Town of Windsor v. Loureiro Eng'g Assocs.
| Decision Date | 24 April 2018 |
| Docket Number | AC 39398 |
| Citation | 186 A.3d 729,181 Conn.App. 356 |
| Court | Connecticut Court of Appeals |
| Parties | TOWN OF WINDSOR v. LOUREIRO ENGINEERING ASSOCIATES et al. |
181 Conn.App. 356
186 A.3d 729
TOWN OF WINDSOR
v.
LOUREIRO ENGINEERING ASSOCIATES et al.
AC 39398
Appellate Court of Connecticut.
Argued December 4, 2017
Officially released April 24, 2018
Daniel J. Krisch, with whom, on the brief, were John C. DeSimone, pro hac vice, John B. DiSciullo, pro hac vice, and Richard F. Wareing, for the appellant (plaintiff).
Leslie P. King, with whom were Christopher A. Klepps and, on the brief, Donald W. Doeg, for the appellees (defendant Newman Architects, LLC, et al.).
Lavine, Alvord and Bear, Js.
ALVORD, J.
The plaintiff, the town of Windsor, appeals from the judgment of the trial court rendered in favor of the defendants Newman Architects, LLC, Herbert S. Newman, and Michael Raso.1 On appeal, the plaintiff claims that the court improperly discharged the jury and rendered
judgment as a matter of law on the defendants' special defense asserting that the plaintiff's action was barred by the seven year statute of limitations set forth in General Statutes § 52–584a. We conclude that the court properly rendered judgment as a matter of law in favor of the defendants and, accordingly, affirm the judgment.
The following facts and procedural history are relevant to our resolution of this appeal. The present appeal stems from a professional negligence action that the plaintiff commenced against the defendants after the auditorium roof at Windsor High School (school) collapsed under the weight of accumulated snow and ice on February 2, 2011.
The defendants previously had performed work for the plaintiff under two separate contracts for services relating to the school. Newman Architects, LLC, which employed Newman and Raso, provided architectural services and Barnhart, Johnson, Francis & Wild, Inc. (BJFW), which employed Charles Francis, provided structural engineering services. The parties designated the defendants' work performed pursuant to the first
contract as the "report project." Specifically, the defendants were retained to produce what was called a "Comparable-to-New" report (report), which was required as part of the process for applying for renovation funding from the state of Connecticut pursuant to No. 96–270 of the 1996 Public Acts (P.A. 96–270).2 The report summarized the defendants' analysis of conditions at the school and the defendants' conclusion as to whether the existing building was structurally sound, so that it could be renovated to standards comparable to a new building. The report was dated June 16, 1998, and was provided to the plaintiff on that day.
On June 29, 1998, the plaintiff submitted the report to the state as part of its application for renovation funding, which application was approved. On February 9, 1999, the town held a referendum on the $35 million appropriation and bond authorization for renovations at the school, which the town's residents voted to approve. By April 12, 1999, the plaintiff had paid the defendants in full for their work under the contract for the report project. In June, 1999, the parties entered into a separate, second contract for the design and construction of the renovation project at the school (renovation project).
The plaintiff commenced this action on July 14, 2011, five months after the auditorium roof collapsed. The plaintiff alleged as the proximate cause of the collapse a deficient steel connection between the main truss and a supporting truss. The plaintiff alleged, inter alia, that the defendant Newman Architects, LLC, was negligent
in four ways: (1) failing to "follow the appropriate standard of care in inspecting existing field welds in areas affected by the renovation"; (2) failing to "follow the appropriate professional standard of care in supervising, as an architect, consultants and subcontractors in making inspections of the existing field welds"; (3) failing to "follow the appropriate professional standard of care in ensuring that existing elements within the high school were brought into compliance with the State Building Code"; and (4) giving "advice below the appropriate professional standard of care to the plaintiff, to whom it had a duty, in advising the renovation project
would provide another twenty years of life to the high school, as required by and in accordance with State guidelines and definitions for renovation status and then failing to adequately monitor the project to ensure the structure and renovations satisfied that standard."3
In their answer, the defendants asserted a special defense alleging that the plaintiff's action was barred by § 52–584a because the plaintiff had commenced its action more than seven years after substantial completion of the subject improvement.4 On January 12, 2016, the defendants filed a motion to bifurcate the trial, seeking to have the issue of whether the plaintiff's claims were barred by the statute of limitations heard before the issue of liability. The plaintiff objected on the basis that the statute of limitations issue was "too closely intertwined with the plaintiff's liability case." After oral argument on January 20, 2016, the court, Elgo, J. , granted the defendants' motion to bifurcate.
On February 1, 2016, the plaintiff filed a motion in limine to preclude evidence regarding the substantial completion date of the renovation project. In its motion, the plaintiff described the defendants' obligations under each of the two contracts. Under the contract for the report project, the "defendants agreed to provide a report outlining the scope of renovations needed to bring the [school] building and site to a ‘comparable-to-new’ standard ...." Under the contract for the renovation project, the "defendants agreed to provide the design, and design documents, and administer the underlying construction contracts on the [plaintiff's] behalf." The plaintiff argued that because it was "not asserting that defendants breached any duties arising out of that second, distinct, contract," any evidence regarding the date on which the renovation project was substantially complete was irrelevant to the issue of whether the plaintiff's claims arising from the report project were timely.
The defendants filed a motion in response, arguing that if evidence of the date of substantial completion of the renovation project was precluded, there would be no factual issue left to be tried during the first phase of trial. According to the defendants, there were "no factual issues in dispute with respect to the completion date of the report project." The defendants requested that the court dispense with the jury and permit the parties to brief the only remaining issue, which would be the legal question of whether the defendants owed the plaintiff "a continuing duty with respect to the report project after the [report] was submitted and the referendum was passed." The parties appeared before Judge Elgo on February 2, 2016, to argue several motions in limine, including the defendants' motion to dispense with the jury. During this hearing, the plaintiff clarified that it was not asserting that the defendants had a continuing duty to correct any alleged mistakes
in the report but rather that the comparable-to-new analysis was never substantially completed. The court prohibited any argument to the jury that substantial completion had never occurred, ruling that the question for the jury was when, not whether, substantial completion occurred. The court
further prohibited the plaintiff from arguing to the jury that the date the certificate of occupancy was issued for the school could be the date of substantial completion, after concluding that there was no basis in law for the statute of limitations to be triggered by that date.
The next morning, the parties again appeared before the court. The jury was sworn in and counsel presented opening statements. During the plaintiff's opening statement, counsel indicated an intention to offer evidence in support of legal theories that the court already had ruled irrelevant and inadmissible, and the court sustained five objections on the basis of relevance before excusing the jury. The court thereafter reconsidered the defendants' earlier motion to dispense with the jury and ordered the defendants to "provide this court with affidavits and/or other admissible evidence in support of its claims .... [T]he plaintiff shall respond by specifically addressing each of the factual claims raised and assert whether each fact is or is not disputed. If disputed, the plaintiff shall file with its response evidence, which would be admissible at trial, sufficient to create an issue of fact which must be resolved by a jury." The court ordered the parties to brief the factual issues and submit "admissible evidence akin to a motion for summary...
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