Opinion
No. CV 07 6001398
July 24, 2008
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #112
On August 31, 2007, the plaintiff, Plato Associates, LLC, commenced this action by service of process on the defendants, Environmental Compliance Services, Inc. (environmental services) and its manager, Michael Hopkins, a licensed environmental professional in Connecticut. The following facts are alleged in the complaint. On May 8, 2001, the plaintiff purchased real property located at 4 Pin Oak Drive in Branford from Woodland I Associates Ltd., Partnership. Prior to its purchase the plaintiff entered into a contract with environmental services to perform a "Phase I and Phase II Environmental Site Assessment" (site assessment). In its purchase of the property, the plaintiff relied on the proven expertise of environmental services in conducting the site assessment. In reliance upon the site assessment, the plaintiff closed on a construction loan for improvement of that property. In counts one and three, the plaintiff alleges that environmental services and Hopkins breached their contract, respectively. In counts two and four, the plaintiff alleges that environmental services and Hopkins were negligent, respectively. These claims are based on the conclusions in the site assessment by the defendants that state: "The [subject property] does not appear to be an Establishment (subject to the Transfer Act). Based on these findings, the overall environmental risk associated with the [subject property] appears to be low. No additional investigation is recommended at this time."
On March 11, 2008, the defendants filed a motion for summary judgment on the ground that counts one and three are barred by the six-year statute of limitations in General Statutes § 52-576(a); counts two and four are barred by the statute of limitations and statute of repose set forth in General Statutes §§ 52-577 for three years and 52-584 for two years; and that Hopkins is not a party on the contract with environmental services. In support of their motion, the defendants submitted a memorandum of law, an affidavit by Hopkins, a copy of the complaint and a copy of the site assessment. In response, the plaintiff filed a memorandum of law along with an affidavit of Richard Perlman, president of Zaragon Holdings, Inc., and the plaintiff's manager. On May 8, 2008, the defendants filed a reply memorandum of law with another copy of the complaint, a copy of the plaintiff's reply to the defendants' special defenses, copies of forms for closed pleadings and a claim for jury, another copy of Hopkins' affidavit and a copy of Hopkins' qualifications. On May 29, 2008, the plaintiff filed a reply memorandum and a copy of the site assessment. The motion was heard at the short calendar on June 2, 2008.
"Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith if the 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 . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle [that party] to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Internal quotation marks omitted.) Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 756-57, 905 A.2d 623 (2006). "As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent." (Internal quotation marks omitted.) Socha v. Bordeau, 277 Conn. 579, 586, 893 A.2d 422 (2006).
As a general rule, "[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); see also Lind-Larsen v. Fleet National Bank of Connecticut, 84 Conn.App. 1, 8, 852 A.2d 799, cert. denied, 271 Conn. 940, 861 A.2d 514 (2004). Summary judgment is appropriate on statute of limitation grounds "as long as there are no material facts concerning the statute of limitations in dispute." Haggerty v. Williams, 84 Conn.App. 675, 679, 855 A.2d 64 (2004); see Burns v. Hartford Hospital, 192 Conn. 451, 452, 472 A.2d 1257 (1984).
Before resolving the motion for summary judgment, the court must address the adequacy of the supporting documents. Practice Book § 17-45 provides in relevant part: "A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like . . ." "[O]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment . . . [and] Practice Book § [17-45] . . . contemplates that supporting [or opposing] documents . . . be made under oath or be otherwise reliable." (Citation omitted; internal quotation marks omitted.) New Haven v. Pantani, 89 Conn.App. 675, 678, 874 A.2d 849 (2005); see also Rockwell v. Quintner, 96 Conn.App. 221, 233-34 n. 10, 899 A.2d 738, cert. denied, 280 Conn. 917, 908 A.2d 538 (2006). The affidavits submitted by the parties are properly admissible as each is based on the personal knowledge of the affiant. Many of the other documents submitted are not properly authenticated nor are they certified, but neither of the parties has objected to their admissibility and they rely on many of the same documents. Therefore, the court, in its discretion, may consider this evidence in deciding the motion. See Barlow v. Palmer, 96 Conn.App. 88, 91-92, 898 A.2d 835 (2006).
The defendants argue that they are entitled to summary judgment as a matter of law on all counts on the ground that the alleged breach of contract and negligence claims are barred by the statutory time periods in §§ 52-576, 52-577 and 52-584. The plaintiff counters that the claims alleged are all governed by General Statutes § 52-584a, which "provides a seven-year limitations period for all contract and tort actions brought against engineers and other professionals for services rendered in connection with the improvement of real property." The plaintiff further asserts that "[a] genuine issue of material fact exists as to whether the Defendants' environmental services were necessary for the acquisition and improvement of [the] property owned by [the plaintiff]."
Both parties filed a reply memorandum of law. In their reply, the defendants argue that summary judgment must be granted because the "plaintiff's claim is that the defendants failed to opine that the subject property was an Establishment subject to the Connecticut Transfer Act. Consequently, [General Statutes] § 52-584a is not applicable to [the] plaintiff's claims because the January 18, 2001, Phase I and Phase II Environmental Site Assessment: (1) did not involve any design, planning, contract administration, supervision, observation of construction or construction by defendants of an improvement to real property as required by § 52-584a; (2) did not involve any services required to be performed by a professional engineer and/or which constituted professional engineering services as defined by the legislature and in § 52-584a; (3) did not involve any land survey or land surveyor as defined by the legislature; and (4) did not involve any improvement to real property as contemplated by § 52-584a." The defendants further contend that the plaintiff has presented no argument as to how the complaint is timely under the three other statutes of limitations, and has not opposed the argument that there was no contract between the plaintiff and Hopkins for the breach of contract claim in count three.
General Statutes § 22a-134(1)(W)(3) defines "establishment" as "any real property at which or any business operation from which (A) on or after November 19, 1980, there was generated, except as the result of remediation of polluted soil, groundwater or sediment, more than one hundred kilograms of hazardous waste in any one month, (B) hazardous waste generated at a different location was recycled, reclaimed, reused, stored, handled, treated, transported or disposed of, (C) the process of dry cleaning was conducted on or after May 1, 1967, (D) furniture stripping was conducted on or after May 1, 1967, or (E) a vehicle body repair facility was located on or after May 1, 1967 . . ."
Once a property has been identified as being contaminated, the Connecticut Transfer Act, General Statutes § 22a-134 et seq., requires an environmental site assessment and remediation of contamination on the property. The transfer act requires the filing of Form III with the department of environmental protection. The form is one of the many devices used by the transfer act to govern the transfer of hazardous waste establishments and legally obligates the seller to investigate and to remediate any pollution found on the land about to be transferred.
"Pursuant to the Connecticut Transfer Act, General Statutes § 22a-134 et seq., a transferor of land must complete Form III when `a release has occurred which has not been cleaned up in a manner approved by the Commissioner of Environmental Protection or for any reason a negative declaration cannot be submitted.' On Form III, the transferor certifies that `to the extent necessary to minimize or mitigate a threat to human health or the environment, I shall contain, remove, or otherwise mitigate the effects of any discharge, spillage, controlled loss, seepage, or filtration of hazardous waste at the site of . . . establishment in accordance with procedures and a time schedule approved by the Commissioner of Environmental Protection pursuant to an order, stipulated judgment, or consent agreement.'" Northeast CT Economic Alliance, Inc. v. ATC Partnership, 272 Conn. 14, 23 n. 11, 861 A.2d 473 (2004).
In its reply memorandum, the plaintiff counters that there is a genuine issue of material fact as to the application of the seven-year statute of limitations because it requested the site assessment to secure financing necessary to make improvements to the property; that the failure of the defendants "to properly identify the property as an establishment was a deficiency in the design, planning, construction and surveying of the property in connection with improvements made to the property"; that the defendants performed the site assessment in their capacity as professional engineers; that the site assessment constitutes a land survey, and that the borings made to collect soil samples and the installation of two monitoring wells to evaluate the property's groundwater was an integral part of the acquisition and improvement of the property.
Section 52-584a provides in relevant part: "(a) No action or arbitration, whether in contract, in tort, or otherwise, (1) to recover damages (A) for any deficiency in the design, planning, contract administration, supervision, observation of construction or construction of, or land surveying in connection with, an improvement to real property . . . which is brought as a result of any such claim for damages shall be brought against any architect, professional engineer or land surveyor performing or furnishing the design, planning, supervision, observation of construction or construction of, or land surveying in connection with, such improvement more than seven years after substantial completion of such improvement . . ." General Statutes § 52-584a. The statute "is limited to actions involving architects . . . professional engineers [and recently to land surveyors]." Sandvig v. A. Dubreuil Sons, Inc., 68 Conn.App. 79, 92, 789 A.2d 1012 (2002), cert. granted, 260 Conn. 931, 799 A.2d 296 (2002), appeal dismissed, 270 Conn. 90, 851 A.2d 290 (2004). Without an allegation in a pleading that the defendants are an "architect, professional engineer, or land surveyor," § 52-584a does not apply.
In the complaint the plaintiff alleges that Hopkins is a licensed environmental professional and in an appended copy of the site assessment on the certification and qualifications page it states that Hopkins is a "licensed professional engineer and a licensed environmental professional." The defendants maintain that notwithstanding the plaintiff's allegation that Hopkins is a licensed environmental professional in Connecticut, the plaintiff has failed to allege that he is a professional engineer, architect or land surveyor. Based on the evidence submitted by the defendants and the plaintiff regarding Hopkins' qualifications, the court cannot conclude that as a matter of law the services provided by the defendants do not come within the ambit of professional engineering services.
As provided for in § 52-584a, the seven years to bring suit begins when improvement to the real property has been substantially completed, which the defendants in the present case maintain occurred when the site assessment with its conclusions was provided to the plaintiff on January 18, 2001, and which the plaintiff maintains was, at the earliest, when the borings and the two groundwater monitoring wells were completed by September 19, 2000. Either one of these dates is within seven years of the commencement of this action. The plaintiff's claims must fall within the purview of the time period in § 52-584a; otherwise the plaintiff's claims are time barred.
In Grigerlik v. Sharpe, 247 Conn. 293, 721 A.2d 526 (1998), the case relied on by the plaintiff, the court made use of the rules of statutory interpretation to decide whether the statutory time period in § 52-584a rather than § 52-584 applied. Therein, the court stated that in seeking to determine the meaning of the statutory language as applied to the facts of this case, "we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter." (Internal quotation marks omitted.) Id., 301-02. The court concluded that following the amendment of the statute in 1986, § 52-584a "constitutes a seven year statute of limitations for certain actions against architects and engineers . . ." Id., 305; see also Zapata v. Burns, 207 Conn. 496, 508, 542 A.2d 700 (1988) (intent of § 52-584a is to protect engineers and architects by barring suit seven years after "substantial completion" of improvement to real property).
The plaintiff's position in Grigerlik was that the statute applied to "all civil actions against architects and engineers within the scope of their professional services, irrespective of whether they resulted or were intended to result in a building or structure, and, in the alternative, that the soil testing and design of the septic system in this case constituted an improvement as contemplated by the statute." Grigerlik v. Sharpe, supra, 247 Conn. 305-06. The defendants responded that § 52-584a did not apply because there was "`no improvement' to real property, as that phrase is used in the statute, from which the seven year period could begin to run [and] in order for there to have been an improvement' so as to trigger the applicability of the statute, there must have been a building erected as a result of the architect's or engineer's services." Id., 305.
To determine whether the damages for any deficiency or defect is related to an improvement as contemplated by the statute, the court in Grigerlik applied the rules of construction to the phrase "improvement to real property." Id., 306-07. The court stated that as commonly understood in the law, the phrase "[g]enerally has reference to buildings, but may also include any permanent structure or other development [of the real property in question]." (Internal quotation marks omitted.) Id., 307. "Thus, an `improvement to real property' as used in § 52-584a ordinarily requires some physical addition to or alteration of the property in question in order to enhance or promote its use for a particular purpose." Id.
The court in Grigerik acknowledged that in the present case, if "the proposed septic system that was the subject of the defendants' services [had] been installed, the seven years would have begun to run from the date when the system was first used or available for use. The case before us, however, presents the question of whether 52-584a applies to a situation in which the defect in the professional services rendered was discovered before the intended improvement was begun, and the reason that the improvement was not and could not be effectuated was precisely because of that defect." Id.
The court reasoned that "[i]t would be irrational to conclude that, in a case such as this, the two year period of § 52-584 [the negligence statute of limitations] applied so that the injured party would have less time to bring his cause of action than if the improvement had been effectuated and the defect discovered after the substantial completion of the intended improvement. Thus, we conclude that, where the improvement of real property contemplated by the architect's or engineer's services is not completed because of the defect complained of, § 52-584a, and not § 52-584, applies to the plaintiff's cause of action." Id., 308.
In the present case, the defendants distinguish Grigerik v. Sharpe on two grounds: the case "involved professional engineering services of `soil testing and site planning necessary to the construction of a septic system'" and, therefore, the plaintiff's action "arose when he discovered that the land was unsuitable for the construction of a septic system" and it involved "services which were required to be performed by an engineer, and which in fact were performed by a professional engineer," as stated in the site assessment. As to the first ground, the defendants rely on the site assessment in which it clearly states what the purpose is: "The purpose of [environmental services'] investigation is to identify and record existing, potential or suspected conditions that may impose an environmental liability to, or restrict the use of, the site." It further states that the assessment would identify "recognized environmental conditions" to include "the presence or likely presence of any hazardous substance or petroleum product on the site under conditions that indicate an existing release, a past release or a material threat of a release into structures on the site or into the ground, groundwater or surface water. The term is not intended to include de minimis conditions that generally do not present a material risk to the public health or the environment . . ."
The defendants further contend that the five borings and the two groundwater monitoring wells which were drilled and installed on the property were to evaluate the environmental condition of the property and, as such, are not tantamount to any improvement to or construction of any improvement to real property as meant in § 52-584a. Rather, the defendants maintain that "[t]he sole and limited purpose of the borings and wells was to accomplish the purpose of the Environmental Site Assessment of identifying and recording existing, potential or suspected conditions that could impose an environmental liability on, or restrict the use of, the property."
It is the plaintiff's contention that the failure by the defendants in the site assessment to identify the property as an "establishment," based on the amount of hazardous waste on the property is the deficiency in the design, planning construction or land surveying in connection with an improvement to the real property and that this failure prevented the plaintiff from securing financing necessary to make improvements. The transfer of a property identified as an establishment is governed by the Connecticut Transfer Act §§ 22a-134 through 22a-134d. The site assessment stated that the Transfer Act "places requirements on one or more parties to the transfer of an `Establishment.' An Establishment is defined as a business or real property on which one or more of the following has occurred: more than 100 kilograms of hazardous waste has been generated in any calendar month after November 1980; hazardous waste generated by `another person' (in any quantity) has been transported, stored, staged, treated, discharged, disposed of, recycled or otherwise managed; dry cleaning, furniture stripping, vehicle body repair or vehicle painting have been performed after May 1, 1967." As to the finding of hazardous waste, environmental services stated: "Hazardous waste is generated on-site. Based on facility records, it appears that the hazardous waste generation rates have not exceeded 100 kilograms per month." Thus, the assessment concluded with the statement that "[t]he site does not appear to be an Establishment (subject to the Transfer Act) . . . the overall environmental risk associated with the site appears to be low [and] [n]o additional investigation is recommended at this time." Since the site assessment identified that there was not more than 100 kilograms per month of hazardous waste generated on the property, the property was determined not to be an establishment within the transfer act. Thus, for the site assessment to be within the purview of § 52-584a, the court must determine whether the performance of the site assessment is a deficiency or defect in the planning of an improvement of real property contemplated by the services provided by the defendants and when the project was substantially completed.
See footnotes 2 and 3.
In support of the contention that the site assessment is a deficiency in the planning of any improvement to the property, the plaintiff submitted the affidavit of Richard Perlman, president of Zaragon Holdings, Inc., and manager of the plaintiff, in which he attested that the plaintiff was interested in acquiring the subject property in 2000 and approached a bank about a loan for construction of and improvements to that property. He further testified that the bank required the plaintiff to hire the defendants to complete an environmental site assessment to the property; that as part of the site assessment, the defendants made physical improvements by taking soil borings and installing two monitoring wells; and that, thereafter, the plaintiff purchased the property and took out a construction mortgage with the bank. Perlman also testified that "[a]t the time of the closing on the Construction Mortgage the buildings or improvements (including site improvements, on the Property) were in the process of construction or repair and the Bank had agreed to make advances of principal under the Construction Mortgage to be paid over in installments as work progressed in accordance with the provisions of the Building Loan Agreement dated August 3, 2001, so that once all the work on the Property was completed to the satisfaction of the Bank, the Bank would have paid the balance necessary to complete a full Loan of $2,883,000 or such lesser amount that might be advanced under the Building Loan Agreement."
Thus, the court must determine whether the defect or deficiency in the professional services rendered as alleged by the plaintiff prevented the plaintiff from commencing any improvement to the property. Only if the improvement of real property contemplated by the defendants' services is not completed because of the defect complained of by the plaintiff, does § 52-584a apply to the plaintiff's cause of action. Nowhere in the complaint does the plaintiff allege what intended improvements to the property were not able to be completed due to the claimed deficiency of the services of the defendants in the completion of the site assessment, as the Supreme Court found in Grigerlik where the intended improvement was the septic system. As a matter of fact, the plaintiff does not allege or provide any evidence of any construction of or intended improvement to be made to the land that could not be made after the completion of the site assessment. Nor does the plaintiff allege or provide any evidence as to what intended improvement could not be completed if the land was deemed to be an establishment as defined in the transfer act. To recover damages the defect or deficiency for a claim of negligence or breach of contract of the professional services of the defendants, the defect or deficiency must relate to an improvement as contemplated by the statute and the statute must apply to the particular case. That is the seven-year time limitation in the statute must be applicable to a defect or deficiency in the design, planning, contract administration, supervision, observation of construction or construction of, or land surveying in the professional services rendered in connection with an improvement to real property. General Statutes § 52-584a.
Based on the foregoing, § 52-584a is not the applicable statute of limitations to the plaintiff's claims and, as a result, the defendants' motion for summary judgment is granted.