Opinion
In this breach of contract and hen foreclosure action arising out of a dispute concerning the construction of a single-family home in the town of Greenwich, the named defendant, Jeffrey T. Miller, who owns the home, and the defendant Cheryl Miller, his
wife,
1
appeal, and the plaintiff, The FCM Group, Inc., the builder of the home, and the third party defendant, Frank C. Mercede III,
2
cross appeal
3
from the judgment of the trial court. The trial court,
Hon. William B. Lewis,
judge trial referee, rendered partial judgment awarding the plaintiff $266,846 in damages, including $3660.67 in lost profit, and awarding the defendants $5000 in damages under General Statutes § 49-8 (c).
4
Thereafter,
the trial court,
Karazin, J.,
The following facts and procedural history are relevant to our disposition of the defendants’ appeal and the plaintiff and Mercede’s cross appeal. On June 11, 1998, the plaintiff and Jeffrey Miller entered into a contract for the construction of a 5000 square foot, single-family home on property located at 134 Butternut Hollow Road in Greenwich. Jeffrey Miller was married to Cheryl Miller at the time, but Jeffrey Miller held title to the property in his name alone, and he and the plaintiff were the sole signatories to the construction contract. In addition, by its express terms, the contract binds only the “[o]wner” of the property, who is identified in the contract as Jeffrey Miller.
The plaintiff is a general contractor and builder of residential and commercial properties. Its founder and president, Mercede, an experienced contractor, runs the company’s daily operations. Prior to entering into the contract, Mercede and Jeffrey Miller were social acquaintances and previously had worked together on another project. Pursuant to the terms of the contract, Jeffrey Miller agreed to pay the plaintiff $648,394 for the construction of his home, but reserved the right, under article 12 of the contract, to perform a portion of the construction work himself and to hire his own subcontractors to do that work. In a rider attached to the contract, several items, including the garage, the kitchen cabinets and most of the wall coverings and flooring, were expressly excluded from the scope of the work covered by the contract so that Jeffrey Miller could hire his own vendors to install those items. The same rider also provided a “Schedule of Alternates,” which permitted the “[o]wner” to “add back in” several of the items that had been excluded from the contract, with a corresponding price for each item. 8 Under article 13 of the contract, the “[o]wner,” without invalidating the contract, could order “changes in the [w]ork” con sisting of “additions, deletions or modifications, [with] the [c]ontract [s]um and [c]ontract [t]ime being adjusted accordingly.” Such changes had to be authorized by a written change order form signed by the owner, the contractor and the architect.
Pursuant to article 2, the contract was to commence “[u]pon issuance of a [b]uilding [p]ermit,” and the plaintiff was to achieve “[substantial [c]ompletion of the entire [w]ork not later than . . . 240 [c]a!endar [d]ays from the commencement of work,” subject to any time adjustments as provided under the contract. Although it was the responsibility of the plaintiff to secure all building permits, Jeffrey Miller was required to furnish all other “approvals,” including wetlands approval. On June 18,1998, the plaintiff applied to the town of Greenwich (town) for a building permit, but the application was denied due to certain unresolved wetlands issues. The town, however, eventually issued the wetlands
The defendants had agreed that Cheryl Miller could communicate directly with Mercede about any changes to the design of the house, or any problems with the project. From June, 1998, through December, 1999, she visited the property two to three times a week and requested numerous changes. As a general matter, Cheryl Miller would request a change on behalf of Jeffrey Miller, and the plaintiff would quote a price for the change. The defendants then would decide whether to proceed with the change depending on the price. As of November 10,1999, the parties had agreed to four written change orders, which included a total of 113 changes to the contract. 9 These changes had increased the con tract price to $803,090.98, and had added a total of eighty-six business days to the schedule. Several of the changes constituted credits to Jeffrey Miller for items that the parties had agreed to subtract from the contract.
Article 4 of the contract provided for “progress payments” to be made by the “[o]wner” on the basis of the applications for payment submitted by the “[contractor” and approved by the architect. Article 5 provided that “[f]inal payment” was due when all of the work had been completed, the contract had been “fully performed,” and a final certificate for payment had been issued by the architect. As of December 8,1999, Jeffrey Miller had made nine progress payments to the plaintiff for a total of $778,638, which constituted approximately 97 percent of the total revised contract price of $803,090.98. By the end of January, 2000, the project was approximately 95 percent complete, and the only payment remaining was the final payment of $24,452.98, which was due upon completion of all work.
By that time, however, the parties’ relationship had become strained. Although dissatisfaction had been building steadily for some time on both sides, the relationship broke down irretrievably when, on or about February 2, 2000, Mercede and Cheryl Miller got into a dispute over when and how the contractor’s “final punch list,” that is, the list of items that the contractor was required to complete or repair before final payment was due, should be handled. Mercede informed Cheryl Miller that it was customary to compile a master punch list during a final walk through of the premises with the architect and owner, rather than to submit partial punch lists in piecemeal fashion. Specifically, Mercede
told her that his “intention was to get everything on one list, complete my work and get my final payments.” Cheryl Miller responded that Mercede would “never see [his] final payment.” Following his encounter with Cheryl Miller, on February 7, 2000, Mercede wrote a letter to Jeffrey Miller in which he demanded payment of $30,761.98 on or before February 16, 2000. Although the balance remaining on the signed contract was $24,462.98, he attached to the letter a “final change order for the project,” which increased the contract price by $6309, for a total contract price of $809,399.98. The letter also noted
On February 10, 2000, Jeffrey Miller responded to Mercede’s letter by informing Mercede that, consistent with the terms of their agreement, he expected the plaintiff to complete all work before he would remit final payment. With respect to Mercede’s demand that Jeffrey Miller execute the final change order form and return it to Mercede by February 16,2000, Jeffrey Miller stated: “As always you will receive [an] executed change order in a timely manner, however, I have just received [this] change order and need time to review [the] final accounting and credits due [to the] owner.” As the attorney trial referee found, “a series of incidents [occurred thereafter] that do not reflect well on either side.” Specifically, on or about February 10, 2000, the plaintiff had a large storage container delivered to the property and placed at the end of the driveway, blocking vehicular access to the house. The plaintiff also changed the lock on the construction fence surrounding the property, apparently for the purpose of preventing the defendants from gaining access to the site.
On February 11, 2000, Jeffrey Miller’s attorney sent the plaintiff and Mercede a letter that provided in relevant part: “On February 11, 2000, [Jeffrey] Miller was locked out of 134 Butternut Hollow Road when you and your agents . . . changed the locks on [his] $2,000,000 home. In my opinion, your actions constitute a lock out’ according to [the] Connecticut General Statutes.
“In addition, [Jeffrey] Miller’s house is now blocked by a dumpster .... This is a civil trespass. Access and egress are impossible. . . . Upon consultation with the owner of the dumpster ... I have learned that you have leased this dumpster. You intentionally placed the dumpster in the way to block [Jeffrey] Miller from his home and to defeat any chance of gaining access to the premises. Apparently, these events were triggered by [Jeffrey] Miller’s letter to you dated February 10, 2000, reminding you of your contractual obligations for the construction of [Jeffrey] Miller’s home pursuant to your contract dated June [11], 1998.” The letter further provided that the contract required Mer-cede “to ‘perform a “walk through” when all work has been completed. A punch list is to be compiled of any
items uncompleted or in need of correction.’ Your contract states: ‘When these items have been completed any balance of payment for the total job including change orders will be remitted to the contractor in full.’
On February 11, 2000, Cheryl Miller yelled expletives at Mercede while he was at the property and ordered him to leave the premises. On or about February 14, 2000, an obscenity directed at Mercede was painted on the side of the storage container that Mercede had placed at the entrance to the driveway. On February 15,2000, the plaintiffs attorney wrote a letter to Jeffrey Miller’s attorney stating that, contrary to Jeffrey Miller’s claims, the plaintiff did not change the locks on the house but, rather, had changed the padlock on the construction fence, which it had a contractual right to do. The letter further provided that the storage container at the foot of the driveway was not intended to impede access to the construction site but had been placed there because it was the only level surface on the property that could accommodate it. Finally, the letter asserted that Jeffrey Miller’s purported termination of the contract was invalid under article 20 of the contract; see footnote 12 of this opinion; and that the plaintiff had suffered considerable delay damages as a result of the defendants’ interference with the project. The letter concluded: “Notwithstanding the foregoing, the project has been ongoing for [twenty-two] months and is now essentially complete. It seems ridiculous to use all of the artillery that we can muster, which we both know is formidable, instead of sitting down and resolving this matter. . . . My client and I are ready to work with you to address the [defendants’] concerns and [to] resolve [the plaintiffs] claims.”
Notwithstanding the conciliatory tone of this letter, the next day, the plaintiff obtained and subsequently filed
13
two mechanic’s liens on the property, one in the amount of $30,761.98, which corresponded to the alleged balance due under the contract as specified in the unsigned final change order, and the other in the amount of $343,361.47, which, according to the plaintiff, represented delay damages that it had incurred over the course of the construction project. On February 28, 2000, Jeffrey Miller served Mercede and the plaintiff with a demand for release of the two mechanic’s liens, claiming that those liens were invalid because, inter alia, the sums alleged therein did not constitute lienable sums insofar as they did not represent amounts due for any materials furnished
On April 20, 2000, the plaintiff brought this action against the defendants to foreclose on the two mechan ic’s liens and for breach of contract. 14 The defendants filed an answer, six special defenses and a six count counterclaim, alleging, inter alia, breach of contract, violation of the Home Improvement Act, General Statutes § 20-418 et seq., and violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. The defendants also alleged that the two mechanic’s liens were invalid and that the plaintiff had violated General Statutes §§ 49-8 and 49-13 15 by-refusing to release them. The plaintiff and the defendants sought damages, costs and attorney’s fees in connection with their respective claims. The defendants also filed a third party complaint against Mercede. 16
The case was referred to attorney trial referee Alfred H. Hoddinott, Jr. After eight days of hearings, the parties submitted posttrial briefs. The plaintiff and Mercede claimed in their brief that the evidence established that the defendants had caused the project to be delayed a total of “406 calendar days . . . including 120 days associated with the failure to obtain wetlands [approval], 210 days . . . directly linked to the 140 plus [change orders] and 76 days attributable to interference ... by contractors . . . engaged by the [defendants].” The plaintiff and Mercede further asserted that “[t]he total delay damages attributable to the changes in the [w]ork, interference by the [defendants] and delays for which the [defendants] are responsible total $255,720.07 . . . .” The plaintiff and Mercede also contended that the plaintiff was entitled to the $30,761.98 balance remaining on the contract, as specified in the unsigned final change order, as well as attorney’s fees. Finally, the plaintiff and Mercede claimed that Cheryl Miller properly had been named as a defendant in the action and that she should be held hable for breach of contract because she was a “[b]eneficial and [e]quitable [o]wner” of the property.
The defendants asserted in their brief that both mechanic’s hens were invalid because the plaintiff had failed to identify the
Thereafter, the attorney trial referee issued a report 17 in which he found that Cheryl Miller anticipatorily had breached the construction contract when she told Mer-cede, in February, 2000, that the defendants “would not pay anything further” under the contract. He further found that the February 11, 2000 letter that Jeffrey Miller’s attorney had sent to the plaintiff and Mercede, which “purported to be a more formal termination of the contract,” did not comply with the termination provisions of article 20 of the contract and, therefore, constituted a breach by the defendants. Finally, the attorney trial referee rejected Cheryl Miller’s claim that the plaintiff improperly had named her as a defendant in the action, adopting the plaintiffs contention that, although she did not hold title to the property and had not signed the construction contract, she “clearly . . . [was] an equitable owner of the premises,” and “Connecticut courts . . . repeatedly [have] recognized ‘equitable or beneficial’ ownership in real property, particularly in the summary process and mechanic’s lien contexts.”
Having concluded that the defendants breached the construction contract, the attorney trial referee turned next to the issue of the plaintiffs damages, noting that the plaintiff bore the burden of proof on this issue. He then observed that article 12 of the contract permitted the recovery of “[c]osts caused by delays,” and found that the plaintiff had proven that the defendants were responsible for a total of “228 delay days,” 75 delay days occasioned by Jeffrey Miller’s delay in obtaining wetlands approval and 153 days relating to the various
change orders. The attorney trial referee, however, rejected the plaintiffs claim for 76 delay days stemming from Jeffrey Miller’s use of his own subcontractors, concluding that the plaintiff had adduced no evidence that such delays had occurred. Rather than attempt to estimate the “ ‘[c]osts [to the plaintiff] caused by delays,’ ” the attorney trial referee instead calculated damages for the plaintiff in terms of “lost profit . . . .” Specifically, he observed that, “in 2000, the year of the breach, [the plaintiff] reported profits of $372,087 on income of $3,119,635, for a profit margin of 11.9 percent. Put another way, it had a profit of $1019.41 for each calendar day in the year 2000.” He determined that, “[allowing $1019.41 [in] lost profit for each delay day, [the] plaintiff [was] entitled to $232,425.48 for damages occasioned by delays.” Because, however,
With respect to the $343,351.47 mechanic’s lien, the attorney trial referee rejected the defendants’ claim that delay damages cannot be the subject of a hen filed pursuant to § 49-33 and that the hen was invalid for that reason. He determined, however, that the hen was invalid under § 49-36 18 because it exceeded the total amount of the balance due under the contract. Having determined that the defendants had proven the invalidity of the $343,351.47 hen, the attorney trial referee also determined that the defendants were entitled to $5000 in damages under § 49-8 (c). The attorney trial referee observed, however, that he was not authorized to recommend an award of attorney’s fees, which, like damages, also are mandated under § 49-8 (c) and, therefore, left that determination to the trial court. Finally, the attorney trial referee recommended foreclosure of the $30,761.98 mechanic’s hen securing the contract balance. 19 With respect to the issue of the plaintiffs attorney’s fees, which are authorized by § 52-249 (a), 20 the attorney trial referee left that matter for determination by the court, Karazin, J., which subsequently awarded the plaintiff $64,405.17 in such fees. 21
Both sides filed objections to the attorney trial referee’s report. The defendants contended, inter aha, that the attorney trial referee’s finding that they had breached the parties’ contract and were hable for delay damages and lost profit on the unpaid contract balance was legally and factually unsupportable and predicated on a fundamental misapprehension of the parties’ contract. They claimed that, because Cheryl Miller was not a party to the contract, her statements to Mercede could not support a finding of anticipatory breach of contract. The defendants observed that Jeffrey Miller had repudiated Cheryl Miller’s statements through his attorney’s
February 11, 2000 letter to Mercede, in which the attorney reminded Mercede of the parties’ respective contractual obligations. The defendants also maintained that the plaintiff had breached the contract on February 7, 2000, by demanding payment in full before it was due. In addition,
The trial court, Hon. William B. Lewis, judge trial referee, 22 issued a memorandum of decision accepting all of the attorney trial referee’s findings and awarded the plaintiff $266,846 less the $5000 award for the defendants under § 49-8 (c). Specifically, the court stated: “Based on the appropriate standard of review outlined [in the memorandum of decision], the [attorney trial] referee’s report and recommendations are accepted. No material error in the [attorney trial] referee’s report has been found, and there is no other sufficient reason for rendering the report unacceptable.” The court further stated: “The attorney trial referee recommended a total judgment for [the plaintiff] in the amount of $266,846 and judgment for the defendants in the amount of $5000,” explaining that the award consisted of the “$30,761 balance due on the contract, $232,425 for delay damages, and $3660 for loss of profit.” The court also found in favor of the plaintiff on the $30,761.98 mechanic’s lien, stating that the “case should now be claimed for the foreclosure calendar in order to determine the type and date of foreclosure, value of the premises, and other details, including the matter of attorney’s fees.”
The defendants filed motions for reargument, articulation, and to set aside or to open the judgment. In these motions, the defendants attempted to draw the trial court’s attention to a myriad of alleged legal and factual errors in the attorney trial referee’s report that the trial court had accepted. In particular, the defendants noted that, although the attorney trial referee had recommended that the trial court award the plaintiff the sum of $236,086.15, the court had awarded the plaintiff $266,846, apparently in the belief that the attorney trial referee had intended to award the plaintiff the $30,761.98 balance remaining on the contract, in addition to $236,086.15. The defendants also noted that, although the attorney trial referee had recommended that they be awarded attorney’s fees in connection with their successful challenge to the invalid $343,351.47 mechanic’s lien, the trial court failed to award them any such fees. Finally, they claimed that the plaintiff was not entitled to recover delay costs in connection with the change orders or in connection with the time that it took to obtain the required building permits, the issuance of which depended on the town’s wetlands approval. With respect to the change order delays, the defendants maintained that all costs associated with the change orders necessarily were included in the price of those orders. With respect to the issue of building permits, they asserted that the
We first address the defendants claim that the trial court improperly accepted the attorney trial referee’s finding that Cheryl Miller was hable for breach of contract, which was based on her alleged equitable or beneficial ownership of the property. In accepting that finding, the trial court stated: “In terms of Cheryl Miller’s liability, the attorney trial referee summed up his factual findings by stating that she was ‘intimately involved in the project, and a major cause of the problems.’ The [attorney trial] referee described her as a beneficial owner of the subject premises . . . and hence hable to the plaintiff to respond in damages. Again, there is nothing unreasonable or illogical about this factual finding . . . .” We agree with the defendants that the trial court improperly accepted the attorney trial referee’s finding on this issue.
We begin by setting forth the apphcable standard of review. “[Although] the reports of [attorney trial referees] . . . are essentially of an advisory nature, it has not been the practice to disturb their findings when they are properly based [on] evidence, in the absence of errors of law, and the parties have no right to demand that the court . . . redetermine the fact[s] thus found. . . .
“A reviewing authority may not substitute its findings for those of the trier of the facts. This principle applies no matter whether the reviewing authority is the Supreme Court . . . the Appellate Court ... or the Superior Court reviewing the findings of . . . attorney trial referees. . . . This court has articulated that attorney trial referees and factfinders share the same function . . . whose determination of the facts is reviewable in accordance with well established procedures prior to the rendition of judgment by the court. . . .
“Although it is true that when the trial court reviews the attorney trial referee’s report the trial court may not retry the case and pass on the credibility of the witnesses, the trial court must review the referee’s entire report to determine whether the recommendations contained in it are supported by findings of fact in the report. . . .
“Finally . . . because the attorney trial referee does not have the powers of a court and is simply a fact finder, [a]ny legal [determinations] reached by an attorney trial referee have no conclusive effect. . . . The reviewing court is the effective arbiter of the law and the legal opinions of [an attorney trial referee], like those of the parties, though they may be helpful, carry no weight not justified by their soundness as viewed by the court that renders judgment. . . . [When] legal [determinations] are challenged, [this court] must determine whether they are legally and logically correct and whether they find support in the facts found by the . . . referee.” (Citations omitted; internal quotation marks omitted.)
Alliance Partners, Inc.
v.
Oxford Health Plans, Inc.,
The attorney trial referee determined that, even though Cheryl Miller was not a party to the contract between Jeffrey Miller and the plaintiff and did not hold title
Before turning to those, cases, however, we set forth a general principle so fundamental that it rarely receives mention in case law or commentary, namely, that only parties to contracts are liable for their breach. “[T]he obligation of contracts is limited to the parties making them, and, ordinarily, only those who are parties to contracts are liable for their breach. Parties 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 omitted.)
Gambles
v.
Perdue,
As we noted previously, the only precedents on which the attorney trial referee relied are
Centerbrook, Architects & Planners
v.
Laurel Nursing Services, Inc.,
supra,
In Sekeret, the other case on which the attorney trial referee relied, the trial court recognized that, if a person has been found to be a beneficial owner of real property pursuant to the terms of a trust instrument, he is not a “tenant” of the property for purposes of summary process but, instead, is an “owner” and, therefore, not subject to eviction. See Sekeret v. Zdanis, supra, Superior Court, Docket No. CV-187692. In the present case, however, there is no claim that Cheryl Miller was a beneficial owner of the property pursuant to a trust agreement. Even if she were such an owner, however, we are aware of no authority, and the plaintiff and Mercede have cited none, for the proposition that her beneficial or equitable ownership interest, without more, would obligate her under the terms of the contract between the plaintiff and Jeffrey Miller. 23
As we explained, the contract refers throughout to the “[o]wner,” who is expressly identified therein as Jeffrey Miller. Furthermore, nothing in the contract
We next consider Jeffrey Miller’s claim 27 that the trial court improperly awarded the plaintiff the balance allegedly due under the contract as of February 7,2000, 28 despite the contrary recommendation of the attorney trial referee. Jeffrey Miller contends that the $30,761.98 award contravenes the well established principle that the injured party in an action for the breach of a construction contract may not recover damages in excess of his or her actual losses or for work never performed. In support of this claim, Jeffrey Miller notes that the attorney trial referee found that, at the time of the defendants’ purported breach of contract, the plaintiff had been paid $778,638, or 96 percent of the total revised contract price of $809,399.98, but that the plaintiff had completed only 96 percent of the work, leaving a small credit owing to Jeffrey Miller. Jeffrey Miller further contends that, because the plaintiff failed to demonstrate that it was owed any part of the contract balance at the time of the breach, the portion of the award accounting for the difference between $809,399.98, the total revised contract price, and $778,638, the total amount of payments that Jeffrey Miller had remitted to the plaintiff, or $30,761.98, must be vacated, and, in addition, the judgment of foreclosure must be reversed. Finally, Jeffrey Miller maintains that, because the $30,761.98 mechanic’s lien was invalid, the plaintiff’s award of attorney’s fees in the amount of $64,406.17 under § 52-249 (a) also must be reversed. We agree with each of these claims.
The following additional facts and procedural history are relevant to our disposition of the issues presented by Jeffrey Miller’s claims. The plaintiff sought to establish that it was owed a portion of the balance remaining on the contract. To that end, the plaintiff introduced a copy of a cancelled check in the amount of $4000, which Mercede testified had gone toward the purchase of a shower stall for Jeffrey Miller’s home that never was installed. Mercede further testified that, after the defendants had breached the contract, he attempted to sell the shower stall but was unsuccessful. Jeffrey Miller’s attorney objected to this evidence on the ground that its admission would violate a prior court order precluding the plaintiff from introducing any evidence that it improperly had failed to turn over to Jeffrey Miller’s attorney during discovery, including all business records, invoices and receipts relating to the construction of Jeffrey Miller’s home. The attorney trial referee sustained the objection, concluding that the proffered evidence fell squarely within the purview of the court’s order. The plaintiff did not seek to present any additional evidence establishing the balance that it claimed to be owed under the contract.
Thereafter, the attorney trial referee recommended a total damages award for the plaintiff in the amount of $236,086.15, which included delay damages as well as the plaintiffs lost profit on the contract
“It is axiomatic that the sum of damages awarded as compensation in a breach of contract action should place the injured party in the same position as he would have been in had the contract been performed. . . . The injured party ... is entitled to retain nothing in excess of that sum which compensates him for the loss of his bargain. . . . Guarding against excessive compensation, the law of contract damages limits the injured party to damages based on his actual loss caused by the breach. . . . The concept of actual loss accounts for the possibility that the breach itself may result in a saving of some cost that the injured party would have incurred if he had had to perform. ... In such circumstances, the amount of the cost saved will be credited in favor of the wrongdoer . . . that is, subtracted from the loss . . . caused by the breach in calculating [the injured party’s] damages.” (Internal quotation marks omitted.)
Hees
v.
Burke Construction, Inc.,
Applying these principles to the present case, we conclude that the trial court improperly rejected the attorney trial referee’s recommendation in awarding the plaintiff the balance allegedly remaining on the parties’ contract. As we previously have indicated, the evidence
established, and the attorney trial referee correctly found, that, at the time of the purported breach, the plaintiff had been paid approximately 96 percent of the total revised contract price of $809,399.98 but had completed only 95 percent of the work. Indeed, the plaintiff presented no admissible evidence to rebut this finding, which the trial court itself did not question. Thus, the attorney trial referee properly found that the plaintiff had failed to meet its burden of proving that it had furnished any materials or services in connection with the contract balance of $30,761.98. See
Hees
v.
Burke Construction, Inc.,
supra,
Although the plaintiff and Mercede acknowledge that the trial court’s award of $30,761.98 is incompatible with the attorney
Because there is no evidence that the plaintiff furnished any materials or provided any services in connection with the contract balance, we also agree with Jeffrey Miller that the judgment of foreclosure must be reversed because, under well established precedent, “[t]he purpose of the [mechanic’s hen] statute is to give a contractor security for labor and material. . . . If the materials are not furnished, and the work is not done, in the construction, raising, removal or repairs of a building, there can be no hen.” (Citations omitted.)
Stone
v.
Rosenfield,
IE
Jeffrey Miller also contends that the trial court improperly accepted the attorney trial referee’s recommendation that
The following facts are relevant to our analysis of this claim. As we previously indicated, article 2 of the original contract afforded the plaintiff 240 calendar days from the date of the issuance of the building permit within which to achieve “[substantial [completion” of construction. Under article 8, the plaintiff was required to obtain any building permits, and Jeffrey Miller was required to obtain wetlands approval. Article 13 of the contract allowed Jeffrey Miller, “without invalidating the [c]ontract, [to] order changes in the [w]ork consisting of additions, deletions, or modifications, the [c]ontract [s]um and [c]ontract [t]ime being adjusted accordingly. Such changes in the [w]ork shall be authorized by written [c]hange [o]rder . . . .” Article 13 also provided that “[t]he cost or credit to the [o]wner from a change in the [w]ork shall be determined by mutual agreement.” Over the course of the construction, Jeffrey Miller requested, and the plaintiff agreed to, 113 changes. These changes increased the contract price from $648,394 to $803,090.98, and extended the contract by an additional 86 business days. After the breakdown in the parties’ relationship, the plaintiff sent Jeffrey Miller a final change order purporting to extend the duration of the contract an additional 67 days, for a total addition of 153 days to the original construction schedule. Jeffrey Miller, however, never signed this final change order.
The plaintiff sought damages for the 153 additional days, including the 67 days attributable to the plaintiffs own change order, claiming that article 12 of the contract
30
permitted the recovery of damages for all con-
straction delays attributable to Jeffrey Miller. The plaintiff also sought damages for 75 delay days relating to Jeffrey Miller’s use of his own subcontractors, and 120 delay days occasioned by his alleged failure to obtain wetlands approval in a timely manner. Although the attorney trial referee rejected the plaintiffs claim for delay damages relating to Jeffrey
The attorney trial referee offered no explanation for his finding that the additional construction time authorized by the change orders, and the period from June 18 to September 2, 2000, that was required for the town to issue wetlands approval, constituted compensable delays within the meaning of article 12 of the contract. The attorney trial referee also failed to explain why he rejected Jeffrey Miller’s arguments that the plaintiff was not entitled to any damages for those purported delays. In particular, the attorney trial referee did not address Jeffrey Miller’s contention that article 12 of the contract permitted damages only for delays caused by his subcontractors and that the exclusive remedy for all other delays was an extension of time under article 14. 31 In essence, Jeffrey Miller maintained that the additional time required to complete construction that had resulted from the change orders and the delay in obtaining wetlands approval were not compensable under article 12 because the parties’ contract makes it clear that the parties did not intend for such a result. We agree with Jeffrey Miller that the attorney trial referee improperly rejected these arguments.
A
We turn first to Jeffrey Miller’s claim that the attorney trial referee improperly construed article 12 as permit
ting an award of damages for delays in the permitting and wetlands approval process. It is well established that “[a] contract must be construed to effectuate
Article 12 of the contract provides in relevant part: “12.1 The [o]wner reserves the right to perform construction or operations related to the [p]roject with the [o]wner’s own forces, and to award separate contracts in connection with other portions of the [p]roject or other constmction or operations on the site under conditions of the contract identical or substantially similar to these, including those portions related to insurance and waiver of subrogation.
“If the [contractor claims that delay or additional cost is involved because of such action by the [o]wner, the [contractor shall make such claim as provided elsewhere in the [c]ontract [d]ocuments.”
Under provision 12.2, which is part of article 12, the contractor is required to “afford the [o]wner and separate contractors reasonable opportunity for the introduction and storage of their materials and equipment and performance of their activities, and shall connect and coordinate the [contractor's construction and operations with theirs as required by the [c]ontract [d]ocuments.” Provision 12.3, which also is a part of article 12, provides that the “[c]osts caused by delays, improperly timed activities or defective construction shall be borne by the party responsible therefor.”
We agree with Jeffrey Miller that, by its plain and unambiguous terms, article 12 imposes liability solely for the delays occasioned by the owner’s exercise of his right to perform part of the construction work himself. That interpretation is compelled not only by the language of article 12, which deals exclusively with the owner’s right to perform such work, but also by article 14, which provides in relevant part: “14.3 If the [contractor is delayed at any time in progress of the [w]ork by changes ordered in the [w] ork, by labor disputes, fire, unusual delay in deliveries, abnormal adverse weather conditions not reasonably anticipatable, unavoidable casualties or any causes beyond the [contractor's control, or by other causes which the [a]rchitect determines may justify delay, then the [c]ontract [t]ime shall be extended by [c]hange [o]rder for such reasonable time as the [a]rchitect may determine.” Courts interpreting similar contract provisions have concluded that, in the absence of a finding that the owner was negligent, acted in bad faith or breached an implied promise not to delay the contractor’s work — none of which the plaintiff alleged or was found by the attorney
Our conclusion is reinforced by article 2 of the contract. As we previously indicated, under that article, the plaintiff had 240 days within which to achieve “[substantial [c]ompletion” of the construction project. That 240 day period, however, did not begin to run until all required building permits had been issued. Thus, it
is clear that the parties agreed to extend the project completion date by however much time was necessary to obtain the required building permits, thereby ensuring that, if the permitting process took longer than expected, the plaintiff would not be penalized by the delay. We agree with Jeffrey Miller that, by specifically contemplating that delays might occur in the permitting process and by providing a remedy for them should they occur — namely, an extension of time within which to complete construction — article 2 further evinces the parties’ intent that extensions of time were to be the exclusive remedy for delays not covered by article 12, including any delays relating to the permitting and wetlands approval process.
32
Indeed, to interpret the contract as the attorney trial referee has interpreted it would require us to conclude that the parties intended, without expressly saying so, that Jeffrey Miller would be strictly liable for damages associated with every additional day that it took the town to give its wetlands approval, a process over which Jeffrey Miller had no control. In the absence of explicit contract language imposing such liability, and in light of the other provisions in the contract reflecting the parties’ intent that an extension of the duration of the contract would be the exclusive remedy for delays not covered under article 12, we conclude that the parties did not intend to impose liability
B
We next address Jeffrey Miller’s claim that the attorney trial referee improperly determined that the plaintiff was entitled to recover damages for delay in the comple
tion of the contract resulting from the change orders. This court recently has observed that, “in the context of a home improvement project, [change orders] are generally itemizations of changes to the project requested by the owner or necessitated by the circumstances and executed by the contractor,
resulting in adjustments of the completion date and contract price.
See American Institute of Architects, Standard Form of Agreement Between Owner and Contractor § 7.2.1 ([a] [c]hange [o]rder is a written instrument prepared by the [architect and signed by the [o]wner, [contractor and [architect, stating their agreement [on] all of the following: .1 change in the work; .2 the amount of the adjustment in the [c]ontract [s]um, if any; and .3 the extent of the adjustment in the [c]ontract [t]ime, if any); see also 1 J. Sweet & J. Sweet, Construction Industry Contracts (4th Ed. 1999) § 11.01, p. 321 (Noting that the term traditionally referred to the method by which the owner exercises a contractual power to change the work. Usually, construction contracts give the owner the power, within limits, to change the work unilaterally. The contractor must comply before there has been any agreement resulting in a price and time adjustment.).” (Emphasis added; internal quotation marks omitted.)
Economos
v.
Liljedahl Bros., Inc.,
“13.2 The [c]ontract [s]um and [c]ontract [t]ime shall be changed only by [c]hange [o]rder.
“13.3 The cost or credit to the [o]wner from a change in the [w]ork shall be determined by mutual agreement.”
As we previously indicated, Jeffrey Miller ordered a number of changes during the course of construction, and he was entitled to do so under article 13 of the contract. For the requested changes, the plaintiff prepared change orders, in which it quoted a price for the work and the amount of time that the work would add to the total contract time, which, under the terms of the contract, was the time specified in article 2 within which the plaintiff was required to achieve substantial completion of the project. It is perfectly clear, therefore, that the extensions of time agreed on in the change orders were for the benefit of the plaintiff and were intended to provide the plaintiff with additional time, above and beyond the time originally allotted, to complete the work in fight of the changes requested by Jeffrey Miller. Accordingly, we agree with Jeffrey Miller that the attorney trial referee improperly found that the plaintiff was entitled to damages for the delays attributable to the change orders.
IV
In fight of our conclusion in part III of this opinion rejecting the attorney trial referee’s finding that the plaintiff was entitled to delay damages under the contract,
V
Finally, we consider Jeffrey Miller’s claim that the trial court improperly declined to award him reasonable attorney’s fees under § 49-8 (c) for his successful effort in invalidating the $343,351.47 lien. Jeffrey Miller contends that the trial court failed even to address his claim for attorney’s fees and that he is entitled to recover such fees. We agree.
The following facts and procedural history are relevant to our disposition of this issue. In his counterclaim, Jeffrey Miller alleged that both mechanic’s liens were invalid and that the plaintiff had violated § 49-8 (c) by failing to release them upon request. The attorney trial referee agreed with Jeffrey Miller that the hen in the amount of $343,351.47 was invalid because it exceeded the total balance due on the parties’ contract. Accordingly, the attorney trial referee recommended that Jeffrey Miller be awarded $5000 in damages under General Statutes § 49-8 (c), which provides that, when a lienor fails to release an invalid hen within sixty days of receiving a written request to do so, he or she “shall be hable for damages to any person aggrieved at the rate of two hundred dollars for each week after the expiration of such sixty days up to a maximum of five thousand dollars or in an amount equal to the loss sustained by such aggrieved person as a result of the failure of the mortgagee or plaintiff or the plaintiffs attorney to execute and deliver a release, whichever is greater, plus costs and reasonable attorney’s fees.” (Emphasis added.) Notwithstanding the plain language of the statute directing that the prevailing party shall be awarded damages “plus . . . reasonable attorney’s fees”; (emphasis added) General Statutes § 49-8 (c); the attorney trial referee determined that he was not authorized to make a recommendation with respect to those fees and, consequently, left that determination to the trial court. Thereafter, Jeffrey Miller’s attorney filed an affidavit detailing the work that he had done to secure the release of the $343,351.47 lien and his fees for those services. After the trial court issued its memorandum of decision accepting all of the attorney trial referee’s findings but failing to address the issue of attorney’s fees, Jeffrey Miller sought an articulation of why the trial court had failed to award him attorney’s fees under § 49-8 (c). That request was denied without explanation.
The plaintiff previously had filed a request for attorney’s fees under § 52-249 (a), which the trial court also denied.
The plaintiff filed a motion for reargument and reconsideration of the trial court’s ruling, and Jeffrey Miller filed a detailed objection to that motion, again asserting his entitlement to attorney’s fees under § 49-8 (c). With respect to his claim for attorney’s fees under § 49-8, Jeffrey Miller noted that, although the attorney trial referee had explained that he was leaving the determination of such fees to the trial court, “the [c]ourt has never ruled on these fees.”
While the plaintiffs motion for reargument and reconsideration was pending, Judge Lewis, who had presided over the case, became ill and unable to work. The plaintiffs motion therefore was assigned to the court, Kara-zin, J., which, after entertaining oral argument, granted the plaintiffs motion and awarded the plaintiff $64,405.17 in attorney’s fees. In oral argument before Judge Karazin, Jeffrey Miller’s attorney argued that the plaintiff was not entitled to attorney’s fees under § 52-249 (a) because, among other reasons, both of the mechanic’s hens that the plaintiff had filed on the property were invalid under § 49-33. Jeffrey Miller’s attorney also explained that the court had failed to award Jeffrey Miller his attorney’s fees under § 49-8 (c), stating: “The attorney trial referee said I [get] attorney’s fees because [the plaintiff filed] an invalid mechanic’s hen [on my Ghent’s property], the [$343,351.47] one. Judge Lewis has never given them to us. ... I get them . . . under the statute.” Although the plaintiffs counsel did not dispute these assertions, Judge Karazin nevertheless failed to address them in granting the plaintiffs motion for reconsideration and awarding the plaintiff attorney’s fees.
Thereafter, while this appeal was pending, Jeffrey Miller filed a motion for review and request for articulation of the trial court’s reasons for failing to award him attorney’s fees. We granted the motion and directed the trial court to articulate its reasons for failing to address Jeffrey Miller’s claim for attorney’s fees and, if the court’s failure to address the issue had been an oversight, to decide the issue. Thereafter, the court, Kara-zin, J., issued an articulation in which it stated that it had not addressed Jeffrey Miller’s request for attorney’s fees because “it was not before [the] court on any of the pleadings. Therefore, [the] court did not neglect to rule as the result of an oversight but rather because that issue was not before [the] court.”
Suffice it to say that, based on the foregoing procedural history, Jeffrey Miller’s claim for attorney’s fees was squarely before the court in filings that Jeffrey Miller’s attorney had submitted at several stages of the proceedings, including the proceeding before the court, Karazin, J. Accordingly, we agree with Jeffrey Miller that the case must be remanded to the trial court for a determination of reasonable attorney’s fees, in accordance with § 49-8 (c). 34
In this opinion the other justices concurred.
Notes
We refer to Jeffrey T. Miller and Cheryl Miller collectively as the defendants. We refer to Jeffrey Miller and Cheryl Miller individually by name.
See footnote 7 of this opinion.
The defendants appealed and the plaintiff and the third party defendant, Mercede, cross appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.
General Statutes § 49-8 provides: “(a) The mortgagee or a person authorized by law to release the mortgage shall execute and deliver a release to the extent of the satisfaction tendered before or against receipt of the release: (1) Upon the satisfaction of the mortgage; (2) upon a bona fide offer to satisfy the mortgage in accordance with the terms of the mortgage deed upon the execution of a release; (3) when the parties in interest have agreed in writing to a partial release of the mortgage where that part of the property securing the partially satisfied mortgage is sufficiently definite and certain; or (4) when the mortgagor has made a bona fide offer in accordance with the terms of the mortgage deed for such partial satisfaction on the execution of such partial release.
“Cb) The plaintiff or the plaintiff’s attorney shall execute and deliver a release when an attachment has become of no effect pursuant to section 52-322 or section 52-324 or when a lis pendens or other lien has become of no effect pursuant to section 52-326.
“(c) The mortgagee or plaintiff or the plaintiffs attorney, as the case may be, shall execute and deliver a release within sixty days from the date a written request for a release of such encumbrance (1) was sent to such mortgagee, plaintiff or plaintiffs attorney at the person’s last-known address by registered or certified mail, postage prepaid, return receipt requested, or (2) was received by such mortgagee, plaintiff or plaintiffs attorney from a private messenger or courier service or through any means of communication, including electronic communication, reasonably calculated to give the person the written request or a copy of it. The mortgagee or plaintiff shall be liable for damages to any person aggrieved at the rate of two hundred dollars for each week after the expiration of such sixty days up to a maximum of five thousand dollars or in an amount equal to the loss sustained by such aggrieved person as a result of the failure of the mortgagee or plaintiff or the plaintiffs attorney to execute and deliver a release, whichever is greater, plus costs and reasonable attorney’s fees.”
General Statutes § 52-249 (a) provides: “The plaintiff in any action of foreclosure of a mortgage or lien, upon obtaining judgment of foreclosure, when there has been a hearing as to the form of judgment or the limitation of time for redemption, shall be allowed the same costs, including a reasonable attorney’s fee, as if there had been a hearing on an issue of fact. The same costs and fees shall be recoverable as part of the judgment in any action upon a bond which has been substituted for a mechanic’s lien.”
The plaintiff filed this mechanic’s lien pursuant to General Statutes § 49-33, which provides in relevant part: “(a) If any person has a claim for more than ten dollars for materials furnished or services rendered in the construction, raising, removal or repairs of any building or any of its appurtenances or in the improvement of any lot or in the site development or subdivision of any plot of land, and the claim is by virtue of an agreement with or by consent of the owner of the land upon which the building is being erected or has been erected or has been moved, or by consent of the owner of the lot being improved or by consent of the owner of the plot of land being improved or subdivided, or of some person having authority from or rightfully acting for the owner in procuring the labor or materials, the building, with the land on which it stands or the lot or in the event that the materials were furnished or services were rendered in the site development or subdivision of any plot of land, then the plot of land, is subject to the payment of the claim. ...”
The defendants successfully impleaded Mercede, the president of the plaintiff, as a third party defendant, seeking to pierce the corporate veil and to hold him personally liable for the actions of the plaintiff. The attorney trial referee found that the defendants had proven that the corporate veil should be pierced as to Mercede only with respect to the defendants’ successful claim that the plaintiff had filed an invalid mechanic’s lien in the amount of $343,351.47. The attorney trial referee recommended that the defendants be awarded $5000 in connection with that claim, and the trial court rendered judgment against Mercede in that amount. Mercede claims that the trial court improperly imposed personal liability on him in connection with the filing of the $343,351.47 mechanic’s lien. In their reply brief, however, and again at oral argument before this court, the defendants conceded the validity of Mercede’s claim that the attorney trial referee improperly had determined that Mercede was personally liable for the filing of the mechanic’s lien. In light of the defendants’ concession, we reverse the judgment of the trial court against Mercede in his individual capacity and do not address this issue further.
Eider “A” to the contract provides in relevant part: “SCHEDULE OF ALTERNATES
“1 To add back in the [gjarage and the [bjonus room above (including foundations and slab-on-grade) as originally shown on drawings.
“Please add the sum of Forty Nine Thousand Seven Hundred Eighty Six Dollars ($49,786.00)
“2 To provide front, rear path and rear patio site lighting as shown on drawings.
“Please add the sum of Four Thousand Six Hundred Fifty Dollars ($4,650.00)
“3 To provide driveway lighting with motion sensors as shown on drawings.
“Please add the sum of Five Thousand Two Hundred Eighty Dollars ($5,280.00)
“All of the above alternate prices will only be valid for 30 days after physical mobilization on job site and subject to change by The FCM Group, Inc.”
On December 30, 1998, the plaintiff sent Jeffrey Miller the first of the four change order forms, which detailed the changes that had been requested to date and the price for each change. The changes ranged from the very simple, such as adding a light switch in the mudroom for $100, to the very expensive, such as adding a garage and bonus room for $49,786. At the end of the form, the plaintiff stated: “These changes will add an additional (16) calendar days to the schedule. None of these changes in the work will commence until this executed change order is received by our firm.” Jeffrey Miller signed the form on January 8, 1999, and returned it to the plaintiff.
This was in addition to the eighty-six business days that were noted in the previous change order.
Mercede testified that he demanded final payment after his conversation with Cheryl Miller because he “was concerned that [he] was never going to get the final payment, that [the defendants] were just going to keep coming up with all sorts of little . . . things and [he] was never going to get the final payment, after two years, too, of being tortured, and then [he] wasn’t going to get [his] final payment. So [he] got concerned and [he] wrote [Jeffrey Miller] a letter saying that in exchange for all the stuff that went on here, all the delays and all the problems, [he would] not make an issue out of that, but [he] want[ed] [his] final payment and [would] complete the work after getting [it].”
Article 20 of the contract provides in relevant part: “20.2 If the [contractor defaults or persistently fails or neglects to carry out the [w]ork in accordance with the [cjontract [djocuments or fails to perform a provision of the [cjontract, the [ojwner, after seven days’ written notice to the [cjon-tractor and without prejudice to any other remedy the [ojwner may have, may make good such deficiencies and may deduct the cost thereof, including compensation for the [ajrchitect’s services and expenses made necessary thereby, from the payment then or thereafter due the [cjontractor. Alternatively, at the [ojwner’s option, and upon certification by the [ajrchitect that sufficient cause exists to justify such action, the [ojwner may terminate the [cjontract and take possession of the site and of all materials, equipment, tools, and construction equipment and machinery thereon owned by the [cjontractor and may finish the [wjork by whatever method the [ojwner may deem expedient. ...”
The liens were recorded on February 25, 2000.
The plaintiff also alleged unjust enrichment but subsequently abandoned that claim.
General Statutes § 49-13 provides in relevant part: “(a) When the record title to real property is encumbered (1) by any undischarged mortgage, and . . . (D) the note or evidence of indebtedness has been paid or a bona fide offer and tender of the payment has been made pursuant to section 49-8, or (E) the mortgage has become invalid, and in any of such cases no release of the encumbrance to secure such note or evidence of indebtedness has been given, or (2) by a foreclosed mortgage and the mortgagor has made a bona fide offer and tender of payment of the foreclosure judgment on or before the mortgagor’s law day and the mortgagee has refused to accept payment, or (3) by an attachment, lis pendens or other lien which has become of no effect, the person owning the property, or the equity in the property, may bring a petition to the superior court for the judicial district in which the property is situated, setting forth the facts and claiming a judgment as provided in this section. The plaintiff may also claim in the petition damages as set forth in section 49-8 if the plaintiff is aggrieved by the failure of the defendant to execute the release prescribed in said section. ...”
In the defendants’ third party complaint against Mercede in his individual capacity, Cheryl Miller alleged that Mercede frivolously had caused her to be named as a defendant in the action in view of the fact that she was not a signatory to the construction contract or the owner of the subject property. The attorney trial referee found in favor of Mercede on this claim, and the trial court accepted that finding and rendered judgment in accordance therewith. Cheryl Miller has not appealed from that portion of the judgment.
The attorney trial referee issued a report and a supplemental report in response to certain of the parties’ objections to the initial report. In the interest of simplicity, we treat these two reports as one report in discussing the attorney trial referee’s findings and recommendations.
General Statutes § 49-36 provides in relevant part: “(a) No mechanic’s lien may attach to any building or its appurtenances, or to the land on which the same stands, or any lot, or any plot of land, in favor of any person, to a greater amount in the whole than the price which the owner agreed to pay for the building and its appurtenances or the development of any such lot, or the development of any such plot of land. . . ."
The attorney trial referee offered no explanation for his recommendation that the $30,761.98 mechanic’s lien should be foreclosed even though he had found that the plaintiff had not proven that it had provided any materials or services in connection with the project, in accordance with § 49-33.
See footnote 5 of this opinion.
The attorney trial referee recommended that all of the defendants’ remaining claims against the plaintiff be rejected, and the court, Hon. William B. Lewis, judge trial referee, subsequently adopted that recommendation. The defendants have not challenged the court’s adoption of that recommendation on appeal.
References hereinafter to the trial court are to Judge Lewis unless otherwise indicated.
Despite the general rule that only parties to a contract are bound by its terms, courts have held that a person who is not a signatory to a contract nevertheless may be liable under the contract if that person accepts or adopts the contract. See, e.g.,
White
v.
National Football League,
92 F. Sup. 2d 918, 923 (D. Minn. 2000);
Central of Georgia Railway Co.
v.
Woolfolk Chemical Works, Ltd,.,
We note that the plaintiff and Mercede never have claimed an agency relationship between Cheryl Miller and Jeffrey Miller. Even if such a relationship had been alleged and found to exist, however, it would not have supported an action against Cheryl Miller for breach of contract. See, e.g.,
Whitlock’s, Inc.
v.
Manley,
As we previously noted, the attorney trial referee placed the bulk of the responsibility for breaching the contract between the plaintiff and Jeffrey Miller on Cheryl Miller, finding that she anticipatorily had breached the contract by telling Mercede that he would not receive his final payment. Because the attorney trial referee improperly treated Cheryl Miller as a party to the contract, and because the plaintiff did not claim an agency relationship between Cheryl Miller and Jeffrey Miller; see footnote 24 of this opinion; all of the conclusions that are dependent on or that flowed from that finding necessarily are suspect. Jeffrey Miller has elected not to challenge any of the attorney trial referee’s factual findings, however, because, he contends, the plaintiffs award of attorney’s fees, the trial court’s failure to act on his request for attorney’s fees, and all but $3660.67 of the $266,846 damages awarded against him, are improper as a matter of law. Furthermore, if proven, these claims would eliminate the need for a retrial on any of the plaintiffs claims. For the reasons set forth hereinafter, we agree with Jeffrey Miller’s claims.
In addition to
Centerbrook
and
Sekeret,
the plaintiff and Mercede offer
Hope
v.
Cavallo,
Although Cheryl Miller also raises this and other claims along with Jeffrey Miller, in view of our decision that the trial court improperly treated Cheryl Miller as a party to the contract, the trial court’s judgment must be reversed insofar as Cheryl Miller either is liable under the judgment or entitled to damages thereunder. Because she is not a party and, therefore, not liable to the plaintiff, we have no reason to consider any of her other claims. Consequently, in addressing all other remaining claims, we hereinafter refer to Jeffrey Miller only unless the context requires otherwise.
As we previously noted, the attorney trial referee identified February 7, 2000, as the date on which the defendants had breached the contract.
In light of our determination that the award of attorney’s fees to the plaintiff must be reversed in its entirety, we do not reach Jeffrey Miller’s claim that the award improperly included fees for all of the work that had been performed in the case when it should have been limited to the fees incurred solely in connection with the foreclosure proceeding.
Article 12 of the contract, entitled “CONSTRUCTION BY OWNER OR BY SEPARATE CONTRACTORS,” provides: “12.1 The [o]wner reserves the right to perform construction or operations related to the [pjrojeet with the [o]wner’s own forces, and to award separate contracts in connection with other portions of the [pjroject or other construction or operations on the site under conditions of the contract identical or substantially similar to these, including those portions related to insurance and waiver of subro-gation.
“If the [contractor claims that delay or additional cost is involved because of such action by the [o]wner, the [c]ontractor shall make such claim as provided elsewhere in the [c]ontract [djocuments.
“12.2 The [c]ontractor shall afford the [o]wner and separate contractors reasonable opportunity for the introduction and storage of their materials and equipment and performance of their activities, and shall connect and coordinate the [contractor's construction and operations with theirs as required by the [c]ontraet [documents.
“12.3 Costs caused by delays, improperly timed activities or defective construction shall be borne by the party responsible therefor.”
Article 14 of the contract provides in relevant part: “14.3 If the [contractor is delayed at any time in progress of the [w]ork by changes ordered in the [w]ork, by labor disputes, fire, unusual delay in deliveries, abnormal adverse weather conditions not reasonably anticipatable, unavoidable casualties or any causes beyond the [c]ontractor’s control, or by other causes which the [ajrchitect determines may justify delay, then the [cjontract [t]ime shall be extended by [c]hange [ojrder for such reasonable time as the [a]rchi-tect may determine.”
We note that the plaintiff and Mercede neither defend the merits of the attorney trial referee’s interpretation of the parties’ contract nor respond to Jeffrey Miller’s arguments challenging that interpretation. The plaintiff and Mercede merely assert, in conclusory fashion, that the attorney trial referee’s interpretation was correct.
As we previously explained, the attorney trial referee found that the lien in the amount of $343,351.47 was invalid because it exceeded the balance due on the contract. Although we agree that the lien is invalid, we reach that conclusion because the plaintiff is not entitled to the delay damages on which the lien was predicated.
We note that Jeffrey Miller raised his claim of entitlement to attorney’s fees under § 49-8 (c) for the first time in his reply brief to this court. In his original brief to this court, Jeffrey Miller claimed that he was entitled to such fees under article 15 of the parties’ contract, which provides in relevantpart: “15.4 Final payment shall not become due until the [contractor has delivered to the [o]wner a complete release of all liens arising out of this [cjontract or receipts in full covering all labor, materials and equipment for which a lien could be filed, or a bond satisfactory to the [o]wner to indemnify the [o]wner against such lien. If such lien remains unsatisfied after payments are made, the [contractor shall refund to the [o]wner all money that the [o]wner may be compelled to pay in discharging such lien, including all costs and reasonable [attorney’s] fees.”
In his reply brief, Jeffrey Miller claimed that he is entitled to attorney’s fees under both the contract and § 49-8 (c). Jeffrey Miller also detailed the long and tortured procedural history surrounding his attorney’s efforts to obtain a ruling under § 49-8 (c), which, as Jeffrey Miller correctly observes, mandates attorney’s fees to the prevailing party. As a general rule, we do not address claims that are raised for the first time in a reply brief. E.g.,
SS-II, LLC
v.
Bridge Street Associates,