Canner v. Governor's Ridge Assn., Inc. ( 2022 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
GLEN A. CANNER, EXECUTOR (ESTATE OF
CHARLES A. CANNER) v. GOVERNOR’S
RIDGE ASSOCIATION, INC., ET AL.
(AC 42981)
LOUIS D. PUTERI v. GOVERNOR’S RIDGE
ASSOCIATION, INC., ET AL.
(AC 42982)
Prescott, Suarez and DiPentima, Js.
Syllabus
In two separate actions, each plaintiff appealed from the decision of the trial
court concluding that all of his claims, including, inter alia, negligence,
against the defendants, including G Co., were time barred by the applica-
ble statute of limitations. Each plaintiff was the owner of a condominium
unit in G Co.’s common interest community, and each plaintiff alleged
various claims against the defendants, seeking damages and an order
directing the defendants to repair the foundation of the condominium
unit and any damage to that unit resulting from certain problems with
the foundation and settling after construction. Following a hearing, the
court rendered judgment in favor of the defendants in each case, and
each plaintiff filed a separate appeal to this court. Held:
1. The trial court properly concluded that the plaintiff C’s claims against G Co.
brought pursuant to the applicable provision (§ 47-278) of the Common
Interest Ownership Act (CIOA) (§ 47-200 et seq.) were barred by the
three year tort statute of limitations codified in statute (§ 52-577).
a. The trial court correctly determined that C’s claims seeking to enforce
a right granted or obligation imposed by the CIOA, or by the declaration
or the bylaws of the common interest community did not sound in
contract and that § 52-577 was the appropriate statute of limitations:
C’s claims sounded in tort, as the CIOA creates a statutory duty on a
condominium association to maintain, repair, and replace the common
elements, and C alleged that G Co. failed, neglected, and refused to
maintain its common elements, failed to promptly repair its common
elements, and failed to promptly take responsibility for and deal with
problems related to common elements in violation of the CIOA; more-
over, the claims did not sound in breach of contract because the provi-
sions of G Co.’s governing documents relied on by C did not create a
contractual obligation on the part of G Co. to maintain, repair, and/or
replace the foundation for the unit but, rather, they made clear that the
contractual obligation for G Co. to repair and replace the common
elements was contingent on areas of the common interest community
for which insurance was required, and it was clear that foundations
were excluded areas for purposes of insurance.
b. The trial court’s factual findings and legal conclusions were sufficiently
supported by the record and were not clearly erroneous: because § 52-
577 is a statute of repose, and not a true statute of limitations, the time
period within which a plaintiff must commence an action begins to run
at the moment the act or omission complained of occurs, and C explicitly
described the original wrong as G Co.’s allowing the units to be built
on soft ground, such that the closing date, which was the day on which
C came into possession of the unit with an allegedly defective foundation,
was the date on which the statute of repose period began to run, and
C commenced his action beyond the period of time in § 52-577; moreover,
the court properly concluded that the doctrine of equitable estoppel did
not preclude G Co. from asserting its statute of limitations defense, as,
although C asserted that he relied on G Co.’s alleged representations
that it would repair the foundation, reliance alone was insufficient to
sustain the burden of proof for the imposition of equitable estoppel,
and the court explicitly found that the evidence established that C did
not exercise due diligence that would have uncovered the alleged initial
conduct and that there was simply no evidence that, during the applica-
ble limitation period, G Co., by its conduct or otherwise, did anything
to induce C to refrain from filing suit.
c. This court declined to review C’s claim that the trial court improperly
concluded that his nuisance claims were barred by the statute of limita-
tions: C’s claim that the trial court erred in ruling that the nuisance
alleged was permanent as opposed to temporary without having the
benefit of expert testimony was inadequately briefed; moreover, C’s
claim that the court erred in ruling that the nuisance alleged was perma-
nent as opposed to temporary without affording C an opportunity to
present expert testimony was not properly preserved for appellate
review, as a review of the record revealed that C did not seek to introduce
expert testimony at any time before or during the limited evidentiary
hearing and did not raise any issue about expert witness testimony in
his motion to reargue and/or to correct the judgment.
2. For the same legal reasons that C’s claims failed, the plaintiff P’s claims
failed as well, and, even though the underlying facts differed slightly
between the appeals, P’s briefing on appeal was almost identical to that
of C.
Argued March 11, 2021—officially released February 15, 2022
Procedural History
Action, in each case, for, inter alia, negligence, and
for other relief, brought to the Superior Court in the
judicial district of Fairfield, and transferred to the judi-
cial district of Waterbury, Complex Litigation Docket,
where the cases were tried to the court, Lager, J.; judg-
ment in each case for the defendants, from which the
plaintiff in each case filed an appeal to this court.
Affirmed.
Glen A. Canner, for the appellant in Docket Nos. AC
42981 and AC 42982 (plaintiff in each case).
Timothy M. Gondek, for the appellee in Docket Nos.
AC 42981 and AC 42982 (named defendant).
Deborah Etlinger, with whom, on the brief, was Erin
Canalia, for the appellees in Docket Nos. AC 42981
and AC 42982 (defendants South Meadow Develop-
ment, LLC, Glenn Tatangelo, and Anthony O. Lucera).
Adam J. DiFulvio, with whom, on the brief, was
Thomas R. Gerarde, for the appellees in Docket Nos.
AC 42981 and AC 42982 (defendants Town of Trumbull
and Donald G. Murray).
Donald W. Doeg, with whom, on the brief, was Mat-
thew K. Stiles, for the appellees in Docket Nos. AC
42981 and AC 42982 (defendants Adeeb Consulting,
LLC, and Kareem Adeeb).
Opinion
SUAREZ, J. These appeals arise from a dispute con-
cerning the foundations of two condominium units
located in the Governor’s Ridge common interest com-
munity in Trumbull.1 In Docket No. AC 42981 (first
appeal), the plaintiff, Glen A. Canner (Canner), in his
capacity as executor of the estate of Charles A. Canner,2
appeals from the judgment of the trial court in favor
of the defendants, Governor’s Ridge Association, Inc.
(Governor’s Ridge); South Meadow Development, LLC
(South Meadow), Glenn Tatangelo, and Anthony O. Luc-
era (South Meadow defendants); the town of Trumbull
and Donald G. Murray (town defendants); and Adeeb
Consulting, LLC (Adeeb Consulting) and Kareem Adeeb
(Adeeb defendants),3 after the court concluded that
each count alleged against the defendants was time
barred by the applicable statute of limitations. On
appeal, Canner claims that the court improperly con-
cluded that (1) his claim against Governor’s Ridge
brought pursuant to General Statutes § 47-278 is time
barred by the statute of limitations period set forth in
General Statutes § 52-577, and (2) his nuisance claims
are time barred by the statute of limitations codified
in either § 52-577 or General Statutes § 52-584.
In Docket No. AC 42982 (second appeal), the plaintiff,
Louis D. Puteri, similarly appeals from the judgment of
the trial court in favor of the defendants after the court
concluded that each count alleged against the defen-
dants was time barred by the applicable statute of limi-
tations. On appeal, Puteri claims that the court erred
for the same reasons Canner asserts in his appeal. We
disagree with the plaintiffs and, accordingly, affirm the
judgments of the court.
I
AC 42981
The first appeal involves property located at 220
Fitch’s Pass, a condominium unit located in the Gover-
nor’s Ridge common interest community in Trumbull
(220 Unit). We begin by setting forth the procedural
history of this case as well as the relevant facts that were
found by the trial court or are otherwise undisputed.
In 2000, Governor’s Ridge applied to the Trumbull
Planning and Zoning Commission (planning and zoning
commission) to construct thirty-six detached units con-
stituting phase II of the Governor’s Ridge common inter-
est community. The 220 Unit was a part of this phase.
A hearing was held on the application on November
27, 2000, and, on January 10, 2001, the planning and
zoning commission issued a special permit to Gover-
nor’s Ridge to construct the units. The permit stated:
‘‘A report shall be submitted to the Building Official
which specifies the depth of the peat, where it begins
and stops, the proposed method of remediation, the
the pilings for each individual unit; the report shall
be permanently retained at the Trumbull Town Hall.’’
Although the planning and zoning commission’s special
permit contained provisions related to foundation con-
struction in light of certain soil conditions, the Trumbull
Building Department (building department) ultimately
retained jurisdiction over how the foundations were
constructed and whether to issue a certificate of occu-
pancy for the particular units.
On June 27, 2001, Governor’s Ridge sold the phase
II development rights to South Meadow, which had
been formed by Tatangelo and Lucera. According to
Tatangelo, South Meadow was aware at the time that
the soil conditions at the phase II location presented
certain challenges. As a result, South Meadow hired
Adeeb Consulting on June 13, 2001, for limited engi-
neering services concerning the design of the founda-
tions. Kareem Adeeb, a geotechnical and structural
engineer, concluded that a piling system for phase II
foundations would not be viable. Accordingly, Adeeb
designed a foundation system using geo-fabric, footings,
and grade beams to ‘‘tie all foundation elements
together and increase the rigidity of the foundation
system’’ in order ‘‘to decrease, if not eliminate, the
chance that differential settlement will take place.’’4
Because the soil conditions were different for each
unit’s location, Adeeb addressed each unit separately
by making borings, designing a foundation for each
condominium unit, and performing site visits. The build-
ing department ultimately approved Adeeb’s design and
inspected each foundation to determine, inter alia,
whether the geo-fabric was properly installed and the
footings were properly designed.
On July 27, 2001, South Meadow issued a public offer-
ing statement for phase II. The statement included,
among other things, architectural drawings for the vari-
ous phase II unit models. The drawings showed that
the foundations would be built with concrete walls and
footings, not with piles. On December 28, 2001, Canner,
on behalf of his parents, Charles A. Canner (Charles)
and Doris L. Canner (Doris), sent South Meadow’s attor-
ney a signed contract with a purchaser’s rider and a
deposit check for the purchase of the 220 Unit. On
January 16, 2002, after making borings at the site, Adeeb
Consulting issued a report concerning the construction
of the unit’s foundation. That same day, a building
department official issued a building permit that did
not require that the foundation for the unit be built
on piles.
While construction was in progress, Donald G. Mur-
ray, a building department official, issued a certificate
of occupancy for the 220 Unit—the final act of the
building department’s involvement with the 220 Unit.
As of the date the certificate was issued, construction
was substantially complete. On April 30, 2002, Charles
and Doris closed on the purchase of the 220 Unit.
Although not within his jurisdiction, Paul Kallmeyer,
the Trumbull Director of Public Works and Town Engi-
neer, decided to monitor certain phase II units for settle-
ment.5 There was no directive from the town to do so.
Between November 26, 2003, and September 30, 2008,
the Trumbull engineering department went to the 220
Unit to take certain measurements, which Charles later
received. Although the town maintained extensive doc-
umentation about phase II, Canner was not aware if
his father had made any effort to obtain town records
between 2003 and 2008.
In 2011, pursuant to a power of attorney, Canner took
steps to put the unit on the market, including preparing
a residential property condition form, which identified
‘‘[m]inor settling problem several years ago’’ with
respect to the foundations and basement but indicated
the settling had been repaired and there had been no
problems since that time. The 220 Unit was put on the
market on March 27, 2011, but it did not sell. On May
10, 2011, the real estate agent marketing the 220 Unit
sent Canner an e-mail discussing a prospective buyer’s
concern ‘‘about the very dramatic slope in the floors—
from the basement up to the second floor.’’ Canner
testified that he did not notice any settlement during
the period of time when the unit was on the market,
but he also testified that by May 10, 2011, he was aware
of a slope in the unit’s floors and that by March 27,
2011, Charles had given him the chart containing the
2003 to 2008 engineering measurements.
In June, 2012, Governor’s Ridge hired Fuller Engi-
neering & Land Surveying, LLC, to monitor settling at
the 220 Unit, in addition to several other units. On
February 15, 2013, Canner hired Peter Seirup, a profes-
sional engineer, of Home Directions, Inc., to inspect
the unit. Seirup’s home inspection report took into
account, in part, ‘‘a table of settlement data taken from
2003 to 2008 . . . .’’ This presumably was the engi-
neering assessment data that Charles possessed. The
report stated that ‘‘building settlement occurs most dra-
matically in the beginning, then trails off.’’ On or around
April 26, 2013, Canner sent this report to the property
manager for Governor’s Ridge and also went to Trum-
bull Town Hall to talk to town officials. Between that
date and January 10, 2016, Canner continued to commu-
nicate with Governor’s Ridge and the property manager
to try to address the unit’s settlement. During the same
time period, and particularly from 2013 through 2015,
minutes of Governor’s Ridge board meetings reflect
ongoing discussions and actions related to settlement
at the 220 Unit.
Doris died on December 11, 2012, and Charles on
December 12, 2015. Canner, as the executor of Charles’
estate, commenced this action against all the defen-
dants on February 11, 2016, seeking damages and an
order directing the defendants to repair the foundation
and any damages to the unit resulting from the condition
of the foundation. The sixth amended complaint, which
is the operative complaint, contains, inter alia, counts
against the defendants alleging negligence, nuisance,
fraud, fraudulent misrepresentation, breach of contract,
and violations of the Common Interest Ownership Act
(CIOA), General Statutes § 47-200 et seq.
The defendants raised numerous special defenses in
their respective answers to the operative complaint.
The court ordered, with the consent of all parties, an
evidentiary hearing limited to the statute of limitations
defenses and the matters raised in avoidance of the
statutes of limitations.6 On November 8 and 9, 2018, the
court held an evidentiary hearing to determine which
statute of limitations applied to each count, and
whether those statutes time barred the plaintiff’s claims
against the defendants. Posthearing briefing was com-
pleted by February 28, 2019.
On May 7, 2019, the court issued a memorandum of
decision in which it concluded that each count against
the defendants was time barred by the applicable stat-
ute of limitations and, thus, rendered judgment in favor
of the defendants. On May 24, 2019, Canner, pursuant
to ‘‘Practice Book § 11-11 and/or § 11-12,’’ filed a
‘‘motion to reargue and/or correct judgment.’’7 On the
same date, Canner appealed to this court.
A
Canner’s principal argument on appeal is that the
court improperly concluded that his claim against Gov-
ernor’s Ridge that he brought pursuant to § 47-278,
count one of the operative complaint, was barred by
the three year tort statute of limitations codified in
§ 52-577. In his view, his claim is contractual in nature
because the legal duties alleged to have been breached
stemmed from Governor’s Ridge’s governing docu-
ments (common interest declaration, bylaws, and hand-
book)8 and, accordingly, the six year statute of limita-
tions set forth in General Statutes § 52-5769 is the
appropriate limitation period.10 We disagree.
‘‘The determination of which statute of limitations
applies to a given action is a question of law over which
our review is plenary.’’ Vaccaro v. Shell Beach Condo-
minium, Inc., 169 Conn. App. 21, 29, 148 A.3d 1123(2016), cert. denied, 324 Conn. 917, 154 A.3d 1008(2017). Furthermore, to the extent that we must inter-
pret the parties’ pleadings, our review also is plenary.
See Byrne v. Avery Center for Obstetrics & Gynecology,
P.C., 314 Conn. 433, 462, 102 A.3d 32 (2014).
Because § 47-278, which authorizes a cause of action
‘‘to enforce a right granted or obligation imposed by
[the CIOA], the declaration or the bylaws’’; General
Statutes § 47-278 (a); does not include an express stat-
ute of limitations period, we must decide which statute
of limitations period is applicable to the present claim.
‘‘Public policy generally supports the limitation of a
cause of action in order to grant some degree of cer-
tainty to litigants. . . . The purpose of [a] statute of
limitation[s] . . . is . . . to (1) prevent the unex-
pected enforcement of stale and fraudulent claims by
allowing persons after the lapse of a reasonable time,
to plan their affairs with a reasonable degree of cer-
tainty, free from the disruptive burden of protracted
and unknown potential liability, and (2) to aid in the
search for truth that may be impaired by the loss of
evidence, whether by death or disappearance of wit-
nesses, fading memories, disappearance of documents
or otherwise. . . . Therefore, when a statute includes
no express statute of limitations, we should not simply
assume that there is no limitation period. Instead, we
borrow the most suitable statute of limitations on the
basis of the nature of the cause of action or of the
right sued upon.’’ (Emphasis omitted; internal quotation
marks omitted.) Bouchard v. State Employees Retire-
ment Commission, 328 Conn. 345, 359–60, 178 A.3d
1023 (2018), quoting Bellemare v. Wachovia Mortgage
Corp., 284 Conn. 193, 199, 931 A.2d 916 (2007).
Generally, ‘‘[w]hether [a] plaintiff’s cause of action
is one for [tort or contract] depends upon the definition
of [those terms] and the allegations of the complaint.’’
(Internal quotation marks omitted.) Meyers v. Living-
ston, Adler, Pulda, Meiklejohn & Kelly, P.C., 311 Conn.
282, 291, 87 A.3d 534 (2014). ‘‘[T]he fundamental differ-
ence between tort and contract lies in the nature of the
interests protected. . . . The duties of conduct which
give rise to [a tort action] are imposed by the law,
and are based primarily upon social policy, and not
necessarily upon the will or intention of the parties.
. . . [W]hen a plaintiff seeks to recover damages for
the breach of a statutory duty, such an action sounds
in tort. See, e.g., Curtis v. Loether, 415 U.S. 189, 195,
94 S. Ct. 1005, 39 L. Ed. 2d 260 (1974) (damages action
pursuant to statute sounds in tort because it defines
new legal duty and authorizes courts to compensate
plaintiff for injury caused by defendant’s wrongful
breach of duty); Federal Deposit Ins. Corp. v. Citizens
Bank & Trust Co., 592 F.2d 364, 368–69 (7th Cir.) (liabil-
ity for breach of duty imposed by statute sounds in
tort), cert. denied, 444 U.S. 829, 100 S. Ct. 56, 62 L.
Ed. 2d 37 (1979).’’ (Citation omitted; internal quotation
marks omitted.) Bellemare v. Wachovia Mortgage
Corp., supra, 284 Conn. 200.
‘‘On the other hand, [c]ontract actions are created
to protect the interest in having promises performed.
Contract obligations are imposed because of [the] con-
duct of the parties manifesting consent, and are owed
only to the specific individuals named in the contract.
. . . In short, [a]n action in contract is for the breach
of a duty arising out of a contract; an action in tort is for
a breach of duty imposed by law.’’ (Citations omitted;
internal quotation marks omitted.) Id.‘‘[I]t is well established that . . . [s]ome complaints
state a cause of action in both contract and tort. . . .
[O]ne cannot bring an action [under both theories, how-
ever] merely by couching a claim that one has breached
a standard of care in the language of contract. . . .
[T]ort claims cloaked in contractual language are, as a
matter of law, not breach of contract claims. . . . To
ensure that plaintiffs do not attempt to convert [tort]
claims into breach of contract claims by talismanically
invoking contract language in [the] complaint . . .
reviewing courts may pierce the pleading veil by looking
beyond the language used in the complaint to determine
the true basis of the claim.’’ (Citations omitted; internal
quotation marks omitted.) Meyers v. Livingston, Adler,
Pulda, Meiklejohn & Kelly, P.C., supra, 311 Conn. 290–
91.
Here, our plenary review leads us to conclude that
Canner’s count one claim sounds in tort. General Stat-
utes § 47-249 creates a statutory duty on an association
to maintain, repair, and replace the common elements,
‘‘[e]xcept to the extent provided by the declaration,
subsection (b) of this section or subsection (h) of sec-
tion 47-255 . . . .’’ Canner’s claim alleges that Gover-
nor’s Ridge ‘‘failed, neglected, and refused to maintain
its common elements,’’ ‘‘failed to promptly repair its
common elements,’’ and ‘‘failed to promptly take
responsibility for and deal with problems related to
common elements’’ in violation of the CIOA. Therefore,
we conclude that this claim sounds in tort. See
Bellemare v. Wachovia Mortgage Corp., supra, 284
Conn. 200 (‘‘when a plaintiff seeks to recover damages
for the breach of a statutory duty, such an action sounds
in tort’’).
We must now turn to the question of whether the
present action also sounds in contract. We conclude
that it does not. By way of background, Canner filed
his sixth amended complaint on September 20, 2017,
alleging in count one that Governor’s Ridge ‘‘failed,
neglected, and refused to maintain its common ele-
ments,’’ ‘‘failed to promptly repair its common ele-
ments,’’ and ‘‘failed to promptly take responsibility for
and deal with problems related to common elements’’
in violation of § 47-249. There was no reference at this
time to any contractual obligation codified in the decla-
ration or any specific provision of the declaration that
allegedly had been breached by Governor’s Ridge.
The special defenses filed by Governor’s Ridge on
October 20, 2017, put Canner on notice that his claim
was time barred by the statute of limitations in § 52-
577. He accordingly amended count one of his sixth
amended complaint to allege that Governor’s Ridge vio-
lated §§ 2.6 (a) and 23.1 of the declaration11 and § 5.2
(b) of the bylaws,12 in addition to violating the CIOA.13
We conclude, however, that these amendments were
insufficient to transform this claim into one sounding
in breach of contract. See Meyers v. Livingston, Adler,
Pulda, Meiklejohn & Kelly, P.C., supra, 311 Conn. 290.
This is because the provisions of the governing docu-
ments relied on by Canner do not create a contractual
obligation on the part of Governor’s Ridge to maintain,
repair, and/or replace the foundation for the 220 Unit.
Like many common interest declarations, the Gover-
nor’s Ridge declaration addresses the manner in which
it will repair and replace its common elements. Section
23.1 of the declaration provides in relevant part that
‘‘[a]ny portion of the Common Interest Community for
which insurance is required under Article XXII which
is damaged or destroyed shall be repaired or replaced
promptly by the Association . . . .’’ Article XXII, sec-
tion 22.1, titled ‘‘Maintaining Insurance,’’ provides:
‘‘Commencing not later than the time of the first convey-
ance of a Unit to a person other than a Declarant,
the Association shall obtain and maintain insurance
required by the Act and the Declaration to the extent
reasonably available.’’ Section 2.1 defines ‘‘Act’’ as
‘‘[t]he Common Interest Ownership Act, Public Act 83-
474, Connecticut General Statutes . . . § 47-200, et
seq., Chapter 828 of the Connecticut General Statutes,
as it may be amended from time to time.’’ Additionally,
§ 22.2, titled ‘‘Physical Damage,’’ provides in relevant
part: ‘‘The Association shall maintain Property insur-
ance on the Common Elements insuring against all risks
of direct physical loss commonly insured against.’’
Because the relevant language of § 22.1 references
‘‘insurance required by the Act,’’ we turn to the CIOA
to help discern the provision’s meaning. See Morales
v. PenTec, Inc., 57 Conn. App. 419, 438, 749 A.2d 47(2000) (‘‘[w]hen parties execute a contract that clearly
refers to another document, there is an intent to make
the terms and conditions of the other document a part
of their agreement, as long as both parties are aware
of the terms and conditions of the second document’’).
General Statutes § 47-255 (a) provides in relevant part:
‘‘[T]he association shall maintain, to the extent reason-
ably available and subject to reasonable deductibles:
(1) Property insurance on the common elements . . .
insuring against those risks of direct physical loss com-
monly insured against . . . exclusive of land, excava-
tions, foundations and other items normally excluded
from property policies . . . .’’ (Emphasis added.) The
language of the statute makes clear that insurance for
foundations need not be maintained.
In light of the foregoing, we have little difficulty con-
cluding that the language of the declaration (and provi-
sions of the bylaws and handbook) relied upon by Can-
ner does not create a contractual obligation for
Governor’s Ridge to maintain, repair, and/or replace
the foundation at the 220 Unit.14 Rather, the governing
documents make clear that the contractual obligation
for Governor’s Ridge to repair and replace the common
interest community is contingent on areas for which
insurance is required under Article XXII of the declara-
tion. Because it is clear that foundations are excluded
areas for purposes of insurance; see General Statutes
§ 47-255 (a); there was no corresponding duty to main-
tain, repair, and/or replace the foundation at issue.
Accordingly, we conclude that the court correctly deter-
mined that Canner’s claim did not sound in contract
and, thus, § 52-577 was the appropriate statute of limita-
tions.
B
In conjunction with his initial statute of limitations
argument, Canner makes numerous subclaims, many
of which are predicated on his unsuccessful contention
that the six year statute of limitations period in § 52-576
is the applicable limitation period. More specifically,
Canner argues that the court erred in finding that the
statute of limitations for his claim pursuant to § 47-278
started to run on April 30, 2002, when Charles and Doris
purchased the unit. He argues that the claim did not
‘‘accrue’’ in 2002, and that any statute of limitations
‘‘did not start running until 2016.’’ He also argues that
the court erred by concluding that Governor’s Ridge
was not estopped from asserting its statute of limita-
tions defense. We disagree.
‘‘The question of whether a party’s claim is barred
by the statute of limitations is a question of law, which
this court reviews de novo. . . . The factual findings
that underpin that question of law, however, will not
be disturbed unless shown to be clearly erroneous.’’
(Citation omitted; internal quotation marks omitted.)
Jarvis v. Lieder, 117 Conn. App. 129, 146, 978 A.2d 106(2009). ‘‘The party claiming estoppel . . . has the bur-
den of proof. . . . Whether that burden has been met
is a question of fact that will not be overturned unless
it is clearly erroneous.’’ (Internal quotation marks omit-
ted.) Li v. Yaggi, 185 Conn. App. 691, 711–12, 198 A.3d
123 (2018). ‘‘A court’s determination is clearly errone-
ous only in cases in which the record contains no evi-
dence to support it, or in cases in which there is evi-
dence, but the reviewing court is left with the definite
and firm conviction that a mistake has been made. . . .
The legal conclusions of the trial court will stand, how-
ever, only if they are legally and logically correct and
are consistent with the facts of the case.’’ (Internal
quotation marks omitted.) Blackwell v. Mahmood, 120
Conn. App. 690, 694, 992 A.2d 1219 (2010).
Canner’s first subclaim requires little discussion
because his argument of accrual is misplaced for a
fundamental reason—§ 52-577 is a statute of repose,
not a true statute of limitations. See State v. Lombardo
Bros. Mason Contractors, 307 Conn. 412, 416 n.2, 54
A.3d 1005 (2012) (‘‘[w]hile statutes of limitation are
sometimes called statutes of repose, the former bars
[a] right of action unless it is filed within a specified
period of time after [an] injury occurs, [whereas] stat-
ute[s] of repose [terminate] any right of action after a
specific time has elapsed, regardless of whether there
has as yet been an injury’’ (internal quotation marks
omitted)).
Section 52-577, the applicable statute, provides: ‘‘No
action founded upon a tort shall be brought but within
three years from the date of the act or omission com-
plained of.’’ (Emphasis added.) As this court has
observed, ‘‘[§] 52-577 is an occurrence statute, meaning
that the time period within which a plaintiff must com-
mence an action begins to run at the moment the act
or omission complained of occurs.’’ (Internal quotation
marks omitted.) Pagan v. Gonzalez, 113 Conn. App.
135, 139, 965 A.2d 582 (2009). For that reason, ‘‘[w]hen
conducting an analysis under § 52-577, the only facts
material to the trial court’s decision . . . are the date
of the wrongful conduct alleged in the complaint and
the date the action was filed.’’ (Internal quotation marks
omitted.) Id. As our Supreme Court has explained, ‘‘the
history of [the] legislative choice of language [contained
in § 52-577] precludes any construction thereof delaying
the start of the limitation period until the cause of action
has accrued or the injury has occurred.’’ Fichera v.
Mine Hill Corp., 207 Conn. 204, 212, 541 A.2d 472 (1988).
Both before this court and the trial court, Canner
explicitly described the original wrong as Governor’s
Ridge’s allowing the 220 Unit to be built on soft ground.
The operative complaint also contains allegations that,
prior to constructing the unit, Governor’s Ridge knew
that there were issues with the soil on the property
where the unit is located, and that there existed a risk
that settling could occur if condominium units were
built on that property. We agree with the court’s finding
that the closing date of April 30, 2002, which was the
day on which Charles and Doris came into possession
of the 220 Unit and the allegedly defective foundation,
was the date on which the statute of repose period
began to run. This was the point latest in time the
construction of the allegedly defective foundation
occurred and is when Charles and Doris officially
became unit owners and could bring an action pursuant
to the law. Accordingly, we conclude that the court’s
factual findings and legal conclusions are sufficiently
supported by the record, and therefore are not clearly
erroneous.
Turning to Canner’s next subclaim related to his stat-
ute of limitations argument—namely, that the court
improperly concluded that Governor’s Ridge was not
estopped from asserting its statute of limitations
defense—we conclude that this claim is similarly
unavailing. He argues that the court improperly rejected
his assertion that Governor’s Ridge should be estopped
from asserting its statute of limitations defense because
it allegedly acknowledged that the foundation is a com-
mon element, that it was responsible for the settling
that occurred, and that it intended to repair the founda-
tion. He further argues that he relied on those represen-
tations, and that his reliance ‘‘prevented [him] from
selling [the 220 Unit] for eight years.’’ Governor’s Ridge
argues that there is no evidence that Charles, Doris, or
Canner were ever dissuaded from pursuing a legal claim
against it or that it prevented them from obtaining infor-
mation related to a potential claim. We agree with Gov-
ernor’s Ridge.
A claim of estoppel requires proof of two essential
elements: (1) ‘‘[T]he 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 (2) ‘‘the other
party must change its position in reliance on those facts,
thereby incurring some injury.’’ (Internal quotation
marks omitted.) TD Bank, N.A. v. Salce, 175 Conn. App.
757, 767, 169 A.3d 317 (2017). ‘‘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.) Id.Here, Canner’s argument centers on the assertion
that Canner and his parents relied on Governor’s Ridge’s
alleged representations that it would repair the founda-
tion. Reliance alone, however, is insufficient to sustain
his burden of proof for the imposition of equitable
estoppel. See Celentano v. Oaks Condominium Assn.,
265 Conn. 579, 614–15, 830 A.2d 164 (2003).
This claim is essentially factual in nature. In rejecting
the estoppel argument asserted by Canner, the court
explicitly found that the evidence ‘‘overwhelming[ly]
establishe[d]’’ that Charles, Doris, and Canner did not
exercise due diligence that would have uncovered the
alleged initial conduct. Similarly, the court found that
there was simply no evidence that, during the applicable
limitation period, Governor’s Ridge, by its conduct or
otherwise, did anything to induce them to refrain from
filing suit. As the court aptly noted, the public offering
statement made clear that the 220 Unit was to be con-
structed without piles and was available well before
Canner, on behalf of his parents, sent South Meadow’s
attorney a signed contract for the unit. Moreover, there
were numerous public documents available at the build-
ing department well before the unit was purchased.
For example, one report from a professional engineer
questioned Adeeb’s foundation design and opined that
it created a ‘‘risk of some long-term settlement and
structural distress.’’ On the basis of our review of the
record, we conclude that the court’s factual findings
are not clearly erroneous and that the court properly
interpreted and applied the law to its findings of facts.
The court properly concluded that the doctrine of equi-
table estoppel did not preclude Governor’s Ridge from
asserting its statute of limitations defense.15
C
Canner’s final claim is that the court improperly con-
cluded that his nuisance claims are barred by the statute
of limitations codified in either § 52-577 or § 52-584.16
He breaks his claim into two parts. Specifically, he
argues that the court erred in finding that the alleged
nuisance is permanent as opposed to temporary without
(1) hearing expert testimony on the subject, and (2)
affording him an opportunity to present expert testi-
mony. The defendants argue that we should decline to
review this claim because it is inadequately briefed and
because Canner failed to raise or preserve it before the
court. Upon our review of the record, we agree with
the defendants and conclude that the first part of his
claim is inadequately briefed and the second part is
unpreserved. Accordingly, we decline to review this
claim.
With respect to the first part of his claim, Canner
appears to argue that the court, as a matter of law,
erred in ruling that the nuisance alleged was permanent
as opposed to temporary without benefit of expert testi-
mony. He states in general terms that ‘‘[e]xpert testi-
mony is required if the question involved goes beyond
the field of ordinary knowledge and experience of
judges and jurors,’’ and cites two cases in support of
this principle. He appears to argue that the court based
its finding that the nuisance could not be abated on
the testimony of Kevin Moore, the former president of
Governor’s Ridge, who was not an engineer or a ‘‘design
professional.’’ He then summarily states that ‘‘[w]hether
or not [the 220 Unit’s] foundation and settling problems
can be abated is a matter for . . . expert testimony.’’
He does not, however, cite any case law for this con-
tention, provide relevant citations to the record, or pro-
vide analysis of the issue. As we explained previously,
‘‘[w]e are not required to review issues that have been
improperly presented to this court through an inade-
quate brief. . . . Analysis, rather than [mere] abstract
assertion, is required in order to avoid abandoning an
issue by failure to brief the issue properly. . . . We do
not reverse the judgment of a trial court on the basis
of challenges to its rulings that have not been adequately
briefed.’’ (Internal quotation marks omitted.) Starboard
Fairfield Development, LLC v. Gremp, 195 Conn. App.
21, 31, 223 A.3d 75 (2019). Accordingly, we decline to
reach the merits of the first part of his claim.
The second part of Canner’s claim fares no better.
‘‘It is well established that an appellate court is under
no obligation to consider a claim that is not distinctly
raised at the trial level.’’ (Internal quotation marks omit-
ted.) McMahon v. Middletown, 181 Conn. App. 68, 76,
186 A.3d 58 (2018); see also Practice Book § 60-5. ‘‘The
requirement that [a] claim be raised distinctly means
that it must be so stated as to bring to the attention of
the court the precise matter on which its decision is
being asked. . . . The reason for the rule is obvious:
to permit a party to raise a claim on appeal that has
not been raised at trial—after it is too late for the trial
court or the opposing party to address the claim—
would encourage trial by ambuscade, which is unfair to
both the trial court and the opposing party.’’ (Citations
omitted; emphasis in original; internal quotation marks
omitted.) McMahon v. Middletown, supra, 76.
In the present case, Canner points us to the court’s
limited scheduling order, which required that ‘‘fact wit-
ness depositions related to issues regarding the statute
of limitations’’ be completed by a certain date. Relying
on this order, he contends that the court’s procedures
for the limited hearing on November 8 and 9, 2018,
provided only for fact witnesses, not experts. He
asserts, without support from the record, that the court
indicated that the advantage of calling only fact wit-
nesses was so the parties could avoid the expense of
expert disclosure and depositions at that stage of litiga-
tion. Governor’s Ridge argues that the court’s limited
scheduling order does not ‘‘reference or preclude the
disclosure of expert witnesses.’’ It points to the fact
that the court twice modified the limited scheduling
order and that the two prior versions of the order stated
that ‘‘[t]he scope of the deposition may be expanded
by agreement of all counsel.’’ On August 16, 2018, the
court held a hearing status conference. Governor’s
Ridge further argues that ‘‘the plaintiff did not identify
any expert witnesses he wished to call during [that]
status conference,’’ and that he ‘‘did not . . . file a
single expert witness disclosure.’’17
Our review of the record reveals that the plaintiff did
not seek to introduce expert testimony at any time
before or during the limited evidentiary hearing. Nor
has he directed this court to any place in the record
where he did so. He similarly did not raise any issue
about expert witness testimony in his motion to reargue
and/or to correct the judgment. To allow the plaintiff
to advance this unpreserved claim on appeal would be
unfair to the court and to the defendants. See, e.g.,
Ravetto v. Triton Thalassic Technologies, Inc., 285
Conn. 716, 730, 941 A.2d 309 (2008) (‘‘[f]or us [t]o review
[a] claim, which has been articulated for the first time
on appeal and not before the trial court, would result
in a trial by ambuscade’’ (internal quotation marks omit-
ted)). We therefore decline to review this part of his
claim because he failed properly to preserve this issue
for appellate review.
II
AC 42982
We next address the claims made by Puteri in his
appeal. As previously mentioned, Puteri claims that the
court erred for the same reasons Canner asserts in the
first appeal. In fact, Puteri’s briefing on appeal is almost
identical to that of Canner’s. For purposes of judicial
economy, we do not discuss Puteri’s claims to the same
extent we did for Canner’s in part I of this opinion
because Puteri’s claims fail for the same legal reasons,
even though the underlying facts differ slightly.
We begin by setting forth the following relevant facts,
found by the trial court or otherwise undisputed, and
the procedural history. This action involves property
located at 105 Governor Trumbull Way, which is also
a condominium unit located in the Governor’s Ridge
common interest community in Trumbull (105 Unit).
The 105 Unit was purchased by Puteri and his late wife,
Loretta G. Puteri (Puteris), on December 26, 2001, from
South Meadow.
The 105 Unit was part of phase II of the Governor’s
Ridge common interest community. In 2000, Governor’s
Ridge applied to the planning and zoning commission
to construct thirty-six detached units constituting phase
II of the Governor’s Ridge common interest community.
A hearing was held on November 27, 2000, and, on
January 10, 2001, the planning and zoning commission
issued a special permit to Governor’s Ridge to construct
the units. Although the planning and zoning commis-
sion’s special permit contained language related to
foundation construction in light of certain soil condi-
tions, the building department ultimately retained juris-
diction over how the foundations were constructed and
whether to issue a certificate of occupancy for any
particular unit.
On June 27, 2001, Governor’s Ridge sold the phase
II development rights to South Meadow, which had been
formed by Tatangelo and Lucera to develop phase II.
According to Tatangelo, South Meadow was aware at
the time that the soil conditions at the phase II location
presented certain challenges. As a result, South
Meadow hired Adeeb Consulting on June 13, 2001, for
limited engineering services regarding the design of the
foundations. Its principal, Adeeb, is a geotechnical and
structural engineer. On June 27, 2001, Adeeb issued a
report concerning the foundations for the 105 Unit.
The report was based on a boring at the location and
recommended a foundation system using geo-fabric,
footings, and grade beams. On July 6, 2001, the building
department issued a building permit for the unit, which
did not require the foundation be built on piles.
Although this method of construction was criticized in
a letter dated July 22, 2001, written by Herbert L. Lob-
dell, a professional engineer, that was copied to the
building department, the construction of the unit’s foun-
dation proceeded in accordance with the plan devel-
oped by Adeeb.
On July 27, 2001, South Meadow issued a public offer-
ing statement for phase II. The statement included,
among other things, architectural drawings for the vari-
ous phase II unit models. The drawings showed that
the foundations would be built with concrete walls and
footings, not with piles. The Puteris entered into a con-
tract to purchase the 105 Unit from South Meadow on
November 13, 2001. Soon thereafter, on December 20,
2001, the building department provided the certificate
of occupancy for the 105 Unit. At this time, construction
of the unit was complete, and neither the building
department nor any other town department had any
further involvement with the unit.
On December 26, 2001, the Puteris closed on the 105
Unit. The same day, they leased the unit back to South
Meadow until March 20, 2002, for use as a model home.
After the lease expired, South Meadow addressed a
punch list of items for the Puteris, but had no further
involvement with the 105 Unit after completing those
tasks.
After the Puteris moved in, as early as 2003, but no
later than 2005, they began to notice cracks on the
exterior and interior of the unit. When they contacted
the management company for Governor’s Ridge, the
problems were addressed. Puteri testified, however,
that the cracks would redevelop after they were fixed.
He attributed these problems to settling and was aware
in the years 2006, 2007, and 2008, that the settling was
getting worse. Additional problems developed during
this time period, including a large crack on the second
floor, a crack in the basement floor, and windows and
doors that would not open correctly. Puteri testified
that he was not aware of significant settlement prob-
lems until he placed the 105 Unit on the market in 2012.
On June 20, 2012, an e-mail from Puteri to the manage-
ment company described ‘‘the most notable defects,’’
but explicitly stated that there were ‘‘several structural
issues over the years’’ and ‘‘[t]his has been an ongoing
issue since the house was originally built and records
should show a vast number of phone calls from us
pertaining to this matter and yet a permanent fix has
never come.’’
Thereafter, between 2012 and 2016, Governor’s Ridge
took various steps to address the settlement, including
hiring Fuller Engineering & Land Surveying, LLC, to
measure settling at the unit. In mid-December, 2015,
after learning that a neighbor had town records about
the phase II development, Puteri’s daughter, Lorraine
Sando, went to the building department, the planning
and zoning commission, wetlands, and other town
departments to get records about the 105 Unit. Each
time she verbally requested records, she received them.
On September 5, 2017, Puteri commenced this action.
Like Canner, Puteri seeks to hold the defendants liable
for the alleged settling of the 105 Unit. His complaint
also contains various counts against the defendants
alleging negligence, nuisance, fraud, breach of contract,
and violations of the CIOA. The defendants raised
numerous special defenses in their respective answers
to the operative complaint claiming the respective
counts against them were time barred pursuant to the
applicable statutes of limitations or repose. A limited
evidentiary hearing on the statute of limitations
defenses and matters of avoidance was held on Novem-
ber 8 and 9, 2018.18
On May 7, 2019, the court issued a memorandum of
decision in which it concluded that each count against
the defendants was time barred by the applicable stat-
ute of limitations and, thus, rendered judgment in favor
of the defendants. On May 24, 2019, Puteri, pursuant
to ‘‘Practice Book § 11-11 and/or § 11-12,’’ filed a
‘‘motion to reargue and/or correct judgment,’’ which
was denied. The same day, Puteri appealed to this court.
A
Like Canner, Puteri first claims that the court erred
by concluding that his claim brought pursuant to § 47-
278 (count one of his operative complaint) was barred
by the three year tort statute of limitations codified in
§ 52-577. He argues that his claim is contractual in
nature because the legal duties alleged to have been
breached stemmed from the Governor’s Ridge govern-
ing documents (common interest declaration, bylaws,
and handbook) and, accordingly, the six year statute
of limitations set forth in § 52-576 is the appropriate
limitation period.
For the same reasons and utilizing the standard of
review set forth in part I A of this opinion, Puteri’s
arguments fail. There is no question that Puteri’s count
one claim sounds in tort, rather than in contract,
because it is clear that he is seeking redress for a breach
of a statutory duty. The language of the declaration
(and provisions of the bylaws and handbook) relied
upon by Puteri—which is the same language relied upon
by Canner in his appeal—does not create a contractual
obligation for Governor’s Ridge to maintain, repair, and/
or replace the foundation at the 105 Unit. Instead, the
governing documents make clear that the duty for Gov-
ernor’s Ridge to repair and replace the common interest
community is contingent on areas for which insurance
is required under Article XXII of the declaration.
Because it is clear that foundations are excluded areas
for purposes of insurance, there was no corresponding
contractual obligation to maintain, repair, and/or
replace the foundation at issue. Accordingly, the court
correctly determined that Puteri’s claim did not sound
in contract but, rather, sounded in tort. We thus con-
clude that the court correctly determined that § 52-577
was the appropriate statute of limitations for count one
of Puteri’s complaint.
With this as our backdrop, we conclude that the court
correctly determined that Puteri’s closing date of
December 26, 2001, was the appropriate starting point
for the statute of limitations period. As previously
explained, § 52-577 is a statute of repose. Thus, ‘‘the
time period within which a plaintiff must commence an
action begins to run at the moment the act or omission
complained of occurs.’’ (Internal quotation marks omit-
ted.) Pagan v. Gonzalez, supra, 113 Conn. App. 139.
Both before this court and the trial court, Puteri
explicitly argues that the original wrong was that Gover-
nor’s Ridge allowed the 105 Unit to be built on soft
ground. We agree with the court that the closing date
of December 26, 2001, was when the statute of repose
period began to run. This is the date the Puteris officially
became unit owners and could pursue an action pursu-
ant to the law, as well as the latest date the construction
of the allegedly defective foundation occurred.
We next address Puteri’s subclaim that Governor’s
Ridge should be estopped from asserting its statute of
limitations defense. Puteri argues that Governor’s Ridge
acknowledged that the foundation is a common ele-
ment, it was responsible for the settling that occurred,
and it intended to repair the foundation. He too alleges
he relied on those representations.
Like Canner, Puteri failed to satisfy his burden of
proving that estoppel applies in the present case. The
court found that there was no evidence that during
the applicable limitation period Governor’s Ridge did
anything to prevent Puteri from discovering facts to
support a cause of action or to induce him to refrain
from filing suit. There similarly is no evidence that Gov-
ernor’s Ridge made any promises or statements to Put-
eri for the purpose of misleading him about the manner
in which the unit’s foundation was constructed. On the
basis of our review of the record, we conclude that the
court’s factual findings are not clearly erroneous and,
under our plenary standard of review, the court prop-
erly interpreted and applied the law to its findings of
facts. We therefore conclude that the court properly
determined that Governor’s Ridge was not estopped
from maintaining its statute of limitations argument.19
B
As a final matter, as was the case with Canner, we
similarly decline to review Puteri’s claim that the court
erred in ruling that his nuisance claims are barred by
the applicable statute of limitations. He too specifically
argues that the court erred in finding that the alleged
nuisance is permanent as opposed to temporary without
(1) hearing expert testimony on the subject, and (2)
affording him an opportunity to present expert testi-
mony. Like Canner, Puteri failed to adequately brief the
first part of his claim. See part I C of this opinion; see
also Starboard Fairfield Development, LLC v. Gremp,
supra, 195 Conn. App. 31 (‘‘[a]nalysis, rather than [mere]
abstract assertion, is required in order to avoid aban-
doning an issue by failure to brief the issue properly’’
(internal quotation marks omitted)). Puteri similarly
failed to properly preserve the second part of his claim
for appellate review, as he never raised the issue of
expert testimony nor sought to introduce expert testi-
mony before the trial court. Thus, the court never had
a chance to address this issue now raised by Puteri.
To allow Puteri to advance this unpreserved claim on
appeal would be unfair to the court and to the defen-
dants. See Guiliano v. Jefferson Radiology, P.C., 206
Conn. App. 603, 622, 261 A.3d 140 (2021) (‘‘[f]or us [t]o
review [a] claim, which has been articulated for the
first time on appeal and not before the trial court, would
result in a trial by ambuscade of the trial judge’’ (internal
quotation marks omitted)).
The judgments are affirmed.
In this opinion the other judges concurred.
1
Although the appeals were not consolidated, we resolve both appeals
in one opinion for purposes of judicial economy because the claims and
factual backgrounds are nearly identical.
2
In addition to being the plaintiff in a representative capacity as executor
in the first appeal, Glen A. Canner is also the attorney of record in both
appeals.
3
The Adeeb defendants did not participate in either appeal because the
plaintiffs’ claims are not directed at them.
4
The court found that ‘‘Adeeb also stated that ‘[b]ased on my calculations
and analysis, these buildings will not undergo differential settlement. . . .
I must emphasize that, in the practice of our profession, we do the best we
can by providing sound engineering consultation and recommendations,
based on quantitative analysis and calculations. However, we never issue
any guarantee or warranty, be it expressed or implied.’ ’’
5
The court explained: ‘‘Notably, in a letter to [Tatangelo] related to sewer
issues dated April 23, 2002, Kallmeyer acknowledged that the building depart-
ment had jurisdiction over ‘matters pertaining to the houses.’ ’’
6
For purposes of discovery, the trial court consolidated this action with
the action brought against the defendants in Puteri v. Governor’s Ridge
Association, Inc., Superior Court, judicial district of Waterbury, Complex
Litigation Docket, Docket No. X10-CV-XX-XXXXXXX-S, which is the subject of
the second appeal addressed in this opinion.
7
In that motion, the plaintiff claimed that there were inaccuracies in the
original memorandum of decision, such as references to incorrect docket
numbers and exhibit numbers. On June 17, 2019, the court issued a corrected
memorandum of decision. The corrected memorandum of decision does
not contain any substantive changes.
8
Our Supreme Court has held that ‘‘[a] declaration is an instrument
recorded and executed in the same manner as a deed for the purpose of
creating a common interest community. . . . [T]he declaration operates in
the nature of a contract, in that it establishes the parties’ rights and obliga-
tions . . . .’’ (Citations omitted; internal quotation marks omitted.) South-
wick at Milford Condominium Assn., Inc. v. 523 Wheelers Farm Road,
Milford, LLC, 294 Conn. 311, 313 n.3, 984 A.2d 676 (2009).
9
General Statutes § 52-576 (a) provides: ‘‘No action for an account, or on
any simple or implied contract, or on any contract in writing, shall be brought
but within six years after the right of action accrues, except as provided in
subsection (b) of this section.’’
10
We note that Canner originally argued before the trial court that the
present action was not subject to any statute of limitations. He argued in
the alternative that, if the action was in fact subject to a limitation period,
§ 52-576 was the applicable statute of limitations. On appeal, Canner no
longer pursues the argument that this action is not subject to any statute
of limitations.
11
Section 2.6 (a) of the condominium declaration states that ‘‘[c]ommon
[e]xpenses’’ include ‘‘[e]xpenses of administration, maintenance, repair or
replacement of the Common Elements.’’ Section 23.1 of the declaration
provides in relevant part: ‘‘Any portion of the Common Interest Community
for which insurance is required under Article XXII which is damaged or
destroyed shall be repaired or replaced promptly by the Association . . . .’’
12
Section 5.2 (b) of the bylaws provides in relevant part: ‘‘All maintenance
and repairs of and any replacements to the Common Elements and Limited
Common Elements . . . shall be made by the Executive Board and be
charged . . . as a Common Expense . . . .’’
13
We recognize that an amendment to the sixth amended complaint would
make it a seventh amended complaint. Despite subsequent amendments to
the sixth amended complaint, the parties have referred to the operative
complaint as the sixth amended complaint. We follow their lead.
14
Canner also relies on § 2.6 (a) of the declaration and § 5.2 (b) of the
bylaws; see footnotes 11 and 12 of this opinion; in addition to other declara-
tion, bylaw, and handbook provisions he raises for the first time on appeal.
A simple review of these provisions similarly reveals no duty on the part
of Governor’s Ridge to maintain, repair, and/or replace the foundation in
question. To say more would be supererogatory.
15
It appears that Canner makes three additional subclaims related to his
statute of limitations arguments. We decline to review two of them because
they are inadequately briefed, and the third fails because this court cannot
review a ruling that was not in fact made. We briefly explain.
First, Canner argues in a conclusory manner that the court erred in failing
to rule that reaffirmations by Governor’s Ridge of its obligation to fix the
unit’s foundation and settling problems ‘‘restarted’’ the statute of limitations.
In support of this assertion, Canner merely cites to one, unpublished Superior
Court decision, Advani v. Park Mead Condominium Assn., Superior Court,
judicial district of Stamford-Norwalk, Docket No. CV-XX-XXXXXXX-S (August
14, 2018), for the proposition that ‘‘an unambiguous reaffirmation of a con-
tractual obligation is a basis on which to ‘restart’ the statute of limitations
applicable to the original claim . . . .’’ Canner does not provide any legal
analysis beyond that assertion and does not brief the issue properly, as
applicable to a tort claim pursuant to § 52-577.
Second, Canner appears to claim that the court erred by not concluding
that the continuing course of conduct doctrine tolled the statute of limita-
tions. Once again, Canner resorts to a context and analysis free citation to
Vaccaro v. Shell Beach Condominium, Inc., supra, 169 Conn. App. 43, and
a host of conclusory statements with no relevant supporting citations to
the record. His brief fails to provide any meaningful analysis about the scope
of the duty, if any, owed to him by Governor’s Ridge in relation to the
foundation pursuant to § 47-249, how that duty was related to the alleged
original wrong, or how Governor’s Ridge allegedly continued to breach that
duty within the meaning of our case law.
‘‘We are not required to review issues that have been improperly presented
to this court through an inadequate brief. . . . Analysis, rather than abstract
assertion, is required in order to avoid abandoning an issue by failure to
brief the issue properly.’’ (Internal quotation marks omitted.) Haggerty v.
Williams, 84 Conn. App. 675, 684, 855 A.2d 264 (2004). Because Canner
has not adequately briefed these subclaims beyond his mere abstract legal
assertions, we decline to review them.
Last, it appears that Canner argues that the court erred in finding that
Governor’s Ridge reasonably exercised its discretion in deciding not to repair
the foundation in question. Upon our review of the court’s memorandum
of decision, no such issue was considered nor was such ruling made. Because
we cannot opine on a court’s ruling that did not occur, this claim fails. See,
e.g., Lane v. Cashman, 179 Conn. App. 394, 416, 180 A.3d 13 (2018) (‘‘[w]e
are unable to review a ruling that was not made’’); State v. McLaughlin,
135 Conn. App. 193, 202, 41 A.3d 694 (‘‘[w]e cannot pass on the correctness
of a trial court ruling that was never made’’ (internal quotation marks omit-
ted)), cert. denied, 307 Conn. 904, 53 A.3d 219 (2012).
16
The nuisance claims are alleged in count three against Governor’s Ridge,
count six against the South Meadow defendants, and count twelve against
the town defendants.
17
The South Meadow defendants and the town defendants advance similar
arguments in their briefs to this court.
18
See footnote 6 of this opinion.
19
Puteri similarly raises subclaims that the court (1) erred in failing to
rule that reaffirmations by Governor’s Ridge of its obligation to fix the unit’s
foundation and settling problems ‘‘restarted’’ the statute of limitations, (2)
improperly concluded that the statute of limitations was not tolled by the
continuing course of conduct doctrine, and (3) erred in finding that Gover-
nor’s Ridge reasonably exercised its discretion in deciding not to repair the
foundation in question. These subclaims fail for the same reasons that we
rejected the same subclaims raised by Canner in the first appeal, as the first
two are inadequately briefed and the third is premised on a ruling that was
never made. See footnote 15 of this opinion. We need say no more.