Opinion
No. CV 085015711
September 9, 2010
MEMORANDUM OF DECISION MOTION FOR SUMMARY JUDGMENT
The defendant, Superior Plating Company ("Superior") has moved for summary judgment as to the plaintiff's Fourth Amended Complaint dated July 20, 2009 The Fourth Amended Complaint contains three counts alleging (1) a breach of an employment contract; (2) negligent misrepresentation; and (3) promissory estoppel. As to the First Count, the defendant argues that the plaintiff was an "at will" employee and could be terminated at any time. In the alternative, the defendant argues it had "just cause" for the termination. Regarding the Second Count alleging negligent misrepresentation, the defendant argues there is no evidence that the defendant's employee knew the alleged representations were false and the plaintiff did not reasonably rely on the alleged representations. With respect to the Third Count alleging promissory estoppel, the defendant states it did not make any definite promises to the plaintiff and the plaintiff did not forego any opportunities as a result of any alleged promises. The defendant also claims that all three counts are barred by the applicable statutes of limitation, as pleaded in the defendant's First Special Defense filed on September 4, 2009.
I Background and Procedural Summary
The defendant's business involves the plating and coating of industrial parts for various industries. The plaintiff was employed by the defendant as a plater from August 1982 until March 19, 2004. The plaintiff was not a member of a labor union at any time during his employment with the defendant. His job responsibilities involved performing nickel plating of parts owned by the customers. Superior receives a fee from the customers for its plating services. According to the defendant, the plaintiff was the subject of four written disciplinary warnings prior to his termination on March 19, 2004. The disciplinary warnings which occurred from November 1992 through April 29, 2003 involved two incidents of arguing with fellow employees and two for damaging or ruining customer parts during the plating process. The April 23, 2003 incident for damaging parts resulted in a three-day suspension without pay and a written warning which advised the plaintiff as follows:
Any disruption, poor quality, lack of concern for job or respect for authority will result in your immediate dismissal from your job.
The plaintiff signed a copy of this written warning and acknowledged it by indicating that he "concurred with the Company's statement." The plaintiff counters this profile as a problematic employee by stating that during the course of his employment he received annual raises and was commended by the plant manager for being the "best plater." The plaintiff claims that the defendant's plant manager orally informed him that he would have a secure job, and he would not be fired except for just cause.
On March 17, 2004, the defendant states that the plaintiff again ruined a customer part by not following proper plating procedures. The part was valued at approximately $20,000.00. In addition, this failure to follow proper procedures ruined equipment belonging to the defendant valued at approximately $30,000.00. The plaintiff claims that he followed proper procedures and the damage to the parts and equipment were the results of his co-workers incorrectly connecting cables to a machine during the plating process. On March 19, 2004, after a meeting with his supervisors, the plaintiff's employment was terminated. The plaintiff claims that his termination was not for just cause. Following his termination, the plaintiff never commenced an action against the defendant with the Commission on Human Rights and Opportunities or the Equal Employment Opportunity Commission.
The plaintiff's original action was commenced by way of a complaint dated August 31, 2006, bearing a return date of September 26, 2006. Docket number FBT-CV-06-5004663 was assigned to that action. On May 29, 2007, the court (Stodolink, J.T.R.) ordered that a non-suit be granted in favor of the defendant, as against the plaintiff, for the plaintiff's failure to comply with court orders regarding discovery compliance. On the same date that Judge Stodolink entered his order, the plaintiff had filed an objection to the non-suit. On June 15, 2007, the court (Matasavage, J.) overruled the plaintiff's objection, noting that Judge Stodolink had already ordered a non-suit on May 29, 2007. On September 21, 2007, the plaintiff filed a motion to reopen the judgment of non-suit. On January 7, 2008, the court (Maiocco, J.) sustained the defendant's objection to the plaintiff's motion to reopen the judgment of non-suit, which Judge Stodolink had entered on May 29, 2007.
On January 28, 2008, the plaintiff moved for reconsideration of Judge Maiocco's order sustaining the defendant's objection to the plaintiff's motion to reopen the non-suit. The defendant again filed an objection on February 6, 2008. The plaintiff then commenced this second action against the defendant by way of a complaint dated April 18, 2008. The instant case was assigned docket number FBT CV 08-5015711. This second action, which is the subject of the motion for summary judgment under consideration by this court is nearly identical to the prior action. It appears the only additional allegation is that this second action "is brought pursuant to General Statutes § 52-592." The judgment of non-suit remains as the disposition in the original action, as the motion for reconsideration of the denial of the motion to reopen the nonsuit has been withdrawn by the plaintiff. Therefore, the operative action is the plaintiff's second action and the operative pleading for the purposes of the motion for summary judgment is the Fourth Revised Complaint dated July 20, 2009.
The defendant filed a Motion to Dismiss the second action on the basis that there was still a prior pending action, being the non-suited first action. In the initial action, the plaintiff's motion for reconsideration had not been ruled upon since its filing in January 2008. In response to the defendant's motion to dismiss, the plaintiff withdrew his motion for reconsideration in the prior action. As a result, the judgment of non-suit remains as the disposition of that case. Docket Number FBT-CV-06-5004663 is no longer a prior pending action. This resolution of the motion to dismiss was reached by the parties with the assistance and orders of the court (Tobin, J.).
Both the plaintiff and the defendant have filed a memorandum of law, replies and a supplemental memorandum of law. In addition, the parties have submitted copies of various documents and deposition testimony of the plaintiff.
II Standard of Law: Summary Judgment
"A Motion for Summary Judgment is designed to eliminate the delay and expense of litigating an issue where there is no real issue to be tried." Wilson v. New Haven, 213 Conn. 277, 279, 576 A.2d 829 (1989). "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." Hertz Corp. v. Federal Ins., Co., 245 Conn. 374, 381, 713 A.2d 820 (1998). In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any issues exist. CT Page 17779 Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). The moving party has the burden of demonstrating the absence of any genuine issue of material fact. Hertz Corp. v. Federal Ins. Corp., supra, 245 Conn. 381. "The opposing party must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." Id. "A material fact is a fact which will make a difference in the result of a case." Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 639 A.2d 507 (1994); Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002). `The existence of the genuine issue of material fact must be demonstrated by counter affidavits and concrete evidence." (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).
The test used by the court is to determine if the moving party would be entitled to a directed verdict if the same set of facts were presented at trial. Connell v. Colwell, 214 Conn. 242, 246-47, 571 A.2d 116 (1990). A directed verdict is properly rendered if a trier of fact cannot reasonably and legally find in any fashion other than that directed. Santopietro v. New Haven, 239 Conn. 207, 225, 682 A.2d 106 (1996). "Summary judgment may be granted where the claim is barred by the statute of limitations." Doty v. Mucci, 283 Conn. 800, 806, 679 A.2d 945 (1996). Summary judgment is appropriate on statute of limitations grounds when the "material facts concerning the statute of limitations [are] not in dispute." Burns v. Hartford Hospital, 192 Conn. 451, 452, 472 A.2d 1257 (1984).
III Discussion A. Count One: Breach of Employment Contract
The plaintiff argues that material issues of fact exist as to whether the plaintiff was discharged in breach of contract. The plaintiff claims the defendant's representative represented to the plaintiff that as long as the plaintiff satisfactorily performed his job, the plaintiff would have a secure job position. The plaintiff also claims that the defendant's representative, Mel Rolf, told that the plaintiff could not be discharged without just cause. Lastly, the plaintiff states that there are material issues of fact as to whether a contract existed.
Connecticut is an at-will employment state. Sheets v. Teddy's Frosted Foods, Inc., 179 Conn. 471-74, 427 A.2d 385 (1980). "In Connecticut, an employer and employee have an at-will employment relationship in the absence of a contract to the contrary. Employment at will grants both parties the right to terminate the relationship for any reason, or no reason, at any time without fear of legal liability." (Citations omitted.) (Internal quotation marks omitted.) Cweklinsky v. Mobil Chemical Company, 267 Conn. 210, 225, 837 A.2d 759 (2004). "Consequently, in the absence of an employment contract, or an illegal discriminatory motive, an employer has the right to terminate an employee at any time without liability." Id. at 225-26. "Courts should not lightly intervene to impair the exercise of managerial discretion or to foment unwarranted litigation." Thibodeau v. Design Group One Architects, LLC, 260 Conn. 691, 700-01, 802 A.2d 731 (2002); Sheets v. Teddy's Frosted Foods, Inc., supra, 179 Conn. 477.
"As a general rule, contracts of permanent employment, or for an indefinite term, are terminable at will." D'Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 211 n. 1, 520 A.2d 217 (1987). "Pursuant to traditional contract principles, however, the default rule of employment at will can be modified by the agreement of the parties." Id. In order to create a binding employment contract in Connecticut, there are specific and definite requirements. "Under established principles of contract law, an agreement must be definite and certain as to its terms and requirements." Dunham v. Dunham, 204 Conn. 303, 313, 528 A.2d 1123 (1987); A. Corbin, Contracts (1963) 95; 1 Restatement (Second), Contracts (1981) 33; see also D'Ulisse-Cupo v. Board of Directors of Notre Dame High School, supra, 202 Conn. 215. The duration and conditions of the plaintiff's employment, salary and fringe benefits are considered material terms and essential to an employment contract. D'Ulisse-Cupo v. Board of Directors of Notre Dame High School, supra, 202 Conn. 215. "Under the law of contract, a promise is generally not enforceable unless it is supported by consideration." Stewart v. Cendant Mobility Ser. Corp., 267 Conn. 96, 104, 837 A.2d 736 (2003); E. Farnsworth, Contracts (1982) 2.9, p. 89; A. Corbin, Contracts (1963) 193, p. 188. "In the absence of a consideration in addition to the rendering of services incident to the employment, an agreement for permanent employment is no more than an indefinite general hiring, terminable at will of either party without liability to the other." Fisher v. Jackson, 142 Conn. 734, 736, 118 A.2d 316 (1955).
Accordingly, to prevail on the First Count of his complaint alleging the existence of an agreement between the parties, the plaintiff has the burden of proving by a fair preponderance of the evidence that the defendant agreed, either by words or action or conduct, to undertake some form of actual contract commitment to him under which he could not be terminated without just cause. Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., 234 Conn. 1, 15, 662 A.2d 89 (1995).
The court agrees with the plaintiff, that in the present matter, the alleged representations of the defendant fail to create any contractual commitment of continued employment because: (1) the alleged terms were not definite or certain; (2) there was no consideration supporting the alleged promise; (3) a promise of indefinite employment does not create an employment contract; (4) a progressive disciplinary policy does not create an employment contract; and (5) a promise that an employee will not be fired but for just cause does not create an employment contract.
The plaintiff's claim is premised on one conversation with Mel Rolf, the defendant's representative and employee, regarding the plaintiff's employment. According to the plaintiff's deposition testimony, the plaintiff and Rolf had a conversation sometime in either December 2001, December 2002 or December 2003. The plaintiff testified that Rolf told him not to worry about his job, as it would be secure. Rolf allegedly complimented the plaintiff on his performance. Therefore, as the plaintiff continued to receive raises, he did not look for another job. The plaintiff also testified at his deposition that Rolf told him he could not be fired without just cause, as the only way the company could fire him was with the "progressive system" the defendant had, and that would require a major mistake. These alleged representations and promises by Rolf are insufficient to create an express or implied employment contract. Alleged representations that there was a progressive disciplinary system and that the plaintiff could only be discharged for just cause also do not create an actionable employment contract. The plaintiff conceded at his deposition that he could not recall the precise terms and language Rolf used during his conversation with the plaintiff. The plaintiff cannot establish there was any definite promise made to him, or that there was a meeting of the minds. "[A] contractual promise cannot be created by plucking phrases out of context; there must be a meeting of the minds between the parties." Reynolds v. Chrysler First Commercial Corp., 40 Conn.App. 725, 730, cert. denied, 273 Conn. 913 (1996). Rolf, however, made no affirmative statement that could reasonably be construed as a promise. The vague statements allegedly made by Rolf did not give rise to an enforceable contract. See. Dunham v. Dunham, 204 Conn. 303, 313, 528 A.2d 1123 (1987).
On pages 67 and 68 of the plaintiff's deposition transcript dated May 27, 2009, the plaintiff admits that he is paraphrasing the statements of Rolf and not quoting Rolf's exact words. While the court does not have the full deposition transcript, the plaintiff has not objected to the defendant's submission of photocopies of excerpts of the plaintiff's deposition testimony.
Even if one assumes, however, that there was an enforceable contract, the defendant has produced evidence for this motion that the defendant did have just cause to terminate the plaintiff. Prior to the plaintiff's termination on March 19, 2004, the plaintiff had been subject to warnings regarding his behavior and job performance. He was given the opportunity and a "last chance" to improve his attitude, quality of work and willingness to follow instructions. He was advised in writing that "any disruption, poor quality, lack of concern for job or respect for authority" would result in his "immediate dismissal" from his job. The plaintiff signed a copy of this warning and concurred with the defendant's statement.
A copy of the written warning dated April 23, 2003 was submitted to the court in support of the motion for summary judgment.
On March 17, 2004, the defendant states that the plaintiff again ruined a customer part by not following proper plating procedures. The part was valued at approximately $20,000.00. In addition, this failure to follow proper procedures ruined equipment belonging to the defendant valued at approximately $30,000.00. The plaintiff claims that he followed proper procedures and the damage to the parts and equipment were the results of his co-workers incorrectly connecting cables to a machine during the plating process. On March 19, 2004, after a meeting with his supervisors, the plaintiff's employment was terminated. The defendant was an at-will employee and the defendant had a right to terminate the plaintiff's employment. The defendant, nonetheless, followed a progressive disciplinary policy in terminating the plaintiff for just cause. The motion for summary judgment is granted as to Count One.
"Just cause" substantially limits employer discretion to terminate, by requiring the employer, in all instances, to proffer a proper reason for dismissal, by forbidding the employer to act arbitrarily or capriciously. Sheets v. Teddy's Frosted Foods, Inc., supra, 179 Conn. 475.
B. Promissory Estoppel
"Section 90 of the Restatement Second states that under the doctrine of promissory estoppel `[a] promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.' A fundamental element of promissory estoppel, therefore, is the existence of a clear and definite promise which a promisor could reasonably have expected to induce reliance. Thus, a promisor is not liable to a promisee who has relied on a promise if, judged by an objective standard, he had no reason to expect any reliance at all. E. Farnsworth, supra, 2.19, p. 95." D'Ulisse-Cupo v. Board of Directors of Notre Dame High School, supra, 202 Conn. 206.
Rolf's alleged representations to the plaintiff do not invoke a cause of action for promissory estoppel because they are neither sufficiently promissory nor sufficiently definite to support contractual liability. The statements were, on their face, no more than representations indicating that the defendant intended to continue providing employment to the plaintiff in the future. There is no claim that these representations were not made in good faith at the time they were allegedly made, in either December 2001, December 2002 or December 2003. Contrary to the plaintiff's assertion, these representations manifested no present intention on the part of the defendants to undertake immediate contractual obligations to the plaintiff. See D'Ulisse-Cupo v. Board of Directors of Notre Dame High School, supra, 202 Conn. 214-15. Furthermore, none of the alleged representations contained any of the material terms that would be essential to an employment contract, such as terms regarding the duration and conditions of the plaintiff's employment, and his salary and fringe benefits. At most, Rolf, the defendant's employee, made representations to the plaintiff concerning the expectation of future employment. These alleged representations stopped short of making the plaintiff a definite promise of employment on which she could reasonably have relied. Id., 215. "A fundamental element of promissory estoppel, therefore, is the existence of a clear and definite promise which a promisor could reasonably have expected to induce reliance. Thus, a promisor is not liable to a promisee who has relied on a promise if, judged by an objective standard, he had no reason to expect any reliance at all." (Citations omitted; internal quotation marks omitted.) Stewart v. Cendant Mobility Ser. Corp., supra, 267 Conn. 104-05.
Additionally, the promise must reflect a present intent to commit as distinguished from a mere statement of intent to contract in the future. See D'Ulisse-Cupo v. Board of Directors of Notre Dame High School, supra, 202 Conn. 214-15. "[A] mere expression of intention, hope, desire, or opinion, which shows no real commitment, cannot be expected to induce reliance, and, therefore, is not sufficiently promissory. The requirements of clarity and definiteness are the determinative factors in deciding whether the statements are indeed expressions of commitment as opposed to expressions of intention, hope, desire or opinion." (Citations omitted.) Stewart v. Cendant Mobility Ser. Corp., supra, 267 Conn. 106. Rolf's alleged statements were a mere expression of intention and were his opinion. They could not have been expected to induce reliance. In addition they lacked the necessary requirements of clarity and definiteness.
Additionally, to succeed on a claim of promissory estoppel, the plaintiff who seeks to invoke the doctrine of promissory estoppel must have relied on Rolf's promise of continued future employment and a progressive disciplinary system. D'Ulisse-Cupo v. Board of Directors of Notre Dame High School, supra, 202 Conn. 213. That reliance, of course, may take the form of action or forbearance. Id. Nevertheless, the asserted reliance, regardless of its form, must result in a detrimental change in the plaintiff's position. Stewart v. Cendant Mobility Ser. Corp., supra, 267 Conn. 112-13. Moreover, "[i]f the claimed reliance consists of the promisee's forbearance rather than an affirmative action, proof that this forbearance was induced by the promise requires a showing that the promisee could have acted." Id., 113; 1 E. Farnsworth, supra, § 2.19, p. 164. In objecting to summary judgment, the plaintiff has not submitted any such proof or any such testimony in his deposition.
C. Negligent Misrepresentation
Our courts have long recognized liability for negligent misrepresentation. "One who, in the course of his business, profession or employment . . . supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information." (Emphasis added; internal quotation marks omitted.) Updike, Kelly Spellacy, P.C. v. Beckett, CT Page 17785 269 Conn. 613, 643, 850 A.2d 145 (2004); Petitte v. DSL Net, Inc., 102 Conn.App. 363, 372, 925 A.2d 457 (2007).
Traditionally, an action for negligent misrepresentation requires the plaintiff to establish (1) that the defendant made a misrepresentation of fact (2) that the defendant knew or should have known was false, and (3) that the plaintiff reasonably relied on the misrepresentation, and (4) suffered pecuniary harm as a result. Nazami v. Patrons Mutual Insurance Co., 280 Conn. 619, 626 (2006) 910 A.2d 209; Glazer v. Dress Barn, Inc., 274 Conn. 33, 73, 873 A.2d 929 (2005); Johnnycake Mountain Associates v. Ochs, 104 Conn.App. 194, 201, 932 A.2d 472 (2007).
Since the rule of liability is based upon negligence, the defendant is subject to liability if, but only if, has failed to exercise the care or competence of a reasonable person in obtaining or communicating the information. 3 Restatement (Second) Torts § 552, comment (e), p. 130 (1977). "Whether evidence supports a claim of . . . negligent misrepresentation is a question of fact." (Citations omitted.) (Internal quotation marks omitted.) Johnnycake Mountain Associates v. Ochs, supra, 104 Conn.App. 201-02. "Proving a false representation is, however, only one part of a claim of actionable misrepresentation. To prevail, the plaintiff also was required to show that he reasonably relied on that misrepresentation." Visconti v. Pepper Partners LTD Partnership, 77 Conn.App. 675, 682-83, 825 A.2d 210 (2003); Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 575, 657 A.2d 212 (1995); D'Ulisse-Cupo v. Board of Directors of Notre Dame High School, supra, 202 Conn. 218; 3 Restatement (Second) Torts § 552, pp. 126-27 (1977).
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. Out of a contractual relationship a tort liability, such as in negligence, may arise. A party may bring a claim. It is also true that "a remedy for negligent misrepresentation is independent of a remedy for a breach of contract." Williams Ford, Inc. v. Hartford Courant Co., supra, 232 Conn. 563. A plaintiff is not barred from pursuing a negligence claim because they may also have a breach of contract claim. Id.
The defendant claims the plaintiff failed to allege that the defendant made misrepresentations with the intention of inducing him to act or that he was induced to act. A liberal reading of Count Three in a light most favorable to the plaintiff reveals that the plaintiff has sufficiently alleged the defendant's employee, Rolf, made misrepresentations to the plaintiff that induced the plaintiff to act by remaining in the defendant's employment instead of seeking other employment opportunities. The plaintiff has sufficiently alleged the termination of the plaintiff's employment by the defendant has caused the plaintiff pecuniary harm. `Whether the defendant's representations were, in fact false; whether defendant knew or should have known its representations to the plaintiff were false; and whether the plaintiff reasonably relied upon any misrepresentation are normally questions of fact that the evidence will determine. Johnnycake Mountain Associates v. Ochs, supra, 104 Conn.App. 201-02; Mokonnen v. Pro Park, Inc., 96 Conn.App. 625, 633, 901 A.2d 725 (2006); Mips v. Becon, Inc., 70 Conn.App. 556, 558, 799 A.2d 1093 (2002). "Summary judgment is ill-adapted to negligence cases, since the conclusion of negligence is normally one of fact." Velardi v. Ryder Truck Rental, Inc., 178 Conn. 371, 374, 423 A.2d 77 (1979).
D. Statutes of Limitation 1.
Despite the fact that the court has granted summary judgment as to the Counts of the plaintiff's complaint alleging a breach of contract and promissory estoppel, the court will address the statute of limitations issues regarding these counts and the Count alleging negligent misrepresentation, as well as, whether General Statutes § 52-592 is available to the plaintiff for the remaining count alleging negligent misrepresentation.
The defendant argues that the plaintiff's claims regarding breach of contract and promissory estoppel are barred by General Statutes § 52-581, and are not saved by General Statutes § 52-592, the accidental failure of suit statute. Section 52-581(a) which governs oral contracts states:
(a) 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.
General Statutes § 52-592(a) states in relevant part, as follows:
(a) If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits . . . for any matter of form; . . . or if a judgment of non-suit has been rendered . . . the plaintiff, . . . may commence a new action, except as provided in subsection (b) of this section, for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment.
The defendant argues that the plaintiff's non-compliance with its discovery requests dated December 21, 2006, led to the entering of a non-suit judgment in Docket No. FBT-CV-06-5004663 by Judge Stodolink on May 29, 2007. Prior to the order of non-suit on May 29, 2007, Judge Stodolink on March 21, 2007, ordered that the plaintiff was to comply with the outstanding discovery requests on or before April 27, 2007. The court's order further stated that of compliance wasn't received by the defendant by April 27, 2007, the defendant may file an additional motion informing the court of any continuing non-compliance by the plaintiff. Absent the filing of proof of compliance by the time this motion appeared on the short calendar, a non-suit would be granted. On April 27, 2007, the defendant filed the additional order requesting a non-suit be entered against the plaintiff. The April 27, 2007 motion appeared on the short calendar and on May 29, 2007, the non-suit was ordered by Judge Stodolink.
An objection to the non-suit was filed by the plaintiff on May 29, 2007. The defendant's counsel represents to the court that he never received a copy of the objection. Defendant's counsel also states that despite several requests to plaintiff's counsel for a copy of the objection, plaintiff's counsel did not provide a copy to the defendant. On June 7, 2007, defendant's counsel went to the Clerk's Office at the Fairfield Judicial District to obtain a copy of the objection. The objection copy reveals that the plaintiff alleged that he had filed responses to the discovery requests. However, it was not until June 8, 2007, that the defendant received a copy of the plaintiff's compliance. The plaintiff's objection was eventually ruled upon by Judge Matasavage, who overruled the plaintiff's objection. The remaining procedural history has been recited earlier herein.
It is the defendant's position that the non-suit for failure to comply with discovery requests was a result of a continual, wilful and long-standing disregard of the court's orders and the Connecticut Rules of Practice, and, as such, was not the result of an accident or excusable neglect. Therefore, the plaintiff should not be able to avail himself of the accidental failure of suit provisions in General Statutes § 52-592. Accordingly, as the alleged breach of contract and promissory estoppel occurred at the latest in March 2004, and the plaintiff did not bring the instant action until April 2008, the plaintiff is in violation of the three-year limitation for the bringing of an action based on an oral contract, as mandated by General Statutes § 52-581.
The plaintiff argues that the original action, Docket No. FBT-CV-06-5004663, was timely filed, and the instant action was filed within one year of the determination of the original action, pursuant to General Statutes § 52-592. The plaintiff disputes the defendant's contention that he did not file discovery compliance until June 8, 2007. While conceding that compliance was not filed by April 27, 2007, as ordered by Judge Stodolink, the plaintiff states that compliance was filed on May 25, 2007, prior to the entry of the non-suit on May 29, 2007. The deposition of the plaintiff, in fact, occurred on May 29, 2007. The plaintiff summarizes that a single case of inadvertence does not support the defendant's argument that the plaintiff cannot utilize the accidental failure of suit statute. The plaintiff maintains he did not engage in egregious conduct that resulted in a non-suit and the case was not subject to repeated dismissals.
"Our Supreme Court has long held that § 52-592 is remedial and is to be liberally interpreted . . . Its essential purpose is to ensure the plaintiff the right to a trial of his claim . . . That broad and liberal purpose is not to be frittered away by any narrow construction. The important consideration is that by invoking judicial aid, a litigant gives timely notice to his adversary of a present purpose to maintain his rights before the courts." (Citations omitted; internal quotation marks omitted.) Tellar v. Abbott Laboratories, Inc., 114 Conn.App. 244, 250, 969 A.2d 210 (2009). "To enable a plaintiff to meet the burden of establishing the right to avail himself or herself of the statute, a plaintiff must be afforded an opportunity to make a factual showing that the prior dismissal was a `matter of form' in the sense that the plaintiff's noncompliance with a court order occurred in circumstances such as mistake, inadvertence or excusable neglect." Ruddock v. Burrowes, 243 Conn. 569, 576-77, 706 A.2d 967 (1998).
The Supreme Court "[has] not often decided that a plaintiff, after a dismissal under an applicable rule of practice, should be denied access to the statute because the prior judgment was not a `matter of form.' When [it has] done so, [the] decision has focused on conduct other than mistake, inadvertence or excusable neglect." Id., 577. "[I]t is appropriate to consider each case along a continuum; at one extreme are dismissals for mistake or inadvertence, at the other extreme are dismissals for serious misconduct or a series of cumulative transgressions." Tellar v. Abbott Laboratories, Inc., supra, 114 Conn.App. 251.
In Tellar, the Appellate Court overturned a trial court decision that held § 52-592 to be inapplicable because "[t]he conduct . . . was neither repeated nor protracted. It consisted of a singular failure to comply with a discovery request . . ." Id., 252. The court explained that such a situation "invokes the type of `excusable neglect' that our Supreme Court provided for in Ruddock, mandating application of § 52-592." (Internal quotation marks omitted.) Id., 253; Tutko v. Dickinson, Superior Court, judicial district of Middlesex at Middletown, Docket No. MMX-CV-09-6000552-S (Mar. 1, 2010, Burgdorff, J.).
The court finds that the one instance of discovery non-compliance which resulted in the judgment of non-suit is insufficient to strip the plaintiff of his right to avail himself of General Statutes § 52-592. As the plaintiff withdrew his motion for reconsideration in the original action, the judgment of non-suit has disposed of that case. The defendant invites the court to now review whether or not the compliance filed by the plaintiff, was, in fact a complete compliance. The court refuses to re-visit a disposed file that has gone to judgment, for that purpose. The defendant also raises allegations about the plaintiff's compliance with additional Practice Book rules pertaining to the mailing of copies of pleadings to defendant's counsel by plaintiff's counsel. The court has reviewed the defendant's various allegations, which the plaintiff disputes. Again, the court will not re-visit the disposed action to resolve these disputes.
The court does not approve of the plaintiff's admitted failure to timely comply with discovery requests or the plaintiff's admitted failure to comply with Judge Stodolink's initial order which ordered compliance by April 27, 2007. A review of the court's records for Docket No. FBT-CV-06-5004663 indicates that the plaintiff's "compliance" was filed May 25, 2007, prior to the entry of the non-suit on May 29, 2007. As the defendant has supplied the court with excerpts from the plaintiff's deposition, it is clear that the plaintiff's deposition occurred on May 29, 2007, the same day the non-suit was ordered. While the plaintiff's compliance was untimely, there is no indication that the plaintiff was attempting to thwart the defendant in its quest for discovery. The return date for the original action was September 26, 2006. The non-suit was entered approximately eight months following the return date. This time period does not conclusively establish a pattern of "lackadaisical behavior" on the part of the plaintiff; nor does it establish a pattern of serious misconduct or cumulative transgressions. Gillum v. Yale University, 62 Conn.App. 775, 783, 773 A.2d 986 (2001). The defendant did not suffer through years of delay in the initial action, and no serious inconvenience was caused to the court in its case management functions. Skinner v. Doelger, 99 Conn.App. 540, 558, 915 A.2d 314 (2007). "Disciplinary dismissals do not, in all cases, demonstrate the occurrence of misconduct so egregious as to bar recourse to § 52-592." (Citations omitted.) Ruddock v. Burrowes, 243 Conn. 569, 576, 706 A.2d 967 (1998).
The defendant next argues that the plaintiff's one remaining count alleging negligent misrepresentation is governed by a two-year statute of limitations pursuant to General Statutes § 52-584 which states in relevant part:
No action to recover damages for injury to the person, or to real or personal property, caused by negligence, . . . shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed.
The defendant argues that the plaintiff alleges that the defendant's misrepresentations occurred in either December 2001, December 2002 or December 2003 and that the defendant terminated the plaintiff on March 19, 2004. However, the original lawsuit's complaint was dated August 31, 2006, which was more than two years after the plaintiff was terminated. The defendant concludes that as the plaintiff failed to commence the original action for negligent misrepresentation within two years, the claims are barred regardless of the accidental failure of suit statute. See Lombard v. Peters, 79 Conn.App. 290, 830 A.2d 346 (2003).
The defendant has pleaded the statute of limitations as a special defense in this action and is requesting a judgment as a matter of law.
The plaintiff argues that the claim for negligent misrepresentation is governed by a three-year statute of limitations pursuant to General Statutes § 52-577. The plaintiff argues that the defendant's reliance on Lombard v. Peters, supra, is misplaced. The plaintiff states the claim in CT Page 17791 Lombard was for negligent injury to property, where the claim in the present matter is not a claim for personal injury or damage to property. Therefore, the three-year statute of limitations contained in Section 52-577 applies.
General Statutes § 52-577 states:
No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.
In Lombard v. Peters, supra, 79 Conn.App. 290, the court found that an action alleging negligent misrepresentation was subject to the two-year statute of limitation provided for in General Statutes § 52-584. "As to the claim that this cause of action is time-barred by the statute of limitations, the issue is whether the applicable statute of limitations for negligent misrepresentation is three years, pursuant to General Statutes § 52-577 or two years, pursuant to General Statutes § 52-584. The court holds that the statute of limitations for negligent misrepresentation is two years and that, therefore, the plaintiff's claim is time-barred." Aponte v. Alinabal, Inc., Superior Court, judicial district of Ansonia-Milford at Milford, No. AANCV054003670S (May 29, 2008, Levin, J.), 45 Conn. L. Rptr. 818. "[O]ur Supreme Court has held that the three year statute of limitations of § 52-577 is applicable to all tort actions other than those excepted therefrom by § 52-584 or other sections . . ." (Internal quotation marks omitted.) Lombard v. Edward J. Peters, Jr., P.C., supra, 79 Conn.App. 299. "That an action for negligent misrepresentation is an action in negligence is supported by Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 657 A.2d 212 (1995). This court, therefore, holds that an action for negligent misrepresentation is governed by the negligence statute of limitations, General Statutes § 52-584." Aponte v. Alinabal, Inc., supra; see also KGM Corp. v. Parillo, Superior Court, judicial district of New Haven at New Haven, No. CV-04-4001596 S (Dec. 27, 2005, Devlin, J.) (In its initial ruling, the court applied the three-year statute of limitations contained in § 52-577 and denied summary judgment. On reconsideration, the court was persuaded that negligent misrepresentation is governed by the statute of limitations set forth in General Statutes § 52-584); Brule v. NERAC Corporation, Superior Court, judicial district of Hartford at Hartford, No. HHD CV X04 08 5023811 S (Dec. 9, 2009, Shapiro, J.) ("Claims of negligent misrepresentation are also subject to a two-year limitations period, provided in General Statutes § 52-584").
Accordingly, as the plaintiff's action alleging negligent misrepresentation was filed more than two years after the alleged misrepresentations by the defendant's employee, Rolf, the motion for summary judgment as to the Third Count is hereby granted. Summary judgment is appropriate on statute of limitations grounds when the "material facts concerning the statute of limitations [are] not in dispute." Burns v. Hartford Hospital, 192 Conn. 451, 452, 472 A.2d 1257 (1984). Count Three is barred by the provisions of General Statutes § 52-584.
E. Business Judgment Rule
The defendant in the alternative, has submitted that its actions are protected because its decision to terminate the plaintiff was based on the defendant's "business judgment." The business judgment rule "has previously been construed under Connecticut law by the Second Circuit Court of Appeals; see Joy v. North, 692 F.2d 880, 884-86 (2d Cir. 1982), cert. denied sub nom. Citytrust v. Joy, 460 U.S. 1051, 103 S.Ct. 1498, 75 L.Ed.2d 930 (1983); and has been codified in part in General Statutes 33-313. The business judgment rule insulates corporate directors from liability for business decisions within the power of the corporation for which the directors have exercised due care. Rosenfield v. Metals Selling Corp., 229 Conn. 771, 785, 643 A.2d 1253 (1994); H. Henn, Law of Corporations (2d Ed. 1970) 242, p. 482.
[T]he business judgment doctrine [is] a rule of law that insulates business decisions from most forms of review. Courts recognize that managers have both better information and better incentives than they. The press of market forces . . . will more effectively serve the interests of all participants than will an error-prone judicial process. The business judgment rule expresses a sensible policy of judicial noninterference with business decisions made in circumstances free from serious conflicts of interest between management, which makes the decisions, and the corporation's shareholders. Not only do businessmen know more about business than judges do, but competition in the product and labor markets and in the market for corporate control provides sufficient punishment for businessmen who commit more than their share of business mistakes. The fact is that liability is rarely imposed upon corporate directors or officers simply for bad judgment and this reluctance to impose liability for unsuccessful business decisions has been doctrinally labeled the business judgment rule
(Internal citations omitted.) (Internal quotation marks omitted.) Id., 786-87.
The court, for the reasons stated herein, has granted the motion for summary judgment as to all three counts of the plaintiff's Fourth Amended Complaint. Therefore, the court will not further address the business judgment rule and its possible application to the present case. The court notes that the plaintiff objects to its application in this case.
IV Orders
The defendant's Motion for Summary Judgment is granted as to the First, Second and Third Counts of the plaintiff's Fourth Amended Complaint, dated July 20, 2009.