Windsor v. Loureiro Engineering Associates

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TOWN OF WINDSOR v. LOUREIRO ENGINEERING
ASSOCIATES ET AL.
(AC 39398)
Lavine, Alvord and Bear, Js.

Syllabus

The plaintiff town sought to recover damages for professional negligence
from, inter alia, the defendant architect firm and its individual employees
in connection with the collapse of the roof of a school auditorium in
2011. The plaintiff had retained the defendants and others, including F,
a structural engineer, to produce a report that summarized their analysis
of conditions at the school and their conclusion as to whether the
existing building was structurally sound so that it could be renovated
to standards comparable to a new building. The report was delivered
in 1998. The defendants pleaded as their special defense that the present
action was barred by the applicable seven year statute of limitations
(§ 52-584a). The plaintiff maintained, inter alia, that the ‘‘comparable to
new’’ analysis was never substantially completed and, thus, the statute
of limitations never began to run. In a series of rulings on certain pretrial
motions, the court ordered trial on the statute of limitations issue to
be bifurcated from the question of liability and prohibited any argument
to the jury that substantial completion had never occurred, ruling that
the question for the jury was when, not whether, substantial completion
occurred. After trial began, the court, sua sponte, reconsidered the
defendants’ earlier motion to dispense with the jury and decide the
statute of limitations question as a matter of law, and ordered the parties
to brief the factual issues and submit admissible evidence akin to a
motion for summary judgment. Thereafter, the court rendered judgment
in favor of the defendants on their statute of limitations defense. The
plaintiff appealed to this court, claiming that that the defendants failed
to satisfy their burden to demonstrate that the action was commenced
outside the seven year limitation period, as the allegations in its com-
plaint as well as certain documentary evidence and deposition testimony
left open a wide range of possible dates of negligence beyond the seven
year limitation period. Held that the trial court properly rendered judg-
ment in favor of the defendants on their statute of limitations defense,
the defendants having established that there was no genuine issue of
material fact that the plaintiff commenced this action outside the statu-
tory limitation period: by the plain terms of § 52-584a, an action against
an architect or engineer arising out of a deficiency in one or more of
the enumerated services must be brought within seven years after the
substantial completion of the improvement to real property, with the
date of substantial completion being the date the improvement was
either first used or first available for use, and under the circumstances
here, where the report did not itself require or effect a physical alteration
of real property and there was no readily discernible date of substantial
completion of such an improvement to real property, the seven year
period began to run when the allegedly negligent design was completed,
and the defendants satisfied their burden of proving the plaintiff com-
menced this action more than seven years after the report was completed
and more than seven years after the plaintiff held a town referendum for
funding the renovation as recommended in the report, which occurred
in 1999; moreover, the plaintiff failed in its burden to substantiate its
claim that an issue of fact existed as to whether the defendants substan-
tially completed their report by failing to inform the plaintiff about the
defect in the auditorium roof, as such argument was contrary to the
plain language and purpose of § 52-584a, which was enacted to end
perpetual liability for architects and engineers, and, viewing the plain-
tiff’s evidence in its most favorable light, the last date on which a jury
could have found that the defendants were still working on the report
was in 2000, the date of the last letter provided by the plaintiff in which
F affirmed the conclusions made in the report and which was more
than seven years before the plaintiff commenced this action.
Argued December 4, 2017—officially released April 24, 2018
Procedural History

Action to recover damages for the defendants’ alleged
professional negligence, and for other relief, brought
to the Superior Court in the judicial district of Hartford,
where the defendant Charles V. Francis was defaulted
for failure to plead; thereafter, the action was with-
drawn as to the named defendant et al.; subsequently,
the court, Elgo, J., granted the motion to bifurcate the
trial as to certain special defenses filed by the defendant
Newman Architects, LLC, et al.; thereafter, the court
denied the motion filed by the defendant Newman
Architects, LLC, et al. to dispense with the jury and
decide the special defenses as a matter of law; subse-
quently, the court, sua sponte, reconsidered its ruling
on the motion to dispense with the jury and decide
the special defenses as a matter of law and rendered
judgment for the defendant Newman Architects, LLC,
et al., from which the plaintiff appealed to this court.
Affirmed.
Daniel J. Krisch, with whom, on the brief, were John
C. DeSimone, pro hac vice, John B. DiSciullo, pro hac
vice, and Richard F. Wareing, for the appellant
(plaintiff).
Leslie P. King, with whom were Christopher A.
Klepps and, on the brief, Donald W. Doeg, for the appel-
lees (defendant Newman Architects, LLC, et al.).
Opinion

ALVORD, J. The plaintiff, the town of Windsor,
appeals from the judgment of the trial court rendered
in favor of the defendants Newman Architects, LLC,
Herbert S. Newman, and Michael Raso.1 On appeal, the
plaintiff claims that the court improperly discharged
the jury and rendered judgment as a matter of law
on the defendants’ special defense asserting that the
plaintiff’s action was barred by the seven year statute
of limitations set forth in General Statutes § 52-584a.
We conclude that the court properly rendered judgment
as a matter of law in favor of the defendants and, accord-
ingly, affirm the judgment.
The following facts and procedural history are rele-
vant to our resolution of this appeal. The present appeal
stems from a professional negligence action that the
plaintiff commenced against the defendants after the
auditorium roof at Windsor High School (school) col-
lapsed under the weight of accumulated snow and ice
on February 2, 2011.
The defendants previously had performed work for
the plaintiff under two separate contracts for services
relating to the school. Newman Architects, LLC, which
employed Newman and Raso, provided architectural
services and Barnhart, Johnson, Francis & Wild, Inc.
(BJFW), which employed Charles Francis, provided
structural engineering services. The parties designated
the defendants’ work performed pursuant to the first
contract as the ‘‘report project.’’ Specifically, the defen-
dants were retained to produce what was called a ‘‘Com-
parable-to-New’’ report (report), which was required as
part of the process for applying for renovation funding
from the state of Connecticut pursuant to No. 96-270
of the 1996 Public Acts (P.A. 96-270).2 The report sum-
marized the defendants’ analysis of conditions at the
school and the defendants’ conclusion as to whether
the existing building was structurally sound, so that it
could be renovated to standards comparable to a new
building. The report was dated June 16, 1998, and was
provided to the plaintiff on that day.
On June 29, 1998, the plaintiff submitted the report
to the state as part of its application for renovation
funding, which application was approved. On February
9, 1999, the town held a referendum on the $35 million
appropriation and bond authorization for renovations
at the school, which the town’s residents voted to
approve. By April 12, 1999, the plaintiff had paid the
defendants in full for their work under the contract for
the report project. In June, 1999, the parties entered
into a separate, second contract for the design and
construction of the renovation project at the school
(renovation project).
The plaintiff commenced this action on July 14, 2011,
five months after the auditorium roof collapsed. The
plaintiff alleged as the proximate cause of the collapse
a deficient steel connection between the main truss and
a supporting truss. The plaintiff alleged, inter alia, that
the defendant Newman Architects, LLC, was negligent
in four ways: (1) failing to ‘‘follow the appropriate stan-
dard of care in inspecting existing field welds in areas
affected by the renovation’’; (2) failing to ‘‘follow the
appropriate professional standard of care in supervis-
ing, as an architect, consultants and subcontractors in
making inspections of the existing field welds’’; (3) fail-
ing to ‘‘follow the appropriate professional standard of
care in ensuring that existing elements within the high
school were brought into compliance with the State
Building Code’’; and (4) giving ‘‘advice below the appro-
priate professional standard of care to the plaintiff, to
whom it had a duty, in advising the renovation project
would provide another twenty years of life to the high
school, as required by and in accordance with State
guidelines and definitions for renovation status and
then failing to adequately monitor the project to ensure
the structure and renovations satisfied that standard.’’3
In their answer, the defendants asserted a special
defense alleging that the plaintiff’s action was barred
by § 52-584a because the plaintiff had commenced its
action more than seven years after substantial comple-
tion of the subject improvement.4 On January 12, 2016,
the defendants filed a motion to bifurcate the trial,
seeking to have the issue of whether the plaintiff’s
claims were barred by the statute of limitations heard
before the issue of liability. The plaintiff objected on
the basis that the statute of limitations issue was ‘‘too
closely intertwined with the plaintiff’s liability case.’’
After oral argument on January 20, 2016, the court,
Elgo, J., granted the defendants’ motion to bifurcate.
On February 1, 2016, the plaintiff filed a motion in
limine to preclude evidence regarding the substantial
completion date of the renovation project. In its motion,
the plaintiff described the defendants’ obligations under
each of the two contracts. Under the contract for the
report project, the ‘‘defendants agreed to provide a
report outlining the scope of renovations needed to
bring the [school] building and site to a ‘comparable-
to-new’ standard . . . .’’ Under the contract for the ren-
ovation project, the ‘‘defendants agreed to provide the
design, and design documents, and administer the
underlying construction contracts on the [plaintiff’s]
behalf.’’ The plaintiff argued that because it was ‘‘not
asserting that defendants breached any duties arising
out of that second, distinct, contract,’’ any evidence
regarding the date on which the renovation project was
substantially complete was irrelevant to the issue of
whether the plaintiff’s claims arising from the report
project were timely.
The defendants filed a motion in response, arguing
that if evidence of the date of substantial completion
of the renovation project was precluded, there would
be no factual issue left to be tried during the first phase
of trial. According to the defendants, there were ‘‘no
factual issues in dispute with respect to the completion
date of the report project.’’ The defendants requested
that the court dispense with the jury and permit the
parties to brief the only remaining issue, which would
be the legal question of whether the defendants owed
the plaintiff ‘‘a continuing duty with respect to the
report project after the [report] was submitted and the
referendum was passed.’’ The parties appeared before
Judge Elgo on February 2, 2016, to argue several
motions in limine, including the defendants’ motion to
dispense with the jury. During this hearing, the plaintiff
clarified that it was not asserting that the defendants
had a continuing duty to correct any alleged mistakes
in the report but rather that the comparable-to-new
analysis was never substantially completed. The court
prohibited any argument to the jury that substantial
completion had never occurred, ruling that the question
for the jury was when, not whether, substantial comple-
tion occurred. The court further prohibited the plaintiff
from arguing to the jury that the date the certificate of
occupancy was issued for the school could be the date
of substantial completion, after concluding that there
was no basis in law for the statute of limitations to be
triggered by that date.
The next morning, the parties again appeared before
the court. The jury was sworn in and counsel presented
opening statements. During the plaintiff’s opening state-
ment, counsel indicated an intention to offer evidence
in support of legal theories that the court already had
ruled irrelevant and inadmissible, and the court sus-
tained five objections on the basis of relevance before
excusing the jury. The court thereafter reconsidered
the defendants’ earlier motion to dispense with the jury
and ordered the defendants to ‘‘provide this court with
affidavits and/or other admissible evidence in support
of its claims . . . . [T]he plaintiff shall respond by spe-
cifically addressing each of the factual claims raised
and assert whether each fact is or is not disputed. If
disputed, the plaintiff shall file with its response evi-
dence, which would be admissible at trial, sufficient to
create an issue of fact which must be resolved by a
jury.’’ The court ordered the parties to brief the factual
issues and submit ‘‘admissible evidence akin to a motion
for summary judgment.’’ The plaintiff objected to the
court’s proposed procedure.
On February 4, 2016, the defendants filed an offer of
proof, setting forth the dates on which (1) the first
contract was signed; (2) the report was prepared and
submitted to the plaintiff; (3) the report was used by
the plaintiff in its application for funding; (4) the refer-
endum on the project was approved; and (5) the final
invoice under the first contract was submitted and paid
in full by the plaintiff. The defendants attached to their
offer of proof documents in support of those dates
and the affidavits of Richard Munday, an employee of
Newman Architects, and Francis, who was president
of BJFW during the relevant time frame. The plaintiff
responded that the defendants had failed to offer ade-
quate proof, in that they were required, and failed, to
present evidence that either: ‘‘(1) the last day on which
they could have been negligent was more than seven
. . . years before the commencement of this action; or
(2) the date of substantial completion of an improve-
ment to real property occurred more than seven . . .
years before the commencement of this action.’’ The
plaintiff cited testimony and documentary evidence in
support of its claim that there was an issue of fact as
to whether the defendants had finished their work as
of February 9, 1999, the date of the referendum. Specifi-
cally, the plaintiff relied upon language found in the
report stating that ‘‘[e]xamination of structural ele-
ments concealed by finish materials was not made and
will need thorough examination during the design and
construction phases of the project.’’ The plaintiff also
pointed to letters prepared by Raso and Francis after
the report had been provided to the plaintiff offering
their opinions regarding the structure at the school,
which the plaintiff claimed evidenced work performed
after the date of the referendum. The plaintiff further
noted communications in which Francis indicated he
was missing certain original structural drawings, one
of which Francis described as especially important to
have.
On June 20, 2016, the court rendered judgment as a
matter of law in favor of the defendants on their statute
of limitations special defense. The court relied upon
the undisputed facts that the defendants completed and
submitted the report on June 16, 1998, and that the town
used the report on June 25, 1998, when it submitted
the report as part of its application for state funding.
Noting the plaintiff’s argument that the defendants had
sent letters confirming their opinions as late as Febru-
ary 15, 2000, the court concluded that even if a jury
were to credit that date, the action was still commenced
well beyond seven years later. Thus, the court con-
cluded that the defendants had satisfied their burden
of showing the absence of any genuine issue of material
fact and that they were entitled to judgment as a matter
of law.5 The plaintiff appealed.
On appeal, the plaintiff claims that the court improp-
erly discharged the jury and rendered judgment as a
matter of law because the defendants failed to satisfy
their burden to demonstrate that the action was com-
menced outside the seven year statutory limitation
period. Specifically, the plaintiff claims that its allega-
tions ‘‘le[ft] open a wide range of possible dates of
negligence,’’ and that it offered documentary evidence
and deposition testimony that supported the possibility
that further work was performed after ‘‘the dates on
which the defendants’ entire argument hinged.’’ The
defendants argue that the court properly rendered judg-
ment because there were no material issues of fact to
be tried and the evidence proved that the plaintiff’s
claims were time barred as a matter of law. We agree
with the defendants.
At the outset, we note that the plaintiff expressly
declined to pursue a theory that the defendants
breached any obligations with respect to the renovation
project under the second contract. As framed by the
parties, the sole question on appeal is whether the trial
court properly concluded that the defendants satisfied
their burden of demonstrating that there was no genuine
issue of material fact that the plaintiff failed to com-
mence the action within seven years of the date of the
alleged negligence arising out of the defendants’ work
on the report project.
We first set forth our standard of review. Whether a
plaintiff’s claim is barred by the applicable statute of
limitation presents a question of law to which this court
affords plenary review. Sinotte v. Waterbury, 121 Conn.
App. 420, 440, 995 A.2d 131, cert. denied, 297 Conn. 921,
996 A.2d 1192 (2010); see also Doe v. Boy Scouts of
America Corp., 323 Conn. 303, 341, 147 A.3d 104 (2016).
The court’s decision on reconsideration of the defen-
dants’ motion to decide questions of law and to dispense
with the jury trial is reviewed under the same standard
as a decision on a motion for summary judgment. See
Thomson v. Dept. Social Services, 176 Conn. App. 122,
127–28, 169 A.3d 256 (test for summary judgment is
whether moving party would be entitled to directed
verdict on same facts), cert. denied, 327 Conn. 962, 172
A.3d 800 (2017). ‘‘Summary judgment may be granted
where the claim is barred by the statute of limitations.
. . . Summary judgment is appropriate on statute of
limitations grounds when the material facts concerning
the statute of limitations [are] not in dispute . . . .’’
(Citation omitted; internal quotation marks omitted.)
Romprey v. Safeco Ins. Co. of America, 310 Conn. 304,
313, 77 A.3d 726 (2013). ‘‘A material fact . . . [is] a fact
which will make a difference in the result of the case.’’
(Internal quotation marks omitted.) Flannery v. Singer
Asset Finance Co., LLC, 312 Conn. 286, 310, 94 A.3d
553 (2014).
We next set forth the applicable statute of limitations,
which provides in relevant part: ‘‘No action . . .
whether in contract, in tort, or otherwise, (1) to recover
damages (A) for any deficiency in the design, planning,
contract administration, supervision, observation of
construction or construction of, or land surveying in
connection with, an improvement to real property . . .
shall be brought against any architect, professional
engineer or land surveyor performing or furnishing the
design, planning, supervision, observation of construc-
tion or construction of, or land surveying in connection
with, such improvement more than seven years after
substantial completion of such improvement.’’ General
Statutes § 52-584a (a). Subsection (c) of § 52-584a fur-
ther provides: ‘‘For purposes of subsections (a) and (b)
of this section, an improvement to real property shall
be considered substantially complete when (1) it is first
used by the owner or tenant thereof or (2) it is first
available for use after having been completed in accor-
dance with the contract or agreement covering the
improvement, including any agreed changes to the con-
tract or agreement, whichever occurs first.’’
By the plain terms of § 52-584a, an action against an
architect or engineer arising out of a deficiency in one
or more of the enumerated services must be brought
within seven years after the substantial completion of
the improvement to real property, with the date of sub-
stantial completion being the date the improvement is
either first used or first available for use. Our Supreme
Court has previously defined the term ‘‘improvement
to real property’’ as ‘‘an alteration or development of
the property in order to enhance or promote its use for
a particular purpose’’ and has noted that the phrase in
this context ‘‘ordinarily requires some physical addition
to or alteration of the property in question . . . .’’ Grig-
erik v. Sharpe, 247 Conn. 293, 307, 721 A.2d 526 (1998).
Recognizing that the plaintiff had limited its claims
to alleged negligence arising out of the report project,
which did not itself require or effect a physical alter-
ation of real property, the court noted that there was
no readily discernible date of ‘‘substantial completion
of an improvement to real property’’ and turned for
guidance to our Supreme Court’s application of the
statute in a case in which a physical improvement was
planned but did not occur because of the alleged negli-
gence. In Grigerik v. Sharpe, supra, 247 Conn. 293, the
plaintiff brought a negligence action against engineers
who had performed professional services at his prop-
erty. Specifically, the defendants were hired ‘‘to prepare
a site plan, to design a subsurface sanitary sewage dis-
posal system and to perform the necessary soil testing.’’
(Internal quotation marks omitted.) Id., 299. The defen-
dants were told that the site plan was necessary in
order to obtain approval of the land as a building lot.
Id. The defendants completed their work on the site
plan on October 16, 1985. Id., 300. A few months later,
the plaintiff applied for the permits to begin construc-
tion of a house on the lot, and the application was
denied. After performing additional tests, ‘‘it was con-
cluded that a curtain drain would have to be installed
on the land in order to control the seasonally high
groundwater.’’ (Internal quotation marks omitted.) Id.
Ultimately, however, after the construction of the cur-
tain drain, the state department of health concluded
that ‘‘the tests indicated that minimum public health
standards for a septic system could not be met and that
the building permits could not be issued.’’ (Internal
quotation marks omitted.) Id. The jury found for the
plaintiff on his negligence claim.
On appeal, this court concluded that a plan or design
for a structure was not an ‘‘improvement’’ within the
meaning of § 52-584a and held that the two year statute
of limitations contained in General Statutes § 52-584
barred the plaintiff’s negligence claim. Id., 297. Our
Supreme Court reversed, holding that § 52-584a applies
‘‘where an improvement is planned but never effectu-
ated.’’ Id., 308. Having concluded that the seven year
statutory limitation period applied, the court stated that
‘‘the negligence occurred during October, 1985,’’ which
was the date upon which the defendants completed the
allegedly defective design, and the plaintiff had com-
menced its action fewer than seven years later. Id., 309.
In essence, the court in Grigerik identified the date of
negligence as the completion of the allegedly defective
design, and thus, that was the date on which the seven
year period began to run.
We conclude that the trial court properly determined,
using Grigerik as guidance, that the defendants satis-
fied their burden of proving that there was no genuine
issue of material fact that the plaintiff commenced its
action outside the statutory limitation period.6 The
plaintiff acknowledged to the trial court that the report
was ‘‘the end product of defendants’ work on the report
project.’’ With respect to that project, the defendants
set forth the following undisputed dates: (1) the first
contract was signed on April 20, 1998, (2) the report
was dated June 16, 1998, (3) the report was submitted
to the plaintiff on that same day, (4) the report was
used by the plaintiff as part of its application for state
funding on June 25, 1998, (5) the referendum on the
renovation project was approved on February 9, 1999,
and (6) the defendants’ final invoice for the report proj-
ect was sent to the plaintiff on February 23, 1999 and
paid on April 13, 1999. The defendants also presented
the affidavits of Francis and Newman, who averred that
the defendants performed no work on the report project
after the February 9, 1999 referendum.7 In June, 1999,
the parties entered into a separate, second contract for
the design and construction of the renovation project,
providing the trial court with additional evidence that
the report project had been completed.
The defendants’ evidence, which demonstrated that
the defendants had completed work on the report proj-
ect in 1999, and therefore any alleged negligence with
respect to the report project had occurred by that date,
was sufficient to prove the absence of a genuine issue
of material fact that the action, served on July 14, 2011,
was commenced well outside the seven year statutory
limitation period.8 Accordingly, the burden shifted to
the plaintiff: ‘‘Although the party seeking summary judg-
ment has the burden of showing the nonexistence of
any material fact . . . a party opposing summary judg-
ment must substantiate its adverse claim by showing
that there is a genuine issue of material fact together
with the evidence disclosing the existence of such an
issue.’’ (Internal quotation marks omitted.) Rosenfield
v. I. David Marder & Associates, LLC, 110 Conn. App.
679, 684, 956 A.2d 581 (2008).
The plaintiff does not claim that the statute of limita-
tions was waived or tolled on the basis of a continuing
course of conduct. Instead, it suggests that it was a
question for the jury ‘‘[w]hether the defendants substan-
tially completed their report even though they failed to
inform the [plaintiff] about [the] defect [in the audito-
rium roof].’’ The trial court properly rejected this con-
tention as inconsistent with the language and purpose
of the statute. See Grigerik v. Sharpe, supra, 247 Conn.
303 n.10 (noting this court’s recognition that ‘‘at the
time the original version of § 52-584a was enacted, two
changes recently had altered modern tort law: the fall
of the privity requirement; and the death of the com-
pleted and accepted rule, [under which] the liability of
a design professional or builder terminated when the
improvement was finished and accepted by the owner’’
and that ‘‘the legislature’s concern over this increasing
liability facing architects and professional engineers
. . . had prompted the legislature to enact § 52-584a’’
[citation omitted; internal quotation marks omitted]);
see also Bagg v. Thompson, Superior Court, judicial
district of Hartford, Complex Litigation Docket, Docket
No. X07-CV-04-4025177-S, (April 17, 2008) (Berger, J.)
(45 Conn. L. Rptr. 448, 452 n.9) (noting that § 52-584a
was enacted to end perpetual liability).9
The plaintiff challenges Francis’ and Newman’s aver-
ments that the defendants performed no work on the
report project after the referendum held on February
9, 1999.10 In support of its claims, the plaintiff submitted,
inter alia, a February 17, 1999 memorandum written
by Francis explaining why BJFW could not provide
structural engineering services for the school at a fee
of less than $97,500. The memorandum identified work
that had yet to be performed, including a structural
evaluation of the roof framing system, which was
required by the ‘‘comparable to new’’ criteria. The plain-
tiff’s supporting documents also included communica-
tions dated April 20, 1998, and March 24, 1999, which
indicated that Francis was missing the original struc-
tural drawings showing the foundation and roof framing
of the auditorium. The plaintiff also presented letters
written by Francis to the state on July 1, 1999, and
February 15, 2000, which affirmed the conclusions
made in the report, and a similar letter written by Raso
and dated June 30, 1999.
The plaintiff claims that its evidence impeached the
testimony of Munday and Francis, and argues that if
the jury disbelieved them as to when they stopped work-
ing on the report project, ‘‘it might have found the defen-
dants’ entire defense wanting.’’ We disagree. The
evidence, viewed in the light most favorable to the plain-
tiff, did not demonstrate the existence of a genuine
issue of material fact as to whether the action was
commenced within seven years of the alleged negli-
gence. As the court found, the last date upon which a
jury could find that the defendants were still working
on the report project was February 15, 2000, the date of
the last letter provided by the plaintiff in which Francis
affirmed the conclusions made in the report. The plain-
tiff presented no evidence of alleged negligence with
respect to the report project beyond that date. Accord-
ingly, we agree with the trial court that the statute of
limitations began to run, at the latest, on February 15,
2000. See Rosenfield v. I. David Marder & Associates,
LLC, supra, 110 Conn. App. 687 (concluding that any
alleged breach occurred at latest by April 12, 2000, and
explaining that court ‘‘need not determine, for purposes
of this appeal, whether the statute of limitations began
to run on November 9, 1999, or April 12, 2000’’).
The plaintiff does not dispute that the applicable limi-
tation period under § 52-584a is seven years. Thus, the
plaintiff was required to commence this action by Feb-
ruary 15, 2007. The plaintiff acknowledges that the sum-
mons and complaint in this action were not served until
July 14, 2011. Because it failed to commence this action
within the seven year limitation period, the court cor-
rectly concluded that the plaintiff’s claims are barred
by § 52-584a.11
We conclude that the defendants established the lack
of a genuine issue of material fact concerning the statute
of limitations. The plaintiff failed to present evidence
that would raise such an issue. Accordingly, the court
properly rendered judgment as a matter of law in favor
of the defendants on their statute of limitations defense.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Charles V. Francis also was a defendant in this action, but was defaulted
for failure to plead. A complaint and an apportionment complaint were
filed against O & G Industries, Inc., but were subsequently withdrawn. The
plaintiff also filed a complaint against Loureiro Engineering Associates, but
the action was withdrawn as to it on September 8, 2016. Francis, O & G
Industries, Inc., and Loureiro Engineering Associates are not participants
in this appeal. We refer to Newman, Raso, and Newman Architects, LLC,
as the defendants.
2
As noted by the trial court: P.A. 96-270, codified at General Statutes § 10-
282 (18), ‘‘created a new category of school construction project known as
‘renovation,’ ’’ which was ‘‘a school building project to totally refurbish an
existing building as an alternative to new construction and which results
in the renovated facility taking on a useful life comparable to that of a
new facility.’’
3
The plaintiff made the same allegations against Raso and Newman,
except that it did not allege that they failed to follow the standard of care
in supervising consultants and subcontractors.
4
On February 6, 2015, the defendants filed a motion for summary judgment
on their special defense, which the court, Sheridan, J., denied on the basis
that ‘‘genuine issues of material fact exist as to the date of substantial com-
pletion.’’
5
The court also rejected the plaintiff’s argument that the doctrine of
nullum tempus applied to save its action and declined the plaintiff’s attempt,
on the eve of trial, to assert the doctrine of equitable estoppel. These rulings
are not challenged on appeal.
6
To the extent that the plaintiff claims that ‘‘the defendants had the burden
to prove the date of their negligence’’ rather than the last date on which
they could have been negligent, we reject this argument. The defendants
need only ‘‘demonstrat[e] that the action had commenced outside of the
statutory limitation period’’; Romprey v. Safeco Ins. Co. of America, supra,
310 Conn. 321; which can be proven by evidence that the plaintiff commenced
the action more than seven years after the last date on which the defendants
could have been negligent. See Rosenfield v. I. David Marder & Associates,
LLC, 110 Conn. App. 679, 692, 956 A.2d 581 (2008) (declining to decide on
which specific date statute began to run and concluding that it began to
run ‘‘no later than April 12, 2000’’).
7
The defendants provided the affidavit of Richard Munday, an employee
of Newman Architects, LLC, and attached: (1) a copy of the first contract
dated April 20, 1998, (2) a copy of the report dated June 16, 1998, (3) a
certified copy of the Town of Windsor Public Building Commission meeting
minutes dated June 25, 1998, and indicating that the town had submitted
the report to the state on June 25, 1998, (4) a certified copy of the Windsor
Town Council meeting minutes dated February 16, 1999, and indicating that
the school renovation project had been approved by referendum on February
9, 1999, and (5) a copy of Newman Architects’ accounts receivable ledger
showing that it had been paid in full under the first contract by April 13, 1999.
8
The plaintiff relies on Rickel v. Komaromi, 144 Conn. App. 775, 73 A.3d
851 (2013), and Fradianni v. Protective Life Ins. Co., 145 Conn. App. 90,
73 A.3d 896, cert. denied, 310 Conn. 934, 79 A.3d 888 (2013), in support of
its claim that the trial court improperly adopted the defendants’ ‘‘mechanical
application’’ of the statute. Both cases are inapposite, as the plaintiff in
Rickel alleged continuing torts and the plaintiff in Fradianni alleged conduct
that could constitute separate, annual breaches of the contract occurring
within the limitation period.
In Rickel, the plaintiff had ‘‘alleged facts in her complaint to support her
claims that the defendants’ conduct in planting [invasive] bamboo and then
failing to control its growth resulted in a continuing nuisance and a continu-
ing trespass.’’ Rickel v. Komaromi, supra, 144 Conn. App. 789–90. The trial
court relied only upon the date the bamboo was planted in rendering sum-
mary judgment for the defendants on the ground that the action was barred
by the statute of limitations. Id., 792. This court concluded that the court
erred in rendering judgment because the ‘‘continuing underground and above
ground activity on the plaintiff’s property’’ created a genuine issue of fact
as to whether the statute of limitations barred all of the plaintiff’s claims.
Id., 790.
In Fradianni, this court concluded that the trial court improperly ren-
dered summary judgment in favor of the defendant insurer where the plaintiff
had alleged that ‘‘each year the defendant charged him for a cost of insurance
that was in excess of the maximum amount allowed under the terms of
the contract and then deducted that excessive amount from the policy’s
accumulated cash value.’’ Fradianni v. Protective Life Ins. Co., supra, 145
Conn. App. 103. This court concluded that such claims alleged ‘‘separate
breaches by the defendant, several of which occurred within the statute of
limitations period.’’ Id.
9
This court, in R.A. Civitello Co. v. New Haven, 6 Conn. App. 212, 227,
504 A.2d 542 (1986), concluded that General Statutes (Rev. to 2005) § 52-
584a was solely a statute of repose. In 1986, the legislature amended § 52-
584a to remove the language relied upon by this court in R.A. Civitello Co.
‘‘[T]he language and the legislative history of [the 1986 amendments to § 52-
584a] indicate the legislature’s intent to overturn R.A. Civitello Co. and to
provide a seven year statute of limitations for certain actions against archi-
tects and engineers, rather than a two year statute of limitations coupled
with a seven year statute of repose.’’ Grigerik v. Sharpe, supra, 247 Conn. 304.
10
Attached to the plaintiff’s memorandum in support were the following
documents: (1) a document entitled ‘‘Guidelines for Determining Eligibility
of School Construction Projects for Status as Renovations as Defined in
P.A. 96-270,’’ (2) excerpts from the deposition of Joseph A. Novak, Jr., (3)
a copy of the report, (4) letters from Francis to the state, dated July 1, 1999,
and February 15, 2000, stating in part that ‘‘it is our professional opinion
that the proposed renovations will not compromise the structural integrity
of the original building and that it is adequate to provide for continued
occupancy for a period of time comparable to that of a new facility,’’ (5)
letters from Raso to the Windsor Public Schools and the state dated June
28, 1999, and June 30, 1999, stating in part ‘‘that the entire facility will be
in compliance with all applicable codes, and shall have a useful life compara-
ble to that of a new facility following the construction budget,’’ (6) a Power-
Point presentation dated September 28, 1998, stating that the ‘‘basic building
structure, walls, floors and roof are sound and in good condition,’’ (7) the
certificate of occupancy for the school issued December 21, 2004, (8)
excerpts from the deposition of Raso, (9) excerpts from the deposition of
Francis in which he testified that during ‘‘design and construction’’ he ‘‘went
back and took another look at’’ exposed structural elements that had pre-
viously been concealed, (10) fax memos from Francis to Munday dated April
20, 1998, February 17, 1999, and March 24, 1999, in which Francis noted he
was missing certain original structural drawings, one of which ‘‘especially
will be important to have,’’ and (11) excerpts from the deposition of Munday
in which he testified that he did not know ‘‘what other steps were taken’’
regarding evaluation of the auditorium roof structure after the report project
and that he could not recall what steps, if any, he took to locate the miss-
ing drawing.
11
In its brief, the plaintiff makes two allegations of negligence that it
contends occurred during the renovation project but ‘‘implicated the defen-
dants’ obligations under the first contract.’’ Specifically, the plaintiff alleged
that the defendants negligently ‘‘failed to follow the appropriate standard
of care in ensuring that existing elements within the high school were
brought into compliance with the State Building Code’’; and ‘‘gave advice
below the appropriate professional standard of care to the [plaintiff], to
whom it had a duty, in advising the renovation project would provide another
twenty years of life to the high school . . . and then failing to adequately
monitor the project to ensure the structure and renovations satisfied this
standard.’’ In light of when the report project concluded, i.e., no later than
2000, the defendants’ responsibilities under that project ended well before
July 14, 2004, which date marks seven years prior to the commencement
of this litigation.