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Suntech of Connecticut, Inc. v. Lawrence Brunoli, Inc.

Court of Appeals of Connecticut

May 23, 2017

SUNTECH OF CONNECTICUT, INC.
v.
LAWRENCE BRUNOLI, INC., ET AL.

          Argued Date: December 15, 2016

         Appeal from Superior Court, judicial district of Hartford, Wahla, J.

          Lawrence G. Rosenthal, with whom was Denise Pur-pura, for the appellant (plaintiff).

          Margaret Fogerty Rattigan, for the appellee (named defendant).

          Bradford R. Carver, for the appellee (defendant Safeco Insurance Company of America).

          Lavine, Beach and Bishop, Js.

          OPINION

          LAVINE, J.

          This breach of contract action arises out of the construction of a technology center at Naugatuck Valley Community College (project), [1] which is owned by the state of Connecticut (state). In essence, the complaint alleged that the defendant general contractor breached the subcontract by preventing the plaintiff subcontractor from timely performing pursuant to the terms of the subcontract and by wrongly withholding funds from it. We affirm the judgment of the trial court.

         The plaintiff subcontractor, Suntech of Connecticut, Inc., appeals from the judgment of the trial court, rendered after a trial to the court, in favor of the defendant general contractor, Lawrence Brunoli, Inc. (contractor), and the defendant bonding company, Safeco Insurance Company of America (insurer).[2] On appeal, the plaintiff claims that the court (1) abused its discretion with respect to its evidentiary rulings and (2) failed, as a matter of law, to adopt the reasoning of a Massachusetts trial court when adjudicating the plaintiff's claims that the contractor was responsible for the failure of the project to be completed on time. Although the plaintiff's evidentiary claims raise troubling issues, the plaintiff cannot prevail as it has failed to demonstrate that the court's alleged abuse of discretion was harmful.

         In summary, the contractor entered into a construction contract (contract) with the state to build the new technology center. The plaintiff, a Connecticut corporation that fabricates and installs glass and curtain walls, entered into a subcontract with the contractor to provide services and materials for the project. The contract required that the project be completed within 640 days from the date the project commenced (completion date), but the project was not completed within that time. The plaintiff claims that the contractor was responsible for the late completion and that it failed to pay the plaintiff moneys it was owed under the subcontract.

         On July 9, 2010, [3] the plaintiff commenced the present action against the contractor and insurer, claiming that it suffered money damages as the result of the delayed completion, that it performed work outside the subcontract for which it was not paid, and that it was not paid retainage[4] at the completion of the project, among other things. The plaintiff alleged four counts against the contractor for breach of contract, unjust enrichment, delay, and violation of General Statutes § 49-41a;[5] and one count against the insurer pursuant to General Statutes § 49-42.[6] The contractor denied the substantive allegations of the complaint and alleged seven special defenses.[7] The court found in favor of the defendants on all counts, and the plaintiff appealed to this court.

         On appeal, the plaintiff asserts that the evidence demonstrates that during the course of the project, at the contractor's request, it performed work outside the scope of the subcontract and that it was not paid for such work. In addition, the contractor hindered and interfered with the plaintiff's ability to complete its work, which resulted in the plaintiff's being unable to complete its work for more than two years beyond the completion date. The plaintiff claims that the evidence demonstrates that it suffered damages due to the contractor's hindrance and interference. In addition, the contractor completed the project approximately two years after the completion date and, thereafter brought a claim against the state for approximately $7 million. The state settled the contractor's claim for $1.65 million, but the contractor never paid the plaintiff for the work it performed outside the subcontract, for retainage, or the damages it suffered as a result of the contractor's hindrance and interference. Although the plaintiff claims that the court improperly found in favor of the defendants, it does not claim that any of the court's factual findings are clearly erroneous. The plaintiff's claims are mostly of an evidentiary nature, but also assert that the court erred in failing to adopt the reasoning of a Massachusetts trial court case as to hindrance and interference. The findings and reasoning of the court follow.

         The court issued a lengthy memorandum of decision on July 31, 2015. Among other things, the court found that in May, 2006, the plaintiff submitted a revised proposal pursuant to the project's design specifications that were prepared by Amenta/Emma Architects, P.C. (architect).[8] The plaintiff's quotation was $1, 050, 790; the contractor incorporated the plaintiff's bid in its own bid to the state. The state awarded the project to the contractor, and the two entered into the contract for the project for the price of $25, 015, 700. The contract required the project to begin on May 26, 2006, and to be completed by February 22, 2008, the completion date. On May 26, 2006, the plaintiff's president, Michael Berkun, signed the subcontract, and on June 29, 2006, the contractor's president, Lawrence Brunoli, Jr., signed the subcontract.[9] The court construed the terms of the subcontract and found that they were not ambiguous, and that the parties were sophisticated business entities.

         Paragraph V of the subcontract provides in relevant part: ‘‘The Contractor agrees to begin, prosecute and complete the entire work specified by the [state] in an orderly manner so that the Subcontractor will be able to begin, prosecute and complete the work described in this subcontract . . . . The subcontractor agrees that the construction schedule is approximate only and is subject to change; the subcontractor agrees to accept responsibility for adhering to a fluctuating schedule; the Subcontractor agrees not to assess any delay damages or claims against [the contractor] unless the Owner accepts responsibility and payment.'' (Emphasis added.) The court, therefore, found that the plaintiff agreed that the construction schedule was approximate only, was subject to change, and that the plaintiff agreed to accept responsibility for a fluctuating schedule and not to assess any delay damages or claims against the contractor unless the state accepted responsibility and made payment. Any changes to the subcontract were to be executed in writing or by written change order from the contractor. The plaintiff's subcontract was a lump sum contract; no ‘‘human hours'' were mentioned in it.

         The court found that, due to design issues between the Department of Public Works (department) and the architect, construction of the pedestrian bridge delayed completion of the project.[10] The court also found that the state determined that the plaintiff was responsible for installing the materials necessary to attach the curtain wall to the pedestrian bridge and directed the plaintiff to complete the work. The plaintiff, however, did not install the materials, and the contractor had to hire another subcontractor to attach the curtain.[11]

         The court further found that at the time the plaintiff was working on the project it also was working on four or five other ‘‘jobs'' and that the project was of relatively low importance to the plaintiff. The plaintiff generally assigned only two to four laborers to work on the project, had complete control over its laborers, and was able to utilize the building in any way that it chose. The plaintiff failed to provide the number of laborers necessary to complete the project, and the contractor repeatedly sent messages and requests to the plaintiff with respect to the ‘‘manpower'' issue. The contractor met with the subcontractors every week to discuss the schedule, to coordinate work, and to provide information regarding work areas and access to them in the week ahead. The court found that the contractor did not intentionally or deliberately fail to coordinate or manage the work of the subcontractors on the project. Despite numerous delays that were beyond the contractor's control, the state did not grant it an extension of time to finish the project.

         The plaintiff was to be paid in accordance with paragraph II of the subcontract, which required that its bill be approved by the contractor and the state, and that all payments were subject to a 5 percent retainage. The plaintiff was not to be paid in full until all work was completed and all warranties, guarantees, and spare parts were in place, and the contractor had receive final payment from the state.

         On March 31, 2007, a representative of the plaintiff certified under oath that the plaintiff had purchased 80 percent of its glass. On December 30, 2008, the representative certified under oath that 99 percent of the plaintiff's work had been completed, and on November 13, 2009, representative testified under oath that 99 percent of the plaintiff's payment for the glass had been completed. The last day the plaintiff worked on the project was May 7, 2009. The plaintiff filed a certificate of substantial work in January, 2009, indicating that it had complied with the scope of the work. According to the certificate, the last day of work should have been January 21, 2009, not May 7, 2009. The plaintiff only had to deliver the warranties under the specifications, but it did not settle or deliver those warranties until the day of trial. The warranty start date was January 21, 2009.

         In the fall of 2009, in response to the contractor's request for delay caused by design issues, the plaintiff claimed damages of $24, 722.95. In April, 2010, pursuant to General Statutes § 4-61, the contractor submitted a claim to the state. The plaintiff amended its ‘‘request for equitable adjustment, '' seeking $555, 582.31 in damages. The plaintiff's claim against the state could not be presented together with the contactor's claim. Although the state and the contractor settled the contractor's claim, the state did not accept responsibility for the delay in completing the project.

         The court adjudicated the five counts the plaintiff alleged as follows. As to count one, the court found that the plaintiff alleged that the contractor breached the subcontract by failing to request payment from the department and failing to remit payments to it for all work it had performed on the project. Following the presentation of evidence, the plaintiff sought to distinguish its present action against the contractor from Suntech of Connecticut, Inc. v. Lawrence Brunoli, Inc., 143 Conn.App. 581, 72 A.3d 1113, cert. denied, 310 Conn. 910, 76 A.3d 626 (2013) (Suntech I). The court concluded that the legal issues in the present case are identical to those in Suntech I.[12]

         The essence of the plaintiff's breach of contract claim is that the contractor's hindrance and interferences resulted in the plaintiff's not being able to complete its work until May 7, 2009. As a consequence of the hindrance and interference, the plaintiff claimed that it had suffered damages in the amount of $365, 289.54 plus fees and that the contractor wrongly withheld retainage in the amount of $45, 802.23. The contractor argued that the ‘‘no damages for delay'' clause in the subcontract precluded recovery. The plaintiff contended that the damages it suffered arose, not from a delay, but from the contractor's hindrance and interference.[13] The court found that the project was delayed primarily by design issues between the department and the architect, not by the contractor. The court, therefore, concluded that the plaintiff had failed to prove its breach of contract claim.

         With respect to count two, the plaintiff alleged that the contractor benefitted from the plaintiff's labor, materials, equipment, and services without fully paying for them and, therefore, had been unjustly enriched. The plaintiff produced unpaid change orders in the amount of $162, 305.35. The contractor responded that, as a matter of law, the plaintiff had failed to prove that it was without a remedy under the subcontract and that it was required to do so in order to prevail on a claim of unjust enrichment. The court found that the contractor, in fact, had overpaid the plaintiff as the contractor had to complete some of the work the plaintiff had been contracted to perform, but did not. As a result, the contractor incurred additional expenses. The court also found that the plaintiff had failed to provide five contractually required warranties that were acceptable to the state. For the foregoing reasons, the court found that the plaintiff failed to prove its claim of unjust enrichment.

         Regarding count three, the court found that the plaintiff embellished its breach of contract allegations by alleging that it was ‘‘forced to contend with various disruptions, delays, suspensions, scope changes and changed conditions caused by or controlled by [the contractor] due to numerous project change orders, proposal requests, architect's supplemental instructions, construction change directives, requests for information and nonpayment.'' (Internal quotation marks omitted.) The plaintiff claimed that its performance period ran from January 25, 2007, to July 23, 2009, which was sixteen months longer than originally scheduled, and the delays increased the cost of materials, labor, and overhead in excess of $555, 502.31. In its posttrial brief, the plaintiff argued that the contractor breached the subcontract by not providing it with access to the site and an orderly progression of the work. The contractor countered that delays are inevitable on a construction project, but even if the plaintiff was able to prove delay damages, the subcontract specifically barred the plaintiff from claiming them unless the state accepted responsibility for the delay and paid for it.

         As to the evidence presented, the court found that Berkun's testimony was neither credible nor persuasive. The plaintiff called Joel Baranowski, the state's project manager, to testify on its behalf, but under cross-examination, his testimony was damaging: the plaintiff failed to have sufficient ‘‘manpower'' on the project and failed to deliver warranties due under the contract that were acceptable to the state. Finally, the court found that the plaintiff had been overpaid by $3361.13 and was not due any retainage. There was no credible evidence that it had performed any work outside the scope of the subcontract for which a change order would have been issued. The court, therefore, concluded that the plaintiff had failed to prove that it had suffered damages due to delay.

         In count four, the plaintiff asserted a claim under § 49-41a. During the course of the trial, the plaintiff stipulated that it timely had been paid all moneys due it for any amounts included on requisitions.[14] In its memorandum of decision, the court stated that it had addressed the plaintiff's claims for retainage in adjudicating count three, and, for those reasons, the plaintiff could not prevail on count four.

         Count five was alleged against the insurer. Although the plaintiff was paid all moneys due it pursuant to requisitions, the plaintiff alleged that it was due unpaid retainage. The plaintiff alleged that the insurer had violated § 49-42 when it failed to pay the plaintiff's claim made under the bond issued to the contractor. The court concluded that the plaintiff had failed to prove the allegations in count five.

         The court, therefore, rendered judgment in favor of the defendants on all counts. The plaintiff appealed. Additional facts will be set forth as needed.

         I

         The plaintiff claims that the court abused its discretion with respect to three evidentiary rulings by (1) failing to permit one of its witnesses to testify as an expert, (2) failing to permit the plaintiff to disclose the witness as an expert during the course of his testimony, and (3) reversing its ruling on a motion in limine on the last day of trial.[15] The plaintiff perceives unfairness in the court's rulings. Although the court abused its discretion by sustaining several of the contractor's objections to the questions posed by the plaintiff on direct examination; see footnotes 19 and 21 of this opinion; we conclude that the plaintiff has failed to demonstrate that it was harmed.

         We begin with the standard of review applicable to evidentiary rulings. ‘‘[T]he trial court has broad discretion in ruling on the admissibility . . . of evidence. . . . The trial court's ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court's discretion. . . . We will make every reasonable presumption in favor of upholding the trial court's ruling, and only upset it for a manifest abuse of discretion. . . . Moreover, evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the [appellant] of substantial prejudice or injustice.

         ‘‘[B]efore a party is entitled to a new trial because of an erroneous evidentiary ruling, he or she has the burden of demonstrating that the error was harmful. . . . When determining that issue in a civil case, the standard to be used is whether the erroneous ruling would likely affect the result. . . . Any testimony in a case that tends of itself or in connection with other testimony to influence the result on a fact in issue is material. If the testimony would tend to affect the verdict of the [trier of fact], it meets the test of materiality.'' (Citation omitted; internal quotation marks omitted.) Mamudovski v. BIC Corp., 78 Conn.App. 715, 730, 829 A.2d 47 (2003), appeal dismissed, 271 Conn. 297, 857 A.2d 328 (2004).

         A

         The plaintiff first claims that the court abused its discretion with respect to Rick Cianfaglione by precluding him from testifying as to his observations and perceptions at the project site, and his conversations with the contractor's employees. We conclude that the court did not abuse its discretion when it precluded Cianfagli one from offering expert testimony, and that, in any event, the plaintiff has failed to demonstrate that it was prejudiced by the court's ruling.

         The following additional facts are relevant to the plaintiff's claims. Prior to the commencement of the present action, the contractor brought an action against the state. See Lawrence Brunoli, Inc. v. State, Superior Court, judicial district of Hartford, Docket No. CV-12-6028601-S (Brunoli case). As part of its defense in the Brunoli case, the state retained Cianfaglione, a scheduling expert, to review change orders, permits, supplemental instructions, and schedules during the course of the project. He also met with the contractor on numerous occasions. Cianfaglione authored and submitted reports to the state in which he recorded his findings as to the contractor's progress.

         In July, 2013, in the present action, the plaintiff noticed Cianfaglione's deposition and issued a subpoena duces tecum for him to bring all documents, reports, and analysis that he authored with respect to the Brunoli case. The state filed a motion for a protective order, which the trial court, Schuman, J., denied because Cianfaglione was not an attorney, but an expert witness. Judge Schuman ordered the plaintiff to pay Cianfaglione's expenses in connection with the deposi-tion.[16] Cianfaglione subsequently was deposed by the parties.

         On November 20, 2014, during the course of trial, the contractor filed a motion to preclude the plaintiff from presenting expert testimony from Cianfaglione and putting his reports into evidence on the ground that the plaintiff had not disclosed him as an expert witness in violation of Practice Book § 13-4.[17] The plaintiff had disclosed three individuals as expert witnesses, but not Cianfaglione. In its trial management report, the plaintiff identified Cianfaglione as a fact witness and marked for identification several reports Cianfaglione had prepared on behalf of the state in the Brunoli case. The contractor claimed generally that itwouldbe prejudiced if Cianfaglione were permitted to testify as an expert witness, but it did not explain how it would be prejudiced.

         On November 21, 2014, the plaintiff called Cianfagli-one to testify in its case-in-chief. At that time, the court heard oral argument on the contractor's motion in limine. Counsel for the contractor argued that all of Cianfaglione's testimony should be precluded. The plaintiff objected to the motion to preclude as it was not filed prior to trial and, therefore, was not timely. The court having reviewed the procedural history of the case, noted that Judge Schuman had declared Cianfaglione an expert, the plaintiff had disclosed Cianfagli-one as a fact witness, and that he had been deposed. The court ruled that it would permit Cianfaglione to testify as a fact witness and that it would rule, question by question, whether his testimony was inadmissible expert testimony.[18] During Cianfaglione's direct testimony, counsel for the contractor objected to certain questions posed by the plaintiff, and the court sustained the objections.[19]

         On appeal, the plaintiff claims that the court abused its discretion when it (1) precluded Cianfaglione from testifying as to his perceptions, observations, and conversations with the contractor, and (2) would not permit the plaintiff to put ‘‘instrumental evidence'' into evidence. It contends that the contractor had ‘‘deposed Mr. Cianfaglione ad nauseam'' and, therefore, could not be surprised nor prejudiced by his testimony.

         ‘‘[T]he trial court has wide discretion in ruling on the admissibility of expert testimony and, unless that discretion has been abused or the ruling involves a clear misconception of the law, the trial court's decision will not be disturbed. . . . In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did. . . . Even if a court has acted improperly in connection with the introduction of evidence, reversal of a judgment is not necessarily mandated because there must not only be an evidentiary [impropriety], there also must be harm. . . .

         Our Supreme Court has ‘‘articulated the test for the admission of expert testimony, which is deeply rooted in common law. Expert testimony should be admitted when: (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues. . . . In other words, [i]n order to render an expert opinion the witness must be qualified to do so and there must be a factual basis for the opinion.'' (Citations omitted; footnote omitted; internal quotation marks omitted.)Dow-Westbrook, Inc. v. Candlewood Equine Practice, LLC, 119 Conn.App. 703, 720, 989 A.2d 1075 (2010).

         The substance of the plaintiff's claim is that the court abused its discretion by not permitting Cianfaglione to testify as to his perceptions, that is, what he observed at the site of the project. The plaintiff has cited cases during which lay witnesses were permitted to testify as to their perceptions, e.g., whether a step was steep; see Mack v. LaValley, 55 Conn.App. 150, 154-58, 738 A.2d 718, cert. denied, 251 Conn. 928, 742 A.2d 363 (1999); whether an individual was too intoxicated to operate a motor vehicle safely. See State v. Lamme, 19 Conn.App. 594, 605, 563 A.2d 1372 (1989), aff'd, 216 Conn. 172, 579 A.2d 484 (1990).[20]

         Section 7-1 of the Connecticut Code of Evidence provides: ‘‘If a witness is not testifying as an expert, the witness may not testify in the form of an opinion, unless the opinion is rationally based on the perception of the witness and is helpful to a clear understanding of the testimony of the witness or the determination of a fact in issue.'' ‘‘Lay witnesses are permitted to give opinions when the evidence as to such matters might otherwise be difficult or impossible to obtain in any other form. . . . A lay witness must state the facts that are within his or her personal knowledge, however, and not give an opinion concerning such facts.'' C. Tait, Connecticut Evidence (3d Ed. 2001) § 7.1.2, p. 510. ‘‘[A] lay witness may give his impression or opinion of conditions or circumstances which are so numerous or complicated that he could not otherwise adequately describe them or otherwise convey to the jury the impression which they gave to him.'' State v. McGinnis, 158 Conn. 124, 131, 256 A.2d 241 (1969).

         ‘‘A witness, who is also expert in a field, is not thereby disqualified from testifying to personal observations on a matter, including giving a non-expert opinion on a subject on which a layperson could also opine.'' C. Tait & E. Prescott, Connecticut Evidence (5th Ed. 2014) § 7.1.2, p. 445. ‘‘The general rule is that witnesses must state facts and not their individual opinions, but there are exceptions to this rule as well established as the rule itself.'' (Internal quotation marks omitted.) Johnson v. Newell, 160 Conn. 269, 277, 278 A.2d 776 (1971).

         Witnesses are permitted to testify as to what they perceive. Cianfaglione, therefore, should have been permitted to testify as to what he observed when he walked onto the project site, such as the number of laborers present, which was a factual inquiry. The court had ruled that it would permit the plaintiff to make factual inquiries of Cianfaglione. The court should have overruled the contractor's objection that the answer called for an opinion. The plaintiff's claim fails, however, because it has not demonstrated how it was harmed by the court's sustaining the contractor's objections. Counsel made an offer of proof that Cianfaglione's testimony would have shown that the contractor, not the state or architect, hindered and interfered with the plaintiff's ability to perform. That representation, however, is a legal conclusion, not the facts to which Cianfaglione would have testified. See id. (‘‘No offer of proof appears in the record. Without knowing the purpose of the offer or the answer that might be forthcoming we are unable to rule on this ...


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