Squillante v. Capital Region Development Authority ( 2021 )

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APPENDIX
DAVID SQUILLANTE ET AL. v. CAPITAL
REGION DEVELOPMENT AUTHORITY*
Superior Court, Judicial District of Hartford
File No. CV-XX-XXXXXXX-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 Develop-
ment 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 rele-
vant to this decision. This action was commenced by
service of process on CRDA on July 26, 2016. The opera-
tive complaint is the amended complaint dated Novem-
ber 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 stat-
ute,1 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 conversa-
tions 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 reason-
ably relied, and contains misrepresentations upon
which the plaintiffs relied to their detriment.
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 gen-
eral business terms of the potential project and are
expressly subject to the completion of CRDA due dili-
gence investigation including the provisions of neces-
sary 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.2 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 exe-
cuted. 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 follow-
ing: appraisals, title searches, covenants, insurance cer-
tificates, plans and specifications, evidence of financ-
ing, permits and approvals, contractor agreements,
surveys, environmental clearance, final budget and final
application.’’
On June 21, 2013, the state of Connecticut bond com-
mission (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 Perfor-
mance Bonds with respect to each Contractor that
enters into a Major Contract with [DJS45] . . . .’’ On
December 4, 1993, CRDA sent DJS45 a ‘‘closing check-
list’’ identifying various items that needed to be pro-
vided. Item 33 included bonds from the general contrac-
tor and the subcontractors.
Although the plaintiffs now assert that the require-
ment 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 tim-
ing-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, repre-
senting 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 sum-
mary 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 promis-
sory estoppel claim fails. Finally, the negligent misrep-
resentation claim fails, in the view of CRDA, because
it was commenced outside of the limitation period pro-
vided 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 pay-
ment and performance bond. As to their negligent mis-
representation 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 perfor-
mance 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 sum-
mary judgment is held to a strict standard . . . of dem-
onstrating his entitlement to summary judgment.’’ (Cita-
tion 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 con-
tract language is a question of law . . . .’’ (Citation
omitted; internal quotation marks omitted.) CCT Com-
munications, 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, ren-
dered settlement contract unenforceable). ‘‘So long as
any essential matters are left open for further consider-
ation, 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, 538 (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 pro-
posed contract and not a complete statement of all the
essential terms,’’ which terms require further develop-
ment 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 execu-
tion 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 pro-
vider 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 indicat-
ing an intent to make a future employment contract,
absent an agreement on the material terms of employ-
ment, 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 consid-
ers 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 proj-
ect application that were to be incorporated in the assis-
tance agreement as well as the unidentified terms of
the assistance agreement. Additionally, the letter con-
templated 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 disposi-
tive 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 Ser-
vices, LLC v. Hartford Parking Authority, Superior
Court, judicial district of Hartford, Docket No. CV-11-
6018221-S (April 2, 2013), provides the court with an
example of contract language that articulated an intent
not to create a contractual obligation, which was ulti-
mately found by the court to present questions of fact
upon which summary judgment was denied. The reli-
ance 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 defen-
dant 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 defen-
dant on the grounds that the language had to be consid-
ered in the context of other language specifying that
the terms in the request for proposal, in combination
with other documents, represented the contract docu-
ments. 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 forbear-
ance is binding if injustice can be avoided only by
enforcement of the promise. . . . A fundamental ele-
ment 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 some-
thing 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 exe-
cution 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 perfor-
mance 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.3 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 possibil-
ities 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 exer-
cised 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.
268. Summary judgment is therefore granted as to the
second count.
III
COUNT THREE: NEGLIGENT MISREPRESENTATION
The last theory of liability upon which summary judg-
ment is sought is that contained in the third count of
negligent misrepresentation. The elements of an action
for negligent misrepresentation are ‘‘(1) that the defen-
dant made a misrepresentation of fact (2) that the defen-
dant 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 infor-
mation 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 per-
formance bonds for each of [their] contractors from an
insurance company licensed to do business in Connecti-
cut 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, includ-
ing form agreements and closing checklist when it had
a duty to disclose the material facts within a commer-
cially 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 dam-
ages for injury to the person or real or personal prop-
erty.4 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 mis-
representation 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 negli-
gence . . . .’’ Id., 299. In the present case, however,
the plaintiffs’ negligent misrepresentation claim asserts
economic loss rather than injury to person, real prop-
erty or personal property.
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, Supe-
rior Court, judicial district of Hartford, Complex Litiga-
tion Docket, Docket No. X04-CV-XX-XXXXXXX-S (Septem-
ber 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 appli-
cable 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, 2016.5 The commencement of
the action was thus more than three years from the act
complained of, to wit, the misrepresentations contained
in the letter.
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 judg-
ment should be denied.’’ Entry No. 147, p. 3. The plain-
tiffs, who presumably relied on the CRDA’s lack of
argument as to the continuing course of conduct doc-
trine, themselves provided no analysis of why the limita-
tions should be extended by the doctrine.
The plaintiffs misapprehend the nature of the shifting
burden attendant to the tolling of [a] statute of limita-
tions. ‘‘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 pred-
icate 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 Hart-
ford, 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 doc-
trine 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 omit-
ted.) 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 fidu-
ciary 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-XX-XXXXXXX-S (series of misrepresentations tolled
statute of limitations). The court concludes that no gen-
uine 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.
* Affirmed. Conn. App. , A.3d (2021).
1
See General Statutes § 32-600 et seq.
2
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.
3
The plaintiffs’ November 14, 2017 amended complaint added the hereto-
fore 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.
4
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 discov-
ered, and except that no such action may be brought more than three years
from the date of the act or omission complained of . . . .’’
5
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).