Opinion
HHDCV155040630S
06-16-2016
John Joseph Pavlo v. Charles Miner aka " Chuck" Miner et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Cesar A. Noble, J.
This claim based on defective workmanship in the restoration of the plaintiff's 1956 Packard Model 400 automobile (automobile) comes before the court on the defendant's motion for summary judgment. The defendants assert that all of the plaintiff's claims are barred by the applicable statute of limitations. For the foregoing reasons, the court agrees and grants summary judgment in favor of the defendants as to all counts.
The defendant Charles Miner is the owner of the co-defendant Twin Brooks Restoration, Inc., located in Suffield, Connecticut. The two will be collectively referred to as the defendants in this matter. Charles Miner will be referred to personally as the defendant.
FACTS
The court finds that the following facts have been established by the pleadings, affidavits, and other proof submitted by the parties. The defendants undertook to perform a paint job and other restoration on the plaintiff's vintage automobile. According to the affidavit of Charles Miner the work was done between 2006 and 2008 and no business or other interaction with the plaintiff occurred until the filing of the complaint. The plaintiff's complaint, dated September 11, 2015, alleges that on April 28, 2006, a written agreement was signed by the defendant and the plaintiff for the performance of painting and bodywork on the automobile which work was begun on or before June of 2006. The plaintiff removed the automobile from the defendants' facility on May 24, 2008. The plaintiff inspected the vehicle and noticed twelve deficiencies in the defendant's work, including problems with the body work and the paint job. On October 30, 2008, the plaintiff retained another auto restoration company to undertake work to address the defects.
The plaintiff initially filed a complaint with the Small Claims Court. Service of the complaint was made on the defendants on October 2, 2015. Service was made through UPS delivery, with a confirmation number of 1Z05X1060301114257, as permitted by the Small Claims Court " Statement of Service Form" (JD-CV-123) and Practice Book § 24-10(a). The defendants thereafter transferred the case to the Superior Court. Count one of the complaint sounds in breach of contract, count two asserts a violation of General Statutes § 42-110(b), known as the Connecticut Unfair Trade Practices Act (CUTPA), and count three makes a claim for detrimental reliance on the defendants' misrepresentations.
Such service is recognized as proper when, " [t]he plaintiff, or representative, shall cause service of the writ and notice of suit separately on each defendant by priority mail with delivery confirmation, by certified mail with return receipt requested or with electronic delivery confirmation, by a nationally recognized courier service providing delivery confirmation, or by a proper officer in the manner in which a writ of summons is served in a civil action . . . A statement of how service has been made, together with the delivery confirmation or return receipt or electronic delivery confirmation and the original writ and notice of suit shall be filed with the clerk. The writ and notice of suit and the statement of service shall be returned to the court not later than one month after the date of service." (Emphasis added.) Practice Book § 24-10(a).
On February 16, 2016, the defendants filed an answer and special defenses, asserting that the plaintiff's causes of action are time barred by the applicable statute of limitations under General Statutes § § 52-576, 42-110g, and 52-577. On the same day the defendant filed a motion for summary judgment as to the entire complaint. The defendants submitted a memorandum of law and an affidavit of Charles Miner in support of this motion.
The plaintiff has submitted a number of documents sounding in objection to the motion for summary judgment and memoranda of law in opposition. The operative objection and memorandum of law in support of the plaintiff's objection was filed on February 29, 2016. The plaintiff argues that the applicable statute of limitations are tolled and summary judgment is inappropriate because the plaintiff's submissions clearly state the reason for the delay of the suit " was the fact that the defects and damage imparted to the plaintiff's vehicle were numerous and concealed by the defendants in a manner of trickery." Pl.'s Memorandum in Support. The plaintiff has also submitted a number of affidavits. In the affidavit located at position #114, the plaintiff asserts that the statements in the defendant's affidavit are " untrue and a further example of the defendants' trickery and concealment." In position #120, is an affidavit of the plaintiff attesting to the allegation that the defendants " substituted an inferior bent, rusty left door for the Plaintiff's straight, rust free left door on the Plaintiff's 1956 Packard." The plaintiff asserts that, " [w]hile the 1956 Packard was in Derrick Pesko's shop, All Star Hot Rods, in Berlin Connecticut, 27 August 2010, for attempted repairs [of] defects and damage caused by the defendants, Derrick Pesko brought to the attention of the Plaintiff Pavlo that the left door had rust protruding through the paint and body work of the defendants. Plaintiff Pavlo . . . visited Derrick Pesko's shop and personally inspected the left door of the 1956 Packard . . . Plaintiff Pavlo concluded that this was clearly not the left door that Plaintiff Pavlo purchased [previously], but rather an inferior, bent, rusty substitute . . ."
The plaintiff first submitted an " Objection to the Defendants' Motion for Summary Judgment" and a memorandum in opposition to the motion on February 16, 2016, located at positions #115 and #116, respectively. The plaintiff submitted a subsequent objection, memorandum in opposition, and several affidavits on February 17, 2016, located at positions #118, #119, #120, and #121, respectively. The plaintiff submitted an additional affidavit on February 22, 2016, located at position #122. The plaintiff's objection to summary judgment that was heard before the court was filed on February 29, 2016.
It should be noted that an earlier filing indicates that the plaintiff filed the current suit because the plaintiff had come across a related case involving the defendant in which the quality of the workmanship of the defendant had been questioned. The plaintiff further stated that he found the defendant's business practices to be unethical and that he seeks to alert other consumers as to the defendant's poor workmanship. See Shattuck v. Twin Brooks Restoration, Superior Court, judicial district of Hartford, Docket No. CV 15-6060779-S.
The plaintiff submits an additional affidavit at position #126 that appears to be an expanded version of the affidavit at position #120. In the affidavit at position #126, the plaintiff attests to events occurring on the following dates: March 7, 1995, April 28, 2006, May 25, 2006, July 5, 2007, April 22, 2008, and August 27, 2010. Moreover, an affidavit of the plaintiff's father, Stephen J. Pavlo, located at position #128, asserts that, " the defendants substituted an inferior bent, rusty left door packed full of plastic body filler for the straight, solid, left door [previously purchased by the plaintiff]." The affidavit also indicates that this " defect" was witnessed by the plaintiff's father on August 27, 2010.
Moreover, the affidavit at position #122 asserts, that " [i]n March of 2014 . . . the Plaintiff noticed the new appearance of waviness in the paint and bodywork conducted by the defendants on the top surface of the decklid . . . of [the] 1956 packard . . . [The plaintiff] transported the 1956 Packard decklid to the shop of Carl Massafra's Auto Body in Milford, CT on 2 June 2014 for expert assessment." The plaintiff further asserts, in the affidavit at position #127, that he discovered additional damages and defects attributable to the defendants in September of 2015, and that he sought additional paint and bodywork in January of 2016. The plaintiff's affidavit at position #130 asserts that the plaintiffs sought further repairs to the left and right rear wheelshields of the automobile after it was retrieved from Twin Brooks. The bill from The Panel Shop, Inc., where the work was completed, indicates that the work was completed sometime in November of 2008. The plaintiffs affidavit at position #131 addresses two stainless steel " driprail mouldings" that he asserts the defendants charged for their repair, but they were not, in fact, repaired. The affidavit alleges that he dropped them off at Carbon County Chrome in Milford, Connecticut, for further repair on July 8, 2008.
The affidavit at position #129 is seemingly an expanded version of the affidavit at position #122. It further asserts that in March of 2014 the plaintiff " noticed the new appearance of waviness in the paint and bodywork conducted by the defendants on the top surface of the decklid . . ."
The bill from The Panel Shop, Inc. indicates that it was written on November 31, 2008. No such date exists.
The affidavit located at position #132 addresses the defendant's letters to the plaintiff on July 5, 2007 and April 22, 2008, and attests that they evidence that the defendants misled the plaintiff to believe that " high quality" work was completed. In the affidavit located at position #133, the plaintiff asserts that he exercised due diligence in obtaining additional repairs to the automobile after retrieving it from Twin Brooks. The plaintiff's affidavit at position #134 expresses that extended discovery, through September of 2015, led to the discovery of numerous defects that he attributes to the defendants. He asserts that all thirteen panels on the automobile have been ruined and has attached an estimate for repairs from Blast From The Past Restoration & Customs, Inc., dated September 8, 2015. The affidavits at positions #135 and #136 attest to the plaintiff's claims that " all criteria for the Special Rules and Exceptions to the Connecticut Statute of Limitations have been met." The affidavit at position #137 asserts that the defendant has been dishonest with the plaintiff and with the court. Finally, the affidavit at position #139 further asserts damages to the plaintiff's automobile that he attributes to the defendants. This matter was heard at short calendar on March 14, 2016.
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 . . . However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury . . . the moving party for summary judgment is held to a strict standard . . . of demonstrating his entitlement to summary judgment." (Citation omitted; footnote omitted; internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534-35, 51 A.3d 367 (2012). " In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact." (Internal quotation marks omitted.) Romprey v . Safeco Ins. Co. of America, 310 Conn. 304, 319-20, 77 A.3d 726 (2013).
" Summary judgment may be granted where the claim is barred by the statute of limitations . . . Summary judgment is appropriate on statute of limitations grounds when the material facts concerning the statute of limitations [are] not in dispute . . ." (Citation omitted; internal quotation marks omitted.) Id., 313. " [I]n the context of a motion for summary judgment based on a statute of limitations special defense, a defendant typically meets its initial burden of showing the absence of a genuine issue of material fact by demonstrating that the action had commenced outside of the statutory limitation period." (Citation omitted.) Id., 321. " In Connecticut, an action is commenced when the writ, summons and complaint have been served upon the defendant." Rocco v. Garrison, 268 Conn. 541, 553, 848 A.2d 352 (2004). The operative date for purposes of the summary judgment motion, the date this action was commenced, is October 2, 2015, the date the original small claims complaint was served on the defendants.
I. Breach of Contract Claim
The defendants contend that the plaintiffs breach of contract claim sets forth an accrual date between 2006 and 2008, and is, therefore, untimely brought in accordance with General Statutes § 52-576. Section 52-576 provides in relevant part: " (a) No action for an account, or on any simple or implied contract, or on any contract in writing, shall be brought but within six years after the right of action accrues . . ." (Emphasis added.) " The law concerning the time when a breach of contract action accrues is well settled. [I]n an action for breach of contract . . . the cause of action is complete at the time the breach of contract occurs, that is, when the injury has been inflicted . . . Although the application of this rule may result in occasional hardship, [i]t is well established that ignorance of the fact that damage has been done does not prevent the running of the statute, except where there is something tantamount to a fraudulent concealment of a cause of action." (Emphasis in original; internal quotation marks omitted.) Torringford Farms Ass'n, Inc. v. Torrington, 75 Conn.App. 570, 577, 816 A.2d 736, cert. denied, 263 Conn. 924, 823 A.2d 1217 (2003); see also Beckenstein v. Potter & Carrier, Inc., 191 Conn. 150, 156, 464 A.2d 18 (1983); DeCorso v . Watchtower Bible & Tract Society of New York, 46 Conn.Supp. 386, 396, 752 A.2d 102 (2000) (" [d]ifficulties may arise in determining when the contract cause of action has accrued, although [t]he true test is to establish the time when the plaintiff first could have successfully maintained an action" [internal quotation marks omitted]).
The plaintiff neither argues nor asserts any facts raising the existence of fraudulent concealment.
In the present case, the breach of contract claim is untimely under § 52-576. The plaintiff and the defendant contracted for the restoration of the automobile in 2006. The defendant held the automobile for a period of twenty-three months, until the defendant sent the plaintiff a letter indicating that he would complete no further work on the automobile. The plaintiff removed the automobile from Twin Brooks on May 24, 2008, and claims to have noticed deficiencies in the body and paint work on this date. The plaintiff hired an " expert" in the field of restoration on October 30, 2008, and claims that the expert concluded that a significant amount of the body and paint work performed on the automobile was not done in a workmanlike manner. The plaintiff hired the " expert, " Automotive Restorations, to complete restoration on the automobile at an additional cost of $7, 326.72.
The deficiencies that the plaintiff claims to have noticed on May 24, 2008, include: " Left and right rocker panels under the doors had been bent . . . left and right front fenders were bent above the wheel openings . . . as a result the chrome moldings would not fit the distorted shape of the front fenders . . . the left and right wheel shields no longer fit flush with the contour of the left and right quarter panels when installed . . . the hood was bent upward near the left hood hinge . . . the left door, right door, hood, and trunk had no latches installed to demonstrate fit of the panels, and allowed the panels to 'flap loose' in transport . . . the fit and gaps of all the installed panels . . . were not evenly spaced and not flush fit . . . the original straight and clean left door provided to [the defendant] had been replaced by an inferior door which had rust coming through the paintwork, was bent, and was full of plastic body filler . . . there was no evidence of repair work on the trunk hinges, or the quarter panels to fit the trunk as [the defendant] had charged for via invoices . . . one eight inch step of body filler was left abruptly ending on the front edge of the left rear quarter panel . . . paint on the two rear bumper filler panels was completely flaking off down to bare metal . . . the frame, undercarriage, gutters, corners, and crevices of the [automobile] contained pink/white residue from paint overspray, and paint and buffing residue from the wet sanding and buffing process . . . every single panel on the [automobile] . . . contained significant waves in the paint, significant in the bodywork, significant drips and runs in the paint, and significant orange peel in the paint."
In review of the record, this court finds that the plaintiffs breach of contract claim is barred by the applicable six-year statute of limitations set forth under § 52-576. The plaintiff was well aware of the alleged defects in the restoration of the automobile that he asserts amount to breach of contract in 2008, and there is nothing on the record to suggest that the defendants concealed any of the alleged defects. See Goldwasser v. Smith Corona Corp., 817 F.Supp. 263, 270 (D.Conn. 1993), aff'd, 26 F.3d 137 (Fed. Cir. 1994) (" a statute of limitations may be tolled due to fraudulent concealment . . . In such a circumstance, the statute of limitations is tolled until the innocent party becomes aware of the wrongdoer's activities" [citation omitted]).
The plaintiff's allegations indicate that he was aware of significant deficiencies that could have supported a cause of action in breach of contract as early as the date that he removed the automobile from the defendants' possession on May 24, 2008. See footnote 9 of this decision. Assuming, arguendo, that the deficiencies noted by the plaintiff on May 24, 2008 were not enough to support a cause of action, the plaintiff alleges that the inspection of the automobile by the " expert" in auto restoration on October 30, 2008, indicated that the work completed by the defendant was not done so in a workmanlike manner. While the plaintiff's numerous affidavits allege that defects were continually discovered, therefore tolling the statute of limitations, such an argument is not supported. The cause of action accrues when the plaintiff could have first successfully maintained an action, which was at the very latest sometime in 2008. As such, the alleged breach falls well outside the statutory time frame, the motion for summary judgment must be granted as to count one.
II. CUTPA Claim
The defendant also contends that the plaintiff's CUTPA claim is untimely under General Statutes § 42-110g. Specifically, § 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 plaintiff alleges that the defendants' conduct constitutes a deceptive act or practice within the meaning of § 42-110b, which reads in relevant part: " (a) No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce."
" Connecticut courts, when determining whether a practice violates CUTPA, will consider (1) whether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise--whether, in other words, it is within at least the penumbra of some common-law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers (or competitors or other businessmen) . . . Thus, a violation of CUTPA may be established by showing either an actual deceptive practice . . . or a practice amounting to a violation of public policy . . ." Gaynor v. Hi-Tech Homes, 149 Conn.App. 267, 275, 89 A.3d 373 (2014).
" CUTPA is governed by a three-year statute of limitations . . . It also is an occurrence statute, meaning that the time period within which a plaintiff must commence an action begins to run at the moment the act or omission complained of occurs . . . CUTPA is not a discovery statute, meaning that a plaintiff does not even need to have constructive knowledge of the violation for the limitations period to run . . . It is important to note that the limitations period begins to run not from the occurrence of the injury, but from the occurrence of the alleged violation." (Citations omitted; internal quotation marks omitted.) In re Trilegiant Corp., Inc., 11 F.Supp.3d 82, 121 (D.Conn. 2014); see also Timmons v. Hartford, 283 F.Supp.2d 712, 719 (D.Conn. 2003) (" [a] CUTPA violation occurs when the misrepresentation is made and the statute of limitations commences running the moment the act or omission complained of occurs").
The plaintiffs CUTPA claim is barred as it is well outside of the three-year statute of limitations imposed by § 42-110g. The latest possible date that the court could consider is April 22, 2008, when the defendant wrote a letter to the plaintiff indicating that they have done " [n]ational, award-winning paint jobs all over the country for the last 20 years, including many Meadow Brook winners, ACA winners, Amelia Island winners and even Pebble Beach winners." The plaintiff alleges that the aforementioned statement is a misrepresentation of the work actually performed. As CUTPA is not a discovery statute, the statute of limitations would commence on the date of the defendant's letter, April 22, 2008. For such reason, the motion for summary judgment must be granted as to count two.
The plaintiff and the defendant had no contact in the time period spanning from when the plaintiff picked up the car from Twin Brooks and when the plaintiff commenced this action, so there is no possibility for misrepresentations to have occurred at a later date.
III. Misrepresentation Claim
Finally, the plaintiff alleges that the defendants misrepresented that they would complete a full bodywork and paint job in a quality manner at a cost of $7, 852. General Statutes § 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 52-577 is an occurrence statute, meaning that the time period within which a plaintiff must commence an action begins to run at the moment the act or omission complained of occurs." S.M.S. Textile Mills, Inc. v. Brown, Jacobson, Tillinghast, Lahan & King, P.C., 32 Conn.App. 786, 790, 631 A.2d 340, cert. denied, 228 Conn. 903, 634 A.2d 296 (1993). " The three year limitation period of § 52-577 begins with the date of the act or omission complained of, not the date when the plaintiff first discovers an injury." Collum v. Chapin, 40 Conn.App. 449, 451, 671 A.2d 1329 (1996). " When conducting an analysis under § 52-577, the only facts material to the trial court's decision on a motion for summary judgment are the date of the wrongful conduct alleged in the complaint and the date the action was filed." (Internal quotation marks omitted.) Id.
In the present case, the defendant signed a written agreement to perform paint and bodywork on the automobile on April 28, 2006. The defendant estimated that the work would cost $7, 852, plus materials. As § 52-577 is an occurrence statute, the statute seemingly began to run on April 28, 2006, putting the plaintiff's claim well outside of the statute of limitations. For argument's sake, however, one could argue that the defendant's holding of the automobile for some twenty-three months amounted to fraudulent concealment as defined under § 52-595. The merits of such argument need not be addressed, however, because the cause of action would still be untimely. Any fraudulent concealment on the defendant's behalf would have been discovered by the plaintiff when he picked up the automobile and noticed numerous defects on May 24, 2008, or at the very latest when the defendant brought it to an " expert" on October 30, 2008. As the alleged misrepresentation, when broadly construed, took place in a time period from 2006 to 2008, and the complaint was filed in Small Claims Court on October 6, 2015, the claim is untimely under the applicable statute of limitations. Therefore, the motion for summary judgment must be granted as to count three.
CONCLUSION
For the aforementioned reasons the defendants' motion for summary judgment is granted in its entirety.