Opinion
No. MMX CV-08-5004560 S
May 11, 2011
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #145
FACTS
On May 21, 2008, the plaintiffs, Michael and Susan Perl, filed a five-count complaint against the defendants, Eagle's Wing, LLC and its sole officer and manager, George MacLauchlan. This action arises out of an oral contract entered into in August of 2002 between Anne Stone and Eagle's Wing for home renovations and repairs on a real estate property located at 71 South Main Street, Essex, Connecticut. On July 1, 2005, the plaintiffs bought the property from Stone and soon after discovered that the work performed by Eagle's Wing was not done in a skillful manner and first-rate materials were not used. On April 8, 2008, Stone assigned all of her rights under the oral contract to the plaintiffs. In counts one, two and three, the plaintiffs bring causes of action for breach of contract, breach of the implied covenant of good faith and fair dealing and breach of warranty, respectively. In counts four and five, the plaintiffs allege that Eagle's Wing is merely MacLauchlan's alter ego and, therefore, the court should pierce the corporate veil and hold MacLauchlan personally liable for the actions alleged in counts one through three.
On December 28, 2010, the defendants moved for summary judgment, having been granted permission by the court to do so on December 7, 2010. The motion was accompanied by a memorandum of law. On January 19, 2011, the plaintiffs filed a partial memorandum in opposition to that motion. The plaintiffs filed a complete memorandum in opposition to the motion for summary judgment on February 7, 2011. On February 24, 2011, the defendants filed a reply. This matter was heard at the short calendar on February 28, 2011.
DISCUSSION
"Summary judgment is a method of resolving litigation when 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 . . . The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." (Citations omitted.) Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). "The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008).
In their memorandum of law in support of their motion, the defendants argue that summary judgment is appropriate because Stone was satisfied with the work performed by Eagle's Wing and, therefore, there can be no breach of contract or of the implied covenant of good faith and fair dealing. The defendants further argue that, even if the court were to find a breach, the fact that Stone has suffered no damages precludes the plaintiffs from recovering under a breach of contract claim. The defendants claim that, given that the plaintiffs have been assigned Stone's rights under the contract, the question is not whether the plaintiffs have suffered damages, but rather whether Stone has. Finally, as to the breach of warranty claim, the defendants argue that there is no statutory warranty for home renovations. As evidence of these assertions, the defendants submitted excerpts from the deposition of Anne Stone.
The plaintiffs argue that the motion should be denied on the ground that there remains a genuine issue of material fact as to whether the defendants breached the contract, the implied covenant of good faith and fair dealing and any warranties. The plaintiffs note that the defendants cite no authority for their contention that the fact that Stone was satisfied bars a breach of contract claim, and argue that adopting such a principle would lead to an absurd result. Moreover, the plaintiffs assert that while no statutory warranty for home renovations exists, the courts have held that there is an implied warranty that the project will be completed in a skillful and workmanlike manner. Finally, to the extent that the defendants argue that the plaintiffs were negligent in failing to have the home inspected before purchasing, the plaintiffs assert that this has no bearing on the present action as comparative negligence does not apply to breach of contract cases. The plaintiffs submitted the following evidence in support of their argument: (1) excerpts from the deposition of Anne Stone, (2) the assignment agreement between Stone and the plaintiffs, (3) an affidavit of Michael Perl, (4) a copy of the floor plan alterations to the residence in issue, (5) excerpts from the deposition of George MacLauchlan and (6) a copy of the Eagle's Wing, LLC profit and loss detail.
It should be noted that, in their partial objection to the defendants' motion for summary judgment, the plaintiffs argue that the motion should be denied because the only evidence offered by the defendants are uncertified deposition transcript excerpts that cannot be considered by the court. "As the party moving for summary judgment, the [movant] is required to support its motion with supporting documentation, including affidavits." Heyman Associates No. 1 v. Ins. Co. of Pennsylvania, 231 Conn. 756, 796, 653 A.2d 122 (1995). "[B]efore a document may be considered by the court [in connection with] a motion for summary judgment, there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be." Gianetti v. Health Net of Connecticut, Inc., 116 Conn.App. 459, 466-67, 976 A.2d 23 (2009). "Where uncertified deposition transcripts are submitted without objection in support of or in opposition to a motion for summary judgment, the court may, in its discretion, choose to consider or exclude them." Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006). In the present case, the defendants failed to support their motion for summary judgment with evidence that could be properly considered by the court because they did not submit proof of the deposition's certification. Given, however, that the deposition relied upon by the defendants was also relied upon by the plaintiffs in their objection, and that the plaintiffs included the necessary certification showing that the deposition is genuine, the court will address the merits of the motion.
In the defendants' reply brief, they argue that the plaintiffs' breach of implied warranty claim must fail because such a cause of action has been held to be merely a breach of contract and, therefore, cannot be brought as an independent action. The defendants also reiterate that since Stone was pleased with the work done by Eagle's Wing, she has suffered no damages and, therefore, the plaintiffs may not recover for breach of contract. The defendants argue that any costs incurred by Stone in defending herself against legal action arising out of the home improvements is too far removed from the contract to be considered damages arising from breach. The defendants submitted no evidence in support of their reply.
It is well established in Connecticut that an assignee "stands in the shoes of the assignor." (Internal quotation marks omitted.) Rumbin v. Utica Mutual Ins. Co., 254 Conn. 259, 277, 757 A.2d 526 (2000); National Loan Investors Ltd. Partnership v. Heritage Square Associates, 54 Conn.App. 67, 73, 733 A.2d 876 (1999). Given that an assignee has no greater rights or immunities than the assignor would have had if there had been no assignment, Fairfield Credit Corp. v. Donnelly, 158 Conn. 543, 552, 264 A.2d 547 (1969), in the present case the court must determine whether the plaintiffs are attempting to exercise only those rights that would have been held by Stone had no assignment taken place. Here, if Stone had discovered that the home renovations were not done in accordance with the terms of her oral agreement with Eagle's Wing, and she sustained damages as a result, she would have had the right to bring legal action against the defendants for breach of contract. When she assigned her rights under the oral contract to the plaintiffs, they inherited that right to bring suit for damages sustained as a result of the alleged breach. Summary judgment cannot, therefore, be granted as to the breach of contract claim merely because Stone was pleased with the renovations at the time she sold the property.
In order "[t]o recover for breach of the duty of good faith and fair dealing, the plaintiffs [have] to allege and prove that the defendant[s] engaged in conduct design[ed] to mislead or to deceive . . . or a neglect or refusal to fulfill some duty or some contractual obligation not prompted by an honest mistake as to one's rights or duties . . ." (Internal quotation marks omitted.) Miller v. Guimaraes, 78 Conn. App. 760, 773, 829 A.2d 422 (2003). The defendants argue that summary judgment should be granted because Stone received what she intended from the renovations to her house, having sold it for $100,000 more than she expected. The defendants failed, however, to meet their burden of showing that no genuine issue of material fact exists with regard to whether any contractual obligations were left unfilled. Again, as explained above, the issue is not whether Stone was satisfied with the renovations at the time of sale, but whether the defendants failed to fulfill the terms of their oral agreement. Moreover, a genuine issue of material fact remains as to whether the defendants engaged in conduct that was designed to mislead or deceive Stone. The fact that Stone was able to sell her house for more than her original asking price has no bearing on whether the defendants breached their contract or the covenant of good faith and fair dealing.
With regard to the breach of warranty claim, the defendants argue that summary judgment should be granted as to this count because breach of an implied warranty does not constitute a separate cause of action from breach of contract. "[T]he use of a motion for summary judgment to challenge the legal sufficiency of a complaint is appropriate when the complaint fails to set forth a cause of action and the defendant can establish that the defect could not be cured by repleading." Larobina v. McDonald, 274 Conn. 394, 401, 876 A.2d 522 (2005). "It is an implied condition of every service contract that the service will be performed in a workmanlike manner. . . . A breach of this implied condition would be a breach of contract . . . No authority has been found in which an implied warranty to perform the services in a workmanlike manner has been given status as an independent cause of action; rather, such a claim has been viewed as a breach of contract." (Citations omitted; internal quotation marks omitted). New Hampshire Ins. v. Hartford Sprinkler, Superior Court, judicial district of Hartford, Docket No. CV 054007221 (March 10, 2008, Wagner, J.T.R.) ( 45 Conn. L. Rptr. 177). Given that Connecticut jurisprudence makes clear that breach of the implied warranty to perform services in a workmanlike manner is not an independent cause of action, the defendants' motion for summary judgment should be granted as to count three. It should be noted, however, that the plaintiffs have adequately pleaded breach of this implied warranty in count one, sounding in breach of contract, and, therefore, that claim remains in this case.
Although the defendants also argue that the breach of warranty cause of action is barred by the statute of limitations, their reliance on General Statutes § 47-116 is misplaced. "Summary judgment may be granted where the claim is barred by the statute of limitations, " Doty v. Mucci, 238 Conn. 800, 806,679 A.2d 945 (1996), however the statute cited by the defendants governs new home construction, not home renovations. The defendants only raise the issue of statute of limitations during discussions of the breach of warranty claim and, therefore, the court need not address whether the action in its entirety is time barred. It is well settled that the court is not "required to review issues that have been improperly presented . . . through an inadequate brief . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failing to brief the issue properly." (Citation omitted; internal quotation marks omitted.) Turner v. American Car Rental, Inc., 92 Conn.App. 123, 130-31, CT Page 11283 884 A.2d 7 (2005).
CONCLUSION
For the foregoing reasons, the court grants the defendants' motion for summary judgment as to count three, but denies the motion as to the remaining counts.
SO ORDERED.