of the
mechanic’s lien statutes is to provide contractors with
security for materials and services provided, and that
the overstating of the amount of the lien cannot, in and
of itself, support a finding of an abuse of process. The
plaintiff also contends that, to the extent that the defen-
dant believed that the mechanic’s lien was manifestly
excessive, the defendant, rather than pursuing an abuse
of process claim, should have utilized the procedural
safeguards contained in the mechanic’s lien statutes by
filing an application to reduce the amount of the lien
or, after the foreclosure action was filed, by filing a
motion in that action asking for a reduction in the lien.26
Under the circumstances of this case, and in light of
the unchallenged factual findings of the trial court, we
are not persuaded by the plaintiff’s arguments.
The plaintiff first suggests that the court, by sub-
jecting it to liability in the present case, created an
unworkable new standard that would require any per-
son filing a mechanic’s lien to know with certainty that
the amount stated on the lien at the time of the filing
will be the same or very close to the actual amount due
and owing as later determined by a court or else risk
a claim of abuse of process. According to the plaintiff,
such a requirement would be in contravention of the
rule that the mechanic’s lien statutes should be liberally
construed in favor of furnishing security to parties who
provide services or materials. In support of its argu-
ment, the plaintiff notes that the contractor in Anthony
Julian Railroad Construction Co. v. Mary Ellen Drive
Associates, 39 Conn. App. 544, 546, 664 A.2d 1177, cert.
denied, 235 Conn. 930, 667 A.2d 800 (1995), alleged a
lien of $400,164, but that the court ultimately found that
it was only due $315,164 for the work performed prior
to the filing of the lien, and that there was no discussion
of an abuse of process that was based on an excessive
lien. The plaintiff also cites to a pair of vintage Supreme
Court cases for the proposition that overstating the
amount of a lien is insufficient to invalidate the lien
provided that charges ‘‘were made under a fair claim
of right, in good faith, and under the belief that they
were justified under the terms of the contract.’’ Soule
v. Borelli, 80 Conn. 392, 399, 68 A. 979 (1908); see also
Kiel v. Carll, 51 Conn. 440, 441 (1883).
The cases cited by the plaintiff are readily distinguish-
able from the factual underpinnings of the present case,
and do not support the policy argument advanced by
the plaintiff. The court in the present case did not find
that the plaintiff committed an abuse of process simply
because it had filed a mechanic’s lien that was in excess
of what it ultimately determined the plaintiff was in
fact due and owing. Here, the court found that the
plaintiff knowingly and intentionally filed a manifestly
excessive lien, primarily for an improper purpose. This
is not a case in which a party, in good faith and with
a belief it was justified, filed a mechanic’s lien for an
amount that ultimately was determined by a court to
be more than what legally was recoverable. We are
unconvinced that the court applied an incorrect stan-
dard or that our affirmance of it will open the floodgates
to litigation or have a chilling effect on parties seeking to
exercise their rights under the mechanic’s lien statute.
The second argument advanced by the plaintiff is
that if the mechanic’s lien was manifestly excessive,
the defendant should have utilized the procedural safe-
guards contained in the mechanic’s lien statutes by
filing an application to reduce the amount of the lien
or, after the foreclosure action was filed, by filing a
motion for a reduction in the lien in that action. The
plaintiff has not engaged in any statutory analysis of the
mechanic’s lien statutes, however, nor has it directed us
to any particular statute or statutory language sug-
gesting that the legislature intended that the procedural
remedies and protections provided for in the mechan-
ic’s lien statutes be the sole and exclusive remedy, or
intended to preclude a property owner from pursuing
other remedies outside an action to foreclose the
mechanic’s lien. Accordingly, while such an argument
might be advanced in some future action, we decline
to address it in the present case.
 The plaintiff’s only remaining arguments relate to its
challenge to the court’s finding that the defendant had
suffered ‘‘an ascertainable loss of money to defend itself
against the excessive mechanic’s lien.’’ According to
the plaintiff, the defendant did not incur any costs in
defending against the mechanic’s lien, because, to the
extent that the defendant incurred any costs, they were
paid by a separate corporate entity, and there was no
agreement requiring the defendant to reimburse the
entity. The defendant argues that the same arguments
were made to and considered by the court, and that
the court properly rejected them. We agree with the
defendant.
‘‘To prevail on a CUTPA claim, the plaintiffs must
prove that (1) the defendant engaged in unfair or decep-
tive acts or practices in the conduct of any trade or
commerce; General Statutes § 42-110b (a); and (2) each
class member claiming entitlement to relief under
CUTPA has suffered an ascertainable loss of money or
property . . . . The ascertainable loss requirement is
a threshold barrier which limits the class of persons
who may bring a CUTPA action seeking either actual
damages or equitable relief. . . . Thus, to be entitled
to any relief under CUTPA, a plaintiff must first prove
that he has suffered an ascertainable loss due to a
CUTPA violation.’’ (Citation omitted; internal quotation
marks omitted.) Artie’s Auto Body, Inc. v. Hartford
Fire Ins. Co., 287 Conn. 208, 217–18, 947 A.2d 320 (2008).
For purposes of satisfying the ascertainable loss
requirement of CUTPA, our Supreme Court has defined
an ‘‘ascertainable loss’’ as ‘‘a loss that is capable of
being discovered, observed or established. . . . The
term loss necessarily encompasses a broader meaning
than the term damage, and has been held synonymous
with deprivation, detriment and injury. . . . To estab-
lish an ascertainable loss, a plaintiff is not required to
prove actual damages of a specific dollar amount. . . .
[A] loss is ascertainable if it is measurable even though
the precise amount of the loss is not known.’’ (Citations
omitted; internal quotation marks omitted.) Id., 218.
Whether the plaintiff’s actions resulted in an ascer-
tainable loss is ‘‘a question of fact, which we review
under the clearly erroneous standard.’’ D’Angelo Devel-
opment & Construction Corp. v. Cordovano, 121 Conn.
App. 165, 182, 995 A.2d 79, cert. denied, 297 Conn. 923,
998 A.2d 167 (2010). ‘‘It is futile to assign error involving
the weight of testimony or the credibility of witnesses.
. . . This court can neither retry the facts in order to
make our own findings nor pass on the credibility of
witnesses . . . but can only review such findings to
determine whether they could legally, logically and rea-
sonably be found thereby establishing that the trial
court could reasonably conclude as it did.’’ (Citations
omitted; internal quotation marks omitted.’’ Matthews
v. Nolan, 26 Conn. App. 920, 920–21, 599 A.2d 747 (1991).
 In the present case, the court rejected the same argu-
ments that the plaintiff reasserts on appeal. The court
specifically found, on the basis of the testimony of two
witnesses presented at the special hearing in damages,
that although the defendant had a long-standing
arrangement with a business entity operating under the
trade name of the Hoffman Auto Group pursuant to
which that entity paid the defendant’s costs and
expenses, and otherwise provides them funds for their
operations, the defendant was nevertheless legally
responsible for all costs and expenses it reasonably
incurred in defending itself against the plaintiff’s exces-
sive mechanic’s lien, because the defendant had a duty
to reimburse the entity for all costs and expenses ini-
tially paid on behalf of the defendant. Because the
court’s finding is based on its assessment of the credibil-
ity of witnesses, it is not assailable on appeal. The
court’s finding that the defendant suffered an ascertain-
able loss is legally and logically supported by the record.
In sum, we reject each of the plaintiff’s arguments made
in support of its claim and, accordingly, affirm the
court’s judgment with respect to the defendant’s coun-
terclaim.
IV
Finally, we turn to the defendant’s claim on cross
appeal that the court improperly rejected that portion
of its counterclaim for breach of the implied covenant
of good faith and fair dealing that sought to recover
expenses incurred by the defendant in defending
against mechanic’s liens filed by some of the plaintiff’s
subcontractors. We conclude that the court properly
rejected that aspect of the defendant’s counterclaim.
‘‘[E]very contract carries an implied duty requiring
that neither party do anything that will injure the right
of the other to receive the benefits of the agreement.’’
(Internal quotation marks omitted.) Ramirez v. Health
Net of the Northeast, Inc., 285 Conn. 1, 16 n.18, 938
A.2d 576 (2008). ‘‘To constitute a breach of [the implied
covenant of good faith and fair dealing], the acts by
which a defendant allegedly impedes the plaintiff’s right
to receive benefits that he or she reasonably expected
to receive under the contract must have been taken in
bad faith. . . . Bad faith in general implies both actual
or constructive fraud, or a design to mislead or deceive
another, or a neglect or refusal to fulfill some duty or
some contractual obligation, not prompted by an honest
mistake as to one’s rights or duties, but by some inter-
ested or sinister motive. . . . Bad faith means more
than mere negligence; it involves a dishonest purpose.’’
(Citation omitted; internal quotation marks omitted.)
De La Concha of Hartford, Inc. v. Aetna Life Ins. Co.,
269 Conn. 424, 433, 849 A.2d 382 (2004). ‘‘Essentially
[the duty of good faith and fair dealing] is a rule of
construction designed to fulfill the reasonable expecta-
tions of the contracting parties as they presumably
intended. . . . Whether a party has acted in bad faith
is a question of fact, subject to the clearly erroneous
standard of review.’’ (Citations omitted; internal quota-
tion marks omitted.) Harley v. Indian Spring Land
Co., 123 Conn. App. 800, 837, 3 A.3d 992 (2010).
In support of its counterclaim alleging that the plain-
tiff had breached the implied covenant of good faith and
fair dealing, one of the arguments that the defendant
asserted was that the plaintiff had failed to pay its
subcontractors and suppliers in a timely fashion for
their work on the project, which caused them to file
unnecessary mechanic’s liens against the defendant’s
property. As a result, the defendant claims to have
incurred expenses in defending against the subcontrac-
tors’ liens. The court rejected the defendant’s argument,
noting that the defendant had failed to provide, nor had
the court itself found, any authority indicating that such
allegations could support a claim for breach of the
implied covenant of good faith and fair dealing. We
agree.
Like the trial court, we reject the defendant’s sugges-
tion that the plaintiff’s failure to pay its subcontractors
and suppliers in a timely fashion somehow breached
any duty owed to the defendant under its construction
contract with the plaintiff. There was no provision in
the contract requiring the plaintiff to make timely pay-
ment to any subcontractor it might utilize in fulfilling
its contract obligations. Thus, any right of the subcon-
tractors to be paid in a timely fashion was not a right
or benefit that inured to the defendant as a result of
the contract. We agree with the court’s assertion that
‘‘accepting the defendant’s argument would require an
inappropriate extension of the duty owed by one con-
tracting party to the other . . . .’’ As the court aptly
noted, ‘‘[i]f the defendant wishes to protect itself in
this manner in its future business dealings with general
contractors, it can surely negotiate with those contrac-
tors for such favorable contract terms.’’ Accordingly,
we reject the defendant’s claim.
The judgment is reversed only as to the award of
damages on count one of the third amended complaint
for breach of contract, and the case is remanded for
a new hearing in damages at which the court shall
determine whether the plaintiff is entitled to any addi-
tional compensation for work completed under the orig-
inal contract, consistent with part I A of this opinion,
and shall reduce the defendant’s setoff for paving work
by $19,558.80. The judgment is affirmed in all other
respects.
In this opinion the other judges concurred.
1
In addition to those counts brought against Hoffman Enterprises Limited
Partnership, the operative complaint contained an additional count against
the defendant Jeffrey S. Hoffman, an officer and a limited partner of Hoffman
Enterprises Limited Partnership, sounding in negligent misrepresentation.
The court granted a motion to strike the count against Hoffman, and the
plaintiff appealed from the judgment rendered on the stricken count. See
Practice Book § 61-3. This court reversed that judgment and remanded the
matter for further proceedings on the previously stricken count. See Coppola
Construction Co. v. Hoffman Enterprises Ltd. Partnership, 134 Conn. App.
203, 38 A.3d 215 (2012), aff’d, 309 Conn. 342, 71 A.3d 480 (2013). Final action
on that count remains pending in the Superior Court. Because the present
appeal only pertains to the court’s judgment on the remaining counts of the
complaint brought by the plaintiff against Hoffman Enterprises Limited
Partnership and Hoffman Enterprises Limited Partnership’s counterclaim,
we will refer to Hoffman Enterprises Limited Partnership throughout this
opinion as the defendant.
2
The defendant also claims in its cross appeal that the trial court failed
to award the defendant $8535.12 in ‘‘nontaxable’’ costs in its calculation of
the damages that the defendant was entitled to under General Statutes
§ 42-110g (d) as a result of the plaintiff’s CUTPA violation. The defendant
acknowledges that the trial court properly determined that it was precluded
from awarding such costs because of this court’s decision in Taylor v. King,
121 Conn. App. 105, 133, 994 A.2d 330 (2010), which, in turn, relied upon
Miller v. Guimaraes, 78 Conn. App. 760, 782–83, 849 A.2d 422 (2003). The
defendant nevertheless asks us to revisit the decision in Miller and its
progeny, suggesting that language in a recent opinion by our Supreme Court
casts significant doubt on the rationale underlying Miller. See Ulbrich v.
Groth, 310 Conn. 375, 462, 78 A.3d 76 (2013) (‘‘we need not decide whether
the holding of Miller that § 42-110g [d] does not authorize the trial court to
award costs that are not authorized by [General Statutes] § 52-260 should
be overruled, because we conclude that the award of such costs is authorized
by § 42-110g [a]’’). It is well established, however, that ‘‘[t]his court’s policy
dictates that one panel should not, on its own, reverse the ruling of a previous
panel. The reversal may be accomplished only if the appeal is heard en
banc.’’ (Internal quotation marks omitted.) Hylton v. Gunter, 313 Conn. 472,
488 n.16, 97 A.3d 970 (2014); see also Practice Book § 70-7 (a); Wells Fargo
Bank, N.A. v. Tarzia, 150 Conn. App. 660, 667, 92 A.3d 983 (‘‘[o]ur rules of
practice and our own policy do not permit a panel of this court to overturn
decisions of this court’’ [internal quotation marks omitted]), cert. denied,
314 Conn. 905, 99 A.3d 635 (2014). The defendant has not requested en banc
consideration by this court. Accordingly, we decline to consider this claim.
3
‘‘[I]t is a general rule of agency law that the princip[al] in an agency
relationship is bound by, and liable for, the acts in which his agent engages
with authority from the principal, and within the scope of the agent’s employ-
ment.’’ (Internal quotation marks omitted.) Hudson United Bank v. Cinna-
mon Ridge Corp., 81 Conn. App. 557, 572–73, 845 A.2d 417 (2004); 1
Restatement (Second), Agency § 140, p. 349 (1958). Thus, ‘‘[i]f a contract is
made with a known agent acting within the scope of his authority for a
disclosed principal, the contract is that of the principal alone . . . .’’
(Emphasis added; internal quotation marks omitted.) Whitlock’s, Inc. v.
Manley, 123 Conn. 434, 437, 196 A. 149 (1937).
Here, although the defendant was not a signatory to the contract, the
contract contains language from which it can be understood that the con-
struction services the plaintiff agreed to provide were intended to benefit
the defendant. The defendant does not dispute that Signature was acting
as its properly disclosed agent and within the scope of its authority when
it executed the original contract with the plaintiff, nor does the defendant
contest that, as the principal, it was bound by the terms of the contract
entered into by its disclosed agent, Signature.
4
Section four of the contract provides:
‘‘PAYMENT—Upon signing of this Agreement, Construction Manager shall
pay Contractor the sum of Forty Thousand Dollars [$40,000].
‘‘Within five calendar days of substantial completion of the listed work
items, Construction Manager will pay as follows:
‘‘(a) Preparation of swale, drainage trenches, furnishing and installation of
silt fences, furnishing and installation of hay bales and silt matting [$75,000]
‘‘(b) Mass excavation and backfill and Pond draining and backfill
[$200,000]
‘‘(c) Screening and installation of existing gravel bank and top soil for
use on site [$35,000]
‘‘(d) Furnish and installation of drainage pipe and structures [$35,000]
‘‘(e) General clean up and final inspection [$15,000].’’
5
Exhibit A provides:
‘‘1. Changes made by [Signature] to the Plans as revised May 13, 2009
which Contractor agrees to perform as part of this Agreement are as follows:
‘‘Contractor will use existing gravel bank for base under parking lots, and
back fill for piping and structures. If there is insufficient existing gravel,
Construction Manager will issue a Change Order to purchase, deliver and
install such gravel as needed.
‘‘Contractor will screen the gravel bank on site and use for base instead
of process aggregate.
‘‘Construction Manager agrees to leave on site excess materials and Con-
tractor will not truck any excess materials off site. If it becomes necessary,
Construction Manager will issue a Change Order to Contractor to remove
and dispose of excess material.
‘‘Contractor will screen machine existing top soil on site and will spread
screen top soil by machine and use the existing top soil from the site. (Note:
[the plaintiff] will not purchase any top soil if need[ed]).
‘‘2. Changes made by Construction Manager to plans [are] as follows:
‘‘(a) Eliminating drainage piping, catch basins, and manholes structures
(See drawings C 1.3);
‘‘(b) Raise finish elevation for parking lots and slopes and slopes to a
minimum three feet;
‘‘(c) [Substitute] erosion control blanket for rip-rap stone in all locations;
‘‘(d) Furnish and install drainage pipe and structures as follows: 15’’ HPDE
(pipe) 224 LF, 18’’ HPDE (pipe) 10 LF, 24’’ HPDE (pipe) 30 LF, 30’’ RCP
(pipe) 140 LF, 4 man hole structures MH1, MH2, MH3, & MH4, catch basin
structures 1 EADC (CB) & 2 CL (CB) and 1 each crystal stream model
no. 1056;
‘‘(e) Extend jeep trail approximately 350 LF in northwest corner of prop-
erty (strip top soil and install screen gravel from site into trail and compact).’’
6
Exhibit B provides in relevant part:
‘‘Items removed and/or not included in this Contract:
‘‘(1) Furnish and install retaining walls (as shown on Drawing C 1.3);
‘‘(2) Furnish and install drainage, stone backfill and earth backfill for
retaining walls (as shown on Drawing C 1.6);
‘‘(3) Rip & Rap swales, trench drains, slope protection and aprons (as
shown on Drawing C 1.3);
‘‘(4) Chain link fencing (as shown on Drawing C 1.3);
‘‘(5) Bituminous Paving ([a]s shown on Drawing C 1.3);
‘‘(6) Bituminous Curbing;
‘‘(7) Wood Railings;
‘‘(8) Landscaping ([a]s shown on Drawing C 1.2);
‘‘(9) Hand raking slope;
‘‘(10) Hydroseeding entire project;
‘‘(11) Wood gate;
‘‘(12) 8 feet and 6 feet wood screen fence;
‘‘(13) Permits;
‘‘(14) Providing survey staking and bench mark elevation;
‘‘(15) Rock excavation;
‘‘(16) Trench excavation.’’
7
Section seventeen of the contract also contains an integration clause,
which provides that the written contract constitutes the entire agreement
between the parties with respect to the construction project. It further
provides that the contract could not be ‘‘varied by an oral [a]greement or
representation or by anything other than an instrument in writing of a
subsequent date hereto, executed by both parties by their duly author-
ized representatives.’’
8
On the written change order, adjacent to the amount of the process
stone to be provided, Saunders handwrote, ‘‘to be verified.’’
9
Although exhibit A provided that the plaintiff was to ‘‘use existing gravel
bank,’’ there was no existing gravel bank on the property, necessitating the
location of another source of gravel.
10
Although the plaintiff presented Saunders with invoices for the addi-
tional extra work, those invoices were never signed by Saunders or otherwise
accepted by Signature as a mutually acceptable lump sum price for the
work indicated and, thus, were not written change orders as contemplated
under the contract.
11
On November 30, 2010, the plaintiff commenced a separate action to
foreclose its mechanic’s lien, Coppola Construction Co. v. Phyllis W. Hoff-
man, Trustee, Superior Court, judicial district of Hartford, Docket No. CV-
10-6016911-S. That action remains pending before the Superior Court.
12
The defendant also sought a setoff on the basis of Massey Brothers’
assignment to the defendant of Massey Brothers’ claim against the plaintiff
for unpaid work totaling $290,000, and for payments not otherwise credited
that the defendant allegedly had made to other subcontractors of the plaintiff.
13
The present case was consolidated and tried with a related action com-
menced by the defendant against Signature and Saunders asserting causes
of action sounding in breach of contract, intentional and/or negligent misrep-
resentation, misappropriation of funds and violations of CUTPA. A default
judgment was rendered by the court against Signature and Saunders in that
matter on May 28, 2010.
14
‘‘Unjust enrichment and quantum meruit are forms of the equitable
remedy of restitution by which a plaintiff may recover the benefit conferred
on a defendant in situations where no express contract has been entered
into by the parties.’’ Burns v. Koellmer, 11 Conn. App. 375, 385, 527 A.2d
1210 (1987). ‘‘Quantum meruit is usually a remedy based on implied contract
and usually relates to the benefit of work, labor or services received by the
party who was unjustly enriched, whereas unjust enrichment relates to a
benefit of money or property . . . and applies when no remedy is available
based on the contract. . . . The lack of a remedy under a contract is a
precondition to recovery based on unjust enrichment or quantum meruit.’’
(Citations omitted.) United Coastal Industries, Inc. v. Clearheart Construc-
tion Co., 71 Conn. App. 506, 512–13, 802 A.2d 901 (2002).
15
See footnote 10 of this opinion.
16
The court found that in addition to the cleanup work and the final
inspection, the following additional work, covered by the original contract,
remained unfinished: preparation of swales and drainage trenches; the fur-
nishing and installation of silt fences, hay bales and silt matting; the draining
and backfilling of the detention pond; and the furnishing and completion
of a jeep trail.
17
An action seeking damages for breach of contract is indisputably legal in
nature, i.e., an action at law, not equity. Northeast Savings, F.A. v. Plymouth
Commons Realty Corp., 229 Conn. 634, 642, 642 A.2d 1194 (1994).
18
The court explained: ‘‘Saunders, for his part, was the proverbial man
in the middle. On the one hand, he was desperate to get the job completed,
at least to the point of paving both the upper and the lower lots before the
construction season ended for the year with the shutting down of the asphalt
plants when the weather turned cold in late fall. Keeping the plaintiff satisfied
so that it would keep working on the project to the point of completion
was a high priority for him, and so he never told [the plaintiff] about [Hoff-
man]’s intent to get the job done for only $600,000. On the other hand, he
was well aware that the costs to build of the project were already running
much higher than [Hoffman]’s wholly unrealistic $600,000 limit. Accordingly,
he did not submit to the defendant all invoices for extra work he had
received from the plaintiff, and he delayed completing his reconciliation of
the work slips received from Massey Brothers in order to put off [Hoffman]’s
predictably adverse reaction when the project’s true costs were made known
to him.’’
19
The court found that any work that the plaintiff had agreed to perform
in the original contract with respect to the existing on-site gravel bank could
not have been performed because no such gravel bank ever existed. Because,
under the court’s resolution of the contractual claims, it was not necessary
to consider whether the plaintiff was entitled to recover profits for work
under the original contract work that it was prevented from completing due
to the defendant’s breach, the court never considered to what extent the
contract price should be reformed with respect to the existing gravel bank
provision, either because of mutual mistake or impossibility of performance.
Because we conclude that the court failed to apply a correct measure of
damages with respect to unfinished work covered by the original contract
and that a new hearing in damages will be necessary, we leave for the court
on remand to determine whether in calculating damages the contract price
of $400,000 should be reduced to reflect the nonexistence of the gravel bank
and, if so, in what amount.
20
Because the defendant has not challenged on appeal the court’s decision
with respect to its payment for work completed under the original contract,
in particular the court’s decision that it was not entitled to a setoff for
overpayment, that issue is abandoned and should not be considered by the
court on remand.
21
Although the court found that the defendant had paid Massey Brothers
‘‘a total of $50,000 for its completion of unfinished work on the project,’’
which did not include payment for finishing the paving work on the lower lot,
it is not entirely clear whether that $50,000 payment is a fair representation of
the costs that the plaintiff would have incurred in completing the work left
unfinished under the original contract.
 22
The change order provided for construction of retaining walls totaling
13,274 square feet, representing $285,391 in cost of materials. The court
determined that the walls actually built totaled 12,564 square feet, for which
the court found that the plaintiff should have received the lump sum price
of $21.50 per square foot or $270,126. The defendant already had paid the
plaintiff installment payments totaling $215,000, and therefore the court
awarded the plaintiff an additional $55,126.
23
The court rejected the defendant’s argument that the plaintiff’s over-
charging for some of the work it performed on the project, whether inten-
tional or otherwise, rose to the level of a breach of the covenant of good
faith and fair dealing or a violation of CUTPA.
24
We note that the plaintiff’s mechanic’s lien foreclosure action has been
consolidated with several actions brought by the plaintiff’s former subcon-
tractors to foreclose their own mechanic’s liens filed against the defendant’s
property. On March 8, 2011, a cash bond in the amount of $1.2 million was
substituted in lieu of the various mechanic’s liens. That bond was later
reduced to $300,000 on April 8, 2013, by agreement of the parties.
25
In total, the defendant filed a four count counterclaim, which the court
concluded was ‘‘based upon four distinct and different theories of liability,
to wit: breach of the implied covenant of good faith and fair dealing, as
alleged in count one; fraud, as alleged in count two; aiding and abetting a
breach of fiduciary duty, as alleged in count three; and unfair or deceptive
trade practices, in violation of CUTPA, as alleged in count four.’’
26
The plaintiff also argues that issues pertaining to the mechanic’s lien,
including costs associated with defending against the mechanic’s lien, were
not properly before the court in this matter because there was a separate
pending action for foreclosure of the mechanic’s lien, and that the court’s
decision was ‘‘an erroneous exercise of the court’s jurisdiction’’ and that
‘‘[t]here cannot be abuse of a process for defending against a lien that was
not part of the plaintiff’s complaint and not before the court.’’ The plaintiff,
however, provides no real analysis beyond those conclusory statements.
See Paoletta v. Anchor Reef Club at Branford, LLC, supra, 123 Conn. App.
406 (claims on appeal consisting of conclusory statements without legal
analysis generally deemed abandoned for lack of adequate briefing).
Even if we were to consider the merits of the plaintiff’s argument, however,
it nevertheless fails because the mechanic’s lien was pleaded, and therefore
was before the court for its consideration, in conjunction with the defen-
dant’s counterclaim. As a court of general jurisdiction, the trial court had
competence to entertain any related tort claim raised by the defendant,
including an alleged abuse of process. See Keller v. Beckenstein, 305 Conn.
523, 538, 46 A.3d 102 (2012) (Superior Court sole court of original jurisdiction
for all causes of action). ‘‘Once it is determined that a tribunal has authority
or competence to decide the class of cases to which the action belongs,
the issue of subject matter jurisdiction is resolved in favor of entertaining
the action.’’ (Internal quotation marks omitted.) Amodio v. Amodio, 247
Conn. 724, 728, 724 A.2d 1084 (1999). The only way the court would have
lacked subject matter jurisdiction or authority to hear the mechanic’s lien/
abuse of process allegations in the present case is if the legislature, by
statute, had divested the court of its jurisdiction. The plaintiff has cited to
nothing in either the mechanic’s lien statutes or any other statutory provision
supporting its claim.