631 LLC v. Select Energy Contracting, Inc. (2012)

MEMORANDUM OF DECISION RE MOTION TO DISMISS (# 172)

FACTS

The plaintiff, Udolf 631, LLC, filed a three-count amended complaint against the defendant, Select Energy Contracting, Inc., on May 17, 2011, alleging claims for breach of contract, violations of the Connecticut Unfair Trade Practices Act (CUTPA), and “failure to comply with contractual obligations as to design and inspection.¹  The claims center on two allegations:  (1) the defendant did not properly design and install a sprinkler system in a building owned by the plaintiff and (2) contrary to the defendant's initial representations, the work was completed by subcontractors, and not the defendant's employees.

The plaintiff commenced this action on August 20, 2009, when the writ of summons and the original complaint were served on the defendant.   In the three-count original complaint, the plaintiff alleged the following facts.   In March 2005, the plaintiff, as the owner of a building, entered into a contract with the defendant, pursuant to which the defendant would, inter alia, install, a sprinkler system in the building.   The defendant completed its work on the sprinkler system on September 9, 2005.   On January 25, 2008, the sprinkler system caused water to be released in the building, which, in turn, resulted in substantial damage to the building.   Upon the advice of an independent contractor, who believed that the release was caused by defective sprinkler heads, the plaintiff replaced the heads.   On January 25, 2009, the sprinkler system again caused water to be released in the building, which caused additional damage.   The plaintiff subsequently learned that the water releases were caused by the improper way in which the defendant installed the sprinkler system.   The plaintiff incurred substantial expenses in remedying and reinstalling the system.   The plaintiff alleged claims against the defendant for breach of contract, unjust enrichment and violations of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42–110a et seq.   Its CUTPA claims were premised on misrepresentations that the defendant allegedly made to it that the defendant's employees would perform the work on the sprinkler system.   The plaintiff further alleged that the defendant failed to supervise and inspect the work of the subcontractor that did the actual work on the system.

The defendant filed a motion to strike in which it argued, inter alia, that the plaintiff's CUTPA claim was barred by the three-year statute of limitations that applies to such claims.   The defendant pointed out that the plaintiff alleged that the defendant completed its work on the system on September 9, 2005, and that the plaintiff did not file its complaint until July 30, 2009.²  The defendant further argued that the plaintiff had not alleged facts that might toll the limitations period.

While the motion to strike was pending, on February 9, 2010, the plaintiff filed a motion for permission to amend the complaint.   The proposed amended two-count complaint that the plaintiff attached to its motion contained claims for breach of contract and CUTPA violations.   Therein, the plaintiff did not mention the date on which the defendant completed its work on the system, or the intermediate step that the plaintiff took to repair it.   The plaintiff added, inter alia, the following allegations.   The defendant made misrepresentations to the plaintiff in that it concealed from the plaintiff that it had subcontracted out the work on the system and that its employees were not capable of repairing or redesigning the defects in the system.   When the system failed in 2008, it reported the failure to the defendant and asked for the defendant's assistance.   The defendant told the plaintiff that it was no longer in business, and continued to conceal its misrepresentations from the plaintiff.   When the plaintiff reported the January 25, 2009 system failure to the defendant, the defendant acknowledged that the design and installation of the system was defective, but it continued to conceal its misrepresentations from the plaintiff.

The defendant filed an objection to plaintiff's motion for permission to amend in which it argued that the plaintiff's sole purpose in seeking to amend was to delete the completion date and add allegations that the defendant “fraudulently concealed” information from the plaintiff to avoid the applicable statute of limitations.   The plaintiff filed a reply on April 8, 2010 in which it argued that it should be permitted to amend its complaint to plead facts that show that the defendant continued to conceal information from the plaintiff, as these facts would defeat the defendant's argument that the CUTPA claim was barred by limitations.   The plaintiff suggested that the defendant raise its statute of limitations argument in a motion for summary judgment.   On May 11, 2010, the court, Rittenband, J., without issuing a written decision, denied the plaintiff's motion to amend and sustained the defendant's objection thereto.

On April 13, 2011, the plaintiff filed a “reply” to the defendant's motion to strike in which it asked that “the court grant said motion in order that the plaintiff may move the pleadings.”   The motion appeared on the short calendar for April 25, 2011.   On May 16, 2011, the court, Peck, J., granted the motion “by agreement.”

On May 17, 2011, the plaintiff filed an amended three-count complaint in which it alleges claims against the defendant for breach of contract, violations of CUTPA and “failure to comply with contractual obligations.”   The allegations in count two, which contains the plaintiff's CUTPA claim, are identical to the allegations that it pleaded in its CUTPA claim in the proposed amended complaint that it filed with its motion to amend on February 9, 2010.

On June 7, 2011, the defendant filed a motion to dismiss that is presently before the court.   The defendant argues that the court lacks subject matter jurisdiction over count two of the plaintiff's complaint because the CUTPA claim is barred by the applicable statute of limitations.   On June 15, 2011, the plaintiff filed an objection to the defendant's motion.   The defendant filed a reply to the plaintiff's objection on July 6, 2011.   The matter was heard at short calendar on September 26, 2011.

DISCUSSION

“A motion to dismiss ․ properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court ․ A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”  (Internal quotation marks omitted.)  Caruso v. Bridgeport, 285 Conn. 618, 627, 941 A.2d 266 (2008).  “The grounds which may be asserted in [a motion to dismiss include] ․ lack of jurisdiction over the subject matter ․” Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985).

“[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003).  “[I]t is the burden of the party who seeks the exercise of jurisdiction in his favor ․ clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute ․ It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.”   (Citation omitted;  internal quotation marks omitted.)  Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213–14, 982 A.2d 1053 (2009).

The defendant argues in its motion to dismiss that the court lacks subject matter jurisdiction over count two of the plaintiff's claim because the CUTPA claim is barred by the three-year statute of limitations contained in General Statutes § 42–110g(f).  The defendant also argues that the plaintiff may not rely on the doctrine of fraudulent concealment to toll the statute of limitations.   Further, the defendant argues that the plaintiff may not avoid the CUTPA time bar by failing to include the date that the defendant completed its work on the sprinkler system in its amended complaint.   Moreover, the defendant asserts that the prior ruling of the court, Rittenband, J., denying the plaintiff's motion to amend, bars the plaintiff from denying the completion date and bars the plaintiff from asserting the CUTPA claim under the theory of judicial estoppel.

The plaintiff counters that it has not alleged that the defendant fraudulently concealed a cause of action, which it concedes would not toll the CUTPA statute of limitations.³  Rather, the plaintiff contends that it has alleged the defendant continued to engage in conduct in January 2008, and January 2009, that constitutes unfair and deceptive practices, and thus its CUTPA claim is not barred by the statute of limitations.   Further the plaintiff argues that because the court, Rittenband J., did not file a written memorandum in rendering its orders on the plaintiff's motion to amend the decision, the basis for the decision cannot be determined, and therefore judicial estoppel is not applicable.   The plaintiff also asserts that according to Practice Book § 10–44, it could rightfully file an amended complaint after the court granted the defendant's motion to strike.⁴

The defendant argues in its reply that because the court sustained the defendant's objection to the plaintiff's motion for permission to amend, and the objection was premised on the ground of limitations the reasoning behind the court's ruling is clear.

Ordinarily, a statute of limitations defense “must be specially pleaded and cannot be raised by a [motion to dismiss].”  Ross Realty Corp v. Surkis, 163 Conn. 388, 391, 311 A.2d 74 (1972);  see also Practice Book § 10–50.   Nevertheless, our Supreme Court has held that “[w]here ․ a specific time limitation is contained within a statute that creates a right of action that did not exist at common law, then the remedy exists only during the prescribed period and not thereafter ․ In such cases, the time limitation is not to be treated as an ordinary statute of limitation, but rather is a limitation on the liability itself, and not of the remedy alone ․ [U]nder such circumstances, the time limitation is a substantive and jurisdictional prerequisite, which may be raised ․ at any time, even by the court sua sponte, and may not be waived.”  (Internal quotation marks omitted.)  Stec v. Raymark Industries, Inc., 299 Conn. 346, 365, 10 A.3d 1 (2010).

General Statutes § 42–110g(f), which governs CUTPA claims, provides:  “An action under this section may not be brought more than three years after the occurrence of a violation of this chapter.”   In discussing § 42–110g(f), the Appellate Court has plainly stated that “[w]here a specific limitation is contained in the statute that creates the right of action and establishes the remedy, then the remedy exists only during the prescribed period and not thereafter ․ This statute of limitations is jurisdictional.”  (Citation omitted;  internal quotation marks omitted.)  Blinkoff v. O & G Industries, Inc., 113 Conn.App. 1, 8–9, 965 A.2d 556, cert. denied, 291 Conn. 913, 969 A.2d 175 (2009).   Accordingly, “[i]n § 42–110g(f), the time limitation for filing a claim under CUTPA is specifically stated, and falls within the circumstance in which the time limitation is a substantive and jurisdictional prerequisite, and is properly before the court in a motion to dismiss.”   Dinan & Dinan, PC v. O'Rourke, Supreme Court, judicial district of Fairfield, Docket No. CV 03 0405524 (September 24, 2004, Doherty, J.).

Our courts narrowly interpret § 42–110g(f) and hold that the starting point for the running of the statute of limitations is upon the occurrence of the CUTPA violation and not upon its subsequent discovery by the injured party.   According to our Supreme Court, “[u]nlike the statutes of limitation of some other states applicable to unfair trade practices legislation analogous to our CUTPA, which expressly allow a certain period following the discovery of the deceptive practice for commencing suit ․ § 42–110g(f) provides only that an action must be brought within three years ‘after the occurrence of a violation of this chapter.’   In construing our general tort statute of limitations, General Statutes § 52–577, which allows an action to be brought within three years ‘from the date of the act or omission complained of,’ we have concluded that the history of that legislative choice of language precludes any construction thereof delaying the start of the limitation period until the cause of action has accrued or the injury has occurred ․ We are unable to perceive any significant distinction between the ‘act or omission’ reference, denoting the start of the limitation period in ․ § 52–577 ․ and the ‘occurrence of a violation’ phrase in § 42–110g(f), setting the time when the three year period begins for bringing an action alleging a CUTPA violation.”  (Citations omitted;  internal quotation marks omitted.)   Fichera v. Mine Hill Corp., 207 Conn. 204, 213, 541 A.2d 472 (1988).

As previously noted, the plaintiff commenced this action on August 20, 2009.   Therefore, in order to comply with the limitations of § 42–110g(f), the conduct that it relies upon for its CUTPA claim must have occurred on or after August 20, 2006.   In the present case, the plaintiff alleges that “in attempting to secure [the contract that the parties entered into in March 2005],” the defendant made representations to the plaintiff that it was a subsidiary of Northeast Utilities and therefore the plaintiff could rely on the reputation of Northeast Utilities in making its decision to hire the defendant, that it had a sprinkler engineer on its staff who would be available to supervise the installation of the sprinkler system, that it employed the personnel necessary to design and install the sprinkler system and that it would repair any subsequently discovered defects in the design and installation of said system.   These representations were false in that the defendant, in completing its “work” on the project did not design, fabricate, install, inspect, supervise and/or oversee the installation of the sprinkler system and instead hired others to perform said work.   The defendant did not notify or advise the plaintiff that it could not complete the sprinkler system and would be hiring others to perform its duties.   The defendant also failed to supervise the work of others retained to complete the work and the defendant did not employ personnel capable of redesigning or repairing any defects in the design or installation of the sprinkler system.   Further, the plaintiff alleges that when the system failed in January 2008, the defendant represented that it was no longer in business, thereby continuing its misrepresentations and concealment.   Finally, when the system failed again in January 2009, the defendant continued the misrepresentations and concealment of facts from the plaintiff and the defendant continued to conceal from the plaintiff the plaintiff's claim against the defendant for the defendant's violation of CUTPA.   As previously noted, the plaintiff's amended complaint does not allege the date or dates upon which the representations became false, which would be the first date on which the defendant allegedly violated CUTPA.

The defendant maintains that the court should resolve its motion to dismiss by referring to the plaintiff's original complaint and using the date on which the plaintiff alleged that the defendant completed its work on the system, which was September 9, 2005, as admission by the plaintiff.   Although the plaintiff's inclusion of that date in its original complaint is not a judicial admission in that the plaintiff has filed an amended complaint, it is an evidentiary admission.   The Supreme Court has noted that “[t]he distinction between judicial admissions and mere evidentiary admissions is a significant one that should not be blurred by imprecise usage ․ While both types are admissible, their legal effect is markedly different;  judicial admissions are conclusive on the trier of fact, whereas evidentiary admissions are only evidence to be accepted or rejected by the trier.”  (Internal quotation marks omitted.)   Tianti v. William Raveis Real Estate, Inc., 231 Conn. 690, 695 n.6, 651 A.2d 1286 (1995).

“Factual allegations contained in pleadings upon which the cause is tried are considered judicial admissions and hence irrefutable as long as they remain in the case ․ A judicial admission dispenses with the production of evidence by the opposing party as to the fact admitted, and is conclusive upon the party making it ․”In contrast with a judicial admission, which prohibits any further dispute of a party's factual allegation contained in its pleadings on which the case is tried, [a]n evidential admission is subject to explanation by the party making it so that the trier may properly evaluate it ․ Thus, an evidential admission, while relevant as proof of the matter stated ․ [is] not conclusive ․ As a general rule statements in withdrawn or superceded pleadings, including complaints, may be considered as evidential admissions [of] the party making them ․” (Citations omitted;  internal quotation marks omitted.)  Nationwide Mutual Ins. Co. v. Allen, 83 Conn.App. 526, 541–42, 850 A.2d 1047, cert. denied, 271 Conn. 907, 859 A.2d 562 (2004).

Accordingly, the plaintiff's inclusion of the allegation that the defendant completed works on the sprinkler system on September 9, 2005, in its original complaint is an evidential admission as to that fact.   The plaintiff does not offer any explanation or evidence to the contrary.   Thus, the court may rely on this admission in deciding the motion.⁵  If the plaintiff had limited its CUTPA allegations to the defendant's conduct as it relates to the design and installation of the sprinkler system, and the defendant completed its work on the system on September 5, 2005, the plaintiff's CUTPA claim would be barred by limitations, unless a tolling provision applies, in that it did not bring this action within three years of that date.

The next issue is whether the plaintiff can rely on the continuing course of conduct doctrine to toll the limitations period of General Statutes § 42–110g(f).⁶  The continuing course of conduct doctrine states that when the wrong sued upon consists of a continuing course of conduct, the statute does not begin to run until that course of conduct is completed.  Fichera v. Mine Hill Corp., supra, 207 Conn. 208.  “To support a finding of a ‘continued course of conduct’ that may toll the statute of limitations there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto.   That duty must not have terminated prior to commencement of the period allowed for bringing an action for such a wrong.   Id., 209.  “Where [our Supreme Court has] upheld a finding that a duty continued to exist after the cessation of the ‘act or omission’ relied upon, there has been evidence of either a special relationship between the parties giving rise to such a continuing duty or some later wrongful conduct of a defendant related to the prior act.”  Id., 210.

“[A] precondition for the operation of the continuing course of conduct doctrine is that the defendant must have committed an initial wrong upon the plaintiff ․ Second, there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto ․ [T]hat continuing wrongful conduct may include acts of omission as well as affirmative acts of misconduct ․ Furthermore, [t]he doctrine of continuing course of conduct as used to toll a statute of limitations is better suited to claims where the situation keeps evolving after the act complained of is complete ․” (Citations omitted;  internal quotation marks omitted.)   Bellemare v. Wachovia Mortgage Corp., 94 Conn.App. 593, 608, 894 A.2d 335 (2006), aff'd on other grounds, 284 Conn. 193, 931 A.2d 916 (2007).

In the present case, the plaintiff does not claim any relationship with the defendant that would create a duty continuing after the installation of the sprinkler system.   There are allegations however, of subsequent wrongful acts by the defendant that were related to the previous misrepresentations that it allegedly made to the plaintiff regarding the installation of the sprinkler system.   These allegations, if true, demonstrate that the violation continued to evolve after the act complained of was complete.   See Bellemare v. Wachovia Mortgage Corp., supra, 94 Conn.App. 609.   Specifically, in its amended complaint, the plaintiff alleges that on January 21 and 25, 2008, the plaintiff reported the failure of the sprinkler system to the defendant.   In response to the plaintiff's request for assistance, the defendant continued to conceal its involvement with the installation and made further misrepresentations by reporting to the plaintiff that it was out of business.   The plaintiff then alleges that after an additional failure of the sprinkler system on January 25, 2009, the defendant acknowledged defects in the design and/or installation of the sprinkler system, yet continued to make misrepresentations and to conceal facts from the plaintiff.   Therefore, the plaintiff has adequately alleged conduct by the defendant that would toll the statute of limitations until the completion of these subsequent acts.   Thus, the plaintiff's CUTPA claim is not barred by the statute of limitations contained in § 42–110g(f).

CONCLUSION

For the foregoing reasons, that the court denies the defendant's motion to dismiss.

Woods, J.

FOOTNOTES

FN1. Udolf 631, LLC (Udolf 631) initially brought this action against Select Energy Contracting, Inc. (Select Energy).   On May 25, 2010, the court, Graham, J., granted Udolf 631's motion to implead Randy J. Finke as a defendant in the action.   On September 17, 2010, the court, Graham, J., granted Select Energy's motion to implead Lawrence Babbitt as a defendant in the action.   Select Energy filed the motion to dismiss that is presently before the court, and the other defendants have not responded to the motion.   Therefore, the term defendant as used herein refers to Select Energy.On April 19, 2011, Citizen's Insurance Company of America (Citizens Insurance) entered an appearance in the action, solely for the purpose of filing a motion to consolidate this action with another action, i.e., Citizens Ins. Co. of America as Subrogee of Udolf Enterprises, LLC v. Select Energy Contracting & Babbitt, Superior Court, judicial district of Hartford, Docket No. CV 10 6007409.   The court, Graham, J., granted the motion on May 3, 2011.   Although Citizens Insurance is listed as a plaintiff in the action in the court's data base, it is not involved in the pending motion.   Therefore, the term plaintiff as used herein refers to Udolf 631, LLC..  FN1. Udolf 631, LLC (Udolf 631) initially brought this action against Select Energy Contracting, Inc. (Select Energy).   On May 25, 2010, the court, Graham, J., granted Udolf 631's motion to implead Randy J. Finke as a defendant in the action.   On September 17, 2010, the court, Graham, J., granted Select Energy's motion to implead Lawrence Babbitt as a defendant in the action.   Select Energy filed the motion to dismiss that is presently before the court, and the other defendants have not responded to the motion.   Therefore, the term defendant as used herein refers to Select Energy.On April 19, 2011, Citizen's Insurance Company of America (Citizens Insurance) entered an appearance in the action, solely for the purpose of filing a motion to consolidate this action with another action, i.e., Citizens Ins. Co. of America as Subrogee of Udolf Enterprises, LLC v. Select Energy Contracting & Babbitt, Superior Court, judicial district of Hartford, Docket No. CV 10 6007409.   The court, Graham, J., granted the motion on May 3, 2011.   Although Citizens Insurance is listed as a plaintiff in the action in the court's data base, it is not involved in the pending motion.   Therefore, the term plaintiff as used herein refers to Udolf 631, LLC.

FN2. It is well understood that for the purpose of determining whether a plaintiff has commenced an action in accordance with a statute of limitations, the relevant date is the date that process is served on the defendant, not the date on which the complaint is returned to the court.   Rocco v. Garrison, 268 Conn. 541, 549, 848 A.2d 352 (2004).   This particular distinction does not make a difference here, as the plaintiff's CUTPA claim was not timely commenced no matter which date is used for the calculation..  FN2. It is well understood that for the purpose of determining whether a plaintiff has commenced an action in accordance with a statute of limitations, the relevant date is the date that process is served on the defendant, not the date on which the complaint is returned to the court.   Rocco v. Garrison, 268 Conn. 541, 549, 848 A.2d 352 (2004).   This particular distinction does not make a difference here, as the plaintiff's CUTPA claim was not timely commenced no matter which date is used for the calculation.

FN3. The plaintiff concedes that the doctrine of fraudulent concealment may not toll the statute of limitations that applies to CUTPA claims.   Therefore this doctrine will not be discussed..  FN3. The plaintiff concedes that the doctrine of fraudulent concealment may not toll the statute of limitations that applies to CUTPA claims.   Therefore this doctrine will not be discussed.

FN4. Practice Book § 10–44 provides in relevant part:  “Within fifteen days after the granting of any motion to strike, the party whose pleading has been stricken may file a new pleading ․.  FN4. Practice Book § 10–44 provides in relevant part:  “Within fifteen days after the granting of any motion to strike, the party whose pleading has been stricken may file a new pleading ․

FN5. Therefore, the court is not required to consider the defendant's contentions that Judge Rittenband's rulings on the plaintiff's motion to amend that the defendant's objection thereto bars the plaintiff from denying the completion date, or that such a denial is barred by the doctrine of judicial estoppel..  FN5. Therefore, the court is not required to consider the defendant's contentions that Judge Rittenband's rulings on the plaintiff's motion to amend that the defendant's objection thereto bars the plaintiff from denying the completion date, or that such a denial is barred by the doctrine of judicial estoppel.

FN6. The court is aware that in Flannery v. Singer Asset Finance Co., LLC, 128 Conn.App. 507, 514–15, 17 A.3d 509, cert. granted, 302 Conn. 902, 23 A.3d 1242 (2011), the Appellate Court broadly stated that “our Supreme Court has stated that the continuing course of conduct doctrine does not toll the three year statute of limitations set forth in § 42–110g(f).  See Fichera v. Mine Hill Corp., 207 Conn. 204, 216–17, 541 A.2d 472 (1988).”   A close reading of Fichera suggests that this statement is overly broad in that, in Fichera, the court considered the plaintiff's contention that the doctrine applied, but then determined that the statute of limitations was not tolled under the particular circumstances of the case.  Fichera v. Mine Hill Corp., supra, 207 Conn. 213.   See Assurance Co. of America v. Yakemore, 50 Conn.Sup. 28, 37, 911 A.2d 777 (2006).   Moreover, in subsequent cases, the Appellate Court has considered the merits of the parties' contentions that the circumstances were such that the doctrine applied to their CUTPA claims.   See Blinkoff v. O & G Industries, Inc., supra, 113 Conn.App. 13–14;  Bellemare v. Wachovia Mortgage Corp., 94 Conn.App. 593, 608, 894 A.2d 335 (2006), aff'd on other grounds, 284 Conn. 193, 931 A.2d 916 (2007).It is also noted that in Flannery v. Singer Asset Finance Co., LLC, supra, 302 Conn. 902, the Supreme Court granted certification on, inter alia, the following issue:  “Did the Appellate Court properly determine that the three year statute of limitations period for actions brought under the Connecticut Unfair Trade Practices Act, General Statutes § 42–110a et seq., cannot be tolled.”   As of January 4, 2011, the case is in the briefing stage..  FN6. The court is aware that in Flannery v. Singer Asset Finance Co., LLC, 128 Conn.App. 507, 514–15, 17 A.3d 509, cert. granted, 302 Conn. 902, 23 A.3d 1242 (2011), the Appellate Court broadly stated that “our Supreme Court has stated that the continuing course of conduct doctrine does not toll the three year statute of limitations set forth in § 42–110g(f).  See Fichera v. Mine Hill Corp., 207 Conn. 204, 216–17, 541 A.2d 472 (1988).”   A close reading of Fichera suggests that this statement is overly broad in that, in Fichera, the court considered the plaintiff's contention that the doctrine applied, but then determined that the statute of limitations was not tolled under the particular circumstances of the case.  Fichera v. Mine Hill Corp., supra, 207 Conn. 213.   See Assurance Co. of America v. Yakemore, 50 Conn.Sup. 28, 37, 911 A.2d 777 (2006).   Moreover, in subsequent cases, the Appellate Court has considered the merits of the parties' contentions that the circumstances were such that the doctrine applied to their CUTPA claims.   See Blinkoff v. O & G Industries, Inc., supra, 113 Conn.App. 13–14;  Bellemare v. Wachovia Mortgage Corp., 94 Conn.App. 593, 608, 894 A.2d 335 (2006), aff'd on other grounds, 284 Conn. 193, 931 A.2d 916 (2007).It is also noted that in Flannery v. Singer Asset Finance Co., LLC, supra, 302 Conn. 902, the Supreme Court granted certification on, inter alia, the following issue:  “Did the Appellate Court properly determine that the three year statute of limitations period for actions brought under the Connecticut Unfair Trade Practices Act, General Statutes § 42–110a et seq., cannot be tolled.”   As of January 4, 2011, the case is in the briefing stage.

Woods, Glenn A., J.