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SEAN O’KANE A.I.A. ARCHITECT, P.C. v. GORAN

PULJIC ET AL.

(AC 35245)

Beach, Sheldon and Keller, Js.

Argued October 29, 2013—officially released March 18, 2014

(Appeal from Superior Court, judicial district of
Stamford-Norwalk, Hon. Kevin Tierney, judge trial

referee.)

Alan R. Spirer, for the appellant (plaintiff).

Michael V. Pepe, with whom were Justin Garcia and,

on the brief, Raymond A. Garcia, for the appellees

(defendants).
Opinion

BEACH, J. The plaintiff, Sean O’Kane A.I.A. Architect,

P.C.,1 appeals from the judgment of the trial court in

favor of the defendants, Goran Puljic and Melinda Puljic. The plaintiff claims that the court erred in (1) concluding that his breach of contract claim was barred

by the statute of limitations; (2) finding that the parties

did not enter into a ‘‘standstill’’ agreement, thus tolling

the statute of limitations; and (3) concluding that the

count of his complaint alleging unjust enrichment was

barred by the doctrine of laches. We affirm in part and

reverse in part the judgment of the trial court.

The action was commenced by service of process

on June 29, 2010. The plaintiff later filed an amended

complaint alleging (1) breach of contract for failure to

pay for architectural services, and (2) unjust enrichment. By way of special defenses, the defendants

alleged that the breach of contract claim was barred

by the applicable statute of limitations, General Statutes

§ 52-576, and that the unjust enrichment claim was

barred by the doctrine of laches. In the plaintiff’s reply

to the defendants’ special defense asserting the statute

of limitations, the plaintiff alleged, as a ‘‘matterin avoidance,’’ that the parties had agreed not to ‘‘bring claims

against one another’’ until after arbitration proceedings

involving the builder, a third party, were concluded,

and thus the statute of limitations had been tolled.

The parties entered into a stipulation agreeing to

bifurcate the trial, under which the facts and issues

relating to the defendants’ special defenses would be

decided prior to the adjudication of the other facts

and issues in this case. Accordingly, the court, in its

November 28, 2012 decision, addressed only the special

defenses alleging that any recovery was barred by the

statute of limitations and laches.

The following facts were found by the trial court. In

December, 2000, the plaintiff and Melinda Puljic executed a contract for architectural services (contract).

The contract was addressed to: ‘‘Mr. & Mrs. G. Puljic.’’

Both defendants were the owners of a house in Darien.

Pursuant to the contract, the plaintiff was to perform

restoration and alteration work on ‘‘two adjacent

houses built almost 200 years ago, improved with additions and alterations joining the two houses into one

building.’’ On October 10, 2001, both defendants and E.

M. Rose Builders, Inc. (Rose), entered into a construction contract(construction contract) pursuant to which

Rose commenced work. The plaintiff was not a party

to the construction contract. The goal of the project

was to complete the house by December, 2002.

The plaintiff submitted twenty-three serially numbered invoices to the defendants for architectural services. The defendants paid invoices one through

seventeen, but failed to pay invoices eighteen through
twenty-three. The total of the unpaid invoices was

$92,201.35, which the plaintiff claimed in damages in his

complaint. The unpaid invoices were for work allegedly

done during the period from July through December,

2002. No invoices were submitted into evidence for

architectural services rendered after December 31,

2002, and there was no testimony that any such invoices

were prepared. All invoices were addressed and billed

to both defendants.

The court found that the breach of contract claim

was barred by § 52-576, and that the unjust enrichment

claim was barred by the doctrine of laches. This

appeal followed.

I

The plaintiff first claims that the court erred in concluding that the breach of contract claim was barred

by the six year statute of limitations set forth in § 52-576.

He specifically argues that the court erred in concluding

that the continuous representation doctrine did not

apply.2 He contends that pursuant to the architectural

contract and the construction contract, his services on

the project were to continue until the project was complete—in other words, until the issuance of the certificate of occupancy and zoning compliance on September

25, 2005. He argues, therefore, that under the continuous representation doctrine, the breach of contract

claim accrued on September 25, 2005, and the action

was commenced within six years of that date. We disagree, and affirm the court’s holding that the breach of

contract claim is barred by the statute of limitations.3

Section 52-576 (a) provides in relevant part: ‘‘No

action for an account, or on any simple or implied

contract, or on any contract in writing, shall be brought

but within six years after the right of action accrues

. . . .’’ ‘‘[I]n an action for breach of contract . . . the

cause of action is complete at the time the breach of

contract occurs, that is, when the injury has been

inflicted. . . . While the statute of limitations normally

begins to run immediately upon the accrual of the cause

of action, some difficulty may arise in determining when

the cause or right of action is considered as having

accrued. . . . The true test for determining the appropriate date when a statute of limitations begins to run is

to establish the time when the plaintiff first successfully

could have maintained an action. That is, an action

cannot be maintained until a right of action is complete

and hence, the statute of limitations cannot run before

that time.’’ (Citation omitted; footnote omitted; internal

quotation marks omitted.) I. Rosenfield v. David

Marder & Associates, LLC, 110 Conn. App. 679, 685–86,

956 A.2d 581 (2008). The question of whether a party’s

claim is barred by the statute of limitations is one of

law subject to plenary review. Certain Underwriters at

Lloyd’s, London v. Cooperman, 289 Conn. 383, 407–408,

957 A.2d 836 (2008).
Several doctrines tolling the statutes of limitations

have emerged for policy reasons. The continuing course

of conduct doctrine, the continuous treatment doctrine,

and the continuous representation doctrine present

similar solutions to similar problems. The plaintiff

argues that this case is appropriately subject to the

continuous representation doctrine. That doctrine,

however, has been applied thus far only to contexts

involving attorneys, where ethical considerations

inform the preference to delay accrual, from the time

of the act or omission complained of until the attorney’s

representation has ended. ‘‘[O]ur Supreme Court [in

DeLeo v. Nusbaum, supra, 263 Conn. 596–97] adopted

a modified continuous representation doctrine for cases

of alleged legal malpractice during litigation, tolling the

statute of limitations contained in § 52-577 when a plaintiff can show: (1) that the defendant continued to represent him with regard to the same underlying matter;

and (2) either that the plaintiff did not know of the

alleged malpractice or that the attorney could still mitigate the harm allegedly caused by that malpractice during the continued representation period. . . . The

court [in DeLeo] noted that it anticipate[d] that these

standards would be applicable to all attorney malpractice cases [but] acknowledged that the implications of

tolling for attorney-client relationships in the context

of litigation may not be the same as those for other

attorney-client relationships. Accordingly, [the] holding

[was] limited to cases in which an attorney is alleged

to have committed malpractice during the course of

litigation.’’ (Citation omitted; emphasis altered; internal quotation marks omitted.) Piteo v. Gottier, 112

Conn. App. 441, 447, 963 A.2d 83 (2009); see also Rosato

v. Mascardo, 82 Conn. App. 396, 407, 844 A.2d 893 (2004)

(‘‘[T]he holding of DeLeo is quite limited. In a footnote,

the court explicitly limited its holding to ‘cases in which

an attorney is alleged to have committed malpractice

during the course of litigation.’ . . . Because the

breadth of the holding was limited even within the context of legal malpractice, this court declines to read that

holding expansively and to apply it to cases involving

medical malpractice.’’).

Although he seeks to benefit from the doctrine he

labels the ‘‘continuous representation doctrine,’’ the

plaintiff relies on cases that, strictly speaking, do not

involve continuous representation, but rather hold that,

in some instances, bills are not due and owing until

after the job for which they were incurred is complete.

These cases are more apt, yet are ultimately unavailing.

In Gaylord Hospital v. Massaro, 5 Conn. App. 465,

466, 499 A.2d 1162 (1985), the plaintiff hospital provided

services to the defendant’s spouse pursuant to a contract signed by the plaintiff. The action for payment

was brought more than six years after the patient was

hospitalized but less than six years after the patient
was released. Id. This court held that because the finder

of fact determined that the contract contemplated a

continuous, indivisible course of treatment, the action

did not accrue until the completion of treatment, and

thus was not barred. Id., 469. The court expressly stated:

‘‘In an action for breach of contract, the cause of action

is complete upon the occurrence of the breach, that is,

when the injury has been inflicted. . . . Where services

are continuously rendered over an extended period of

time under an express or implied contract which does

not fix the term of employment nor the time when

compensation shall be payable, many courts have

regarded the contract as an entire one, raising an

implied condition that the compensation shall not be

due until the termination of the service, so that the

statute of limitations will not begin to run against the

claim for compensation until the employment is ended.’’

(Citation omitted; emphasis added; internal quotation

marks omitted.) Id., 467–68.4

In the present case, in contrast, the contract specified

the time that periodic invoices were due. Under a section entitled ‘‘billings and payments,’’ the contract provided that ‘‘[i]nvoices for services shall be submitted

monthly and are due upon receipt and are past due

fifteen (15) days after the invoice date.’’ Therefore,

although the contract provided that the plaintiff was to

perform services that could conceivably continue until

the completion of the project,5

the contract also divided

payment into monthly segments and provided that the

plaintiff was to bill each month for work performed

and that the invoices were to be paid within fifteen

days of the invoice date. Invoices eighteen through

twenty-three pertained to discrete services provided

during certain time frames. Hence, a breach of contract

for nonpayment of each invoice would have occurred

when the deadline for payment arrived, fifteen days

after the invoice date,6 and no payment was made.

Further, even if the contractual expectation of continuous performance, as described in Gaylord Hospital,

were read by implication into the contract, relief would

be thwarted by the court’s findings that the plaintiff’s

services were complete by and the contract was terminated no later than February 3, 2003. The findings are

not clearly erroneous. See Miller v. Guimaraes, 78

Conn. App. 760, 766–67, 829 A.2d 422 (2003) (‘‘With

regard to the trial court’s factual findings, the clearly

erroneous standard of review is appropriate. . . . A

factual finding is clearly erroneous when it is not supported by any evidence in the record or when there is

evidence to support it, but the reviewing court is left

with the definite and firm conviction that a mistake has

been made.’’ [Internal quotation marks omitted.]). The

‘‘scope of work’’ section of the contract7 did not specifically provide that the plaintiff would assist the defendants in obtaining a certificate of occupancy. On crossexamination, the plaintiff admitted that the tasks
detailed in the ‘‘scope of work’’ section of the contract

were completed by the end of 2002. No invoices were

submitted for architectural services rendered after

December 31, 2002. From the fact that the defendants

did not hire another architect, the court could have

inferred that the architectural services were completed.

Further, Goran Puljic stated to the plaintiff in January

or February, 2003, that ‘‘I have paid you enough,’’ and

wrote in a January, 2003 e-mail to the plaintiff that ‘‘I

don’t think we need anything from you right now.’’ From

this evidence, it was not clearly erroneous for the court

to determine that the contract was terminated in February, 2003. For the foregoing reasons, we conclude that

the continuous representation doctrine or similar principles do not apply in this case,8 and therefore the plaintiff’s claim is without merit.

II

The plaintiff next claims that the court erred in

determining that the parties did not enter into a ‘‘standstill’’ agreement, under which the plaintiff agreed not

to bring an action against the defendants until the conclusion of a dispute between the defendants and their

contractor, Rose. As a result, the plaintiff argues, the

statute of limitations was tolled until the resolution of

the dispute in January, 2007. We disagree.

The record reveals that the defendants had filed a

counterclaim alleging, in part, that ‘‘the plaintiff and

the defendants agreed that they would not bring claims

against one another related to the project until after

the litigation between defendants and their contractor

was resolved.’’ That allegation was later withdrawn and

an amended counterclaim was filed. This withdrawn

pleading, and the plaintiff’s cursory agreement with it

at trial, constitute the sole evidentiary support for the

plaintiff’s claim. The court found that such an

agreement had not been made.

The court found that Rose called the plaintiff, on

April 27 and June 6, 2005, as a witness in its arbitration

hearing involving the defendants. The arbitration proceeding was resolved in January, 2007, in Rose’s favor.

The court did not agree with the plaintiff’s argument

that the defendants were bound by a judicial admission

in their counterclaim that a standstill agreement had

been entered into. The court concluded that because

the defendants withdrew the pleading in which the

statement appeared, the statement was no longer a

binding judicial admission, but rather had become an

evidential admission that could be explained or denied

at trial.9 The court found that the plaintiff offered no

credible evidence of a standstill agreement. The court

noted that the entirety of the evidence of a standstill

agreement was, in essence, a withdrawn pleading and

the plaintiff’s affirmative answer when asked at trial if

he agreed with the allegations of the defendants’ counterclaim pertaining to the existence of a standstill
agreement. No documentary evidence was offered in

support of this claim.

The plaintiff argues that the court ignored the defendants’ evidence. The court found credible the testimony

of Goran Puljic that he never entered into a standstill

agreement with the plaintiff, and found the plaintiff’s

testimony regarding the existence of a standstill

agreement not to be credible. It was within the province

of the trial court to determine credibility, and it did not

err in so doing. ‘‘The sifting and weighing of evidence

is peculiarly the function of the trier [of fact]. . . .

[N]othing in our law is more elementary than that the

trier [of fact] is the final judge of the credibility of

witnesses and of the weight to be accorded to their

testimony. . . . The trier is free to accept or reject, in

whole or in part, the testimony offered by either party.

. . . That determination of credibility is a function of

the trial court.’’ (Citations omitted; internal quotation

marks omitted.) Heritage Square, LLC v. Eoanou, 61

Conn. App. 329, 333, 764 A.2d 199 (2001). Accordingly,

the plaintiff’s claim is without merit.

III

The plaintiff last claims that the court erred in concluding that the count of his complaint alleging unjust

enrichment was barred by the doctrine of laches. We

remand the case for resolution of the issue of laches

by the trial court.

‘‘The equitable remedy of unjust enrichment may be

invoked when justice requires that a party be compensated for . . . services rendered under a contract, and

no [legal] remedy is available by an action on the contract. . . . As an equitable right, unjust enrichment is

based on the principle that in a given situation, it is

contrary to equity and good conscience for the defendant to retain a benefit [that] has come to him at the

expense of the plaintiff. . . . Plaintiffs seeking recovery for unjust enrichment must prove (1) that the defendants were benefited, (2) that the defendants unjustly

did not pay the plaintiffs for the benefits, and (3) that

the failure of payment was to the plaintiffs’ detriment.’’

(Citation omitted; internal quotation marks omitted.)

Nation Electrical Contracting, LLC v. St. Dimitrie

Romanian Orthodox Church, 144 Conn. App. 808, 815,

74 A.3d 474 (2013).

‘‘[T]he defense of laches does not apply unless there

is an unreasonable, inexcusable, and prejudicial delay

in bringing suit. . . . Delay alone is not sufficient to

bar a right; the delay in bringing suit must be unduly

prejudicial.’’ (Citations omitted; internal quotation

marks omitted.) Cummings v. Tripp, 204 Conn. 67, 88,

527 A.2d 230 (1987). ‘‘Whether the defense of laches

was applicable to [an] action . . . is a question of law.

When there is a question of law, our review of the

court’s decision is plenary.’’ Florian v. Lenge, 91 Conn.
App. 268, 281, 880 A.2d 985 (2005). Laches may be available as a defense to an equitable cause of action,

whereas the statute of limitations is applicable to legal

causes. Id., 281–82.

The court found that the seven and one-half year

delay in bringing the action was prejudicial to the defendants.10 The court reasoned that the plaintiff sought

$92,201.35 in damages, a 1.5 percent monthly service

charge as provided for in the contract, plus interest.

The court assumed that the service charge would commence on the date of the last bill, February 3, 2003, and

concluded that the defendants potentially were facing

a monetary claim in excess of $255,213.29. The court

computed the potential harm in delay by reference to

damages provided for in the contract.

The plaintiff contends that he properly claimed unjust

enrichment as to Goran Puljic because he was not a

party to the contract, but as joint owner of the house

in Darien, he benefited from the plaintiff’s architectural

services and did not pay for all of the services; he thus

was unjustly enriched. He argues that the court erred

in applying contract provisions in its assessment of

the prejudice necessary for application of the special

defense of laches. The defendants, on the other hand,

argue that the court’s finding regarding prejudice was

proper and, in the alternative, that Goran Puljic was in

fact a party to the contract, and, thus, the claim against

him was also subject to the statute of limitations

defense. They argue that, although only Melinda Puljic

signed the contract, both defendants were actually parties to it because the contract was addressed to ‘‘Mr.

and Mrs. G. Puljic’’ and Goran Puljic testified that he

engaged the plaintiff.

The plaintiff’s claim regarding laches depends, in

part, on whether Goran Puljic was a party to the contract. If he was a party to the contract, then a claim

for unjust enrichment as to him would not be appropriate. See Feng v. Dart Hill Realty, Inc., 26 Conn. App.

380, 383, 601 A.2d 547 (‘‘[p]roof of a contract enforceable at law precludes the equitable remedy of unjust

enrichment’’), cert. denied, 223 Conn. 912, 612 A.2d 59

(1992). If, however, Goran Puljic was not a party to the

contract, then the plaintiff could appropriately claim

unjust enrichment as to him. The court apparently

found it unnecessary to decide whether Goran Puljic

was a party to the contract, because it found that the

defense of laches barred the claim in any event. We note,

however, that the court applied an incorrect standard

regarding the prejudice component of laches. Damages

can be assessed pursuant to an unjust enrichment claim

only when no contractual relief is available. The potential assessment of contractually mandated damages,

then, cannot constitute prejudice for the purpose of

laches as a defense to unjust enrichment.

Whether Goran Puljic’s signature was required in this
case to form an enforceable contract between him and

the plaintiff or whether a contract existed between him

and the plaintiff regardless of the lack of his signature,

are questions of fact to be decided by the trial court.

See, e.g., Schwarzschild v. Martin, 191 Conn. 316, 321–

22, 464 A.2d 774 (1983) (‘‘[i]n the absence of a statute

requiring a signature . . . parties may become bound

by the terms of a contract, even though they do not sign

it, where their assent is otherwise indicated’’ [internal

quotation marks omitted]); MD Drilling & Blasting,

Inc. v. MLS Construction, LLC, 93 Conn. App. 451, 454,

889 A.2d 850 (2006) (existence of contract question of

fact to be determined by trier of fact).

Accordingly, we remand the case to the trial court

for a determination of whether Goran Puljic was a party

to the contract. If the court finds that he was not a

party, then the trial court must determine whether the

defendants’ special defense of laches bars the unjust

enrichment claim against him. If, on the other hand,

the court finds that he was a party to the contract, then

the court must render judgment in his favor on that

claim under the statute of limitations.

The judgment is reversed with respect to the unjust

enrichment count of the complaint and the case is

remanded for further proceedings in accordance with

the preceding paragraph. The judgment is affirmed in

all other respects.

In this opinion the other judges concurred.

1 The court stated that ‘‘[a]ny issue as to whether the proper plaintiff is

Sean O’Kane individually, Sean O’Kane Architect AIA or Sean O’Kane, AIA

Architect, P.C., is not relevant to either the statute of limitations or laches

defense, which are the only two issues before this court in these bifurcated

proceeding[s].’’ For the sake of clarity, references in this opinion are to

Sean O’Kane individually.’’

2 Citing authority such as Lee v. Brenner, Saltzman & Wallman, LLP, 128

Conn. App. 250, 15 A.3d 1215, cert. denied, 301 Conn. 926, 22 A.3d 1277

(2011); and Fichera v. Mine Hill Corp., 207 Conn. 204, 541 A.2d 472 (1988),

the court referred specifically to the continuing course of conduct doctrine

rather than the continuous representation doctrine. The court, however,

found facts applicable to both doctrines, which are quite similar in theory

and in effect. The plaintiff claims that the facts of this case compel the

conclusion that the statute of limitations ought to be tolled. We determine,

however, that the continuous representation doctrine does not apply in the

factual context of this case.

3 The court concluded, on alternate grounds, that the plaintiff could not

prevail on his claim that the statute of limitations had been tolled by the

continuous representation doctrine because he pleaded only a standstill

agreement, and not the continuous representation doctrine, as a matter

in avoidance.

The defendants, citing Practice Book § 10-57, argue that the continuous

representation doctrine must be affirmatively pleaded in avoidance of the

defendants’ special defense of the statute of limitations. Section 10-57 provides in relevant part: ‘‘Matter in avoidance of affirmative allegations in an

answer or counterclaim shall be specially pleaded in the reply.’’ The plaintiff

argues that § 10-57 does not apply because ‘‘[a] plaintiff is required to affirmatively plead claims in avoidance of the statute of limitations such as facts

evidencing a tolling of the statute of limitations. . . . However, the continuous representation doctrine is not a tolling doctrine . . . [it] merely determines the accrual of the right of action and does not suspend or toll an

action that has already accrued.’’ (Citation omitted.)

We do not necessarily agree. The plaintiff’s stance is premised on the

proposition that ‘‘tolling’’ must be an interruption within the prescribed
period, rather than a delay at the outset. Our case law, however, rather

clearly refers to tolling as also encompassing a delay in accrual of the cause

of action. See DeLeo v. Nusbaum, 263 Conn. 588, 597, 821 A.2d 744 (2003); see

also 51 Am. Jur. 2d 546, Limitation of Actions § 148 (2000). The continuous

representation doctrine tolls the accrual of the cause of action, essentially

deferring it until representation has ended, despite the fact that the actionable injury or harm may have already occurred. See, e.g., Deleo v. Nusbaum,

supra, 586–97 (describing continuous representation doctrine as ‘‘tolling’’

statute of limitations).

4 The plaintiff also relies on Mitchell v. Guardian Systems, Inc., 72 Conn.

App. 158, 804 A.2d 1004, cert. denied, 262 Conn. 903, 810 A.2d 269 (2002).

In that case, the plaintiff sought attorney’s fees, and the issue was whether

the action was barred by the statute of limitations. Id., 160–61. The services

for which the fees were charged had been performed more than six years

prior to the commencement of the action, but the finder of fact found that

the representation had terminated within six years, and the action was not

barred. Id., 161. ‘‘When the claim for attorneys’ fees is based upon continuous

legal representation, the statute of limitations does not begin to run until

the legal services are complete . . . . The statute of limitations is tolled

during the pendency of the continuous representation.’’ Id., 164. The attorney

had the ethical duty to represent the plaintiff until he was relieved of his

obligation. Id. In the present case, the court found that the ‘‘representation’’

by the plaintiff had been terminated prior to the six year period, and, in

any event, the contract specifically set the dates that payments were due.

5 The contract provides, under a section entitled ‘‘scope of work,’’ that

the plaintiff would provide the following architectural services for the project: ‘‘Field measuring, photography, existing condition drawings, design and

construction drawings, specifications, budget estimates and consultation

for the proposed additions and alterations to the above residence. The

drawings shall consist of small scale plans and sketches at the preliminary

design stage followed by complete construction drawings, engineered framing plans, elevations, sections, details and lighting plans at appropriate scales

as necessary for the proper construction of the Work. Also included shall

be window, door and finish schedules as well as a Project Manual of specifications. Site visits shall be made at regular intervals to review the performance and quality of the construction.’’

6 The dates for invoices eighteen through twenty-three range from August,

22, 2002 until February 3, 2003, all of which are outside the six year limitation period.

7 See footnote 5 of this opinion.

8 The plaintiff makes additional arguments including the following: the

court ‘‘appears to labor under the misapprehension that the plaintiff was

engaged to render only design services’’; the court’s observation that the

plaintiff was not a signatory to the construction contract ‘‘misses the mark’’;

‘‘the court makes much’’ of the fact that the plaintiff was called to testify

as a witness by Rose but that fact ‘‘is of no moment’’; the fact that the

plaintiff did not bill the defendants for consultation services and contract

administration does not change the fact that the plaintiff continued to render

services pursuant to the contract; both parties stated at trial that the defendants did not terminate the contract; and the court noted that the defendants

did not hire another architect or designate another architect pursuant to

the construction contract. None of these arguments alter our conclusion

that the continuous representation doctrine or other doctrine delaying

accrual did not toll the statute of limitations.

9 See, e.g., Dreier v. Upjohn Co., 196 Conn. 242, 244, 492 A.2d 164 (1985)

(‘‘statements in withdrawn or superseded pleadings, including complaints,

may be considered as evidential admissions by the party making them’’).

10 The court found that the plaintiff had not pleaded in avoidance of the

defendants’ special defense of laches, but nevertheless addressed the claim.