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CENTERPLAN CONSTRUCTION COMPANY,
LLC, ET AL. v. CITY OF HARTFORD
(SC 20526)
Robinson, C. J., and D’Auria, Kahn, Ecker and Suarez, Js.
Syllabus
The plaintiffs, C Co. and D Co., which had contracted with the defendant,
the city of Hartford, to construct a baseball stadium, appealed from the
judgment of the trial court in favor of the city. The city had entered
into an agreement with an architectural firm, P Co., to design the stadium.
After P Co. began work, the city, in February, 2015, entered into a
development agreement with D Co. whereby D Co. would serve as the
developer and administer and complete P Co.’s plans. In turn, C Co.
and D Co. entered into a builder agreement with each other, and they
both entered into a direct agreement with the city. In May, 2015, the
city assigned its agreement with P Co. to C Co. and D Co. In December,
2015, a dispute arose between the parties. C Co. and D Co. claimed that
they had never been given control over P Co. or its design of the stadium,
and that the scope of the project had increased because of design
changes made by the city and the team that would be occupying the
stadium. The city and D Co. resolved the dispute in January, 2016, by
executing a term sheet that increased the budget for the project and
extended the substantial completion deadline from March 11 to May
17, 2016. The term sheet, which C Co. did not sign, also prevented
changes to the project without the city’s consent and modified the
liquidated damages provision in the city’s agreement with D Co. After
C Co. and D Co. failed to meet the extended substantial completion
deadline, the city terminated its contractual relationship with C Co. and
D Co. on the grounds that C Co. and/or D Co. had failed to construct
the ballpark in a workmanlike manner and to pay the city liquidated
damages that had accrued since their failure to substantially complete
the project. C Co. and D Co. thereafter brought the present action against
the city, claiming that the city had breached its contracts with them by
failing to provide them with notice and an opportunity to cure the alleged
defaults before terminating their contractual relationship. The city filed
a counterclaim, alleging breach of contract against C Co. and breach
of the implied covenant of good faith and fair dealing against C Co. and
D Co. Prior to trial, and in response to various motions filed by the
parties, the trial court determined that the city’s contracts with C Co.,
D Co., and P Co. granted the city the right to approve the architectural
plans and changes to them but granted C Co. and D Co. the right to
control how the plans were carried out, including control over P Co.
and responsibility for P Co.’s errors and omissions. The court further
determined that the city’s agreement with D Co. vested the city with
the right of commercially reasonable approval over the project plans
but that it was the parties’ intention that D Co. would have complete
control over the stadium design and construction. With respect to the
assignment of the city’s agreement with P Co. to C Co. and D Co., the
court determined that C Co. and D Co. were able to present evidence
at trial only as to the city’s interference with their legal control over P
Co. and the stadium’s design after the term sheet was executed. The
court instructed the jury that the only issue for it to decide was who
was to blame for the stadium’s not being ready by the May 17, 2016
deadline. The jury found C Co. and D Co. responsible for failing to
complete the stadium by the contractually agreed on deadline, returned
a verdict against C Co. and D Co. on their breach of contract claim
against the city, and awarded the city $335,000 in liquidated damages
in connection with its counterclaim. The trial court rendered judgment
for the city, and C Co. and D Co. appealed. Held:
1. D Co. did not waive its right to contest errors by the city that occurred
prior to the execution of the term sheet, including any architectural or
design errors over which the city previously had control; accordingly,
the trial court improperly precluded D Co. from presenting evidence of
such errors and pursuing the claims against the city that it was entitled
to pursue under the term sheet.
2. The parties plainly and unambiguously provided in their agreements that,
until the city assigned the agreement that it had with P Co. to C Co.
and D Co., the city maintained legal control of and responsibility for P
Co.’s work, including any errors or omissions that occurred between
February and May, 2015; the city’s assignment of its agreement with P
Co. in May, 2015, to C Co. and D Co. would have been superfluous if
C Co. and D Co. already had legal control of and responsibility for
P Co.’s work prior to that assignment, and the assignment’s recitals
comported with the understanding that it was the parties’ intent that
there would be a subsequent assignment to C Co. and D Co. of the
agreement between the city and P Co.
3. The clear language of the city’s assignment of its agreement with P Co.
to C Co. and D Co. plainly and unambiguously provided that C Co. and
D Co. had legal control of and responsibility for P Co. and the stadium
design upon the execution of that assignment in May, 2015, until January,
2016, when the term sheet was executed, including responsibility for
any design errors committed during that time period; contrary to the
trial court’s determination, however, the assignment’s plain and unam-
biguous language established that the city retained all obligations as to
P Co. arising out of P Co.’s services before the assignment in May, 2015,
including responsibility for any of P Co.’s errors or omissions before
May, 2015.
4. This court determined that it was unclear under the term sheet whether
the city, on the one hand, or C Co. and D Co., on the other, had control
of P Co. and the stadium design after the execution of the term sheet in
January, 2016, until June, 2016, when the city terminated its contractual
relationship with C Co. and D Co.; accordingly, that issue was to be
determined by the fact finder on remand.
5. The term sheet did not unambiguously divest C Co. of the right, in its
agreement with D Co., to notice and an opportunity to cure any default
prior to termination, the issue of whether the city improperly failed to
provide C Co. with the required notice and cure period was a question
of fact for the fact finder, and the city and C Co. should have been
permitted to introduce evidence regarding whether the city gave C Co.
notice and an opportunity to cure prior to terminating their contractual
relationship:
a. Although the city gained the right under the term sheet to remove C
Co., without first terminating D Co., in the event that C Co. failed to
meet the substantial completion deadline, the term sheet was ambiguous
as to whether the right to remove C Co. was a newly created, unqualified
right or involved the assignment to the city of D Co.’s preexisting right
that D Co. had under its agreement with C Co.; however, under either
interpretation of the term sheet, C Co. had an implied common-law right
or a contractual right to notice and an opportunity to cure, as the term
sheet did not unambiguously divest C Co. of such a right, and, accord-
ingly, the trial court incorrectly determined that the term sheet did not
require the city to provide C Co. with notice and an opportunity to cure
prior to termination.
b. The city could not prevail on its claim that, even if C Co. had been
given an opportunity to cure, it could not establish that it would have
achieved substantial completion of the project within the allotted cure
period, as it was the city’s burden, rather than that of C Co., to demon-
strate that providing an opportunity to cure would have been futile or
that C Co.’s breach was incurable; because the trial court’s ruling with
respect to this issue was improper and the court did not present the
issue to the jury, the parties were prevented from developing the record,
and the case was remanded for further development of the record and
a determination by the fact finder with respect to that issue.
c. The record was inadequate to determine whether C Co. ratified the
term sheet, as the trial court made no preliminary finding of fact regarding
ratification, and, thus, the parties did not have the opportunity to offer
evidence on this issue, but the issue of whether C Co. ratified the term
sheet must be addressed on remand only if the fact finder determines
that the term sheet granted the city a newly created right to terminate
C Co. for failing to meet the substantial completion deadline; accordingly,
on remand, the fact finder must first determine whether the term sheet
granted the city that newly created right or assigned to the city a preex-
isting right under D Co.’s agreement with C Co., and, if it determines
that the term sheet granted the city a newly created right, it then must
determine whether C Co. ratified the term sheet; moreover, if the fact
finder determines that C Co. did ratify the term sheet, which C Co. would
have to have done to consent to its requirements, the scope of the trial
on remand would be limited to claims that arose after the execution of
the term sheet in January, 2016.
Argued April 26, 2021—officially released May 24, 2022
Procedural History
Action to recover damages for, inter alia, breach of
contract, and for other relief, brought to the Superior
Court in the judicial district of Hartford and transferred
to the Complex Litigation Docket; thereafter, the defen-
dant filed a counterclaim; subsequently, the court, Mou-
kawsher, J., granted the defendant’s motions to add
Centerplan Development Company, LLC, et al. as third-
party counterclaim defendants and the plaintiffs’ motion
to implead Pendulum Studio II, LLC, et al. as third-party
defendants; thereafter, the defendant withdrew the
counterclaim as to third-party counterclaim defendant
Leyland Alliance, LLC, et al.; subsequently, the court
granted in part the defendant’s motion to preclude cer-
tain evidence and the case was tried to the jury before
Moukawsher, J.; verdict and judgment in part for the
defendant, from which the plaintiffs and third-party
counterclaim defendant Centerplan Development Com-
pany, LLC, et al. appealed to the Appellate Court; there-
after, the court, Moukawsher, J., denied the plaintiffs’
motion for remittitur and ordered the discharge of
notices of lis pendens on certain of the defendant’s real
properties, and the plaintiffs and third-party counter-
claim defendant Centerplan Development Company,
LLC, et al. filed an amended appeal; subsequently, the
appeal was transferred to this court. Reversed; new
trial.
Louis R. Pepe, with whom was Laura W. Ray, for
the appellants (plaintiffs and third-party counterclaim
defendant Centerplan Development Company, LLC,
et al.).
Leslie P. King, with whom, on the brief, were Sylvia
H. Walbolt, pro hac vice, James E. Parker-Flynn, pro
hac vice, and Ryan D. Class, for the appellee (defen-
dant).
Opinion
D’AURIA, J. The case before us involves a dispute
over the party responsible for delays in constructing
Dunkin Donuts Park, home of Hartford’s minor league
baseball team, the Yard Goats, and a key part of the
planned economic revitalization of Connecticut’s capi-
tal city. As often occurs with such projects, the parties
blame one another for the delays. The dispositive issue
in this appeal is whether the trial court correctly con-
cluded, as a matter of law, that the plaintiffs, the proj-
ect’s developer, DoNo Hartford, LLC (DoNo), and the
project’s design-builder, Centerplan Construction Com-
pany, LLC (Centerplan), ‘‘controlled’’ the architect and
were therefore responsible for any mistakes in and
changes to the stadium’s design.1 Specifically, the plain-
tiffs claim that, in its pretrial interpretation of various
agreements the plaintiffs and the defendant, the city of
Hartford (city), had executed to construct the ballpark,
the trial court incorrectly concluded that the agree-
ments plainly had assigned to the plaintiffs both the
power to direct the design of the ballpark as well as the
responsibility for the architect’s errors and omissions.
After the trial court’s ruling, a jury found the plaintiffs
responsible for failing to complete the stadium by the
contractuallyagreed ondeadline, returneda verdictagainst
the plaintiffs on their claim against the city, and awarded
the city $335,000 in liquidated damages on its counter-
claim.
Upon our careful review of the contracts at issue,
we conclude that, contrary to the trial court’s pretrial
ruling, the parties’ contracts did not unambiguously
grant the plaintiffs legal control of the architect and
the stadium’s design across all relevant time periods.
Because the trial court’s pretrial ruling improperly took
several questions of fact from the jury’s consideration,
we must reverse the judgment and remand the case for
a new trial.
I
The record reveals the following facts and procedural
history. The city contracted with DoNo to serve as the
developer for the stadium. We refer to their contract
as the Developer Agreement. (It is also referred to in
the record as the Development Services Agreement).
DoNo, in turn, contracted with design-builder Cen-
terplan. We refer to their contract as the Builder Agree-
ment. (It is also referred to in the record as the Design-
Build Agreement). Finally, all three parties—the city,
Centerplan, and DoNo—also entered into a Direct
Agreement.
In December, 2015, a dispute arose between the plain-
tiffs and the city. Specifically, Centerplan and DoNo
claimed that they never were given control over the
architect or its design of the stadium as called for by
the Developer Agreement, that the scope of the project
had increased because of changes the city and the base-
ball team had made to the stadium’s design, and, as a
result, DoNo was entitled to additional time and money
to complete the stadium. Centerplan therefore sent a
notice of claim to DoNo, and, in turn, DoNo sent a notice
of claim to the city, requesting a budget increase.2
To resolve DoNo’s claim, DoNo and the city executed
a term sheet on January 19, 2016. The term sheet, among
other things, extended the substantial completion dead-
line for the ballpark from March 11, 2016, to May 17,
2016, prevented any changes to the stadium’s design
without the city’s consent, and modified the liquidated
damages provision in the Developer Agreement. There
was no signature line in the term sheet for Centerplan,
and, in fact, Centerplan did not sign it. The record does
not divulge any reason why Centerplan did not sign the
term sheet or was not asked to do so, and counsel for
the city, when asked at argument before this court,
professed not to know why. The parties also agreed to
a change order, dated January 28, 2016, increasing the
contract price from $56 million to approximately $63.5
million.
It is undisputed that the extended substantial comple-
tion deadline was not attained. On June 6, 2016, the
city terminated the Developer Agreement with DoNo
and the Builder Agreement with Centerplan. In its termi-
nation letter, the city explained that ‘‘[t]his termination
is based on the continued defaults of [DoNo] and [Cen-
terplan] regarding the design and construction of the
Minor League Ballpark . . . . The defaults include, but
are not limited to: (1) the failure to pay liquidated dam-
ages that have been accruing since the failure to reach
substantial completion by May 17, 2016; and (2) the
failure to construct the [ballpark] in a workmanlike
manner . . . .’’3
Following the city’s termination of Centerplan’s and
DoNo’s contracts, the plaintiffs brought an action seek-
ing an injunction against the termination. The plaintiffs
later amended their complaint to include a claim for
breach of contract, including allegations that the city
had failed to provide notice of and an opportunity to
cure the alleged defaults before termination, and a claim
for breach of the implied covenant of good faith and
fair dealing. The amended complaint eliminated any
claim for injunctive relief. The city asserted a counter-
claim in eighteen counts but withdrew all but two of its
counts before the end of trial. Along with the plaintiffs’
claims, the remaining two counts of the counterclaim—
breach of contract against Centerplan and breach of
the implied covenant of good faith and fair dealing
against Centerplan and DoNo—were tried to a jury.
In its instructions, the trial court tasked the jury with
deciding one question: ‘‘Which side is to blame for the
stadium not being ready by its May 17, 2016 deadline?’’4
The jury found in favor of the city and against the
plaintiffs on the plaintiffs’ affirmative claims and in favor
of the city on its counterclaim against the plaintiffs,
awarding liquidated damages of $335,000.
The plaintiffs jointly appealed to the Appellate Court
and moved to transfer the appeal to this court pursuant
to Practice Book §§ 65-2 and 66-2. We granted that motion
over the city’s objection. We will provide additional
facts and procedural history as necessary.
II
Centerplan and DoNo claim that the trial court erro-
neously construed the parties’ contracts to place
responsibility for the architect and design errors on
them across all relevant time periods, including both
before and after the term sheet’s execution. The city
responds that the plain and unambiguous language of
the parties’ contracts placed this responsibility on the
plaintiffs, precisely as the trial court ruled it did. The city
further argues that it is irrelevant whether the contracts
made the plaintiffs legally responsible for the architect
and the design before the execution of the term sheet
because the term sheet fully waived any preterm sheet
claims regarding architect control, design errors, and
increased construction costs.
We disagree with the city that the term sheet waived
the plaintiffs’ claims and, accordingly, must address the
plaintiffs’ claim regarding legal control of the architect
and stadium design. Our review of the parties’ contracts
leads us to conclude that they did not unambiguously
grant the plaintiffs legal control of the architect and
the stadium’s design across all relevant time periods.
First, we hold that, under the contracts, the city plainly
and unambiguously maintained legal control of the
architect and stadium design as a matter of law from
the signing of the original agreements in February, 2015,
to the assignment of the agreement between the city
and Pendulum Studios II, LLC, (Architect Agreement)
in May, 2015, and that the city retained responsibility
for the architect’s errors during this time period. Sec-
ond, we hold that, from the assignment of the Architect
Agreement in May, 2015, to January, 2016, when the
term sheet was executed, the plaintiffs plainly and
unambiguously had legal control of the architect and
stadium design as a matter of law. Last, we hold that,
from the term sheet’s execution in January, 2016, until
the city terminated its contractual relationship with
Centerplan and DoNo in June, 2016, the question of
which party had legal control of the architect and sta-
dium design is ambiguous. Because the trial court’s
pretrial ruling improperly took from the fact finder sev-
eral questions of fact, including the issue of the parties’
intent regarding architect control during this third
period of time—after the term sheet’s execution and
until the city terminated the plaintiffs’ contracts—we
must remand the case for a new trial.5
A
The record reveals the following additional facts and
procedural history relevant to these issues. Count one
of the plaintiffs’ complaint alleges that the city materi-
ally breached its contractual obligations under the
Developer Agreement by not relinquishing control of
the architect and the stadium’s design. The plaintiffs
allege that this material breach prevented Centerplan
from controlling the design and staying within the proj-
ect’s budget. The plaintiffs also allege that the city con-
tinued to issue changes to the design after the execution
of the term sheet, that Centerplan lacked the ability to
reject the changes, and that these additional changes
made it impossible to finish construction by the sub-
stantial completion deadline. As a result, the plaintiffs
allege, the city wrongfully terminated their contracts
despite the city’s own material default for issuing design
changes that increased costs and prevented Centerplan
from finishing on time.
Only weeks before trial, at the trial court’s behest,
the parties filed a number of motions to narrow the
scope of the upcoming trial. Among the motions the
city filed was a motion in limine asking the trial court
to rule, as a matter of law, that the plaintiffs had waived
any claims against the city predating or arising out of
the subject matter of the term sheet. The city argued
that the term sheet had released any claims against the
city as of the term sheet’s execution, including claims
regarding ‘‘control over and scope of the [s]tadium
design, purported design errors and omissions, the cost
of construction, and the substantial completion dead-
line.’’ The city sought to limit the issues at trial to
whether it had made material changes to the stadium
design after the execution of the term sheet such that
Centerplan could not meet the substantial completion
deadline. The plaintiffs responded that, because the city
was exercising its reserved rights under the term sheet
to contest the preterm sheet claims and a preterm sheet
change order, dated December 24, 2015, notwithstand-
ing the release language contained in the term sheet,
Centerplan and DoNo should also be able to pursue
their claims.
When the parties appeared before the trial court to
argue the motion in limine, among other motions, the
trial court signaled its interpretation of the release pro-
visions: that, if the city did not dispute the preterm
sheet claims and preterm change order, then those top-
ics were no longer ‘‘fair game’’ for trial. In response,
the city withdrew its counterclaims against Centerplan
and DoNo contesting the preterm sheet claims and the
preterm sheet change order. The plaintiffs then argued
that, notwithstanding the city’s withdrawal of those
counterclaims, they were still entitled to present evi-
dence of architect and design control to establish that
the city was in fact in charge of the architect before
the execution of the term sheet and that, during that
time, the architect committed errors that led to Cen-
terplan’s inability to meet the substantial completion
deadline even after the term sheet’s execution. The
city filed a renewed motion in limine to preclude that
evidence. The trial court granted the motion, in part, on
the record, noting that the plaintiffs could still present
evidence of design problems as background for their
postterm sheet design claims but not as a basis for
liability or damages.
At the same time, the trial court issued a ruling as
to legal control of the architect and design under the
parties’ agreements. The court determined that the plain
language of the contracts granted the city ‘‘the right to
approve the architectural plans and changes to them’’
but granted Centerplan and DoNo ‘‘the right to control
how the plans were carried out, including control over
the architect.’’ This authority, the trial court reasoned,
derived from the Developer Agreement, the Builder Agree-
ment, and the Architect Agreement. The trial court empha-
sized provisions in the Developer Agreement that, in
its view, promised DoNo operational control over archi-
tectural issues, assigned DoNo the job of completing
the in progress project plans, and provided that DoNo
would assume the city’s rights and obligations under
the Architect Agreement. The trial court noted that the
Developer Agreement allowed the baseball team to visit
the stadium and granted the team the right to request
certain modifications to the design, so long as the team
did not ‘‘hinder or interfere with the construction of
the Project Facilities or the activities of [DoNo’s] con-
tractors . . . .’’ (Internal quotation marks omitted.)
The trial court also emphasized that the Developer
Agreement granted the city ‘‘ ‘commercially reasonable
approval’ ’’ over the project plans, but, otherwise, it was
the parties’ intention that DoNo would have complete
control over the stadium design and construction, and
that DoNo would be responsible for the architect’s acts
and omissions. The trial court highlighted that the
Builder Agreement placed the same emphasis on the
plaintiffs’ bearing responsibility for design issues as did
the Developer Agreement.
Regarding the assignment, the trial court observed
that, ‘‘to carry out its earlier promise to let DoNo assume
[the city’s] rights over the architect, [the city] signed
a document assigning its right under the architect’s
contract with the city.’’ The trial court then determined
that the only obligations the city retained after the
assignment was the obligation to pay the architect for
part A and part B services detailed in the Architect
Agreement, which included concept design, program-
ming confirmation, schematic design, foundation and
seating permits, design development, and construction
documentation. Centerplan was responsible for paying
for everything else referred to in the assignment, includ-
ing part C work, also detailed in the Architect Agree-
ment, which included construction administration and
‘‘ ‘the applicable representations . . . terms, and con-
ditions’ of part A, part B, and every other contractual
matter related to the architect.’’ The trial court con-
cluded that, as a whole, the ‘‘agreements plainly assign
to Centerplan and DoNo the dominant power over
design issues that arise while carrying out the plans.
This power includes the right to direct architect activi-
ties during the design and construction process, and
explicit responsibility for the architects’ acts and omis-
sions. [The city] must agree to the plans and changes
to them. DoNo and Centerplan are in charge of carrying
them out.’’ Therefore, the trial court explained, if con-
struction slowed because of design issues, ‘‘the con-
tracts make Centerplan and DoNo responsible.’’ The
trial court specifically reserved for the jury’s determina-
tion the issue of whether the city ‘‘violated [the plain-
tiffs’ rights regarding the architect and design] by frus-
trating the development team’s work [and thereby]
causing [it] to miss the deadline; then, it would be fair
for the jury [to] find for Centerplan and DoNo.’’
Pursuant to the trial court’s rulings, the plaintiffs
were therefore able to present evidence at trial only as
to the city’s interference with the plaintiffs’ legal control
over the architect and the stadium’s design after the
term sheet’s execution. The plaintiffs consistently main-
tained throughout trial that the city controlled the archi-
tect prior to the execution of the term sheet, and the
plaintiffs attempted to present evidence to that effect,
as well as evidence that the architect made design errors
during that time period that prevented the plaintiffs
from meeting the substantial completion deadline.
Those attempts prompted objections from the city, in
response to which the trial court issued curative instruc-
tions to the jury that the testimony was only background
to the key period after the execution of the term sheet,
and that, ultimately, the plaintiffs were always responsi-
ble for the architect and the design.
At the end of trial, the trial court charged the jury
that ‘‘[t]he parties also agreed that Centerplan and DoNo
would be responsible for the architects and any mis-
takes they may have made; so, if the architects did
something wrong, you have to start with the assumption
that Centerplan and DoNo are to blame for it.’’6 Because
of the trial court’s rulings on the various motions in
limine, the only issue left for the jury to decide was,
as the court stated: ‘‘Which side is to blame for the
stadium not being ready by its May 17, 2016 deadline?’’
B
Before addressing the issue of which party controlled
the architect under the parties’ agreements as a matter
of law, both before and after the execution of the term
sheet, we must determine whether, by executing the
term sheet, the plaintiffs waived any contractual right
to litigate claims predating the term sheet. If we con-
clude that the plaintiffs waived such rights, we must
then limit our review to a determination of which party
controlled the architect after the term sheet’s execution
and pursuant to its language. We conclude that the term
sheet did not fully waive the plaintiffs’ claims.
On appeal, the plaintiffs claim that the trial court
erroneously placed responsibility for the architect and
design errors on Centerplan and DoNo across all rele-
vant time periods. Specifically, they argue that both
prior to and after the May, 2015 assignment, the city
and the baseball team secretly met with the architect
and ordered changes to the design. According to the
plaintiffs, these changes delayed the substantial com-
pletion date and substantially increased construction
costs. Therefore, in December, 2015, DoNo sent a notice
of claim to the city, pursuant to the Developer Agree-
ment, seeking additional time and money to complete
the stadium. The city responds that, under the plain
language of the term sheet, which the parties intended
to resolve DoNo’s claim against the city, the plaintiffs
waived any right to contest any errors by the city that
occurred before the term sheet’s execution, including
any architect errors over which the city previously had
control.7
At the pretrial hearing to resolve the city’s motion
to preclude evidence and testimony of preterm sheet
claims, the trial court ruled that the reserved rights
provisions of the term sheet meant that, if the city did
not dispute the preterm sheet claims and preterm sheet
change order, then Centerplan and DoNo did not have
the right to press those same claims. In the court’s
view, the city’s challenge to the plaintiffs’ claims was
a condition precedent to the plaintiffs’ ability to prose-
cute their preterm sheet claims, and, therefore, it pre-
cluded the plaintiffs from presenting evidence of archi-
tect and design errors that arose prior to the term sheet
that the plaintiffs contend led to their failure to meet
the substantial completion deadline. The trial court did
not treat Centerplan and DoNo as separate entities or
discuss the differences in the language of the reserved
rights provisions relating to these two entities. To assess
the plaintiffs’ claim that the trial court erroneously ruled
that they waived their rights to prosecute their preterm
sheet claims, we discuss in turn each applicable provi-
sion of the term sheet.
Given the trial court’s sole reliance on the term sheet’s
language and the parties’ disagreement about the mean-
ing of that language, ‘‘the first question that this court
must address is not whether the trial court’s substantive
interpretation of the [term sheet] was correct, but the
more fundamental question of whether the relevant lan-
guage was plain and unambiguous. . . . [T]hat deter-
mination is a question of law subject to plenary review.’’
Cruz v. Visual Perceptions, LLC, 311 Conn. 93, 101, 84
A.3d 828 (2014). ‘‘A contract is unambiguous when its
language is clear and conveys a definite and precise
intent.’’ (Internal quotation marks omitted.) Id., 102–103.
By contrast, a contract is ambiguous if its language is
susceptible to more than one reasonable interpretation.
Id., 103. The trial court held that the language of the
term sheet was plain and unambiguous.
Paragraph 15 of the term sheet provides: ‘‘[DoNo] and
the [city] each waive any and all claims that each may
have against the other, or that might arise from, the
matters that are subject of this agreement (subject only
to the reserved rights in [paragraphs] 2 and 4 . . .
).’’ (Emphasis added.) Given the term sheet’s qualifica-
tion of the release provision, the plain language of para-
graph 15 manifests a more limited waiver of the parties’
rights to sue than the city contends. The reserved rights
in paragraphs 2 and 4 provide the parties the ability to
contest certain claims despite the release provision.
Thus, we must determine whether the claim that the
trial court precluded the plaintiffs from raising at trial
fell within the limited scope of paragraphs 2 and 4.
Paragraph 4 provides that, if the interim milestones
to complete the stadium established in paragraph 3 of
the term sheet8 are not met, and Centerplan does not
provide a recovery plan and updated schedule, the city
shall ‘‘[h]ave the right to contest the Claim dated Decem-
ber 17, 2015 and the resulting Change order . . . . If
this option is pursued, [DoNo] and [Centerplan] shall
likewise have the right to assert and prosecute such
Claim and to assert any and all defenses in response
to any claim by the city.’’ (Emphasis added.)
The phrase, ‘‘[i]f this option is pursued,’’ supports
the trial court’s interpretation that the city must first
contest the claims before Centerplan has the ability to
assert and prosecute its claims and defenses. Use of
the qualifier ‘‘if’’ in a contract often creates a condition
precedent. See, e.g., EH Investment Co., LLC v. Chappo,
LLC, 174 Conn. App. 344, 361, 166 A.3d 800 (2017);
id. (‘‘parties often signal their agreement to create an
express condition precedent by using words such as
. . . ‘if’ ’’). ‘‘A condition precedent is a fact or event
[that] the parties intend must exist or take place before
there is a right to performance. . . . A condition is
distinguished from a promise in that it creates no right
or duty in and of itself but is merely a limiting or modi-
fying factor. . . . If the condition is not fulfilled, the
right to enforce the contract does not come into exis-
tence. . . . Whether a provision in a contract is a condi-
tion the [nonfulfillment] of which excuses performance
depends [on] the intent of the parties, to be ascertained
from a fair and reasonable construction of the language
used in the light of all the surrounding circumstances
when they executed the contract.’’ (Internal quotation
marks omitted.) Wells Fargo Bank, N.A. v. Lorson, 341
Conn. 430, 440, 267 A.3d 1 (2021). ‘‘[T]his option’’ plainly
refers to the city’s ‘‘option’’ to contest the preterm sheet
claims if the interim milestones were not achieved. The
phrase appears after the articulation of the city’s right
to contest the December, 2015 claims and preterm sheet
change order, and prior to the articulation of Centerplan
and DoNo’s parallel rights.
The circumstances surrounding the term sheet’s exe-
cution lead us to conclude that the word ‘‘[i]f’’ in para-
graph 4 of the term sheet was in fact intended to create
a condition precedent. The parties wanted to finish
the stadium by May 17, 2016, and the city wanted to
‘‘neutralize [the] plaintiffs’ threat to stop construction.’’
Allowing the plaintiffs to prosecute their preterm sheet
claims earlier would have worked against meeting the
substantial completion deadline, thereby jeopardizing
the ability of the baseball team to fully use the stadium
by the beginning of the baseball season. It also would
have undermined the purpose of the term sheet as a
settlement agreement if the plaintiffs had the ability to
reassert their preterm sheet claims every few weeks.
Thus, we conclude that the trial court correctly deter-
mined that paragraph 15 of the term sheet clearly and
unambiguously waives Centerplan’s right to pursue its
preterm sheet claims at trial because the city withdrew
its counterclaims against the plaintiffs’ contesting the
preterm sheet claims and the preterm sheet change
order, and, therefore, the condition precedent in para-
graph 4 did not arise.9
Further, paragraph 2 of the term sheet modifies the
parties’ agreement regarding liquidated damages, found
in the Developer Agreement. Paragraph 2 provides in
relevant part: ‘‘If the Substantial Completion Date is
not attained,’’ the city ‘‘shall have the right to contest
the Claim dated December 17, 2015, and the resulting
Change Order . . . and [DoNo] shall likewise have the
right to assert and prosecute such Claim and to assert
any and all defenses in response to any claim by the
city.’’ We concede that, at first glance, the phrase, ‘‘and
[DoNo] shall likewise have the right,’’ contained in para-
graph 2, might evince an intent to base DoNo’s right to
contest the claims on the city’s having first contested
the claims if the substantial completion deadline were
not attained. We must read this provision, however, in
the context of the entire agreement. See, e.g., United
Illuminating Co. v. Wisvest-Connecticut, LLC, 259 Conn.
665, 671, 791 A.2d 546 (2002) (‘‘[t]he contract must be
viewed in its entirety, with each provision read in light
of the other provisions’’). When we read the entire term
sheet in context, this interpretation of paragraph 2 is
belied by the parties’ use of more restrictive language
in a later provision. Specifically, as discussed, under
paragraph 4 (c), unlike paragraph 2, if the interim mile-
stones to complete the stadium, as established in the
term sheet, were not met, the parties explicitly condi-
tioned Centerplan’s and DoNo’s rights to prosecute their
claims on the city’s having first contested the claims
and preterm sheet change order. The use of restrictive
language in paragraph 4 shows that the parties knew
how to condition the plaintiffs’ right to prosecute cer-
tain claims on the city’s first having contested the claims.
See Zhang v. Omnipoint Communications Enter-
prises, Inc., 272 Conn. 627, 639, 866 A.2d 588 (2005)
(‘‘[a]lthough we recognize that the introductory para-
graph of the deed references only an easement for the
transmission of electric current, that fact does not over-
come strong evidence of a contrary intent in the more
specific provision setting forth the permissible uses of
the easement’’). The fact that the parties did not use
similar conditional language in paragraph 2 compels
the conclusion that, because the substantial completion
deadline was not attained, DoNo has the right to prose-
cute its claims, irrespective of whether the city contests
the claims or the change order, and, therefore the trial
court’s ruling was erroneous as it applied to DoNo. As
a result of the trial court’s incorrect ruling as to DoNo
regarding waiver, we conclude that the trial court erro-
neously prevented DoNo from fully pursuing the claims
against the city that it was entitled to pursue under the
term sheet.
C
Nevertheless, the trial court’s improper ruling regard-
ing waiver is pertinent only if the parties’ contracts
do not plainly and unambiguously grant the plaintiffs
control over the architect across all relevant time peri-
ods. We thus address the claim that the trial court incor-
rectly concluded, as a matter of law, that the plaintiffs
controlled the architect and were therefore responsible
for any mistakes in and changes to the stadium’s design.
We interpret the parties’ legal rights and responsibili-
ties regarding the architect under the collective agree-
ments, both before and after the execution of the term
sheet.10 ‘‘[W]hen there are multiple writings regarding
the same transaction, the writings should be considered
together in construing the contract.’’ (Internal quotation
marks omitted.) United Illuminating Co. v. Wisvest-
Connecticut, LLC, supra, 259 Conn. 671, quoting Mon-
gillo v. Commissioner of Transportation, 214 Conn.
225, 229, 571 A.2d 112 (1990). Interpretation of an unam-
biguous contract is subject to plenary review, as is ‘‘the
determination [of] whether [the] contractual language
is plain and unambiguous . . . .’’ Cruz v. Visual Per-
ceptions, LLC, supra, 311 Conn. 101–102. ‘‘When the
language of a contract is ambiguous, the determination
of the parties’ intent is a question of fact . . . .’’ (Inter-
nal quotation marks omitted.) Id.
1
Legal Control of Architect from
February to May, 2015
We begin with the parties’ original agreements—the
Architect Agreement, the Developer Agreement, and
the Builder Agreement—which governed the project
from February to May, 2015.
On August 29, 2014, the city and Pendulum Studios
II, LLC, entered into the Architect Agreement, which
initially governed the architect’s responsibilities regard-
ing the stadium’s design. After the architect began
designing the stadium, the city entered into the Devel-
oper Agreement with the plaintiffs to administer and
complete the architect’s in progress plans, and Cen-
terplan and DoNo entered into the Builder Agreement
to do the same. The plaintiffs claim that the terms of
the Developer Agreement required the city to assign
the Architect Agreement to them before or during the
stadium design phase but that the city never actually
did so during that time period; in fact, the architect had
already completed the stadium’s design by the time the
parties effectuated the assignment. In further support
of this claim, the plaintiffs argue that the Builder Agree-
ment defined ‘‘architect’’ as the person ‘‘having a direct
contract with the Design-Builder to perform design ser-
vices,’’ but Centerplan never had a direct contract with
the architect for design services during the entire proj-
ect.
The city responds that the unambiguous language of
the parties’ agreements allocated to the plaintiffs both
responsibility for and control of the architect and the
stadium’s design. The city argues that no provision in
the parties’ original agreements conditioned the exer-
cise of the plaintiffs’ rights over the architect and the
stadium’sdesign onthecity’shaving firstformallyassigned
the Architect Agreement to the plaintiffs because the
Builder Agreement and the Developer Agreement
explicitly provided the plaintiffs with the ability to con-
trol the architect. Centerplan did not need a direct con-
tract with the architect, the city contends, to bear legal
responsibility for the architect’s acts and omissions
because the Builder Agreement made Centerplan respon-
sible for design professionals generally. In any event,
because time was of the essence to complete the sta-
dium by March 11, 2016, the city argues that it is unrea-
sonable to infer that the plaintiffs’ control of the archi-
tect was silently conditioned on a future assignment.
We agree with the plaintiffs that the contracts contem-
plated a subsequent assignment of the Architect Agree-
ment.
The plain language of the Developer Agreement and
the Builder Agreement clearly manifests the parties’
intent that Centerplan and DoNo would control the
architect and the stadium’s design. No party disputes
this, nor can they. For example, the Developer Agree-
ment between the city and DoNo mandates that DoNo
shall ‘‘retain . . . Pendulum Studio II, LLC, as Project
Architect,’’ ‘‘supervise, manage and administer the com-
pletion of the In Progress Project Plans,’’ and ‘‘have
sole control over the design of the Project Facilities
and finalization of the In Progress Project Plans (subject
only to [the] city’s right to review and approve any
Material Changes in its sole discretion . . .).’’ The
Developer Agreement also states that DoNo ‘‘shall
assume [the] city’s rights and obligations under the
[Architect Agreement] by and between [the] city and
[the architect],’’ and that it is the parties’ intention that
DoNo ‘‘have complete control over the design and con-
struction means and methods to be performed at the
Project Facilities, subject to the approval rights of [the]
city . . . .’’ Likewise, the Builder Agreement provides
that, ‘‘[s]ubject to the [city’s] rights with respect to
direction or approvals of design,’’ Centerplan ‘‘shall
have sole control and discretion over the design of
the Project,’’ including ‘‘all aspects of management and
administration of the design and construction of the
Project . . . .’’ The Builder Agreement further provides
that Centerplan shall be responsible for the ‘‘acts and
omissions of the . . . Architect, Contractors, Subcon-
tractors and their agents and employees, and other per-
sons or entities, including the Architect and other
design professionals, performing any portion of [Cen-
terplan’s] obligations under the Design-Build Docu-
ments.’’11
The original agreements, however, are silent as to
whether the parties intended for the agreements auto-
matically and implicitly to assign legal control of the
architect to Centerplan and DoNo, or whether this con-
trol was conditioned on the parties’ first entering into
a separate assignment. The mere existence of the May,
2015 assignment clarifies the parties’ intent. ‘‘[I]n con-
struing contracts, we give effect to all the language
included therein, as the law of contract interpretation
. . . militates against interpreting a contract in a way
that renders a provision superfluous.’’ (Internal quota-
tion marks omitted.) Honulik v. Greenwich, 293 Conn.
698, 711, 980 A.2d 880 (2009). This wisdom also applies
when giving effect to provisions in subsequent contracts.
See Tomey Realty Co. v. Bozzuto’s, Inc., 168 Conn. App.
637, 653, 654–55, 147 A.3d 166 (2016) (reversing grant
of summary judgment when trial court failed to give
effect to operative provisions in lease, amendment to
that lease, and assignment of that lease). The later assign-
ment of the Architect Agreement would have been
superfluous if Centerplan and DoNo already had legal
control of the architect from the outset. As we will
explain in more detail, the assignment was not a formal-
ity or technicality but a full assignment that affected
the parties’ contractual rights related to the control of
and payment for the architect. It would therefore be
incongruous to read the parties’ earlier contracts as
automatically granting Centerplan and DoNo legal rights
over the architect and design.
The assignment’s recitals also comport with the
understanding that the parties intended that there
would be a future assignment. Specifically, the assign-
ment states that the Developer Agreement ‘‘contem-
plated that DoNo would design, develop and construct
the Stadium and that [the city] would assign the [Archi-
tect] Agreement . . . to DoNo . . . .’’ (Emphasis
added.) Although, as ‘‘a general rule, [r]ecitals in a con-
tract, such as whereas clauses, are merely explanations
of the circumstances surrounding the execution of the
contract, and are not binding obligations unless referred
to in the operative provisions of the contract’’; (internal
quotation marks omitted) Tomey Realty Co. v. Boz-
zuto’s, Inc., supra, 168 Conn. App. 653 n.10; recital lan-
guage is context that confirms that the parties intended
that there would be a subsequent assignment of the
Architect Agreement. In fact, that assignment occurred
in May, 2015, three months after the city entered into
the contracts with the plaintiffs.
We therefore conclude that the parties plainly and
unambiguously provided that, until the city assigned
the Architect Agreement to Centerplan and DoNo, the
city maintained legal control of and responsibility for
the architect, including any errors or omissions that
occurred before May, 2015.
2
Legal Control of Architect from
May, 2015, to January, 2016
Next, we discuss the city’s May, 2015 assignment of
the Architect Agreement to the plaintiffs, which affects
who had control of the architect from May, 2015, to
January, 2016.
The plaintiffs argue that this assignment is only a
partial assignment, as the recitals note that the design
was complete by May, 2015, leaving only part C services,
related to construction administration, for the plaintiffs
to direct. The city, on the other hand, argues that it is
‘‘an assignment of the entire Architect Agreement’’
rather than a partial assignment. The city further argues
that the assignment’s plain language transferred to Cen-
terplan the city’s obligation to pay the architect and
relieved the city of future payments. The trial court
agreed with the city, concluding that the city’s only
‘‘obligations’’ were those that ‘‘derive[d]’’ from parts A
and B of the Architect Agreement, and that ‘‘this lan-
guage means that [the city kept] the obligation to pay
the architect under part[s] A and B and Centerplan
pick[ed] up everything else the assignment refers to
. . . .’’
We hold that the assignment’s clear language plainly
and unambiguously provides that the plaintiffs had legal
control of the architect and design as a matter of law,
upon the assignment’s execution, including responsibil-
ity for any design errors committed after the assign-
ment’s execution, consistent with the trial court’s rul-
ing. Where we depart from the trial court’s ruling is its
determination, as a matter of law, that, by the assign-
ment, the city plainly and unambiguously retained only
the ‘‘obligation’’ to pay the architect for part A and part
B services already rendered but not responsibility for
any preexisting architect or design errors. We conclude
that the assignment’s plain and unambiguous language
establishes that the city retained all obligations regard-
ing the architect arising out of the architect’s services
before the assignment, including responsibility for any
of the architect’s errors and omissions. See part II C 1
of this opinion.
‘‘[T]o constitute an assignment there must be a pur-
pose to assign or transfer the whole or a part of some
particular thing . . . and the subject matter of the
assignment must be described with such particularity
as to render it capable of identification.’’ (Internal quo-
tation marks omitted.) Dysart Corp. v. Seaboard Surety
Co., 240 Conn. 10, 17, 688 A.2d 306 (1997). ‘‘Unless the
language or the circumstances indicate the contrary
. . . an assignment of the contract or of all [the assign-
or’s] rights under the contract . . . is an assignment
of the assignor’s rights and a delegation of his unper-
formed duties under the contract.’’ (Internal quotation
marks omitted.) Brett Stone Painting & Maintenance,
LLC v. New England Bank, 143 Conn. App. 671, 689,
72 A.3d 1121 (2013), quoting 3 Restatement (Second),
Contracts § 328, pp. 44–45 (1981).
Facially, the May, 2015 assignment does not purport
to be only a partial assignment. The full Architect Agree-
ment was appended to the assignment, and the recital
to the assignment states that the city is assigning ‘‘all
of [the city’s] right, title, and interest’’ in the Architect
Agreement to Centerplan. (Emphasis added.) Para-
graph 7 of the assignment provides in relevant part that
‘‘[Centerplan], by its acceptance of this [a]ssignment,
hereby assumes and agrees to be bound by the applica-
ble representations, obligations, terms, and conditions
of the [Architect] Agreement . . . .’’ Paragraph 5 of the
assignment provides in relevant part that, upon delivery
of the assignment, the architect ‘‘shall commence work
on Part C . . . of the [Architect] Agreement and shall
complete the same under the purview and direction of
[Centerplan].’’
‘‘The court will not torture words to impart ambiguity
where ordinary meaning leaves no room for ambiguity.’’
(Internal quotation marks omitted.) United Illuminat-
ing Co. v. Wisvest-Connecticut, LLC, supra, 259 Conn.
670. Under the clear and unambiguous language of the
assignment, the plaintiffs were legally responsible for
the architect’s errors and omissions committed after
the assignment, even if the design was ‘‘complete’’ and
the architect was providing only construction adminis-
tration services at the time. The plaintiffs’ contention
that they did not assume responsibility for design errors
after the assignment because the architect had com-
pleted the design and transitioned to only construction
administration cannot be reconciled with the plain lan-
guage of the assignment and the arguments the plaintiffs
made at trial and on appeal to this court. The architect
may have completed certain parts of its design responsi-
bilities, but that does not alter the assignment language,
which transferred all ‘‘representations, obligations, terms,
and conditions of’’ the Architect Agreement—and with
it, control of and liability for the architect—wholly to
Centerplan. The plaintiffs claimed throughout the litiga-
tion that there were architect and design errors through-
out the construction of the stadium, including after the
assignment and the term sheet. Additionally, on appeal,
the plaintiffs argue that the change directives issued by
the architect after the assignment were changes to the
stadium design that delayed construction. It can hardly
be said now that the language providing that the archi-
tect will commence construction administration services
‘‘under the purview and direction of [Centerplan]’’ some-
how limits the plaintiffs’ responsibility for design errors
from the date of the assignment or to review of past
architectural work. We therefore conclude that it is plain
and unambiguous that the May, 2015 agreement consti-
tutes a full assignment of the Architect Agreement, with
all the attendant rights, responsibilities, and liabilities
regarding the architect and stadium design, from the
city to the plaintiffs.
We also conclude that the plain and unambiguous
language of the assignment establishes that the city
retained responsibility for the architect’s errors and
omissions prior to the assignment. Paragraph 7 of the
assignment provides in relevant part that ‘‘[Centerplan],
by its acceptance of this Assignment, hereby assumes
and agrees to be bound by the applicable representa-
tions, obligations, terms, and conditions of the [Archi-
tect] Agreement . . . .’’ The assignment continues, pro-
viding that the city ‘‘shall be relieved of further obligation
pursuant to the same should such obligation arise on
or after execution of this Assignment and pertain to
any matter that does not derive from Part A or Part B
of Exhibit B of the [Architect] Agreement.’’
The assignment does not define the term ‘‘obligation.’’
‘‘We often consult dictionaries in interpreting contracts
. . . to determine whether the ordinary meanings of
the words used therein are plain and unambiguous, or
conversely, have varying definitions in common par-
lance.’’ (Internal quotation marks omitted.) Nation-Bai-
ley v. Bailey, 316 Conn. 182, 193, 112 A.3d 144 (2015).
Black’s Law Dictionary defines ‘‘obligation’’ as a ‘‘legal
or moral duty to do or not [to] do something,’’ a ‘‘formal,
binding agreement or acknowledgment of a liability to
pay a certain amount or to do a certain thing for a
particular person or set of persons; esp[ecially], a duty
arising by contract,’’ and a ‘‘legal relationship in which
one person, the obligor, is bound to render a perfor-
mance in favor of another, the obligee.’’ Black’s Law
Dictionary (11th Ed. 2019) p. 1292. The definition of
‘‘obligation,’’ therefore, includes not only the duty to
pay but also any broader legal duties the city may owe
to the architect under the contract.
When ‘‘obligation’’ is read in the context of the entire
provision, as well as the rest of the assignment, it is
clear that the parties intended the term to be construed
broadly. See, e.g., United Illuminating Co. v. Wisvest-
Connecticut, LLC, supra, 259 Conn. 671. The sentence
in question states that the city ‘‘shall be relieved of
further obligation . . . should such obligation arise on
or after execution of this Assignment and pertain to
any matter that does not derive from Part A or Part
B . . . .’’ (Emphasis added.) The use of the phrase ‘‘any
matter that does not derive from Part A or Part B’’ to
describe the obligations that the city is relieved from
undertaking indicates responsibility beyond just paying
the architect. This provision states that the city is
relieved from further obligations related to ‘‘any matter’’
that does not derive from part A or B work. The neces-
sary inference is that the city also retains obligations
related to ‘‘any matter’’ that does derive from part A
or B work. We have previously explained that, in the
absence of a clear limitation in the text of a contract,
the word ‘‘any’’ gives the resulting phrase an expansive
meaning. See, e.g., Salce v. Wolczek, 314 Conn. 675, 686,
104 A.3d 694 (2014). The provision is not limited to
payment. Two other provisions in the assignment state
that the city ‘‘will remain responsible to [the architect]’’
to pay for additional part B services. Another provision
states that Centerplan will pay the architect for part B
services, notwithstanding the additional services for
which the city agreed to reimburse. The use of more
specific language pertaining to payments, including
invoice numbers and dollar amounts, in other provi-
sions and not when discussing the city’s future obliga-
tions supports the conclusion that the terms ‘‘obligations’’
and ‘‘any matter’’ in paragraph 7 of the assignment do
not contain a limitation as to paying the architect. See
Zhang v. Omnipoint Communications Enterprises,
Inc., supra, 272 Conn. 639; see also Miller Bros. Con-
struction Co. v. Maryland Casualty Co., 113 Conn. 504,
514, 155 A. 709 (1931) (‘‘we must bear in mind that the
particular language of a contract must prevail over the
general’’). In the absence of limiting language, the plain
meaning of the sentence, therefore, is that the city has
an ‘‘obligation’’ of liability for design errors that arise
out of ‘‘any matter’’ related to the architect’s part A and
part B services. This is consistent with the city’s control
of the architect before the assignment, given that the
majority of the architect’s design responsibilities were
completed during that time.
This broader interpretation of the word ‘‘obligation’’
is also informed by our case law regarding assignments.
‘‘[U]nless there has been an express assumption of lia-
bility, the assignee is not liable to the debtor for liabili-
ties incurred by the assignor in connection with the
subject matter of the assignment. . . . As such, [i]n the
absence of an express contract provision, an assignee
generally does not assume the original responsibilities
of the assignor . . . .’’ (Citation omitted; internal quo-
tation marks omitted.) Hartford v. McKeever, 139 Conn.
App. 277, 285, 55 A.3d 787 (2012), aff’d, 314 Conn. 255,
101 A.3d 229 (2014). Because no other part of the assign-
ment expressly provides for the transfer of liability, the
implication of the city’s argument that the assignment
pertained only to the obligation of paying the architect
is that the plaintiffs did not assume future responsibility
for the architect’s errors and omissions, and, thus, all
liability regarding the architect and the stadium defaults
to the city as the assignor. Given that we hold that
the plain and unambiguous language of the assignment
vests the plaintiffs with legal control of the architect,
it would be an absurd result to interpret ‘‘obligations’’
not to include liability for the architect’s errors and
omissions. See, e.g., Grogan v. Penza, 194 Conn. App.
72, 79, 220 A.3d 147 (2019).
We therefore hold that, for the period of time between
May, 2015, to January, 2016, it is plain and unambiguous
as a matter of law that the plaintiffs assumed legal
control of the architect and the stadium’s design upon
assignment of the Architect Agreement, and that the city
retained liability for preexisting architect and stadium
design errors that occurred before May, 2015.
3
Legal Control of Architect from
January to June, 2016
Finally, we turn to the term sheet itself to determine
whether it clearly and unambiguously provides which
party had control of the architect from January to June,
2016, as a matter of law.
The plaintiffs claim that the term sheet clearly and
unambiguously gave the city exclusive control of the
design of the stadium. Specifically, they point to the
term sheet’s provision that ‘‘[t]here will be no new
design changes to the Ballpark without the express
written consent of the city’’ and that such consent ‘‘may
be withheld in its sole and absolute discretion . . . .’’
The city argues that, on its face, the term sheet does
not allow the city to make changes to the design; rather,
it only allows the city to withhold its consent to changes
sought by others. The city further argues that there was
no reason for the plaintiffs to cede design control to the
city in light of the new substantial completion deadline.
We cannot say that it is plain and unambiguous as a
matter of law which party had legal responsibility for
the architect and design under the language of the term
sheet. On the one hand, the term sheet language lends
support to the interpretation that the plaintiffs main-
tained full legal control of the architect and design after
the assignment. Nothing in the term sheet explicitly
provides that the plaintiffs ceded control back to the
city or that the city gained or received control. The
term sheet provided the plaintiffs with what they
wanted when they sent the notice of claim in December,
2015: ‘‘no new design changes . . . .’’ The term sheet,
therefore, can quite reasonably be read to set a fixed
design for the plaintiffs to complete by the substantial
completion deadline. The notices of claim filed in
December, 2015, complained primarily about the city’s
delay in assigning the plaintiffs the Architect Agreement
such that the plaintiffs would be unable to finish the
stadium on time. It would be incongruous, then, for the
plaintiffs to transfer control back to the city. Thus, one
reasonable interpretation of the term sheet is that it
did not affect the legal control of the architect and
stadium design that the assignment had delegated to
the plaintiffs.
The other reasonable interpretation is that the term
sheet ceded legal control of the architect and the design
to the city. The Developer Agreement provides that ‘‘[a]
change order requested by [the] Developer shall be
subject to the approval of [the] city (which may be
granted or denied in [the] city’s sole discretion) only
if it is for a Material Change to the In Progress Project
Plans . . . .’’ (Emphasis added.) The term sheet, how-
ever, provides that the city must consent to any ‘‘design
changes,’’ not just material changes. The use of more
general language regarding the city’s right to consent
(or not to consent) to design changes in the term sheet
compared to the Developer Agreement suggests that,
after the term sheet, the city gained additional control
over the architect and design. See Zhang v. Omnipoint
Communications Enterprises, Inc., supra, 272 Conn.
639. Given the circumstances leading to the term
sheet—including the city’s desire to achieve substantial
completion by the deadline—it is at least plausible, and
perhaps logical, for the city to have desired to exercise
greater control over the architect and design. We are
not convinced that the power to withhold consent,
paired with the requirement that every design change
after the term sheet be given consent before commenc-
ing, amounts to a lack of control over the architect and
the design. See Grovenburg v. Rustle Meadow Associ-
ates, LLC, 174 Conn. App. 18, 47–51, 165 A.3d 193 (2017)
(recognizing that common interest community associa-
tion has broad design control powers through granting
or withholding consent to construction sought by unit
owners in community).
We conclude that both parties’ interpretations are
reasonable, and, therefore, the issue of architect control
after the term sheet is ambiguous. The extent of legal
responsibility over the architect and design from Janu-
ary to June, 2016, must be determined by the fact
finder.12
III
Because we have concluded that this case must be
remanded for a new trial, we would not ordinarily find
it necessary to address the plaintiffs’ further claim that
the term sheet does not unambiguously eliminate Cen-
terplan’s right to notice and an opportunity to cure
under the Builder Agreement.13 Because this issue is
likely to arise at a new trial, however, we conclude that
it is appropriate to address it. See Practice Book § 84-
11; Sullivan v. Metro-North Commuter Railroad Co.,
292 Conn. 150, 164, 971 A.2d 676 (2009).
The plaintiffs argue that the term sheet could not
have superseded the original notice and cure provision
in the Builder Agreement because it makes no mention
of that provision. According to the plaintiffs, this silence
cannot be read to alter Centerplan’s rights under the
Builder Agreement because the term sheet does not
conflict with the Builder Agreement. They further argue
that rights to notice and an opportunity to cure must
be expressly waived and that the term sheet’s silence
necessarily means the notice and cure provision still
applies. The plaintiffs argue in the alternative that the
language of the term sheet is ambiguous and, therefore,
that the interpretation of the term sheet was a question
of fact for the jury.
The city contends that, read naturally, the extended
deadline contained in the term sheet was firm and that
the city’s right to replace Centerplan was absolute. In
support of this contention, the city asserts that the
purpose of a firm deadline was to ensure that at least
some portion of the scheduled baseball season would
be played in the stadium in 2016. The city further con-
tends that Centerplan ratified and benefited from the
term sheet. Finally, the city contends that, without the
unqualified right to terminate Centerplan, the promise
in the term sheet would be illusory and that the plain-
tiffs’ defaults could not have been cured with more time.
We conclude that paragraph 2 (c) of the term sheet
did not unambiguously eliminate Centerplan’s notice
and cure rights in the Builder Agreement. The question
of whether the city breached the Builder Agreement by
failing to provide Centerplan with the required notice
and cure period was a question of fact for the fact
finder, and both parties should have been permitted
to introduce evidence regarding whether the city gave
Centerplan notice and a cure period.
The following facts and procedural history are rele-
vant to our resolution of this issue. Days before trial
began, the city filed a motion in limine, asking the trial
court to rule that Centerplan’s and DoNo’s claims of
default on the basis of the city’s failure to provide notice
and a cure period were barred as a matter of law.14
Specifically, the city argued that the term sheet modi-
fied the terms of the Developer Agreement and Builder
Agreement, eliminating the cure period under certain
circumstances. In response, the plaintiffs argued that
the city was required to provide Centerplan with notice
and an opportunity to cure prior to termination, that
the term sheet did not bind Centerplan because Cen-
terplan did not sign it, and that the only way the city
could terminate Centerplan for failing to meet the sub-
stantial completion deadline was to terminate DoNo
using the step-in provision in paragraph 8 of the Direct
Agreement. The step-in provision would equip the city
with DoNo’s rights under that agreement, including the
power to terminate subject to applicable notice and
cure requirements.
After a hearing, the trial court ruled, as a matter of
law, that the city did not breach its agreements by
terminating Centerplan without an opportunity to
cure.15 The trial court ruled that the term sheet super-
seded Centerplan’s rights under the original contract
documents and that the term sheet allowed the city to
terminate and replace Centerplan without providing for
a right to cure. The trial court emphasized that the
term sheet explicitly preserved certain provisions of
the Developer Agreement but that the notice and cure
provision of the Builder Agreement was not among
them. The term sheet, the trial court determined, ‘‘can’t
fairly be read to have required notice [and] cure rights
. . . . Not only do the words used not provide for it,
but keeping such rights would have frustrated the basic
bargain in the term sheet. The term sheet gave Cen-
terplan two months more time. In exchange, it provided
that, if Centerplan didn’t meet this extended deadline,
it faced termination and higher liquidated monetary
damages. If the new, two month extended deadline
could be extended more by the rights to cure, the bar-
gain would have been meaningless.’’ Finally, the trial
court reasoned that it ‘‘[does not] matter that DoNo
signed the agreement, not Centerplan. Section 8.1.10 of
Centerplan’s agreement [with DoNo] requires Cen-
terplan to comply with the ‘terms, conditions, obliga-
tions and requirements’ of the developer’s contract, and
the term sheet amended the developer’s contract.’’ We
disagree with the position of the city and the trial court.
It is useful first to consider the parties’ rights as they
stood before DoNo and the city executed the term sheet.
Centerplan was not a party to the Developer Agreement.
But in both the Builder Agreement and the Direct Agree-
ment, Centerplan agreed to adhere to certain provisions
of the Developer Agreement. The Developer Agreement
defines ‘‘developer default’’ as consisting of ten differ-
ent ways DoNo could default. The defaults relevant to
this appeal are contained in paragraph 7 (b) of that
agreement: paragraph 7 (b) (1) (i) (failure to construct
the stadium in a ‘‘workmanlike manner’’); paragraph
7 (b) (1) (iii) (failure to meet substantial completion
deadline); and paragraph 7 (b) (1) (v) (failure to pay
liquidated damages).
Paragraph 7 (c) of the Developer Agreement
describes the city’s remedies in the event of DoNo’s
default. Paragraph 7 (c) (1) provides that, if a developer
default exists ‘‘beyond all applicable notice and cure
periods, [the] city may take any one or more of the
following remedial steps . . . .’’ Under paragraph 7 (c)
(1) (i), those remedial steps include the city’s right to
terminate the Developer Agreement and the right to
remove Centerplan after providing all applicable notice
and cure periods. In the event of a developer default
for failure to meet the substantial completion deadline
under paragraph 7 (c) (1) (iii), ‘‘the city shall be entitled
to liquidated damages only.’’
The Builder Agreement between DoNo and Cen-
terplan contains a provision, § A.14.2.1, ‘‘Termination
by the Owner for Cause,’’ that lists specific reasons
permitting DoNo to terminate Centerplan. Pursuant to
that section, DoNo had the ability to terminate Cen-
terplan for any ‘‘substantial breach’’ of the design-build
documents, subject to notice and an opportunity to
cure.16 Under § A.14.2.2, when one of the reasons for
termination for cause arises, DoNo ‘‘may without preju-
dice to any other rights or remedies of the Owner and
after giving [Centerplan] and [Centerplan’s] surety, if
any, seven days’ written notice to cure, upon [Cen-
terplan’s] failure to cure, terminate [the] employment
of [Centerplan] . . . .’’
The Direct Agreement, signed by the city, DoNo, and
Centerplan, contains a provision allowing the city to
step into DoNo’s shoes, replacing DoNo as a party to
the Builder Agreement, but only in the event the city
first terminated the Developer Agreement with DoNo.
The Direct Agreement further provides that, until the
city exercises this step-in provision, the ‘‘city shall have
no direct rights under the [Builder Agreement] and shall
not be considered nor is a party thereto.’’ The Direct
Agreement is the only contract between the city and
both plaintiffs.
Prior to the term sheet, the Developer Agreement
limited the city’s remedy, upon the plaintiffs’ failure to
meet the substantial competition deadline, to liquidated
damages. Thus, the only way the city could gain the
right to terminate Centerplan for failing to meet the
substantial completion deadline was pursuant to the
Direct Agreement, which allowed the city to terminate
DoNo and then step into DoNo’s shoes for the purposes
of the Builder Agreement. The city would thereby have
all of the same rights and obligations DoNo had under
that agreement, including the obligation to provide Cen-
terplan with notice and an opportunity to cure before
termination of the Builder Agreement.
Paragraph 14 of the four page term sheet provides:
‘‘All of the agreements between the city and [DoNo]
(and [Centerplan], to the extent applicable) shall be
amended to reflect the terms and conditions herein.’’
The term sheet extended the substantial completion
deadline from March 11 to May 17, 2016. Paragraph 2
of the term sheet modified the Developer Agreement’s
provision for liquidated damages as follows: ‘‘If the Bal-
lpark is delivered after the Substantial Completion
Deadline and Liquidated Damages are triggered pursu-
ant to the terms of the [Developer Agreement], the first
day damages shall be $50,000’’; thereafter, ‘‘damages
shall accrue at a rate of $15,000 per day,’’ and ‘‘[i]f the
Substantial Completion Date is not attained, the city
shall have the option to remove Centerplan . . . .’’
A
When the trial court relies solely on the language
of an agreement, which it determines to be plain and
unambiguous, and when the parties disagree on the
meaning of that language, ‘‘the first question that this
court must address is not whether the trial court’s sub-
stantive interpretation of the [agreement] was correct,
but the more fundamental question of whether the rele-
vant language was plain and unambiguous. . . . [T]hat
determination is a question of law subject to plenary
review.’’ Cruz v. Visual Perceptions, LLC, supra, 311
Conn. 101. Similarly, interpretation and construction of
an unambiguous contract is subject to plenary review.
Id., 101–102. ‘‘A contract is unambiguous when its lan-
guage is clear and conveys a definite and precise intent.’’
(Internal quotation marks omitted.) Id., 102–103. By
contrast, a contract is ambiguous if its language is sus-
ceptible to more than one reasonable interpretation.
Id., 103. ‘‘[W]hen there are multiple writings regarding
the same transaction, the writings should be considered
together in construing the contract.’’ (Internal quotation
marks omitted.) United Illuminating Co. v. Wisvest-
Connecticut, LLC, supra, 259 Conn. 671. ‘‘[When] two
contracts are made at different times, but [when] the
later is not intended to entirely supersede the first, but
only to modify it in certain particulars, the two are to be
construed as parts of one contract, the later superseding
the earlier one wherever it is inconsistent.’’ (Footnotes
omitted.) 17A Am. Jur. 2d 470, Contracts § 489 (2016);
see also Iowa Arboretum, Inc. v. Iowa 4-H Foundation,
886 N.W.2d 695, 706 (Iowa 2016); Prue v. Royer, 193
Vt. 267, 283, 67 A.3d 895 (2013).
The term sheet modified the Developer Agreement,
but its terms do not indicate that it is a substitute for
either the Developer Agreement, the Direct Agreement,
or the Builder Agreement. ‘‘A recognized test for
whether a later agreement between the same parties
to an earlier contract constitutes a substitute contract
looks to the terms of the second contract. If it contains
terms inconsistent with the former contract, so that the
two cannot stand together it exhibits characteristics
. . . indicating a substitute contract.’’ (Internal quota-
tion marks omitted.) Alarmax Distributors, Inc. v. New
Canaan Alarm Co., 141 Conn. App. 319, 331–32, 61 A.3d
1142 (2013); see Riverside Coal Co. v. American Coal
Co., 107 Conn. 40, 45, 139 A. 276 (1927); see also 2
Restatement (Second), Contracts § 279, comment (a),
p. 375 (1981) (‘‘A substituted contract is one that is
itself accepted by the obligee in satisfaction of the origi-
nal duty and thereby discharges it. A common type of
substituted contract is one that contains a term that is
inconsistent with a term of an earlier contract between
the parties.’’). However, when a later modification does
not supersede the primary contract but modifies only
certain aspects of it, the later modification amends only
those portions of the primary contract whenever the
two are inconsistent. See 17A Am. Jur. 2d, supra, § 489,
p. 470.
Here, the language of the term sheet itself makes
clear an intent that certain provisions of the original
Developer Agreement remain in place. In addition, para-
graph 14 of the term sheet provides in relevant part
that ‘‘[a]ll of the agreements between the city and
[DoNo] (and [Centerplan], to the extent applicable)
shall be amended to reflect the terms and conditions
stated herein.’’ It is therefore clear from the language
that the term sheet modifies the agreements referenced
in it to the extent the term sheet specifically provides;
it is not a substitute contract that completely super-
sedes any of the underlying agreements.
One such modification included in the term sheet
was a change to the liquidated damages provision of
the Developer Agreement. Paragraph 2 of the term sheet
modified the Developer Agreement’s provision for liqui-
dated damages by adding the following language: ‘‘If
the Substantial Completion Date is not attained, the
city shall have the option to remove [Centerplan]
. . . .’’17 The term sheet does not list, by number, the
precise provision or provisions in the Developer Agree-
ment this paragraph modifies. However, it is clear from
the Developer Agreement that the liquidated damages
provision is paragraph 7 (c) (1) (iii). Therefore, para-
graph 2 of the term sheet modified paragraph 7 (c) (1)
(iii) of the Developer Agreement, which, as explained
previously, limited the city’s remedy for Centerplan’s
failure to meet the substantial completion deadline to
liquidated damages. As modified, in addition to liqui-
dated damages, the city gained the right to remove
Centerplan in the event Centerplan failed to meet the
substantial completion deadline, a right the city did not
have under the prior agreements.18
B
It is clear that the term sheet provides the city with
the right to remove Centerplan without first terminating
DoNo under the step-in procedure contained in the
Direct Agreement if the substantial completion deadline
is not attained. This does not answer, however, the
question of whether Centerplan has a right to notice
and an opportunity to cure under the term sheet. The
term sheet is silent regarding whether the city’s right
to terminate is subject to any notice and cure require-
ments.
Although it is generally true that silence alone does
not necessarily equate to ambiguity; see, e.g., 11 R. Lord,
Williston on Contracts (4th Ed. 1999) § 30:4, pp. 47–51;
the Appellate Court has held that silence or a lack of
detail may amount to ambiguity. See Stamford Wreck-
ing Co. v. United Stone America, Inc., 99 Conn. App.
1, 11, 912 A.2d 1044, cert. denied, 281 Conn. 917, 917
A.2d 999 (2007); cf. State v. Ramos, 306 Conn. 125,
136, 49 A.3d 197 (2012) (‘‘silence may render a statute
ambiguous when the missing subject reasonably is nec-
essary to effectuate the provision as written’’). See gen-
erally Salce v. Wolczek, supra, 314 Conn. 686 (applying
canons of statutory construction to interpret contract);
Karas v. Liberty Ins. Corp., 335 Conn. 62, 102–103, 228
A.3d 1012 (2019) (same). In Stamford Wrecking Co.,
the Appellate Court considered whether a contract pro-
vision was ambiguous when it provided that the defen-
dant ‘‘agrees to subcontract the abatement and demoli-
tion work to [the plaintiff] while retaining a certain
portion of the work for its own forces pursuant to the
[s]pecifications.’’ (Internal quotation marks omitted.)
Stamford Wrecking Co. v. United Stone America, Inc.,
supra, 11. The court explained that ‘‘the agreement
[was] silent regarding the precise amount of abatement
and demolition work that was promised to the plaintiff
and [the] overall percentage of work that would be
allocated to each party,’’ and that this lack of detail
rendered the contract ambiguous. Id.
As in Stamford Wrecking Co., the provision of the
term sheet at issue in this case lacks key details. The
term sheet provides that the city shall have the right
to ‘‘remove’’ Centerplan but does not establish any pro-
cedures for this removal—including whether any notice
or cure period is required. Nor does it specify the pre-
cise nature of this right, including whether this right
(1) imposes a new obligation on Centerplan by giving
the city an unqualified right to terminate Centerplan
while preserving DoNo’s right to terminate Centerplan
under the Builder Agreement (which would require Cen-
terplan’s ratification), or (2) is merely a conditional
assignment to the city of DoNo’s preexisting right to
terminate Centerplan under the Builder Agreement and,
thus, includes the accompanying notice and cure rights.
We ultimately conclude that the term sheet is ambigu-
ous as to whether the right to terminate is a newly
created, unqualified right or an assignment of a preex-
isting right. Under either interpretation of the term
sheet, however, Centerplan had some right to notice
and an opportunity to cure: either an implied common-
law right or a contractual right. As a result, for reasons
we will explain in greater detail, we conclude that the
trial court erroneously ruled that the term sheet did
not, as a matter of law, require the city to provide
Centerplan with notice and an opportunity to cure prior
to termination.
The trial court interpreted the term sheet’s silence
regarding notice and the opportunity to cure as granting
the city a new and unqualified right to terminate Cen-
terplan and, thus, the notice and cure provision in the
Builder Agreement did not control. This is one reason-
able interpretation of the term sheet given its silence
on this issue. This interpretation, however, provides
the city with a right that did not exist under the prior
agreements, namely, the right to terminate Centerplan
for failing to meet the substantial completion deadline.
It is axiomatic that, for the city to gain a new right over
Centerplan, Centerplan had to be a party to the term
sheet because, while a contract may provide benefits
to a third party, it cannot burden a third party that is
a stranger to it. See, e.g., Joseph General Contracting,
Inc. v. Couto, 317 Conn. 565, 578, 119 A.3d 570 (2015)
(‘‘[p]arties to a contract cannot thereby impose any
liability on one who, under its terms, is a stranger to
the contract, and, in any event, in order to bind a third
person contractually, an expression of assent by such
person is necessary’’ (internal quotation marks omit-
ted)). Because Centerplan did not sign the term sheet
and, thus, was not bound to adhere to it by the terms
of any other contract, Centerplan can be bound by the
term sheet only if it ratified the term sheet. See part
III D of this opinion. Whether Centerplan ratified the
term sheet is a question of fact that the jury did not
decide in the present case because of the trial court’s
incorrect ruling. See Community Collaborative of
Bridgeport, Inc. v. Ganim, 241 Conn. 546, 562, 698 A.2d
245 (1997).
Moreover, even if we assume that Centerplan some-
how manifested assent to the term sheet, meaning that
the Builder Agreement’s notice and cure provision
would not apply, the term sheet’s silence regarding any
notice and cure requirements does not mean that no
such requirements exist. Our well established common
law provides Centerplan with the right to notice and
an opportunity to cure. Under our common law, when
a contract is silent as to notice and cure rights, the
right to cure is implied in every contract as a matter
of law unless expressly waived. See McClain v. Kim-
brough Construction Co., 806 S.W.2d 194, 198 (Tenn.
App. 1990), appeal denied, Tennessee Supreme Court
(March 11, 1991); see also 5 P. Bruner & P. O’Connor,
Construction Law (2014) § 18:15, p. 909. In the absence
of specific language setting out a notice and cure period,
the breaching party is generally entitled to notice and
a reasonable time to cure the breach. See, e.g., Fraun-
hofer-Gesellschaft zur Förderung der Angewandten
Forschung E.V. v. Sirius XM Radio, Inc., 940 F.3d 1372,
1379 (Fed. Cir. 2019) (‘‘it is a general rule of contract
law that a party exercising the right to terminate the
contract must give notice within a reasonable time’’);
see also 5 P. Bruner & P. O’Connor, supra, § 18:41, p.
1001; 13 J. Perillo, Corbin on Contracts (Rev. Ed. 2003)
§ 68.9, pp. 258–62. Thus, under our common law, silence
in a contract regarding notice and cure rights does not
create ambiguity. Rather, it supports a presumption in
favor of common-law notice and cure rights, and, at
the very least, this silence does not support a conclusion
that the term sheet unambiguously divests Centerplan
of its notice and cure rights.
Because the term sheet is silent as to Centerplan’s
right to notice and an opportunity to cure, we conclude
that there was no express waiver of this common-law
right. This is true even if we assume, arguendo, that
Centerplan was a party to or ratified the term sheet.
The plain language of the term sheet cannot reasonably
be interpreted as reflecting an intent to eliminate Cen-
terplan’s common-law notice and cure rights. Thus,
even if the trial court was correct that the term sheet
granted the city a new, unqualified right to terminate
Centerplan, it incorrectly concluded that this right was
not subject to any notice and cure requirements.
Although neither party briefed the issue, there is
another reasonable interpretation of paragraph 2 (c) of
the term sheet, which we discuss to further demonstrate
the ambiguity of the provision. It would be reasonable
to interpret the right the city gained under the term
sheet as a conditional assignment of DoNo’s right to
terminate Centerplan under the Builder Agreement.19
Specifically, if the substantial completion deadline is
not attained, the term sheet requires DoNo to assign
its right to terminate Centerplan under the Builder
Agreement to the city. If the term sheet assigned this
right to the city, the city’s right was only as broad
and unqualified as DoNo’s right was under the Builder
Agreement. See, e.g., Shoreline Communications, Inc.
v. Norwich Taxi, LLC, 70 Conn. App. 60, 72, 797 A.2d
1165 (2002) (‘‘[a]n assignee has no greater rights or
immunities than the assignor would have had if there
had been no assignment’’). Thus, upon Centerplan’s
failure to meet the substantial completion deadline, the
city gained the right to terminate Centerplan under the
Builder Agreement without first having to terminate
DoNo under the Direct Agreement. If paragraph 2 (c)
of the term sheet operates as a conditional assignment,
the city would still be required to adhere to the notice
and cure provisions of the Builder Agreement prior to
terminating Centerplan. Under this interpretation of the
term sheet, which would not require Centerplan to be
a party to the agreement because the Builder Agreement
did not require Centerplan’s approval for DoNo to
assign its rights under the Builder Agreement, Cen-
terplan clearly and unambiguously maintains its right
to notice and a seven day opportunity to cure as pro-
vided by the Builder Agreement.20
Both of these interpretations of the term sheet are
reasonable, and we thus conclude that the term sheet
is ambiguous as to whether paragraph 2 (c) grants the
city a newly created right or requires DoNo to assign
to the city its preexisting right to terminate Centerplan
under the Builder Agreement. Regardless of this ambi-
guity, however, both interpretations of the term sheet
entitle Centerplan to some form of notice and an oppor-
tunity to cure. Accordingly, the trial court improperly
concluded, as a matter of law, that the city was not
required to provide Centerplan with notice and an
opportunity to cure prior to terminating Centerplan.
Nevertheless, the city argues that the term sheet
clearly divests Centerplan of any right to notice and the
opportunity to cure because, as the trial court stated,
eliminating Centerplan’s notice and cure period was
necessary to preserve the basic bargain of the term
sheet, which the trial court characterized as giving Cen-
terplan two more months to complete the project in
exchange for facing termination and higher liquidated
damages if it did not meet this extended deadline. We
disagree. Even with a notice and cure requirement
(either under the common law or under the Builder
Agreement), in exchange for granting Centerplan more
time, the term sheet gave the city both (1) a right it did
not have before unless it first terminated DoNo and
stepped into its shoes, and (2) the right to higher liqui-
dated damages. In addition, Centerplan was only enti-
tled to either a seven day cure period (under the con-
tract) or a ‘‘reasonable’’ time period (at common law).21
Construing the term sheet as not removing Centerplan’s
right to notice and a cure period does not prevent the
city from obtaining the benefit of its bargain. Accord-
ingly, we conclude that the trial court incorrectly con-
cluded that the term sheet unambiguously removed the
notice and cure provision from the Builder Agreement.
Rather, the term sheet unambiguously provides Cen-
terplan with some form of a right to notice and an
opportunity to cure.22 However, the term sheet is ambig-
uous as to whether the right to notice and the opportu-
nity to cure is the contracted-for right in the Builder
Agreement or a common-law implied right.
C
Nevertheless, the city contends in the alternative that,
even if the trial court improperly construed the term
sheet, any error is harmless and no new trial is war-
ranted. Specifically, the city contends that the trial
court’s error was harmless because Centerplan cannot
establish that it could have cured its breach before the
end of the seven day cure period. The city’s argument
is more appropriately categorized as futility, which con-
cerns whether a party could have cured its breach,
rather than harmlessness, which concerns whether a
trial court’s error requires reversal of the judgment.
The issue is whether it was futile for the city to give
Centerplan the required notice and cure period (regard-
less of the nature of the right) because Centerplan could
not reach substantial completion by the end of any cure
period. As we will discuss in more detail, however, the
burden is on the city, not the plaintiffs, to prove futility.
Clearly, the trial court’s incorrect ruling affected the
trial. Because the trial court determined that the term
sheet gave the city an unqualified right to terminate
Centerplan, it, in essence, held that the term sheet over-
rode any provisions from the prior agreements that
qualified this right to termination. As discussed, how-
ever, the city could not terminate Centerplan without
first providing some form of notice and opportunity to
cure. To hold as the trial court did that this assignment
altered Centerplan’s rights would be to make a new or
different agreement than that entered into by the par-
ties. See, e.g., Collins v. Sears, Roebuck & Co., 164 Conn.
369, 374, 321 A.2d 444 (1973) (‘‘[w]e assume no right
to add a new term to a contract’’ (internal quotation
marks omitted)). Thus, as a matter of law, Centerplan
retained some right to notice and an opportunity to
cure. The trial court’s improper ruling prevented the
parties from developing the record concerning—and
the jury from considering—the factual issues of what
type of notice and opportunity to cure was required,
whether the city gave Centerplan the required notice
and opportunity to cure and, if not, whether the city
had a valid excuse for termination. Because the trial
court’s error prevented the parties from arguing key
issues and removed questions of fact from the jury, a
new trial is necessary. See Cruz v. Visual Perceptions,
LLC, supra, 311 Conn. 106–108 (reversing judgment and
remanding case for new trial when trial court failed to
resolve ambiguity in parties’ letter agreement by consid-
ering extrinsic evidence of parties’ intent); see also
Chouinard v. Marjani, 21 Conn. App. 572, 577, 575 A.2d
238 (1990) (new trial was required because ‘‘court’s
evidentiary ruling prevented the jury from considering
relevant and material evidence affecting the ultimate
issue’’ at trial).
The city’s contention that the plaintiffs must demon-
strate that they could have cured their breach to be
entitled to a new trial misses the mark. ‘‘Termination
of a construction contract can be upheld only if the
terminating party sustains its burden of proof that
. . . the terminating party terminated the contract in
strict compliance with contractually specified termina-
tion procedures . . . .’’ (Emphasis added; footnotes
omitted.) 5 P. Bruner & P. O’Connor, supra, § 18:39, p.
999. The city, therefore, has the burden of proving that
it properly terminated Centerplan. Improper termina-
tion is itself a material contract breach. See, e.g., Cop-
pola Construction Co. v. Hoffman Enterprises Ltd.
Partnership, 157 Conn. App. 139, 169, 117 A.3d 876
(failure to follow notice provision of termination clause
invalidates termination and amounts to material breach
of contract), cert. denied, 318 Conn. 902, 122 A.3d 631
(2015), and cert. denied, 318 Conn. 902, 123 A.3d 882
(2015). Further, ‘‘in the face of a property owner’s repu-
diation 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.’’ Id., 161–62, citing 13 Am. Jur. 2d 107–108,
Building and Construction Contracts § 112 (2009). Until
the trial court’s error is corrected and the ambiguous
termination procedures are interpreted using extrinsic
evidence, if any, it is impossible to determine whether
Centerplan was properly terminated. If the city repudi-
ated or anticipatorily breached its contract by wrong-
fully terminating Centerplan, the city may no longer be
entitled to liquidated damages, and Centerplan may be
able to seek damages regardless of whether it cured its
own breach, unless the city has a valid excuse from
performance. See Martin v. Kavanewsky, 157 Conn.
514, 518–19, 255 A.2d 619 (1969); McKenna v. Woods,
21 Conn. App. 528, 532, 534, 574 A.2d 836 (1990).
Examples of such excuses include futility and the
incurability of the breach. The city could claim that
it was not required to give Centerplan notice and an
opportunity to cure because to do so would be futile.
See, e.g., Semac Electric Co. v. Skanska USA Building,
Inc., 195 Conn. App. 695, 718, 226 A.3d 1095, cert.
denied, 335 Conn. 944, 238 A.3d 17 (2020), and cert.
denied, 335 Conn. 945, 238 A.3d 19 (2020); see also 15
R. Lord, Williston on Contracts (4th Ed. 1990) § 43:17,
p. 2. Similarly, when breaches are truly incurable, a
cure notice may be unnecessary. See 5 P. Bruner & P.
O’Connor, supra, § 18:15, pp. 910–11. The burden falls
on the city, however, to demonstrate that providing
notice and an opportunity to cure would be futile or
that Centerplan’s breach was incurable. The burden is
not the plaintiffs’ to show that Centerplan could have
cured within the governing cure period. Notably, the
Appellate Court has been reluctant to entertain a futility
defense when the contract provided a specific notice
and cure period and the terminating party did not honor
that cure period. See Semac Electric Co. v. Skanska
USA Building, Inc., supra, 718 (‘‘[w]e decline to specu-
late that waiting the additional hours required under
the contract would have been futile’’).
Because the trial court did not properly construe the
agreements and did not present this issue to the jury,
the parties, particularly the plaintiffs, were prevented
from developing the record regarding—and the jury
was prevented from deciding—not only whether proper
notice and an opportunity to cure were provided, but
also whether honoring the termination requirements
would be futile or whether Centerplan’s breach was
incurable. ‘‘We often have stated that whether a con-
tract has been breached is a question of fact . . . and
that this court lacks the authority to make findings of
facts or draw conclusions from primary facts found.’’
(Citation omitted.) Coppola Construction Co. v. Hoff-
man Enterprises Ltd. Partnership, supra, 157 Conn.
App. 171. In the present case, the trial court determined,
before trial and as a matter of law, that the city could not
have breached its contract with Centerplan by failing
to give Centerplan notice of its default and an opportu-
nity to cure the default. The trial court’s ruling was
premised on its incorrect construction of the term
sheet, which the trial court concluded unambiguously
eliminated Centerplan’s notice and cure rights. As a
result of this pretrial error, the jury never was tasked
with deciding whether the city breached its contract
by failing to give Centerplan the required notice and
cure period before terminating the Builder Agreement.
It may be tempting to wonder whether an additional
seven days (or a reasonable time) would have made a
significant difference in the plaintiffs’ ability to finish
the stadium on time. But we cannot make these determi-
nations as a matter of law, and this court cannot find
facts in the first instance. See, e.g., Cruz v. Visual Per-
ceptions, LLC, supra, 311 Conn. 106. This question must
be determined by the jury at a new trial on remand.
D
Because the issue of whether Centerplan ratified the
term sheet is likely to arise on remand, as referenced
in various portions of this opinion, we briefly address
the trial court’s conclusion that it did not matter that
only DoNo signed the term sheet, and not Centerplan,
because ‘‘[s]ection 8.1.10 of Centerplan’s agreement
[with DoNo] requires Centerplan to comply with the
‘terms, conditions, obligations and requirements’ of the
developer’s contract, and the term sheet amended the
developer’s contract.’’ It is true that, when Centerplan
entered into the Builder Agreement,23 it agreed to
adhere to certain terms of the Developer Agreement.
Centerplan, however, did not agree to be bound by
any future modifications to the terms of the Developer
Agreement. In the absence of an expression of an intent
by Centerplan to be bound by future modifications, we
decline to conclude that § 8.1.10 applies not to just
those terms of the Developer Agreement that were in
place at the time Centerplan signed the Builder Agree-
ment, but to those terms that came later in the term
sheet.24 See Gilmore v. Knights of Columbus, 77 Conn.
58, 62, 58 A. 223 (1904) (holding that, when parties
expressly agree to be bound by future amendments to
contract, ‘‘the courts are substantially agreed that a
future amendment, if reasonable, binds the consenting
member’’). Thus, because the term sheet was executed
only by DoNo and the city, Centerplan was not bound
by its terms. See, e.g., FCM Group, Inc. v. Miller, 300
Conn. 774, 17 A.3d 40 (2011) (‘‘[T]he obligation of con-
tracts is limited to the parties making them, and . . .
in order to bind a third person contractually, an expres-
sion of assent by such person is necessary. . . . In
other words, [a] person who is not a party to a contract
(i.e., is not named in the contract and has not executed
it) is not bound by its terms.’’ (Citation omitted; internal
quotation marks omitted.)). Id., 797.
The city contends that, even if the trial court erred
in ruling that § 8.1.10 of the Builder Agreement bound
Centerplan to adhere to the term sheet, Centerplan
remained bound by the term sheet because it knew of,
and acquiesced in, its terms and accepted its benefits.
In other words, the city argues that Centerplan ratified
the term sheet. This argument, however, must be
addressed on remand only if the fact finder determines
that paragraph 2 (c) of the term sheet grants the city
a newly created right to terminate Centerplan for failing
to meet the substantial completion deadline. See part
III B of this opinion. If the fact finder determines that
paragraph 2 (c) creates a conditional assignment to
the city of DoNo’s preexisting right under the Builder
Agreement, ratification by Centerplan is not required
for this provision to be enforceable. This is because an
assignment of rights does not create any new obliga-
tions for Centerplan, and none of the prior agreements
required Centerplan’s permission for DoNo to assign
its rights under the Builder Agreement. Cf. Rumbin v.
Utica Mutual Ins. Co., 254 Conn. 259, 268–69, 757 A.2d
526 (2000).
In the event the fact finder determines that paragraph
2 (c) of the term sheet grants the city a newly created
right to terminate Centerplan for failing to meet the
substantial completion deadline, however, we address
this argument briefly. As explained in part III B of this
opinion, under our interpretation of the term sheet,
Centerplan would be subject to new obligations, thus
requiring its consent. Because Centerplan did not sign
the term sheet and was not bound by the term sheet
under the terms of the Builder Agreement, it would
have had to ratify the term sheet to consent to its
requirements. See, e.g., Joseph General Contracting,
Inc. v. Couto, supra, 317 Conn. 578 (‘‘to bind a third
person contractually, an expression of assent by such
person is necessary’’ (internal quotation marks omit-
ted)). Whether a party ratified an agreement is a ques-
tion of fact. See Community Collaborative of Bridge-
port, Inc. v. Ganim, supra, 241 Conn. 562. This court
is not permitted to make a finding of fact ‘‘unless the
subordinate facts found make such a conclusion inevita-
ble as a matter of law.’’ (Internal quotation marks omit-
ted.) Reclaimant Corp. v. Deutsch, 332 Conn, 590, 614,
211 A.3d 976 (2019). Because the trial court made no
preliminary finding of fact regarding ratification, and,
indeed, it could not, the parties did not have the oppor-
tunity to offer evidence on this issue. The record is
therefore not adequate for this court to determine this
issue. Thus, if the fact finder on remand determines
that the term sheet grants the city a new, unqualified
right to terminate Centerplan, even assuming there was
proper notice and an opportunity to cure, as required
under the common law, the fact finder also would have
to determine whether Centerplan ratified the term sheet
for the city to have properly terminated Centerplan.
In conclusion, we reiterate the following two conclu-
sions of law. First, under the contracts, the city plainly
and unambiguously maintained legal control of the
architect and stadium design, from the signing of the
original agreements in February, 2015, to the assign-
ment of the Architect Agreement in May, 2015. The city
also retained liability for the architect’s errors during
this time period. Second, from the assignment of the
Architect Agreement in May, 2015, to January, 2016,
when the term sheet was executed, the plaintiffs plainly
and unambiguously had legal control of the architect
and stadium design.
On remand, the fact finder must decide the following
questions of fact, among others that are otherwise
within the province of the jury. First, the fact finder
must determine whether Centerplan ratified the term
sheet. If the fact finder determines that Centerplan did
in fact ratify the term sheet, the scope of trial as to
Centerplan is limited to claims that arose after the exe-
cution of the term sheet in January, 2016. Second, the
fact finder must determine the extent of legal control
of the architect and stadium design from the time the
term sheet was executed in January, 2016, until the city
terminated its contractual relationship with Centerplan
and DoNo in June, 2016. Third, the fact finder must
determine whether the parties intended that the term
sheet grant the city, through its right to terminate Cen-
terplan’s contract, a newly created, unqualified right or
an assignment of a preexisting right. Fourth, the fact
finder must determine whether the city breached its
contract by failing to provide Centerplan with the
required notice and cure period before terminating the
Builder Agreement.
The judgment is reversed and the case is remanded
for a new trial.
In this opinion the other justices concurred.
1
The plaintiffs advance four additional claims on appeal: (1) Did the trial
court err in deciding as a matter of law that, under the parties’ agreements,
the city did not breach its agreements with the plaintiffs by terminating
Centerplan without affording it an opportunity to cure? (2) Did the trial
court err in refusing to instruct the jury that, if it found that there was
concurrent delay by virtue of the city’s acts or omissions, Centerplan would
be entitled to an extension of time and DoNo could not be in default? (3)
Did the trial court err by directing the jury to award liquidated damages to
the city without allowing it to consider offsetting the benefit conferred by
the plaintiffs on the city? (4) Did the trial court err in discharging the
lis pendens filed by DoNo and its counterclaim defendant affiliates, the
leaseholders, on the parcels surrounding the ballpark? Because we have
concluded that the plaintiffs’ first issue disposes of their appeal and requires
a new trial, we would not, in the ordinary course, need to reach these other
issues. We have determined, however, that the issue of whether the city,
as a matter of law, breached its agreements with the plaintiffs by terminating
Centerplan without affording it an opportunity to cure is likely to arise on
remand, and we therefore have addressed this issue as well. We decline to
reach all other issues.
2
The city asserts that the notice of claim was sent on behalf of both
Centerplan and DoNo, and that the city, Centerplan, DoNo, and the baseball
team negotiated new terms to complete the stadium. The plaintiffs contend
that DoNo alone sent a notice of claim to the city and that the term sheet
resolved the issues raised in that notice of claim between only the city and
DoNo. This issue is addressed more fully in part III B and D of this opinion.
3
Although the termination letter does not expressly list ‘‘failure to meet
the substantial completion deadline’’ as a reason for terminating Centerplan,
the city argued before the trial court that the termination letter encompassed
this reason because it stated that the defaults ‘‘include, but are not limited
to,’’ the listed reasons. In addition, the city contended, its pursuit of liquidated
damages as a result of the plaintiffs’ failure to meet the substantial comple-
tion deadline made plain that the failure itself constituted a reason for
termination. On appeal, the plaintiffs do not argue that the termination letter
did not specifically include this ground as a reason for termination.
4
In the transcript of the trial court’s jury instructions, the question appears
as, ‘‘[w]hich side is to blame for the stadium not being ready by its March
[17] 2016 deadline?’’ In the court’s written instructions and on its verdict
form, however, the deadline appears correctly as May 17, 2016, the extended
substantial completion date reflected in the term sheet. Neither party has
raised a claim of error as to this aspect of the jury instructions.
5
We note that the plaintiffs may still proceed with the theory they
advanced at the first trial, which was that, even if they had legal control of
the architect and the stadium’s design, the city interfered with that control.
Our conclusions of law are limited to the interpretation of the parties’
contracts. The question of whether the city in fact interfered with the plain-
tiffs’ legal control of the architect and the stadium’s design, thereby delaying
construction and breaching its contractual duties to the plaintiffs, is more
appropriately addressed by the fact finder on remand.
6
Contrary to its prior ruling, the trial court did not instruct the jury that,
if the city ‘‘violated [the plaintiffs’ rights regarding the architect and design]
by frustrating the development team’s work [and thereby] causing [it] to
miss the deadline, then it would be fair for the jury [to] find for Centerplan
and DoNo.’’ On appeal, the plaintiffs make no claim of error in this regard.
7
The plaintiffs also argue that the city continued to issue changes to the
design plans for the stadium after the execution of the term sheet, thereby
disrupting the plaintiffs’ ability to finish on time. The city responds that the
term sheet plainly and unambiguously vested control over the architect with
the plaintiffs, and, thus, the trial court properly determined, as a matter of
law, that any architect and design errors after the execution of the term
sheet must be attributable to the plaintiffs. We address this argument in
part II C 3 of this opinion.
8
The interim milestones included the completion of (1) structural steel
erection and exterior wall enclosures by March 9, 2016, (2) watertight roofing
areas by April 7, 2016, (3) brick veneer by April 15, 2016, and (4) front
counters, ventilation hoods, overhead cooling door, refrigerant piping,
remote refrigeration, walk-in coolers, and equipment by April 21, 2016.
9
Our analysis as it relates to Centerplan does not end there, however,
because, as discussed in part III of this opinion, it is unclear whether Cen-
terplan ratified the term sheet. If, on remand, the fact finder determines
that Centerplan ratified the term sheet, then the dispositive issue will, at
least as to Centerplan, be limited to which party had control over the
architect, as a matter of law, after the term sheet’s execution. In the event
the fact finder determines that Centerplan did not ratify the term sheet and,
thus, did not waive its contractual right to prosecute its preterm sheet
claims, we have provided additional analysis, to the extent it applies on
remand, regarding whether the relevant contracts make clear and unambigu-
ous which party had control over the architect across all relevant time
periods. See part III B and D of this opinion.
10
If the fact finder determines as a matter of law that Centerplan ratified
the term sheet, and therefore waived the ability to prosecute the preterm
sheet claims, then the only issue as to Centerplan is legal control of the
architect and design of the stadium after execution of the term sheet.
11
The city additionally points to language in the Developer Agreement
that provides that DoNo ‘‘shall have control of . . . management of all other
third party vendors . . . including, without limitation, architects,’’ and sole
responsibility and control of the stadium’s design. The city also cites lan-
guage in the Builder Agreement that provides that Centerplan is not required
to ‘‘take direction from or accept any changes to the design or construction
of the Project from the [city].’’ We agree with the city that this language
supports its position that the parties intended that the plaintiffs would
control the architect and the stadium’s design, but, as we explain, the con-
tracts do not indicate whether they automatically assigned control to the
plaintiffs.
12
We leave it to the trial court on remand to determine whether, with a
fuller record, these questions may be resolved through summary judgment.
13
The claim as articulated by the plaintiffs is: ‘‘[Did] the trial court err in
treating DoNo and Centerplan as a single entity and thereby wrongly [strip]
them of their legal rights?’’ However, the plaintiffs do not argue that the
trial court erroneously treated DoNo and Centerplan as a single legal entity;
rather, they argue that the trial court incorrectly interpreted the agreements
between the parties.
14
It is possible that this motion in limine was prompted by a question
from an order of the trial court during a hearing on May 13, 2019. First, the
trial court asked the parties whether the city could still prevail if it wrongly
terminated Centerplan. The court then asked the parties to submit ‘‘all the
legal conclusions that you would want [it] to incorporate into any con-
tracts . . . .’’
15
The trial court announced this ruling orally during a hearing on May
29, 2019, before the start of trial. The court issued a written decision on
June 14, 2019, during the trial.
16
‘‘Substantial breach’’ is not defined in the Builder Agreement or the
Developer Agreement. For purposes of this analysis, we assume, without
deciding, that failure to meet the substantial completion deadline amounts
to a substantial breach of the Developer Agreement. Section 8.1.10 of the
Builder Agreement defines the design-build documents as including the
Developer Agreement.
17
Paragraph 2 of the term sheet provides in relevant part: ‘‘If the Ballpark is
delivered after the Substantial Completion Deadline and Liquidated Damages
are triggered pursuant to the terms of the [Developer Agreement], the first
day damages shall be $50,000’’; thereafter, ‘‘damages shall accrue at a rate
of $15,000 per day . . . .’’
18
Paragraph 2 (c) of the term sheet provides in relevant part: ‘‘If the
Substantial Completion Date is not attained, the city shall have the option
to remove [Centerplan] . . . .’’
19
‘‘An assignment is a transfer of property or some other right from one
person (the assignor) to another (the assignee), [that] confers a complete
and present right in the subject matter to the assignee. . . . An assignment
is a contract between the assignor and the assignee, and is interpreted or
construed according to rules of contract construction.’’ (Citation omitted;
internal quotation marks omitted.) Liberty Transportation, Inc. v. Massa-
chusetts Bay Ins. Co., 189 Conn. App. 595, 602, 208 A.3d 330 (2019).
20
Alternatively, the plaintiffs argue that the city violated Centerplan’s
contractual rights by not following the step-in procedure in the Direct Agree-
ment. To the extent the plaintiffs argue that this provision of the Direct
Agreement requires the city to first terminate DoNo before it can terminate
Centerplan—regardless of the reason or the other contractual provisions—
the clear language of this provision, as discussed, does not create such a
requirement but, rather, sets forth only the procedure for how Centerplan
and the city would interact if DoNo were terminated. Because paragraph 2
of the term sheet creates a mechanism by which the city gains the right to
terminate Centerplan without first terminating DoNo, the Direct Agreement
would not be triggered by the city’s exercise of its right under paragraph 2.
This conclusion does not conflict with the language of the Direct Agree-
ment providing that, until the city steps into the shoes of DoNo under the
Builder Agreement, the city ‘‘shall have no direct rights under the [Builder
Agreement] and shall not be considered nor is a party thereto.’’ This provision
merely clarifies that the Direct Agreement does not grant the city any of
DoNo’s rights under the Builder Agreement until and unless the city termi-
nates DoNo. It does not prevent DoNo from assigning its rights under the
Builder Agreement to the city in a separate contract.
21
We note that the city may still proceed with the theory it advanced at
the first trial, which was that, even if Centerplan was entitled to a seven
day notice and cure period, it would have been futile to give Centerplan
the notice and cure period because it could not reach substantial completion
by the end of any cure period. Our conclusions of law are limited to the
interpretation of the parties’ contracts.
22
Although it is clear that the term sheet did not eliminate Centerplan’s
notice and cure rights, it is less clear what right, exactly, the term sheet
did give to the city. During future proceedings, it may be necessary to
determine whether the city’s right to terminate Centerplan operates as a
new and independent right, or whether it operates as an assignment of
DoNo’s existing right to terminate Centerplan.
23
Although not a part of the trial court’s reasoning, Centerplan also agreed
to be bound by certain other provisions of the Developer Agreement pursuant
to the terms of the Direct Agreement. The same reasoning applies to the
Direct Agreement.
24
Even if § 8.1.10 of the Builder Agreement did bind Centerplan to the
term sheet to some extent, that provision applies only to ‘‘terms, conditions,
obligations and requirements pertaining to the design and construction of
the Project . . . .’’ (Emphasis added.) The plaintiffs argue that notice and
cure rights do not pertain to the design and construction of the project,
and, therefore, the Builder Agreement does not bind Centerplan to the notice
and cure provisions of the Developer Agreement or any modifications to
those provisions caused by the term sheet. We agree.