Opinion
CV136043555S
11-18-2015
Robert Fiondella et al. v. Pre-Bilt Manufacturing, LLC
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#112)
Robin L. Wilson, J.
FACTS
The plaintiffs, Robert Fiondella and Ramona Fiondella filed an eight-count revised complaint against the defendants on July 3, 2014, alleging the following facts. On October 13, 2011, the plaintiffs entered into a contract with the defendants Pre-Bilt Manufacturing, LLC (Pre-Bilt) and Anthony Fiengo, Jr. (Fiengo) whereby the defendants were to build a two-story garage attached to an existing dwelling at the plaintiffs' residence (the premises), located at 217 Montowese Avenue in North Haven, Connecticut. At all relevant times, Fiengo was the vice president of Pre-Bilt, a limited liability company registered with the Secretary of the State. The garage was to be built pursuant to a certain set of prints, drawings, and specifications agreed to by the parties for the sum of $43, 456. The plaintiffs tendered payments to Pre-Bilt amounting to $33, 338. Although the defendants commenced construction on the garage, they improperly constructed and otherwise failed to complete the installation of the garage per the plaintiff's specifications. The defendants' failure to complete the garage resulted in North Haven issuing a stop work order on January 17, 2012.
For each cause of action alleged, the plaintiffs brought identical causes of action against Pre-Bilt and Fiengo. On September 1, 2015, Fiengo filed a motion for summary judgment, accompanied by a memorandum in support, as to all counts against him individually on the ground there are no genuine issues of material fact because: (1) he signed the contract with the plaintiffs in his corporate, not his individual, capacity, and (2) he did not participate in the commission of any torts, both of which obviate any duty of care owed to the plaintiffs and entitle him to judgment as a matter of law. The plaintiffs did not file a memorandum in opposition to the motion for summary judgment. At short calendar on September 28, 2015, the plaintiffs voluntarily withdrew counts two, four, and eight against Fiengo. Count six, which alleges that the defendant negligently performed the work by failing to complete the work contracted for and to construct the plaintiffs' two-story garage in a sound and workmanlike manner and, as a result of the defendant's negligent performance, the plaintiffs have suffered damages, is the only remaining count in the plaintiffs' complaint against the defendant, and therefore, is the only count before the court in the defendant's motion for summary judgment. Oral argument was heard on the motion at short calendar on September 28, 2015.
Counts one and two allege breach of contract by Pre-Bilt and Fiengo, respectively. Counts three and four allege CUTPA violations against Pre-Bilt and Fiengo, respectively. Counts five and six allege negligence against Pre-Bilt and Fiengo, respectively. Counts seven and eight allege conversion against Pre-Bilt and Fiengo, respectively.
Pre-Bilt is not a party to this motion for summary judgment; therefore the defendant in this motion is referred solely to Fiengo.
DISCUSSION
" Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." (Internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534-35, 51 A.3d 367 (2012). " A genuine issue has been variously described as a triable, substantial or real issue of fact . . . and has been defined as one which can be maintained by substantial evidence." (Citation omitted; internal quotation marks omitted.) United Oil Co. v. Urban Redevelopment Com., 158 Conn. 364, 378, 260 A.2d 596 (1969). " 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.) Stuart v. Freiberg, 316 Conn. 809, 820-21, 116 A.3d 1195 (2015). Regarding negligence, " [t]he issue of whether a defendant owes a duty of care is an appropriate matter for summary judgment because the question is one of law." (Internal quotation marks omitted.) Mozeleski v. Thomas, 76 Conn.App. 287, 290, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003).
In his motion for summary judgment, the defendant alleges that there is no genuine issue of material fact with respect to liability because the defendant was not a party to the contract between Pre-Built and the plaintiffs, and therefore, he did not owe the plaintiffs a duty of care. In support of this motion, the defendant attached the following exhibits: (1) the defendant's affidavit, (2) the contract between Pre-Bilt and the plaintiffs to construct the plaintiffs' garage, (3) checks made payable to Pre-Bilt, which amount to $33, 228, for the construction on the premises; (4) a business inquiry into Pre-Bilt from the office of the Secretary of the State, which states that Pre-Bilt is a limited liability company registered in Connecticut and that Fiengo is vice president and a member of Pre-Bilt; (5) a permit to build at the premises issued to Pre-Bilt by North Haven, and (6) a check from Pre-Bilt made payable to North Haven. The defendant's affidavit attests that he is the vice president of Pre-Bilt and that he signed the contract with the plaintiffs on behalf of Pre-Bilt, but he did not personally perform any construction on the garage.
" [B]efore a document may be considered by the court [in connection with] a motion for summary judgment, there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be . . . Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be." (Citation omitted; internal quotation marks omitted.) Bruno v. Geller, 136 Conn.App. 707, 714-15, 46 A.3d 974, cert. denied, 306 Conn. 905, 52 A.3d 732 (2012). The trial court has discretion in determining whether to consider documentary evidence submitted by a party in support of or in opposition to a motion for summary judgment to which there is no objection. See Bruno v. Whipple, 138 Conn.App. 496, 506, 54 A.3d 184 (2012). In the present case, since the plaintiffs did not file a memorandum of law in opposition to the motion for summary judgment, there is no objection to the admissibility of any of the defendant's documents. " [T]hus, 'any objection is deemed waived and all documents are admissible' within the court's discretion." Tassmer v. McManus, Superior Court, judicial district of New Haven, Docket No. CV-09-5028470-S, 4`(January 15, 2010, Wilson, J.). Accordingly, the court in its discretion, will consider all of the defendant's evidentiary documentation in support of his motion for summary judgment.
In his motion for summary judgment, the defendant argues that the plaintiffs cannot establish that the defendant owed a duty of care to the plaintiffs because he was not a party to the contract in his individual capacity and did not personally perform any of the construction. Therefore, the defendant maintains, since he did not have a duty of care to the plaintiffs, he is entitled to judgment as a matter of law on count six which sounds in negligence.
The evidence submitted by the defendant demonstrates that Pre-Bilt is a limited liability company of which the defendant is a member and is its vice president. " Members [of a limited liability company], unlike partners in general partnerships, may have limited liability, such that . . . members who are involved in managing the [limited liability company] may avoid becoming personally liable for its debts and obligations." (Internal quotation marks omitted.) Weber v. U.S. Sterling Securities, Inc., 282 Conn. 722, 729, 924 A.2d 816 (2007). " It is well established that an officer of a corporation does not incur personal liability for its torts merely because of his official position. Where, however, an agent or officer commits or participates in the commission of a tort, whether or not he acts on behalf of his principal or corporation, he is liable to third persons injured thereby . . . Thus, a director or officer who commits the tort or who directs the tortious act done, or participates or operates therein, is liable to third persons injured thereby, even though liability may also attach to the corporation for the tort." (Internal quotation marks omitted.) Sturm v. Harb Development, LLC, 298 Conn. 124, 132, 2 A.3d. 859 (2010).
" The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury . . . Contained within the first element, duty, there are two distinct considerations . . . First, it is necessary to determine the existence of a duty, and [second], if one is found, it is necessary to evaluate the scope of that duty . . . [A] duty to use care may arise from a contract, from a statute, or from circumstances under which a reasonable person, knowing what he knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result from his act or failure to act . . . Only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand . . . If a court determines, as a matter of law, that a defendant owes no duty to a plaintiff, the plaintiff cannot recover in negligence from the defendant." (Citations omitted; internal quotation marks omitted.) D'Angelo Dev. & Constr. Corp. v. Cordovano, 121 Conn.App. 165, 184-85, 995 A.2d 79, cert. denied, 297 Conn. 923, 998 A.2d 167 (2010).
" A party may be liable in negligence for the breach of a duty which arises out of a contractual relationship." (Internal quotation marks omitted.) Scribner v. O'Brien, Inc., 169 Conn. 389, 400, 363 A.2d 160 (1975). See also Sturm v. Harb Development, LLC, supra, 298 Conn. at 124 (holding that a duty of care may arise out of a contract). In Sturm v. Harb Development, LLC, a construction case where both the limited liability company and an individual member of the company were being sued for negligence, the Supreme Court held that the plaintiffs " failed to plead anywhere in [their] negligence count that the defendant personally was a party to the contract, instead pleading that [the limited liability company] was a party to the contract. These allegations therefore are insufficient to establish that the defendant individually owed a contractual duty to the plaintiff." Sturm v. Harb Development, LLC, supra, 298 Conn. at 140 .
In D'Angelo Development & Construction Corp., the court addressed the issue of whether the president, who was also the sole employee of the company, owed a duty of care in his individual capacity for the alleged negligent construction of a home. The Appellate Court held that, as president and sole employee, he owed no duty of care in his individual capacity. D'Angelo Development & Construction Corp. v. Cordovano, supra, 121 Conn.App. at 187. In so holding, the court relied on evidence demonstrating that checks from the plaintiff were made payable to the corporation, rather than to the individual defendant, that the individual defendant signed the construction contract with the plaintiff on behalf of the corporation in his corporate capacity, and that the defendant only supervised the construction subject to his position as president of the corporation. Id., 186.
In the present case, there is an allegation in count one of the revised complaint that " the plaintiffs . . . and the defendant . . . entered into an agreement whereby said defendants were to build a two-story garage with [a] second floor living space . . ." Attached to the complaint is a copy of the agreement and, as stated previously, the defendant submitted a copy of the agreement and his affidavit with his memorandum of law in support of the motion for summary judgment. The heading of the agreement clearly states " Pre-Bilt Mfg, LLC, " lists its business address and telephone number, and states that the warranty is through Pre-Bilt. The second page of the agreement is signed with what appears to be the defendant's signature on the line that states " Sold by" and, on the third page, is signed again with what appears to be the defendant's signature. In his affidavit, the defendant testifies that he personally did not enter into any agreement with the plaintiffs but signed it on behalf of Pre-Bilt as its vice president. Further, the exhibits submitted by the defendant include checks showing that the payments for the work on the premises were made out to Pre-Bilt, rather than the defendant; that a permit to build at the premises was issued to Pre-Bilt by the Town of North Haven; and a check from Pre-Bilt was made payable to the Town of North Haven for the permit. These exhibits are similar to the evidence relied on in D'Angelo Development & Construction Corp. v. Cordovano, and demonstrate that the plaintiffs here entered into a contract with Pre-Bilt, the limited liability company, and not the defendant, as an individual. The defendant signed the contract in his corporate capacity and, therefore, did not, as an individual, have a contractual duty of care to the plaintiffs. Based on the evidence submitted, the defendant has met his burden of showing an absence of a genuine issue of material fact as to whether the defendant, in his individual capacity, had a contractual obligation to the plaintiffs that created a duty of care. The plaintiffs did not submit any evidence to raise an issue as to whether the defendant owed them a contractual duty of care in his individual capacity.
Accordingly, since the defendant did not have a contractual obligation to the plaintiffs that created a duty of care, the court must still determine whether the defendant owed a duty of care to the plaintiffs for the negligent performance of the construction as alleged in count six. As previously stated, where an " officer of a corporation commits or participates in the commission of a tort, whether or not he acts on behalf of his principal or corporation, he is liable to third persons injured thereby." Scribner v. O'Brien, Inc., supra, 169 Conn. at 404. In Scribner, the plaintiffs entered into a construction contract for a new dwelling with the defendant company and the defendant president of the company. After the plaintiffs moved into the house, the driveway sank substantially which caused the garage to flood. Id., 394. The trial court concluded, and the Supreme Court upheld, that the defendant, who was president of the limited liability company, was individually liable to the plaintiffs for his negligence. Id., 403-04. The court determined that the individual defendant had participated in the negligence complained of during the construction project by relying on evidence that the defendant " was present at the property on a daily basis, that he undertook to supervise the construction, and that he failed to act with reasonable care in that undertaking." Id.
The present case is distinguishable from Scribner. Here, there are no allegations that the defendant was present at the construction site or supervised the construction. Further, in his affidavit, the defendant averred that he did not personally perform any of construction on the premises, and that any action that he took was as a representative of Pre-Bilt. The plaintiffs did not submit any evidence to raise an issue of fact as to whether the defendant was present at the construction site or whether he in anyway in an individual capacity participated in the negligence complained of. Therefore, the defendant has also met his burden of showing that there is an absence of a genuine issue of material fact as to whether the defendant's participation in the construction created a duty of care.
CONCLUSION
For the foregoing reasons, the defendant's motion for summary judgment is granted because the defendant did not owe a duty of care, in his individual capacity, to the plaintiffs as to their claim of negligence, and, therefore, the defendant is entitled to judgment as a matter of law.