Opinion
HHDCV096006373S
12-01-2015
Carlos Ramos v. J.J. Mottes Company et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
Cesar A. Noble, J.
The defendant has moved for summary judgment on counts one (fraud), three (negligence), five (negligent misrepresentation), nine (violation of the Connecticut Unfair Trade Practices Act (CUTPA)), and eleven (violation of the Home Improvement Act (HIA)). For the reasons discussed below, the defendant's motion is granted as to each count.
FACTS AND PROCEDURAL HISTORY
On December 17, 2009, the plaintiff, Carlos Ramos, served a twelve-count complaint upon the defendants, J.J. Mottes Company and J.C. Concrete, LLC. On March 1, 2010, the plaintiff filed an amended writ and summons. On August 3, 2010, the defendant filed a motion for summary judgment on counts one, three, five, seven, nine, and eleven, which were all the counts directed at it. On September 13, 2010, the court granted the defendant's motion without objection. On November 9, 2010, the plaintiff filed a motion to open the judgment, to which the defendant filed a timely objection. On February 23, 2012, the court overruled the defendant's objection and granted the plaintiff's motion to open the judgment. The defendant appealed and the Appellate Court affirmed the trial court's decision to open the summary judgment on the basis that the trial court had the authority to do so. On February 10, 2015, the plaintiff filed a revised complaint.
An appearance was filed for J.J. Mottes Company on December 31, 2009. J.C. Concrete failed to file an appearance and a motion for default was granted by the clerk on November 21, 2013. In this memorandum, J.J. Mottes Company will be referred to as the defendant.
The plaintiff alleges the following facts in his revised complaint. The plaintiff hired the defendant and J.C. Concrete to build a concrete foundation for a new wing of his house. On or about October 27, 2006, the plaintiff placed an order with the defendant to deliver concrete to the plaintiff's house. On or about October 27, 2006, the defendant delivered approximately twenty-eight yards of concrete to the plaintiff's house. The plaintiff paid for the concrete in full upon delivery, after which, the concrete was unloaded. The plaintiff alleges that J.C. Concrete built a defective concrete foundation with defective concrete supplied by the defendant. The concrete supplied was substandard according to the Bloomfield Building Code (2014 International Building Code) Table 1904.2.2(2), in that the minimum specified compressive strength for concrete construction should be at least 2500 pounds per square inch for " negligible exposure" and 3000 pounds per square inch for " moderate exposure." The defendant supplied concrete that was somewhere between 1500 pounds per square inch and 1800 pounds per square inch. Subsequently, the foundation collapsed and was rendered unusable.
In count one, which is labeled " Fraud, " the plaintiff repeats the allegations above and further alleges that the defendant delivered concrete that it knew or should have known was substandard. Thereafter, the plaintiff had the concrete analyzed and learned that the concrete was substandard. In count three, labeled " Negligence, " the plaintiff repeats the allegations in the paragraph above and further alleges that the defendant used concrete that it knew or should have known was substandard. In count five, labeled " Negligent Misrepresentation, " the plaintiff repeats the allegations from count three verbatim. In count nine, labeled " Violation of CUTPA, " the plaintiff repeats the allegations in the above paragraph and further alleges the following: the defendant used concrete that it knew or should have known was substandard; the plaintiff had the concrete analyzed and learned that the concrete was substandard; and that these actions by the defendant violate CUTPA because they (1) offend public policy as it has been established by statutes, the common law, or otherwise; (2) are immoral, unethical, oppressive, or unscrupulous; and (3) cause substantial injury to consumers. As a result, the plaintiff incurred substantial money damages including, but not limited to, loss of value of his home, costs of construction to complete the work and to repair the nonconforming work, and/or liabilities. In count eleven, labeled " Violation of the Connecticut Home Improvement Act against J.J. Mottes, " the plaintiff alleges that the defendant was not a licensed Home Improvement contractor as required by the HIA and " failed to comply with various obligations for home improvement contracts as required by the Connecticut Home Improvement Act." Plaintiff's Complaint, Count Eleven, P17. The plaintiff claims he suffered damages as a consequence of the defendant's violation of the HIA. The plaintiff seeks legal damages, punitive and multiple damages, attorneys fees and costs, and any other relief deemed just and proper by the court.
On April 2, 2015, the defendant filed a motion for summary judgment on counts one, three, five, and nine, on the grounds that these counts are barred by the applicable statute of limitations, and as to count eleven on the grounds that no independent cause of action exists for a violation of the HIA. The motion is accompanied by a memorandum of law. The plaintiff filed a memorandum of law in opposition to the motion for summary judgment on September 28, 2015. This matter was heard at short calendar on September 28, 2015.
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." (Internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534, 51 A.3d 367 (2012). " 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.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 313, 77 A.3d 726 (2013). " Although allowing a statute of limitations defense may result in meritorious claims being foreclosed, that must be so." Piteo v. Gottier, 112 Conn.App. 441, 450, 963 A.2d 83 (2009).
" Factual allegations contained in pleadings upon which the cause is tried are considered judicial admissions . . ." Dreier v. Upjohn Co., 196 Conn. 242, 248, 492 A.2d 164 (1985). Interrogatories are not judicial admissions, however they may be considered as evidence to support a motion for summary judgment. See Cardarelli v. Middlesex Mutual Assurance Co, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV-02-0190417-S (February 2, 2004, Tobin, J.) (A court " could consider a party's answers to interrogatories . . . in deciding the motion. The court reasoned that Practice Book § 17-45 specifically states that disclosures are the type of evidence that may be considered as evidence to support a summary judgment motion, and that interrogatories . . . fall under the term disclosures" [internal quotation marks omitted]).
The defendant's motion for summary judgment argues that counts one, three, five, and nine of the revised complaint are barred by the applicable statute of limitations. The defendant alleges that the plaintiff admits, in sworn discovery responses, that all acts he complains of occurred more than three years before the date he commenced suit. The plaintiff's objection to the defendant's motion for summary judgment argues that the statute of limitations defense must be specially pleaded. The plaintiff alleges that the defendant neither pleaded the statute of limitations nor in any way notified the plaintiff that it was at issue. The plaintiff further alleges that the defendant failed to raise the defense of statute of limitations in any of its prior motions, and by failing to specifically plead the defense, it has waived that defense. Finally, the defendant failed to interpose any defense as to the attack on count eleven.
Because a party may now file a motion for summary judgment even before the pleadings are closed, a party no longer must plead a time limitation as a special defense prior to moving for summary judgment. " If [the court] were to hold that a motion for summary judgment cannot be made prior to pleading a statute of limitations as a special defense, [the court] would negate that portion of § [17-44] that provides that a motion for summary judgment can be made 'at any time, ' without the necessity of closing the pleadings." (Footnote omitted.) Girard v. Weiss, 43 Conn.App. 397, 416, 682 A.2d 1078, cert. denied, 239 Conn. 946, 686 A.2d 121 (1996). " 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." Id., 417. In Girard, the court held that since the parties did not disagree as to the facts, the trial court could properly consider the motion for summary judgment. Id.
In the plaintiff's objection to the defendant's motion for summary judgment and the supporting memorandum of law, the plaintiff does not contest the dates of the injury nor the dates the defendant uses to apply the applicable statute of limitations. The plaintiff only argues that the defendant was required to specially plead the statute of limitations defense. According to case law, however, since a party may file a motion for summary judgment even before the pleadings are closed, a party no longer must plead a time limitation as a special defense prior to moving for summary judgment, as the defendant has done here.
At short calendar, this court asked the plaintiff's attorney if he was aware of any basis to object, other than a technical basis, that Practice Book § 10-50 requires the filing of a special defense. The plaintiff's attorney responded that the actual discovery that the concrete was defective was at a later date, when the concrete was subjected to an analysis by a laboratory. The plaintiff, however, did not provide any evidentiary foundation for this assertion and the plaintiff's objection is based solely on the fact that a special defense was not pleaded.
In the present case, the plaintiff has a number of actions, which each have their own statute of limitations. Count one for fraud is governed by General Statutes § 52-577; count three for negligence and count five for negligent misrepresentation are governed by General Statutes § 52-584; and count nine for violation of CUTPA is governed by General Statutes § 42-110g. For all of these actions, what matters is the date of the occurrence, more specifically, the moment the act or omission complained of occurs.
Count One--Fraud
The plaintiff's claim for fraud against the defendant in count one of the revised complaint is barred by the tort statute of limitations set forth in General Statutes § 52-577, which provides: " No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of." General Statutes § 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 . . . 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 wrongful conduct alleged in the complaint and the date the action was filed . . . 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." (Citations omitted; internal quotation marks omitted.) Collum v. Chapin, 40 Conn.App. 449, 451-52, 671 A.2d 1329 (1996).
Counts Three and Five--Negligence and Negligent Misrepresentation
The plaintiff's claim for negligence and negligent misrepresentation in counts three and five of the revised complaint are barred by the negligence statute of limitations set forth in General Statutes § 52-584, which provides in relevant part: " No action to recover damages for injury to the person, or to real or personal property, caused by negligence . . . shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of . . ." " The harm need not have reached its fullest manifestation before the statute begins to run." Burns v. Hartford Hospital, 192 Conn. 451, 460, 472 A.2d 1257 (1984).
Count Nine--Connecticut Unfair Trade Practices Act
The plaintiff's claim for unfair trade practices under CUTPA in count nine of the revised complaint is barred by the applicable statute of limitations set forth in General Statutes § 42-110g(f), which provides: " An action under this section may not be brought more than three years after the occurrence of a violation of this chapter." Under CUTPA, no cause of action can be maintained if brought more than three years after the occurrence of the violation. See Fichera v. Mine Hill Corporation, 207 Conn. 204, 212-13, 541 A.2d 472 (1988). " We are unable to perceive any significant distinction applicable . . . between the act or omission reference, denoting the start of the limitation period in § § 52-577 and 52-584, and the occurrence of a violation phrase in § 42-110g(f), setting the time when the three year period begins for bringing an action alleging a CUTPA violation." (Internal quotation marks omitted.) Id., 213.
The plaintiff's revised complaint contains one date, October 27, 2006, when the concrete was ordered and delivered to the plaintiff's house. (Plaintiff's Revised Complaint, PP5-6.) Therefore, the date of wrongful conduct pleaded in the plaintiff's complaint is October 27, 2006, and is a judicial admission. The rest of the dates the plaintiff complains of were acquired from the plaintiff's responses to interrogatories. The plaintiff states that the work performed by the defendant took place on October 11, 2006, and October 27, 2006. (Plaintiff's Response to Interrogatory 52.) The foundation was built between October 9, 2006, and November 11, 2006. (Plaintiff's Response to Interrogatory 38.) The plaintiff learned that the foundation was defective on or about November 30, 2006, which was also the day the foundation collapsed and was rendered unusable. (Plaintiff's Response to Interrogatory 39 and 53.) Taking the date of wrongful conduct, October 27, 2006, when the concrete was delivered, and the date the plaintiff commenced suit, December 17, 2009, more than three years has elapsed. Even if it were true that the date the concrete collapsed, November 30, 2006, was the operative date (the date of wrongful conduct), it is still outside the statute of limitations when measured with the date the plaintiff commenced suit. Thus, the plaintiff has admitted that the acts he complains of occurred more than three years before the date of service of the writ upon the defendant. There are no material facts in dispute because the date of wrongful conduct is ascertained from the plaintiff's revised complaint, is a judicial admission, and no evidence to the contrary has been submitted to contradict the plaintiff's sworn discovery responses. The defendant has not filed an answer and therefore has not denied nor contested any relevant facts.
Count Eleven--Home Improvement Act
The defendant is entitled to judgment as to count eleven because the HIA does not provide an independent cause of action. The court first addresses the propriety of the defendant having raised this issue via a motion for summary judgment.
The defendant's argument is essentially a challenge to the legal sufficiency of the claim. " [T]he use of a motion for summary judgment to challenge the legal sufficiency of a complaint is appropriate when the complaint fails to set forth a cause of action and the defendant can establish that the defect could not be cured by repleading." (Internal quotation marks omitted.) Ferri v. Powell-Ferri, 317 Conn. 223, 236, 116 A.3d 297 (2015). The plaintiff has failed to object to the use of a summary judgment motion for this purpose and the court finds that there are no additional facts which the plaintiff might plead to establish an independent cause of action under the HIA.
As mentioned above, the plaintiff did not raise any defense to the defendant's motion as to this count.
The HIA expressly invalidates home improvement contracts which do not comport with enumerated statutory requirements, General Statutes § 20-429(a), or which include certain prohibited terms. Campagnone v. Clark, 116 Conn.App. 622, 630-31, 978 A.2d 1115 (2009). It acts as a defense for the homeowner from " high pressure home improvement salesmanship" by generally precluding a contractor who undertook work pursuant to a non-complying contract from enforcing the terms of the contract. Barrett Builders v. Miller, 215 Conn. 316, 328, 576 A.2d 455 (1990).
In addition, the HIA expressly provides that a violation of the HIA constitutes a violation of CUTPA. See Tang v. Bou-Fakhreddine, 75 Conn.App. 334, 339, 815 A.2d 1276 (2003). As such, the Supreme Court has held that a cause of action exists for a claim under CUTPA based on a violation of the HIA. See MJM Landscaping, Inc. v. Lorant, 268 Conn. 429, 435-36, 845 A.2d 382 (2004).
" A violation of any of the provisions of this chapter shall be deemed an unfair or deceptive trade practice under subsection (a) of section 42-110b." General Statutes § 20-427(c).
What the act does not do is to expressly provide for an independent cause of action. The Superior Courts have " uniformly determined" that the Home Improvement Act is a defense and cannot be used as " an independent cause of action for a homeowner against a contractor." (Internal quotation marks omitted.) Kavanaugh v. Hilliard, Superior Court, judicial district of Fairfield, Docket No. CV-01-0185729-S (November 1, 2002, Lewis, J.) (33 Conn. L. Rptr. 309) (and cases cited therein); Chaz, Inc. v. Fish, Superior Court, judicial district of Litchfield, Docket No. CV-08-5003425-S (July 2, 2010, Shaban, J.); Wells v. New House Resource Group, LLC, Superior Court, judicial district of Middlesex, Docket No. CV-06-5000789-S (April 20, 2009, Jones, J.) (and cases cited therein); Alfin v. Gouvedaris, Superior Court, judicial district of Hartford, Docket No. CV-05-4011009-S (September 9, 2005, Miller, J.); Chasin v. Pasicki, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-02-0079444-S, (April 2, 2004, Bear, J.) (and cases cited therein); D. Rosengren, 13 Connecticut Practice Series: Connecticut Construction Law (2005) § 8:5, p. 169 & n.6 (and cases cited therein). This court's review of the HIA statutory scheme and the persuasive analysis in the decisions referenced above, compel it to conclude that the HIA does not in fact provide for an independent cause of action and, accordingly, summary judgment is appropriate as to count eleven of the plaintiff's complaint.
CONCLUSION
For the foregoing reasons, the court grants the defendant's motion for summary judgment, on counts one (fraud), three (negligence), five (negligent misrepresentation), nine (violation of CUTPA), and eleven (violation of HIA), of the plaintiff's revised complaint.