Gregory B. Brown et al. v. Regis Benoit et al. (2011)

MEMORANDUM OF DECISION MOTION FOR SUMMARY JUDGMENT # 244

INTRODUCTION

The instant action was filed on January 9, 2009, by the plaintiffs Gregory and Donna Brown (the Browns) alleging that various defendants were negligent in the construction of a home they purchased at 44 Andrews Drive, Darien, Connecticut.   The complaint names as defendants, Regis Benoit, the general partner of the defendant, EAA Property I, L.P.;   Carolyn Topazian, managing member of the defendant DHM Associates, LLC, the general contractor or construction management for the home;  John Gullans, the member, owner and manager of the defendant Gullans Home Improvement, LLC (“GHI”);  Ian McCann, member, owner, manager, and employee of the defendant, ID Construction, LLC;  Mirvyn Willis, owner, manager and employee of the defendant Fairbridge Company;  and Darien Air Systems.   The complaint has been amended with the Third Substituted Complaint as the operative complaint.   It contains twenty-six counts with various causes of action based upon the involvement of each defendant.   The defendant Regis Benoit filed a third-party complaint which has been stayed and is not relevant to the present motion.

The defendant Gullans Home Improvement, LLC (“GHI”) has filed a motion for summary judgment directed to Counts 15 and 16 of the Third Substituted Complaint.   GHI contends that Count 15 is barred by the statute of repose, C.G.S. § 52-584, and Count 16 is barred by the statute of limitations in C.G.S. § 42-110g(f).  The defendant GHI submitted a motion, memorandum, affidavit and exhibits on July 9, 2010.   The plaintiffs submitted an objection to the motion with memorandum, exhibits and affidavits on September 2, 2010.   The defendant submitted a reply memorandum dated September 17, 2010 and an addendum to the reply dated October 7, 2010.   The parties appeared and argued the motion on December 1, 2010.

FACTUAL BACKGROUND

The plaintiffs, Gregory and Donna Brown, entered into an agreement to purchase a newly constructed custom residential property at 44 Andrews Drive, Darien, Connecticut.   The plaintiffs' purchase date was February 15, 2008.   They moved into the property on April 18, 2008.   Thereafter, the plaintiffs had water leaks in the premises and brought an action against a number of parties including the roofer on the project, GHI. The plaintiffs alleged that the defendant was negligent in the installation of the roof and that he engaged in an unfair trade practice.   The complaint, summons and writ were filed on January 9, 2009.   The plaintiff filed a Third Substituted Complaint dated October 20, 2009.   The defendants filed an answer and special defenses on February 24, 2010 which included two special defenses that contend the action was filed after the time permitted by C.G.S. § 52-584 and § 42-110g(f).  The defendant GHI was the contractor for the roofing at the residence.   Work began on the property in March 2005.   The defendant contends the work was completed in November 2005 and the plaintiffs contend it was sometime in February or March of 2006.

DISCUSSION

“Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and 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.)  Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007).  “[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way ․ [A] summary disposition ․ should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party.”  (Citations omitted;  internal quotation marks omitted.)   Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).   The burden is on the moving party to demonstrate an absence of any triable issue of material fact and “[t]o 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 ․ 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).

In the instant summary judgment motion the defendant contends that the count in negligence as well as the count for violation of CUTPA were filed after the appropriate statute of repose and statute of limitations.   Count 15 of the Amended complaint sounds in negligence.   The defendant contends that C.G.S. § 52-584 applies to bar this action because the plaintiff failed to file the action within three years after the completion of the roof in November 2005.   C.G.S. § 52-584 provides in pertinent part:  “No action to recover damages for injury to the ․ real or personal property, caused by the negligence ․ shall be brought but within the 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 ․” This statute specifically establishes a three-year period of time to act from the date of the act or omission.  “The policy goal of statutes of repose is solely to relieve potential defendants from anxiety over liability for acts committed long ago.”  Goad v. Celotex Corp., 831 F.2d 508, 511 (4th Cir.1987) 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 negligent cause of action ․ While statutes of limitations are sometimes called statutes of repose, the former bars [a] right of action unless it is filed within a specified period of time after [an] injury occurs, while statutes of repose [terminate] any right of action after a specific time has elapsed, regardless of whether there has as yet been an injury.”  (Citations omitted;  Internal quotation marks omitted.)  Barrett v. Montesano, 269 Conn. 787, 793-94, 849 A.2d 839 (2004).

The factual dispute at issue in the instant matter is whether the defendant was engaged in work on the roof during a time period that would satisfy the statutory time limits pursuant to C.G.S. 52-584 and § 42-110g(f).  The defendant contends that the work on the roof was completed in November 2005.   The defendant contends that the summons and complaint in this action were filed on January 9, 2009 more than three years after the completion of work.   The plaintiffs allege that the work was not completed until a time much later than November 2005 and within a time frame that satisfies the three-year statute of repose.   Each party relies upon different documents and different interpretations of some of the same documents to support their position.   The determination of when the defendant performed roofing work is of paramount importance to a determination of the application of the statute of repose for the alleged negligent acts.   It is well established that the 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.  (Internal quotation marks omitted).  Blanchette v. Barrett, 229 Conn. 256, 265, 640 A.2d 74 (1994), overruled on other grounds by Grey v. Stamford Health Septic, Inc., 282 Conn. 745, 924 A.2d 831 (2007).

The defendant in the memorandum in support of the motion provides to the court an affidavit of John Gullans, the manager and owner of the defendant roofing company, GHI. In his affidavit, Mr. Gullans states that the work must have been completed in November 2005 because the company received a payment which would only be made upon completion of the work.¹  Mr. Gullans indicates that he did not personally work on the roof.   He could not provide the dates of roof work on site either from his personal knowledge or any documentation from his workers.   He subcontracted the work out and could not give any specific information about the work.   Lastly, Gullans points to a “Customer Quick Report” as support for the completion of the work before December 15, 2005 because this report indicates December 15, 2005 as the last payment on the sheet.²

The plaintiffs argue that the work was not complete in November 2005.   In support of their position the plaintiffs have submitted a copy of a check dated October 20, 2006 that was issued by the defendant EAA Property I to GHI for roofing services.   The plaintiffs contend that this payment demonstrates that the defendant received payment for work after November or December 2005.   This rationale is consistent with the affidavit of Mr. Gullans who states that payments are made after work is completed.   The defendant argues that the payment of monies is not a controlling factor in determining what days the defendant was working on the roof.   The defendant is correct in this argument.   However, in the instant matter, it is not simply the payment of monies after December 2005 but it is the plaintiffs' correlation of payments with work on the roof.   For instance, in the affidavit of John Gullans he stated that the payments were made as the work was completed.   This testimony would support the plaintiffs' position that payments made after December 2005 were for work performed after that time.   Additionally, the plaintiffs submitted reports from Helmes Group which performed site inspections to determine what payments should be made for the work.  (Plaintiffs' Exhs. A, B, and C.) The written reports of the Helmes Group for December and February 2006 include a statement that the “installation of cedar shingle roofing is substantially complete.”   The March 2006 report from Helmes provides a different notation that the “roof is installed throughout.”   These reports very likely could lead to the conclusion that the roof work was done sometime after February 8, 2006 and before March 13, 2006.   What creates further uncertainty in the Helmes report is the allocation of payments noted for the months of December 2005, and February and March 2006.   The December report indicates 90% of the agreed cost was paid.   The February and March reports show payment is 100%.³  The Helmes report of December and to a degree the February report contradicts the defendants' position that the work was completed in December 2005 because the on-site inspection does not confirm that the work is 100% complete.   The February report indicates full payment and a notation of completed work but it does not confirm such a finding in the narrative inspection.   The Helmes Group reports are contrary to the defendant's position.   The reports create uncertainty that the work was completed any time before January 9, 2006 and possibly as late as March 2006 thus creating an issue as to the application of the statute of repose to bar this action.⁴  It was not until the March inspection that all reports indicated the roof work was complete.   The uncertainty of the reports and the uncertainty of John Gullans as to the dates of work do create a genuine issue of fact.

The defendant has also argued that the plaintiffs are time barred by the time limitations for an action pursuant to C.G.S. § 42-110g(f).  The time limitations for this claim in Count 16 is “three years after the occurrence of a violation of this chapter.”   The limitations period begins on the date the unfair practice occurs.  Fichera v. Mine Hill Corp., 207 Conn. 204, 212-13, 541 A.2d 472 (1988).   The defendant contends that the roofing work occurred in 2005 and thus the filing of this action over three years from the alleged wrongful conduct bars the action.   The plaintiffs argue, as noted above, that the roofing work was not complete in 2005 and thus the defendant's motion must be denied.   Based upon the argument above, the court determines that there is a genuine issue of fact.   Therefore, the motion for summary judgment as to Count 16 is denied.

CONCLUSION

Based upon the lack of any documentation that outlines the specific dates of work and the varying dates provided by the parties as to the time work was completed on the roof, there is a genuine issue of fact as to when the work was completed and more importantly which dates the defendant was working on the roof at 44 Andrews Drive.   Therefore, there is a genuine issue of fact as to whether the action is barred by the statute of repose or the statute of limitations and the motion for summary judgment as to Counts 15 and 16 is denied.

THE COURT

Brazzel-Massaro, J.

FOOTNOTES

FN1. The defendant also points to a response to an interrogatory by the co-defendant DHM Associates, LLC that the work was completed in November 2005.   However, this defendant was not the roofer and the court does not have sufficient information to address the basis of this response or its reliability..  FN1. The defendant also points to a response to an interrogatory by the co-defendant DHM Associates, LLC that the work was completed in November 2005.   However, this defendant was not the roofer and the court does not have sufficient information to address the basis of this response or its reliability.

FN2. The plaintiff points out as to the Customer Quick Report that it is for a designated period of time and this particular sheet ends December 31, 2005.   The plaintiff infers that any payment after December 31, 2005 would not be included because of the cut off dates.   This appears consistent with the plaintiffs' submission of the Helmes Reports and a check paid in October 2006..  FN2. The plaintiff points out as to the Customer Quick Report that it is for a designated period of time and this particular sheet ends December 31, 2005.   The plaintiff infers that any payment after December 31, 2005 would not be included because of the cut off dates.   This appears consistent with the plaintiffs' submission of the Helmes Reports and a check paid in October 2006.

FN3. Although the February report indicates “substantially complete,” it is inconsistent with the payment notations.   The defendants have argued that the payment issue should not be the basis of the completion of the work.   This position is inconsistent with their memorandum which cites the Customer Quick Report as the basis for the completion of the work..  FN3. Although the February report indicates “substantially complete,” it is inconsistent with the payment notations.   The defendants have argued that the payment issue should not be the basis of the completion of the work.   This position is inconsistent with their memorandum which cites the Customer Quick Report as the basis for the completion of the work.

FN4. A review of the defendant's position fails to yield a date that the work was complete.   Instead the defendant offers dates of other events such as December 15, 2005, and attempts to link them with the work..  FN4. A review of the defendant's position fails to yield a date that the work was complete.   Instead the defendant offers dates of other events such as December 15, 2005, and attempts to link them with the work.

Brazzel-Massaro, Barbara, J.