Opinion
No. CV 04-4001809 S
July 25, 2005
MEMORANDUM OF DECISION
This is a decision on the plaintiff's motion to strike the defendant's second special defense, dated February 14, 2005.
On October 12, 2004, the plaintiffs, David Shea and Cynthia A. Shea, filed a three-count complaint against the defendant, Lovley Development, Inc. The following facts are alleged in count one, sounding in breach of contract. On October 15, 1999, the parties entered into a contract, and as per the contract, the plaintiffs were to purchase property located in Watertown, Connecticut from the defendant. The plaintiffs attached the sales agreement dated October 15, 1999 to the complaint as Exhibit A (sales agreement).
According to the plaintiffs, the defendant "held itself out as a competent builder of homes" and agreed to build a home on the premises "in a good and workmanlike manner" and sell it to the plaintiffs. The plaintiffs complied with their obligations under the sales agreement, and the parties closed on the premises on April 20, 2000. Within a year of the plaintiffs' taking occupancy of the premises, they discovered that "a great deal of water and seepage was entering the basement." The plaintiffs informed the defendant, of the problem and asked the defendant to correct it. While the defendant tried to correct the problem, the measures it took were not adequate to remedy the problem. Afterwards, a site contractor hired by the plaintiffs found that the in-ground curtain drains were not properly installed and that this caused water to enter the basement. According to the plaintiffs, the defendant breached the contract by failing "to construct the home's foundation drainage system in a good and workmanlike manner."
In count two, the plaintiffs add that "[t]he defendant expressly warranted that the premises would be constructed in a workmanlike manner in accordance with the State of Connecticut Building Code and agreed to repair any such defect at [its] own expense." The defendant allegedly breached the express warranty by installing a defective foundation drainage system, which caused water to seep into the basement, resulting in the plaintiffs' damages. In count three, the plaintiffs add that the defendant's conduct constitutes breach of an implied warranty.
On February 2, 2005, the defendant filed its answer and two special defenses. In its second special defense, the defendant alleges that its express warranty is limited and specifically states: "During the period of Warranty, the roof shall be free of leaks, the plumbing system and electrical system shall be in proper working order." (Internal quotation marks omitted.) According to the defendant, this express warranty does not apply to the condition that is the subject of the plaintiffs' complaint.
On February 15, 2005, the plaintiffs filed a motion to strike the defendant's second special defense accompanied by a memorandum of law in support thereof the defendant filed a memorandum of law in opposition to the motion to strike. Oral arguments were heard on the short calendar on March 28, 2005.
"The purpose of a special defense is to plead facts that are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action . . ." (Internal quotation marks omitted.) Louis Gherlone Excavating, Inc. v. McLean Construction Co., 88 Conn.App. 775, 781, 871 A.2d 1057, cert. granted, 274 Conn. 909 (2005). "A party wanting to contest the legal sufficiency of a special defense may do so by filing a motion to strike. In ruling on a motion to strike, the court must accept as true the facts alleged in the special defenses and construe them in the manner most favorable to sustaining their legal sufficiency. Connecticut National Bank v. Douglas, 221 Conn. 530, 536, 606 A.2d 654 (1992); Melanson v. West Hartford, [ 61 Conn.App. 683, 687, 767 A.2d 764, cert. denied, 256 Conn. 904, 772 A.2d 595 (2001)]." (Citations omitted.) Barasso v. Rear Still Hill Road, LLC, 64 Conn.App. 9, 13, 779 A.2d 198 (2001).
II.
The plaintiffs move to strike the defendant's second special defense on the ground that it "is legally insufficient because the defendant did not adequately disclaim the express warranties made under General Statutes § 47-1177." The plaintiffs argue that while the defendant alleges that its express warranty does not apply to the condition that is the subject of the complaint, § 47-117(c) does not allow a new home builder to exclude a warranty in this manner.
General Statutes § 47-117 provides: "(a) Express warranties by a vendor are created as follows: (1) Any written affirmation of fact or promise which relates to the improvement and is made a part of the basis of the bargain between the vendor and the purchaser shall create an express warranty that the improvement conforms to such affirmation or promise; (2) any written description of the improvement, including plans and specifications thereof which is made a part of the basis of the bargain between the vendor and the purchaser shall create an express warranty that the improvement conforms to such description; and (3) any sample or model which is made a part of the basis of the bargain between the vendor and the purchaser shall create an express warranty that the improvement conforms substantially to such sample or model . . .
"(b) No formal words, such as `warranty' or `guarantee,' nor any specific intention to make a warranty shall be necessary to create an express warranty, provided a simple affirmation of the value of the improvement or a statement purporting to be an opinion or commendation of the improvement shall not of itself create such a warranty . . .
"(c) No words in the contract of sale or the deed, nor merger of the contract of sale into such deed shall exclude or modify any express warranty made pursuant to subsection (a) of this section. Such warranty may, at any time after the execution of the contract of sale, be excluded or modified wholly or partially by any written instrument, signed by the purchaser, setting forth in detail the warranty to be excluded or modified, the consent of the purchaser to such exclusion or modification and the terms of the new agreement . . .
"(d) An express warranty shall terminate: (1) In the case of an improvement completed at the time of the delivery of the deed to the purchaser, one year after the delivery or one year after the taking of possession by the purchaser, whichever occurs first; and (2) in the case of an improvement not completed at the time of delivery of the deed to the purchaser, one year after the date of the completion or one year after taking of possession by the purchaser, whichever occurs first."
According to the plaintiffs, a limitation on an express warranty is not effective unless the parties agree to the limitations in an agreement separate from the sales contract and the limitation language specifically states what express warranties are being disclaimed. The plaintiffs argue that the language that the defendant relies upon to limit its express warranties is in the sales contract itself and is therefore ineffective because it is not part of a written agreement signed by the plaintiffs after the execution of the original contract, as required by subsection (c) of General Statutes § 47-118. The plaintiffs also assert that while the defendant's position is that its disclaimer language in the express warranty in the sales agreement limits other express warranties, the defendant fails to support its claim.
After reading § 47-118(c), it appears that the plaintiffs intend to refer to § 47-117(c) instead. For a recitation of § 47-117(c), please see footnote 1.
The defendant counters that the following language in paragraph eleven of the sales agreement contains the terms of the express warranty: "During the period of warranty, the roof shall be free of leaks, the plumbing system and electrical system shall be in proper working order." (Internal quotation marks omitted.) Pursuant to this language, the defendant argues, the parties clearly and unambiguously entered into a contract that limits the defendant's express warranty "to the root plumbing system and electrical system." Therefore, according to the defendant, its second special defense is legally sufficient.
Paragraph eleven, in its entirety; states: " WARRANTY: Seller agrees and warrants that the premises will be constructed in a good and workmanlike manner and in compliance with the State of Connecticut Building Code and Seller guarantees the following items on said premises against all defects in workmanship and materials for one (1) year from the date of closing and agrees to repair such defects at its own expense, but Purchaser agrees that the method of such repair shall he at the sole discretion of the Seller. During the period of warranty, the roof shall be free of leaks, the plumbing system and electrical system shall be in proper working order. Hairline cracks, `nailpops,' and other similar conditions resulting from normal wear and tear shall not constitute defects in workmanship or materials. All appliances are guaranteed by their manufacturer and not by Seller and Seller shall not be responsible for any damage to house or contents caused by a defect in an item under warranty. Seller makes no other warranty to Purchaser express or implied."
Section 47-117, entitled "Express Warranties," is pad of the New Home Warranties Act. The act "created express and implied warranties for an original buyer of a newly constructed single family home. [T]he purpose of PA. 75-637 [codified as §§ 47-117 and 47-118] is to afford protection to new home buyers. Any other interpretation would thwart the purpose of the act as well as the intent of the legislature." Amendola v. Giammattei, Superior Court, judicial district of New Haven, Docket No. CV 87 0260230 (June 27, 1991, Ramsey, S.T.R.). Section 47-117(a) provides in relevant part: "Express warranties by a vendor are created as follows: (1) Any written affirmation of fact or promise which relates to the improvement and is made a pad of the basis of the bargain between the vendor and the purchaser shall create an express warranty that the improvement conforms to such affirmation or promise . . ." Pursuant to the terms of § 47-117(a)(1), the sales agreement between the parties in this case created several express warranties. Specifically, the defendant warranted that (1) it would construct the premises in a good and workmanlike manner"; (2) it would construct the premises in compliance with the state building code; and (3) from one year from the date of the closing, the roof would be free of leaks and the plumbing and electrical systems would "be in proper working order."
The defendant argues that its warranty as to the root plumbing and electrical systems serves to limit its other express warranties. Subsection (c) of § 47-117 addresses modifications and limitations of express warranties, and it provides: "(n)o words in the contract of sale or the deed, nor merger of the contract of sale into such deed shall exclude or modify any express warranty made pursuant to subsection (a) of this section. Such warranty may, at any time after the execution of the contract of sale, be excluded or modified wholly or partially by any written instrument, signed by the purchaser, setting forth in detail the warranty to be excluded or modified, the consent of the purchaser to such exclusion or modification and the terms of the new agreement." As stated by the Appellate Court: "The plain language of . . . § 47-117 . . . expressly provides that no words in the contract of sale shall work to exclude or to modify any warranties created under the statutes unless there is a separate agreement on the exclusion or modification." (Emphasis in original.) Beucler v. Lloyd, 83 Conn.App. 731, 737, 851 A.2d 358 (2004), cert. dismissed, 273 Conn. 475, 870 A.2d 468 (2005). In Beucler, a provision in the sales agreement limited the time during which the defendant's express warranty would be effective. The court determined that the provision modified the express warranty provision in § 47-117(d) and held that "the notice provision in the contract [was] inoperative because the modification was not the subject of a written instrument signed by the purchaser after the original contract was executed, as required by § 47-1174c) . . ." Id., 739.
The same analysis is applicable here. Therefore, to the extent that the warranty regarding the roof and the plumbing and electrical systems modifies the defendants other express warranties, it is inoperative because it is contained only in the sales agreement and is not, as required by § 47-117(c), the subject of a separate written document signed by the plaintiffs after the execution of the original contract.
As such, the plaintiff's motion to strike the defendant's second special defense is granted.
Mattasavage, J.