Opinion
No. CV02 0469107 S
July 1, 2003
MEMORANDUM OF DECISION MOTION FOR RECONSIDERATION RE: DEFENDANT'S MOTION TO STRIKE
Pursuant to Practice Book § 10-39, the defendant has moved to strike Counts 3, 4 and 5, alleging intentional misrepresentation, negligent misrepresentation, and a violation of the Connecticut Unfair Trade Practices Act, respectively . . . The defendant argues that the plaintiff has improperly alleged these causes of action in the context of a commercial dispute for purely economic losses, and that such claims are barred by the economic loss rule recognized in Flagg Energy Development Corp. v. General Motors Corp., 224 Conn. 126 (1998).
The court first sets forth a review of the procedural history of the defendant's motion to strike. The defendant's motion to strike and the supporting memorandum of law were filed in the court on October 15, 2002. Thereafter, the matter was claimed as a nonarguable matter and appeared on the short calendar on February 24, 2003. The court (Arnold, J.), unaware that the plaintiff filed its opposing memorandum of law on February 24, 2003, granted the motion to strike, ruling that the plaintiff had failed to comply with Practice Book § 10-42, (formerly section 155) by not filing a memorandum of law in opposition to the motion to strike. The court additionally ruled that it was adopting the reasoning set forth in decisions of Flagg Energy Development Corp. v. General Motors Corp., supra, and Morganti National, Inc. v. Greenwich Hospital Assoc., Superior Court, judicial district of Waterbury, Docket No. X06CV990160125 (September 27, 2001) (McWeeny, J.).
Thereafter, on March 3, 2003, the plaintiff moved for reconsideration of the court's ruling granting the motion to strike, setting forth that the plaintiff, although tardy in doing so, had filed a memorandum of law setting forth its opposition. The plaintiff also argued that it was in the interest of justice for the court to reconsider its ruling and that the defendant would not be prejudiced. The defendant objected and opposed the motion for reconsideration.
On March 21, 2003, the court ordered that reargument would be heard on April 28, 2003. The court additionally notified the parties on March 21, 2003 that the parties should not conclude that by allowing reargument, the court had vacated or set aside its previous ruling granting the motion to strike. The parties appeared on April 28, 2003 and argued their respective positions. However, the plaintiff did not explain why its opposition memorandum of law was not filed timely in accordance with Practice Book § 10-42. The plaintiff has, by sworn affidavits, explained that it had mailed a copy to the defendant's counsel and the court on February 19, 2003, five days prior to the scheduled short calendar date of February 24, 2003. There is no claim by the plaintiff that the memorandum was filed with the court, other than on February 24, 2003, or that the plaintiff had requested a continuance of that hearing date from the court or opposing counsel. The plaintiff agrees that the matter was to be presented to the court "on the papers" on February 24, 2003. The defendant's counsel would not have known that the plaintiff's memorandum of law would not be filed with the Clerk's Office until sometime on February 24, 2003, and would not physically be in the case file when the court issued its ruling granting the motion to strike.
Sec. 10-42. — Memorandum of' Law — Motion and Objection
(a) Each motion to strike must be accompanied by an appropriate memorandum of law citing the legal authorities upon which the motion relies.
(b) Any adverse party who objects to this motion shall, at least five days before the date the motion is to be considered on the short calendar, file and serve in accordance with Sections 10-12 through 10-17 a memorandum of law.
Regarding the failure to file a timely memorandum of law opposing a motion to strike, the Connecticut Supreme Court in Hughes v. Bemer, 200 Conn. 400, 402-03, 510 A.2d 992 (1986) ( Hughes I), stated:
The defendants claim that, irrespective of the merits, the judgment of the trial court must be upheld under Practice Book 155. We agree. That section provides in relevant part: `If an adverse party objects to [a motion to strike] he shall, at least five days before the date the motion is to be considered on the short calendar, file and serve in accordance with Sec. 120 a memorandum of law. An adverse party who fails timely to file such a memorandum pursuant to this section shall be deemed by the court to have consented to the granting of the motion.' The plaintiffs in this case filed no memorandum of law in opposition to the motion to strike.
Practice Book § 155 was the predecessor of § 10-42.
"The principal function of Practice Book 155 is to enable movement beyond the allegations in the pleadings, and to assist the court in its analysis of the evidence so as to ascertain whether an actual need for trial exists. The filing of a memorandum of law setting forth the relevant arguments is mandatory under Practice Book 155. Cf. Darling v. Waterford, 7 Conn. App. 485, 508 A.2d 839 (1986). The memorandum must be filed, or the motion to strike shall be granted. The trial court did not err in granting the defendants motion to strike the complaint." Hughes v. Bemer, supra at 402-03.
The plaintiff's in Hughes I then re-instituted their action, relying on the accidental failure of suit statute. General Statutes § 52-592. The defendants moved to dismiss the second action arguing that § 52-592 was not available to reinitiate actions that had been heard on their merits. The trial court agreed and granted the motion. In Hughes v. Bemer, 206 Conn. 491, 495, 538 A.2d 703 (1988) ( Hughes II), the Supreme Court affirmed the trial court's conclusion holding that a judgment that followed "a consent to the granting of the motion to strike . . . though not necessarily a determination on the merits, is nevertheless a final judgment whose issues are thereafter res judicata as between the parties." (Emphasis in original.); see also Southport Manor Convalescent Center Inc. v. Foley, 216 Conn. 11, 14-15 578 A.2d 646 (1990).
In Hughes I and Hughes II no memorandum opposing the motion to strike was filed, while in the present matter, a memorandum was filed late. However, the holdings in Hughes I and Hughes II, have been found applicable to a late filing of a required opposition memorandum of law. See. Burton v. Planning Commission, 209 Conn. 609, 553 A.2d 161 (1989); (memorandum of law opposing motion to dismiss filed four days prior to scheduled short calendar).
The plaintiff in the present matter did not file its memorandum of law in opposition to the motion to strike until February 24, 2003, the same day the court was considering the motion on the short calendar. It is clear that the plaintiff's filing of its memorandum of law did not comply with Practice Book § 10-42, which required the memorandum to be filed five days prior to the short calendar of February 24, 2003. The plaintiff, by failing to file its memorandum in a timely manner, consented to the granting of the motion to strike. The court's initial finding in its ruling of February 24, 2003 was that the " Plaintiff has failed to comply with P.B. Sec. 10-42. Plaintiff has not objected and/or filed a memorandum of law in opposition to the motion to strike." (Emphasis added). The fact that the memorandum was filed the date of the short calendar hearing was a violation of § 10-42.
The defendant has objected to the court reconsidering its initial ruling, citing in support of its position the plaintiff's violation of § 10-42. If the court's ruling had ended with a violation of § 10-42, there is no reason that the defendant shouldn't be allowed to avail itself of the remedies discussed in Hughes v. Bemer I and Hughes v. Bemer II and their progeny. However, the court, as noted herein, in addition to granting the motion to strike because of the plaintiff's noncompliance with Practice Book § 10-42, also ruled that it "adopts the reasoning cited by the defendant as set forth in Flagg Energy Development Corp. v. General Motors Corp., supra 244 Conn. 126 and Morganti National, Inc., v. Greenwich Hospital, Inc., supra . . ." In citing these cases as additional authority for its granting of the motion to strike, the court has, in fact issued a "determination on the merits" of the relevant issues. See Hughes v. Bemer, supra, 206 Conn. 491, 495, (Hughes II). The plaintiff has in its late-filed memorandum pointed to several appellate cases and Superior Court cases that it maintains will show that the court's reliance on the above cases is in error. The court therefore, in exercising discretionary judgment, feels that a review of the court's reliance on Flagg Energy Development Corp. v. General Motors Corp., supra 244 Conn. 126 and Morganti National, Inc., v. Greenwich Hospital, Inc., supra, is warranted. It is, therefore, necessary to set forth the relevant facts in the present matter in order to conduct this review.
This action arises from a contractual dispute between the plaintiff, a quasi-governmental organization providing transportation services in the greater New Haven area and the defendant, a Connecticut corporation providing professional engineering services, including environmental site assessment services. The plaintiff's claims arise from a written contract for an environmental investigation of real estate to be performed by the defendant for the plaintiff. The plaintiff was, at the time, contemplating the purchase of said real estate. The investigation to be performed by the defendant was to include a magnetometer survey to detect the presence of underground storage tanks on the property. The plaintiff alleges that despite the statements contained in the defendant's investigation report that "no evidence of current or historical USTs were observed on the Site property," a 7500-gallon underground storage tank was discovered during the course of construction of the parking lot on the site, and as a result, the plaintiff has claimed money damages for breach of contract; common law negligence; intentional misrepresentation; negligent misrepresentation; and a violation of CUTPA. The allegations regarding intentional and negligent misrepresentation and a violation of CUTPA are based on the same facts that the plaintiff relies upon in its counts sounding in breach of contract and common law negligence.
The court continues to agree with the defendant that claims for recovery of commercial loss on the basis of breach of contract and sounding in misrepresentation or a violation of CUTPA are displaced and precluded by the breach of contract claims. This concept was first recognized in Flagg Energy Development Corp. v. General Motors Corp., supra. While limited to actions arising out of a defective product under the Uniform Commercial Code, the reasoning set forth in Flagg was expanded in Morganti National, Inc. v. Greenwich Hospital Association, supra. The court in Morganti stated:
In their motion, the defendants assert that the parties' relationship is governed by the construction contract and that the tort claims for purely economic damages arising out of the contractual relationship are barred by the economic loss doctrine. The rationale for the economic loss rule has been stated as follows:
`Almost every breach of contract involves actions or inactions that can be conceived of as a negligent or intentional act. If left unchecked, the incessant tide of tort law would erode and eventually swallow contract law. This court believes that if tort law and contract law are to fulfill their distinctive purposes, they might be distinguished where it is possible to do so. The economic loss doctrine serves the basis for such a distinction.'
Princess Cruise Lines, Inc., v. General Electric Co., 950 F. Sup. 151, 155 (E.D.Va. 1996).
`Allowing a party to a broken contract to proceed in tort where only economic losses are alleged would eviscerate the most cherished virtue of contract law, the power of parties to allocate the risks of their own transactions.'
Id. at 155.
In issuing its decision, the Morganti court acknowledged that it was choosing to follow the opinion issued in Worldwide Pres. Servs., LLC v. Ivth Shea, LLC, Superior Court Complex Litigation Docket, judicial district of Fairfield at Stamford, Docket No; X05-CV-98-0167154S (Feb. 1, 2001, Tierney, J.), 29 Conn. L. Rptr. 1, ( Worldwide I) which presents a thorough analysis of the economic loss rule. In Worldwide I, the court stated:
"[T]o permit a party to a broken contract to proceed in tort where only economic losses are alleged would eviscerate the most cherished virtue of contract law, the power of the parties to allocate the risks of their own transactions." (quoting, Princess Cruises, Inc. v. General Electric Co., supra, 950 F. Sup. 151, 155). "Almost every breach of contract involves actions or inactions that can be conceived of as a negligent or intentional act. If left unchecked, the incessant tide of tort law would erode and eventually swallow contract law. This Court believes that if tort law and contract law are to fulfill their distinctive purposes, they might be distinguished where it is possible to do so. The economic loss doctrine serves as a basis for such a distinction." Id. 155. Using a case specific metaphor the Princess Cruises court concluded: `This Court must follow the Supreme Court's effort in East River to prevent contract law from drowning in a sea of tort." Id. 156 (citing East River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 106 S.Ct. 2295, 90 L.Ed.2d 865 (1986)).
On the same day that the court (Tierney, J.) issued its decision in Worldwide I, the court issued a companion decision in Worldwide Pres. Servs., LLC v. Ivth Shea; LLC, Superior Court Complex Litigation Docket, judicial district of Fairfield at Stamford, Docket No. X05-CV-98-01671545 (Feb. 1, 2001, Tierney, J.), 29 Conn. L. Rptr. 7 ( Worldwide II), discussing whether the profession of engineering is subject to the entrepreneurial rule of CUTPA. The court concluded in Worldwide II that the CUTPA claims in that case by themselves were nothing more than breach of contract claims. The engineering firm in Worldwide II, had been sued in its capacity as an engineering professional. The claims arose out of its practice of engineering and the damages claimed were substantially related to the performance of those engineering services.
"When reviewing a plaintiff's CUTPA allegations, a court must look to the underlying nature of the claim to determine whether it is really a [professional negligence] claim recast as a CUTPA claim." Hayes v. Yale-New Haven Hospital, 243 Conn. 17, 38, 699 A.2d 964 (1997).
The court in Worldwide II, further stated, that the CUTPA counts only alleged a professional malpractice claim against the engineering firm and not a violation of the entrepreneurial or commercial aspect of the relationship. The court held that only the entrepreneurial aspects of the engineering profession are subject to CUTPA. Claims of professional malpractice by engineers are exempt from CUTPA.
The court recognizes that the Connecticut appellate courts have not yet applied the economic loss rule to a construction case, and a number of Superior Court judges have refused to apply the economic loss doctrine, but this court given the facts of the present case, respectfully disagrees.
The court adopts the reasoning set forth in Worldwide I and Worldwide II, in addition to the previously cited cases of Flagg Energy and Morganti. Accordingly, upon reconsideration of its previous ruling of February 24, 2003, this court declines to vacate said ruling and hereby orders that Counts Three, Four and Five, of the plaintiff's complaint be stricken.
THE COURT
By Arnold, J.