Complaint,Petition: BARBARA, JAMES,E Et Al v. COLONIAL SURETY COMPANY

On April 04, 2017 a Complaint,Petition was filed involving a dispute between James E Barbara, Lina T Barbara, and Colonial Surety Company, for C90 - Contracts - All other in the District Court of New Haven County.

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DOCKET NO. AAN-CV17-5012366-S : SUPERIOR COURT
:
JAMES E. BARBARA and : JUDICIAL DISTRICT OF
LINA T. BARBARA : ANSONIA-MILFORD
:
v. : AT MILFORD
:
COLONIAL SURETY COMPANY : MARCH 20, 2018

REQUEST TO REVISE

The defendants, Colonial Surety Company (“Colonial”), pursuant to Practice Book § 10-

35, hereby requests that the plaintiffs, James E. Barbara and Lina T. Barbara (collectively

hereinafter “Plaintiffs”), revise their Complaint dated March 8, 2017 (“Complaint”), as follows:

FIRST REQUESTED REVISION

A. Portion of Pleading Sought to Be Revised:

Entire Complaint.

B. Requested Revision:

Revise the entire Complaint so that that the Complaint alleges separate counts for each

cause of action as required by Practice Book § 10-26, and sets forth Plaintiffs’ claims for relief

separately and after the count(s) containing Plaintiffs’ alleged causes of action, as required by

Practice Book § 10-20 and General Statutes § 52-91.

C. Reasons for the Requested Revision:

As alleged, the Complaint is organized into a “First Claim for Relief”; Complaint, p. 1-8;

a “Second Claim”; Complaint, p.7-8; and a prayer for relief. Complaint, p. 8-9. The Complaint,

therefore, fails to comply with the requirements in Practice Book §§ 10-20 and 10-26 for the

manner in which the allegations, causes of action, and claims for relief in a complaint are

required to be organized.

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Practice Book § 10-35: “Whenever any party desires to obtain (4) any … appropriate

correction in an adverse party's pleading, the party desiring any such amendment in an adverse

party's pleading may file a timely request to revise that pleading.” An “essential purpose” of

pleading is “to apprise the court and opposing counsel of the issues to be tried.” Thames River

Recycling v. Gallo, 50 Conn. App. 767, 782-783 (1998). A request to revise provides a

procedural remedy to correct an adverse party’s pleading which is used for “framing of issues for

trial” where the facts and issues in the opposing party’s pleadings are “framed in a slovenly

manner.” Id.

Practice Book § 10-20 provides:

The first pleading on the part of the plaintiff shall be known as the
complaint. It shall contain a concise statement of the facts
constituting the cause of action and, on a separate page of the
complaint, a demand for relief which shall be a statement of the
remedy or remedies sought. When money damages are sought in the
demand for relief, the demand for relief shall include the
information required by General Statutes § 52-91.

General Statutes § 52-91 provides in relevant part that:

When money damages are sought in the demand for relief, the
demand for relief shall set forth: (1) That the amount, legal interest
or property in demand is fifteen thousand dollars or more, exclusive
of interest and costs; or (2) that the amount, legal interest or property
in demand is two thousand five hundred dollars or more but is less
than fifteen thousand dollars, exclusive of interest and costs; or (3)
that the amount, legal interest or property in demand is less than two
thousand five hundred dollars, exclusive of interest and costs. In
addition, in a contract action in which only money damages are
sought and in which the amount, legal interest or property in demand
is less than fifteen thousand dollars, exclusive of interest and costs,
the demand for relief shall also set forth whether or not the remedy
sought is based upon an express or implied promise to pay a definite
sum.

Practice Book § 10-26 provides:

Where separate and distinct causes of action, as distinguished from
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separate and distinct claims for relief founded on the same cause of
action or transaction, are joined, the statement of the second shall be
prefaced by the words Second Count, and so on for the others; and
the several paragraphs of each count shall be numbered separately
beginning in each count with the number one.

As alleged, the Complaint contains no separate counts, and is organized into a “claim for

relief” and a “second claim” followed by a prayer for relief in which Plaintiffs seek money

damages, which does not contain the information required by General Statutes § 52-91.

Furthermore, the Complaint appears purport to allege multiple, distinct, causes of action, none of

which are alleged in separate counts as required by Practice Book § 10-26. Within the

Complaint, Plaintiffs apparently purport to allege a cause of action for breach of the Indemnity

Agreement; Complaint ¶ ¶ 23, 41, 46, 55, 56, 62; a cause of action for breach of the performance

bond; Complaint ¶ ¶ 42; a cause of action for bad faith breach of contract or breach of the

covenant of good faith; Complaint ¶ ¶ 35, 36, 37, 38, 47, 56, 62; and a cause of action for a

declaratory judgment. Complaint ¶ ¶ 62 and Prayer for Relief ¶ b. As result, the Complaint

contains no separate counts, yet purports to contain multiple separate and distinct causes of

action.

Plaintiffs must revise their complaint so that it sets forth a First Count, Second Count,

Third Count, etc., for each separate cause of action which Plaintiffs purport to allege, as required

by Practice Book § 10-26, followed by a separate prayer for relief which complies with Practice

Book § 10-20 and General Statutes§ 52-91. As alleged, the Complaint fails to comply with

Connecticut’s rules of practice and embodies a “slovenly” framing of the issues in dispute.

Colonial is entitled to be apprised of the material factual basis of the claims being made against

it. Accordingly, the Complaint must be revised as requested to properly frame the causes of

action and issues in dispute in this action, for it to be possible for Colonial to evaluate the factual

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bases upon which all Plaintiffs’ causes of action against Colonial are based, and for Colonial to

be able to frame a responsive pleading and have a fair opportunity to prepare its defense.

For the foregoing reasons, the Complaint must be revised as requested.

D. Response:

SECOND REQUESTED REVISION

A. Portion of Pleading Sought to Be Revised:

Entire Complaint.

B. Requested Revision:

Revise the entire Complaint so that that the Complaint alleges a separate count for each

distinct cause of action which Plaintiffs purport to allege, including a separate count for each

cause of action for breach of each separate and distinct contract (e.g. the Indemnity Agreement

or the Bond), a separate count for each cause of action for breach of the implied covenant of

good faith in each separate and distinct contract and/or bad faith breach of such contract, and a

separate count for the cause of action for declaratory judgment.

C. Reasons for the Requested Revision:

The Complaint contains no separate counts, yet appears to improperly attempt to allege

multiple different causes of action for breaches of separate and distinct contracts, breaches of the

covenant of good faith and/or bad faith breach of separate and distinct contracts, and a cause of

action for a declaratory judgment.

Practice Book § 10-35: “Whenever any party desires to obtain … (3) separation of causes

of action which may be united in one complaint when they are improperly combined in one

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count … or (4) any other appropriate correction in an adverse party's pleading, the party desiring

any such amendment in an adverse party's pleading may file a timely request to revise that

pleading.” An “essential purpose” of pleading is “to apprise the court and opposing counsel of

the issues to be tried.” Thames River Recycling v. Gallo, 50 Conn. App. 767, 782-783 (1998). A

request to revise provides a procedural remedy to correct an adverse party’s pleading which is

used for “framing of issues for trial” where the facts and issues in the opposing party’s pleadings

are “framed in a slovenly manner.” Id.

Practice Book § 10-26 provides:

Where separate and distinct causes of action, as distinguished from
separate and distinct claims for relief founded on the same cause of
action or transaction, are joined, the statement of the second shall be
prefaced by the words Second Count, and so on for the others; and
the several paragraphs of each count shall be numbered separately
beginning in each count with the number one.

Each separate and distinct contract “furnishes a different cause of action” for breach of the

same, which is separate and distinct from causes of action arising under other contracts with

independent obligations, such that a cause of action for breach of each “distinct contract” should

be alleged in a separate count from causes of action claiming breach of different contracts. Beizer

v Dictograph Products, Inc., 6 Conn. Cir. 28, 263 A.2d 93, 96-97 (1969). In a properly drawn

complaint, alleged claims for breach of multiple different contracts are not properly combined in

one count. Conn. Light & Power Co. v. Gilmore, CV030404311, 2005 Conn. Super. LEXIS 1849

*1 (Super. July 20, 2005, Doherty, J.). Accordingly, each claim for breach of a separate and

distinct contract constitutes a separate and distinct cause of action which must be pleaded in a

separate count.

Similarly, “[a] claim of a breach of the duty of good faith and fair dealing is a separate

cause of action.” Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc.,
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HHDCVX04085023532S, 2010 Conn. Super. LEXIS 1409 at *26 (Super. May 11, 2010,

Shapiro, J.); Michel v. Bridgeport Hospital, CV116015195, 2011 Conn. Super. LEXIS 538, *15

(Super. Mar. 7, 2011, Levin, J.). A single count which alleges both breach of a contract and

breach of the implied covenant of good faith, “combines two causes of action in one count.”

Cabrera v. American School for the Deaf, Docket No. HHDCV126035273S, 2013 Conn. Super.

LEXIS 447, at *3 (Super. Feb. 26, 2013, Schuman, J.). Accordingly, claims alleging breach of

the implied covenant of good faith or alleging bad faith breach of a contract, are separate and

distinct causes of action from other claims alleging breach of the contract which underlies the

bad faith/breach of good faith claims. Furthermore, a cause of action that the covenant of good

faith in one contract has been breached, must be alleged in a separate count from causes of action

alleging that the convent of good faith in other different contracts has been breached. RAB

Associates, LLC v. Bertch Cabinet Mfg., NNHCV106015934S, 2014 Conn. Super. LEXIS 1855,

at *13 (Super. July 30, 2014, Nazarra, J.) (overruling objection to request to revise requesting

that each cause of action for breach of good faith arising from a separate contract be pled in a

separate count because “it is evident that each contract can create a separate cause of action for

breaches of the covenant of good faith and fair dealing.”).

Additionally, a claim seeking a declaratory judgment constitutes a separate cause of

action from other causes of action based on the same facts, events and transactions underlying

the claim for declaratory relief. A claim for a declaratory judgment is itself a separate cause of

action with its own particular pleading requirements which must be satisfied to sufficiently “state

a cause of action for declaratory judgment.” ABB Automation, Inc. v. Zaharna, 77 Conn. App.

260, 266-67 (2003) (examining whether allegations comply with Practice Book § 17-55 so as to

sufficiently state a cause of action for declaratory judgment.); Bombero v. Planning & Zoning

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Commission, 40 Conn. App. 75, 85-86 (1996) (examining whether complaint alleges facts

sufficient to “state a cause of action for [declaratory] relief…”)

As alleged, the Complaint appears to purport to allege multiple, distinct, causes of action,

none of which are alleged in separate counts as required by Practice Book § 10-26. Within the

Complaint, Plaintiffs apparently purport to allege a cause of action for breach of the Indemnity

Agreement; Complaint ¶ ¶ 23, 41, 46, 55, 56, 62; a cause of action for breach of the performance

bond; Complaint ¶ ¶ 42; a cause of action for bad faith breach of contract or breach of the

covenant of good faith; Complaint ¶ ¶ 35, 36, 37, 38, 47, 56, 62; and a cause of action for a

declaratory judgment. Complaint ¶ ¶ 62 and Prayer for Relief ¶ b. As result, the Complaint

contains no separate counts, yet purports to contain multiple separate and distinct causes of

action.

Plaintiffs must revise their complaint so that each separate cause of action is alleged in a

separate count, as required by Practice Book § 10-26. As alleged, the Complaint fails to comply

with Connecticut’s rules of practice and embodies a “slovenly” framing of the issues in dispute.

The Complaint must be revised as requested to properly frame the causes of action and issues in

dispute in this action, for it to be possible for Colonial to evaluate the factual bases upon which

all Plaintiffs’ causes of action against Colonial are based, and for Colonial to be able to frame a

responsive pleading and have a fair opportunity to prepare its defense.

For the foregoing reasons, the Complaint must be revised as requested.

D. Response:

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THIRD REQUESTED REVISION

A. Portion of Pleading Sought to Be Revised:

Complaint Paragraph 2 which alleges “On or about June 15, 2007, Phoenix executed a

subcontract ("Subcontract") to supply and install window wall, and other fenestration products

throughout the construction located at 150 Lafayette Street, New York, NY ("Project") a 26 story

hotel.”

B. Requested Revision:

Revise Complaint Paragraph 2 to state the names of the parties, other than Phoenix

Contracting Group, Inc., to the Subcontract referred to in Paragraph 2.

C. Reasons for the Requested Revision:

Paragraph 2 alleges that Phoenix entered into a Subcontract, yet fails to disclose the other

parties to that Subcontract. Accordingly, Paragraph 2 falls short of providing the basic

information which comprises the material facts upon which Plaintiffs’ causes of action are based.

Practice Book § 10-35: “Whenever any party desires to obtain (1) a more complete or

particular statement of the allegations of an adverse party's pleading, or (2) the deletion of any

unnecessary, repetitious, scandalous, impertinent, immaterial or otherwise improper allegations

in an adverse party's pleading, or (3) separation of causes of action which may be united in one

complaint when they are improperly combined in one count, or the separation of two or more

grounds of defense improperly combined in one defense, or (4) any other appropriate correction

in an adverse party's pleading, the party desiring any such amendment in an adverse party's

pleading may file a timely request to revise that pleading.” An “essential purpose” of pleading is

“to apprise the court and opposing counsel of the issues to be tried.” Thames River Recycling v.

Gallo, 50 Conn. App. 767, 782-783 (1998). A request to revise provides a procedural remedy to

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correct an adverse party’s pleading which is used for “framing of issues for trial” where the facts

and issues in the opposing party’s pleadings are “framed in a slovenly manner.” Id. Indeed, “the

proper way to cure any confusion . . . [about what is being pleaded] is to file a motion to revise . .

. .” Rowe v. Godou, 209 Conn. 273, 279 (1988). The purpose of a request to revise is to secure a

statement of the material facts upon which the adverse party bases his complaint or defense.”

Knight v. Southeastern Council on Alcoholism, 2001 WL 1231825 (Conn. Super. J.D. of New

London, Sep. 21, 2001, Hurley, J.T.R.) (citing Kileen v. General Motors Corp., 36 Conn. Sup.

347, 348 (1980)). “[A] request to revise is permissible to obtain information so that a defendant

may intelligently plead and prepare his case for trial . . . .” (Internal quotation marks omitted.)

Summit Bank v. Riverview East Associates, 2000 WL 1207295 (Conn. Super. J.D. of Stamford-

Norwalk, Aug. 9, 2000, Hickey, J.).

Practice Book § 10-1 provides in relevant part that “[e]ach pleading shall contain a plain

and concise statement of the material facts on which the pleader relies … such statement to be

divided into paragraphs numbered consecutively, each containing as nearly as may be a

separate allegation. If any such pleading does not fully disclose the ground of claim or defense,

the judicial authority may order a fuller and more particular statement[.]” (emphasis supplied).

Colonial is entitled to be apprised of the material factual basis of the claims being made against

it. By omitting from Paragraph 2 the parties with whom Phoenix allegedly entered into the

Subcontract, the Complaint fails to supply the basic material facts upon which Plaintiffs rely.

Paragraph 2, therefore, fails to give fair notice to Colonial of the basic facts underlying

Plaintiffs’ are alleging as the bases for their claims against Colonial and this allegation must be

revised for Colonial to be able to frame a responsive pleading and have a fair opportunity to

prepare its defense.

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For the foregoing reasons, the Complaint must be revised as requested.

D. Response:

FOURTH REQUESTED REVISION

A. Portion of Pleading Sought to Be Revised:

Complaint Paragraph 5 which alleges “Prior to May 2008, Phoenix applied for a payment

and performance bond on this Project with Colonial which was approved.”

B. Requested Revision:

Revise Complaint Paragraph 5 to clarify whether it is alleged that a payment and

performance was approved, or that an application for a payment and performance bond was

approved; and in either case, the person who gave such alleged approval.

C. Reasons for the Requested Revision:

As alleged, Paragraph 5 of the Complaint is ambiguous as to whether Plaintiffs are

alleging that a bond application was approved, or the bonds themselves were approved, and does

not state who allegedly gave such approval. Accordingly, Plaintiffs must revise Paragraph 5 to

provide a more complete and particular statement of the facts comprising its cause of action

because alleged, Paragraph 5 is ambiguous.

Connecticut Practice Book § 10-35 provides that “[w]henever any party desires to obtain

. . . a more complete or particular statement of the allegations of an adverse party’s pleading . . .

or any other appropriate correction in an adverse party’s pleading, the party desiring any such

amendment in an adverse party’s pleading may file a timely request to revise that pleading.”

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Fact pleading, as required by Connecticut’s rules of practice, is intended to allow a

defendant to determine “with reasonable specificity what the plaintiff claims happened to [them]:

when it happened, who was involved, how the conduct infringed a legal right of the plaintiff, and

how the plaintiff was harmed …. So too the proper purpose of the request to revise be

understood: to compel the plaintiff to state [their] grievances plainly and specifically so that the

defendants can state their responses plainly and specifically as well.” Lebby v. City of New

Britain, HHBCV065002738, 2007 Conn. Super. LEXIS 1775, at *9-10 (J.D. of New Britain,

July 6, 2007) aff’d 107 Conn. App. 904 (2008); See also Kileen v. General Motors Corp., 36

Conn. Supp. 347, 348-49 1980) (“a request to revise is permissible to obtain information so that

a defendant may intelligently plead and prepare his case for trial.”). Connecticut is a fact-

pleading jurisdiction and the Complaint must provide adequate notice of the facts claimed and

the issues to be tried. Todd v. Glines, 217 Conn. 1, 9-10 (1991); New Milford Savings Bank v.

Roina, 38 Conn. App. 240, 244 (1995); see also Conn. Prac. Bk. § 10-1 (a complaint “shall

contain a plain and concise statement of the material facts on which the pleader relies and if it

does not, the court may order a full or more particular statement”). Pursuant to Practice Book §

10-35(1), if the plaintiff does not plead adequate facts, a request to revise is the proper means to

obtain “a more complete or more particular statement of the allegations of [the] pleading.” Id.;

see also Kileen v. General Motors Corp., 36 Conn. Supp. 347, 348-49 1980) (“a request to revise

is permissible to obtain information so that a defendant may intelligently plead and prepare his

case for trial.”).

An “essential purpose” of pleading is “to apprise the court and opposing counsel of the

issues to be tried.” Thames River Recycling v. Gallo, 50 Conn. App. 767, 782-783 (1998). A

request to revise provides a procedural remedy to correct an adverse party’s pleading which is

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used for “framing of issues for trial” where the facts and issues in the opposing party’s pleadings

are “framed in a slovenly manner.” Id. A request to revise is the appropriate vehicle to address

ambiguities in a complaint. Rowe v. Godou, 209 Conn. 273, 279-80 (1988). “Trial courts have

consistently recognized that a request to revise may be used to clarify ambiguously pleaded facts

or to eliminate improper allegations.” RAB Associates, LLC v. Bertch Cabinet Mfg.,

NNHCV106015934S, 2014 Conn. Super. LEXIS 1855, at *8 (Super. July 30, 2014, Nazarra, J.);

Savings Bank of Danbury v. 60 Shelter Rock Associates, LLC, Docket No. CV116006248, 2013

Conn. Super. LEXIS 1309, at *8 (Super. June 5, 2013, Pavia, J.) (“A request to revise is […] the

proper vehicle … to clarify facts pleaded ambiguously or to eliminate improper allegations.”);

Brown v. Morant, Docket No. CV106008983S, 2010 Conn. Super. LEXIS 2672, at *11 (Super.

Oct. 15, 2010, Wilson, J.) (noting that a request to revise is the proper way to cure any confusion

resulting ambiguities in the allegation of a complaint.) Clarification of allegations in a complaint

that are ambiguous as to the events and transactions relevant to the plaintiff’s claims should be

sought through a request to revise, and such clarifications are “not more properly sought through

discovery.” Vaccaro v. United States Bank, N.A., 2015 Conn. Super. LEXIS 1002, 5-10 (J.D of

New Haven, May 5, 2015) (emphasis supplied).

Colonial is entitled to be apprised of the material factual basis of the claims being made

against it. Paragraph 5 of the Complaint, however, is ambiguous as to whether it is alleged that

the application for the bonds or the bonds themselves were approved, and by whom. Paragraph

5, therefore, fails to give fair notice to Colonial of the basic facts underlying Plaintiffs’ claims

and the ambiguity in this allegation must be clarified for it to be possible for Colonial to evaluate

the factual bases upon which all Plaintiffs’ claims against Colonial are based, and for Colonial to

be able to frame a responsive pleading and have a fair opportunity to prepare its defense.

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For the foregoing reasons, the Complaint must be revised as requested.

D. Response:

FIFTH REQUESTED REVISION

A. Portion of Pleading Sought to Be Revised:

Use of the terms “pre conditions” and “preconditions” in Complaint Paragraphs 10, 18,

26 and 42.

B. Requested Revision:

Revise Complaint Paragraphs 10, 18, 26, 42 to provide a more complete and particular

statement of facts which clarify the meaning of the terms “pre conditions” and “preconditions” as

used in Paragraphs 10, 18, 26, 42.

C. Reasons for the Requested Revision:

As used in Complaint Paragraphs 10, 18, 26, 42, the intended meaning of the terms “pre

conditions” and “preconditions” is ambiguous, unclear and confusing. Accordingly, Plaintiffs

must revise Paragraphs 10, 18, 26 and 42 to provide a more complete and particular statement of

the facts comprising its cause of action because as alleged, Paragraphs 10, 18, 26 and 42 do not

plainly and concisely state the material facts upon which Plaintiffs based their claims.

Connecticut Practice Book § 10-35 provides that “[w]henever any party desires to obtain

. . . a more complete or particular statement of the allegations of an adverse party’s pleading . . .

or any other appropriate correction in an adverse party’s pleading, the party desiring any such

amendment in an adverse party’s pleading may file a timely request to revise that pleading.”

Fact pleading, as required by Connecticut’s rules of practice, is intended to allow a defendant to

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determine “with reasonable specificity what the plaintiff claims happened to [them]: when it

happened, who was involved, how the conduct infringed a legal right of the plaintiff, and how

the plaintiff was harmed …. So too the proper purpose of the request to revise be understood: to

compel the plaintiff to state [their] grievances plainly and specifically so that the defendants can

state their responses plainly and specifically as well.” Lebby, supra, 2007 Conn. Super. LEXIS

1775, at *9-10, See also Kileen, supra, 36 Conn. Supp. 348-49 (“a request to revise is

permissible to obtain information so that a defendant may intelligently plead and prepare his case

for trial.”). Connecticut is a fact-pleading jurisdiction and the Complaint must provide adequate

notice of the facts claimed and the issues to be tried. Todd, supra, 217 Conn. 9-10; New Milford

Savings Bank, supra, 38 Conn. App. 244; See also Conn. Prac. Bk. § 10-1 (a complaint “shall

contain a plain and concise statement of the material facts on which the pleader relies and if it

does not, the court may order a full or more particular statement”). Pursuant to Practice Book §

10-35(1), if the plaintiff does not plead adequate facts, a request to revise is the proper means to

obtain “a more complete or more particular statement of the allegations of [the] pleading.” Id.;

see also Kileen v. General Motors Corp., 36 Conn. Supp. 347, 348-49 1980) (“a request to revise

is permissible to obtain information so that a defendant may intelligently plead and prepare his

case for trial.”).

An “essential purpose” of pleading is “to apprise the court and opposing counsel of the

issues to be tried.” Thames River Recycling v. Gallo, 50 Conn. App. 767, 782-783 (1998). A

request to revise provides a procedural remedy to correct an adverse party’s pleading which is

used for “framing of issues for trial” where the facts and issues in the opposing party’s pleadings

are “framed in a slovenly manner.” Id. A request to revise is the appropriate vehicle to address

ambiguities in a complaint. Rowe v. Godou, supra 209 Conn. 279-80. “Trial courts have

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consistently recognized that a request to revise may be used to clarify ambiguously pleaded facts

or to eliminate improper allegations.” RAB Associates, LLC, supra, 2014 Conn. Super. LEXIS

1855, at *8; Savings Bank of Danbury, supra, 2013 Conn. Super. LEXIS 1309, at *8 (“A request

to revise is […] the proper vehicle … to clarify facts pleaded ambiguously or to eliminate

improper allegations.”); Brown, supra, 2010 Conn. Super. LEXIS 2672, at *11 (noting that a

request to revise is the proper way to cure any confusion resulting ambiguities in the allegation

of a complaint.) Clarification of allegations in a complaint that are ambiguous as to the events

and transactions relevant to the plaintiff’s claims should be sought through a request to revise,

and such clarifications are “not more properly sought through discovery.” Vaccaro, supra, 2015

Conn. Super. LEXIS 1002 * 5-10 (emphasis supplied).

Colonial is entitled to be apprised of the material factual basis of the claims being made

against it. However, the meaning of the terms “pre conditions” and “preconditions,” as used in

Paragraphs 10, 18, 26 and 42, is ambiguous, unclear and confusing. These allegations, therefore,

fail to give fair notice to Colonial of the basic facts underlying Plaintiffs’ claims and these

allegations must be clarified for it to be possible for Colonial to evaluate the factual bases upon

which all Plaintiffs’ claims against Colonial are based, and for Colonial to be able to frame a

responsive pleading and have a fair opportunity to prepare its defense.

For the foregoing reasons, the Complaint must be revised as requested.

D. Response:

SIXTH REQUESTED REVISION

A. Portion of Pleading Sought to Be Revised:

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Complaint Paragraph 9 which alleges “Colonial issued a performance bond which James

Barbara reviewed and after such review signed ("Bond")”; and Paragraph 11 which alleges

“Relying on the language of the Bond James Barbara signed it and sent it to Gotham Greenwich

Construction ("GGC") the owner under the Bond and who we believed to be the construction

manager on the Project.”

B. Requested Revision:

Revise Complaint Paragraphs 9 and 11 so as to clarify whether James Barbara signed

“the Bond” in his capacity as an individual and for himself, or, for Phoenix Contracting Group in

the capacity as one of its agents or representatives.

C. Reasons for the Requested Revision:

Paragraphs 9 and 11 are ambiguous as to whether it is alleged that James Barbara signed

the referenced performance bond in his capacity as an individual and for himself, or whether he

signed the referenced bond on behalf of Phoenix Contracting Group. As a result of this

ambiguity, Paragraphs 9 and 11 are also ambiguous as to whether Plaintiffs are alleging it was

James Barbara or Phoenix Contracting Group who was a party to the referenced performance

bond. Accordingly, Plaintiffs must revise Paragraphs 9 and 11 to clarify this ambiguity in their

allegations.

Connecticut Practice Book § 10-35 provides that “[w]henever any party desires to obtain

. . . a more complete or particular statement of the allegations of an adverse party’s pleading . . .

or any other appropriate correction in an adverse party’s pleading, the party desiring any such

amendment in an adverse party’s pleading may file a timely request to revise that pleading.”

Fact pleading, as required by Connecticut’s rules of practice, is intended to allow a defendant to

determine “with reasonable specificity what the plaintiff claims happened to [them]: when it

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happened, who was involved, how the conduct infringed a legal right of the plaintiff, and how