Opinion
No. CV 085006994
November 19, 2010
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #214 (QUALITY INSULATION)
Counts 21 and 22 FACTS
This action arises out of the purchase of a home by the plaintiff, Edward Gwozdz. The plaintiff originally brought this action against BCG Development, LLC (BCG) and Brian C. Gebo. The plaintiff's original complaint alleged causes of action for negligence, breach of contract, breach of warranty, misrepresentation, violation of the New Home Construction Act, violation of the Connecticut Unfair Trade Practices Act and piercing the corporate veil. The complaint was served on February 15, 2008 and had a return date of March 11, 2008. On May 29, 2009, BCG and Gebo filed a motion for permission to implead eleven subcontractors. On July 6, 2009, the court, Martin, J., granted the motion. Quality Insulation, Inc. (Quality) was among the parties added to the action. On September 23, 2009, the plaintiff filed a request for leave to amend and amended complaint in order to "plead over" the subcontractors, including Quality.
The plaintiff's operative complaint, the fourth amended revised complaint, was filed on January 25, 2010. The twenty-first and twenty-second counts are brought by the plaintiff against Quality and allege negligence and breach of contract-third-party beneficiary claims, respectively. On June 18, 2010, Quality moved for summary judgment on the twenty-first and twenty-second counts of the complaint on the ground that the plaintiff's claims were time barred. On July 6, 2010, the plaintiff filed an objection to the motion for summary judgment. On July 15, 2010, Quality filed a reply to the plaintiff's objection, and on July 23, 2010, the plaintiff filed a surreply. The plaintiff filed a supplemental surreply on August 23, 2010, and Quality filed supplemental affidavits on August 24, 2010. On September 10, 2010, the plaintiff filed a second supplemental surreply in support of his objection to the motion for summary judgment.
Quality moved to strike the second supplemental surreply on September 17, 2010. The court denied the motion to strike based on the reasoning set forth in its memorandum of law regarding that motion. For the purposes of this motion for summary judgment, the court will consider the admissible evidence presented by the plaintiff's second supplemental surreply.
The plaintiff alleges the following facts in the twenty-first and twenty-second counts of his complaint. On December 30, 2006, the plaintiff entered into a written agreement with BCG and Gebo to purchase a newly constructed single-family dwelling unit located at 321 Starkweather Road, Plainfield, Connecticut (the house). BCG and Gebo acted as general contractor for the construction of the house and, as inducement for the plaintiff to enter into the agreement with them, BCG and Gebo provided the plaintiff with a list of "general specifications" for the house, as well as a written "builder warranty." A closing took place on February 5, 2007, and on that date BCG tendered title of the house to the plaintiff.
Quality contracted with and was hired by BCG and Gebo to construct and install the hearth extension, hearth tile, fire stop spacer, insulation and fireplace refractory. Quality had exclusive control over the construction of those items and rendered its services in an unskillful and negligent manner. Shortly after the plaintiff took possession of the house, the plaintiff discovered numerous defective conditions with the hearth extension, fire stop spacer, insulation and fireplace refractory.
BCG, Gebo and Quality intended by the terms of their contract that Quality should assume a direct obligation to the purchaser of the property for the work that Quality completed and, accordingly, the plaintiff was a third-party beneficiary to the contract. Quality failed to adhere to the terms of its contract in that Quality's work resulted in numerous defective conditions. As a result of Quality's breach of contract and negligence, the plaintiff paid BCG and Gebo far more money for the construction of the house than it was reasonably worth and the plaintiff has expended and will have to expend large sums of money to make repairs to the house. Further, the fair market value of the house and property have been reduced due to the faulty construction.
DISCUSSION
"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." (Internal quotation marks omitted.) Durrant v. Board of Education, 284 Conn. 91, 99-100 n. 7, 931 A.2d 859 (2007). "Summary judgment may be granted where the claim is barred by the statute of limitations." Doty v. Mucci, 238 Conn. 800, CT Page 23567 806, 679 A.2d 945 (1996).
"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).
Quality argues that the plaintiff is time barred from bringing negligence and breach of contract claims against it. Quality argues that, pursuant to General Statutes § 52-584, a plaintiff must bring a negligence claim within two years of the date of the discovery of the injury but no later than three years from the date of the alleged conduct. Additionally, Quality argues that, pursuant to General Statutes § 52-581, a plaintiff must bring a breach of contract action within three years if the action is based on an oral contract. Quality asserts that its work was completed no later than November 2, 2004, pursuant to an oral contract and, therefore, the statute of limitations had run when the plaintiff filed his action against Quality on September 23, 2009.
The plaintiff argues that summary judgment is inappropriate because there are genuine issues of material fact as to whether the statute of limitations tolled in this case. The plaintiff argues that his claims against Quality were instituted pursuant to General Statutes § 52-102b, which allows a plaintiff to assert any claim against an apportionment defendant notwithstanding any applicable statute of limitations. Further, the plaintiff argues that the statute of limitations on his claims against Quality did not begin to run until the plaintiff discovered or should have discovered the "actionable harm." Finally, the plaintiff asserts that an issue of material fact exists as to whether the contract between BCG, Gebo and Quality was an executory contract.
In response to the plaintiff's objection, Quality argues that it is not an apportionment defendant, but rather a third-party defendant pursuant to General Statutes § 52-102a. Further, Quality argues that the plaintiff's breach of contract claim is actually a negligence claim and the plaintiff is barred from bringing the claim pursuant to the Connecticut Supreme Court's ruling in Gazo v. Stamford, 255 Conn. 245, 517, 765 A.2d 505 (2001). The plaintiff responds that the language utilized in the motion to implead indicates that Quality is an apportionment defendant and that his claim in the twenty-second count of the complaint is for breach of contract.
At oral argument on August 23, 2010, Quality added the additional argument that it is entitled to judgment on the breach of contract claim because there is no proof that the plaintiff was an intended third-party beneficiary. The plaintiff responded by way of a supplemental surreply on September 10, 2010, in which he asserts that there is a genuine issue of material fact with respect to the intentions of the parties based on BCG's answer to a request for admission.
I
The court begins with the issue of whether Quality is an apportionment defendant or a third-party defendant in this action. In order to make this determination, it is necessary to understand the distinction between a third-party complaint and an apportionment complaint.
Third-party complaints are governed by § 52-102a, which provides in subsection (a): "A defendant in any civil action may move the court for permission as a third-party plaintiff to serve a writ, summons and complaint upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff's claim against him." In contrast, apportionment complaints are governed by § 52-102b. Section 52-102b(a) provides: "A defendant in any civil action to which [General Statutes § ] 52-572h applies may serve a writ, summons and complaint upon a person not a party to the action who is or may be liable pursuant to said section for a proportionate share of the plaintiff's damages in which case the demand for relief shall seek an apportionment of liability . . . The person upon whom the apportionment complaint is served, hereinafter called the apportionment defendant, shall be a party for all purposes, including all purposes under Section 52-572h."
The plaintiff argues that the language utilized by BCG and Gebo in their motion to implead is indicative of their intent to add the subcontractors as apportionment defendants in this matter. In support of his position, the plaintiff cites Dizeno v. Daniels, Superior Court, judicial district of Fairfield, Docket No. CV 04 0409196 (December 1, 2004, Skolnick, J.). In that case, the court, Skolnick, J., noted that "[t]he noticeable difference between §§ 52-102a and 52-102b is that § 52-102a impleads a non-party because of liability to the defendant, while § 52-102b impleads a non-party because of liability for a share of the plaintiff's damages." Id.
In the present case, BCG and Gebo's motion for permission to implead opens with the following language: "Pursuant to . . . Practice Book [§ ]10-11, the defendants, BCG Developers, LLC and Brian C. Gebo, hereby move the Court for permission, as Third-Party Plaintiffs, to serve a Writ, Summons Complaint, as per the attached proposed Third-Party Complaint, upon the following subcontractors . . ." The motion concludes by stating that the subcontractors "are not parties to this action but . . . are or may be liable for all or part of the plaintiff's claims." The eighth count of BCG and Gebo's complaint, titled "Third Party Complaint," is directed at Quality. The third-party complaint alleges that Quality's negligence was the primary, direct and immediate cause of the plaintiff's damages. Notably, the paragraph nineteen of the eighth count contains the allegation that "[i]f the plaintiff is entitled to recovery as against [BCG and Gebo] with respect to these damages they in turn are entitled to recovery over and against and to be indemnified by Quality Insulation, Inc."
While the motion to implead may be unclear as to whether the subcontractors are third-party or apportionment defendants, the language of the third-party complaint is explicit. BCG and Gebo claim that Quality is liable to them to the extent that the plaintiff is entitled to recover against BCG and Gebo. Thus, BCG and Gebo's allegations are governed by § 52-102a and Quality is a third-party defendant pursuant to that section.
II
Having determined that Quality is a third-party defendant in this action, the court turns to the issue of whether the plaintiff's negligence claim against Quality is time barred by § 52-584. Section 52-584 provides: "No action to recover damages for injury 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 . . ." Quality argues that the "act complained of" occurred no later than July 5, 2005, and, therefore, the latest that the plaintiff could have brought his negligence claim would have been July 5, 2008. The plaintiff responds that the time limit imposed by § 52-584 does not begin running until the plaintiff discovers or should have discovered the harm complained of, which, in this case, was not until BCG and Gebo brought their third-party complaint against Quality.
In Barrett v. Montesano, 269 Conn. 787, 793, 849 A.2d 839 (2004), the Connecticut Supreme Court "took the opportunity to restate the correct legal standard by which to evaluate the timeliness of causes of action in negligence. The limitation period for actions in negligence begins to run on the date when the injury is first discovered or in the exercise of reasonable care should have been discovered . . . In this regard, the term `injury' is synonymous with `legal injury' or `actionable harm.' `Actionable harm' occurs when the plaintiff discovers, or in the exercise of reasonable care, should have discovered the essential elements of a cause of action . . . A breach of duty by the defendant and a causal connection between the defendant's breach of duty and the resulting harm to the plaintiff are essential elements of a cause of action in negligence; they are therefore necessary ingredients for `actionable harm.' . . . Furthermore, `actionable harm' may occur when the plaintiff has knowledge of facts that would put a reasonable person on notice of the nature and extent of an injury, and that the injury was caused by the negligent conduct of another . . . In this regard, the harm complained of need not have reached its fullest manifestation in order for the limitation period to begin to run; a party need only have suffered some form of `actionable harm.' . . . Unlike the two year limitation section of § 52-584, the repose portion of § 52-584 which provides that `no action may be brought more than three years from the date of the act or omission complained of' bars the bringing of suit more than three years after the alleged negligent conduct of a defendant regardless of when a plaintiff discovers the proximate cause of his harm or any other essential element of a negligence cause of action." (Citations omitted; internal quotation marks omitted.)
"[T]he relevant date of the act or omission complained of, as that phrase is used in § 52-584, is the date when the negligent conduct of the defendant occurs and . . . not the date when the plaintiff first sustains damage . . . Therefore, an action commenced more than three years from the date of the negligent act or omission complained of is barred by the statute of limitations contained in § 52-584, regardless of whether the plaintiff had not, or in the exercise of [reasonable] care, could not reasonably have discovered the nature of the injuries within that time period." (Internal quotation marks omitted.) Martinelli v. Fusi, 290 Conn. 347, 355, 963 A.2d 640 (2009).
In the present case, the plaintiff's complaint does not contain any allegations with respect to when Quality completed its work at the house. Quality submits evidence in the form of two affidavits that state that Quality's work on the house was completed in early July 2005. Affidavit of John Caisse, May 25, 2010, ¶ 7 (stating that the work was completed on July 5, 2005); Affidavit of David Tavernier, May 10, 2010, ¶ 7 (stating that Quality performed work on the house "in mid to late June 2005 through early July 2005"). The plaintiff has not submitted any evidence that demonstrates that the date of completion is a disputed factual issue. Instead, the plaintiff argues that the time limit established by § 52-584 did not begin to run until the plaintiff should have reasonably discerned the actionable harm. This is not the standard in the state of Connecticut.
Quality has met its burden of establishing that there is no genuine issue of material fact with respect to the act complained of, which is Quality's construction and installation of the hearth extension, hearth tile, fire stop spacer, insulation and fireplace refractory. The relevant date of the act is early July 2005, and, therefore, the repose portion of § 52-584 barred an action for negligence against Quality in July 2008. The plaintiff did not bring his negligence claim against Quality until September 23, 2009, which is well past the three-year limitation. Accordingly, Quality is entitled to summary judgment on the twenty-first count of the fourth amended revised complaint.
III
With respect to the twenty-second count, Quality argues that the plaintiff's breach of contract claim is time barred by § 52-581(a), which provides, in relevant part: "No action founded upon any express contract or agreement which is not reduced to writing, or of which some note or memorandum is not made in writing and signed by the party to be charged therewith or his agent, shall be brought but within three years after the right of action accrues." In response, the plaintiff argues that § 52-581 is only applicable to executory oral contracts and that the executed contract at issue in the present case is subject, instead, to the six-year statute of limitations provided in General Statutes § 52-576. Section 52-576(a) provides, in relevant part: "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 . . ."
These two statutes have been frequently discussed in Connecticut jurisprudence. A statute setting a limitation of actions upon oral contracts has been on the books of this state since 1771. A statute setting a limitation on actions for written contracts has been on the books since the statutory revisions of 1821. This legislative history is succinctly described in Hitchcock v. Union New Haven Trust Co., 134 Conn 246, 257-59 (1947). These statutes are the precursors of §§ 52-581 and 52-576. "[The Appellate Court] has addressed the distinction between §§ 52-581 and 52-576. These two statutes, each establishing a different period of limitation, can both be interpreted to apply to actions on oral contracts. Our Supreme Court has distinguished the statutes, however, by construing § 52-581, the three year statute of limitations, as applying only to executory contracts . . . A contract is executory when neither party has fully performed its contractual obligations and is executed when one party has fully performed its contractual obligations . . . It is well established, therefore, that the issue of whether a contract is oral is not dispositive of which statute applies. Thus, the . . . argument that § 52-581 automatically applies to the oral contract between the parties is incorrect. The determinative question is whether the contract was executed." (Emphasis in original; internal quotation marks omitted.) Bagoly v. Riccio, 102 Conn.App. 792, 799, 927 A.2d 950, cert. denied, 284 Conn. 931, 934 A.2d 246 (2007).
In the present case, Quality argues that its contract was executory because the plaintiff alleges that Quality failed to complete its contract with respect to the house. The affidavit of John Caisse, however, establishes that the bill for Quality's work was paid by Gebo no later than August 9, 2005. Affidavit of John Caisse, May 25, 2010, ¶ 9; see also Affidavit of David Tavernier, May 10, 2010, ¶ 7 ("Quality sent Gebo invoices for the work, which were paid"). Quality's own evidence establishes that at least one party, Gebo, fully performed its contractual obligations and, therefore, the contract in the present case is executed. Accordingly, the three-year statute of limitation provided in § 52-581 is not applicable to the present case and Quality is not entitled to summary judgment on this ground.
IV
Quality claims that it is entitled to judgment on the twenty-second count for the additional reason that the breach of contract-third-party beneficiary claim is actually a negligence claim "cloaked in contract garb" and, therefore, also barred by § 52-584. In making this claim, Quality relies on the Connecticut Supreme Court's decision in Gazo v. Stamford, supra, 255 Conn. 245. In Gazo, the Supreme Court stated that "[j]ust as [p]utting a constitutional tag on a nonconstitutional claim will no more change its essential character than calling a bull a cow will change its gender . . . putting a contract tag on a tort claim will not change its essential character. An action in contract is for the breach of a duty arising out of a contract; an action in tort is for a breach of duty imposed by law. [W]hen the claim is one for personal injury, the decision usually has been that the gravamen of the action is the misconduct and the damage, and that it is essentially one of tort, which the plaintiff cannot alter by his pleading . . . It is true, of course, that out of a contractual relationship a tort liability, as in negligence, may arise." (Citations omitted; internal quotation marks omitted.) Id., 263.
In the present case, the plaintiff clearly alleges that his injuries arise out of the breach of contractual duties. The plaintiff alleges that Quality "contracted with and was hired by the defendants, BCG and Gebo, to construct and install the hearth extensions, hearth tile, fire stop spacer, insulation and fireplace refractory." Fourth Amended Revised Complaint, Twenty-Second Count, ¶ 5. Additionally, the plaintiff alleges that "BCG, Gebo and . . . Quality . . . intended by the terms of their contract that . . . Quality . . . should assume a direct obligation to the buyer of the property for the work that it did, and accordingly the plaintiff was a third party beneficiary to the contract between BCG, Gebo and Quality . . ." Fourth Amended Revised Complaint, Twenty-Second Count, ¶ 6. Further, the plaintiff alleges that Quality "failed to adhere to the terms of the contract" in a variety of ways. Fourth Amended Revised Complaint, Twenty-Second Count, ¶ 7. Finally, the plaintiff alleges that "[a]s a result of . . . Quality's . . . breach of contract, the plaintiff paid to the defendants, BCG and Gebo, far more money for the construction of the house than it was reasonably worth, and the plaintiff has expended and will have to expend, large sums of money to make repairs to the house and the land it sits upon. Moreover, the fair market value of the house and property have been reduced due to the faulty construction." Fourth Amended Revised Complaint, Twenty-Second Count, ¶ 8. Quality has not submitted any evidence to support its argument that the twenty-second count is, in fact, a negligence count, and, viewing the allegations in the light most favorable to the plaintiff, the court must conclude that this is a breach of contract claim. Quality is not entitled to summary judgment on this ground.
V
At oral argument, Quality added the additional argument that summary judgment should be granted on the twenty-second count of the complaint because the plaintiff was not a third-party beneficiary to the contract between itself and BCG/Gebo.
"The law regarding the creation of contract rights in third parties in Connecticut is . . . well settled . . . [T]he ultimate test to be applied [in determining whether a person has a right of action as a third party beneficiary] is whether the intent of the parties to the contract was that the promisor should assume a direct obligation to the third party [beneficiary] and . . . that intent is to be determined from the terms of the contract read in the light of the circumstances attending its making, including the motives and purposes of the parties . . . Although we explained that it is not in all instances necessary that there be express language in the contract creating a direct obligation to the claimed third party beneficiary . . . we emphasized that the only way a contract could create a direct obligation between a promisor and a third party beneficiary would have to be, under our rule, because the parties to the contract so intended . . .
"The requirement that both contracting parties must intend to confer enforceable rights in a third party rests, in part at least, on the policy of certainty in enforcing contracts. That is, each party to a contract is entitled to know the scope of his or her obligations thereunder. That necessarily includes the range of potential third persons who may enforce the terms of the contract. Rooting the range of potential third parties in the intention of both parties, rather than in the intent of just one of the parties, is a sensible way of minimizing the risk that a contracting party will be held liable to one whom he neither knew, nor legitimately could be held to know, would ultimately be his contract obligee." (Internal quotation marks omitted.) Wasniewski v. Quick Reilly, Inc., 292 Conn. 98, 109-10, 971 A.2d 8 (2009). "(T)he fact that a person is a forseeable beneficiary of a contract is not sufficient for him to claim rights as a third party beneficiary. To import the concept of foreseeability into the law governing contracts, which is premised on the concept that mutual obligations entered into voluntarily should be enforced, would significantly reduce contracting parties' ability to control, through the negotiated exchange of promises and consideration, the scope of their contractual duties and obligations." Grigerik v. Sharpe, 247 Conn. 293, 316-18 (1998).
In the present case, Quality argues that it is entitled to judgment on the breach of contract-third-party beneficiary claim because there is no evidence that the plaintiff was an intended beneficiary of the contract between Quality and BCG/Gebo. In support of its motion, Quality submits supplemental affidavits from John Caisse and David Tavernier that state that it was their understanding that the work completed by Quality would be for a "spec" house to market to the general public upon completion of the project. Supplemental Affidavit of John Caisse, August 23, 2010, ¶ 2; Supplemental Affidavit of David Tavernier, August 23, 2010, ¶ 2. The affidavits also state that no third-party purchaser was identified at the time the contract was made between BCG and Quality. Supplemental Affidavit of John Caisse, August 23, 2010, ¶ 2; Supplemental Affidavit of David Tavernier, August 23, 2010, ¶ 2.
In response, the plaintiff submits the answer to a request for admission from BCG, in which BCG states that "[w]ith respect to each of the . . . subcontractors, it was my intent, and I believed that it was the intent of each subcontractor, that the contracts or agreements that I made with each subcontractor for the work performed or the materials supplied would extend to the purchaser of [the house]." The plaintiff argues that this admission creates an issue of fact as to whether the plaintiff was an intended third-party beneficiary to the contract.
The affidavits submitted by Quality in support of its motion show that the plaintiff was not identified as a third-party beneficiary at the time the contract was created between BCG, Gebo and Quality. At best, the admission submitted by the plaintiff establishes that one party, BCG, intended the contract to benefit a potential purchaser. BCG's belief that Quality also intended the contract to benefit a purchaser does not create an issue of fact in light of the direct affidavit evidence presented by Quality. Quality's affidavits establish that it did not intend the contract to benefit the plaintiff, and the court cannot conclude on the basis of the evidence submitted by the plaintiff that a genuine issue of material fact exists as to this fact. Thus, Quality is entitled to judgment on the twenty-second count.
CONCLUSION
Based on the foregoing, the motion for summary judgment is granted with respect to both the twenty-first and the twenty-second counts.
MEMORANDUM OF DECISION RE MOTION TO STRIKE #251 (USA BASEMENT)
This case arises out of the purchase of a home by the plaintiff, Edward Gwozdz. The plaintiff originally brought this action against BCG Development, LLC (BCG) and Brian C. Gebo. On May 29, 2009, BCG and Gebo filed a motion for permission to implead eleven subcontractors. On July 6, 2009, the court, Martin, J., granted the motion. USA Basement LLC (USA) was among the parties added to the action. On September 23, 2009, the plaintiff filed a request for leave to amend and amended complaint in order to "plead over" the subcontractors, including USA.
The plaintiff's operative complaint, the fourth amended revised complaint, was filed on January 25, 2010. On July 22, 2010, USA moved for summary judgment on the twenty-ninth count of the complaint. On August 16, 2010, the plaintiff filed an objection to the motion for summary judgment. On August 18, 2010, USA filed a memorandum of law in reply to the plaintiff's objection. Oral argument was heard on the motion for summary judgment on August 23, 2010.
Subsequent to oral argument, on August 23, 2010, USA filed a supplemental memorandum in support of its motion for summary judgment. The plaintiff filed a supplement to his objection on September 10, 2010. On September 14, 2010, USA moved to strike the plaintiff's supplemental objection on the ground that the plaintiff sought to amend the factual record for summary judgment after oral argument.
The plaintiff's supplemental objection contains the answer to a request for admission directed at BCG, in which BCG states that "[w]ith respect to each of the . . . subcontractors, it was my intent, and I believed that it was the intent of each subcontractor, that the contracts or agreements that I made with each subcontractor for the work performed or the materials supplied would extend to the purchaser of [the house]." USA asserts that the plaintiff served the requests on BCG on August 11, 2010, which was two weeks prior to oral argument on the motion for summary judgment. USA argues that the plaintiff never mentioned at argument that he sought to raise the new factual issues that resulted from BCG's responses to the requests for admission. The plaintiff's supplemental objection, however, states that BCG did not file its answers to the requests until September 8, 2010.
The court recognizes that the plaintiff's submission was not made in accordance with the procedure established by Practice Book § 17-45. However, "[t]he design of [the Practice Book] rules being to facilitate business and advance justice, they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice." Practice Book § 1-8. In light of the fact that BCG's responses were not filed until after oral argument, the court finds that it would be unjust not to consider the evidence on the motion for summary judgment. The motion to strike is denied.
Practice Book § 17-45 provides, in relevant part: "[A motion for summary judgment] shall be placed on the short calendar to be held not less than fifteen days following the filing of the motion and the supporting materials, unless the judicial authority otherwise directs . . . Any adverse party shall at least five days before the date the motion is to be considered on the short calendar file opposing affidavits and other available documentary evidence. Affidavits, and other documentary proof not already a part of the file, shall be filed and served as are pleadings."
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #222 (USA BASEMENT) Count 29 FACTS
This action arises out of the purchase of a home by the plaintiff, Edward Gwozdz. The plaintiff originally brought this action against BCG Development, LLC (BCG) and Brian C. Gebo. The plaintiff's original complaint alleged causes of action for negligence, breach of contract, breach of warranty, misrepresentation, violation of the New Home Construction Act, violation of the Connecticut Unfair Trade Practices Act and piercing the corporate veil. The complaint was served on February 15, 2008 and had a return date of March 11, 2008. On May 29, 2009, BCG and Gebo filed a motion for permission to implead eleven subcontractors. On July 6, 2009, the court, Martin, J., granted the motion. USA Basement, LLC (USA) was among the parties added to the action. On September 23, 2009, the plaintiff filed a request for leave to amend and amended complaint in order to "plead over" the subcontractors, including USA.
The plaintiff's operative complaint, the fourth amended revised complaint, was filed on January 25, 2010. The twenty-ninth count is brought by the plaintiff against USA and alleges a breach of contract — third-party beneficiary claim. On July 22, 2010, USA moved for summary judgment on the twenty-ninth count of the complaint on the ground that the plaintiff was not a third-party beneficiary to the contract between USA and BCG. On August 16, 2010, the plaintiff filed an objection to the motion for summary judgment. On August 18, 2010, USA filed a memorandum of law in reply to the plaintiff's objection and on August 23, 2010, USA filed a supplemental memorandum in support of its motion for summary judgment. The plaintiff filed a supplement to his objection on September 10, 2010.
USA moved to strike the plaintiff's supplemental memorandum on September 14, 2010. The court denied the motion to strike based on the reasoning set forth in its memorandum of law regarding that motion. For the purposes of this motion for summary judgment, the court will consider the admissible evidence presented by the plaintiff's supplement to his objection.
The plaintiff alleges the following facts in the twenty-ninth count of his complaint. On December 30, 2006, the plaintiff entered into a written agreement with BCG and Gebo to purchase a newly constructed single-family dwelling unit located at 321 Starkweather Road, Plainfield, Connecticut (the house). BCG and Gebo acted as general contractor for the construction of the house and, as inducement for the plaintiff to enter into the agreement with them, BCG and Gebo provided the plaintiff with a list of "general specifications" for the house, as well as a written "builder warranty." A closing took place on February 5, 2007, and on that date BCG tendered title of the house to the plaintiff.
USA contracted with and was hired by BCG and Gebo to damp proof and water proof the foundation of the house. USA had exclusive control over the damp proofing and water proofing of the foundation. BCG, Gebo and USA intended by the terms of their contract that USA should assume a direct obligation to the buyer of the property for the work that USA completed and, accordingly, the plaintiff was a third-party beneficiary to the contract. USA failed to adhere to the terms of its contract in that USA performed work that failed to meet code and failed to damp proof or water proof the foundation of the house. As a result of USA's breach of contract, the plaintiff paid BCG and Gebo far more money for the construction of the house than it was reasonably worth and the plaintiff has expended and will have to expend large sums of money to make repairs to the house. Further, the fair market value of the house and property have been reduced due to the faulty construction.
DISCUSSION
"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." (Internal quotation marks omitted.) Durrant v. Board of Education, 284 Conn. 91, 99-100 n. 7, 931 A.2d 859 (2007). "Summary 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).
"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).
USA argues that it is entitled to judgment on the twenty-ninth count, breach of contract-third-party beneficiary, because the plaintiff was not an intended third-party beneficiary of the contract between USA and BCG. USA argues that it completed the work on the house prior to the plaintiff's purchase of the house and that at the time of the work USA did not intend the plaintiff to be a beneficiary. USA submits invoices and affidavits in support of the motion and argues that the documents show that the plaintiff was never identified as a beneficiary of USA's work.
The plaintiff argues that a genuine issue of material fact exists as to whether the plaintiff was a third-party beneficiary of the contract between USA and BCG/Gebo. The plaintiff asserts that BCG has admitted that it believed that USA intended to benefit the plaintiff, which creates a genuine issue of material fact.
"The law regarding the creation of contract rights in third parties in Connecticut is well settled . . . [T]he ultimate test to be applied [in determining whether a person has a right of action as a third party beneficiary] is whether the intent of the parties to the contract was that the promisor should assume a direct obligation to the third party [beneficiary] and . . . that intent is to be determined from the terms of the contract read in the light of the circumstances attending its making, including the motives and purposes of the parties . . . Although we explained that it is not in all instances necessary that there be express language in the contract creating a direct obligation to the claimed third party beneficiary . . . we emphasized that the only way a contract could create a direct obligation between a promisor and a third party beneficiary would have to be, under our rule, because the parties to the contract so intended . . .
"The requirement that both contracting parties must intend to confer enforceable rights in a third party rests, in part at least, on the policy of certainty in enforcing contracts. That is, each party to a contract is entitled to know the scope of his or her obligations thereunder. That necessarily includes the range of potential third persons who may enforce the terms of the contract. Rooting the range of potential third parties in the intention of both parties, rather than in the intent of just one of the parties, is a sensible way of minimizing the risk that a contracting party will be held liable to one whom he neither knew, nor legitimately could be held to know, would ultimately be his contract obligee." (Internal quotation marks omitted.) Wasniewski v. Quick Reilly, Inc., 292 Conn. 98, 109-10, 971 A.2d 8 (2009). "(T)he fact that a person is a forseeable beneficiary of a contract is not sufficient for him to claim rights as a third party beneficiary. To import the concept of foreseeability into the law governing contracts, which is premised on the concept that mutual obligations entered into voluntarily should be enforced, would significantly reduce contracting parties' ability to control, through the negotiated exchange of promises and consideration, the scope of their contractual duties and obligations." Grigerik v. Sharpe, 247 Conn. 293, 316-18 (1998).
In the present case, USA argues that it is entitled to judgment on the breach of contract — third-party beneficiary claim because the plaintiff was not an intended beneficiary of the contract between USA and BCG. In support of its motion, USA submits two invoices related to USA's work on the house that do not mention the plaintiff as a beneficiary. Further, USA submits the affidavit of Joseph Roderick, the sole member of USA. Affidavit of Joseph Roderick, July 17, 2010, ¶ 2. The affidavit states that it was Roderick's understanding that the work completed by USA would be for a "spec" house to sell to whomever chose to purchase it after the construction was complete. Affidavit of Joseph Roderick, July 17, 2010, ¶ 6. Further, Roderick's affidavit states that Gebo never identified any specific purchaser for the house prior to USA's completion of its work. Affidavit of Joseph Roderick, July 17, 2010, ¶ 6. Finally, the affidavit states that Roderick did not intend and never discussed with Gebo or BCG that the work completed by USA would benefit the plaintiff. Affidavit of Joseph Roderick, July 17, 2010, ¶ 8.
In response, the plaintiff submits the answer to a request for admission from BCG, in which BCG states that "[w]ith respect to each of the . . . subcontractors, it was my intent, and I believed that it was the intent of each subcontractor, that the contracts or agreements that I made with each subcontractor for the work performed or the materials supplied would extend to the purchaser of [the house]." The plaintiff argues that this admission creates an issue of fact as to whether the plaintiff was an intended third-party beneficiary to the contract.
The evidence submitted by USA in support of its motion shows that the plaintiff was not identified as a third-party beneficiary at the time the contract was created between USA and BCG. At best, the admission submitted by the plaintiff establishes that one party, BCG, intended the contract to benefit a potential purchaser. BCG's belief that USA also intended the contract to benefit a purchaser does not create an issue of fact in light of the direct affidavit evidence presented by USA. USA's evidence establishes that it did not intend the contract to benefit the plaintiff, and the court cannot conclude on the basis of the evidence submitted by the plaintiff that a genuine issue of material fact exists as to this fact. Thus, USA is entitled to judgment on the twenty-ninth count.
CONCLUSION CT Page 23581
Based on the foregoing, the motion for summary judgment is granted.
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #233 (ROBERT HAYES d/b/a HAYES BACKHOE SERVICES) Counts 11 and 12 FACTS
This action arises out of the purchase of a home by the plaintiff, Edward Gwozdz. The plaintiff originally brought this action against BCG Development, LLC (BCG) and Brian C. Gebo. The plaintiff's original complaint alleged causes of action for negligence, breach of contract, breach of warranty, misrepresentation, violation of the New Home Construction Act, violation of the Connecticut Unfair Trade Practices Act and piercing the corporate veil. The complaint was served on February 15, 2008 and had a return date of March 11, 2008. On May 29, 2009, BCG and Gebo filed a motion for permission to implead eleven subcontractors. On July 6, 2009, the court, Martin, J., granted the motion. Robert Hayes d/b/a Hayes Backhoe Services (Hayes) was among the parties added to the action. On September 23, 2009, the plaintiff filed a request for leave to amend and amended complaint in order to "plead over" the subcontractors, including Hayes.
The plaintiff's operative complaint, the fourth amended revised complaint, was filed on January 25, 2010. The eleventh and twelfth counts are brought by the plaintiff against Hayes and allege negligence and breach of contract — third-party beneficiary claims, respectively. On August 20, 2010, Hayes moved for summary judgment on the eleventh and twelfth counts of the complaint on the grounds that the plaintiff's claims were time barred and that the plaintiff was not a third-party beneficiary to the contract between Hayes and BCG. On September 16, 2010, the plaintiff filed an objection to the motion for summary judgment.
The plaintiff alleges the following facts in the eleventh and twelfth counts of his complaint. On December 30, 2006, the plaintiff entered into a written agreement with BCG and Gebo to purchase a newly constructed single-family dwelling unit located at 321 Starkweather Road, Plainfield, Connecticut (the house). BCG and Gebo acted as general contractor for the construction of the house and, as inducement for the plaintiff to enter into the agreement with them, BCG and Gebo provided the plaintiff with a list of "general specifications" for the house, as well as a written "builder warranty." A closing took place on February 5, 2007, and on that date BCG tendered title of the house to the plaintiff.
Hayes contracted with and was hired by BCG and Gebo to excavate the premises for the foundation, install the foundation, perform the rough grading at the site according to the specified land survey and specifications, remove tree stumps per the specifications and install the footing drains. Hayes had exclusive control over the construction of those items and rendered its services in an unskillful and negligent manner. Shortly after the plaintiff took possession of the house, the plaintiff discovered numerous, defective conditions, including issues with respect to the building drain clearouts, the foundation drainage, the basement foundation floor, the garage kneewall and the footing drains.
BCG, Gebo and Hayes intended by the terms of their contract that Hayes should assume a direct obligation to the buyer of the property for the work that Hayes completed and, accordingly, the plaintiff was a third-party beneficiary to the contract. Hayes failed to adhere to the terms of its contract in that Hayes's work resulted in numerous defective conditions. As a result of Hayes's breach of contract and negligence, the plaintiff paid BCG and Gebo far more money for the construction of the house than it was reasonably worth and the plaintiff has expended and will have to expend large sums of money to make repairs to the house. Further, the fair market value of the house and property have been reduced due to the faulty construction.
DISCUSSION
"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." (Internal quotation marks omitted.) Durrant v. Board of Education, 284 Conn. 91, 99-100 n. 7, 931 A.2d 859 (2007). "Summary 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).
"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).
Hayes argues that the eleventh count, the plaintiff's negligence claim, is time barred by General Statutes § 52-584. Hayes argues the work he performed on the house was completed by November 2005, and the plaintiff did not assert his claims against Hayes until September 2009, which is past the three-year limitation set forth by § 52-584. Further, Hayes asserts that he is entitled to judgment on the twelfth count, the breach of contract — third-party beneficiary count, because, pursuant to General Statutes § 52-581, a plaintiff must bring a breach of contract action within three years if the action is based on an oral contract. Hayes asserts that his work was completed no later than November 2005 pursuant to an oral contract and, therefore, when the plaintiff filed his action in September 2009, the statute of limitations had run. Finally, Hayes argues that he is entitled to judgment on the twelfth count because the plaintiff was not an intended third-party beneficiary of the contract between Hayes and BCG.
Hayes asserts the additional argument that "the Twelfth Count in the plaintiff's Fourth Amended Revised Complaint is actually a negligence claim that the plaintiff attempts to disguise as a contract claim so as to avoid the aforementioned statute of limitations. However, as stated below, the use of contract language to disguise a negligence claim will not convert the claim into one sounding in contract." Memorandum of Law in Support of the Defendant Robert Hayes d/b/a Hayes Backhoe Services' Motion for Summary Judgment, August 20, 2010, p. 4. Hayes does not, however, elaborate on this argument, nor does Hayes provide any authority in support of the argument. "Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly . . . Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned." (Internal quotation marks omitted.) Smith v. Andrews, 289 Conn. 61, 80, 959 A.2d 597 (2008). The court deems this argument abandoned.
The plaintiff argues that summary judgment is inappropriate because there are genuine issues of material fact as to whether the statute of limitations tolled in this case. The plaintiff argues that his claims against Hayes were instituted pursuant to General Statutes § 52-102b, which allows a plaintiff to assert any claim against an apportionment defendant notwithstanding any applicable statute of limitations or repose. Further, the plaintiff argues that the statute of limitations on his claims against Hayes did not begin to run until the plaintiff discovered or should have discovered the "actionable harm." The plaintiff asserts that an issue of material fact exists as to whether the contract between BCG, Gebo and Hayes was an executory contract. Finally, the plaintiff argues that a genuine issue of material fact exists as to whether the plaintiff was a third-party beneficiary of the contract between BCG, Gebo and Hayes.
I
The court begins with the issue of whether the plaintiff's claims against Hayes were instituted pursuant to § 52-102b, the apportionment statute. In order to make this determination, it is necessary to understand the distinction between a third-party complaint and an apportionment complaint.
Third-party complaints are governed by General Statutes § 52-102a, which provides in subsection (a): "A defendant in any civil action may move the court for permission as a third-party plaintiff to serve a writ, summons and complaint upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff's claim against him." In contrast, apportionment complaints are governed by § 52-102b. Section 52-102b(a) provides: "A defendant in any civil action to which [General Statutes § ]52-572h applies may serve a writ, summons and complaint upon a person not a party to the action who is or may be liable pursuant to said section for a proportionate share of the plaintiff's damages in which case the demand for relief shall seek an apportionment of liability . . . The person upon whom the apportionment complaint is served, hereinafter called the apportionment defendant, shall be a party for all purposes, including all purposes under section 52-572h." "The noticeable difference between §§ 52-102a and 52-102b is that § 52-102a impleads a non-party because of liability to the defendant, while § 52-102b impleads a non-party because of liability for a share of the plaintiff's damages." Dizeno v. Daniels, Superior Court, judicial district of Fairfield, Docket No. CV 04 0409196 (December 1, 2004, Skolnick, J.).
The plaintiff argues that BCG and Gebo filed an apportionment complaint against Hayes, and less than a month later the plaintiff pleaded over Hayes by filing his first amended revised complaint. The court finds, however, that BCG and Gebo's complaint against the subcontractors in this case was a third-party complaint, not an apportionment complaint.
BCG and Gebo's motion for permission to implead opens with the following language: "Pursuant to . . . Practice Book [ § ]10-11, the defendants, BCG Developers, LLC and Brian C. Gebo, hereby move the Court for permission, as Third-Party Plaintiffs, to serve a Writ, Summons Complaint, as per the attached proposed Third-Party Complaint, upon the following subcontractors . . ." The motion concludes by stating that the subcontractors "are not parties to this action but . . . are or may be liable for all or part of the plaintiff's claims." The third count of BCG and Gebo's complaint, titled "Third Party Complaint," is directed at Hayes. The third-party complaint alleges that Hayes's negligence was the primary, direct and immediate cause of the plaintiff's damages. Notably, the paragraph nineteen of the third count contains the allegation that "[i]f the plaintiff is entitled to recovery as against [BCG and Gebo] with respect to these damages they in turn are entitled to recovery over and against and to be indemnified by Robert Hayes, d/b/a Hayes Backhoe Service."
While the motion to implead may be unclear as to whether the subcontractors are third-party or apportionment defendants, the language of the third-party complaint is explicit. BCG and Gebo claim that Hayes is liable to them to the extent that the plaintiff is entitled to recover against BCG and Gebo. Thus, BCG and Gebo's allegations are governed by § 52-102a and Hayes is a third-party defendant pursuant to that section.
II
Having determined that Hayes is a third-party defendant in this action, the court turns to the issue of whether the plaintiff's negligence claim against Hayes is time barred by § 52-584. Hayes argues that the plaintiff's negligence claim in the twenty-first count is time barred by § 52-584, which provides: "No action to recover damages for injury 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 . . ." Hayes argues that the "act complained of" occurred no later than November 2005, and, therefore, the plaintiff's negligence claim, which was brought against Hayes in September 2009, was untimely. The plaintiff responds that the time limit imposed by § 52-584 does not begin running until the plaintiff discovers or should have discovered the harm complained of, which, in this case, was not until BCG and Gebo brought their third-party complaint against Hayes.
In Barrett v. Montesano, 269 Conn. 787, 793, 849 A.2d 839 (2004), the Connecticut Supreme Court "took the opportunity to restate the correct legal standard by which to evaluate the timeliness of causes of action in negligence. The limitation period for actions in negligence begins to run on the date when the injury is first discovered or in the exercise of reasonable care should have been discovered . . . In this regard, the term `injury' is synonymous with `legal injury' or `actionable harm.' `Actionable harm' occurs when the plaintiff discovers, or in the exercise of reasonable care, should have discovered the essential elements of a cause of action . . . A breach of duty by the defendant and a causal connection between the defendant's breach of duty and the resulting harm to the plaintiff are essential elements of a cause of action in negligence; they are therefore necessary ingredients for `actionable harm.' . . . Furthermore, `actionable harm' may occur when the plaintiff has knowledge of facts that would put a reasonable person on notice of the nature and extent of an injury, and that the injury was caused by the negligent conduct of another . . . In this regard, the harm complained of need not have reached its fullest manifestation in order for the limitation period to begin to run; a party need only have suffered some form of `actionable harm.' . . . Unlike the two year limitation section of § 52-584, the repose portion of § 52-584 which provides that `no action may be brought more than three years from the date of the act or omission complained of' bars the bringing of suit more than three years after the alleged negligent conduct of a defendant regardless of when a plaintiff discovers the proximate cause of his harm or any other essential element of a negligence cause of action." (Citations omitted; internal quotation marks omitted.)
"[T]he relevant date of the act or omission complained of, as that phrase is used in § 52-584, is the date when the negligent conduct of the defendant occurs and . . . not the date when the plaintiff first sustains damage . . . Therefore, an action commenced more than three years from the date of the negligent act or omission complained of is barred by the statute of limitations contained in § 52-584, regardless of whether the plaintiff had not, or in the exercise of [reasonable] care, could not reasonably have discovered the nature of the injuries within that time period." (Internal quotation marks omitted.) Martinelli v. Fusi, 290 Conn. 347, 355, 963 A.2d 640 (2009).
In the present case, the plaintiff's complaint does not contain any allegations with respect to when Hayes completed its work at the house. Hayes submits an affidavit that states that the work on the house was completed in November 2005. Affidavit of Robert Hayes, August 18, 2010, ¶ 11. The plaintiff did not submit any evidence that demonstrates that the date of completion is a disputed factual issue. Instead, the plaintiff argues that the time limit established by § 52-584 did not begin to run until the plaintiff should have reasonably discerned the actionable harm. This is not the standard in the state of Connecticut.
Hayes has met his burden of establishing that there is no genuine issue of material fact with respect to the act complained of, which is Hayes's work on the house. The relevant date of the act is November 2005, and, therefore, the repose portion of § 52-584 barred an action for negligence against Hayes in November 2008. The plaintiff did not bring his negligence claim against Hayes until September 23, 2009, which is well past the three-year limitation. Accordingly, Hayes is entitled to summary judgment on the eleventh count of the fourth amended revised complaint.
III
Hayes argues that the plaintiff's breach of contract claim in the twelfth count is time barred by § 52-581(a), which provides, in relevant part: "No action founded upon any express contract or agreement which is not reduced to writing, or of which some note or memorandum is not made in writing and signed by the party to be charged therewith or his agent, shall be brought but within three years after the right of action accrues." In response, the plaintiff argues that § 52-581 is only applicable to executory oral contracts and that the executed contract at issue in the present case is subject, instead, to the six-year statute of limitations provided in General Statutes § 52-576. Section 52-576(a) provides, in relevant part: "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 . . ."
These two statutes have been frequently discussed in Connecticut jurisprudence. A statute setting a limitation of actions upon oral contracts has been on the books of this state since 1771. A statute setting a limitation on actions for written contracts has been on the books since the statutory revisions of 1821. This legislative history is succinctly described in Hitchcock v. Union New Haven Trust Co., 134 Conn. 246, 257-59 (1947). These statutes were the precursors of §§ 52-581 and 52-576. "[The Appellate Court] has addressed the distinction between §§ 52-581 and 52-576. These two statutes, each establishing a different period of limitation, can both be interpreted to apply to actions on oral contracts. Our Supreme Court has distinguished the statutes, however, by construing § 52-581, the three year statute of limitations, as applying only to executory contracts . . . A contract is executory when neither party has fully performed its contractual obligations and is executed when one party has fully performed its contractual obligations . . . It is well established, therefore, that the issue of whether a contract is oral is not dispositive of which statute applies. Thus, the . . . argument that § 52-581 automatically applies to the oral contract between the parties is incorrect. The determinative question is whether the contract was executed." (Emphasis in original; internal quotation marks omitted.) Bagoly v. Riccio, 102 Conn.App. 792, 799, 927 A.2d 950, cert. denied, 284 Conn. 931, 934 A.2d 246 (2007).
In the present case, Hayes argues that the breach of contract claim is time barred because Hayes had an oral contract with BCG and the plaintiff failed to commence his action against Hayes within the time standards set in § 52-581. Hayes also asserts, however, that he completed all work on the house by November 2005. Memorandum of Law in Support of the Defendant Robert Hayes d/b/a Hayes Backhoe Services' Motion for Summary Judgment, August 20, 2010, p. 5. Hayes's affidavit supports this fact. Affidavit of Robert Hayes, August 18, 2010, ¶ 11. Hayes's own evidence establishes that at least one party, Hayes, performed their contractual obligations and, therefore, the contract in the present case is executed. Accordingly, the three-year statute of limitation provided in § 52-581 is not applicable to the present case and Hayes is not entitled to summary judgment on this ground.
IV
Hayes's final argument is that the plaintiff was not a third-party beneficiary to the contract between Hayes and BCG. "The law regarding the creation of contract rights in third parties in Connecticut is . . . well settled . . . [T]he ultimate test to be applied [in determining whether a person has a right of action as a third party beneficiary] is whether the intent of the parties to the contract was that the promisor should assume a direct obligation to the third party [beneficiary] and . . . that intent is to be determined from the terms of the contract read in the light of the circumstances attending its making, including the motives and purposes of the parties . . . Although we explained that it is not in all instances necessary that there be express language in the contract creating a direct obligation to the claimed third party beneficiary . . . we emphasized that the only way a contract could create a direct obligation between a promisor and a third party beneficiary would have to be, under our rule, because the parties to the contract so intended . . .
"The requirement that both contracting parties must intend to confer enforceable rights in a third party rests, in part at least, on the policy of certainty in enforcing contracts. That is, each party to a contract is entitled to know the scope of his or her obligations thereunder. That necessarily includes the range of potential third persons who may enforce the terms of the contract. Rooting the range of potential third parties in the intention of both parties, rather than in the intent of just one of the parties, is a sensible way of minimizing the risk that a contracting party will be held liable to one whom he neither knew, nor legitimately could be held to know, would ultimately be his contract obligee." (Internal quotation marks omitted.) Wasniewski v. Quick Reilly, Inc., 292 Conn. 98, 109-10, 971 A.2d 8 (2009). "(T)he fact that a person is a forseeable beneficiary of a contract is not sufficient for him to claim rights as a third party beneficiary. To import the concept of foreseeability into the law governing contracts, which is premised on the concept that mutual obligations entered into voluntarily should be enforced, would significantly reduce contracting parties' ability to control, through the negotiated exchange of promises and consideration, the scope of their contractual duties and obligations." Grigerik v. Sharpe, 247 Conn. 293, 316-18 (1998).
In the present case, Hayes argues that he is entitled to judgment on the breach of contract — third-party beneficiary claim because the contract between Hayes and BCG was a simple, oral contract and Hayes "neither knew the plaintiff nor could legitimately be held to know that he would ultimately be liable to the plaintiff under the terms of [the] oral contract . . ." Memorandum of Law in Support of the Defendant Robert Hayes d/b/a Hayes Backhoe Services' Motion for Summary Judgment, August 20, 2010, p. 7. In support of this argument, Hayes's affidavit states that during the creation of the oral contract Hayes never discussed or agreed with BCG or Gebo that Hayes would be liable to the plaintiff or any prospective purchaser for work performed at the property. Affidavit of Robert Hayes, August 18, 2010, ¶¶ 4, 5. Further, the affidavit states that Hayes never discussed with BCG or Gebo that the work on the house would be for the benefit of the plaintiff. Affidavit of Robert Hayes, August 18, 2010, ¶ 6.
In response, the plaintiff submits the answer to a request for admission from BCG, in which BCG states that "[w]ith respect to each of the . . . subcontractors, it was my intent, and I believed that it was the intent of each subcontractor, that the contracts or agreements that I made with each subcontractor for the work performed or the materials supplied would extend to the purchaser of [the house]." The plaintiff argues that this admission creates an issue of fact as to whether the plaintiff was an intended third-party beneficiary to the contract.
The affidavit submitted by Hayes in support of the motion shows that the plaintiff was not identified as a third-party beneficiary at the time the contract was created between Hayes and BCG. At best, the admission submitted by the plaintiff establishes that one party, BCG, intended the contract to benefit a potential purchaser. BCG's belief that Hayes also intended the contract to benefit a purchaser does not create an issue of fact in light of the direct affidavit evidence presented by Hayes. Hayes's affidavit establishes that Hayes did not intend the contract to benefit the plaintiff, and the court cannot conclude on the basis of the evidence submitted by the plaintiff that a genuine issue of material fact exists as to this fact. Hayes is entitled to judgment on the twelfth count.
CONCLUSION
Based on the foregoing, the motion for summary judgment is granted with respect to both the eleventh and twelfth counts.
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #220 (JOLLEY CONCRETE) Counts 15 and 16
FACTS
This action arises out of the purchase of a home by the plaintiff, Edward Gwozdz. The plaintiff originally brought this action against BCG Development, LLC (BCG) and Brian C. Gebo. The plaintiff's original complaint alleged causes of action for negligence, breach of contract, breach of warranty, misrepresentation, violation of the New Home Construction Act, violation of the Connecticut Unfair Trade Practices Act and piercing the corporate veil. The complaint was served on February 15, 2008 and had a return date of March 11, 2008. On May 29, 2009, BCG and Gebo filed a motion for permission to implead eleven subcontractors. On July 6, 2009, the court, Martin, J., granted the motion. Jolley Concrete, Inc. (Jolley) was among the parties added to the action. On September 23, 2009, the plaintiff filed a request for leave to amend and amended complaint in order to "plead over" the subcontractors, including Jolley.
The plaintiff's operative complaint, the fourth amended revised complaint, was filed on January 25, 2010. The fifteenth and sixteenth counts are brought by the plaintiff against Jolley and allege negligence and breach of contract — third-party beneficiary claims, respectively. On July 16, 2010, Jolley moved for summary judgment on the fifteenth and sixteenth counts of the complaint on the grounds that the plaintiff's claims were time barred and that the plaintiff was not a third-party beneficiary to the contract between Jolley and BCG. On August 16, 2010, the plaintiff filed an objection to the motion for summary judgment. On August 30, 2010, Jolley filed a supplemental memorandum in support of the motion for summary judgment and on September 10, 2010, the plaintiff filed a supplement to his objection.
The plaintiff alleges the following facts in the fifteenth and sixteenth counts of his complaint. On December 30, 2006, the plaintiff entered into a written agreement with BCG and Gebo to purchase a newly constructed single-family dwelling unit located at 321 Starkweather Road, Plainfield, Connecticut (the house). BCG and Gebo acted as general contractor for the construction of the house and, as inducement for the plaintiff to enter into the agreement with them, BCG and Gebo provided the plaintiff with a list of "general specifications" for the house, as well as a written "builder warranty." A closing took place on February 5, 2007, and on that date BCG tendered title of the house to the plaintiff.
Jolley contracted with and was hired by BCG and Gebo to supply concrete for the foundation walls and floors of the premises. Jolley had exclusive control over the sale of the concrete used in the construction of the walls and floors at the premises. After the plaintiff took possession of the house, the plaintiff discovered numerous defective conditions with the basement foundation and the garage kneewall.
BCG, Gebo and Jolley intended by the terms of their contract that Jolley should assume a direct obligation to the buyer of the property for the work that Jolley completed and, accordingly, the plaintiff was a third-party beneficiary to the contract. Jolley failed to adhere to the terms of its contract in that Jolley's work resulted in numerous defective conditions. As a result of Jolley's breach of contract and negligence, the plaintiff paid BCG and Gebo far more money for the construction of the house than it was reasonably worth and the plaintiff has expended and will have to expend large sums of money to make repairs to the house. Further, the fair market value of the house and property have been reduced due to the faulty construction.
DISCUSSION
"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." (Internal quotation marks omitted.) Durrant v. Board of Education, 284 Conn. 91, 99-100 n. 7, 931 A.2d 859 (2007). "Summary 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).
"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).
Jolley argues that the fifteenth count, the plaintiff's negligence claim, is time barred by General Statutes § 52-584. Jolley argues it delivered the concrete to the property on June 13, 2005, and the plaintiff did not assert his claims against Jolley until September 23, 2009, which is past the three-year statute of repose set forth by § 52-584. Further, Jolley asserts that it is entitled to judgment on the sixteenth count, the breach of contract — third-party beneficiary count, because the plaintiff was not an intended third-party beneficiary of the contract between Jolley and BCG.
The plaintiff argues that his claims against Jolley were instituted pursuant to General Statutes § 52-102b, which allows a plaintiff to assert any claim against an apportionment defendant notwithstanding any applicable statute of limitations. Further, the plaintiff argues that the statute of limitations on his claims against Jolley did not begin to run until the plaintiff discovered or should have discovered the "actionable harm." Finally, the plaintiff argues that a genuine issue of material fact exists as to whether the plaintiff was a third-party beneficiary of the contract between Jolley and BCG/Gebo. In response to the arguments with respect to § 52-102a, Jolley argues that it is not an apportionment defendant, but rather a third-party defendant pursuant to General Statutes § 52-102a.
I
The court begins with the issue of whether Jolley is an apportionment defendant or a third-party defendant in this action. In order to make this determination, it is necessary to understand the distinction between a third-party complaint and an apportionment complaint.
Third-party complaints are governed by § 52-102a, which provides in subsection (a): "A defendant in any civil action may move the court for permission as a third-party plaintiff to serve a writ, summons and complaint upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff's claim against him." In contrast, apportionment complaints are governed by § 52-102b. Section 52-102b(a) provides: "A defendant in any civil action to which [General Statutes § ]52-572h applies may serve a writ, summons and complaint upon a person not a party to the action who is or may be liable pursuant to said section for a proportionate share of the plaintiff's damages in which case the demand for relief shall seek an apportionment of liability . . . The person upon whom the apportionment complaint is served, hereinafter called the apportionment defendant, shall be a party for all purposes, including all purposes under section 52-572h."
The plaintiff argues that the language utilized by BCG and Gebo in their motion to implead is indicative of their intent to add the subcontractors as apportionment defendants in this matter. In support of his position, the plaintiff cites Dizeno v. Daniels, Superior Court, judicial district of Fairfield, Docket No. CV 04 0409196 (December 1, 2004, Skolnick, J.). In that case, the court, Skolnick, J., noted that "[t]he noticeable difference between §§ 52-102a and 52-102b is that § 52-102a impleads a non-party because of liability to the defendant, while § 52-102b impleads a non-party because of liability for a share of the plaintiff's damages." Id.
In the present case, BCG and Gebo's motion for permission to implead opens with the following language: "Pursuant to . . . Practice Book [ § ]10-11, the defendants, BCG Developers, LLC and Brian C. Gebo, hereby move the Court for permission, as Third-Party Plaintiffs, to serve a Writ, Summons Complaint, as per the attached proposed Third-Party Complaint, upon the following subcontractors . . ." The motion concludes by stating that the subcontractors "are not parties to this action but . . . are or may be liable for all or part of the plaintiff's claims." The fourth count of BCG and Gebo's complaint, titled "Third Party Complaint," is directed at Jolley. The third-party complaint alleges that Jolley's negligence was the primary, direct and immediate cause of the plaintiff's damages. Notably, the paragraph nineteen of the fourth count contains the allegation that "[i]f the plaintiff is entitled to recovery as against [BCG and Gebo] with respect to these damages they in turn are entitled to recovery over and against and to be indemnified by Jolley Concrete, Inc."
While the motion to implead may be unclear as to whether the subcontractors are third-party or apportionment defendants, the language of the third-party complaint is explicit. BCG and Gebo claim that Jolley is liable to them to the extent that the plaintiff is entitled to recover against BCG and Gebo. Thus, BCG and Gebo's allegations are governed by § 52-102a and Jolley is a third-party defendant pursuant to that section.
II
Having determined that Jolley is a third-party defendant in this action, the court turns to the issue of whether the plaintiff's negligence claim against Jolley is time barred by § 52-584. Jolley argues that the plaintiff's negligence claim in the fifteenth count is time barred by § 52-584, which provides: "No action to recover damages for injury 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 . . ." Jolley argues that the "act complained of" occurred no later than June 13, 2005, and, therefore, the plaintiff's claim is untimely because it was not asserted by the plaintiff until more than fifteen months after the expiration of the three-year statute of repose set forth in § 52-584. The plaintiff responds that the time limit imposed by § 52-584 does not begin running until the plaintiff discovers or should have discovered the harm complained of, which, in the present case, was not until BCG and Gebo brought their third-party complaint against Jolley.
In Barrett v. Montesano, 269 Conn. 787, 793, 849 A.2d 839 (2004), the Connecticut Supreme Court "took the opportunity to restate the correct legal standard by which to evaluate the timeliness of causes of action in negligence. The limitation period for actions in negligence begins to run on the date when the injury is first discovered or in the exercise of reasonable care should have been discovered . . . In this regard, the term `injury' is synonymous with `legal injury' or `actionable harm.' `Actionable harm' occurs when the plaintiff discovers, or in the exercise of reasonable care, should have discovered the essential elements of a cause of action . . . A breach of duty by the defendant and a causal connection between the defendant's breach of duty and the resulting harm to the plaintiff are essential elements of a cause of action in negligence; they are therefore necessary ingredients for `actionable harm.' . . . Furthermore, `actionable harm' may occur when the plaintiff has knowledge of facts that would put a reasonable person on notice of the nature and extent of an injury, and that the injury was caused by the negligent conduct of another . . . In this regard, the harm complained of need not have reached its fullest manifestation in order for the limitation period to begin to run; a party need only have suffered some form of `actionable harm.' . . . Unlike the two year limitation section of § 52-584, the repose portion of § 52-584 which provides that `no action may be brought more than three years from the date of the act or omission complained of' bars the bringing of suit more than three years after the alleged negligent conduct of a defendant regardless of when a plaintiff discovers the proximate cause of his harm or any other essential element of a negligence cause of action." (Citations omitted; internal quotation marks omitted.)
"[T]he relevant date of the act or omission complained of, as that phrase is used in § 52-584, is the date when the negligent conduct of the defendant occurs and . . . not the date when the plaintiff first sustains damage . . . Therefore, an action commenced more than three years from the date of the negligent act or omission complained of is barred by the statute of limitations contained in § 52-584, regardless of whether the plaintiff had not, or in the exercise of [reasonable] care, could not reasonably have discovered the nature of the injuries within that time period." (Internal quotation marks omitted.) Martinelli v. Fusi, 290 Conn. 347, 355, 963 A.2d 640 (2009).
In the present case, the plaintiff's complaint does not contain any allegations with respect to when Jolley completed its work at the house. Jolley submits evidence, including an affidavit from its vice president and invoices, that show that Jolley's last delivery of concrete to the house was made on June 13, 2005. Affidavit of John Searles, July 16, 2010, ¶¶ 6-11; Invoice, June 13, 2005, Attached as Jolley's Exhibit D. The plaintiff did not submit any evidence that demonstrates that the date of completion is a disputed factual issue. Instead, the plaintiff argues that the time limit established by § 52-584 did not begin to run until the plaintiff should have reasonably discerned the actionable harm. This is not the standard in the state of Connecticut.
Jolley has met its burden of establishing that there is no genuine issue of material fact with respect to the act complained of, which is Jolley's delivery of the concrete to the house. The relevant date of the last act complained of is June 13, 2005, and, therefore, the repose portion of § 52-584 barred an action for negligence against Jolley on June 13, 2008. The plaintiff did not bring his negligence claim against Jolley until September 23, 2009, which is well past the three-year limitation. Accordingly, Jolley is entitled to summary judgment on the fifteenth count of the fourth amended revised complaint.
III
The court now turns to the plaintiff's breach of contract — third-party beneficiary claim. "The law regarding the creation of contract rights in third parties in Connecticut is . . . well settled . . . [T]he ultimate test to be applied [in determining whether a person has a right of action as a third party beneficiary] is whether the intent of the parties to the contract was that the promisor should assume a direct obligation to the third party [beneficiary] and . . . that intent is to be determined from the terms of the contract read in the light of the circumstances attending its making, including the motives and purposes of the parties . . . Although we explained that it is not in all instances necessary that there be express language in the contract creating a direct obligation to the claimed third party beneficiary . . . we emphasized that the only way a contract could create a direct obligation between a promisor and a third party beneficiary would have to be, under our rule, because the parties to the contract so intended . . ."
"The requirement that both contracting parties must intend to confer enforceable rights in a third party rests, in part at least, on the policy of certainty in enforcing contracts. That is, each party to a contract is entitled to know the scope of his or her obligations thereunder. That necessarily includes the range of potential third persons who may enforce the terms of the contract. Rooting the range of potential third parties in the intention of both parties, rather than in the intent of just one of the parties, is a sensible way of minimizing the risk that a contracting party will be held liable to one whom he neither knew, nor legitimately could be held to know, would ultimately be his contract obligee." (Internal quotation marks omitted.) Wasniewski v. Quick Reilly, Inc., 292 Conn. 98, 109-10, 971 A.2d 8 (2009). "(T)he fact that a person is a forseeable beneficiary of a contract is not sufficient for him to claim rights as a third party beneficiary. To import the concept of foreseeability into the law governing contracts, which is premised on the concept that mutual obligations entered into voluntarily should be enforced, would significantly reduce contracting parties' ability to control, through the negotiated exchange of promises and consideration, the scope of their contractual duties and obligations." Grigerik v. Sharpe, 247 Conn. 293, 316-18 (1998).
In the present case, Jolley argues that it is entitled to judgment on the breach of contract — third-party beneficiary claim because the plaintiff was not an intended beneficiary of the contract between Jolley and BCG. In support of its motion, Jolley argues that none of the delivery tickets or invoices related to the work reference a third party. Further, Jolley submits the affidavit of John Searles, which states that Jolley never agreed or intended that anyone would be a third-party beneficiary of its agreement with Gebo. Affidavit of John Searles, July 16, 2010, ¶ 12. Further, Searles' affidavit states that Jolley had no knowledge of who, if anyone, the property was being built for or when it was to be completed or sold. Affidavit of John Searles, July 16, 2010, ¶ 13.
In response, the plaintiff submits the answer to a request for admission from BCG, in which BCG states that "[w]ith respect to each of the . . . subcontractors, it was my intent, and I believed that it was the intent of each subcontractor, that the contracts or agreements that I made with each subcontractor for the work performed or the materials supplied would extend to the purchaser of [the house]." The plaintiff argues that this admission creates an issue of fact as to whether the plaintiff was an intended third-party beneficiary to the contract.
The evidence submitted by Jolley in support of its motion shows that the plaintiff was not identified as a third-party beneficiary at the time the contract was created between Jolley and BCG. At best, the admission submitted by the plaintiff establishes that one party, BCG, intended the contract to benefit a potential purchaser. BCG's belief that Jolley also intended the contract to benefit a purchaser does not create an issue of fact in light of the direct affidavit evidence presented by Jolley. Jolley's evidence establishes that it did not intend the contract to benefit the plaintiff, and the court cannot conclude on the basis of the evidence submitted by the plaintiff that a genuine issue of material fact exists as to this fact. Thus, Jolley is entitled to judgment on the sixteenth count.
CONCLUSION
Based on the foregoing, the motion for summary judgment is granted with respect to both the fifteenth and sixteenth counts