Opinion
No. CV03 040 53 62 S
November 2, 2004
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (119)
The following facts are alleged in the complaint. The plaintiff, Norman Kleinman, negotiated and entered into an agreement with the defendant, Arthur Baltimore, president of Golden Apples Candy Company, whereby the defendant would supply sugar-free candy for the plaintiff's business ventures in Australia. The defendant made shipments of candy to the plaintiff in Australia between 1995 and 1998. The plaintiff began receiving complaints from his customers that the candy was sticky, melted and inedible. The plaintiff threatened to terminate the business relationship unless the defendant remedied the problem. In response, the defendant made reassurances to the plaintiff that he would resolve this issue by shipping more candy and crediting the plaintiff for any bad stock of candy received. The quality of the candy, however, did not improve and the plaintiff continued to complain to the defendant. In an attempt to satisfy the plaintiff, the defendant placed a guarantee sticker on the candy wrappers and changed the formula of the candy in addition to crediting the plaintiff for the bad stock of candy. This was also unsuccessful, as the plaintiff subsequently received complaints that the new formula candy turned white and was also unfit for sale and consumption. The final shipment of candy from the defendant to the plaintiff occurred on August 13, 1998. The plaintiff incurred financial losses and communicated this to the defendant, who acknowledged the losses but refused to take any further action. The defendant mailed the plaintiff a check for $25,000 dated on February 20, 2002.
The plaintiff is bringing this action against Golden Apples Candy Co., Inc. and Arthur Baltimore in his individual capacity as president of the company. Any reference made to the defendant is to both Baltimore and Golden Apples Candy Co., Inc.
According to the complaint, purchase orders were written and dated from January 17, 1994 through November 2, 1995; March 8, 1996 through June 4, 1996; June 27, 1996 through August 23, 1996; and March 26, 1998 through August 13, 1998. According to the defendant's affidavit in support of the motion for summary judgment, the first shipment of candy was made on February 28, 1995, and the last shipment was made on August 13, 1998.
The plaintiff filed the present complaint against the defendant on August 19, 2003. The complaint alleges seventeen counts; however, there are basically three theories which the plaintiff alleges arise out of a series of transactions between the plaintiff and defendant. Counts one, two, three, ten, eleven and twelve sound in claims of breach of contract, specifically breach of implied covenant of good faith and fair dealing, and breach of implied warranty of merchantability. Counts five, six, eight, fourteen and fifteen sound in violations of the Connecticut Unfair Trade Practices Act (CUTPA), pursuant to General Statutes § 42-110a et seq. Counts four, seven, nine, thirteen, sixteen, and seventeen sound in intentional tort and intentional misrepresentation.
The defendant has moved for summary judgment, supported by a memorandum of law, and argues that the respective statutes of limitation have expired, barring all claims made by the plaintiff. The plaintiff subsequently filed a memorandum of law in opposition to the motion for summary judgment.
A "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." Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). 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 . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Citations omitted; internal quotation marks omitted.) Barrett v. Montesano, 269 Conn. 787, 791-92, 849 A.2d 839 (2004).
"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). Summary judgment is appropriate on statute of limitation 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).
I BREACH OF CONTRACT CLAIMS
In counts one, two, three, ten, eleven and twelve, the plaintiff alleges that the defendant committed a breach of contract on various occasions, specifically a breach of the implied covenant of good faith and fair dealing and a breach of the implied warranty of merchantability. "Because this case involves the sale of goods, it is governed by Article 2 of the Uniform Commercial Code (UCC). General Statutes § 42a-1-101 through 42a-2-725." Sun Hill Industries v. Kraftsman Group, Inc., 27 Conn.App. 688, 693, 610 A.2d 684, cert. denied, CT Page 16430 223 Conn. 913, 614 A.2d 830 (1992). The statute of limitation for the sale of goods can be found in § 42a-2-725. This statute "is the applicable statute of limitations for breach of warranty claims brought under the UCC." Beckenstein v. Potter Carrier, Inc., 191 Conn. 150, 165, 464 A.2d 18 (1983). "[I]n an action for breach of contract . . . the cause of action is complete at the time the breach of contract occurs, that is, when the injury has been inflicted." Id., 156.
General Statutes § 42a-2-725 provides in pertinent part: "(1) An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued. By the original agreement the parties may reduce the period of limitation to not less than one year but may not extend it. (2) A cause of action accrues when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered."
Based on the facts alleged in the complaint and the supporting evidence, the plaintiff received several shipments of candy from the defendant between 1995 and 1998. The last shipment of candy to the plaintiff was made on August 13, 1998. According to the statute of limitations, the last date the plaintiff could have filed a claim of breach of warranty was on August 12, 2002. Since the plaintiff filed the complaint on August 19, 2003, plaintiff is barred by the statute of limitations as set forth in § 42a-2-725, and summary judgment is granted as to counts one, two, three, ten, eleven and twelve.
II VIOLATIONS OF CUTPA
In counts five, six, eight, fourteen and fifteen, the plaintiff alleges that the defendant committed violations of the Connecticut Unfair Trade and Practice Act. The defendant argues that the statute of limitations bars all claims made by the plaintiff for violations of CUTPA.
"Unlike the statutes of limitation of some other states applicable to unfair trade practices legislation analogous to our CUTPA . . . § 42-110g(f) provides only that an action must be brought within three years after the occurrence of a violation of this chapter." (Citations omitted; internal quotation marks omitted.) Fichera v. Mine Hill Corp., 207 Conn. 204, 212, 541 A.2d 472 (1988). "The three year limitations period for a CUTPA claim is a substantive rather than procedural limitation . . ." (Internal quotation marks omitted.) Chasin v. Pasicki, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV 02 0079444 (April 2, 2004, Bear, J.)
In his complaint, the plaintiff alleges that CUTPA violations occurred on various dates beginning in December 1995 and continuing through February 1997, when the defendant made reassurances to the plaintiff that he would rectify the problems with the bad stock of candy. The last possible date the plaintiff could have filed a complaint for the most recent CUTPA violations was in February 2000. Since the language of 42-110g(f) is clear and unambiguous as to when the statute of limitations begins to run, the plaintiff cannot succeed as to violations of CUTPA. Summary judgment is granted on counts five, six, eight, fourteen and fifteen sounding in violations of CUTPA.
III INTENTIONAL TORT AND INTENTIONAL MISREPRESENTATION
In counts four, seven, nine, thirteen, sixteen, and seventeen, the plaintiff alleges the defendant committed intentional misrepresentation and intentional torts. As stated above, the defendant argues that the statute of limitations has run on any claims made by the plaintiff sounding in intentional tort and intentional misrepresentation.
General Statutes § 52-577 governs the statute of limitations as to claims sounding in tort. "[T]he three-year limitation of § 52-577 is applicable to all actions founded upon a tort which do not fall within those causes of action carved out of § 52-577 and enumerated in § 52-584 or another section." (Internal quotation marks omitted.) Travelers Indemnity Co. v. Rubin, 209 Conn. 437, 441, 551 A.2d 1220 (1988). "Section 52-577 is an occurrence statute, meaning that the time period within which a plaintiff must commence an action begins to run at the moment the act or omission complained of occurs . . . When conducting an analysis under § 52-577, the only facts material to the trial court's decision on a motion for summary judgment are the date of the wrongful conduct alleged in the complaint and the date the action was filed . . . The three year limitation period . . . begins with the date of the act or omission complained of, not the date when the plaintiff first discovers an injury." (Citations omitted; internal quotation marks omitted.) Collum v. Chapin, 40 Conn.App. 449, 451, 671 A.2d 1329 (1996).
General Statutes § 52-577 provides that "[n]o action founded upon a tort shall be brought but within three years from the date of the act or omission complained of."
General Statutes §§ 52-577a— 52-577e enumerate the statutes of limitation for causes of action which are not applicable to this matter.
General Statutes § 52-584 states the statutes of limitation for injuries to person or property caused by negligence, misconduct or malpractice.
From the evidence submitted by the plaintiff, any alleged tortious actions committed by the defendant occurred prior to, and no later than, August 13, 1998. Therefore, any action brought by the plaintiff against the defendant must have been filed no later than August 2001. The claims sounding in tort alleged by the plaintiff cannot succeed, and summary judgment is granted on counts four, nine, thirteen, sixteen, and seventeen.
IV APPLICABILITY OF THE CONTINUING COURSE OF CONDUCT DOCTRINE
In his memorandum in opposition to summary judgment, the plaintiff argues that the defendant sent him a check for $25,000 dated on February 20, 2002, as a payment for the bad stock of candy, and as a result of this act, the continuing course of conduct doctrine becomes applicable. The defendant argues that he felt sorry for the plaintiff and his misfortune, and, as a kind gesture, gave him $25,000 to help him start anew.
In his affidavit dated August 23, 2004, the defendant avers: "I felt sorry for Mr. Kleinman and my wife persuaded me to send him my personal check for $25,000. The check had nothing at all to do with the money which Mr. Kleinman owed to [the defendant]. It was my own personal contribution to assist Mr. Kleinman in his difficulties." On the memo line of the copy of the check, submitted as Exhibit 11, the defendant wrote, "Good luck!"
"To support a finding of a continuing course of conduct that may toll the statute of limitations there must be evidence of the breach of a duty that remained in existence after the commission of the original wrong related thereto. That duty must not have terminated prior to the commencement of the period allowed for bringing an action for such a wrong . . . In such situations, however, the continuing course of conduct is not the failure of the alleged tortfeasor to notify the plaintiff of his wrongdoing . . . (but) consists rather, of either a special relationship between the parties giving rise to such a continuing duty or some later [wrongful] conduct of the defendant related to the prior act." (Internal quotation marks omitted.) Benoit v. Adams, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. CV 92 0122352 (September 2, 1993, Rush, J.) ( 10 Conn. L. Rptr. 27, 8 C.S.C.R. 1203).
Several cases have shown that a special relationship does not exist when the relationship between the parties consists of a contract for a singular service or purchase, or for the sale of a product or goods. In the present case, a contractual relationship between the plaintiff and the defendant for the sale of candy would not be considered a special relationship. In addition, although a genuine issue of fact may exist as to the defendant's motive for sending the $25,000 check, this act cannot be considered a later wrongful conduct related to the prior act.
See Fichera v. Mine Hill Corp., supra, 207 Conn. 209-10 (no evidence to support continuing duty on part of defendant after property sold); Beckenstein v. Potter Carrier, Inc., supra, 191 Conn. 162 (no continuing duty on defendant's part after completion of roof installation); Prokolkin v. General Motors Corp., 170 Conn. 289, 299, 365 A.2d 1180 (1976) (continuing course of conduct theory inappropriate in strict product liability action); Vilcinskas v. Sears, Roebuck Co., 144 Conn. 170, 174, 127 A.2d 814 (1956) (continuing course of conduct inapplicable where act completed by sale of air rifle); Harte Nissan v. Market Scan Information Systems, Inc., Superior Court, judicial district of New Haven at Meriden, Docket No. CV 99 0268959 (January 17, 2003, Fischer, J.) (continuing course of conduct inapplicable where act consists of entering into an agreement for the purchase of computer equipment and software.)
Accordingly, Summary Judgment is hereby granted in favor of the defendants as to all claims asserted in the complaint.
RUSH, J.T.R.