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MARC ABRAMS v. PH ARCHITECTS, LLC, ET AL.
(AC 40164)
Prescott, Elgo and Blawie, Js.
Syllabus
The plaintiff homeowner sought to recover damages from the defendants,
P Co., an architectural firm, and V Co., a general contractor, which he
had hired to design and perform substantial renovations to his home
and surrounding property. The plaintiff’s complaint alleged, as to P Co.,
breach of the architectural contract, breach of warranty, and profes-
sional negligence, and, as to V Co., breach of the home construction
contract and breach of a separate contract to construct a stone wall.
The defendants each filed counterclaims alleging that the plaintiff
breached the contracts by failing to pay invoices for services rendered
and sought, inter alia, the sums that the plaintiff had withheld in
retainage. Following a trial, the court rendered judgment permitting the
plaintiff to keep a small portion of the retainage for certain work by V
Co. that was defective or incomplete, but otherwise rendered judgment
in favor of the defendants on the complaint and on their counterclaims
and awarded them damages. On the plaintiff’s appeal to this court, held:
1. The plaintiff could not prevail on his claim that the trial court improperly
failed to enforce provisions of his contracts with V Co. and P Co. per-
taining to how change orders and payment requisitions were to be
initiated and processed:
a. The plaintiff’s claim that V Co. breached the construction contract
by failing to follow change order procedures was unavailing; the plaintiff
failed to allege that ground in his complaint as a basis for V Co.’s breach
of contract, the trial court did not address the claim in rejecting that
count of the complaint, as the court was limited to the allegations in
the complaint and had no duty to scrutinize the parties’ agreement
looking for potential additional breaches, and, therefore, the issue could
not form the basis of a claim on appeal that the trial court improperly
rejected the plaintiff’s claim that V Co. breached the construction
contract.
b. The trial court properly rejected the plaintiff’s claim that P Co.’s
actions in handling change orders and billing procedures amounted to
a material breach of its contract with the plaintiff; that court found no
material breach of contract with respect to P Co. while it was still on
the project and that any failure of V Co. to follow strict contract proce-
dures after P Co. was terminated from the project could not be attributed
to P Co., and the plaintiff did not demonstrate that the court’s factual
findings were unsupported by the record or that the court failed to give
due consideration to the terms of the contract in determining that P
Co. had not breached its contract with the plaintiff regarding its handling
of change orders.
2. The plaintiff’s claim that V Co. failed to construct the wall and fence in
a particular location and with certain specifications required by the wall
contract was unavailing, the trial court having found that the specifica-
tions and location of the wall were modified by subsequent agreement
of the parties; that court found that the repositioning of the wall was
done at the plaintiff’s request when he was confronted with the potential
extra cost of building the wall at a location involving significant ledge
rock and tree removal, that any deviation from the terms of the contract
was authorized and approved by the plaintiff, and that the parties had
agreed to modify the terms of the contract by moving the location of
the wall to avoid increasing the contract price, which was an expressed
concern of the plaintiff, who failed to demonstrate that the court’s
finding regarding the modification of the contract was clearly erroneous.
3. The plaintiff could not prevail on his claim that the trial court failed to
enforce provisions of his architectural contract with P Co. that required
P Co. to provide contract administration services and to represent his
best interests with respect to the project; although the architectural
contract required P Co. to monitor the construction process and review
the final work, it also stated that the scope of P Co.’s services during
the actual construction would be finalized at a future meeting once the
scope of the project was better understood, which the court determined
left some uncertainty, no evidence was presented that a meeting to
determine the final scope of the work ever occurred, and there was no
evidentiary foundation for the plaintiff’s claim that P Co. breached its
contract prior to P Co. departing the project, as the court found that,
prior to the plaintiff terminating P Co. from the project, P Co. effectively
had complied with its contract administration duties by monitoring the
progress of the project, engaging in discussions on-site regarding the
construction of the rock wall, and reviewing and discussing with the
plaintiff a proposed change order submitted by V Co.
4. The plaintiff failed to demonstrate his claim that P Co. had breached
the professional standard of care applicable to architects: although the
plaintiff presented expert testimony from a practicing architect who
had prepared a list of purportedly incomplete or defective work, which
indicated that P Co. had failed to adequately advise the plaintiff regarding
a radiant heat system under the flooring, to design a code-compliant
pool enclosure, and to design a code-compliant cover or enclosure for
the hot tub, P Co.’s expert contradicted much of that expert’s testimony
and, as the trier of fact, the trial court had the authority to resolve that
conflict as it saw fit and was not required to credit any part of the
testimony by the plaintiff’s expert; moreover, there was an evidentiary
basis for the court’s decision to reject the testimony of the plaintiff’s
expert, as the court found that the plaintiff made a final decision regard-
ing radiant heat after P Co. was no longer involved with the project,
that although P Co. had told the plaintiff at their first meeting that the
pool would need to have fencing around it in order to comply with the
town’s pool code, the plaintiff insisted otherwise and that a proper pool
enclosure fence was specifically not included in the scope of work that
the plaintiff set out for P Co., and that hot tub manufacturers provide
code-compliant covers for hot tubs and that such a cover was on the
tub when it was installed.
5. The trial court’s findings regarding the plaintiff’s ‘‘punch list’’ that identified
certain items of work that V Co. allegedly had left incomplete or in need
of repair were not clearly erroneous; the plaintiff’s claim called into
doubt the trial court’s calculation of the portion of the retainage that
the plaintiff was permitted to keep for incomplete or defective work,
which the plaintiff maintained exceeded $500,000, the trial court deter-
mined that the punch list and its associated pricing were rife with errors
and exaggerations and included, for example, the costs associated with
removing and reconstructing the stone wall and removing the entire
interior hardwood floor, and that court previously had determined there
was no credible evidence or economic rationale that supported taking
those the corrective actions.
Argued April 9—officially released July 31, 2018
Procedural History
Action seeking to recover damages for, inter alia,
breach of contract, and for other relief, brought to the
Superior Court in the judicial district of Stamford-Nor-
walk, where the defendant V.A.S. Construction, Inc.,
filed a counterclaim; thereafter, the named defendant
filed a counterclaim; subsequently, the matter was tried
to the court, Hon. Taggart D. Adams, judge trial referee;
judgment for the defendants on the complaint and coun-
terclaims, from which the plaintiff appealed to this
court. Affirmed.
Jane I. Milas, for the appellant (plaintiff).
Jared Cohane, with whom was Alexa T. Millinger,
for the appellee (named defendant).
Gregory J. Williams, for the appellee (defendant
V.A.S. Construction, Inc.).
Opinion
PRESCOTT, J. This appeal arises out of a dispute
between a homeowner and the architectural firm and
general contractor that he hired to design and perform
substantial renovations to his home and surrounding
property in Greenwich. The plaintiff, Marc Abrams,
appeals, following a trial to the court, from the judgment
rendered against him on his complaint and on the coun-
terclaims of the defendants, PH Architects, LLC (PH),
and V.A.S. Construction, Inc. (VAS). The plaintiff claims
on appeal that the court improperly (1) failed to enforce
provisions in his contracts with VAS and PH related to
the processing of change orders and invoices; (2) failed
to find that VAS had breached a separate contract gov-
erning the construction of a stone wall and fence on
the property; (3) failed to enforce provisions in his
contract with PH pursuant to which PH agreed to pro-
vide contract administration services; (4) failed to con-
clude that PH was liable for professional negligence
because it had breached the professional standard of
care for architects; and (5) made clearly erroneous fac-
tual findings with respect to a ‘‘punch list’’ that was
prepared on behalf of the plaintiff by a third party.1
We are not persuaded by the plaintiff’s claims and,
accordingly, affirm the judgment of the court.2
The following facts, which either were found by the
court or are undisputed in the record, and procedural
history are relevant to our discussion of the plaintiff’s
claims on appeal. The plaintiff is a New York attorney
employed by a firm that oversees union elections. In
2010, he purchased an existing, single-family home
located in Greenwich at 39 Hunting Ridge Road (prop-
erty). The property consists of an approximately four
acre lot that, in addition to a split-level home, features
an outdoor swimming pool, a pond, a barn, and a ten-
nis court.
On May 14, 2010, the plaintiff entered into a contract
with PH, an architectural firm, for services related to
the design of renovations and additions that the plaintiff
sought to make to the interior of the home and to the
surrounding property (architectural contract). He was
introduced to the principals of PH, Peter Paulos and
Philip Hubbard, by his realtor, and met with them at
the property on May 11, 2010, to discuss the renovation
project. At that meeting, the plaintiff conveyed to the
architects his desire to contain the overall cost of the
project, indicating to them that, in designing and quoting
the project, they should contemplate using only the
highest quality materials and labor in order to help
guard against the possibility of the project later running
over budget. He believed that by getting quotes for
high end materials and workmanship, any subsequent
changes that occurred likely would involve a reduction,
rather than an increase, in the overall price of the
project.
PH drafted a proposal dated May 12, 2010, that listed
all of the proposed work items and set forth the hourly
rates that PH would charge for various aspects of its
work, including taking detailed measurements of the
property and preparing a schematic design of the
planned house alterations. The proposal also provided
that, after completing the schematic design, PH would
prepare outline specifications to use in soliciting prelim-
inary bids from contractors. PH would next make any
necessary changes to the schematic design, following
which it would establish a lump sum fee for preparing
complete drawings and negotiating and administrating
construction contracts. The proposal expressly left
open the cost for PH’s services during the actual con-
struction period. The parties signed the proposal on
May 14, 2010, which all parties agree constitutes the
entirety of the architectural contract between the plain-
tiff and PH.
A schematic design limited to the house renovations
was completed in June, 2010. The plaintiff approved
the design, but wanted additional information regarding
potential construction costs. With the consent of the
plaintiff, PH also obtained additional landscape archi-
tectural plans from a third party. The plaintiff, however,
rejected those landscape plans. He also rejected the
initial bid that PH had obtained for the housing renova-
tions, believing it was too high. He then authorized PH
to complete a more detailed set of structural drawings
and specifications for the residence in order to solicit
additional construction bids.
After receiving bids, PH prepared a bid comparison
sheet for the plaintiff that showed bids ranging from
$1.2 million to over $1.5 million. The plaintiff was
unhappy and wanted the overall cost of the project
reduced significantly, indicating to Hubbard that he
wanted the total cost to be closer to $600,000. In Octo-
ber, 2010, PH prepared a list of possible changes that
could help to reduce costs, including eliminating a pro-
posed office and a closet addition. The plaintiff
approved many of PH’s cost saving proposals. He also
suggested, however, additional changes not in the origi-
nal plan, including adding a side deck, an outdoor fire-
place, and a larger master bedroom. After incorporating
the changes approved by the plaintiff, PH obtained
new bids.
VAS, a general contracting business owned by Vin-
cent Sciarretta, consistently was the low bidder
throughout the bidding process. VAS constructs new
homes and additions to existing homes. It submitted a
bid of between $860,000 and $912,000.
On December 6, 2010, the plaintiff entered into a
contract with VAS for construction services involving
the additions and renovations to the home contained
in the architectural plans (construction contract). The
contract was a standard form American Institute of
Architects (AIA) agreement that included a total con-
tract price for the renovations and additions of
$921,557.34.
The plaintiff later entered into an additional AIA con-
tract with VAS on December 16, 2010, for the construc-
tion of a stone wall on the property (wall contract).
The stone wall was intended to run along the front of
the house, connect with perimeter fencing around the
remainder of the property, and include two operating
gates. The contract called for a concrete footing to be
placed three and one-half feet below grade to secure
the fencing. The total additional cost for the wall con-
tract was $229,985.80.
Due to significant conflicts that arose between the
plaintiff and PH,3 PH left the project prior to its comple-
tion. The plaintiff never engaged a replacement archi-
tect to oversee the project. Serious conflicts also arose
between VAS and the plaintiff regarding, inter alia, cer-
tain change orders submitted by VAS. Nevertheless,
despite the plaintiff failing to make all requested prog-
ress payments, VAS continued working on the construc-
tion project, substantially completing its work by late
November or early December, 2011.
The plaintiff, who was unhappy with the results and
overall cost of the project, initiated the present action
in September, 2012. The operative amended complaint
was filed on September 20, 2013, and contained five
counts, the first three directed against PH and the
remaining two against VAS.
With respect to PH, count one alleged that PH
breached the architectural contract with the plaintiff
by ‘‘failing to provide complete and accurate plans and
specifications for the construction of the project, failing
to provide construction administration services, failing
to monitor the cost and the quality of construction of
the project, failing to correct the errors, omissions, and
deficiencies in the services and work product provided
by PH, failing to address [the plaintiff’s] reasonable
questions and concerns, and instead abandoning the
project when problems were becoming apparent to [the
plaintiff].’’ Count two alleged that PH had breached an
express warranty that guaranteed it was qualified to
perform the services undertaken in the architectural
contract and that it would do so with the care, diligence,
and skill exercised by professional architects. Count
three sounded in professional negligence, alleging that
PH breached its duty to perform with ‘‘that degree of
skill, care, and diligence [that] professional architects
normally exhibit under like and/or similar circum-
stances.’’
With respect to the remaining counts against VAS,
count four alleged that VAS breached both the home
construction contract and the wall contract in a variety
of ways. More particularly, the plaintiff alleged that VAS
breached the contracts by failing to complete the work,
using lesser quality materials than specified, and per-
forming defective work that would require repair or
replacement. The plaintiff provided the following addi-
tional examples of VAS’ alleged breach of the home
construction contract: ‘‘[T]he master bedroom deck is
poorly constructed; stairs are not adequately secured
and shake significantly when walked on; plumbing fix-
tures in various locations are loose and not properly
centered or installed; the electrical system is incom-
plete and many switches do nothing; the supply duct-
work in the basement has not been insulated; tile in
areas such as the laundry room is cracked; interior trim
is defective and there are many instances of miters
opening up; bilco door is not installed properly or
weatherstripped; trim boards at exterior of dining nook
are warping and delaminating below and around win-
dows; material for front gates and fence is not what
was specified and is of lower quality; cabinets are incor-
rectly installed; flooring is cupping and will have to
be removed; many items of work remain incomplete.’’
Count five sounded in negligence. The plaintiff alleged
that VAS, as a general contractor, owed him a duty to
perform its work pursuant to the contract and free from
defects, and that it breached that duty, citing again the
defects set forth in the breach of contract count.
In addition to filing an answer and special defenses
denying any liability, the defendants each filed a breach
of contract counterclaim against the plaintiff. In its
counterclaim, PH alleged that the plaintiff had breached
the architectural contract by wrongfully terminating it
from the project and by failing to pay PH in full for the
engineering and architectural services rendered prior
to its termination. VAS alleged in its counterclaim that,
with the exception of certain obligations that the plain-
tiff wrongfully prevented or precluded it from per-
forming, it had performed or substantially performed
all of its obligations under its contracts with the plaintiff
and, yet, the plaintiff had failed to pay invoices totaling
$132,996.18 and to release an additional $85,613.46
being held in retainer.4 The plaintiff denied the defen-
dants’ special defenses and counterclaims.
A trial to the court, Hon. Taggart D. Adams, judge
trial referee, was conducted between April 26 and May
6, 2016. The parties each submitted a posttrial memo-
randum on October 12, 2016.
On February 7, 2017, the court issued its memoran-
dum of decision, disposing of all counts of the complaint
and the counterclaims. With respect to PH, the court
concluded that the plaintiff had failed to prove any of
his causes of action, rendering judgment against him
on counts one through three of the complaint. The court
also rendered judgment against the plaintiff on PH’s
counterclaim, awarding damages of $3991.56.
With respect to VAS, the court found that the plaintiff
had failed to prove that VAS breached either the home
construction contract or the wall contract. The court
nevertheless found that the plaintiff was entitled to
keep $8450 of the retainage as a result of certain incom-
plete or defective work. The court rendered judgment
in favor of VAS on its counterclaim, and awarded it
damages of $132,966.18 plus 6 percent prejudgment
interest of $24,092.34, as well as $77,162.46, the net
balance of the retainage. This appeal followed.
Before turning to our discussion of the plaintiff’s
claims, we first address the appropriate standard of
review, which is disputed by the parties. ‘‘It is well
established that [i]n a case tried before a court, the
trial judge is the sole arbiter of the credibility of the
witnesses and the weight to be given specific testimony.
. . . On appeal, we do not retry the facts or pass on the
credibility of witnesses. . . . We afford great weight
to the trial court’s findings because of its function to
weigh the evidence and determine credibility. . . .
Thus, those findings are binding upon this court unless
they are clearly erroneous in light of the evidence and
the pleadings in the record as a whole. . . . A finding
of fact is clearly erroneous when there is no evidence
in the record to support it . . . or when although there
is evidence to support it, the reviewing court on the
entire evidence is left with the definite and firm convic-
tion that a mistake has been committed.’’ (Citations
omitted; internal quotation marks omitted.) De La Con-
cha of Hartford, Inc. v. Aetna Life Ins. Co., 269 Conn.
424, 431–32, 849 A.2d 382 (2004).
The plaintiff seeks to frame his claims on appeal as
implicating our plenary review, arguing that his claims
involve questions of contract interpretation or chal-
lenge legal conclusions of the court. It is axiomatic that
matters of law are entitled to plenary review on appeal.
See Crews v. Crews, 295 Conn. 153, 162, 989 A.2d 1060
(2010). It is similarly well settled that, if definitive con-
tract language exists, ‘‘the determination of what the
parties intended by their contractual commitments is
a question of law.’’ (Internal quotation marks omitted.)
Tallmadge Bros., Inc. v. Iroquois Gas Transmission
System, L.P., 252 Conn. 479, 495, 746 A.2d 1277 (2000);
see also 11 S. Williston, Contracts (4th Ed.1999) § 30:6,
pp. 77–83 (‘‘[t]he interpretation and construction of a
written contract present only questions of law, within
the province of the court . . . so long as the contract
is unambiguous and the intent of the parties can be
determined from the agreement’s face’’ [internal quota-
tion marks omitted]). Moreover, whether contractual
language is plain and unambiguous is itself a question
of law subject to plenary review. See United Illuminat-
ing Co. v. Wisvest-Connecticut, LLC, 259 Conn. 665,
669–70, 791 A.2d 546 (2002).
The defendants, by contrast, maintain that the plain-
tiff’s claims on appeal do not truly raise any substantive
questions of law or involve construction of relevant
contract provisions but, rather, only seek to have this
court reassess the credibility of witnesses and retry
the court’s factual findings underlying its determination
that the plaintiff failed to demonstrate that either defen-
dant materially breached its contract with the plaintiff
or is otherwise liable for damages. ‘‘The determination
of whether a contract has been materially breached is
a question of fact that is subject to the clearly erroneous
standard of review.’’ Efthimiou v. Smith, 268 Conn.
487, 493, 846 A.2d 216 (2004). We agree with the defen-
dants that the plaintiff’s claims on appeal primarily are
factual in nature. Accordingly, although we review de
novo any questions of law that arise, to the extent that
the plaintiff merely challenges the factual underpin-
nings for the court’s legal conclusions, we will not
engage in a wholesale reweighing of the evidence, but
will review such claims under our clearly erroneous
standard of review. With these principles in mind, we
turn to a discussion of the specific claims raised by
the plaintiff.
I
The plaintiff first claims that the court improperly
failed to enforce provisions of his contracts with VAS
and PH, specifically, provisions pertaining to how
change orders and payment requisitions were to be
initiated and processed.5 According to the plaintiff, VAS
failed to follow the procedures set forth in the construc-
tion contract, which required it to obtain the plaintiff’s
approval for any changes prior to performing the associ-
ated work. Further, he argues that, pursuant to his con-
tract with PH, PH was required to review and approve
payment requisitions and change orders submitted by
VAS, but PH failed to insure that VAS followed the
procedures in the construction contract.
In response, VAS argues that, to the extent the plain-
tiff’s claim is directed at it, we should reject that claim
for three reasons. First, VAS argues that the plaintiff’s
claim falls outside the scope of the pleadings because
the plaintiff never alleged in his complaint that VAS
breached the construction contract by failing to adhere
to provisions governing change orders and payments,
nor was that issue decided by the court. Second, VAS
argues that the plaintiff has failed adequately to brief
this claim. Third, VAS argues that the claim fails on
its merits.
PH argues that the claim also fails with respect to it
because the trial court properly rejected the plaintiff’s
allegation that PH had breached its contract with the
plaintiff by failing to adhere precisely to requirements
in the change order provisions of the construction con-
tract. PH notes that, prior to leaving the project, it was
only involved with the processing of a single change
order and that the court found that PH’s omission of
that change order on a certified payment requisition
was ‘‘not of serious moment,’’ or, in other words, not
a material breach of contract.6
The following additional facts are relevant to this
claim. Pursuant to the architectural contract, PH agreed
to provide ‘‘contract administration’’ services during
the construction phase of the project. Contract adminis-
tration was defined in the architectural contract as fol-
lows: ‘‘monitoring the construction process, making
periodic site visits, representing [the plaintiff] during
the construction process, reviewing and approving
applications for payment to the contractor, review of
the final work, preparation of a punch list to complete
the work and issuing final acceptance of the work.’’ The
architectural contract contains no express provision
about PH’s responsibilities regarding the processing
and handling of change orders; such provisions are
found in the construction contract. In particular, article
7 of the general conditions of the construction contract
contains a number of provisions that governed the pro-
cess by which the parties were permitted to make
changes to the work.
In its memorandum of decision, the court addressed
the plaintiff’s arguments regarding improper change
orders and invoicing procedures in addressing the plain-
tiff’s assertions of breach of contract against PH. In
that context, the court stated as follows: ‘‘[I]t is true
that PH did approve an application for payment to VAS
on April 29, 2011 . . . in which VAS had not included
the fact that a change order in the amount of $5141.80
had been previously approved by [the plaintiff] in writ-
ing on March 31, 2011. . . . This oversight is not of
serious moment, because [the plaintiff] had already paid
for the change order on April 26, [2011] . . . and subse-
quent change orders signed by [the plaintiff] clearly
showed all the additions to the original contract price
that had been approved. . . . More importantly, [the
plaintiff’s] claim that PH never submitted or reviewed
with him any proposed change orders is without eviden-
tiary support. Indeed, it was PH’s submission to [the
plaintiff] of the VAS proposed change orders, including
the addition of radiant heat to the project, that precipi-
tated the previously discussed virulent e-mail by [the
plaintiff] to PH on May 24, 2011. . . . In addition, on
May 13, 2011, there was a meeting at the construction
site during which a number of proposals, changes, new
architectural sketches and costs were discussed. . . .
After PH left the project there was no architect with
whom [the plaintiff] could discuss the proposed
changes.’’ (Citations omitted.)
A
We turn first to the plaintiff’s claim that VAS breached
its construction contracts with the plaintiff by failing
to comply with change order procedures. We agree with
VAS that the breach of contract claim as set forth in
the operative complaint did not include or rely upon any
allegation that VAS had failed to adhere to provisions in
the construction contract pertaining to change orders.
Accordingly, this aspect of the plaintiff’s claim fails.
‘‘The pleadings determine which facts are relevant
and frame the issues for summary judgment proceed-
ings or for trial. . . . The principle that a plaintiff may
rely only [on] what he has alleged is basic. . . . It is
fundamental in our law that the right of a plaintiff to
recover is limited to the allegations [in] his complaint.
. . . A complaint must fairly put the defendant on
notice of the claims . . . against him. . . . The pur-
pose of the complaint is to limit the issues to be decided
at the trial of a case and is calculated to prevent surprise.
. . . Only those issues raised by the [plaintiff] in the
latest complaint can be tried [by the trier of fact].’’
(Citations omitted; internal quotation marks omitted.)
White v. Mazda Motor of America, Inc., 313 Conn. 610,
621, 99 A.3d 1079 (2014).
In its breach of contract count against VAS, the plain-
tiff’s allegations specifying the manner in which VAS
allegedly breached its contracts with the plaintiff were
limited to assertions that VAS had not satisfactorily
completed aspects of the construction project, had used
inferior and unspecified materials, or had performed
defective work that would require repair or replace-
ment. Although there was testimony at trial discussing
how change orders were handled, the plaintiff never
sought to amend his complaint to include additional
specifications of breach of contract to its count against
VAS. If the plaintiff had provided notice of this aspect
of its claim through proper pleading, VAS may have
produced additional evidence or tailored its presenta-
tion of evidence differently.
In considering a breach of contract claim, the trial
court is limited to the allegations in the complaint and
has no duty to scrutinize the parties’ agreement looking
for potential additional breaches. The court’s silence
in its memorandum of decision with respect to VAS’
alleged noncompliance with the contract’s change order
procedures is further evidence that this issue was not
properly raised to the court.
In sum, we conclude that the failure to follow change
order procedures was not raised in the operative com-
plaint as a basis for the plaintiff’s count alleging breach
of the construction contract by VAS, nor was the issue
addressed by the trial court in rejecting that count of
the complaint. Accordingly, that issue cannot form the
basis of a claim on appeal that the court improperly
rejected the plaintiff’s allegation that VAS breached the
construction contract.
B
We next turn to the plaintiff’s claim that PH breached
its contract with the plaintiff by failing to ensure that
VAS adhered to change order and billing procedures
set forth in the construction contract. According to the
plaintiff, the trial court failed to give effect to those
contract requirements. We are not persuaded.
As a preliminary matter, we note that the plaintiff has
not claimed that the court misconstrued any particular
language in the contract that would invoke our plenary
review. The plaintiff also has failed to direct our atten-
tion to any part of the record that would support his
assertion that the trial court committed legal error by
failing to consider or give effect to any particular con-
tract provision. To the contrary, in discussing the par-
ties’ disputes over the procedures followed with respect
to changes to the project and the resulting change in
the contract price, the trial court specifically cited to
article seven of the contract, which, as we have indi-
cated, contains all the relevant provisions governing
change order procedures.
We therefore construe the plaintiff’s claim as chal-
lenging the court’s rejection of his argument that PH’s
actions in handling change orders and billing proce-
dures amounted to a material breach of its contract with
the plaintiff. It is important to reiterate that ‘‘[w]hether
there was a breach of contract is ordinarily a question
of fact. . . . We review the court’s findings of fact
under the clearly erroneous standard.’’ (Internal quota-
tion marks omitted.) Neubig v. Luanci Construction,
LLC, 124 Conn. App. 425, 433, 4 A.3d 1273 (2010). The
court found no material breach of contract with respect
to PH while it was still on the project. Specifically,
the court found that the plaintiff had not produced an
evidentiary foundation for his claim that PH had not
consulted with him or sought his approval on change
orders. To the contrary, the court found that the evi-
dence presented showed that such consultation in fact
had occurred. The court also determined that the plain-
tiff had failed to demonstrate that he was harmed by
technical problems with paperwork. Further, any fail-
ure of VAS to follow strict contract procedures after
PH left the project could not be attributed to PH because
the court found that the plaintiff ‘‘terminated Hubbard’s
services and constructively terminated Paulos’ services
by his conduct,’’ a finding that is not challenged on
appeal.
The plaintiff has not demonstrated that the court’s
factual findings are unsupported by the record nor are
we left on the basis of our review with a conviction
that a mistake has been made. We accordingly reject
his claim that the court failed to give due consideration
to the terms of the contract in determining that PH had
not breached its contract with the plaintiff regarding
its handling of change orders.
II
Next, the plaintiff claims that, in concluding that he
failed to prove that VAS breached the wall contract,
the court failed to enforce provisions of that contract
requiring VAS to construct the wall and fence combina-
tion in a particular location with certain specifications.
In response, VAS argues that we should uphold the
court’s conclusion either because the plaintiff failed to
establish proof of damages, which is a required element
of a breach of contract cause of action, or because
the court determined that the parties had modified the
contract provisions relied on by the plaintiff. We agree
with VAS that the specifications and location of the
wall were modified by subsequent agreement of the
parties, as found by the court, and that the court prop-
erly ruled in favor of VAS on that aspect of the plaintiff’s
claim of breach of contract.
The following additional facts are relevant to this
claim. VAS began work on the stone wall and fence
combination in March, 2011. Issues began to arise
regarding the construction and location of the stone
wall, which prompted an on-site meeting at the end of
March between the plaintiff, VAS, and PH. At that time,
Hubbard spray painted along the ground where he
believed the center line of the wall should run according
to the plans. Sciarretta explained to the plaintiff that if
VAS constructed the wall using Hubbard’s line, it would
involve the cutting of trees and, more importantly,
require the removal of ledge rock, each of which would
result in extra costs being added to the wall contract.
The plaintiff ‘‘eventually directed that the wall be placed
nearer the house to avoid ledge . . . and tree removal.’’
In its memorandum of decision, the court rejected
the plaintiff’s claim that VAS breached the wall contract
because the wall was not constructed on or near the
perimeter of his property along Hunting Ridge Road as
set forth in the contract and accompanying architec-
tural drawings. The court found that VAS had con-
structed the wall as the plaintiff directed. Specifically,
the court found that ‘‘the repositioning of the wall was
done at [the plaintiff’s] request when he was confronted
with the potential extra cost of building the wall at a
location involving significant ledge rock and tree
removal.’’ Accordingly, any deviation from the terms of
the contract was authorized and approved by the
plaintiff.7
If parties have modified the terms of a contract, they
are contractually bound by those modified terms and,
consequently, cannot be found in breach of the original
terms. ‘‘Modification of a contract may be inferred from
the attendant circumstances and conduct of the par-
ties.’’ Herbert S. Newman & Partners, P.C. v. CFC Con-
struction Ltd. Partnership, 236 Conn. 750, 762, 674
A.2d 1313 (1996). ‘‘Whether the parties to a contract
intended to modify the contract is a question of fact.
. . . The resolution of conflicting factual claims falls
within the province of the trial court. . . . The trial
court’s findings are binding upon this court unless they
are clearly erroneous in light of the evidence and the
pleadings in the record as a whole. . . . We cannot
retry the facts or pass on the credibility of the witness.’’
(Citations omitted; internal quotation marks omitted.)
Id.
Here, rather than failing to enforce provisions of the
wall contract requiring VAS to construct the wall and
fence in a particular location with certain specifica-
tions, the court found that the parties had agreed to
modify the terms of the contract by moving the location
of the wall to avoid increasing the contract price, which
was an expressed concern of the plaintiff. On the basis
of our review of the record, the plaintiff has failed to
persuade us that the trial court’s finding that he agreed
to the modification of the contract and directed VAS
to build the wall where it currently stands is clearly
erroneous. We accordingly reject his claim.
III
The plaintiff next claims that, with respect to the
architectural contract between him and PH, the court
failed to enforce provisions that required PH to provide
contract administration services and to represent his
best interests with respect to the project. We disagree.
Pursuant to the architectural contract, after the
design and planning phase of the project was finished
and actual construction work had begun, PH agreed to
continue to provide services to the plaintiff for the
balance of the project. In addition to other services,
the contract provided that PH would provide ‘‘contract
administration,’’ which, as previously indicated, was
described in the agreement as ‘‘monitoring the construc-
tion process, reviewing and approving applications for
payment to the contractor, review of the final work,
preparation of a punch list to complete the work and
issuing final acceptance of the work.’’
Significantly, the contract also stated that ‘‘[t]he
scope of [PH’s] services during the actual construction
can be finalized at a future meeting once the scope is
better understood.’’ The court indicated in its decision
that this language ‘‘left some uncertainty’’ as to PH’s
contractual responsibilities during the construction
phase, particularly because no evidence was presented
that a meeting to determine the final scope of the work
ever occurred.
The plaintiff does not dispute the court’s finding that
there was no evidence of a meeting to finalize the scope
of PH’s work during construction. Nevertheless, the
plaintiff argues that the language regarding contract
administration is clear and unambiguous, and that the
court failed to give effect to that language in considering
whether PH had breached its duties to the plaintiff to
provide contract administration services.
As already discussed in part I B of this opinion, how-
ever, the court determined that there was no evidentiary
foundation for the plaintiff’s breach of contract claim
against PH, and that, prior to the plaintiff terminating
PH from the project, PH effectively had complied with
its contract administration duties by monitoring the
progress of the project, engaging in discussions on-site
regarding the construction of the rock wall, and by
reviewing and discussing with the plaintiff a proposed
change order submitted by VAS. Because the plaintiff
has not demonstrated that the court rejected his claim
on the basis of clearly erroneous factual findings, we
reject his claim.
IV
We turn next to the plaintiff’s claim that the court
improperly concluded that he had failed to demonstrate
that PH had breached the professional standard of care
applicable to architects. We do not agree.
In order to prevail on a claim of professional negli-
gence or malpractice, a plaintiff has the burden to show
the following: ‘‘(1) a duty to conform to a professional
standard of care for the plaintiff’s protection; (2) a devi-
ation from that standard of care; (3) injury; and (4) a
causal connection between the deviation and the
claimed injury.’’ Stuart v. Freiberg, 316 Conn. 809, 833,
116 A.3d 1195 (2015). Ordinarily, whether a profession-
al’s conduct met the required standard of care or devi-
ated from that standard are questions of fact to be
decided by the trier of fact. See Campbell v. Palmer,
20 Conn. App. 544, 548, 568 A.2d 1064 (1990).
To meet his burden of establishing the standard of
care applicable to architects and to show a deviation
from that standard, the plaintiff presented expert testi-
mony from Jonathan Hodosh, a practicing architect.
His firm, George Hodosh Associates, concentrates on
residential additions and alterations. Hodosh visited the
property in March and April, 2012, and prepared a
‘‘punch list’’ of purportedly incomplete or defective
items. Hodosh’s punch list was admitted into evidence
at trial. Hodosh testified that, in his opinion, PH
breached the standard of care in three ways, by failing
(1) to advise the plaintiff adequately about installing a
radiant heat system under the flooring, (2) to design a
code-compliant pool enclosure, and (3) to design a
code-compliant cover or enclosure for the hot tub.
We agree with the court’s assessment in its memoran-
dum of decision that the main thrust of Hodosh’s expert
testimony regarding the radiant heat system was that
PH should have brought in a mechanical engineer to
design the system and to evaluate the interactions
between it and the existing hot air system. He opined
that PH should have reconsidered use of the cherry and
oak flooring included in the initial architectural plans
in light of the decision to introduce a radiant heat sys-
tem. He also was critical of the fact that PH had made
no provisions in its original plans for a protective enclo-
sure for the hot tub and the swimming pool.
In response, PH presented its own expert, James
Lawler, also a licensed architect. Lawler contradicted
much of Hodosh’s testimony. Lawler testified that PH’s
construction drawings and specifications were both
thorough and well prepared for use by a contractor in
executing the design plan. Lawler’s professional opin-
ion was that PH had provided the plaintiff with a high
level of service. Accordingly, the evidence before the
court regarding PH’s exercise of its professional respon-
sibilities under the contract was conflicting. As the trier
of fact, the court had the authority to resolve this con-
flict as it saw fit, and was not required to credit any
part of Hodosh’s testimony. See Arroyo v. University
of Connecticut Health Center, 175 Conn. App. 493, 518,
167 A.3d 1112 (‘‘[if] expert testimony conflicts, it
becomes the function of the trier of fact to determine
credibility and, in doing so, it could believe all, some
or none of the testimony of either expert’’ [internal
quotation marks omitted]), cert. denied, 327 Conn. 973,
174 A.3d 192 (2017).
In fact, the court ultimately rejected Hodosh’s testi-
mony, finding it unpersuasive for several reasons. First,
the court found that at the time the plaintiff made a
final decision to have radiant heat installed in the home,
PH was no longer involved with the project. The court
found that installing radiant heating was proposed in
a ‘‘VAS change order in May, 2011, [which] contain[ed]
the first cost data related to radiant heat that was for-
warded by PH to [the plaintiff] for discussion and pre-
cipitated the departure of PH from the project. Prior
to that time, PH did not do any design work or coordi-
nate with any mechanical engineer relating to radiant
heat because it was entirely uncertain from PH’s stand-
point whether [the plaintiff] had a real interest in install-
ing such a system since he had shown a strong interest
in cutting costs.’’
The court further found that Hodosh’s criticism of
PH regarding a code-compliant pool enclosure and hot
tub cover were unsupported by the evidence. The court
found that, at their very first meeting, PH had told the
plaintiff that the pool would need to have fencing
around it in order to comply with the pool code in
Greenwich. The plaintiff indicated to PH, however, that
he believed fencing around the perimeter of the prop-
erty would enclose both the pool and the pond and that
the fencing needed to be in compliance with code. The
court credited Hubbard’s testimony that PH would
never have advised the plaintiff that a perimeter fence
would suffice for purposes of a pool enclosure. The
court ultimately found on the basis of the evidence
presented that ‘‘a proper pool enclosure fence was spe-
cifically not included in the scope of work [the plaintiff]
set out for PH. . . . In fact, at the end of the project,
it was VAS that apparently convinced [the plaintiff] a
proper pool enclosure was needed and had it installed.’’
With respect to the hot tub cover, the court credited
the testimony of Lawler and Sciarretta that hot tub
manufacturers provide code-compliant covers for hot
tubs, that such a cover was on the tub when it was
installed, and a code-compliant cover was on the tub
when Lawler visited the property in April, 2016.
It is clear in the present case that the court rejected
the testimony of the plaintiff’s expert and credited the
testimony of PH’s expert in finding that PH had not
breached the professional standard of care required of
architects. Our review of the record shows that there
is an evidentiary basis for the court’s decision and we
will not engage in a reweighing of the evidence or revisit
the court’s credibility determinations. Because the
plaintiff has failed to demonstrate either a legal or fac-
tual basis for disturbing the court’s decision rejecting
his claim of professional negligence by PH, we reject
his claim.
V
Finally, the plaintiff claims that the trial court made
erroneous factual findings with respect to a ‘‘punch list’’
that identified certain items of work that VAS allegedly
had left incomplete or in need of repair. Principally,
the plaintiff takes issue with the court’s references to
the monetary figures associated with the items on the
punch list as ‘‘estimates.’’ The plaintiff argues that ‘‘the
process of estimating the cost of punch list items is
well recognized in the case law as a means of putting
a dollar value to the items on a punch list’’ and that
the court based its decision ‘‘on a belief that ‘estimating’
is not an accepted methodology for pricing a punch
list.’’ We note that the plaintiff’s brief lacks clarity in
placing this claim into context; however, we construe
the claim as intended to call into doubt the court’s
calculation of damages, in particular the amount of the
retainage that the court permitted the plaintiff to keep
for incomplete or defective work. Regardless, although
the plaintiff is correct that the court rejected the costs
associated with the items on the punch list, a review
of the relevant portion of the court’s decision reveals
that it did so, not because it rejected any particular
methodology for determining damages or the use of
reasonable estimates, but because it concluded that the
punch list and the associated pricing were ‘‘rife with
errors, lack of knowledge and exaggerations.’’ Accord-
ingly, the very premise of the plaintiff’s claim on appeal
lacks merit.
The following additional facts are relevant to the
plaintiff’s claim. The plaintiff sought to prove the
amount of his alleged damages against VAS through the
admission of a punch list that contained various items
identified by his architect expert, Hodosh, as either
being incomplete or in need of repair. In addition to
the punch list, the plaintiff entered as an exhibit at trial
the deposition transcript of an experienced contractor,
Todd Lukas. Attached as part of the transcript was
Lukas’ written report detailing his cost estimates for
completing the Hodosh punch list items. The total cost
estimated by Lukas was $563,539. Included in his calcu-
lations were costs associated with the removal of the
existing stone wall and its reconstruction at a different
location, and the removal of the entire interior hard-
wood floor.
The court rejected Lukas’ deposition testimony and
his estimate of costs associated with the Hodosh punch
list as unpersuasive. The court did so not because
Lukas’ costs were merely estimates and, thus, somehow
unreliable, as the plaintiff claims, but because the court
determined there was no credible evidence or economic
rationale that supported taking the corrective actions
upon which those estimates were based. For example,
because the court already had determined that the
existing wall was built at a location and in a manner
approved by the plaintiff, it naturally rejected the esti-
mated cost of completely removing and rebuilding it.
Similarly, the court found that the plaintiff had failed
to prove that problems with portions of the existing
flooring required the complete removal of all flooring
in the home, instead crediting the testimony given by
a flooring expert that the defects complained of by the
plaintiff could be remedied by sanding and refinishing
only the affected portions of the floor. The court never
stated that estimating the cost of punch list items was
an inherently flawed methodology.8
As we have already indicated in this opinion, it was
well within the authority of the court as the trier of fact
to reject as unpersuasive Lukas’ opinion and instead to
credit the contrary testimony of other expert witnesses.
See Ferri v. Pyramid Construction Co., 186 Conn. 682,
690, 443 A.2d 478 (1982) (credibility of expert witnesses
and weight to accord their testimony within province
of trier of fact, ‘‘who is privileged to adopt whatever
testimony he reasonably believes to be credible’’ [inter-
nal quotation marks omitted]). As previously explained,
it is outside the role of this court to second-guess the
credibility determinations of the trier of fact. See, e.g.,
Computer Reporting Service, LLC v. Lovejoy & Associ-
ates, LLC, 167 Conn. App. 36, 48, 145 A.3d 266 (2016).
Because the plaintiff has failed to demonstrate that
the court’s decisions were premised upon any clearly
erroneous factual findings, we reject his claim.
The judgment is affirmed.
In this opinion the other judges concurred.
1
A ‘‘punch list’’ generally refers to a list of items that a contractor must
complete or repair before final payment on a project will become due. See
FCM Group, Inc. v. Miller, 300 Conn. 774, 783, 17 A.3d 40 (2011).
2
We note that the statement of issues in the plaintiff’s brief differs signifi-
cantly and substantively from how the issues are briefed. To the extent that
the statement of issues raises additional claims that have not been briefed,
those claims are deemed abandoned. See Stamatopoulos v. ECS North
America, LLC, 172 Conn. App. 92, 96 n.3, 159 A.3d 233 (2017).
3
According to the court, the plaintiff ‘‘seemed eager to express himself
as strongly as possible throughout this project,’’ which included ‘‘some
particularly aggressive, bellicose and unpleasant e-mails authored by the
plaintiff.’’ The court set forth the following facts underlying the conflict
between the plaintiff and PH: ‘‘Serious conflicts in connection with the home
renovation project arose with change order requests submitted by VAS in
May, 2011. . . . VAS submitted suggested change orders which included
proposed pricing for the addition of radiant heating in the house. . . . A
revised request by VAS included a ‘log starter’ for indoor and outdoor
fireplaces . . . and one concerning the stone wall. The largest item was the
addition of radiant heating, about $28,000. PH e-mailed all this information
to [the plaintiff] with the comment that PH had reviewed it and was prepared
to discuss the issues with [the plaintiff] at an upcoming meeting. . . . After
receiving a negative response from [the plaintiff], Paulos replied that PH
did not approve or recommend the change order request from VAS and
suggested a ‘private discussion’ with [the plaintiff]. . . . At that point, on
May 26, 2011, at 11:39 p.m., [the] plaintiff sent a message to Paulos,
demeaning Paulos’ father-in-law, calling him a ‘scumbag fraud,’ attacking
VAS’ pricing, and stating, ‘[t]he price is going to be what I want or we settle
in court and lawsuits will be in millions. Game over. Fight back? Ask Maria
[Claudio, the plaintiff’s assistant] what will happen. I do not lose EVER.’
. . .’’
‘‘Hubbard and Paulos testified they were both shocked when they read
[the plaintiff’s] vituperative and obscene middle of the night e-mail. . . .
Paulos, who read the message the next morning while preparing his children
for school, was also nervous about his family. . . . Hubbard and Paulos
decided to contact their insurance company and attorney, and Paulos had
no further contact with [the plaintiff]; Paulos testified that from that point
‘I was not working for [the plaintiff].’ . . . Subsequently, a letter was pre-
pared by PH terminating its services for [the plaintiff], but it was not sent,
because on June 2, 2011, [the plaintiff] e-mailed Hubbard that Hubbard’s
services were terminated, and incongruously adding that ‘[Paulos] was who
I hired and prefer to have solely involved.’ . . . With Hubbard fired and
Paulos avoiding all contact with [the plaintiff], a formal letter of PH’s with-
drawal was sent to [the plaintiff’s] attorney on June 3, [2011].’’
4
VAS later amended its counterclaim to add additional counts seeking
to recover damages under alternative theories of unjust enrichment and
quantum meruit.
5
As the court aptly explained in its memorandum of decision, ‘‘[a] change
order is a means to increase or decrease the contracted price for construction
work caused by a change in the scope of work, in materials, the time
required, or otherwise.’’
6
This claim with respect to PH is closely related to the plaintiff’s additional
claim, addressed in part III of this opinion, that PH breached its agreement
to provide contract administration services, which the plaintiff argues placed
a duty on PH to oversee the project and to protect the plaintiff’s fidu-
ciary interests.
7
The court also rejected the plaintiff’s claim that the repositioning of the
wall resulted in $305,000 in damages, which his expert had estimated to be
the cost of removing and replacing the stone wall and fence. The court
indicated: ‘‘There is no evidence or economic rationale to support incurring
the costs of removing and rebuilding the stone wall, even if the court had
not found its location to be the result of [the plaintiff’s] decisions.’’ (Empha-
sis added.)
8
The court did indicate that it believed the plaintiff had utilized ‘‘a make-
shift method of proving damages’’; (emphasis added); however, we do not
agree with the plaintiff that this was intended to suggest that it generally
was impermissible to use estimates to assign value to punch list items.