Summary
concluding that "the letter was in the nature of an ‘agreement to agree,’ rather than an enforceable contract, because essential terms had yet to be agreed upon"
Summary of this case from GWG DLP Funding V, LLC v. PHL Variable Ins. Co.Opinion
AC 43291
11-09-2021
David SQUILLANTE et al. v. CAPITAL REGION DEVELOPMENT AUTHORITY
Steven J. Zakrzewski, Glastonbury, with whom, on the brief, was Matthew S. Carlone, Wethersfield, for the appellants (plaintiffs). Linda L. Morkan, Hartford, with whom was Benjamin C. Jensen, for the appellee (defendant).
Steven J. Zakrzewski, Glastonbury, with whom, on the brief, was Matthew S. Carlone, Wethersfield, for the appellants (plaintiffs).
Linda L. Morkan, Hartford, with whom was Benjamin C. Jensen, for the appellee (defendant).
Bright, C. J., and Elgo and Sheldon, Js.
SHELDON, J. The plaintiffs, David Squillante and DJS45, LLC, appeal from the judgment rendered by the trial court in favor of the defendant, Capital Region Development Authority, following the granting of the defendant's two motions for summary judgment challenging the plaintiffs’ right to prevail on all three counts of their operative complaint. On appeal, the plaintiffs claim that the court erred in granting the defendant's motions for summary judgment. We affirm the judgment of the trial court.
In this opinion, we refer to Squillante and DJS45, LLC, individually by name where necessary and collectively as the plaintiffs.
The record, viewed in the light most favorable to the plaintiffs for purposes of reviewing the trial court's summary judgment rulings; see Cefaratti v. Aranow , 321 Conn. 637, 641, 138 A.3d 837 (2016) ; reveals the following facts. Squillante is the sole member of DJS45, LLC, a limited liability company. The defendant is a quasi-municipal corporation created by statute. In 2011, DJS45, LLC, purchased a five-story commercial building located at 283-291 Asylum Street in Hartford. Squillante then renovated the ground floor of the building and eventually opened a restaurant on the premises. Beginning in early 2013, Squillante engaged in conversations with representatives of the defendant concerning the possibility of procuring financing for the renovation of residential apartment units on the upper floors of the building. These conversations eventually resulted in a letter from the defendant to Squillante dated May 10, 2013, setting out what is described as a "preliminary outline of general business terms of the potential project," which was "expressly subject to the completion of [a] due diligence investigation [by the defendant] including the provisions of necessary documents as outlined [in the letter] and the securing of complete financing for the [p]roject."
General Statutes § 32-602 (a) provides in relevant part: "The purpose of the Capital Region Development Authority shall be (1) to stimulate new investment within the capital region and provide support for multicultural destinations and the creation of a vibrant multidimensional downtown ...."
Over the next several months, representatives of the defendant and the plaintiffs worked together to finalize the deal. In December, 2013, the defendant's legal counsel sent the plaintiffs a "closing checklist" identifying all outstanding items that required resolution in order to finalize the deal. The following month, however, in an e-mail dated January 7, 2014, a representative of the defendant wrote to Squillante, stating: "[W]e have a variety of issues outstanding. I have attached the closing [checklist] for the project that was sent to your attorney in early December and little has been done to advance the items on the list. ... [W]e need to hasten the consummation of this deal. The funds are now very ‘old’ .... If we do not bring this to conclusion in the next [forty-five to sixty] days, I will have little choice but to [reallocate] the funds."
In an e-mail dated May 14, 2014, and again in a letter dated July 30, 2014, a representative of the defendant notified Squillante that its offer to provide funding for renovation of the building at 283-291 Asylum Street had expired due to the failure to timely resolve the outstanding requirements but that the plaintiffs could reapply for project funding at a future date. The plaintiffs commenced the present action on July 26, 2016, by serving the defendant with a three count complaint alleging breach of contract, promissory estoppel, and negligent misrepresentation. On October 23, 2017, the defendant filed its first motion for summary judgment, in which it asserted that it was entitled to judgment as a matter of law on the plaintiffs’ claim of breach of contract because the May 10, 2013 letter was merely an agreement to agree, not a legally enforceable contract. The defendant also asserted that it was entitled to judgment as a matter of law on the plaintiffs’ claim of promissory estoppel because it had never made a clear and definite promise to the plaintiffs that it would provide funding for the proposed project. Finally, the defendant alleged that the plaintiffs’ negligent misrepresentation claim was time barred because it was brought outside of the limitation period proscribed for such claims in General Statutes § 52-584.
On November 14, 2017, prior to filing an objection to the defendant's motion, the plaintiffs amended their complaint, resulting in what became the operative complaint, in order to clarify the allegations of their claims in light of the defendant's motion for summary judgment and to include additional facts they had learned through discovery. On January 2, 2018, the plaintiffs objected to the motion for summary judgment on the grounds that (1) material questions of fact existed as to their breach of contract claim, (2) the May 10, 2013 letter specified that a precondition to finalizing the parties’ agreement was the provision of either a personal guarantee " ‘or’ " a payment and performance bond, (3) their negligent misrepresentation claim was not time barred by § 52-584 because that statute does not apply to claims of negligence not resulting in personal injury, and (4) there was evidence that the defendant had made a misrepresentation concerning what was required to finalize the parties’ agreement by stating that the plaintiffs needed to provide either a guarantee " ‘or’ " a payment and performance bond. (Emphasis omitted.)
On July 18, 2018, the trial court, Noble , J ., granted the defendant's motion for summary judgment as to all three counts of the complaint. As for the plaintiffs’ breach of contract claim, the court concluded that there was no genuine issue of material fact that the May 10, 2013 letter, on which the plaintiffs relied, in part, to demonstrate the existence of a contractual duty, was not a legally enforceable contract. As for the plaintiffs’ claim of promissory estoppel, the court concluded that there was no genuine issue of material fact that the defendant had not made a clear and definite promise to loan the plaintiffs funding for the proposed project. The court initially granted the motion for summary judgment in favor of the defendant as to the negligent misrepresentation claim in count three, but it did so under the general tort statute of limitations, General Statutes § 52-577, not the separate statute applicable to negligence actions resulting in personal injury, § 52-584, which the defendant had invoked. Thereafter, by order dated August 21, 2018, the court vacated the entry of summary judgment on count three because the defendant had not pleaded that the claim was barred under § 52-577, the statute of limitations that was applicable to the plaintiffs’ claim. Subsequently, the defendant sought leave to amend its answer to include the special defense that the action was time barred under § 52-577.
On October 11, 2018, the defendant filed its second motion for summary judgment, which was directed only to count three and was accompanied by two affidavits. The defendant asserted in that second motion that the plaintiffs’ claim of negligent misrepresentation was time barred by § 52-577, that the continuing course of conduct doctrine did not apply to that claim, and that the plaintiffs could not establish the elements for a claim of negligent misrepresentation. On November 23, 2018, the plaintiffs filed an objection to the motion, with an affidavit by Squillante attached, asserting that the defendant knew or should have known that it had made false statements pertaining to the bonding requirement and that there were genuine issues of material fact as to whether the continuing course of conduct doctrine applied and, thus, tolled the statute of limitations. On March 15, 2019, the trial court issued a memorandum of decision granting the defendant's second motion for summary judgment on the plaintiffs’ claim of negligent misrepresentation. The court concluded that the plaintiffs had failed to establish a genuine issue of material fact with respect to the applicability of the continuing course of conduct doctrine and that the action was time barred under § 52-577.
The plaintiffs appeal from the judgment of the trial court rendered in favor of the defendant, following its granting of summary judgment on all three of the plaintiffs’ claims. Specifically, they argue that the court abused its discretion by granting the motions for summary judgment because there are multiple disputes of material fact as to each of the claims.
"Appellate review of the trial court's decision to grant summary judgment is plenary." (Internal quotation marks omitted.) Chelsea Groton Bank v. Belltown Sports, LLC , 199 Conn. App. 294, 299, 236 A.3d 265, cert. denied, 335 Conn. 960, 239 A.3d 318 (2020). After a careful review of the record, as well as the parties’ briefs and relevant law, we are convinced that the plaintiffs’ claims on appeal lack merit and, accordingly, that the trial court acted properly when it granted the defendant's two motions for summary judgment disposing of all three counts of the operative complaint. In granting the defendant's two motions for summary judgment, the trial court issued two thorough and well reasoned memoranda of decisions, both of which are proper statements of the facts, issues, and applicable law. See Squillante v. Capital Region Development Authority , Superior Court, judicial district of Hartford, Docket No. CV-16-6070594-S (July 18, 2018) (reprinted at ––– Conn. App. ––––, ––– A.3d ––––), vacated in part by court order, August 21, 2018; Squillante v. Capital Region Development Authority , Superior Court, judicial district of Hartford, Docket No. CV-16-6070594-S (March 15, 2019) (reprinted at ––– Conn. App. ––––, ––– A.3d ––––). We therefore adopt those memoranda of decision as proper statements of the relevant facts, issues, and applicable law, as it would serve no useful purpose for us to repeat the discussion contained therein. See Citizens Against Overhead Power Line Construction v. Connecticut Siting Council , 311 Conn. 259, 262, 86 A.3d 463 (2014) ; Ortiz v. Torres-Rodriguez , 205 Conn. App. 129, 132, 255 A.3d 941, cert. denied, 337 Conn. 910, 253 A.3d 43 (2021).
The judgment is affirmed.
In this opinion the other judges concurred. APPENDIX
DAVID SQUILLANTE ET AL. v. CAPITAL REGION DEVELOPMENT AUTHORITY
Affirmed. ––– Conn. App. ––––, ––– A.3d –––– (2021).
Superior Court, Judicial District of Hartford
File No. CV-16-6070594-S
Memorandum filed July 18, 2018
Proceedings
Memorandum of decision on defendant's motion for summary judgment. Motion granted .
Matthew S. Carlone , for the plaintiffs.
Benjamin C. Jensen , for the defendant. Opinion
NOBLE, J.
The question presented by the motion for summary judgment of the defendant, the Capital Region Development Authority (CRDA), is whether, in the absence of disputed material facts, CRDA is entitled to judgment as a matter of law on the breach of contract, promissory estoppel, and negligent misrepresentation claims asserted by the plaintiffs, David Squillante (Squillante) and DJS45, LLC (DJS45). The court finds that no enforceable agreement was created between the parties and holds that judgment should enter on all three claims in favor of CRDA.
FACTS
The following facts and procedural history are relevant to this decision. This action was commenced by service of process on CRDA on July 26, 2016. The operative complaint is the amended complaint dated November 14, 2017 (complaint), which asserts in three counts, respectively, claims of breach of contract, promissory estoppel, and negligent misrepresentation. Squillante is the sole member of DJS45, a limited liability company. CRDA is a quasi-municipal corporation created by statute, whose purpose is to "stimulate new investment within the capital region" and "encourage residential housing development." General Statutes § 32-602 (a) (1) and (3). Squillante formed DJS45, which thereafter purchased a five-story commercial building located at 283-291 Asylum Street in Hartford (property). Squillante opened a restaurant in the ground floor of the property and sought financing for the renovation and conversion of the upper four floors into residential apartments. Beginning in early 2013, Squillante engaged in conversations with representatives of CRDA about potential financing that resulted in the execution of a letter dated May 10, 2013 (letter). CRDA ultimately withdrew the offer to provide financing. The plaintiffs assert that the letter constitutes a binding contract, evinces a promise to provide financing upon which the plaintiffs reasonably relied, and contains misrepresentations upon which the plaintiffs relied to their detriment.
See General Statutes § 32-600 et seq.
DSJ45, LLC, a limited liability company of which Mr. Squillante is the sole member, is also a plaintiff in this case. Mr. Squillante and DSJ45, LLC, will be referred to collectively as the plaintiffs.
In particular, the letter provides that CRDA was "pleased to provide you with the terms and conditions under which CRDA will extend financial assistance for the conversion of 283-91 Asylum Street (the ‘Project’) into a mixed use residential project. The terms set forth below are intended to be a preliminary outline of general business terms of the potential project and are expressly subject to the completion of CRDA due diligence investigation including the provisions of necessary documents as outlined below and the securing of complete financing for the Project. This letter is not intended to create any legal liability for CRDA and is to serve as an explanation of assistance to be provided by CRDA." (Emphasis added.) The letter was signed by Squillante, on behalf of DJS45, and Michael Freimuth, executive director of the CRDA, on its behalf. The letter proposed a construction loan for an unspecified amount not more than $575,000 and then a permanent loan of an also unspecified amount, but no more than $518,000 for a twenty year term at 1.5 percent.
Several terms and various contingencies remained unresolved. Because CRDA was only funding a portion of the project, the amount that it would actually lend depended upon (a) the amount of funding DJS45 was able to secure from private lenders, and (b) the amount of state historic tax credits to be awarded. The letter specified that DJS45 "must present a final development budget and project application that will be incorporated into a formal Assistance Agreement between CRDA and Sponsor. Sponsor shall be responsible for the payment of all necessary and appropriate costs associated with this transaction, whether or not a closing takes place ...." The formal assistance agreement was never executed. Other terms were not identified by the letter, including dates for completion of any obligations. The letter provided that DJS45 "shall be responsible for any costs above the budget outlined in this letter to complete the Project in accordance with the plans and specifications finally approved by CRDA. [DJS45] will provide a guaranty or payment and performance bonds to the benefit of CRDA by a credit worthy entity approved by CRDA for the completion of the Project in a lien free state." While CRDA's board of directors had approved the terms and conditions of the letter, "such approval [was] contingent on the approval of the State of Connecticut Bond Commission. In the event that such approval is [not] obtained or any time CRDA determines in its discretion that such approval is not likely to be obtained with a reasonable period of time, CRDA may terminate this proposal." Finally, the letter informed DJS45 that, "[a]lthough not an exhaustive list, CRDA may request and [DJS45] shall provide the following: appraisals, title searches, covenants, insurance certificates, plans and specifications, evidence of financing, permits and approvals, contractor agreements, surveys, environmental clearance, final budget and final application."
The letter provided that "CRDA assistance is contingent on the Sponsor successfully securing permanent financing from other sources [in the amount of $1,055,000] to reduce the CRDA construction loan assistance and to fully fund the Project's costs." It also contemplated the award of a Connecticut Historic Tax credit in the amount of $195,131.
Counts one and two allege claims of breach of contract and promissory estoppel, respectively.
On June 21, 2013, the state of Connecticut bond commission (commission) voted to approve the allocation of up to $575,000 for the CRDA's proposed loan to DJS45. On September 17, 2013, CRDA sent DJS45 a template of the formal assistance agreement identified in the letter. Section 3.9 of the assistance agreement, titled "Payment and Performance Bond," provided that "[DJS45] shall provide CRDA with Payment and Performance Bonds with respect to each Contractor that enters into a Major Contract with [DJS45] ...." On December 4, 1993, CRDA sent DJS45 a "closing checklist" identifying various items that needed to be provided. Item 33 included bonds from the general contractor and the subcontractors.
Although the plaintiffs now assert that the requirement of performance and payment bonds, rather than simply a personal guarantee, was a material breach of the contract embodied in the letter, this claim is negated by communications between Freimuth and Squillante. On January 7, 2014, Freimuth wrote to Squillante in an e-mail that there were "a variety of issues outstanding. I have attached the closing check list for the project that was sent to your attorney in early December and little has been done to advance the items on the list. I hear that your contractor cannot get bonded which is a non-starter ...." The e-mail inquired about the timing-out of an initial lender agreement and the lack of a fully executed commitment from the permanent lender. Freimuth indicated that they needed to consummate the deal because the "funds are now very ‘old’ and pressure is on to return them for other deals. If we do not bring this to conclusion in the next [forty-five to sixty] days, I will have little choice but to reallocate the funds."
Squillante replied to CRDA on January 7, 2014, representing that "[t]here are no issues with any of your concerns .... Also my contractor can get bonding, he was just looking not to incur the expense." DJS45 never obtained the performance or payment bonds. On July 25, 2014, the commission voted to reallocate the proposed funding for the project and CRDA revoked its approval of the application without prejudice. This action followed. On October 23, 2017, CRDA filed its motion for summary judgment asserting that the letter was not a legally enforceable contract. Rather, in its view, the letter was an agreement to agree. Moreover, even if it was an enforceable agreement, the plaintiffs never performed because they never obtained permanent financing or provided performance bonds. CRDA asserts that it never made a clear and definite promise to the plaintiffs for a loan such that the second count asserting a promissory estoppel claim fails. Finally, the negligent misrepresentation claim fails, in the view of CRDA, because it was commenced outside of the limitation period provided by General Statutes § 52-584 and because CRDA did not make any misrepresentations.
The plaintiffs object on the grounds that material questions of fact exist as to whether the letter was intended to be a binding contract, and whether there was any breach thereof by CRDA. The second count sounding in promissory estoppel survives summary judgment, in the estimation of the plaintiffs, because the letter provided for a personal guarantee "or" a payment and performance bond. As to their negligent misrepresentation claim, the plaintiffs observe that § 52-584 is inapplicable here, and the misrepresentation in the present case is that of providing financing if the plaintiffs provided a guarantee "or" payment and performance bond.
LEGAL STANDARD
The legal standard governing summary judgment motions is well settled. "Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law .... The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried .... However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury ... the moving party for summary judgment is held to a strict standard ... of demonstrating his entitlement to summary judgment." (Citation omitted; footnote omitted; internal quotation marks omitted.) Grenier v. Commissioner of Transportation , 306 Conn. 523, 534-35, 51 A.3d 367 (2012). "Summary judgment may be granted where the claim is barred by the statute of limitations." Doty v. Mucci , 238 Conn. 800, 806, 679 A.2d 945 (1996). DISCUSSION
With the governing legal standard in mind, the court now addresses the breach of contract, promissory estoppel, and negligent misrepresentation claims in turn.
I
COUNT ONE: BREACH OF CONTRACT
The court finds that CRDA has established a lack of any genuine issue of material fact as to the absence of an enforceable agreement. Specifically, the letter provided merely the contours of a potential deal that might, when reduced to a subsequent writing, result in a binding contract. "The elements of a breach of contract claim are the formation of an agreement, performance by one party, breach of the agreement by the other party, and damages .... The interpretation of definitive contract language is a question of law ...." (Citation omitted; internal quotation marks omitted.) CCT Communications, Inc. v. Zone Telecom, Inc. , 327 Conn. 114, 133, 172 A.3d 1228 (2017). "A contract is not made so long as, in the contemplation of the parties, something remains to be done ...." (Internal quotation marks omitted.) Santos v. Massad-Zion Motor Sales Co. , 160 Conn. App. 12, 19, 123 A.3d 883, cert. denied, 319 Conn. 959, 125 A.3d 1013 (2015) ; see id. (lack of precise terms of confidentiality agreement to which parties agreed to integrate into settlement agreement, such as what information was protected, method of enforcement, and to whom settlement details could be disclosed, rendered settlement contract unenforceable). "So long as any essential matters are left open for further consideration, the contract is not complete." (Internal quotation marks omitted.) L & R Realty v. Connecticut National Bank , 53 Conn. App. 524, 535, 732 A.2d 181, (citing 17A Am. Jur. 2d, Contracts § 32 (1991) ), cert. denied, 250 Conn. 901, 734 A.2d 984 (1999) ; see L & R Realty v. Connecticut National Bank , supra, at 538, 732 A.2d 181 (agreement to subordinate loan which lacked terms and conditions was unenforceable). Where a writing is "no more than a statement of some of the essential features of a proposed contract and not a complete statement of all the essential terms," which terms require further development in an executed written contract, no enforceable agreement exists. Westbrook v. Times-Star Co. , 122 Conn. 473, 481, 191 A. 91 (1937). "Whether the parties intended legally to bind themselves prior to the execution of a formal contract is to be determined from (1) the language used, (2) the circumstances surrounding the transaction, and (3) the purpose that they sought to accomplish. ... A consideration of these factors enables a court to determine if the informal contract ... is enforceable or merely an intention to negotiate a contract in the future." (Citation omitted.) Fowler v. Weiss , 15 Conn. App. 690, 693, 546 A.2d 321, cert. denied, 209 Conn. 814, 550 A.2d 1082 (1988).
"Under established principles of contract law, an agreement must be definite and certain as to its terms and requirements." (Internal quotation marks omitted.) Perricone v. Perricone , 292 Conn. 187, 223, 972 A.2d 666 (2009). "[N]umerous Connecticut cases require definite agreement on the essential terms" in order to render the agreement enforceable. Willow Funding Co., L.P. v. Grencom Associates , 63 Conn. App. 832, 845, 779 A.2d 174 (2001). Whether a term is essential turns "on the particular circumstances of each case." Id. Clearly, an essential term is one without which a party would not have entered into an agreement. See, e.g., Hawley Avenue Associates, LLC v. Robert D. Russo, M.D. & Associates Radiology, P.C. , 130 Conn. App. 823, 830-31, 25 A.3d 707 (2011) (no enforceable lease/contract where no agreement on precise location and shape of parking area and party would not have signed lease because dimensions were integral part of decision to enter into agreement). In WiFiLand, LLP v. Hudson , 153 Conn. App. 87, 107, 100 A.3d 450 (2014), an alleged settlement agreement between an internet service provider and its customers resolving a breach of contract action was held unenforceable where a confidentiality provision was an essential component of the agreement and the parties had failed to agree to the terms of the confidentiality provision. Similarly, a promise indicating an intent to make a future employment contract, absent an agreement on the material terms of employment, is not binding as a contract regardless of the promisor's partial performance. Geary v. Wentworth Laboratories, Inc. , 60 Conn. App. 622, 628, 760 A.2d 969 (2000).
In accordance with these principles, the court considers the first Fowler factor and concludes that the letter was in the nature of an "agreement to agree," rather than an enforceable contract, because essential terms had yet to be agreed upon. The letter was self-described as "a preliminary outline of general business terms of the potential project and are expressly subject to the completion of CRDA due diligence investigation including the provisions of necessary documents as outlined below and the securing of complete financing for the Project. This letter is not intended to create any legal liability for CRDA and is to serve as an explanation of assistance to be provided by CRDA." (Emphasis added.) By its very language, it identified itself as merely setting out the framework of a future contract, the formal assistance agreement, whose terms were yet to be agreed upon. These terms include the contents of the final development budget and the project application that were to be incorporated in the assistance agreement as well as the unidentified terms of the assistance agreement. Additionally, the letter contemplated final approval by CRDA of as yet undrafted "plans and specifications." Finally, CRDA provided a nonexhaustive list of additional agreements, the terms of which were not specified, that the plaintiffs would be required to provide, including but not limited to "covenants" and "contractor agreements." The dispositive case law compels the conclusion that these yet to be determined agreements and terms renders the letter unenforceable as an "agreement to agree."
The plaintiffs suggest that Connecticut Parking Services, LLC v. Hartford Parking Authority , Superior Court, judicial district of Hartford, Docket No. CV-11-6018221-S, 2013 WL 1800434 (April 2, 2013), provides the court with an example of contract language that articulated an intent not to create a contractual obligation, which was ultimately found by the court to present questions of fact upon which summary judgment was denied. The reliance on this case is misplaced. In Connecticut Parking Services, LLC , language in a request for proposal that the parties would "enter into negotiations, which may ultimately lead to a contract " was raised by the defendant as an indication that the request for proposal was not an enforceable contract document. (Emphasis in original; internal quotation marks omitted.) Id. The court denied summary judgment in favor of the defendant on the grounds that the language had to be considered in the context of other language specifying that the terms in the request for proposal, in combination with other documents, represented the contract documents. Id. This case may be distinguished because a final agreement, to which the request for proposal was attached, was actually reached. In the present case it is undisputed that a formal assistance agreement between CRDA and DJS45 was never consummated.
The court therefore grants summary judgment to CRDA on the first count of the complaint because the defendant has established the absence of material facts relative to the lack of essential terms, making the letter unenforceable.
II
COUNT TWO: PROMISSORY ESTOPPEL
The defendant also claims entitlement to summary judgment on the second count, which asserts liability against the CRDA for promissory estoppel. "[U]nder the doctrine of promissory estoppel [a] promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. ... A fundamental element of promissory estoppel, therefore, is the existence of a clear and definite promise which a promisor could reasonably have expected to induce reliance." (Internal quotation marks omitted.) McClancy v. Bank of America, N.A. , 176 Conn. App. 408, 415, 168 A.3d 658, cert. denied, 327 Conn. 975, 174 A.3d 195 (2017). "Under our [well established] law, any claim of estoppel is predicated on proof of two essential elements: the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief; and the other party must change its position in reliance on those facts, thereby incurring some injury. ... It is fundamental that a person who claims an estoppel must show that he has exercised due diligence to know the truth, and that he not only did not know the true state of things but also lacked any reasonably available means of acquiring knowledge." (Internal quotation marks omitted.) Chotkowski v. State , 240 Conn. 246, 268, 690 A.2d 368 (1997).
The promise which the plaintiffs seek to enforce is none other than the act of extending a loan in an amount in excess of $500,000. The letter, however, premised the financing on a number of contingencies which, in the aggregate, rendered the promise to loan $500,000 or more tentative, rather than definite. These included CRDA's due diligence investigation, agreement of the terms, execution of a formal assistance agreement, the plaintiffs’ obtaining permanent financing, and the execution of other unspecified documents. Simply put, there was no definite promise to loan the plaintiffs over $500,000, and, accordingly, summary judgment as to this claim is appropriate.
The plaintiffs assert that the promise upon which they relied was for the extension of the loan upon the provision of either a guarantee or a payment and performance bond. In the plaintiffs’ view, the later insistence by CRDA on an onerous payment and performance bond for each of [their] contractors from an insurance company with a Best Rating of A- VII or, alternatively, that each of the plaintiffs’ contractors provide the same is different from what was indicated in the letter, which provided for a guarantee preferred by the plaintiffs "or" a performance and payment bond, works an injustice and caused them injury. This ignores that this was only one of many contingencies that were required to be met before a loan was made. Moreover, the letter employed the disjunctive "or" between the two possibilities of the provision of a guarantee and a payment and performance bond without articulating which of the parties were permitted to elect the manner in which CRDA would be assured of the completion of the project in a lien free state. There is nothing in the record before the court which demonstrates that the plaintiffs exercised any diligence to determine the truth of which or lacked any reasonably available means of acquiring this knowledge. See Chotkowski v. State , supra, 240 Conn. at 268, 690 A.2d 368. Summary judgment is therefore granted as to the second count.
The plaintiffs’ November 14, 2017 amended complaint added the heretofore not included allegations that the defendant failed to provide the plaintiffs with necessary information in a commercially reasonable time including the form agreements until September, 2013, and the closing checklist until December, 2013, including the additional condition of the type of bonding required. These new allegations implicate only the manner in which CRDA's later conduct deviated from the original promise sought to be enforced and do not affect the analysis herein.
III
COUNT THREE: NEGLIGENT MISREPRESENTATION
The last theory of liability upon which summary judgment is sought is that contained in the third count of negligent misrepresentation. The elements of an action for negligent misrepresentation are "(1) that the defendant made a misrepresentation of fact (2) that the defendant knew or should have known was false, and (3) that the plaintiff reasonably relied on the misrepresentation, and (4) suffered pecuniary harm as a result." (Internal quotation marks omitted.) Coppola Construction Co. v. Hoffman Enterprises Ltd. Partnership , 309 Conn. 342, 351-52, 71 A.3d 480 (2013).
CRDA asserts that the plaintiffs’ action is barred by the statute of limitations. The following additional information is required [for a] discussion of this argument. The CRDA's motion for summary judgment was filed on October 23, 2017, and raised the bar of the statute of limitations. On November 14, 2017, the plaintiffs filed a request for leave to amend the complaint pursuant to Practice Book § 10-60(a) (3) and alleged that the plaintiffs would be required to obtain payment and performance bonds for each of [their] contractors from an insurance company licensed to do business in Connecticut with a " ‘Best Rating of A- VII’ " or, in the alternative, each of the plaintiffs’ contract[or]s would be required to obtain similar bonding. The defendant is alleged to have failed to provide the plaintiffs with the necessary information in a commercially reasonable time, including form agreements and closing checklist when it had a duty to disclose the material facts within a commercially reasonable time after the plaintiffs’ receipt of the letter. Thereafter, on March 5, 2018, the plaintiffs amended their first special defense to ... allege that the applicable statute of limitations is tolled by the course of conduct doctrine.
In the plaintiffs’ view, the applicable statute is § 52-584, which applies to negligence actions seeking damages for injury to the person or real or personal property. Section 52-584 contains both a discovery and repose limitation wherein applicable actions are barred two years from the date of discovery of injury but in no event more than three years from the act or omission complained of. The [defendant] claim[s], and the court agrees, that, to the contrary, the applicable statute of limitations is that of General Statutes § 52-577, which provides that: "[n]o action founded upon a tort shall be brought but within three years from the date of the act or omission complained of." The court is mindful that, in Lombard v. Edward J. Peters, Jr., P.C. , 79 Conn. App. 290, 830 A.2d 346 (2003), the Appellate Court held that a claim of negligent misrepresentation was subject to the limitations contained in § 52-584. The dispositive issue for the Lombard court, however, was that the "plaintiffs’ claim is predicated on injury to their personal property caused by negligence ...." Id., at 299, 830 A.2d 346. In the present case, however, the plaintiffs’ negligent misrepresentation claim asserts economic loss rather than injury to person, real property or personal property.
General Statutes § 52-584 provides: "No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct, or by malpractice of a physician, surgeon, dentist, podiatrist, chiropractor, hospital or sanatorium, shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of ...."
This court aligns itself with that body of case law that holds that the dispositive issue relative to which of the two statutes applies is the nature of the injury claimed. See, e.g., Teal Associates, LLC v. Alfin , Superior Court, judicial district of Hartford, Complex Litigation Docket, Docket No. X04-CV-12-6028814-S, 2014 WL 5137975 (September 5, 2014) ( § 52-584 applies only to actions to recover damages for injury to person or property); Evans v. Province , Docket No. CV-07-600855, 2008 WL 3916445 (Conn. Super. August 4, 2008) ( Lombard ’s holding is limited to claims of negligent misrepresentation that allege injuries to either person or property). The applicable limitation period is thus the three year period contained in § 52-577.
Section 52-577 is an occurrence statute which runs from the date of the defendant's conduct, not the date that the plaintiff first discovered the injury. See Watts v. Chittenden , 301 Conn. 575, 583, 22 A.3d 1214 (2011). The date of the defendant's conduct is May 10, 2013, the date of issue of the letter. According to the return of service contained in the court's file the action was commenced on July 26, 2016. The commencement of the action was thus more than three years from the act complained of, to wit, the misrepresentations contained in the letter.
An action is commenced when the writ of process is served on the defendant. Rocco v. Garrison , 268 Conn. 541, 549, 848 A.2d 352 (2004). Courts may take judicial notice of the contents of their files. In re Jeisean M. , 270 Conn. 382, 402, 852 A.2d 643 (2004).
The plaintiffs, however, assert that the limitation period is tolled by the continuing conduct doctrine as alleged in their special defense. Moreover, the plaintiffs remark that "the defendant, which of course has the burden of proving the absence of any issue of material fact, completely fails to address the continuing course of conduct doctrine, and accordingly summary judgment should be denied." Entry No. 147, p. 3. The plaintiffs, who presumably relied on the CRDA's lack of argument as to the continuing course of conduct doctrine, themselves provided no analysis of why the limitations should be extended by the doctrine.
The plaintiffs misapprehend the nature of the shifting burden attendant to the tolling of [a] statute of limitations. "Typically, in the context of a motion for summary judgment based on a statute of limitations special defense, a defendant ... meets its initial burden of showing the absence of a genuine issue of material fact by demonstrating that the action had commenced outside of the statutory limitation period. ... Then, if the plaintiff claims the benefit of a provision that operates to extend the limitation period, the burden ... shifts to the plaintiff to establish a disputed issue of material fact in avoidance of the statute. ... In these circumstances, it is incumbent upon the party opposing summary judgment to establish a factual predicate from which it can be determined, as a matter of law, that a genuine issue of material fact [as to the timeliness of the action] exists." (Citations omitted; internal quotation marks omitted.) Doe v. West Hartford , 328 Conn. 172, 192, 177 A.3d 1128 (2018). Thus, the burden to rebut the statutory limitations bar shifts to the plaintiff to demonstrate an issue of fact. This they have declined to do. Although the court need not consider an argument neither argued nor briefed; see Hoenig v. Lubetkin , 137 Conn. 516, 524, 79 A.2d 278 (1951) ; it will address the assertion of tolling by the continuing conduct doctrine.
In evaluating the continuing course of conduct doctrine in the context of a summary judgment motion the court must determine whether there is a genuine issue of material fact with respect to whether "the defendant: (1) committed an initial wrong upon the plaintiff; (2) owed a continuing duty to the plaintiff that was related to the alleged original wrong; and (3) continually breached that duty." (Internal quotation marks omitted.) Flannery v. Singer Asset Finance Co., LLC , 312 Conn. 286, 313, 94 A.3d 553 (2014), citing Witt v. St. Vincent's Medical Center , 252 Conn. 363, 370, 746 A.2d 753 (2000). As the plaintiffs assiduously point out in their briefing, the nature of the third count is a claim for negligent misrepresentation. See Entry No. 147, p. 5. The court notes that a violation of a duty to disclose is not asserted. Moreover, the plaintiffs provide no authority for the proposition that an actor, having made a negligent misrepresentation, has a continuing duty to correct the misrepresentation. There is, for example, no claim of the existence of a special relationship between the plaintiffs and the CRDA such that a fiduciary duty existed. Glazer v. Dress Barn, Inc. , 274 Conn. 33, 86, 873 A.2d 929 (2005). Moreover, the plaintiffs have not directed the court's attention to any conduct that constituted a continual breach of a duty to make accurate representations of fact—such as repetition over time of the misrepresentation. See Teal Associates, LLC v. Alfin , supra, Superior Court, Docket No. X04-CV-12-6028814-S (series of misrepresentations tolled statute of limitations). The court concludes that no genuine issue of material fact exists with respect to the bar of the limitations imposed by § 52-577 and grants summary judgment as to the third count. IV
CONCLUSION
For the foregoing reasons summary judgment is granted in favor of the defendant, CRDA, on all three counts of the plaintiffs’ complaint.
APPENDIX
DAVID SQUILLANTE ET AL. v. CAPITAL REGION DEVELOPMENT AUTHORITY*
Superior Court, Judicial District of Hartford
File No. CV-16-6070594-S
Memorandum filed March 15, 2019
Proceedings
Memorandum of decision on defendant's motion for summary judgment. Motion granted .
Matthew S. Carlone , for the plaintiffs.
Benjamin C. Jensen , for the defendant. Opinion
NOBLE, J.
Before the court is the motion of the defendant, Capital Region Development Authority (CRDA), for summary judgment as to the single remaining count for negligent misrepresentation on the grounds that (1) the statute of limitations has expired; and (2) there is no genuine issue of material fact as to the plaintiffs’ inability to establish the elements of negligent misrepresentation. For the following reasons the court grants the motion for summary judgment on the former ground. FACTS
This action arises out of a series of communications between the plaintiff David Squillante and the defendant, CRDA, regarding potential financing for a housing development project located at 283-291 Asylum Street in Hartford.1 This action was commenced by service of process on CRDA on July 26, 2016. The operative complaint is the three count amended complaint, dated November 14, 2017. In count three, which is the only count at issue, the plaintiffs allege a negligent misrepresentation claim.2
Specifically, the plaintiffs allege that, after several conversations, the parties executed a letter dated May 10, 2013 (letter), in which CRDA agreed to provide financing for the project if the plaintiffs complied with the terms and conditions outlined therein. One such condition allegedly misrepresented that the plaintiffs would be required to provide a guarantee "or" payment and performance bonds, when, at all times, CRDA actually required a guarantee "and" payment and performance bonds. In addition, the plaintiffs allege that, in communications subsequent to the letter, CRDA failed to provide certain necessary information, including form agreements, a closing checklist, and that it required a payment and performance bond for each of the plaintiffs’ contractors from an insurance company licensed to do business in Connecticut with a " ‘Best Rating of A-, VII.’ " According to the plaintiffs: (1) CRDA had a duty to disclose these material facts within a commercially reasonable time after receipt of the letter; (2) they reasonably relied on CRDA's misrepresentation and omissions; (3) CRDA knew its representation was false and that the plaintiffs were acting in reliance on it; and (4) they suffered financial damages as a result.
On October 23, 2017, CRDA filed a motion for summary judgment. By order dated July 18, 2018, summary judgment was granted as to each count. Familiarity with the facts recited therein and the decision are presumed. See Squillante v. Capital Region Development Authority , Superior Court, judicial district of Hartford, Docket No. CV-16-6070594-S (July 18, 2018). With regard to count three, this court determined that the claim was time barred by the applicable statute of limitations, General Statutes § 52-577. By order dated August 21, 2018, the entry of summary judgment as to count three was vacated on the basis that CRDA did not plead that the claim was time barred under § 52-577, but rather pleaded that it was time barred under General Statutes § 52-584. See Mac's Car City, Inc. v. DeNigris , 18 Conn. App. 525, 529, 559 A.2d 712 (error for court to grant summary judgment based on § 52-577 where statute not raised in pleadings), cert. denied, 212 Conn. 807, 563 A.2d 1356 (1989). CRDA amended its answer to include the defense that the action was time barred under § 52-577.
On October 11, 2018, CRDA filed a second motion for summary judgment as to count three on the grounds that the claim is time barred under § 52-577 and the plaintiffs cannot establish the elements of negligent misrepresentation. CRDA filed a memorandum of law in support of the motion and affidavits by Michael Freimuth, the executive director of CRDA, and Benjamin Jensen, the attorney representing CRDA in this action. On November 23, 2018, the plaintiffs filed an objection to the motion, which incorporated the facts set forth in their memorandum in opposition to CRDA's first motion for summary judgment, along with excerpts from the depositions of Mr. Freimuth, Mr. Squillante, and Richard Polivy, the plaintiffs’ expert. CRDA subsequently filed a reply memorandum on November 30, 2018.
STANDARD
The legal standard governing summary judgment motions is well settled. "Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ... The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried. ... However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury ... the moving party for summary judgment is held to a strict standard ... of demonstrating his entitlement to summary judgment." (Citation omitted; footnote omitted; internal quotation marks omitted.) Grenier v. Commissioner of Transportation , 306 Conn. 523, 534-35, 51 A.3d 367 (2012).
"Summary judgment may be granted where the claim is barred by the statute of limitations." Doty v. Mucci , 238 Conn. 800, 806, 679 A.2d 945 (1996). "Typically, in the context of a motion for summary judgment based on a statute of limitations special defense, a defendant ... meets its initial burden of showing the absence of a genuine issue of material fact by demonstrating that the action had commenced outside of the statutory limitation period. ... Then, if the plaintiff claims the benefit of a provision that operates to extend the limitation period, the burden ... shifts to the plaintiff to establish a disputed issue of material fact in avoidance of the statute. ... In these circumstances, it is incumbent upon the party opposing summary judgment to establish a factual predicate from which it can be determined, as a matter of law, that a genuine issue of material fact [as to the timeliness of the action] exists." (Citations omitted; internal quotation marks omitted). Doe v. West Hartford , 328 Conn. 172, 192, 177 A.3d 1128 (2018).
DISCUSSION
CRDA argues that count three is time barred, pursuant to § 52-577, because the sole alleged misrepresentation appeared in a letter dated May 10, 2013, and the plaintiffs commenced the present action on July 26, 2016 (i.e., more than three years later). In response, the plaintiffs argue that the statute of limitations was tolled pursuant to the continuing course of conduct doctrine. Specifically, the plaintiffs claim that, in communications subsequent to the letter, including two e-mails that CRDA sent on June 10, 2013, and September 17, 2013, CRDA misrepresented the requisite conditions of financing and failed to disclose certain material facts, such as that the plaintiffs would need to procure a payment and performance bond for each contractor from an insurance company with a " ‘Best Rating of A-, VII.’ "
Section 52-577 provides: "[n]o action founded upon a tort shall be brought but within three years from the date of the act or omission complained of." Because this is an occurrence statute, the limitation period runs from the date of the defendant's conduct, not the date when the plaintiff first discovers his injury. See Flannery v. Singer Asset Finance Co., LLC , 312 Conn. 286, 311, 94 A.3d 553 (2014). Moreover, as previously mentioned, "[w]hen the plaintiff asserts that the [limitation] period has been tolled by an equitable exception to the statute of limitations, the burden normally shifts to the plaintiff to establish a disputed issue of material fact in avoidance of the statute." (Internal quotation marks omitted.) Iacurci v. Sax , 313 Conn. 786, 799, 99 A.3d 1145 (2014). The continuing course of conduct doctrine is one such equitable exception that, if applicable, will toll the statute of limitations until the course of conduct is completed. See Flannery v. Singer Asset Finance Co., LLC , supra, at 311, 94 A.3d 553.
In evaluating the continuing course of conduct doctrine in the context of a summary judgment motion, the court must determine whether there is "a genuine issue of material fact with respect to whether the defendant: (1) committed an initial wrong upon the plaintiff; (2) owed a continuing duty to the plaintiff that was related to the alleged original wrong; and (3) continually breached that duty." (Internal quotation marks omitted.) Id., at 313, 94 A.3d 553. "Where ... [the court has] upheld a finding that a duty continued to exist after the cessation of the act or omission relied upon, there has been evidence of either a special relationship between the parties giving rise to such a continuing duty or some later wrongful conduct of a defendant related to the prior act." (Internal quotation marks omitted.) Id., at 312, 94 A.3d 553.
In the present case, the alleged initial wrong is that the May 10, 2013 letter from CRDA to the plaintiffs contained a misrepresentation and material omission related to the conditions of financing. To wit, it stated that the plaintiffs would be required to provide a guarantee "or" payment and performance bonds, when they would actually be required to provide a guarantee "and" payment and performance bonds for each contractor from an insurance company with a " ‘Best Rating of A-, VII.’ " As to the continuing duty prong, the plaintiffs argue that: (1) CRDA engaged in later wrongful conduct related to the initial wrong when, in subsequent communications between the parties, it allegedly made material misrepresentations concerning the conditions of financing, and failed to disclose, until December 4, 2013, that the plaintiffs would need to procure a payment and performance bond for each contractor from an insurance company with a " ‘Best Rating of A-, VII’ "; and (2) the relationship between the parties, the customs of the trade or other objective circumstances were such that the plaintiffs would reasonably expect CRDA to fully disclose the conditions of financing before December 4, 2013.
A. Later Wrongful Conduct Related to the Prior Act
With regard to the plaintiffs’ later wrongful conduct argument, they specifically point to two e-mails that CRDA sent on June 10, 2013, and September 17, 2013. Because the former is still outside of the applicable three year statute of limitations, this court need not address its content. Moreover, the September 17, 2013 e-mail cannot serve as a basis for applying the continuing course of conduct doctrine because it does not reflect any wrongful conduct on the part of CRDA. That is, contrary to the plaintiffs’ contention, the e-mail does not contain a material misrepresentation with regard to the financing conditions. In fact, the e-mail explicitly notifies the plaintiffs that it expects that the list of contracts/commitment letters that the plaintiffs identified as necessary to provide to CRDA before closing "will be expanded." Moreover, in another e-mail sent to the plaintiffs on the same day (i.e., September 17, 2013), CRDA attached a template of the formal assistance agreement mentioned in the May 10, 2013 letter. Section 3.9 of that template, titled "Payment and Performance Bond," put the plaintiffs on notice that "[DSJ45] shall provide CRDA with Payment and Performance Bonds with respect to each Contractor that enters into a Major Contract with [DSJ45] ...." (Entry No. 172, Freimuth Affidavit at pp. 12, 21). In addition, the plaintiffs have failed to demonstrate that CRDA violated a duty to disclose by not notifying the plaintiffs, until December 4, 2013, that the requisite payment and performance bonds for each contractor needed to be from an insurance company with a " ‘Best Rating of A-, VII.’ " 3 Restatement (Second), Torts, Liability for Nondisclosure § 551 (2) (e), p. 119 (1977) provides: "[o]ne party to a business transaction is under a duty ... to disclose to the other before the transaction is consummated ... facts basic to the transaction, if he knows that the other is about to enter into it under a mistake as to them, and that the other, because of the relationship between them, the customs of the trade or other objective circumstances, would reasonably expect a disclosure of those facts." There are at least three reasons why this section does not apply to the present case and, therefore, cannot satisfy the second prong of the continuing course of conduct doctrine.
The fact that the template did not disclose that the requisite payment and performance bonds would need to be from an insurance company with a " ‘Best Rating of A-, VII’ " does not constitute a fraudulent nondisclosure because there is no indication in the record that CRDA knew of this fact and deliberately withheld it from the plaintiffs, with the intention or expectation to cause a mistake in order to induce the plaintiffs into the transaction. See Wedig v. Brinster , 1 Conn. App. 123, 130-31, 469 A.2d 783 (1983) ("[O]nce a vendor [assumes] to speak, he must make a full and fair disclosure as to the matters about which he assumes to speak. He must then avoid a deliberate nondisclosure. ... [T]he nondisclosure must be by a person intending or expecting thereby to cause a mistake by another to exist or to continue, in order to induce the latter to enter into or refrain from entering into a transaction." (Citations omitted; internal quotation marks omitted.)), cert. denied, 192 Conn. 803, 472 A.2d 1284 (1984).
First, the rating of the insurance company that was to provide the payment and performance bonds cannot be fairly construed as a fact "basic to the transaction" because it is not a significant enough aspect of the transaction. See 3 Restatement (Second), supra, § 551 (2) (e), comment (j), p. 123 ("A basic fact is a fact that is assumed by the parties as a basis for the transaction itself. It is a fact that goes to the basis, or essence, of the transaction, and is an important part of ... what is bargained for or dealt with. Other facts may serve as important and persuasive inducements to enter into the transaction, but not go to its essence. These facts may be material, but they are not basic."). Second, the plaintiffs have failed to establish that there is a question of material fact that CRDA knew that the plaintiffs were about to enter into the transaction under a mistaken belief as to the bond requirement. As the plaintiffs’ own exhibit submitted in opposition to the subject motion for summary judgment reveals, Mr. Freimuth made the assumption that the plaintiffs’ construction budget included the price of obtaining an acceptable payment and performance bond. (Entry No. 178, Freimuth Dep. at pp. 67-68). See 3 Restatement (Second), supra, § 551 (2) (e), comment (k), p. 124 ("when the defendant has no reason to think that the plaintiff is acting under a misapprehension, there is no obligation to give aid to a bargaining antagonist ... and if the plaintiff ... does not have access to adequate information, the defendant is under no obligation to make good his deficiencies"); see also id., comment (l ), p. 125 ("[i]n general, the cases in which the rule stated in Clause (e) has been applied have been those in which the advantage taken of the plaintiff's ignorance is so shocking to the ethical sense of the community, and is so extreme and unfair, as to amount to a form of swindling, in which the plaintiff is led by appearances into a bargain that is a trap, of whose essence and substance he is unaware").
Third, according to the plain language of 3 Restatement (Second), supra, § 551 (2), the time frame for communicating information that requires disclosure under this section is "before the transaction is consummated." Id., 119. Here, as this court previously determined, an enforceable agreement was never consummated. As such, even assuming arguendo that CRDA had a duty to disclose all of the details of the requisite payment and performance bonds, they did so on December 4, 2013, which was before the transaction was consummated. Thus, in the September 17, 2013 e-mail that the plaintiffs point to, CRDA did not engage in any wrongful conduct related to the initial wrong that would warrant application of the continu[ing] course of conduct doctrine and toll the applicable statute of limitations.
B. Special Relationship
The plaintiffs have also failed to establish that there was a special relationship between the parties that could give rise to a continuing duty on the part of CRDA to tell the plaintiffs, prior to December 4, 2013, that they would be required to provide payment and performance bonds for each contractor from an insurance company with a " ‘Best Rating of A-, VII.’ " With regard to the meaning of "special relationship" in the context of the continuing course of conduct doctrine, the Appellate Court has analyzed the question in terms of whether a fiduciary or confidential relationship existed between the parties. See Carson v. Allianz Life Ins. Co. of North America , 184 Conn. App. 318, 331-32, 194 A.3d 1214 (2018), cert. denied, 331 Conn. 924, 207 A.3d 27 (2019). "[A] fiduciary or confidential relationship is characterized by a unique degree of trust and confidence between the parties, one of whom has superior knowledge, skill or expertise and is under a duty to represent the interests of the other. ... [N]ot all business relationships implicate the duty of a fiduciary. ... In particular instances, certain relationships, as a matter of law, do not impose upon either party the duty of a fiduciary." (Internal quotation marks omitted.) Id., at 331, 194 A.3d 1214, quoting Macomber v. Travelers Property & Casualty Corp. , 261 Conn. 620, 640, 804 A.2d 180 (2002).
In Carson v. Allianz Life Ins. Co. of North America , supra, 184 Conn. App. at 331-32, 194 A.3d 1214, the court held that the continuing course of conduct doctrine did not apply to toll the applicable statute of limitations because "[t]he plaintiff failed to offer contrary authority that her relationship with the defendant [life insurance company] was anything more than a commercial transaction. Nor did she proffer evidence of a unique degree of trust and confidence between the plaintiff and the defendant akin to a fiduciary or special relationship." Similarly, here, the facts indicate that the relationship between the parties was commercial in nature, in that they were negotiating a business transaction, at arm's length, whereby CRDA would loan the plaintiffs a portion of the financing necessary for their housing development project. Moreover, the plaintiffs have not provided evidence of a unique degree of trust and confidence between the parties akin to a fiduciary relationship, nor that CRDA was under a duty to represent the plaintiffs’ interests.
To the extent that the plaintiffs argue that the parties’ relationship was akin to that of partners, they have not provided authority for the proposition, nor sufficient evidence to conclude that the parties had entered an informal partnership, known as a joint venture. See Censor v. ASC Technologies of Connecticut, LLC , 900 F. Supp. 2d 181, 201 (D. Conn. 2012) ("[t]o constitute a joint venture, courts in Connecticut prescribe a five part test that requires that (1) two or more persons must enter into a specific agreement to carry on an enterprise for profit, (2) an agreement must evidence their intent to be joint venturers, (3) each must contribute property, financing, skill, knowledge or effort, (4) each must have some degree of joint control over the venture, and (5) there must be a provision for the sharing of both profits and losses").
Furthermore, the Supreme Court in this state has made clear that a buyer-seller relationship is not a "special relationship" that gives rise to a legal duty to disclose any deception related to the transaction. See Flannery v. Singer Asset Finance Co., LLC , supra, 312 Conn. at 313, 94 A.3d 553 ("the defendant and the plaintiff stood in relation of buyer and seller and, as such, there was no special relationship between them that imposed upon the defendant a duty to disclose to the plaintiff any deception attendant to the transaction"); see also Fichera v. Mine Hill Corp. , 207 Conn. 204, 210, 541 A.2d 472 (1988) ("We are aware of no authority holding that the perpetrator of a fraud involving merely a vendor-vendee relationship has a legal duty to disclose his deceit after its occurrence and that the breach of that duty will toll the statute of limitations. Such a [contractual] relationship does not give rise to obligations equivalent to those of a fiduciary."); Harte Nissan, Inc. v. Market Scan Information , Docket No. CV-99-0268959-S, 2003 WL 352948, *6 (Conn. Super. January 17, 2003) ("the act of entering into an agreement for the purchase of computer equipment and software does not, by itself, create the type of special relationship necessary for the [continuing course of conduct] doctrine to apply"). Likewise, the Supreme Court has held that parties negotiating an acquisition and financing agreement do not have a "special relationship" that would give rise to a fiduciary duty to timely disclose all information regarding the transaction. Glazer v. Dress Barn, Inc. , 274 Conn. 33, 85-86, 873 A.2d 929 (2005). These precedents further support the conclusion that there was no special relationship between the parties here that could give rise to a continuing duty to disclose all information pertaining to the payment and performance bond prior to December 4, 2013.
Thus, the plaintiffs have failed to establish a genuine issue of material fact with regard to the applicability of the continuing course of conduct doctrine and the court concludes that the action is barred by § 52-577. Consequently, in light of this conclusion, the substantive issues concerning the count need not be addressed by this court. For the foregoing reasons the court grants the defendant's motion for summary judgment.
* Affirmed. ––– Conn. App. ––––, ––– A.3d –––– (2021).