author: SCHALLER, J.

text:
    NEW ENGLAND ROCK SERVICES, INC., ET AL. v. EMPIRE PAVING, INC., ET AL.
    (AC 17818)
    O’Connell, C. X, and Fotí and Schaller, Js.
    Argued February 17
    officially released June 15, 1999

      Dominic J. Caciopoli, for the appellants (defendants).

      Thomas J. Farrell, for the appellee (named plaintiff).
   Opinion

SCHALLER, J.

The defendants, Empire Paving, Inc. (Empire), and its bonding company, American Insurance Company, doing business as Fireman’s Fund Insurance Company (Fireman’s Fund), appeal from the judgment of the trial court awarding damages to the named plaintiff, New England Rock Services, Inc. (Rock Services), under a contract between the parties. The principal issue on appeal is whether the trial court improperly concluded that an agreement made by the parties on December 9, 1995, modified an earlier contract executed by them on October 26, 1995. We affirm the judgment of the trial court.

The following facts are relevant to the disposition of this appeal. On October 26,1995, Empire entered into a contract with Rock Services under which Rock Services would provide drilling and blasting services as a subcontractor on the Niles Hill Road sewer project on which Empire was the general contractor and the city of New London was the owner. Pursuant to the contract, Rock Services agreed to drill and blast a certain amount of rock encountered on the sewer project. In return, Rock Services was to be paid an agreed upon price of $29 per cubic yard with an estimated amount of 5000 cubic yards, or on a time and materials basis, whichever was less.

On October 31, 1995, Rock Services commenced work on the project. From the beginning, Rock Services experienced a number of problems with the project. The primary obstacle was the presence of a heavy concentration of water on the site. The water problem hindered Rock Services’ ability to complete its work as anticipated. The trial court found that it was the custom and practice in the industry for the general contractor to control the water on the site and that, on this particular job, Empire failed to control the water on the site properly. In an effort to mitigate the water problem, Rock Services attempted to “load behind the drill,” a process that allows a blaster to load the drilled hole with a charge immediately after the hole is drilled, before water has the opportunity to seep into the hole. The city fire marshal, however, refused to allow Rock Services to employ this method of drilling. See Regs., Conn. State Agencies § 29-349-238. Thereafter, in order to complete its work, Rock Services was compelled to use the more costly and time consuming method of casing the blasting hole, a process that requires the blaster to drive a plastic casing down into the drilled hole to prevent seepage.

In late November, 1995, Rock Services advised Empire that it would be unable to complete the work as anticipated because of the conditions at the site and requested that Empire agree to amend the contract to allow Rock Services to complete the project on a time and materials basis. On December 8, 1995, Empire signed a purchase order that modified the original agreement. The modification required Empire to pay for the blasting work on a time and materials basis for the remainder of the project. Rock Services, thereafter, completed its work on the project.

Upon completion of the work, Empire refused to pay Rock Services for the remaining balance due on the time and materials agreement in the amount of $58,686.63, and Rock Services instituted this action. The trial court concluded that the later purchase order was a valid and enforceable modification of the earlier contract. The trial court found that the parties intended the purchase order to modify the earlier agreement and that Empire’s assent to the modification was not made under duress but, rather, was a calculated business decision. After finding Empire’s withholding of the amount due to Rock Services wrongful, the trial court awarded Rock Services damages in the amount of $58,686.63, plus interest and costs. This appeal followed.

On appeal, Empire claims that the trial court improperly found that the later purchase order was a valid and enforceable modification of the earlier contract. Specifically, Empire claims that the later agreement lacked the requisite consideration to be a valid and enforceable modification of the earlier contract. We disagree.

“As an appellate court, our review of trial court decisions is limited to determining whether their legal conclusions are legally and logically correct, [and] supported by facts set out in the memorandum of decision. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).”Harris Calorific Sales Co. v. Manifold Systems, Inc., 18 Conn. App. 559, 563, 559 A.2d 241 (1989). Whether a contract or a subsequent modification exists is a question of fact for the court to determine. Id.; see also Three S. Development Co. v. Santore, 193 Conn. 174, 177-78, 474 A.2d 795 (1984); Randolph Construction Co. v. Kings East Carp., 165 Conn. 269, 277, 334 A.2d 464 (1973); Thermoglaze, Inc. v. Morningside Gardens Co., 23 Conn. App. 741, 745, 583 A.2d 1331, cert. denied, 217 Conn. 811, 587 A.2d 153 (1991). “If the factual basis of the court’s decision is challenged, our review includes determining whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.” (Internal quotation marks omitted.) Harris Calorific Sales Co. v. Manifold Systems, Inc., supra, 563.

In concluding that the modification was valid and enforceable, the trial court determined that the later agreement was supported by sufficient consideration. The trial court relied on Harris Calorific Sales Co. v. Manifold Systems, Inc., supra, 18 Conn. App. 564, to support its determination that the parties’ mutual promises were sufficient consideration to bind them to the modification. We conclude that Harris Calorific Sales Co. does not support the finding of modification under the circumstances of this case. We do conclude, however, that the trial court’s disposition of the case is correct. “Where the trial court reaches a correct decision but on mistaken grounds, this court has repeatedly sustained the trial court’s action if proper grounds exist to support it.” Morris v. Costa, 174 Conn. 592, 597-98, 392 A.2d 468 (1978).

“The doctrine of consideration is fundamental in the law of contracts, the general rule being that in the absence of consideration an executory promise is unenforceable.” State National Bank v. Dick, 164 Conn. 523, 529, 325 A.2d 235 (1973). While mutual promises may be sufficient consideration to bind parties to a modification; Harris Calorific Sales Co. v. Manifold Systems, Inc., supra, 18 Conn. App. 564-65; Gordon v. Indusco Management Corp., 164 Conn. 262, 267-68, 320 A.2d 811 (1973); Taft Realty Corp. v. Yorkhaven Enterprises, Inc., 146 Conn. 338, 342, 150 A.2d 597 (1959); a promise to do that which one is already bound by his contract to do is not sufficient consideration to support an additional promise by the other party to the contract. Thermoglaze, Inc. v. Morningside Gardens Co., supra, 23 Conn. App. 744-46.

“A modification of an agreement must be supported by valid consideration and requires a party to do, or promise to do, something further than, or different from, that which he is already bound to do. [State National Bank v. Dick, supra, 164 Conn. 529]; Dahl v. Edwin Moss & Son, Inc., 136 Conn. 147, 155, 69 A.2d 562 (1949); Simone v. Kirschner, 100 Conn. 427, 429, 124 A. 20 (1924). It is an accepted principle of law in this state that when a party agrees to perform an obligation for another to whom that obligation is already owed, although for lesser remuneration, the second agreement does not constitute a valid, binding contract. See, e.g., Dahl v. Edwin Moss & Son, Inc., [supra, 147]; Gruber v. Klein, 102 Conn. 34, 127 A. 907 [1925]; Warren v. Skinner, 20 Conn. 559 [1850]. The basis of the rule is generally made to rest upon the proposition that in such a situation he who promises the additional [work] receives nothing more than that to which he is already entitled and he to whom the promise is made gives nothing that he was not already under legal obligation to give. 1 Williston on Contracts, § 130. Blakeslee v. Board of Water Commissioners, 106 Conn. 642, 652, 139 A. 106 [1927], Brian Construction & Development Co. v. Brighenti, 176 Conn. 162, 166, 405 A.2d 72 (1978). Simone v. Kirschner, supra [429].” (Internal quotation marks omitted.) Thermoglaze, Inc. v. Morningside Gardens Co., supra, 23 Conn. App. 745-46.

Our Supreme Court in Blakeslee v. Board of Water Commissioners, supra, 106 Conn. 656, however, articulated an exception to the preexisting duty rule: “ ‘[W]here a contract must be performed under burdensome conditions not anticipated, and not within the contemplation of the parties at the time when the contract was made, and the promisee measures up to the right standard of honesty and fair dealing, and agrees, in view of the changed conditions, to pay what is then reasonable, just, and fair, such new contract is not without consideration within the meaning of that term, either in law or in equity.’ ” As to the test to be applied in such a situation, our Supreme Court in Blakeslee quoted with approval the Supreme Court of Minnesota in King v. Duluth, Missabe & Northern Ry. Co., 61 Minn. 482, 488, 63 N.W. 1105 (1895): “ ‘What unforeseen difficulties and burdens will make a party’s refusal to go forward with his contract equitable, so as to take the case out of the general rule and bring it within the exception, must depend upon the facts of each particular case. They must be substantial, unforeseen, and not within the contemplation of the parties when the contract was made. They need not be such as would legally justify the party in his refusal to perform his contract, unless promised extra pay, or to justify a court of equity in relieving him from the contract; for they are sufficient if they are of such a character as to render the party’s demand for extra pay manifestly fair, so as to rebut all inference that he is seeking to be relieved from an unsatisfactory contract, or to take advantage of the necessities of the opposite party to coerce from him a promise for further compensation. Inadequacy of the contract price which is the result of an error of judgment, and not of some excusable mistake of fact, is not sufficient.’ ” Blakeslee v. Board of Water Commissioners, supra, 657. This theory of unforeseen circumstances is applicable to the facts of this case.

Empire argues strenuously that the water conditions on the site cannot qualify as a new circumstance that was not anticipated at the time the original contract was signed. To support its contention, Empire points to the contract documents prepared for the city of New London, which contained all the job specifications. Empire asserts that those job specifications were incorporated by reference into Rock Services’ subcontract agreement. Empire claims that the job specifications “set out all the known site conditions” and “included specific information that the rock ledge that [Rock Services] was to drill and blast existed below the known water table.” Empire claims, therefore, that Rock Services was not confronted with any new circumstances not specifically contemplated when their contract was made.

Empire’s argument, however, is misplaced. Rock Services does not argue that it was unaware of the water conditions on the site but, rather, that Empire’s failure to control or remove the water on the site constituted the new or changed circumstance. Rock Services argues that Empire’s duty to control or remove the water on the job site arose in accordance with the custom and practice in the industry and, therefore, Empire’s failure to control or remove the water on the site constituted a new circumstance that Rock Services did not anticipate at the time the original contract was signed.

In its memorandum of decision, the trial court found that Empire had a duty to control or remove the water from the job site according to the custom and practice in the industry and project specifications. Empire claims, however, that the trial court improperly looked outside the parties’ original contract to the industry custom and practice to find a duty to control or remove the water. Essentially, Empire argues that the language of the written contract was clear, and that the finding of an industry custom or practice that general contractors control or remove the water on job site, varied the written contract and imposed upon Empire a duty that it did not contract to perform.

Empire is correct to point out that the language of the contract is silent and by itself does not give rise to a contractual obligation to control or remove the water from the site prior to Rock Services’ drilling and blasting. Because the contract is silent on that issue, however, it does not indicate the parties’ intent as to Empire’s obligation to control or remove the water on the site. Under those circumstances, the trial court, in order to determine the intent of the parties on this issue, looked properly to the industry custom and practice. Absent a finding that the industry custom or practice contradicts or varies the specific terms of the written contract, the use of an industry custom or trade is appropriate “to interpret the otherwise indeterminate intentions of the parties, and to ascertain the nature and extent of their contracts, arising not from express stipulations, but from mere implications and presumptions, and acts of a doubtful or equivocal character. ... It is therefore not only proper, but necessary, in order to do justice between the parties, to construe the contract with reference to the custom as found by the court.” (Citations omitted; internal quotation marks omitted.) Olesen v. Beckanstin, 93 Conn. 614, 618-19, 107 A. 514 (1919); see also L. F. Pace & Sons, Inc. v. Travelers Indemnity Co., 9 Conn. App. 30, 38-39, 514 A.2d 766, cert. denied, 201 Conn. 811, 516 A.2d 886 (1986); 2 Restatement (Second), Contracts § 222 (1981). Here, the trial court properly found and applied the industry custom and practice to the written contract to interpret the parties’ indeterminate intentions. Thus, it may be taken that the industry trade and practice entered into, and became part of, the contract. L. F. Pace & Sons, Inc. v. Travelers Indemnity Co., supra, 38-39; see also Olesen v. Beckanstin, supra, 618-19.

In addition to finding that Empire had a duty to control or remove the water from the job site, the trial court found further that Empire’s failure to control or remove the water from the site made Rock Services’ working conditions sufficiently burdensome to prevent Rock Services from completing the work as anticipated, forcing Rock Services to attempt to use a different method of drilling and ultimately compelling Rock Services to use the more costly and time consuming method of casing the blasting hole. The trial court further found that Empire’s failure to control or remove the water on the site constituted a new circumstance not anticipated by the parties at the time the original contract was signed. In addition, the trial court also found that Rock Services’ request for the modification was not wrongful but, rather, was justified under the circumstances and did not constitute duress as a matter of law.

Upon our review of the record, we conclude that the trial court’s findings of fact are supported by the record and are not clearly erroneous. On the basis of the trial court’s findings, as supported by the record, we conclude that the later purchase order was a valid and enforceable modification to the earlier contract.

The judgment is affirmed.

In this opinion the other judges concurred.

       Western Mass. Blasting Corporation, a subcontractor of Rock Services on the project and an original plaintiff in this case, withdrew its claims prior to trial.

       Fireman’s Fund executed a labor and materials bond in connection with the Niles Hill Road project, pursuant to which Fireman’s Fund was obligated to pay all contractors and subcontractors who performed work on, or provided materials to, the project. On appeal, Fireman’s Fund asserts that its liability is entirely contingent upon Empire’s liability for the debt.

       Section 29-349-238 of the Regulations of Connecticut State Agencies provides: “No loading operation shall be conducted within 25 feet of a drilling operation.”

       Empire did pay Rock Services a portion of the balance invoiced by calculating the amount of rock removed from the site at $29 per cubic yard and deducting various setoffs.

       Alternatively, the trial court concluded that Rock Services had also proven its claim of promissory estoppel, finding that Rock Services had completed the project in reliance on Empire’s promise to pay on a time and materials basis.

       Because it found that Rock Services had satisfied the procedural prerequisites for a valid bond claim, including notice to the surety, the trial court also concluded that Fireman’s Fund breached its obligation to pay on the bond pursuant to General Statutes § 49-41 et seq.

       Because we conclude that the later agreement was a valid and enforceable modification, we need not reach Empire’s other claim that the trial court improperly concluded that Rock Services had also proven its claim of promissory estoppel.

       The trial court heard testimony from John Gilman, a representative of Rock Services with over thirty years experience in the blasting trade, that it was the custom and practice in the industry for the general contractor to control the water on the job site, and that water could almost always be controlled by the general contractor through the use of pumps, sumps and well points. Representatives from Empire testified conversely that Empire had never been obligated to remove water from a job site for a predrilling operation. “Where there is conflicting evidence ... we do not retry the facts or pass upon the credibility of the witnesses.” (Internal quotation marks omitted.) Emhart Industries, Inc. v. Amalgamated Local Union 376, U.A.W, 190 Conn. 371, 404, 461 A.2d 422 (1983). The probative force of conflicting evidence is for the trier to determine. Bowman v. 1477 Central Avenue Apartments, Inc., 203 Conn. 246, 257, 524 A.2d 610 (1987). “In a case tried before a court,, the trial judge is the sole arbiter of the credibility of the witnesses and the weight, to be given specific testimony.” (Internal quotation marks omitted.) Steiger v. J. S. Builders, Inc., 39 Conn. App. 32, 34-35, 663 A.2d 432 (1995). “The trier is free to accept or reject, in whole or in part, the testimony offered by either party.” Smith v. Smith, 183 Conn. 121, 123, 438 A.2d 842 (1981).

       Section 222 of the Restatement (Second), Contracts (1981), provides in relevant part: “(1) A usage of trade is a usage having such regularity of observance in a place, vocation, or trade as to justify an expectation that it will be observed with respect to a particular agreement. ... (2) The existence and scope of a usage of trade are to be determined as questions of fact. ... (3) Unless otherwise agreed, a usage of trade in the vocation or trade in which the parties are engaged or a usage of trade of which they know or have reason to know gives meaning to or supplements or qualifies their agreement.”


source: Caselaw Access Project

author: SPEAR, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. NICHOLAS RUSSO
    (AC 19291)
    O’Connell, C. X, and Foti and Spear, Js.

      Considered April 14
    officially released June 15, 1999

      Kevin T. Kane, state’s attorney, in support of the motion.

      Hugh F. Keefe, in opposition to the motion.
   Opinion

SPEAR, J.

The defendant, Nicholas Russo, has appealed to this court from the order of the trial court that denied his motion for suspension of prosecution and for treatment for alcohol or drug dependency. We conclude that the appeal is premature and, therefore, grant the state’s motion to dismiss.

The defendant pleaded not guilty to four counts of obtaining controlled substances through fraud and deceit in violation of General Statutes § 21a-266 (a) (1) and four counts of forgery in the second degree in violation of General Statutes § 53a-139. On September 23, 1998, the defendant filed a motion for examination for alcohol or drug dependency, which the trial court granted. Subsequent to the examination, the defendant filed a motion for suspension of prosecution and for treatment pursuant to General Statutes §§ 17a-695 and 17a-696. The trial court denied the defendant’s motion for suspension of prosecution and for treatment, and the defendant appealed. Pursuant to State v. Curcio, 191 Conn. 27, 463 A.2d 566 (1983), the state moved to dismiss the appeal for lack of a final judgment.

Generally, the appealable final judgment in a criminal case is the imposition of the sentence. State v. Seravalli, 189 Conn. 201, 205, 455 A.2d 852, cert. dismissed, 461 U.S. 920, 103 S. Ct. 2076, 77 L. Ed. 2d 291 (1983). Certain interlocutory orders, however, may be appealable. Under the final judgment test established in State v. Curcio, supra, 191 Conn. 31, “[a]n otherwise interlocutory order is appealable in two circumstances: (1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them.”

The first prong of Curdo, on which the defendant relies, “requires the order being appealed to be sever-able from the central cause to which it is related so that the main action can ‘proceed independent of the ancillary proceeding.’ State v. Parker, [194 Conn. 650, 654, 485 A.2d 139 (1984)]; Potter v. Appleby, 136 Conn. 641, 643, 73 A.2d 819 (1950).” In re Juvenile Appeal (85-AB), 195 Conn. 303, 307, 488 A.2d 778 (1985). The defendant asserts that, unlike an order denying an application for accelerated rehabilitation or for youthful offender treatment, the trial court order here terminates a “separate and distinct proceeding.” He reasons that this is so because (1) a full evidentiary hearing must be had, unless waived, (2) the accused person must undergo a rigorous examination to qualify for the program and (3) there is no “automatic” dismissal possible at the end of the program; rather, the defendant must petition the court for a dismissal and such petition may be denied. These factors indeed make the proceedings here different from those where accelerated rehabilitation or youthful offender status is sought, but those differences do not make these proceedings “separate and distinct” under Curdo. Here, the order is not sever-able from the central cause of action because the state could not go forward with the defendant’s prosecution if this court were to hold that the defendant could properly appeal from the denial of his motion for suspension of prosecution and for treatment. Thus, the first prong of Curdo is not satisfied.

Under the second prong of Curdo “the defendant must do more than show that the trial court’s decision threatens him with irreparable harm. The defendant must show that that decision threatens to abrogate a right that he or she then holds.” (Emphasis in original.) State v. Longo, 192 Conn. 85, 91, 469 A.2d 1220 (1984). Our Supreme Court has stated that, “[e]xcept in double jeopardy cases; Abney v. United, States, [431 U.S. 651, 659-60, 97 S. Ct. 2034, 52 L. Ed. 2d 651 (1977)]; a defendant does not enjoy a ‘right not to be tried.’ See United States v. MacDonald, [435 U.S. 850, 860 n.7, 98 S. Ct. 1547, 56 L. Ed. 2d 18 (1978)].” State v. Spendolini, 189 Conn. 92, 96, 454 A.2d 720 (1983). The statutes concerning suspension of prosecution and treatment for alcohol or drug dependency do not create such a right. Thus, the second prong of Curdo is not satisfied, as the defendant holds no right that would be irreparably lost absent interlocutory review of the order denying his motion for suspension of prosecution and for treatment. Accordingly, because the denial of the defendant’s motion for suspension of prosecution and for treatment does not satisfy either prong of Curdo, it is not a final judgment, for purposes of appeal.

The appeal is dismissed.

In this opinion the other judges concurred.

       General Statutes § 17a-693 provides: “The court, on its own motion or on motion of the state’s attorney or a person charged with a crime or convicted of a crime but not yet sentenced, may order, if the interests of justice will be served, that such person be examined, pursuant to the provisions of section 17a-694, to determine if the person is alcohol-dependent or drug-dependent and eligible for treatment under section 17a-696 or 17a-699. A probation officer may order that such an examination be conducted as part of a presentence investigation conducted pursuant to the provisions of section 54-91a.”

       General Statutes § 17a-695 provides: “After receipt by the court, of the examination report, the accused person may make a motion for suspension of prosecution and an order of treatment for alcohol or drug dependency pursuant to the provisions of section 17a-696. Unless the opportunity for a hearing is waived by both the accused person and the state’s attorney, the court shall hear the motion. The clinical examiner shall not be required to be present to testify on the report unless the presence of the clinical examiner is requested by the court, the accused person or the state’s attorney.”
      General Statutes § 17a-696 (b) provides in relevant part: “The court may order suspension of prosecution and order treatment for alcohol or drug dependency ... if it, after considering information before it concerning the alcohol or drug dependency of the person . . . finds that (1) the accused person was an alcohol-dependent or drug-dependent person at the time of the crime, (2) the person presently needs and is likely to benefit from treatment for the dependency, and (3) suspension of prosecution will advance the interests of justice. . . .”

       The defendant concedes that the denial of his motion for suspension of prosecution and for treatment does not satisfy the second prong of Curdo.
        Despite the defendant’s concession, however, we discuss the second prong of Curdo to provide guidance to the members of the bar.


author: FOTI, J.

text:
    TOWN OF VERNON v. RUMFORD ASSOCIATES IV ET AL.
    (AC 18180)
    Foti, Lavery and Hennessy, Js.

      Argued March 15
    officially released June 15, 1999

      Louis A. Spadaccini, with whom, on the brief, was Frank R. Borowy, for the appellant (named defendant).

      Martin B. Burke, for the appellee (plaintiff).
   Opinion

FOTI, J.

The named defendant, Rumford Associates IV (Rumford), appeals from the judgment of the trial court awarding additional attorney’s fees to the plaintiff, the town of Vemon, together with fees to the committee of sale following a judgment of foreclosure by sale. Rumford claims that the trial court improperly awarded these fees in violation of an automatic bankruptcy stay of proceedings. We affirm the judgment of the trial court.

The plaintiff brought the underlying action in 1993 to foreclose tax liens on a condominium owned by Rumford in the Mountain View Condominium complex located in Vernon. On December 23,1996, the trial court, Rittenband, J., rendered a judgment of foreclosure by sale, finding the debt to be $12,897.49, and awarding counsel fees of $1750. A sale date was set for August 16, 1997. No appeal was filed at that time.

On August 4, 1997, Rumford was converted into a limited liability company, Serov Associates, LLC (Serov), pursuant to General Statutes § 34-199. On August 6, 1997, Serov filed a motion to be substituted as a party defendant in lieu of Rumford based on the August 4, 1997 conversion. In the alternative, Serov sought permissive intervention or intervention as of right. The plaintiff objected to both substitution and intervention and argued that Rumford was attempting to shield itself from personal liability by converting to a limited liability company.

On August 12,1997, Serov filed for bankruptcy protection and notified the committee of sale of the filing. Thereafter, on August 20, 1997, Serov filed a notice of automatic stay regarding its bankruptcy with the trial court. On January 20, 1998, the trial court, Hon. Harry Hammer, judge trial referee, denied Serov’s August 6, 1997 motion to be made a party defendant or, in the alternative, to be allowed to intervene. No appeal was taken from that decision.

On January 27, 1998, the committee of sale filed a motion for an assessment of fees and expenses against Rumford seeking $4320.70 in costs for the delay of the sale. The plaintiff also filed a motion for additional counsel fees totaling $2484. On February 3, 1998, the trial court granted both motions without prejudice to allow Rumford an opportunity to file a written objection stating why the fees were unreasonable. The trial court found that “but for the notice of filing of bankruptcy, none of [the] expenses and counsel fees would have been incurred.” Rumford failed to file written objections as permitted by the trial court.

On March 5, 1998, Rumford filed this appeal alleging that the trial court improperly awarded the fees in violation of the bankruptcy court’s automatic stay and improperly opened the judgment to award counsel fees. On May 26, 1998, the plaintiff was allowed to proceed with the foreclosure of the tax hens when it obtained relief from the automatic stay from the bankruptcy court. On August 15, 1998, the bankruptcy case was dismissed.

On appeal, Rumford argues that it converted to a limited liability company, Serov, and that Serov’s bankruptcy filing stayed any action by the trial court regarding the foreclosure until relief was obtained or the bankruptcy case was disposed. We do not agree because Serov was not permitted to become a party to this action and did not become a party by operation of law.

A general or limited partnership may convert to a limited liability company by following certain procedures. See General Statutes § 34-199 (a). Once the procedures have been followed, “[a] general or limited partnership that has been converted to a limited liability company . . . shall be deemed for all purposes the same entity that existed before the conversion . . . .” General Statutes § 34-200 (a). Upon conversion, “[a]ll property owned by the converting general or limited partnership remains vested in the converted entity . . . .” General Statutes § 34-200 (b) (1).

In addition, “an action or proceeding pending against the converting . . . partnership may be continued as if the conversion had not occurred(emphasis added) General Statutes § 34-200 (b) (3); as may “an action or proceeding pending against any person in such person’s capacity as a general partner in a converting general or limited partnership . . . .” General Statutes § 34-200 (b) (4). All liabilities of any partner, general or limited, in such a converting partnership “shall continue as liabilities of such person, except as may be provided in the operating agreement with respect to those liabilities of such person to other members of the limited liability company that has been converted pursuant to section 34-199.” General Statutes § 34-200 (b) (5).

While the conversion allowed Serov, a limited liability company, to be the same entity that existed before the conversion, i.e., Rumford, it did not automatically allow Serov to be a party in the plaintiffs foreclosure action against Rumford by operation of § 34-200. The question of whether Serov should have been allowed to intervene as a matter of right, or even allowed the consideration of permissive intervention, is not an issue before us because no appeal was taken from the denial of the motion to substitute or intervene. Serov never became a party to this matter and, therefore, no party in this matter filed for bankruptcy protection.

Because the action pending against Rumford was properly allowed to continue “as if the conversion had not occurred”; General Statutes § 34-200 (b) (3); and because Rumford, a party to this action and the record title holder, was not under bankruptcy protection at the time the trial court acted regarding these fees, the awarding of additional fees was not improper.

The judgment is affirmed.

In this opinion the other judges concurred.

       The named defendant is the sole appellant in this case. Other defendants, who are named in the complaint but notparties to this appeal, are Community National Bank, Gino L. Donato and Mountain View Condominium Association, Inc.

       General Statutes § 34-199 (a) provides: “A general partnership formed under the provisions of sections 34-300 to 34-434, inclusive, or a limited partnership formed under the provisions of sections 34-9 to 34-38q, inclusive, may convert to a limited liability company by filing articles of organization that meet the requirements of section 34-121, and include the following: (1) A statement that the limited liability company is formed as the result of the conversion of a general partnership or a limited partnership; (2) the name of the former general partnership or limited partnership; and (3) in the case of a general partnership, its initial date of formation, or in the case of a limited partnership, the date of filing of the initial certificate of limited partnership.”

       The record of the February 3, 1998 proceedings does not disclose that the trial court opened the judgment of December 23,1996; rather, the court appears to have intended only to supplement that judgment by awarding additional attorney’s fees to the plaintiff and fees to the committee.

       “An applicant for intervention has a right to intervene under Practice Book § 99 [now § 9-18] where the applicant’s interest is of such a direct and immediate character that the applicant will either gain or lose by the direct legal operation and effect of the judgment. . . . [Horton v. Meskill, 187 Conn. 187, 195, 445 A.2d 579 (1982)]. [A] person or entity does not have a sufficient interest to qualify for the right to intervene merely because an impending judgment will have some effect on him, her, or it. The judgment to be rendered must affect the proposed intervenor’s direct or personal rights, not those of another. Id.” (Emphasis in original; internal quotation marks omitted.) Washington Trust Co. v. Smith, 241 Conn. 734, 740-41, 699 A.2d 73 (1997).

       “The question of permissive intervention is committed to the sound discretion of the trial corut. Polymer Resources, Ltd. v. Keeney, [32 Conn. App. 340, 352, 629 A.2d 447 (1993)]. Our cases establish that, in determining whether to grant a request for permissive intervention, a court should consider several factors: the timeliness of the intervention, the proposed intervenor’s interest in the controversy, the adequacy of representation of such interests by other parties, the delay in the proceedings or other prejudice to the existing parties the intervention may cause, and the necessity for or value of the intervention in resolving the controversy. ... A ruling on a motion for permissive intervention would be erroneous only in the rare case where such factors weigh so heavily against the ruling that it would amount to an abuse of the trial court’s discretion.” (Internal quotation marks omitted.) Tax Collectors. Miley, 34 Conn. App. 634, 639-40, 642 A.2d 747 (1994).

       Rumford does not claim on appeal that the fees were either unreasonable or unwarranted but only that the trial court opened the judgment and awarded those fees in violation of the automatic stay of proceedings.


author: LANDAU, J.

text:
    FREDERICK R. ALTFETER ET AL. v. BOROUGH OF NAUGATUCK ET AL.
    (AC 17724)
    (AC 17865)
    (AC 17996)
    Foti, Lavery and Landau, Js.

      Argued January 20
    officially released June 22, 1999

      Eddi Z. Zyko, for the appellants (plaintiffs).

      David J. Mathis, with whom, on the brief, was William F. Beckert, Jr., for the appellees (named defendant et al.).

      Dana J. Beyer, for the appellees (defendant Edwin March et al.).

      Louis A. Annecchino, for the appellee (defendant John P. Pruchnicki).
   Opinion

LANDAU, J.

The plaintiffs, Frederick R. Altfeter, Ellen Altfeter, his wife, and Frederick D. Altfeter and Sarah Altfeter, their children, appeal from the judgment of dismissal rendered in favor of the defendants, the borough of Naugatuck, the water pollution control board and John P. Pruchnicki, executive director of the water pollution control board (municipal defendants), and from the summary judgment rendered in favor of the defendants Edwin March and Stella March (March defendants) and the defendant John Prachnicki, individually. We reverse the judgment of the trial court as to the municipal defendants and affirm the judgment as to the individual defendants.

On appeal, the plaintiffs claim with respect to the municipal defendants that (1) the municipal defendants have admitted all of the allegations in the amended complaint by failing to respond to the plaintiffs’ requests for admission and (2) the trial court improperly determined that (a) the plaintiffs failed to provide notice of their intent to sue as required by General Statutes § 7-465, (b) the municipal defendants were not estopped from asserting the notice provision of § 7-465, (c) § 7-465 does not apply to contractual relations and (d) 42 U.S.C §§ 1981 and 1983 do not supersede state law and the plaintiffs’ claims thereunder are barred by § 7-465. The plaintiffs claim with respect to the individual defendants that the trial court improperly determined that (1) their causes of action are barred by the applicable statute of limitations, (2) the defendants’ motions for summary judgment do not violate Practice Book § 17-49, (3) the plaintiffs do not have standing to bring a cause of action for breach of contract either as parties to or third party beneficiaries of the contract and (4) the March defendants and Pruchnicki did not commit a fraud on the court. They also claim that the trial court abused its discretion by denying their request for a continuance based on an affidavit filed pursuant to Practice Book § 17-47.

The following facts and procedural history are pertinent to our resolution of these consolidated appeals. In October of 1985, the March defendants sold three undeveloped parcels of land in the borough to the defendant Hillside Associates (Hillside). Pruchnicki was the attorney who represented the March defendants at the closing of the transaction. In 1986, the plaintiffs purchased one of the parcels from Hillside and entered into a contract with Hillside to construct a house for them. On June 1, 1986, the plaintiffs moved into the house at 239 Hillside Avenue, where they have since resided. The plaintiffs’ home was connected to the borough’s sewer system.

One Saturday in January, 1994, sewage backed up in the plaintiffs’ washing machine. The plaintiffs contacted the police who referred them to the borough’s street department. The plaintiffs engaged a private service to clean that portion of the sewer line connecting their home to the main line and no problem was detected. The street department cleared a blockage in the main line and the borough assumed responsibility for the costs that the plaintiffs incurred to clean the sewer line to their home. The problem recurred and sewage overflowed the plaintiffs’ washing machine on Saturday, December 23, 1995. Again the street department responded and found a blockage in the main line, and again the borough assumed responsibility for the costs that the plaintiffs incurred to clean their home.

The problem recurred on Saturday, January 27, 1996, when the plaintiffs were absent from their home. When the plaintiffs returned home late in the evening, they discovered that their entire finished basement was flooded with approximately two inches of raw sewage. Again the street department responded and found a blockage in the main sewer line. The plaintiffs were advised by a street department employee to submit a claim for damages to the mayor’s office. On February 8, 1996, the plaintiffs submitted a letter to the borough in care of the mayor’s office, claims department. The incident was referred to the borough’s insurance carrier who investigated the incident, denied liability but offered to settle the plaintiffs’ claim for approximately $3900. The plaintiffs rejected the offer.

In November, 1996, the plaintiffs commenced a lawsuit against the defendants seeking damages for the losses they sustained as a result of the January 27, 1996 sewage backup in their home. The municipal defendants filed a motion to dismiss the claims against them because the plaintiffs failed to comply with the notice provision of § 7-465, which was granted. Pruchnicki and the March defendants filed separate motions for summary judgment as to the plaintiffs’ causes of action against them, which also were granted. The plaintiffs appealed the separate judgments, which were consolidated for briefing and argument in this court. Additional facts will be addressed as necessary.

I

MUNICIPAL DEFENDANTS

A

The plaintiffs first claim that the municipal defendants admitted the allegations of the amended complaint by failing to respond to requests to admit, which were filed on September 22,1997, and that the municipal defendants therefore are liable to the plaintiffs. The plaintiffs ask this court to render judgment as to liability against the municipal defendants and to return the case to the trial court for a hearing in damages. We decline to review this claim.

The plaintiffs filed requests to admit in September, 1997, more than five months after the trial court granted the municipal defendants’ motion to dismiss. At the time the requests were filed, the plaintiffs had taken an appeal from the judgment of dismissal. No motions related to the requests for admission were ever filed in the trial court. The trial court, therefore, has never ruled on anything related to the requests for admission. “The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. . . .” Practice Book § 60-5. “ ‘We have repeatedly held that this court will not consider claimed errors on the part of the trial court unless it appears on the record that the question was distinctly raised at trial and was ruled upon and decided by the court adversely to the appellant’s claim.’ Keating v. Glass Container Corp., 197 Conn. 428, 431, 497 A.2d 763 (1985).” State v. Beliveau, 52 Conn. App. 475, 479, 727 A.2d 737, cert. denied, 249 Conn. 920, 733 A.2d 235 (1999).

B

The plaintiffs next claim that the trial court improperly determined that they had failed to provide notice of their intent to sue the municipal defendants as required by § 7-465. Because we conclude that § 7-465 does not apply to the allegations of the plaintiffs’ complaint against the municipal defendants, we need not reach the question of notice.

“The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter . . . .’’Practice Book § 10-31 (a). “ ‘[W]here [the] legal conclusions of the [trial] court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision . . . .’ Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221, 435 A.2d 24 (1980). Thus, our review of the trial court’s ultimate legal conclusion and resulting grant of the motion to dismiss will be de novo.” Pitchell v. Hartford, 247 Conn. 422, 428-29, 722 A.2d 797 (1999).

The following facts and procedure are relevant to our analysis. The plaintiffs’ convoluted amended complaint dated January 2, 1997, purports to allege the following wrongdoing against the borough: count one, breach of contract; count two, violation of the constitution of Connecticut, article first, § 8; count three, violation of the constitution of Connecticut, article first, § 11; count four, violation of General Statutes § 7-248; count five, absolute nuisance; count six, negligent nuisance; count seven, recklessness; count eight, intentional infliction of emotional distress; count nine, fraud; count ten, violation of the borough’s code of ordinances, public nuisance; count eleven, violation of the borough’s code of ordinances, strict liability; count twelve, negligent misrepresentation; count thirteen, violation of 42 U.S.C. §§ 1981 and 1983. Counts fourteen through twenty-six purport to allege the same wrongdoing against the water pollution control board. Counts twenty-seven through thirty-nine purport to allege the same wrongdoing against the executive director of the water pollution control board. Nowhere in their amended complaint do the plaintiffs allege a claim for indemnification pursuant to § 7-465.

By pleading dated January 28, 1997, the municipal defendants moved to dismiss the plaintiffs’ amended complaint as to them. The motion to dismiss states: “Pursuant to Connecticut Practice Book Section 162 [now § 10-30], the defendants, Borough of Naugatuck, Water Pollution Control Board and John P. Pruchnicki, Executive Director, Water Pollution Control Board, hereby move to dismiss the plaintiffs Amended Complaint against them. The plaintiffs failed to provide notice to the defendants of their intent to sue the municipality as required under § 7-465. The court therefore lacks jurisdiction over the subject matter.”

In the memorandum of law submitted in support of their motion to dismiss, the municipal defendants claim that the notice the plaintiffs sent to the borough was deficient in that it did not provide notice of the plaintiffs’ intention to sue the municipality and that such notice is a condition precedent to bringing an action against the municipal defendants. The municipal defendants’ memorandum is brief and fails to address whether § 7-465, in fact, applies to the allegations of the plaintiffs’ complaint. The trial court ruled that the plaintiffs had not properly notified the borough and granted the motion to dismiss as to all the municipal defendants.

Section 7-465 is a municipal employee indemnification statute. Pratt v. Old Saybrook, 225 Conn. 177, 179, 621 A.2d 1322 (1993). “[T]he legislature has provided for indemnification by municipalities of municipal officers, agents or employees who incur liability for certain of their official conduct. See General Statutes §§ 7-465 and 7-308.” Williams v. New Haven, 243 Conn. 763, 768, 707 A.2d 1251 (1998). To invoke § 7-465, the plaintiffs “first must allege in a separate count and prove the employee’s duty to the individual injured and the breach thereof. Only then may the plaintiff go on to allege and prove the town’s liability by indemnification.” (Emphasis in original.) Sestito v. Groton, 178 Conn. 520, 527, 423 A.2d 165 (1979). “ ‘While § 7-465 provides an indemnity to a municipal employee from his municipal employer in the event the former suffers a judgment under certain prescribed conditions, it is quite clear that the municipality does not assume the liability in the first instance.’ ” Fraser v. Henninger, 173 Conn. 52, 56, 376 A.2d 406 (1977).

The plaintiffs do not allege in their amended complaint a claim against the borough for indemnification of its employee’s liability. The plaintiffs’ complaint alleges breach of contract, nuisance and violations of our state constitution and various federal and local statutes by the borough. Section 7-465 does not apply to those allegations. See Forbes v. Ballaro, 31 Conn. App. 235, 241, 624 A.2d 389 (1993). For those reasons, the trial court improperly dismissed the plaintiffs’ amended complaint for failing to comply with the notice requirement of § 7-465.

We also note that only a municipality may assert the absence of notice required by § 7-465 in a motion to dismiss for lack of subject matter jurisdiction. There is nothing in the statute that restricts the plaintiffs from bringing a cause of action against municipal employees such as Pruchnicki, as executive director, or the water pollution control board. See Fraser v. Henninger, supra, 173 Conn. 56. The trial court, therefore, improperly dismissed the plaintiffs’ causes of action against these two defendants.

Consequently, we reverse the judgment of dismissal as to the municipal defendants. In light of our holding on the applicability of § 7-465 to the complaint, we need not consider the plaintiffs’ other claims concerning the municipal defendants.

II

INDIVIDUAL DEFENDANTS

A

The plaintiffs claim that the trial court improperly granted the individual defendants’ motions for summary judgment because the statute of limitations has expired. We disagree.

“The standards governing our review of a trial court’s decision to grant a motion for summary judgment are well established. Practice Book § 384 [now § 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. . . . Miller v. United Technologies Corp., 233 Conn. 732, 744-45, 660 A.2d 810 (1995). In deciding amotion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . Id., 745. 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; D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980); and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. Practice Book § 381 [now § 17-46], . . . Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 105, 639 A.2d 507 (1994). Summary judgment may be granted where the claim is barred by the statute of limitations. See Daily v. New Britain Machine Co., 200 Conn. 562, 566-70, 512 A.2d 893 (1986); Burns v. Hartford Hospital, 192 Conn. 451, 472 A.2d 1257 (1984) . . . .” (Emphasis added; internal quotation marks omitted.) Doty v. Mucci, 238 Conn. 800, 805-806, 679 A.2d 945 (1996).

Although “the court must view the inferences to be drawn from the facts in the light most favorable to the party opposing the motion ... a party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment.” (Citation omitted; internal quotation marks omitted.) Norse Systems, Inc. v. Tingley Systems, Inc., 49 Conn. App. 582, 591, 715 A.2d 807 (1998). Aparty opposing a motion for summary judgment “ ‘must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue.’ ” Home Ins. Co. v. Aetna Life & Casualty Co., 235 Conn. 185, 202, 663 A.2d 1001 (1995).

The following facts are necessary for our analysis of this claim. Counts forty through fifty-two of the amended complaint allege against Pruchnicki by reference only the allegations of counts one through thirteen. Counts fifty-three through sixty-five of the amended complaint allege against the March defendants by reference only the allegations of counts one through thirteen. Counts one through thirteen of the amended complaint are directed against the defendant borough. See part I B of this opinion. It is unclear what causes of action the plaintiffs have alleged against the individual defendants. The motions for summary judgment, however, were argued in the trial court and before us on a contract theory, which is the legal basis of our analysis.

By pleading dated June 27, 1997, Pruchnicki filed a motion for summary judgment claiming that there was no genuine issue of material fact in that the plaintiffs did not bring their cause of action within the applicable statute of limitations and that the plaintiffs lacked standing to assert their claims. Although he did not plead the applicable statute of limitations as a special defense when he answered the amended complaint and did not identify the applicable statute of limitation in his motion, Pruchnicki, in his memorandum in support of the motion, cites General Statutes § 52-576 (a) as the legal basis for his motion for summary judgment. Pruchnicki submitted an affidavit in support of his motion for summary judgment in which he attested that he has been an attorney licensed to practice in Connecticut since 1970, that he represented the March defendants in October, 1985, when they sold undeveloped real estate to Hillside and that the attorney-client relationship ended thereafter. He also attested that he never represented the plaintiffs. The plaintiffs failed to object to the motion for summary judgment or to submit an affidavit demonstrating there were genuine issues of material fact.

The trial court, Gill, J., granted the motion for summary judgment concluding: “Granted as to the defendant’s personal liability as an individual in the contract action. The statute of limitations was exceeded by approximately six years. The court finds no claimed circumstances which would have tolled the statute. The intents of justice and judicial administration and the law require this result.”

Section 52-576 (a) provides: “No action for an account, or on any simple or implied contract, or on any contract in writing, shall be brought but within six years after the right of action accrues, except as provided in subsection (b) of this section.” In this jurisdiction, a lawsuit is commenced when a proper officer serves a writ of summons and complaint on the defendant. See Lacasse v. Burns, 214 Conn. 464, 475, 572 A.2d 357 (1990).

Pruchnicki represented the March defendants in the subject real estate transaction in October, 1985. The plaintiffs allege that the March defendants sold the undeveloped real estate to Hillside and that they purchased a home on that property from Hillside in June, 1986. Pruchnicki did not represent the plaintiffs when they purchased their home. The sheriffs return indicates that he made service on the March defendants in November, 1996. In the absence of any evidence to the contrary, the trial court fairly concluded that more than ten years had passed between the time Pruchnicki represented the March defendants and when the plaintiffs instituted this lawsuit and that, therefore, the suit is barred by the applicable statute of limitations, § 52-576.

The March defendants responded to the plaintiffs’ amended complaint with a pleading dated October 10, 1997. They asserted a special defense that the plaintiffs’ cause of action was barred by the applicable statute of limitations. The March defendants submitted a motion for summary judgment dated December 18, 1997, accompanied by an affidavit, arguing that the plaintiffs’ claims are barred by the statute of limitations and that the plaintiffs lacked standing to allege the claims asserted. Although neither the special defense nor the motion for summary judgment identified the statute of limitations on which the March defendants relied, they did identify § 52-576 in their supporting memorandum of law. They attested that Pruchnicki represented them in October, 1985, when they sold an undeveloped parcel of real estate to Hillside. The plaintiffs did not submit an affidavit in opposition to the March defendants’ motion for summary judgment, which was granted by the trial court, Carroll, J., ruling that the plaintiffs’ cause of action was barred by the statute of limitations.

The March defendants sold their undeveloped real property to Hillside in October, 1985. The plaintiffs purchased the real property, together with improvements, from Hillside on June 1, 1986. They did not commence a cause of action until more than ten years after they moved into the house. The first time the sewer backed up was in January, 1994, nine years after the March defendants sold the property. The sewage backup that is the subject of this lawsuit occurred in January, 1996. The plaintiffs failed to provide any facts to contradict the evidence provided by the individual defendants and no legal basis by which the statute of limitations should be tolled. The plaintiffs, therefore, failed to meet their burden to oppose the granting of the motions for summary judgment.

The plaintiffs also claim that the causes of action asserted on behalf of the minor children are not barred by the statute of limitations, General Statutes § 52-576 (b), which provides, with respect to actions for account or on simple or implied contracts: “Any person legally incapable of bringing any such action at the accruing of the right of action may sue at any time three years after becoming legally capable of bringing the action.” “ ‘In order for this court judiciously and efficiently to consider claims of error raised on appeal’ . . . the parties must clearly and fully set forth their arguments in their briefs.” (Citation omitted.) New London Federal Savings Bank v. Tucciarone, 48 Conn. App. 89, 100, 709 A.2d 14 (1998). The plaintiffs have provided us with no law and analysis of this claim. Therefore, we decline to review it. See id., 101.

For all of the foregoing reasons, the trial court properly granted the individual defendants’ motions for summary judgment.

B

The plaintiffs also claim that the trial court abused its discretion by denying the plaintiffs’ request for a continuance based on an affidavit filed pursuant to Practice Book § 17-47. We are not persuaded.

The following facts are necessary for our resolution of the plaintiffs’ claim. Prachnicki’s motion for summary judgment was argued at the October 14, 1997 short calendar. At that time, counsel for the plaintiffs presented the trial court with an affidavit filed pursuant to Practice Book § 17-47 seeking a continuance to obtain facts that would support the plaintiffs’ position that the statute of limitations was tolled because of Pruchnicki’s fiduciary or special relationship with the plaintiffs. Defense counsel objected to a continuance because he had not seen a copy of the affidavit prior to the short calendar. Furthermore, the plaintiffs failed to file a written motion for a continuance, but the trial court apparently interpreted the arguments of plaintiffs’ counsel as an oral motion for continuance. The trial court denied the motion for continuance as being untimely.

The standard of review of a trial court’s denial of a request for continuance was s.et forth in Plouffe v. New York, N.H. & H.R. Co., 160 Conn. 482, 490, 280 A.2d 359 (1971), where our Supreme Court adopted the abuse of discretion standard established by the federal courts. “ ‘Where, however, the party opposing summary judgment timely presents his affidavit . . . stating reasons why he is presently unable to proffer evidentiary affidavits he directly and forthrightly invokes the trial court’s discretion. Unless dilatory or lacking in merit, the motion should be liberally treated. Exercising a sound discretion the trial court then determines whether the stated reasons are adequate. And, absent abuse of discretion, the trial court’s determination will not be interfered with by the appellate court.’ ” Id.

We look to our rules of practice to determine whether the trial court abused its discretion in denying the plaintiffs’ request for a continuance. Pruchnicki’s motion for summary judgment was filed on June 30, 1997. The matter was not argued at short calendar until October 14, 1997. “A motion for summary judgment shall . . . be placed on the short calendar to be held not less than fifteen days following the filing of the motion and the supporting materials, unless the judicial authority otherwise directs. The adverse party prior to the day the case is set down for short calendar shall file opposing affidavits and other available documentary evidence. Affidavits, and other documentary proof not already a part of the file, shall be filed and served as are pleadings.” Practice Book § 17-45.

First, we observe that the plaintiffs had more than three months in which to file a memorandum and affidavits in opposition to Pruchnicki’s motion for summary judgment, which was based on the statute of limitations. Second, well before the short calendar argument, the plaintiffs knew that they needed more time to oppose the summary judgment motion. Finally, the issue raised by the plaintiffs in their motion for continuance is not a factual question but a legal theory. A motion for summary judgment shall be granted if there are no genuine issues of material fact. Practice Book § 17-49. The plaintiffs were searching for facts that would support their claim that Pruchnicki owed them a fiduciary duty that would toll the statute of limitations. A fiduciary duty cannot be found in discovery; it is a legal theory. No amount of additional time would have allowed the plaintiffs to oppose the motion for summary judgment. Because the plaintiffs’ request for a continuance was not only untimely but also lacking in merit, we conclude that the trial court did not abuse its discretion in denying a continuance.

C

The plaintiffs also claim that Pruchnicki and the March defendants committed a fraud on the trial court. The plaintiffs have not brought any ruling of the trial court on this matter to our attention. We will not review claims that were not raised in the trial court. State v. Beliveau, supra, 52 Conn. App. 479-80.

The judgment as to the individual defendants is affirmed. The judgment as to the municipal defendants is reversed and the case is remanded to the trial court for further proceedings.

In this opinion the other judges concurred.

       The March defendants and Pruchnicki are jointly referred to as the individual defendants.

       General Statutes § 7-465 (a) provides in relevant part: “Any town, city or borough . . . shall pay on behalf of any employee of such municipality ... all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for damages awarded for infringement of any person’s civil rights or for physical damages to person or property ... if the employee, at the time of the occurrence ... or damages complained of, was acting in the performance of his duties and within the scope of his employment, and if such occurrence ... or damage was not the result of any wilful or wanton act of such employee in the discharge of such duty. ... No action for . . . damages to real or personal property shall be maintained against such municipality and employee jointly unless such action is commenced within two years after the cause of action therefor arose nor unless written notice of the intention to commence such action and of the time when and the place where the damages were incurred or sustained has been filed with the clerk of such municipality within six months after such cause of action has accrued. ... In any such action the municipality and the employee may be represented by the same attorney if the municipality, at the time such attorney enters his appearance, files a statement with the court . . . that it will pay any verdict rendered in such action against such employee. . . .”

       Hillside is not a party to these appeals.

       The plaintiffs’ original thirteen count complaint alleged, inter alia, breach of contract against Pruchnicki for having represented the March defendants in the initial real estate transaction, breach of contract against the March defendants with respect to the initial real estate transaction, and breach of contract against the municipal defendants with respect to representations they made concerning the borough’s sewer system.

       The plaintiffs also have failed to cite any law in support of their claim. We will not review claims absent law and analysis. See Middletown Commercial Associates Ltd. Partnership v. Middletown, 42 Conn. App. 426, 439 n.12, 680 A.2d 1350, cert. denied, 239 Conn. 939, 684 A.2d 711 (1996).

       In a memorandum of decision dated March 20, 1997, the trial court, Leheny, J., granted the municipal defendants’ motion to dismiss, ruling that although a letter the plaintiffs delivered to the borough informed it of the date, nature and cause of their loss, the letter did not inform the borough that the plaintiffs intended to bring a lawsuit. The trial court noted that § 7-465 is an indemnification statute.

       Pruchnicki argued that the plaintiffs were not parties to the contract of sale between the March defendants and Hillside. Because we conclude that the plaintiffs’ causes of action are barred by the statute of limitations, we need not address this second claim.

       See Practice Book § 10-50 (statute of limitations defenses must be specially pleaded).

       The better method is to identify the applicable statute of limitations. See Practice Book § 10-3 (a).

       On the day the motion for summary judgment was heard by the court, the plaintiffs’ counsel submitted an affidavit seeking a continuance to obtain facts to opposing the motion for summary judgment. The trial court refused to consider the affidavit for extension of time as untimely filed.

       When a special defense is grounded on a statute, the statute shall be specifically identified by its number. See Practice Book § 10-3 (a).

       The plaintiffs also claim that the plaintiff children were the intended third party beneficiaries of the contract. Because we have determined that the trial court properly ruled that any contract claim is barred by the statute of limitations, we need not address this issue to resolve this claim.

       Practice Book § 17-47 provides: “Should it appear from the affidavits of a party opposing the motion that such party cannot, for reasons stated, present facts essential to justify opposition, the judicial authority may deny the motion for judgment or may order a continuance to permit affidavits to be obtained or discovery to be had or may make such other order as is just.”

       The record discloses that the plaintiffs filed the affidavit with the clerk on the Friday immediately preceding short calendar.

       See Gupta v. New Britain General, Hospital, 239 Conn. 574, 687 A.2d 111 (1996) (distinguishing legal basis and genuine issues of material fact in motion for summary judgment).