Opinion
CV176038212S
01-08-2019
Angel LABOY v. DBL CONTRACTING, LLC et al.
UNPUBLISHED OPINION
PETER EMMETT WIESE, JUDGE
I
PROCEDURAL HISTORY
In a three-count complaint dated May 12, 2017, the plaintiff, Angel Laboy, initially brought a civil action alleging negligence against three defendants: DBL Contracting, LLC (DBL); Thomas Kennedy and Erin Kennedy (Kennedys); and Corey Turner Home Improvement Contractors, LLC (Turner).
Count One— As against DBL; Count Two— As against the Kennedys; Count Three— As against Turner.
Briefly stated, Mr. Laboy alleges that on May 14, 2015, he was employed by Turner as a roofer. He was working on a house located at 107 Garden Street, Wethersfield, Connecticut. The Kennedys owned the property. Mr. Laboy contends that DBL, acting as the general contractor, was responsible for keeping all equipment reasonably safe. He alleges that as he was standing on a ladder placed on scaffolding, the scaffolding failed because it was not properly secured to the building. Mr. Laboy maintains that he fell twenty feet to the ground and sustained numerous injuries. He contends that his fall and resulting injuries were caused by the negligence of the defendants.
On November 6, 2017, the plaintiff withdrew his claims as against DBL. (No. 120.) Thereafter, on November 9, 2018, the plaintiff withdrew his claims as against the Kennedys. (No. 157.) In a motion filed on August 14, 2018, however, the plaintiff moved the court to restore his claim as against DBL on the basis that the withdrawal was procured by fraudulent misrepresentations made by DBL. (No. 151.) In response, DBL filed its objection on August 23, 2018. (No. 152.) The plaintiff filed a reply on August 28, 2018. (No. 153.)
All references to "no." in this memorandum of decision are to the respective documents’ assigned Edison entry numbers.
The motion and objection were argued to the court on November 19, 2018.
II
DISCUSSION
A. Applicable Law
A motion to restore a case to the docket, which is the proper "vehicle to ‘open’ a withdrawal," is treated analogously to a motion to open a final judgment. Sicaras v. Hartford, 44 Conn.App. 771, 775-76, 692 A.2d 1290, cert. denied, 241 Conn. 916, 696 A.2d 340 (1997). Thus, "General Statutes § 52-212a applies to the restoration of a case to the docket as well as to the opening of judgments." Id., 778; see also Banziruk v. Banziruk, 154 Conn.App. 605, 611, 109 A.3d 494 (2015).
General Statutes § 52-212a provides in relevant part: "Unless otherwise provided by law ... a civil judgment or decree rendered in the Superior Court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed." See also Practice Book § 17-4. This four-month jurisdictional time limitation also applies to a motion to restore a case to the docket. See Sicaras v. Hartford, supra, 44 Conn.App. 776-78.
Importantly, however, in light of the phrase "[u]nless otherwise provided by law"; General Statutes § 52-212a; [s]ection 52-212a does not abrogate the court’s common-law authority to open a judgment beyond the four-month limitation upon a showing that the judgment was obtained by fraud, duress or mutual mistake." Bruno v. Bruno, 146 Conn.App. 214, 230, 76 A.3d 725 (2013). Like the time limitation established in § 52-212a, these "exceptions for fraud, lack of actual consent and mutual mistake [also] apply to restoring cases to the docket ..." Davis v. Hebert, 105 Conn.App. 736, 740, 939 A.2d 625 (2008). The common-law reasons for permitting restoration of a case to the docket in such circumstances "seek to preserve fairness and equity." See Nelson v. Charlesworth, 82 Conn.App. 710, 713-14, 846 A.2d 923 (2004). Ultimately, "[t]he question of whether a case should be restored to the docket is one of judicial discretion." Sicaras v. Hartford, supra, 44 Conn.App. 779.
The elements of a fraud claim, which is one of the exceptions permitting restoration beyond the four-month time limitation, are: "(1) a false representation was made as a statement of fact; (2) the statement was untrue and known to be so by its maker; (3) the statement was made with the intent of inducing reliance thereon; and (4) the other party relied on the statement to his detriment." (Internal quotation marks omitted.) Sousa v. Sousa, 173 Conn.App. 755, 765, 164 A.3d 702, cert. denied, 327 Conn. 906, 170 A.3d 2 (2017). The plaintiff must prove the first three elements of a fraud claim by the heightened clear and convincing evidence standard and must prove the fourth element by the usual preponderance of the evidence standard. Kilduff v. Adams, Inc., 219 Conn. 314, 327-30, 593 A.2d 478 (1991); Barbara Weisman, Trustee v. Kaspar, 233 Conn. 531, 539-40, 661 A.2d 530 (1995).
Finally, a general contractor is defined as "[s]omeone who contracts for the completion of an entire project, including purchasing all materials, hiring and paying subcontractors, and coordinating all the work." Black’s Law Dictionary (10th Ed. 2014).
B. Positions of the Parties
The plaintiff contends that the withdrawal filed as to DBL came about as a result of fraudulent misrepresentations made by DBL’s principle, Douglas Lisella, in an affidavit dated December 7, 2017. (No. 151, Exhibit B.) Specifically, the plaintiff alleges that Mr. Lisella made the following misrepresentations: (1) DBL was not the general contractor on the Kennedys’ home improvement project; and (2) DBL did not instruct, supervise, or control Mr. Laboy or other employees of Turner. Id. Accordingly, the plaintiff argues that the fraud exception to the four-month jurisdictional time limitation of § 52-212a has been satisfied and, thus, his claims as against DBL should be restored to the docket.
DBL maintains that it was not the general contractor on the project, and further asserts that the record presented does not establish that DBL made fraudulent misrepresentations. DBL argues that, "[a]t most, there is a difference of opinion on the facts." (No. 152, p. 7.)
C. Analysis
The evidentiary record that the parties have presented for the court to consider in making a ruling consists of the following documents:
The parties did not request an evidentiary hearing. During oral argument on November 19, 2018, the parties instead asked the court to make its factual findings on the issue of fraud based solely on the previously submitted evidence before the court. See, e.g., Davis v. Hebert, supra, 105 Conn.App. 741 n.4 (where plaintiff effectively waived any right to evidentiary hearing and court determined whether mutual mistake existed so as to allow restoration to docket based on evidence before it).
1. August 28, 2017 letter from DBL’s attorney to Mr. Laboy’s attorney (no. 151, Exhibit A);
2. December 7, 2017 affidavit of Douglas Lisella (no. 151, Exhibit B);
3. April 20, 2018 deposition transcript of Corey Turner (no. 153, Exhibit A);
4. Two invoices dated May 19, 2015, and August 11, 2015, sent from Turner to "Tom Kennedy c/o DBL" for work performed at 107 Garden Street, Wethersfield (no. 151, Exhibit D);
5. Twenty-six pages of text messages, which were purportedly exchanged between Mr. Lisella and Mr. Turner (no. 151, Exhibit E); and
6. June 7, 2018 letter from DBL’s attorney to Mr. Laboy’s attorney (no. 152, Exhibit A).
A summary of the evidence presented in the record is as follows. Mr. Laboy commenced a civil action as against three parties: DBL, the Kennedys, and Turner. DBL’s attorney communicated to Mr. Laboy’s attorney that DBL was not the general contractor on the job and did not have any involvement with the scaffolding. (No. 151, Exhibit A.) Mr. Laboy’s attorney was also advised that DBL did not have any contracts related to the work to be performed. Id. DBL’s attorney requested that the case be withdrawn and offered to provide an affidavit. Id. The plaintiff’s attorney withdrew the claim against DBL on November 6, 2017. (No. 120.)
Thereafter, on December 7, 2017, Mr. Lisella executed an affidavit and attested that he is the principal of DBL. (No. 151, Exhibit B.) He stated that "DBL ... was not the general contractor for a construction job done in 2015 at the home of Thomas and Erin Kennedy, located at 107 Garden Street Wethersfield, Connecticut (the ‘job’)." Id., p. 1, para. 3. He continued by stating that "DBL ... did not instruct, supervise, or control the plaintiff or any of the employees of ... [Turner] on the job"; id., p. 1. para. 4; and "DBL ... had nothing to do with the scaffolding put up during the job." Id., p. 2, para. 5.
On November 9, 2018, the plaintiff withdrew his claim against the Kennedys. (No. 157.) Since that point in time, the only remaining defendant has been Turner.
There is nothing in the record that explains the circumstances concerning this withdrawal.
On April 20, 2018, Mr. Laboy’s attorney took the deposition of Corey Turner. (No. 153, Exhibit A.) This deposition took place approximately six months after the November 6, 2017 withdrawal as to DBL. At the deposition, Mr. Turner testified that he got involved in the job after being contacted by Mr. Lisella. (No. 153, Exhibit A, pp. 5, 6.) Turner was asked to give a price for labor only for the roof and siding work. Id. He stated that DBL ordered the materials to be used on the job by Turner. Id., p. 8. Mr. Turner did not know if DBL performed any work at the site. Id., p. 10. He indicated that Mr. Lisella frequently visited the site to inspect the work being performed by Turner and to inquire about the need for more materials. Id., pp. 10, 11.
Attorneys for DBL and the Kennedys were not present at the deposition, presumably because they were, at that point in time, no longer parties in the case.
Mr. Turner acknowledged that DBL had nothing to do with the scaffolding, and that Turner supplied it. Id., p. 12.
Mr. Turner testified that he believed DBL was the general contractor on the job. Id., pp. 12, 13. He was shown Mr. Lisella’s December 7, 2017 affidavit and he did not agree with all of the statements contained therein because he thought that DBL was the general contractor on the site. Id., p. 14.
Regarding payment, Mr. Turner stated that Mr. Lisella instructed him to bill the Kennedys through invoices. Id., p. 18. These invoices are dated May 19, 2015, and August 11, 2015. (No. 151, Exhibit D.) It was Mr. Turner’s decision to send the invoices to the Kennedys in care of DBL, 37 Belmont Street, Wethersfield, Connecticut. (No. 153, Exhibit A, pp. 17, 18; No. 151, Exhibit D.) He testified that Turner was paid directly by the Kennedys. (No. 153, Exhibit A, p. 18.) Mr. Turner acknowledged that payments are generally made by the general contractor to the subcontractors, and not by the customer. Id. He indicated that DBL did not have a written contract with Turner for work to be performed. Id., p. 19. He also stated that Turner did not have a contract with the Kennedys. Id., pp. 20, 21.
The record additionally contains twenty-six pages of text messages purportedly exchanged between Mr. Lisella and Mr. Turner. (No. 151, Exhibit E.) At his deposition, Mr. Turner appeared to have identified two pages of text messages. (No. 153, Exhibit A, pp. 6, 7.) These two pages were used to refresh his recollection of the project start date. Id. Upon the court’s review, the remaining pages of text messages appear to disclose some references to the "Wethersfield project," as well as to a variety of other projects. These include, for example, references to a project to replace a roof on a barn in Lebanon. (No. 151, Exhibit E, pp. 3, 7, 9, 10, 11, 13, 14, 15.) There are many other text messages from which the court cannot ascertain what is being referenced.
Finally, the record contains a June 7, 2018 letter from Richard Roberts, DBL’s attorney, to the plaintiff’s counsel. (No. 152, Exhibit A.) This letter contains the defense attorney’s denial that DBL was the general contractor on the Wethersfield project and his explanation of DBL’s limited involvement in the project. Id. He states in relevant parts: "Mr. Lisella was on site doing other work that was unrelated to the work of Corey Turner, so the fact that he was on site is irrelevant in the inquiry of whether DBL was a general contractor ... Again, as I told you, Mr. Lisella is friendly with the Kennedys and he had worked with Mr. Turner before. Because he had a relationship with both parties, he acted somewhat as an intermediary. But, that does not make him a general contractor." Id.
The plaintiff has not provided the court with any competent evidence from the Kennedys setting forth their explanation of their relationship, if any, with DBL and Turner.
To reiterate, the decision of whether a case should be restored to the docket is one of judicial discretion. Sicaras v. Hartford, supra, 44 Conn.App. 779. The plaintiff maintains that the record demonstrates that the withdrawal of DBL was procured by fraudulent misrepresentations made by defense counsel and DBL, through the affidavit of Mr. Lisella. The plaintiff, however, has failed to prove the elements of fraud; see Sousa v. Sousa, supra, 173 Conn.App. 765; by clear and convincing evidence. See Barbara Weisman, Trustee v. Kaspar, supra, 233 Conn. 540.
Neither the text messages nor the deposition testimony of Mr. Turner are sufficient to prove by clear and convincing evidence that DBL was the general contractor on this project. At most, the text messages make brief, vague references to the "Wethersfield project" amidst discussions of other unrelated projects, and the deposition testimony indicates merely the perception or belief of Mr. Turner, who is currently the only remaining defendant. Such evidence does not prove DBL was the general contractor, so as to show fraud.
Moreover, the plaintiff has failed to present any additional, dispositive evidence. There was no follow-up with Mr. Lisella, for example, after Mr. Turner was deposed. Additionally, the court was never provided with affidavits from or deposition testimony of the Kennedys, who are plainly the most appropriate persons to know and specify who they did or did not hire as the general contractor for their home improvement project. The Kennedys also would have been the most suitable persons to explain their relationship with Mr. Lisella and Mr. Turner. There were also no payments made to DBL; as indicated by Mr. Turner himself and the text messages, the invoices were to be made out directly to the Kennedys, not to DBL. (No. 153, Exhibit A, p. 18; No. 151, Exhibit D; No. 151, Exhibit E, p. 8.) Finally, there were no contracts between DBL or Turner for the court to inspect.
Based upon the record presented by the plaintiff, the court finds that the plaintiff has failed to sustain its burden of proof by clear and convincing evidence that DBL obtained the November 6, 2017 withdrawal by fraud. Accordingly, the motion to restore the case to the docket as against DBL is denied.
III
CONCLUSION
For the reasons stated, the motion to return the case to the docket as against DBL is denied.