Opinion
No. CV 09 5011018 S
June 16, 2009
RULING ON MOTION TO STRIKE No. 104
On January 6, 2009, the plaintiffs, Thomas and Karen Kearney, filed a ten-count complaint against the defendants, Carolyn Thibault, Judith Caputo, Sue Elliott and Robert Bowen. The plaintiffs allege the following facts. On May 6, 2003, the plaintiffs and Thibault entered into a contract for the purchase of Thibault's home. The plaintiffs were represented in the transaction by Caputo, a licensed real estate agent. Thibault was represented by Elliott, who is also a licensed real estate agent. In May 2003, the plaintiffs hired Bowen to conduct a home inspection. No significant defects were identified by Bowen in his written report. On June 13, 2003, Thibault executed and delivered to the plaintiffs a deed of conveyance. Prior to selling the property to the plaintiffs, Thibault represented on a disclosure form that the foundation for the house had "normal settling," despite having received a copy of an inspection report prepared on behalf of a prospective purchaser in November 2002, which cited a problem with the foundation. On June 7, 2007, after an inspection performed by a licensed engineer, the plaintiffs discovered that the foundation system of the house had an apparent defect. Counts three, four and five of the complaint are against Caputo, the movant in the present case, and respectively allege negligent misrepresentation, breach of contract and a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq.
Before the court is Caputo's motion to strike counts three and five on the ground that the plaintiffs' negligent misrepresentation and CUTPA violation claims are time barred by the applicable three-year statutes of limitations. Caputo and the plaintiffs have filed memoranda of law.
DISCUSSION
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "[O]rdinarily, [a] claim that an action is barred by the lapse of the statute of limitations must be pleaded as a special defense, not raised by a motion to strike . . . [S]ee Practice Book § 10-50. This is because a motion to strike challenges only the legal sufficiency of the complaint and might . . . deprive a plaintiff of an opportunity to plead matters in avoidance of the statute of limitations defense . . . An exception to this general rule exists, however, when a statute gives a right of action which did not exist at common law, and fixes the time within which the right must be enforced, the time fixed is a limitation or condition attached to the right — it is a limitation of the liability itself as created, and not of the remedy alone." (Citations omitted; internal quotation marks omitted.) Greco v. United Technologies Corp., 277 Conn. 337, 344-45 n. 12, 890 A.2d 1269 (2006).
Caputo argues that because the plaintiffs' negligent misrepresentation and CUTPA violation claims were filed five and one-half years after the alleged acts or omissions occurred, they are time barred and must be stricken. Caputo maintains that the plaintiffs' negligent misrepresentation claim is subject to the three-year general tort statute of limitations, General Statutes § 52-577, and that the plaintiffs had three years from the date of the sale of the home on June 13, 2003 to bring a tort action arising out of any conduct related to the purchase. Likewise, Caputo contends that the plaintiffs' CUTPA violation claim was impermissibly brought beyond the three-year limitations period contained in General Statutes § 42-110g(f).
Section 52-577 provides: "No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of."
Section 42-110g(f) provides: "An action under this section may not be brought more than three years after the occurrence of a violation of this chapter."
The plaintiffs counter that, with respect to the negligent misrepresentation claim, the statute of limitations should be tolled, pursuant to General Statutes § 52-595, due to Caputo's fraudulent concealment of the prior home inspection report for the purpose of avoiding the loss of the sale or future liability. The plaintiffs similarly argue that § 52-595 also serves to toll the three-year statute of limitations applicable to CUTPA violation claims.
Section 52-595 provides: "If any person, liable to an action by another, fraudulently conceals from him the existence of the cause of such action, such cause of action shall be deemed to accrue against such person so liable therefor at the time when the person entitled to sue thereon first discovers its existence."
A motion to strike is an improper procedural vehicle for Caputo to employ to challenge the plaintiffs' negligent misrepresentation claim on statute of limitations grounds. A claim that a common-law cause of action is barred by the lapse of the statute of limitations may not be raised by a motion to strike. See Greco v. United Technologies Corp., supra, 277 Conn. 344-45 n. 12. In contrast, "[s]ummary 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). Summary judgment is appropriate on statute of limitations grounds when the "material facts concerning the statute of limitations [are] not in dispute . . ." Burns v. Hartford Hospital, 192 Conn. 451, 452, 472 A.2d 1257 (1984). Therefore, the motion to strike count three is denied.
"Facts that are not alleged in a complaint may be added to the procedural mix and facts in avoidance of the statutory time limitation of action can be considered in a motion for summary judgment, whereas they cannot be considered in a motion to strike. On a motion for summary judgment, the questions are whether there is any material fact in issue, and, if not, whether the movant is entitled to judgment as a matter of law. The key difference between the two motions is that, when considering a motion for summary judgment, facts in addition to those asserted in the complaint can form the basis for an argument that there is no material fact in dispute that would prevent judgment as a matter of law. When there is no such material fact in dispute or where there is agreement of the parties as to every relevant fact, we conclude that the pleadings need not be closed in order to move for summary judgment." Girard v. Weiss, 43 Conn.App. 397, 416-17.
The motion to strike as to count five, however, is proper and will be considered because CUTPA gives a right of action which did not exist at common law, and fixes the time within which the right must be enforced. See Greco v. United Technologies Corp., supra, 277 Conn. 344-45 n. 12. "Where . . . 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 . . . [The CUTPA] 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 (2009). The issue then is whether the plaintiffs' CUTPA violation claim was brought more than three years after the occurrence of the alleged violations. See General Statutes § 42-110g(f).
The present action was commenced by service of process on December 9, 2008. Accordingly, the alleged CUTPA violations must have occurred on or subsequent to December 9, 2005, to survive, unless the statute of limitations is tolled, as the plaintiffs argue, pursuant to General Statutes § 52-595 due to fraudulent concealment.
In Fichera v. Mine Hill Corp., 207 Conn. 204, 216, 541 A.2d 472 (1988), the Supreme Court had the opportunity to consider the applicability of § 52-595 to a CUTPA violation claim, and concluded that its application "would defeat the legislative intention expressed in § 42-110g(f) to bar actions for CUTPA violations after the lapse of more than three years from their occurrence." Section 52-595 provides that where fraudulent concealment occurs, "such cause of action shall be deemed to accrue . . . at the time when the person entitled to sue thereon first discovers its existence." The Supreme Court observed, in Fichera, that "[s]ince CUTPA violations are defined in General Statutes § 42-110b to include `deceptive acts or practices in the conduct of any trade or commerce,' it is evident that the legislature intended that the perpetrators of such fraudulent practices, as well as other CUTPA violators, should be permitted to avail themselves of the statute of limitations defense provided by § 42-110g(f). Despite the existence in other states of statutes of limitation applicable to unfair trade practices establishing a limitation period for bringing an action that begins after discovery of the violation, our legislature has failed to create such an option for victims of CUTPA violations in this state." Fichera v. Mine Hill Corp., supra, 216. The Supreme Court concluded, therefore, that "those who violate CUTPA by committing `deceptive acts' . . . were intended by the legislature to have the same protection that § 42-110g(f) affords to other CUTPA violators, such as those who engage in `unfair methods of competition' and `unfair . . . practices in the conduct of any trade or business.' General Statutes § 42-110b(a)." Id.
Here, any alleged CUTPA violations on the part of Caputo occurred during her representation of the plaintiffs for the purchase of a home. That representation is alleged to have ended on June 13, 2003, when Thibault executed and delivered to the plaintiffs a deed of conveyance. Applying the reasoning of Fichera, the three-year CUTPA statute of limitations is not tolled in the present case by § 52-595. The present action was commenced by service of process on December 9, 2008, five and one-half years after the alleged purchase of the home. The plaintiffs' CUTPA violation claim is time barred by the three-year limitations period of § 42-110g(f). Therefore, the motion to strike count five is granted.
CONCLUSION
The motion to strike count three is denied.
The motion to strike count five is granted.