text:
    WILLIAM MONACO v. TURBOMOTIVE, INC., ET AL.
    (AC 20974)
    Dranginis, Flynn and Daly, Js.
    Argued September 26, 2001
    officially released February 5, 2002

      Edwin L. Doemberger, for the appellant (plaintiff).

      John-Henry M. Steele, for the appellees (defendants).
   Opinion

DRANGINIS, J.

The plaintiff, William Monaco, appeals from the judgment of the trial court in favor of the defendants, Turbomotive, Inc., and H.R. Solutions, Inc. (HRS), rendered after a hearing in damages following the entry of a default against the defendants for failure to comply with the court’s order regarding discovery. On appeal, the plaintiff claims that the court improperly concluded that his claim was barred by General Statutes § 31-130 (i). We reverse the judgment of the trial court.

The following facts and procedural history are necessary for our resolution of the plaintiffs appeal. William Young, a mechanical designer, engaged the plaintiff as his representative in seeking employment. The plaintiff contacted Turbomotive, Inc., on Young’s behalf and arranged an interview. Thereafter, Young was hired by Turbomotive, Inc., and the plaintiff sent an invoice to Turbomotive, Inc., in the amount of $9540. When Turbo-motive, Inc., failed to pay the amount due, the plaintiff commenced this action.

The plaintiff brought a five count complaint against the defendants. In the first and second counts, the plaintiff sought damages from Turbomotive, Inc., for breach of contract. In the third count, the plaintiff alleged that Turbomotive, Inc., paid the plaintiffs fee to HRS, a placement agency, thereby unjustly enriching HRS. In the fourth and fifth counts, the plaintiff alleged that the defendants conspired to deprive him of his fee, and that such action constitutes theft and thereby entitled him to treble damages.

Thereafter, the defendants filed an answer, special defenses and counterclaims. Turbomotive, Inc., denied the allegations and any obligation to pay the plaintiff, and claimed that the plaintiffs claims were barred by the doctrines of laches and unclean hands, the statute of limitations and payment to the party with which Turbomotive, Inc., had contracted, HRS. Turbomotive, Inc., filed counterclaims alleging vexatious litigation, tortious interference and unfair trade practices. HRS filed counterclaims alleging breach of contract, trademark infringement, unfair trade practices, conversion, vexatious litigation and tortious interference with business expectancy.

The plaintiff filed a motion for a default to be entered against the defendants for failure to comply with discovery. On August 31, 1999, the court ordered compliance by October 8, 1999. The defendants having failed to respond, the court granted the plaintiffs second motion for default on December 23, 1999.

Pursuant to Practice Book § 17-34 et seq., the defendants filed a notice of their intent to contradict “all proof of damages, the material allegations and subject matter of the plaintiffs complaint, the right of the plaintiff to maintain this action and provide evidence of defenses at any hearing in damages.” It is well settled that the entry of default does not preclude the defendant from raising a defense at the hearing in damages. See Practice Book § 17-34. If timely written notice is furnished to the plaintiff, the defendant may offer evidence contradicting any allegation of the complaint. Id. The defendant may also challenge the right of the plaintiff to maintain the action or prove any matter of defense. Id. “If the defendant appears in the action and furnishes the required notice, the subsequent hearing in damages takes on the nature of a supplemental trial involving the determination of questions of law and fact, and the determination of the damages to be assessed after such trial.” (Internal quotation marks omitted.) DeBlasio v. Aetna Life & Casualty Co., 186 Conn. 398, 401, 441 A.2d 838 (1982).

In this case, at the hearing in damages, the court admitted evidence, over the plaintiffs objection, that the plaintiff was not a licensed employment agent as required by § 31-130 (i) at the time he rendered services to Turbomotive, Inc. The court took judicial notice of § 31-130 (i), which provides: “No person shall engage in the business of procuring or offering to procure employees for persons seeking the services of employees or supplying employees to render services where a fee or other valuable thing is exacted, charged or received from the employer for procuring or assisting to procure or supplying such employees unless he registers with the Labor Commissioner. . . .” The plaintiff, thereafter, testified that he was not registered with the commissioner of the department of labor as required by the statute, and the court concluded that pursuant to that statute, the plaintiff could not recover a fee. The court thereafter rendered judgment in favor of the defendants on all counts, and the plaintiff appealed. The plaintiff argues that the court abused its discretion when it considered evidence of the plaintiffs failure to comply with § 31-130 (i) at the hearing in damages. We reverse the judgment on the ground that the plaintiffs recovery was not barred by § 31-130 (i).

General Statutes § 52-163 provides that the courts shall take judicial notice of the special acts of this state. Judicial notice can be taken at any stage of the proceedings. State v. Allen, 205 Conn. 370, 382, 533 A.2d 559 (1987). “[A] trial court’s determination not to take judicial notice is essentially an evidentiary ruling. . . . Our role in reviewing evidentiary rulings of the trial court is settled. The trial court has wide discretion in its rulings on evidence and its rulings will be reversed only if the court has abused its discretion or an injustice appears to have been done.” (Internal quotation marks omitted.) Barrese v. DeFillippo, 45 Conn. App. 102, 107, 694 A.2d 797 (1997).

“Statutory construction is a question of law and therefore our review is plenary. . . . [0]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. ... As with any issue of statutoiy interpretation, our initial guide is the language of the operative statutory provisions.” (Internal quotation marks omitted.) O’Neil v. Honeywell, Inc., 66 Conn. App. 332, 336, 784 A.2d 428 (2001), cert. denied, 259 Conn. 914, 792 A.2d 852 (2002); see also 1 B. Holden & J. Daly, Connecticut Evidence (2d Ed. 1988) § 50, p. 222.

General Statutes § 31-129 (b) defines “employment agency” as “includ[ing] the business of procuring or offering to procure work or employment for persons seeking employment, or acting as agent for procuring such work or employment where a fee or other valuable thing is exacted, charged or received for procuring or assisting to procure employment, work or a situation of any kind or for procuring or providing help for any person . . . .” Significantly, however, No. 89-128 of the 1989 Public Acts exempts employment agencies from licensing and regulatory requirements if they receive their fees from employers rather than employees.

Dorr-Oliver, Inc. v. Webster Computer Corp., 30 Conn. Sup. 544, 300 A.2d 45 (1972), provides further definition. In Dorr-Oliver, Inc., the plaintiff employer brought an action to recover moneys that were paid to the defendant for the procurement of an employee. The plaintiff claimed that the defendant could not recover a fee because it was not licensed pursuant to § 31-130. Relying on cases from other jurisdictions that had similar statutoiy schemes, the court held that the defendant did not fall within the definition of an “employment agency” under the statute because (1) no fee was paid from the employee to the defendant, (2) procuring employees was incidental to the defendant’s main service of providing computer systems, (3) the defendant never solicited the public at large or advertised concerning employment placement and (4) the policy behind General Statutes §§ 31-129 to 31-131c is to protect individual applicants (prospective employees) from unscrupulous employment agencies. Dorr-Oliver, Inc. v. Webster Computer Corp., supra, 550-51.

The reasoning of Dorr-Oliver, Inc., although dated, is consistent with the statutory scheme today. Section 31-130 provides for the licensure of employment agencies and regulation of the conduct of their businesses. The legislative history indicates that agencies that collect their fees from employers do not present the kind of harm that is presented by agencies that collect their fees from prospective employees. The provisions applicable to licensure, record keeping and scheduling of fees as well as enforcement penalties, therefore, apply only to those agencies that must be licensed. Although subsection (i) of § 31-130 still requires agencies that obtain their fees from employers to register with the labor commissioner and to pay an annual registration fee of $150, this is the same amount as the licensing fee and clearly is for the purpose of maintaining state revenues. See footnote 2. Furthermore, the legislature has shown that it knows how to draft legislation that bars recovery of a fee in the context of real estate commissions; General Statutes § 20-325a; and home improvement contracts. General Statutes § 20-429. Sections 31-129 to 31-133 do not contain such language. We will not read into the statute a provision barring recovery of a fee from an employer. See Giaimo v. New Haven, 257 Conn. 481, 494, 778 A.2d 33 (2001) (“[w]e are constrained to read a statute as written . . . and we may not read into clearly expressed legislation provisions which do not find expression in its words” [citation omitted; internal quotation marks omitted]).

In this case, it appears from the record that the employee did not pay a fee and the plaintiff did not solicit the public at large. Thus, under the reasoning of Dorr-Oliver, Inc., and the plain language of the statute, we conclude that § 31-130 (i) does not bar the plaintiffs recovery from the defendants in this case. The evident purpose of the statutory scheme is to protect prospective employees, not employers, from the unscrupulous tactics of employment agencies.

We therefore conclude that in this case, the court abused its discretion when it took judicial notice of § 31-130 (i) at the hearing in damages because the statute does not bar the plaintiffs recovery.

The judgment is reversed and the case is remanded for a new hearing in damages consistent with this opinion.

In this opinion the other judges concurred.

       In the alternative, the plaintiff claims that the court abused its discretion in considering the evidence of his failure to comply with General Statutes § 31-130 (i) because the defendants did not provide sufficient notice of their intent to assert that defense at the hearing in damages pursuant to Practice Book § 17-34. Because of our conclusion, we need not consider that claim. We note, however, that, although Practice Book § 17-34 provides little guidance with respect to the sufficiency of a notice of intention to contradict, counsel should be mindful of the general rules of pleading to avoid unfair surprise and to promote the resolution of issues before the court. See, e.g., Todd v. Glines, 217 Conn. 1, 10, 583 A.2d 1287 (1991).

       In ahearing on the proposed legislation, Howard Spector, of the Connecticut Association of Personnel Consultants, testified: “We’ve even addressed [in the amendment] the issue of loss of revenue to the state where it had been [a] concern in the past that if we were no longer licensed by the state that in the Labor Department certain revenues, approximately $50,000 or $60,000 would be lost, we have inserted in this bill a willingness to pay [a] registration fee to the same extent that we now pay for licensing so that there’d be no revenue loss.” Conn. Joint Standing Committee Hearings, Labor and Public Employees, Pt. 2, 1989 Sess., p. 697.
      “What this bill does is convert from a licensing to a registration scheme of those employment agencies that are not paid by the employees, but rather are paid by the employers. With that restriction that applies only to the employer fee paid situations. The current stricture and burdens of the statute are not necessary and this bill makes that adjustment.” 32 S. Proc., Pt. 5, 1989 Sess., p. 1657, remarks of Senator James H. Maloney.
      “[T]his bill exempts agencies whose sole business is to find employees for employers from licensing by the Department of Labor as an employment agency. Instead, the bill requires the agencies to register with the Department and pay an annual registration fee of $150, which is the same as the current licensing fee.” 32 H.R. Proc., Pt. 10,1989 Sess., p. 3230, remarks of Representative Joseph A. Adamo.


source: Caselaw Access Project

author: FOTI, J.

license: Public Domain

text:
    FEDERAL DEPOSIT INSURANCE CORPORATION, RECEIVER OF FIRST CONSTITUTION BANK v. JOSEPH M. CALDRELLO ET AL.
    (AC 20144)
    Foti, Flynn and O’Connell, Js.
    Argued November 29, 2001
    officially released January 25, 2002

      Richard D. Haviland, for the appellants (named defendant et al.).

      Donald E. Frechette, with whom was Joshua L. Mil-rad, for the appellee (plaintiff).

       January 25, 2002, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

   Opinion

FOTI, J.

The defendants Joseph M. Caldrello and Sandra V. Caldrello appeal from the trial court’s judgment of strict foreclosure. On appeal, the defendants argue that the court improperly (1) opened the judgment of nonsuit more than twenty months after it had been rendered, (2) allowed the plaintiff, the Federal Deposit Insurance Corporation (FDIC), to introduce certain evidence and the testimony of a witness, which had not been disclosed to the defendants until the eve of trial, and (3) failed to adjust the verdict for the undisputed unclean hands of the FDIC. We affirm the judgment of the trial court.

The following facts are undisputed. On November 22, 1988, the defendants executed a mortgage and note to First Constitution Bank (bank) in the amount of $2.2 million. In September, 1989, the bank commenced an action to foreclose the mortgage. The defendants filed an answer and counterclaim, denying that the note was in default and claiming an improper setoff by the bank against certain certificates of deposit owned by the defendants. On September 8, 1992, the court rendered a judgment of strict foreclosure in favor of the bank and against the defendants on the complaint and counterclaim. On October 2, 1992, the bank was declared insolvent, and the FDIC was appointed as receiver. By decision released April 11,1995, this court reversed the judgment of strict foreclosure and remanded the case for a new trial. First Constitution Bank v. Caldrello, 37 Conn. App. 529, 656 A.2d 1053 (1995).

On June 23,1995, a judgment of nonsuit was rendered against the FDIC for failure to appear at a pretrial conference. On January 21, 1997, the FDIC filed a motion to open the judgment of nonsuit, claiming, inter alia, that it never received notice of the pretrial conference. Following a hearing, the court granted the motion over the defendants’ objection. The court subsequently rendered a judgment of strict foreclosure. The defendants then filed the present appeal.

I

The defendants first argue that the court lacked the authority to open the judgment of nonsuit more than twenty months after it had been rendered. The defendants contend that the court found that the FDIC had received notice and, therefore, improperly granted the motion to open. We disagree.

General Statutes § 52-212 provides in relevant part that “[a]ny judgment rendered or decree passed upon a default or nonsuit in the Superior Court may be set aside, within four months following the date on which it was rendered or passed . . . upon the complaint or written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of the judgment or the passage of the decree, and that the plaintiff or defendant was prevented by mistake, accident or other reasonable cause from prosecuting the action or making the defense.”

“[I]t is axiomatic that the right to move to open and vacate a judgment assumes that the party who is to exercise the right be given the opportunity to know that there is a judgment to open.” (Internal quotation marks omitted.) Habura v. Kochanowicz, 40 Conn. App. 590, 593, 672 A.2d 512 (1996). “In Habura v. Kochanowicz, [supra, 592], this court stated: ‘Where the defendants have not received notice of the default judgment . . . the time within which they may move to set aside the judgment is extended by the delay in notification.’ ” (Emphasis in original.) Tyler E. Lyman, Inc. v. Lodrini, 63 Conn. App. 739, 746-47, 780 A.2d 932, cert. denied, 258 Conn. 902, 782 A.2d 137 (2001). The FDIC argues, and we agree, that the court was presented with sufficient evidence demonstrating that it did not receive notice of the entry of the nonsuit in a timely manner and that it filed its motion to open within four months of receiving notice.

The nonsuit was rendered against the FDIC on June 23, 1995, based on the failure of the FDIC to attend a pretrial conference scheduled for June 15, 1995. On January 21, 1997, the FDIC filed a motion to open the judgment of nonsuit. On March 10, 1997, the FDIC filed a brief in support of its motion. Attached to this brief was the affidavit of Penny Seaman, an attorney who represented the bank from the commencement of the action until after the initial judgment of strict foreclosure on September 8,1992. Seaman stated in this affidavit that after the FDIC was named receiver of the bank on October 2, 1992, the FDIC obtained other counsel and that she requested permission to withdraw as counsel for the bank. Seaman further stated that she had received no communication from the Superior Court since the defendants filed their initial appeal with the Appellate Court and that she did not learn that the case had been remanded by this court until February 24, 1997, when she received a telephone call from counsel for the FDIC. Seaman specifically stated that she never received notice of the pretrial conference scheduled for June 23,1995, or copies of any pleadings that might have been filed in the case since notification of the appeal. Seaman stated that it is her practice to notify new counsel of any pleadings or notices that she receives in connection with a case transferred to the FDIC and that if she had received notice of a pretrial conference or motions filed by the defendants, she would have notified counsel for the FDIC.

The FDIC also attached the affidavit of attorney Gale Kosto to the brief in support of its motion to open. Kosto attested that she had represented the FDIC as receiver from January 4, 1993, until April 11, 1995, in the appeal to this court and continued to represent the FDIC in this matter. This affidavit stated in pertinent part that she “had no notice of the assignment of pretrial, no notice of the entry of a nonsuit, and no notice of a motion to transfer, written or oral, from the court or anyone else, until January, 1997.” In this affidavit, Kosto recounted her dealings with counsel for the defendants and how she had learned of the nonsuit in January, 1997, from an attorney representing the FDIC in a federal district court action. The FDIC further attached a letter from Kosto to counsel for the defendants dated September 15, 1995, suggesting that they schedule a conference call with the Superior Court case flow coordinator in New London to move the case along. The FDIC further attached a letter from counsel for the defendants dated January 13, 1997, stating that he had reviewed his file and could not find any documentation regarding the default. Finally, the FDIC attached the affidavit of attorney Ivan Rivera, FDIC’s in-house counsel assigned to supervise this case. Rivera stated in the affidavit that he searched the FDIC’s files and found no documentary evidence or notice of any kind to show that the FDIC had been notified of a pretrial conference on June 23,1995, or any other date.

Following oral argument, the court granted the FDIC’s motion to open. We conclude that the evidence submitted in support of the motion to open supports the conclusion that the FDIC did not receive notice of the nonsuit and that it timely filed its motion to open within four months of learning of the nonsuit. The court, therefore, had the authority and properly granted the motion to open the judgment of nonsuit. Id., 747-48; Habura v. Kochanowicz, supra, 40 Conn. App. 592-93.

II

The defendants next argue that the court improperly allowed the FDIC to introduce certain evidence and the testimony of a witness, which had not been disclosed to the defendants until the eve of trial. The FDIC counters that the court did not abuse its discretion in admitting evidence and testimony relating to certain records of the bank. We agree with the FDIC.

The following additional facts are necessary to our resolution of this claim. The contested evidence involved certain reductions in the defendants’ loan balance. The defendants claimed at trial that payments had been made on the loan, resulting in the reduction in the balance. The FDIC countered that the reductions in the loan balance did not reflect payments, but were actually internal “write-downs,” a practice used by the bank when the mortgage balance was not equal to the value of the mortgaged property.

The defendants filed a motion in limine dated April 27, 1999, arguing that certain documents that they received from the FDIC on April 15, 1999, regarding the loan balance should not be admitted into evidence. The defendants claimed that the trial was scheduled for April 27, 1999, and that disclosure of the documents at this late date amounted to “trial by ambush.” During oral argument on the motion, counsel for the defendants argued that counsel for the FDIC had been in possession of the documents for almost one year and had not turned them over to him.

Counsel for the FDIC responded that the defendants had suffered no prejudice because the documents in question, certain debit and credit tickets, were backup documentation to five bank documents that had been supplied to the defendants prior to the May, 1998 trial date. Counsel for the FDIC further stated that the individual who prepared the documents was present at trial and that counsel for the defendants would have a full opportunity for cross-examination. The court inquired of counsel for the defendants whether a continuance would be helpful to examine the documents, and counsel responded that it would not. The court denied the motion in limine and allowed the introduction of the evidence.

“As a threshold matter, we set forth the standard by which we review the trial court’s determinations concerning the admissibility of evidence. Atrial court’s ruling on the admissibility of evidence is entitled to great deference. . . . [T]he trial court has broad discretion in ruling on the admissibility ... of evidence. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and . . . evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of a substantial prejudice or injustice.” (Internal quotation marks omitted.) Hayes v. Decker, 66 Conn. App. 293, 298, 784 A.2d 417 (2001).

The defendants argue that they suffered substantial prejudice and that the court abused its discretion in admitting these documents and permitting the witness to testify. The defendants first contend that, in the absence of the witness and documents, the FDIC would have had a more difficult time proving its case as to the issue of write-downs and, second, that the late disclosure prevented the defendants from having an expert witness examine the documents and comment on them. On the basis of our review of the record, we conclude that these reasons are insufficient to show an abuse of discretion by the court or that the defendants suffered prejudice by the introduction of this evidence. The court heard argument that this evidence was merely supporting documentation of evidence previously disclosed to the defendants. Because the defendants already had notice of the FDIC’s position that the five reductions in the loan balance were internal write-downs, the introduction of this evidence cannot be considered “trial by ambush.” Furthermore, when questioned by the court, counsel for the defendants indicated that a continuance to review the documentation would not be helpful. Under these circumstances, we cannot say that the court abused its discretion in denying the defendants’ motion in limine and allowing the FDIC to present the challenged evidence.

Ill

The defendants’ final claim is that the court improperly failed to adjust the verdict for the undisputed unclean hands of the FDIC. We disagree and conclude that the court properly declined to grant equitable relief to the defendants.

According to the defendants, it is undisputed that the bank lost a $300,000 check for a period of time, and then denied losing it, as did its successor, the FDIC. The defendants argue that as a result, checks written on Joseph Caldrello’s business accounts bounced. The defendants contend that the bank did not give the persons to whom such checks had been written an explanation for the apparent lack of funds in the account and that as a direct result of the actions of the bank, they were unable to fulfill their obligations to the bank in paying the mortgage.

The court found, and we agree, that these claims were not properly before the court. The defendants’ original counterclaim, dated November 7, 1989, contained no such allegations, and, in November, 1991, the court denied the defendants’ request to amend the counterclaim to add such claims. The defendants did not challenge this ruling in their initial appeal to this court. First Constitution Bank v. Caldrello, supra, 37 Conn. App. 529.

Although that issue was not properly before the court, the court acknowledged that it had discretion, on equitable considerations and principles, to withhold foreclosure or reduce the amount of the stated indebtedness. Hamm v. Taylor, 180 Conn. 491, 497, 429 A.2d 946 (1980). The court, citing Hamm, further stated that it had the authority to extend the proceedings to enable the FDIC to respond to these claims. The court, however, held that, for several reasons, such action was not warranted in this case.

As the court properly found, the claims raised by the defendants are collateral to the mortgage foreclosure itself. The allegations involve conduct on the part of the bank that arguably caused damage to the defendants and reduced their ability to pay the mortgage. As the court held, however, there was no evidence that the mortgage itself was unusual or unconscionable. Furthermore, the court found that, although the defendants entered into this transaction as individuals mortgaging residential real property, the alleged losses claimed were business losses suffered by the defendants’ corporation. Finally, the court noted that these claims had been raised in a federal District Court action, which was resolved in favor of the FDIC. Caldrello v. Federal Deposit Ins. Corp., United States District Court, Docket No. 3:93CV1560 (AHN) (D. Conn., June 25, 1996). We conclude, on the basis of these facts, that the court properly declined to grant equitable relief to the defendants.

The judgment is affirmed.

In this opinion the other judges concurred.

       Several subsequent encumbrancers were named as defendants but are not involved in this appeal. We refer in this opinion to the Caldrellos as the defendants.

       On September 11,2000, this court ordered that Republic Credit Corporation be permitted to intervene as an appellee in this appeal. This court further ordered that the FDIC remain a party in the case. On September 27, 2000, this court remanded this case to the trial court for a hearing to consider the effect of the FDIC’s purchase of the subject properties at a tax sale and whether the mortgage being foreclosed was extinguished by the tax sale. On July 18, 2001, the trial court filed its memorandum of decision in which it concluded that the mortgage being foreclosed was not extinguished and is still viable.

       The defendants specifically argue that the court had no jurisdiction to open the judgment of nonsuit. The defendants’ claim, however, challenges the court’s general statutory authority to grant relief, not the court’s jurisdiction. See Kim v. Magnotta, 249 Conn. 94, 102-103, 733 A.2d 809 (1999); Opoku v. Grant, 63 Conn. App. 686, 689-90 n.2, 778 A.2d 981 (2001).

       The nonsuit was rendered on June 23, 1995. The pretrial was scheduled for June 15, 1995.

       The affidavit states in relevant part as follows:
      “7. In April, 1995, shortly after the publication of the opinion reversing and remanding this matter for a new trial, I called [attorney Richard D.] Haviland to discuss plans for the new trial . . . We discussed when the new trial might begin. Haviland said he thought the Court would calendar it in due time. He told me he was very busy.
      “8. On September 15, 1995, having heard nothing from the court or from anyone else about the new trial, I called the clerk’s office in Superior Court in New London to inquire about the Caldrello case, telling the person who answered the phone that it had been remanded for a new trial. She told me that the case must have ‘fallen through the cracks.’
      “9.1 immediately called Attorney Haviland, left a message, and then, later in the day, hearing nothing from him, sent him the letter . . . dated September 15, 1995, in which I suggested that we make a conference call to Leslie Steiner, the Case Flow Coordinator, to see if we could move the case along.
      “10. In the same mail, I sent an Appearance to the Superior Court.
      “11.1 heard nothing from the Court and nothing from Attorney Haviland.
      “12. I first heard about the entry of a nonsuit in this foreclosure action from an attorney who represents the FDIC in the District Court action sometime toward the end of the first week in January, 1997. Attorney Douglas Poulin called to tell me that in the course of a telephonic pretrial conference in the case, now on appeal to the [United States Court of Appeals for the] Second Circuit, after a judgment in favor of the FDIC, Mr. Caldrello mentioned that the FDIC had been defaulted in the foreclosure action.
      “13. I immediately called the Court, only to learn that the file could not be located. I then called Haviland to ask him [what] had happened. He told me that the ‘default’ had entered sometime between the time the case was remanded and September 15. Upon file review, he reported that he believed notice came to him only by word of mouth, not from the Court. . . .
      “14.1 asked Haviland if he had made any attempt to notify me when he heard of the pretrial. He replied that he had been under no obligation to do so. He said that someone at the FDIC must have gotten notice, and if the FDIC failed to notify its counsel, that was not his problem.
      “15.1 asked Haviland whether he believed that as a matter of professional courtesy and candor he should have at the very least responded to my September [15] 1995 letter to tell me that a nonsuit had entered sometime earlier. My note reflects his answer: ‘Apparently not.’ ”

       We note that, this letter, dated September 15,1995, was sent to opposing counsel within four months of the entry of the nonsuit.

       The letter states in relevant part: “I have reviewed my file on this matter and I do not find any documentation regarding the default My best recollection of what happened is that shortly after the foreclosure was remanded back to the trial court a pretrial was scheduled. I did not initially receive notice of that but found out somehow. I attended the pretrial and counsel for the FDIC did not appear, despite having been notified. I recall that your office was not notified, but someone did receive notice on behalf of the FDIC. At that time, Judge Hendel (I think) ordered a default against the FDIC.”

       The motion was granted on the condition that the defendants be given ninety days to complete discovery, with no extension unless granted by the court.

       In so holding, we acknowledge the defendants’ argument that the trial court specifically found that the FDIC had received notice. As the FDIC correctly points out, however, the defendants cite to portions of the transcript regarding notice of the pretrial conference, not notice of the nonsuit. A review of the transcript of the motion to open reveals that the court made no factual findings regarding whether the FDIC received notice of the nonsuit, and the defendants failed to request an articulation on this issue. See Riggio v. Orkin Exterminating Co., 58 Conn. App. 309, 313, 753 A.2d 423, cert. denied, 254 Conn. 917, 759 A.2d 507 (2000).

       It is undisputed that the case originally had been scheduled for retrial in May, 1998, but did not go forward at that lime.

       Counsel for the FDIC argued in relevant part: “The witness who is here to identify those documents is the person who prepared them, and Mr. Haviland will have an opportunity to cross-examine her to whatever extent he feels necessary to make sure that he understands these documents. There was no . . . intention whatsoever to conceal these from him. He already knew that we considered five entries charge-offs. He already knew that there was documentation from the bank, which he had seen, which referenced these charge-offs, and now we simply have more supporting documents.”

       Counsel for the defendants argues that a continuance was discussed as apossibility, but was never actually offered to the defendants. The transcript reveals the following colloquy:
      “The Court: Mr. Haviland, would it be of any benefit to you if this hearing were postponed so that you can have a further opportunity to examine these documents and prepare for cross-examination?
      “[Attorney Richard D. Haviland]: Your Honor, quite frankly it probably wouldn’t, but again this goes—this goes to the pattern here in the federal case of what’s happening in discovery. We get it as a, you know—we get it basically as the FDIC decides we should get it.
      “If this trial was scheduled for this time this spring, early, you know, beginning of February, if I had gotten it then, I wouldn’t be objecting to it, but, you know—you know, there has to be an ending point to the production of documents as they see fit, and I don’t think a continuance would do me any benefit in terms of this. But I think that at some point you have to say enough is enough.”


author: MIHALAKOS, J.

text:
    JUDY SANDVIG ET AL. v. A. DUBREUIL AND SONS, INC., ET AL.
    (AC 20723)
    Schaller, Mihalakos and O’Connell, Js.

      Argued October 31, 2001
    officially released January 25, 2002

      Donald R. Beebe, with whom was Susam B. Carr, for the appellants (plaintiffs).

      Michael S. Burrell, for the appellee (named defendant).

       January 25, 2002, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

   Opinion

MIHALAKOS, J.

The plaintiffs, Judy Sandvig and Karl Sandvig, appeal from the summary judgment rendered by the trial court in favor of the defendant A. Dubreuil and Sons, Inc. On appeal, the plaintiff claims that the court improperly (1) denied her requests to amend her complaint, (2) granted the defendant’s motion for summary judgment because it applied the improper statute of limitations and (3) denied her motion for reconsideration. We affirm the judgment of the trial court.

The pleadings, affidavits and other documentary information presented to the court reveal the following facts and procedural histoiy. On June 23, 1989, the defendant entered into a contract with the board of education of the city of New London, whereby the defendant was to perform renovations to the Charles B. Jennings School in New London. The renovations included the installation of a handicapped access ramp on the basement floor of the school.

On September 26,1991, the plaintiff was injured when she slipped and fell near the handicapped access ramp while she was working as a teacher’s aide. Thereafter, on February 23, 1993, the defendant filed a petition for bankruptcy for which an automatic stay issued pursuant to 11 U.S.C. § 362. By virtue of a complaint dated September 24,1993, the plaintiff brought an action, claiming that her injuries were the result of the defendant’s negligent installation of floor tiles in the area where she fell. On May 3, 1994, the bankruptcy court lifted the automatic stay.

On January 6,1997, the defendant filed its motion for summary judgment, claiming that the plaintiffs action is barred by the statute of limitations. The plaintiff filed a request to amend the complaint dated January 10, 1997, seeking to add to the allegations of negligence, and to which the defendant objected on January 22, 1997. Thereafter, the plaintiff filed a request to amend the complaint dated March 7,1997, seeking to add four new counts sounding in contract and res ipsa loquitur. On March 24, 1997, the defendant filed an objection to the plaintiffs request to amend the complaint.

In its April 30, 1997 memorandum of decision, the court, Handy, J., held that the amendments were new and different actions, and, therefore, the negligence amendments were barred by General Statutes § 52-584, and the contract amendments were barred by General Statutes § 52-576. The court denied the plaintiffs several motions to reargue and for rehearing. On May 7, 1999, the court, Parker, J., ordered the plaintiffs to show cause why the action should not be dismissed because the writ of summons and complaint were dated and served during the time that the automatic bankruptcy stay was in effect, and, therefore, were void and of no legal effect. On March 29, 2000, the court, Parker, J., rendered summary judgment in favor of the defendant on the original negligence counts because the action was time barred by § 52-584. This appeal followed. Additional facts and procedural history will be provided as necessary.

I

REQUESTS TO AMEND

The plaintiff first claims that the court improperly denied her requests to amend the complaint. With regard to the amendments to the negligence count, she argues that the amendments were not new and different causes of action, and, therefore, they related back to the original complaint. As to the contract counts, she argues that because this court affirmed the dismissal of her separate contract action in Sandvig v. A. Dubreuil & Sons, Inc., 53 Conn. App. 466, 730 A.2d 646, cert. denied, 250 Conn. 920, 738 A.2d 659 (1999) (Sandvig I), on the basis of the prior pending action doctrine, the contract claims cannot be new and different as a matter of law. Furthermore, she argues, she had a right to amend the original complaint sounding in tort to include additional counts based on the contract. We disagree.

A

Relation Back and Prior Pending Action Doctrines

1

Negligence Amendments—Relation Back Doctrine

With regard to her claim that the court improperly denied her first request to amend the complaint, the plaintiff argues that the amendments to her negligence counts were simply embellishments. Because the amendments were not “new and different” causes of action, the plaintiff argues, they related back to the original complaint, and, therefore, are valid amendments. We conclude that the court properly determined that the amendments constituted “new and different” causes of action, and, therefore, the request to amend as to the negligence counts was properly denied.

“The relation back doctrine has been well established by this court. A cause of action is that single group of facts which is claimed to have brought about an unlawful injury to the plaintiff and which entitles the plaintiff to relief. ... A right of action at law arises from the existence of a primary right in the plaintiff, and an invasion of that right by some delict on the part of the defendant. The facts which establish the existence of that right and that delict constitute the cause of action. ... It is proper to amplify or expand what has already been alleged in support of a cause of action, provided the identity of the cause of action remains substantially the same, but where an entirely new and different factual situation is presented, a new and different cause of action is stated. . . . Our relation back doctrine provides that an amendment relates back when the original complaint has given the party fair notice that a claim is being asserted stemming from a particular transaction or occurrence, thereby serving the objectives of our statute of limitations, namely, to protect parties from having to defend against stale claims . . . .” (Internal quotation marks omitted.) Alswanger v. Smego, 257 Conn. 58, 64-65, 776 A.2d 444 (2001). “The fact that the same defendant is accused of negligence in each complaint and the same injury resulted . . . does not make any and all bases of liability relate back to an original claim of negligence.” Sharp v. Mitchell, 209 Conn. 59, 73, 546 A.2d 846 (1988).

We have had prior occasion to review claims similar to those presented in this case in Patterson v. Szabo Food Service of New York, Inc., 14 Conn. App. 178, 540 A.2d 99, cert. denied, 208 Conn. 807, 545 A.2d 1104 (1988). In Patterson, the plaintiff attempted to amend his complaint to reflect additional negligence allegations. The original complaint alleged that the defendant had failed to clean a floor on which the plaintiff fell and sustained injuries. The amended complaint, however, alleged that the defendant created the dangerous condition. We concluded that “the substitute complaint presents a new and different factual situation from that stated in the original complaint and that it therefore states a new and different cause of action.” Id., 183.

The plaintiff argues that the amendments to the negligence claims were merely embellishments and did not constitute a new negligence action. The original complaint alleged that the defendant negligently failed to finish the floor in the area by the ramp. The proposed amended complaint alleged that the defendant negligently damaged the tiles when it installed the ramp. To prove that the defendant actively damaged the tiles requires a different factual predicate than to prove that the defendant failed to repair already damaged or exposed tiles. Because the plaintiff must prove a different set of facts, the amendments constitute new and different causes of action, and, therefore, do not relate back to the original complaint.

2

Contract Amendments—Prior Pending Action Doctrine

With regard to her claim that the court improperly denied her second request to amend the complaint, the plaintiff argues that because this court affirmed the dismissal of her contract action in Sandvig I on the basis of the prior pending action doctrine, the contract counts must be a part of the original cause of action, and therefore, cannot be a new and different action as a matter of law. The plaintiff is mistaken.

In Sandvig I, this court concluded that the trial court properly applied the prior pending action doctrine “[bjecause our review of the record reveals that the pleadings in the contract action are virtually identical to those raised by the complaint in the plaintiffs’ negligence action . . . .” (Emphasis added.) Sandvig I, supra, 53 Conn. App. 470. That conclusion is not inconsistent with the trial court’s application of the relation back doctrine in the present action.

“The prior pending action doctrine permits the court to dismiss a second case that raises issues currently pending before the court. The pendency of a prior suit of the same character, between the same parties, brought to obtain the same end or object, is, at common law, good cause for abatement. It is so, because there cannot be any reason or necessity for bringing the second, and, therefore, it must be oppressive and vexatious. This is a rule of justice and equity, generally applicable, and always, where the two suits are virtually alike, and in the same jurisdiction. . . . We must examine the pleadings to ascertain whether the actions are virtually alike . . . and whether they are brought to adjudicate the same underlying rights.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., 469.

The plaintiff further argues that the court improperly applied the relation back doctrine in light of this court’s conclusion in Sandvig I that the actions were virtually identical. Otherwise, the plaintiff argues, the relation back doctrine and the prior pending action doctrine are inconsistent. We do not agree.

Although the amended complaint alleged negligence related to the same injury, it was based on a factual scenario different from that in the original complaint. That the injuries alleged and the parties involved in each complaint were identical ignores the fact that the allegations in the complaints were based on different facts. We conclude that the relation back doctrine was properly applied in light of the prior pending action doctrine because although the pleadings in the two actions were virtually alike, the facts necessary to prove the allegations in the amended complaint were new and different from those necessary to the original complaint. The amendments, therefore, form a new and different cause of action and do not relate back to the original complaint. Thus, the court properly denied the plaintiffs request to amend the complaint.

B

Statutory Right to Amend

The plaintiff next claims that she had a right to amend her negligence complaint to include a contract count pursuant to General Statutes § 52-136, and Practice Book §§ 10-62 and 10-65. We do not reach the merits of those claims because the plaintiff has not properly preserved the record.

The court’s memorandum of decision is silent as to the arguments concerning § 52-136, and Practice Book §§ 10-62 and 10-65, and the plaintiff did not seek an articulation from the court in that regard. “It is the responsibility of the [plaintiff] to provide an adequate record for review . . . .” Practice Book § 60-5. Because there is no articulation of the court’s reasoning, we are unable to review those claims. See Bradley v. Randall, 63 Conn. App. 92, 97, 772 A.2d 722 (2001).

The plaintiff also argues that Practice Book § 10-60 does not allow a trial court to make factual findings where the facts are disputed. The plaintiff fails to provide either legal authority or analysis to support that claim. “We are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” (Internal quotation marks omitted.) In re Shane P., 58 Conn. App. 234, 243-44, 753 A.2d 409 (2000). “We will not review claims absent law and analysis.” Altfeter v. Naugatuck, 53 Conn. App. 791, 796 n.5, 732 A.2d 207 (1999).

II

SUMMARY JUDGMENT

The plaintiff next claims that the court improperly granted the defendant’s motion for summary judgment by concluding that there was no genuine issue of material fact and the action was time barred as a matter of law. She claims that the court did not apply the correct statute of limitations. Specifically, she first argues that either General Statutes (Rev. to 1991) § 52-584a, applicable to architects and professional engineers, or General Statutes § 52-577a, applicable to products liability, is the appropriate statute regarding the negligence amendments. Next, she argues that General Statutes § 52-595, which concerns fraudulent concealment, tolls the statute of limitations during the entire period of concealment. Furthermore, she argues, any statute of limitations was tolled by the defendant’s bankruptcy. Last, the plaintiff argues that the statute of limitations with regard to the contract claims did not begin to accrue until the completion of the contract. We are not persuaded.

The standard for appellate review of a trial court’s decision to grant a motion for summary judgment is well established. Practice Book § 17-49 provides that summary judgment “shall be rendered forthwith if the 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.” “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.” (Internal quotation marks omitted.) Bishel v. Connecticut Yankee Atomic Power Co., 62 Conn. App. 537, 543, 771 A.2d 252, cert. denied, 256 Conn. 915, 773 A.2d 943 (2001).

The plaintiff was injured on September 26,1991. Furthermore, she concedes that the defendant completed the work no later than November, 1989. The action was not brought until September 24,1993, almost four years from the date of the alleged act or omission. Thus, the court properly found that there was no genuine issue of material fact.

We must now determine whether the defendant was entitled to judgment as a matter of law. Because the matter of whether a party’s claim is barred by the statute of limitations is a question of law, we review the plaintiffs claims de novo. Giulietti v. Giulietti, 65 Conn. App. 813, 833, 784 A.2d 905, cert. denied, 258 Conn. 946, 947, 788 A.2d 95, 96, 97 (2001).

A

Statutes of Limitation

The plaintiff first argues that § 52-584a is the statute of limitations applicable to her negligence claims. The court found that § 52-584 is the proper statute of limitations. We agree with the court.

General Statutes (Rev. to 1991) § 52-584a is limited to actions involving architects and professional engineers. The plaintiff did not at any time allege that the defendant is an architect or a professional engineer. Moreover, in its April 29, 1997 decision denying the plaintiffs requests to amend, the court found that “there is nothing before this court indicating that [the] defendant is anything but a contractor.” Because there is no dispute that the defendant is not an architect or a professional engineer, but rather, a general contractor, § 52-584a does not apply as a matter of law.

The plaintiff next claims that § 52-577a is the applicable statute of hmitations. Specifically, she argues that a contractor is liable for all foreseeable harm resulting from its negligence, and, further, contractor liability is product liability and, therefore, starts from the date of injury. We disagree.

The plaintiff argues that Coburn v. Lenox Homes, Inc., 173 Conn. 567, 378 A.2d 599 (1977), and Minton v. Krish, 34 Conn. App. 361, 642 A.2d 18 (1994), render § 52-584 inapplicable to this case. According to the plaintiff, a contractor is liable for all foreseeable harm resulting from its negligence. That argument is misplaced because the cases on which the plaintiff relies are inapposite. Those cases hold that a contractor may be held hable for its negligence even after his work has been completed and accepted. In fact, neither Coburn nor Minton even discusses the applicable statute of limitations.

The plaintiff finally claims that § 52-595 is the applicable statute of limitations. Specifically, she argues that “[t]he concealment of documents by the defendant prevented the statute of limitations from starting until the production of the fraudulently concealed documents on 10/8/97.” We decline to review that claim.

The court’s memorandum of decision is silent as to the arguments concerning § 52-595. As we previously noted, “[i]t is the responsibility of the [plaintiff] to provide an adequate record for review . . . .” Practice Book § 60-5. Because there is no articulation of the court’s reasoning, we are unable to review the plaintiffs claim. See Bradley v. Randall, supra, 63 Conn. App. 97.

Section 52-584 is the statute of limitations applicable to the plaintiffs negligence claims. A negligence claim must be brought within two years of the injury, but cannot be brought after three years from the date of the act or omission. The plaintiff concedes that the defendant completed the work no later than November, 1989. The plaintiff was injured on September 26, 1991. The action was not brought until September 24, 1993, almost four years from the date of the alleged act or omission. The plaintiffs entire negligence action, including the amendments, is, therefore, time barred as a matter of law.

B

Bankruptcy

The plaintiff next claims that the statute of limitations was tolled by the defendant’s bankruptcy. Specifically, she argues that the statute of limitations was tolled for the period of time between the defendant’s filing of the bankruptcy petition and the date on which the automatic stay was lifted. We disagree.

In February, 1993, the defendant filed a petition for bankruptcy for which an automatic stay issued pursuant to 11 U.S.C. § 362 (a). The plaintiff commenced her action after the defendant filed its petition and during the time that the automatic stay was in effect. On May 3, 1994, the Bankruptcy Court lifted the automatic stay pursuant to 11 U.S.C. § 362 (d). The plaintiff did not reinitiate commencement of her action, but rather, filed a request to amend the complaint on January 10, 1997. The plaintiff represents to this court that the statute of limitations was tolled by the bankruptcy action for one year, two months and eight days pursuant to 11 U.S.C. § 108 (c).

Contrary to the plaintiffs argument, statutes of limitation are not tolled by an automatic bankruptcy stay. If the statute of limitations has expired during the automatic bankruptcy stay, the plaintiff has thirty days from the notice of termination or expiration of the stay within which to commence her action. 11 U.S.C. § 108 (c). Indeed, 11 U.S.C. § 108 (c) provides only for the extension of the applicable time deadlines for thirty days if such deadline would have expired prior to the termination of the stay. See Aslanidis v. United States Lines, Inc., 7 F.3d 1067, 1073 (2d Cir. 1993). The tolling rationale posited by the plaintiff “does not apply in the bankruptcy arena because plaintiffs have advance knowledge of when claims are to expire and may act to protect themselves.” Id., 1074.

The automatic stay was lifted on May 3, 1994. As we have previously concluded, the deadline for commencing the plaintiffs negligence action is governed by § 52-584 and expired prior to the lifting of the automatic stay. Because the plaintiff did not commence her action anew on or before June 2, 1994, the plaintiff cannot save her action under the Bankruptcy Code.

C

Accrual of Claim

Last, the plaintiff argues that the statute of limitations with regard to the contract claims did not begin to accrue until the completion of the contract. Furthermore, she argues, there was a genuine issue of material fact as to when the work was completed. We decline to review that claim.

In its April 29, 1997 memorandum of decision, the court, Handy, J., found that the “[defendant, A. Dubreuil and Sons, Inc., completed work in this area (the site of the alleged incident) in September of 1989. The six years ran in September of 1995; the amendment was made on March 7, 1997, well outside the six year statute.”

The plaintiff has not provided this court with a copy of the entire contract. Moreover, she has failed to seek an articulation of the court’s reasoning for concluding that the statute of limitations relating to the contract claims expired in September, 1995. Again, as previously noted, the plaintiff must provide this court with an adequate record for review. See Practice Book § 60-5. Because there is no articulation of the court’s reasoning, we are unable to review her claims. See Bradley v. Randall, supra, 63 Conn. App. 97.

Ill

MOTION FOR RECONSIDERATION

The plaintiffs final claim is that the court improperly denied her motion for reconsideration. Specifically, she claims that because the court had the authority to reconsider the matter, it should have exercised that power. We disagree.

“Our standard of review regarding challenges to a trial court’s ruling on a motion for reconsideration is abuse of discretion.” (Internal quotation marks omitted.) Barzetti v. Marucci, 66 Conn. App. 802, 808, 786 A.2d 432 (2001). The plaintiff failed to address that issue adequately in her brief. She “has neither provided this court with meaningful analysis nor cited to any authority as to why the trial court abused its discretion in denying her motion. We therefore deem the issue abandoned.” Id.

The judgment is affirmed.

In this opinion the other judges concurred.

       Although Kail Sandvig is a party to this appeal, his claims are derived solely from his spousal relationship with Judy Sandvig. We therefore refer in this opinion only to Judy Sandvig as the plaintiff.

       In addition, the plaintiff named “John Doe” as a defendant. She “served” John Doe on October 12, 1993, by virtue of a notice published in the New London Day, a newspaper having general circulation in the New London area, where the incident at issue in this appeal occurred. On July 16, 1996, the plaintiff filed a revised amended complaint, substituting “John Doe” with Colonial Carpet and Tile, Inc. On May 7, 1999, the court, Parker, J., rendered summary judgment in favor of Colonial Carpet and Tile, Inc., because the action was time barred. The court concluded that “[i]nsofar as Colonial Carpet and Tile, Inc., is concerned, the action was entirely new as of May 17,1996. The notice to the nonexistent John Doe can not be construed as having any effect on Colonial Carpet and Tile, Inc.” The plaintiff filed a notice of intent to appeal and included documents relating to Colonial Carpet and Tile, Inc., in the record. She did not, however, pursue any claims relating to Colonial Carpet and Tile, Inc., and, therefore, it is not a party to this appeal. We therefore refer in this opinion to A. Dubreuil and Sons, Inc., as the defendant.

       The revised amended complaint dated July 12, 1996, is the operative complaint in this matter. In counts one and two, the plaintiff alleges:
      “4. The defendant, through its agents, servants and/or employees negligently and carelessly created the defective condition in the hallway in which the plaintiff fell in one or more of the following ways, inter alia,
      “a) Left the tile floor unfinished, exposing an area of the underlying rough and uneven cement; and/or
      “b) Failed to smooth the exposed cement; and/or
      “c) Failed to cover the exposed cement with a temporary safe surface; and/or
      “d) Failed to finish the job by placing tile; and/or
      “e) Failed to warn of the defective condition; and/or
      “f) Failed to cordon off the area in which the tiles were missing.”
      Because Colonial Carpet and Tile, Inc., is not a party to this appeal, we refer only to those counts involving A. Dubreuil and Sons, Inc. See footnote 2.

       The plaintiffs requested amendments would have added the following to paragraph four:
      “g) In the process of working in the hallway, damaged the existing tiles; and/or
      “h) Fail[ed] to repair the defective condition and/or damaged tiles created.”

       General Statutes § 52-584 provides in relevant part: “No action to recover damages for injury to the person . . . caused by negligence, or by reckless or wanton misconduct . . . shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of . . . .”

       General Statutes § 52-576 (a) provides in relevant part: “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 . . . .”

       On May 13,1999, the plaintiff filed a motion to dismiss the court’s decision issuing an order to show cause on the basis of a trial on summary judgment. The court, Parker, J., denied the motion as frivolous because no trial of the case had been held at any time. In addition, the plaintiff filed a motion to set aside a judgment and for a new trial. The court also denied that motion, finding that it “is just another frivolous motion filed by the plaintiffs. No judgment has been rendered regarding the defendant A. Dubreuil and Sons, Inc. . . . The order to show cause decided nothing. . . . There was no trial in this case on December 7, 1998, or at any other time. General Statutes § 51-183b is not applicable. . . . The motion is denied.”

       By complaint dated April 15, 1997, the plaintiff commenced a second action alleging breach of contract. The trial court dismissed the action on the basis of the prior pending action doctrine. This court upheld that dismissal on May 25, 1999. Sandvig I, supra, 53 Conn. App. 466.

       The plaintiff also argues that the defendant was put on notice by the use of the phrase “inter alia” that the list of negligence allegations was not exhaustive. We fail to see how the phrase “inter alia” provides the defendant with the requisite notice. See Alswanger v. Smego, supra, 257 Conn. 65 (concluding that relation back doctrine provides that amendment relates back when original complaint has given party fair notice that claim is asserted stemming from particular transaction or occurrence).

       General Statutes § 52-136 provides in relevant part: “[A]ny complaint founded on a tort may be amended so as to set forth instead a cause of action for a breach of contract arising out of the same transaction or subject of action.”

       Practice Book § 10-62, formerly § 178, provides in relevant part: “In all cases of any material variance between allegation and proof, an amendment may be permitted at any stage of the trial. . . .”

       Practice Book § 10-65, formerly § 181, provides in relevant part: “[A] complaint founded on a tort may be amended so as to set forth a cause of action for a breach of contract arising out of the same transaction . . . .”

       Practice Book § 10-60, formerly § 176, provides in relevant part: “(a) Except as provided in Section 10-66, a party may amend Ms or her pleadings or other parts of the record or proceedings at any time subsequent to that stated in the preceding section in the following manner:
      * ** *
      “(3) By filing a request for leave to file such amendment, with the amendment appended, after service upon each party as provided by Sections 10-12 through 10-17, and with proof of service endorsed thereon. If no objection thereto has been filed by any party within fifteen days from the date of the filing of said request, the amendment shall be deemed to have been filed by consent of the adverse party. If an opposing party shall have objection to any part of such request or the amendment appended thereto, such objection in writing specifying the particular paragraph or paragraphs to which there is objection and the reasons therefor, shall, after service upon each party as provided by Sections 10-12 through 10-17 and with proof of service endorsed thereon, be filed with the clerk within the time specified above and placed upon the next short calendar list.
      “(b) The judicial authority may restrain such amendments so far as may be necessary to compel parties to join issue in a reasonable time . . . .”

       General Statutes (Rev. to 1991) § 52-584a (a) provides in relevant part: “No action or arbitration, whether in contract, in tort, or otherwise, (1) to recover damages (A) for any deficiency in the design, planning, contract administration, supervision, observation of construction or construction of an improvement to real property . . . (C) for iryury to the person . . . arising out of any such deficiency . . . shall be brought against any architect or professional engineer performing or furnishing the design, planning, supervision or observation of construction or construction of such improvement more than seven years after substantial completion of such improvement.”

       General Statutes § 52-577a (a) provides in relevant part: “No product liability claim as defined in section 52-572m shall be brought but within three years from the date when the injury ... is first sustained or discovered or in the exercise of reasonable care should have been discovered except that, subject to sections (c), (d) and (e), no such action may be brought against any party nor may any party be impleaded pursuant to subsection (b) later than ten years from the date that the party last parted with possession or control of the product.”

       General Statutes § 52-595 provides: “If any person, liable to an action by another, fraudulently conceals from him the existence of the cause of such action, such cause of action shall be deemed to accrue against such person so liable therefor at the time when the person entitled to sue Ihereon first discovers its existence.”

         Title 11 of the United States Code, § 362 (a), provides in relevant part: “Except as provided in subsection (b) of this section, a petition filed under section 301, 302, or 303 of this title . . . operates as a stay, applicable to all entities, of—
      “(1) the commencement or continuation ... of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title . . . .”

       Title 11 of the United States Code, § 362 (d), provides in relevant part: “On request of a party in interest and after notice and a hearing, the court shall grant relief from the stay provided under subsection (a) of this section, such as by terminating, annulling, modifying, or conditioning such stay—
      “(1) for cause . . . .”

       Title 11 of the United States Code, § 108 (c), provides in relevant part: “Except as provided in section 524 of this title, if applicable nonbankruptcy law . . . fixes a period for commencing or continuing a civil action in a court other than a bankruptcy court on a claim against the debtor . . . and such period has not expired before the date of the filing of the petition, then such period does not expire until the later of—
      “(1) the end of such period, including any suspension of such period occurring on or after the commencement of the case; or
      “(2) 30 days after notice of the termination or expiration of the stay under section 362 ... of this title . . . with respect to such claim.”

       The plaintiff has provided a copy of the standard form of agreement between owner and contractor entered into between the defendant and the New London board of education. It is, however, a standard form agreement produced by the American Institute of Architects. She has not provided a complete copy of the specifications detailing the terms and conditions of the standard form agreement.