Opinion
HHDCV126037168S
12-03-2015
Mark Limberger v. Burke Ridge Construction, LLC et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#110)
Sheila A. Huddleston, Judge.
The plaintiff brought this action to recover damages arising out of an alleged employment relationship with his sister and brother-in-law. Currently pending before the court is the defendants' motion for summary judgment, which asserts numerous grounds for " dismissal" of the action and claims that various counts of the action are time-barred. As discussed below, the defendants' summary judgment motion was procedurally flawed and provided no evidentiary support for its assertions. The plaintiff promptly objected to the motion, which then was not claimed for argument for almost a year. After retaining new counsel, the defendants filed a reply to the plaintiff's objection and asserted in that reply both new grounds and new arguments for summary judgment. The defendants also offered an affidavit in support of the motion for the first time with their reply brief. For the reasons discussed below, the procedural irregularities in the defendants' motion and the lack of timely evidentiary support for the motion preclude the granting of summary judgment on several of the defendants' claims. As to certain of the claims, moreover, there are disputed issues of material fact. Finally, some of the defendants' claimed grounds for summary judgment fail as a matter of law. The motion for summary judgment is therefore denied.
Procedural History
The plaintiff, Mark Limberger, brought this action in seven counts against his sister, Christa Burke, her husband, William Burke, and William Burke's construction company, Burke Ridge Construction, LLC. The plaintiff alleges that his brother-in-law and sister agreed to pay him for working for their family businesses, including Burke Ridge Farm, which is not a defendant, and Burke Ridge Construction, which is a defendant. He claims that all defendants used his services as a laborer and farm worker from September 2009, through early October 2010, without ever paying him for his work. The plaintiff asserts claims of unjust enrichment (first count); violation of General Statutes § 31-71f (second count); innocent misrepresentation (third count); collection of a lawful debt (fourth count); breach of oral contract (fifth count); fraudulent misrepresentation (sixth count); and willful detainer of funds in violation of General Statutes § § 52-564 (civil theft) and 53a-119 (criminal larceny) (seventh count). The complaint was served on the defendants on November 7, 2012 and filed with the court on November 15, 2012.
The defendants denied all the allegations of the plaintiff's complaint except paragraphs two and three of the first count, which allege that Christa Burke is the plaintiff's sister and an owner and operator of Burke Ridge Farm (paragraph two); and that William Burke is her husband and the owner of Burke Ridge Construction (paragraph three). On June 27, 2014, the defendants filed a motion for summary judgment in which they asserted that: (1) the first count is barred by the doctrine of laches; (2) all claims against Christa Burke should be " dismissed" because the plaintiff's interrogatory responses had not identified anything that she had done; (3) the second, third, and fifth counts are barred by the statute of limitations in General Statutes § 52-281; (4) the second, fourth, and fifth counts are barred by the statute of limitations in General Statutes § 52-296; (5) the third count should be " dismissed" because there is no cognizable cause of action for " innocent misrepresentation" and the plaintiff does not allege that the defendants failed to exercise reasonable care in communicating the information; (6) the fourth count (" collection of a lawful debt") merely restates the breach of contract and wage claims (counts five and two, respectively) and is barred by the statute of limitations applicable to those counts; (7) the fifth count (" breach of oral contract") is barred by the statute of frauds, General Statutes § 52-550(a)(5) and further should be " dismissed" because the plaintiff failed to allege that the parties agreed upon an essential term, the amount of wages; (8) the sixth count (fraudulent misrepresentation) should be " dismissed" because the plaintiff failed to allege that the defendants knew the statement was untrue when it was said; and (9) the seventh count (willful detainer of funds) should be " dismissed" because the plaintiff failed to allege that the defendants failed to exercise reasonable care in communicating information, that the defendants supplied the information to the plaintiff to induce the plaintiff to act on it, and that the defendant justifiably relied on the information to his injury.
The defendants' motion for summary judgment, memorandum in support of the motion, and the special defense filed after the motion for summary judgment all erroneously cite General Statutes § 52-281 as the statute of limitations applicable to oral contracts. In fact, the statute of limitations for oral contracts is General Statutes § 52-581. On May 5, 2015, the defendants filed a request to amend and amended special defenses to correct the error and identify § 52-581 as the statute of limitations applicable to oral contracts.
The defendants' motion erroneously cites § 52-296 as the statute of limitations for actions for payment of remuneration for employment, when in fact the relevant statute is § 52-596. The defendants' memorandum in support of their motion cites § 52-596 once and § 52-296 once. The special defense filed after the motion accurately cites § 52-596.
The plaintiff objected to the defendant's motion for summary judgment on July 23, 2014, and submitted a memorandum of law with a supporting affidavit and other exhibits in opposition. Among other responses, the plaintiff argued that the defendant had not filed any special defenses and therefore could not seek summary judgment on laches or statute of limitations grounds. The next day, the defendants filed a request for leave to amend their answer and an amended answer asserting five special defenses: (1) the claims are barred by General Statutes § § 52-596, 52-281, and 52-577; (2) laches; (3) unclean hands; (4) the statute of frauds, General Statutes § 52-550(a)(5); and (5) payment. The plaintiff did not object to the amendment. On August 6, 2014, the plaintiff filed a reply to the special defenses, denying each and all of them.
The plaintiff's other arguments against summary judgment will be set out in more detail in the analysis below.
On May 5, 2015, the defendants requested leave to amend to correct the scrivener's error in the special defense citing § 52-281 so that the amended special defense correctly stated § 52-581. The plaintiff, whose opposition to the summary judgment motion had assumed that § 52-581 was the intended statute, did not object to the correction of that error.
The motion for summary judgment was not claimed for argument before May 13, 2015, when a court trial in the case was scheduled to begin. On the eve of trial, May 12, 2015, the defendants filed a request to amend the answer to add the special defense that General Statutes § 52-584 barred certain of the plaintiff's claims. The plaintiff objected to the amendment on the same date. The trial did not go forward for unrelated reasons. On June 19, 2015, the defendants filed a " reply" to the plaintiff's objection to summary judgment, in which they asserted, among other claims, that General Statutes § 52-584 bars the claims for innocent and fraudulent misrepresentation. On July 27, 2015, the plaintiff filed a supplemental objection in response. The parties argued the objection to the request for leave to amend the answer and the motion for summary judgment and objections thereto on July 28, 2015. The court granted the request for leave to amend the answer to assert the special defense of § 52-584 in view of the fact that the trial had been postponed and no additional discovery would be required to address the added defense. Trial is currently scheduled to commence on March 22, 2016.
Undisputed Facts
The plaintiff's complaint was served on the defendants on November 7, 2012. In his complaint, the plaintiff alleges that he last worked for the defendants in October 2010. In an affidavit, he avers that his employment was terminated by the defendants on or about October 7, 2010. Although the defendants deny that they employed the plaintiff at all during the period in question, they rely on the alleged date of termination--October 7, 2010--as the basis for their arguments concerning the various statutes of limitations they assert as special defenses. All other material facts are in dispute.
Summary Judgment Standard
A motion for summary judgment should be granted when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Practice Book § 17-49; Bellemare v. Wachovia Mortgage Corp., 284 Conn. 193, 198-99, 931 A.2d 916 (2007). 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 such issues exist. RMS Residential Properties, LLC v. Miller, 303 Conn. 224, 233, 32 A.3d 307 (2011). The movant has the burden of showing the nonexistence of any issue of fact. Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008). Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment. Nash v. Stevens, 144 Conn.App. 1, 15, 71 A.3d 635, cert. denied, 310 Conn. 915, 76 A.3d 628 (2013). " [T]he party moving for summary judgment . . . is required to support its motion with supporting documentation, including affidavits." (Internal quotation marks omitted.) Romprey v. Safeco Ins Co. of America, 310 Conn. 304, 324 n.12, 77 A.3d 726 (2013). " Likewise, [t]he existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence." (Internal quotation marks omitted.) United States Bank, N.A. v. Foote, 151 Conn.App. 620, 632-33, 94 A.3d 1267, cert. denied, 314 Conn. 930, 101 A.3d 952 (2014). The court must construe all evidence in the light most favorable to the nonmoving party. See DiPietro v. Farmington Sports Arena, LLC, 306 Conn. 107, 116, 49 A.3d 951 (2012).
Analysis
The first question presented is which of the defendants' grounds in support of summary judgment are appropriately before the court. The plaintiff raises three general arguments for denying the motion for summary judgment: (1) the defendants request " dismissal" of several of the claims but do not raise any jurisdictional issues and have long since waived any claims based on personal jurisdiction; (2) to the extent that the defendants challenge the legal sufficiency of any count, such claims should have been raised by a motion to strike, not a motion for summary judgment; and (3) several of the defendants' grounds for summary judgment depend on special defenses that had not been pleaded when the motion for summary judgment was filed.
Claims for " Dismissal"
With respect to the defendants' claim that certain counts should be " dismissed, " the court agrees with the plaintiff. Practice Book § 10-30(a) provides that " [a] motion to dismiss shall be used to assert: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) insufficiency of process; and (4) insufficiency of service of process." Practice Book § 10-30(b) additionally provides that " [a]ny defendant, wishing to contest the court's jurisdiction, shall do so by filing a motion to dismiss within thirty days after the filing of an appearance." Practice Book § 10-32 provides in relevant part that " [a]ny claim of lack of jurisdiction over the person or improper venue or insufficiency of process or insufficiency of service of process is waived if not raised by a motion to dismiss filed . . . within the time provided by Section 10-30."
The defendants have not raised any colorable arguments that affect the court's jurisdiction over the subject matter. Any claims relating to other grounds of dismissal were waived when the defendants failed to raise them within thirty days after their counsel first appeared on their behalf on January 15, 2014. Accordingly, to the extent that the motion for summary judgment seeks " dismissal" of any claims, it is denied.
Claims of Legal Insufficiency
Citing Practice Book § § 10-6 and 10-7, the plaintiff also argues that the defendants have waived the right to challenge the legal sufficiency of any of the counts. A pretrial challenge to the legal sufficiency of a claim generally should be raised by a motion to strike rather than a motion for summary judgment. See Practice Book § 10-39. There is, however, an exception to this general rule. A summary judgment motion may be used to challenge the legal sufficiency of a complaint " when the complaint fails to set forth a cause of action and the defendant can establish that the defect could not be cured by repleading." Larobina v. McDonald, 274 Conn. 394, 401, 876 A.2d 522 (2005).
In this case, the defendant asserts that the third count should be " dismissed" because there is no recognized cause of action for " innocent misrepresentation" in Connecticut and the plaintiff has failed to allege the necessary elements of negligent misrepresentation. The defendant's argument that there is no cause of action for innocent misrepresentation is mistaken. The Supreme Court has held " that liability for innocent misrepresentation is not a novelty in this state, that such liability is based on principles of warranty, and that such warranty law is not confined to contracts for the sale of goods." Johnson v. Healy, 176 Conn. 97, 102, 405 A.2d 54 (1978). The defendants failed to present any analysis of the elements of a claim for innocent misrepresentation. See Restatement (Second) of Torts, § 552C. In the absence of any briefing addressing the elements of a claim of innocent misrepresentation, the court declines to enter summary judgment for the defendants on the ground that the claim of innocent misrepresentation is legally insufficient.
The Restatement (Second) of Torts, § 552C, states in relevant part: " One who, in a sale, rental or exchange transaction with another, makes a misrepresentation of a material fact for the purpose of inducing the other to act or to refrain from acting in reliance upon it, is subject to liability to the other for pecuniary loss caused to him by his justifiable reliance upon the misrepresentation, even though it is not made fraudulently or negligently."
The defendants also argue that the claim of fraudulent misrepresentation should be " dismissed" because the plaintiff has failed to allege all the essential elements of the claim. This is a claim that should have been asserted as a motion to strike, which would have allowed the plaintiff the opportunity to replead if the motion had been granted. Because the defendant has not established that the plaintiff could not have repleaded a legally sufficient claim for fraudulent misrepresentation, summary judgment on this ground is not warranted. See Larobina v. McDonald, supra, 274 Conn. 401.
Claims of Evidentiary Insufficiency
The defendants further assert that all claims against Christa Burke should be dismissed because, in his response to interrogatories, the plaintiff failed to identify any particular conduct by Christa Burke. The court disagrees. The interrogatory responses include an itemization of time worked by the plaintiff for the defendants and includes time worked at the garden shop, which allegedly was operated by Christa Burke. " [O]n summary judgment the inferences to be drawn from the underlying facts . . . must be viewed in the light most favorable to the party opposing the motion." (Internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 558, 791 A.2d 489 (2002). In addition, in opposing the summary judgment motion, the plaintiff submitted supplemental interrogatory responses and an affidavit that identifies alleged acts by Christa Burke in support of his claim that she agreed to pay him for his work on the family farm and in the garden shop. There are disputed issues of material fact with respect to promises made by Christa Burke and with respect to whether she was unjustly enriched by the plaintiff's labor. Accordingly, the motion for summary judgment is denied insofar as it attempts to secure dismissal of all claims against Christa Burke.
Statute of Frauds
The defendants also contend that they are entitled to summary judgment because the plaintiffs' claims are barred by the statute of frauds, General Statutes § 52-550(a)(5). That section provides in relevant part as follows: " No civil action may be maintained in the following cases unless the agreement, or a memorandum of the agreement, is made in writing and signed by the party, or the agent of the party, to be charged: . . . (5) upon any agreement that is not to be performed within one year from the making thereof." The plaintiffs argue that the statute of frauds does not apply where performance of an agreement may occur within a year. The Supreme Court has held that " [a] contract is not within this [latter] clause of the statute unless its terms are so drawn that it cannot by any possibility be performed fully within one year . . ." (Internal quotation marks omitted.) Appleby v. Noble, 101 Conn. 54, 57, 124 A. 717 (1924). More recently, the court undertook an extensive analysis of the statute of frauds and observed that " the one-year provision no longer seems to serve any purpose very well, and today its only remaining effect is arbitrarily to forestall the adjudication of possibly meritorious claims. For this reason, the courts have for many years looked on the provision with disfavor, and have sought constructions that limited its application." C.R. Klewin, Inc. v. Flagship Properties, Inc., 220 Conn. 569, 577, 600 A.2d 772 (1991). The court concluded: " Because the one-year provision is an anachronism in modern life . . . we are not disposed to expand its destructive force . . . We therefore hold that an oral contract that does not say, in express terms, that performance is to have a specific duration beyond one year is, as a matter of law, the functional equivalent of a contract of indefinite duration for the purposes of the statute of frauds. Like a contract of indefinite duration, such a contract is enforceable because it is outside the proscriptive force of the statute regardless of how long completion of performance will actually take." (Internal quotation marks omitted; citation omitted.) Id., 582-84.
In this case, the plaintiff alleges an oral contract of indefinite duration. The defendants have not produced any evidence to show that they contracted for a period greater than one year--indeed, they deny that they contracted for the plaintiff's services at all. Accordingly, under the court's holdings in Appleby and C.R. Klewin, the alleged oral contract is not within the statute of frauds. Summary judgment is therefore denied on that ground.
Special Defenses
The defendants also relied upon the doctrine of laches and various statutes of limitation in their summary judgment motion. The plaintiff opposed summary judgment on these grounds because the defendants had not pleaded any special defenses. On July 23, 2014, immediately after receiving the plaintiff's objection, the defendants filed a request to amend its answer with an attached amended answer with special defenses. The plaintiff did not object to the request for amendment, and the amendment accordingly became operative fifteen days after the date of its filing, several months before the summary judgment motion was argued. See Practice Book § 10-60(a)(3). On May 5, 2015, the defendants requested leave to amend their special defenses to assert General Statutes § 52-584 as a bar to certain of the plaintiff's claims. The plaintiff objected to that request on May 12, 2015. On June 19, 2015, the defendants filed a reply to the objection to summary judgment filed by the plaintiff some eleven months earlier. The reply was supported by an affidavit by William Burke and asserted arguments that had not been made in the motion or initial brief. The plaintiff filed a supplemental objection to the summary judgment motion on July 27. In that supplemental objection, the plaintiff had an opportunity to address the special defenses allowed by amendment in 2014 and the arguments made by the defendants in the reply brief. Because the defendants' answer was amended to include special defenses based on their claim that the doctrine of laches and General Statutes § § 52-581, 52-596, and 52-577 barred certain of the plaintiff's claims, and because the plaintiff had an opportunity to address the substance of those defenses, the court will consider them.
The court declines, however, to consider any claim that the defendants are entitled to summary judgment on the ground of the statute of limitations in General Statutes § 52-584. This claim was not raised in the motion for summary judgment filed on June 27, 2014. The defendants filed a request to amend their special defenses to include a defense based on § 52-584 on May 12, 2015, but the plaintiff filed an objection to that request on the same day. Although the request and objection had not been adjudicated, on June 19, 2015, the defendants filed their reply to the plaintiff's objection to summary judgment and argued, for the first time, that they were entitled to summary judgment as to certain counts based on § 52-584. It is well established that a party may not raise a claim for the first time in a reply brief. See e.g., Perez v. State Farm Fire & Casualty Co., Superior Court, judicial district of Danbury, Docket No. CV-13-6012334-S (March 13, 2015, Ozalis, J.) , citing Reardon v. Zoning Board of Appeals, 311 Conn. 356, 367 n.10, 87 A.3d 1070 (2014).
When the defendants' reply was filed, moreover, the plaintiff's objection to the defendant's request to amend their special defenses to include a defense based on § 52-584 was still pending. Although the court overruled the objection and granted the motion to amend the special defense at the hearing on July 28, 2015, the plaintiff had based his opposition at that argument on the fact that § 52-584 had not been properly pleaded as a special defense-an argument that was valid until the court granted the request to amend. The defendants will have an opportunity at trial to present evidence and make their arguments regarding the applicability of § 52-584 and all other special defenses that have been pleaded.
Laches
The defendants assert that the first count, which sounds in unjust enrichment, is barred by the doctrine of laches because the plaintiff alleges that he last worked for the defendants in October 2010, but did not commence this action until November 2012, more than two years later. The plaintiff responds that his delay was based on his family relationship and his belief that the defendants would eventually pay him.
" The defense of laches, if proven, bars a plaintiff from seeking equitable relief in a case in which there has been an inexcusable delay that has prejudiced the defendant . . . First, there must have been a delay that was inexcusable, and, second, that delay must have prejudiced the defendant . . . A conclusion that a plaintiff has been guilty of laches is one of fact for the trier and not one that can be made by [an appellate] court, unless the subordinate facts found make such a conclusion inevitable as a matter of law . . ." (Internal quotation marks omitted.) Florian v. Lenge, 91 Conn.App. 268, 281, 880 A.2d 985 (2005). " The mere lapse of time does not constitute laches . . . unless it results in prejudice to the [opposing party] . . . as where, for example, the [opposing party] is led to change his position with respect to the matter in question." (Internal quotation marks omitted.) R.F. Daddario & Sons, Inc. v. Shelansky, 123 Conn.App. 725, 737, 3 A.3d 957 (2010).
In this case, the plaintiff has clearly alleged an equitable claim for relief based in the doctrine of unjust enrichment. " The equitable remedy of unjust enrichment may be invoked when justice requires that a party be compensated for . . . services rendered under a contract, and no [legal] remedy is available by an action on the contract . . . As an equitable right, unjust enrichment is based on the principle that in a given situation, it is contrary to equity and good conscience for the defendant to retain a benefit [that] has come to him at the expense of the plaintiff . . . Plaintiffs seeking recovery for unjust enrichment must prove (1) that the defendants were benefited, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs' detriment." (Citation omitted; internal quotation marks omitted.) Nation Electrical Contracting, LLC v. St. Dimitrie Romanian Orthodox Church, 144 Conn.App. 808, 815, 74 A.3d 474 (2013).
" [T]he defense of laches does not apply unless there is an unreasonable, inexcusable, and prejudicial delay in bringing suit . . . Delay alone is not sufficient to bar a right; the delay in bringing suit must be unduly prejudicial." (Citations omitted; internal quotation marks omitted.) Cummings v. Tripp, 204 Conn. 67, 88, 527 A.2d 230 (1987). The defendants assert that they have been prejudiced by the plaintiff's delay in bringing this action because the delay prevented them from gathering evidence to defend against his claims. The plaintiff responds that a defense of laches is a question of fact for the trier of fact that requires examination of all the circumstances. He also asserts that the defendants were aware that he was seeking payment for his labor from the time that they terminated him.
The defendants have not presented any evidence that they have been prejudiced in any way by the filing of the complaint just over two years after the last date the plaintiff allegedly worked for them. Although they assert, in a conclusory manner, that they have been prejudiced, they did not present any evidence or analysis in support of that assertion. There are disputed issues of material fact with respect to the equitable defense of laches. The defendants' motion for summary judgment is accordingly denied as to that special defense.
Statutes of Limitation
" Summary judgment may be granted where the claim is barred by the statute of limitations . . . Summary judgment is appropriate on statute of limitations grounds when the material facts concerning the statute of limitations [are] not in dispute . . ." (Citation omitted; internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, supra, 310 Conn. 313. " [I]n the context of a motion for summary judgment based on a statute of limitations special defense, a defendant typically meets its initial burden of showing the absence of a genuine issue of material fact by demonstrating that the action had commenced outside of the statutory limitation period . . . When the plaintiff asserts that the limitations period has been tolled by an equitable exception to the statute of limitations, the burden normally shifts to the plaintiff to establish a disputed issue of material fact in avoidance of the statute." Id., 321.
General Statutes § 52-581
In the special defenses filed on July 23, 2014, the defendants asserted that General Statutes § 52-281 (later corrected to cite § 52-581) bars any claims for damages based on an oral contract under the fourth or fifth counts of the complaint insofar as the claim arose more than three years before November 7, 2012, when the defendants were served with the writ, summons, and complaint in this action. Because the plaintiff claims that his employment commenced shortly after Labor Day in 2009, the defendants seek to bar his claim for damages for any dates worked between September 2009, and November 7, 2009. The plaintiff argues in response that his cause of action did not accrue until he was terminated in October 2010, and therefore all of his claims are timely under § 52-581. The court concludes that § 52-581 does not bar the plaintiff's claims, but for a reason different from that argued by the plaintiff.
General Statutes § 52-581 provides in relevant part: " (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." Although the statute appears on its face to apply to any oral contract, our appellate courts have held that it applies only to executory contracts. In comparing the three-year statute of limitations found in § 52-581 with the six-year statute of limitations for contracts in § 52-576, the Appellate Court observed: " 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 (2007).
In this case, the complaint alleges that the defendants agreed to pay the plaintiff and that the plaintiff in fact worked for the defendants for a period of some fourteen months without being paid. It is clear, therefore, that the plaintiff claims to have fully executed his obligations under the alleged contract, and he seeks compensation for work he performed. Because the alleged contract was an executed contract, the statute of limitations in § 52-581, as interpreted by the Supreme and Appellate Courts, does not apply to bar the action.
General Statutes § 52-577
In their motion for summary judgment, the defendants claimed that General Statutes § 52-577 bars the plaintiff's claim for relief in the third count (innocent misrepresentation), sixth count (fraudulent misrepresentation), and seventh count (wilful detainer of funds) as to any damages incurred before November 7, 2009. 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." The defendants' brief contained no analysis of this issue and no citation to any authority other than the statute itself. Moreover, the defendants apparently abandoned this special defense as to the third and sixth counts when, on May 12, 2015, they filed a request to amend the special defense to assert the claim that General Statutes § 52-584 applies to claims of negligent and fraudulent misrepresentation. Because the defendants' argument regarding § 52-577 is inadequately briefed and apparently abandoned in favor of the shorter statute of limitations in § 52-584, summary judgment on this claimed statute of limitations is denied.
General Statutes § 52-596
In their motion for summary judgment, the defendants asserted that General Statutes § 52-596 applied to bar the plaintiffs' legal claims in counts two (violation of § 31-71f), four (collection of a lawful debt), and five (breach of oral contract). Section 52-596 provides in relevant part: " No action for the payment of remuneration for employment payable periodically shall be brought but within two years after the right of action accrues . . ." The plaintiff objected to the defendants' assertion of § 52-596, stating that he had not claimed that his compensation was to be " payable periodically." He relied on Evans v. Tiger Claw, Inc., 141 Conn.App. 110, 121 n.16, 61 A.3d 533 (2013), and Burns v. Koellmer, 11 Conn.App. 375, 527 A.2d 1210 (1987), in support of his argument that a court could conclude that particular contracts for employment were not for compensation that was " payable periodically." In their reply to the plaintiff's objection, the defendants attached an affidavit by William Burke, who attested that all employees of Burke Ridge Construction are paid periodically on a biweekly basis; that the plaintiff had been paid on a biweekly basis when he was employed by Burke Ridge Construction in 2006 and 2007, and would have been paid on the same basis if he had been subsequently employed by it. In the same reply, the defendants also attempted to expand their claim to assert that § 52-596 bars the plaintiff's claims in all counts except count one.
The court will consider the claim only as it relates to the assertions in the defendants' motion for summary judgment, not as it relates to claims asserted for the first time in their reply brief. See Perez v. State Farm Fire & Casualty Co, supra, Superior Court, Docket No. CV-13-6012334-S (declining to grant summary judgment on argument raised for first time in reply brief). Similarly, the court will not consider the affidavit submitted with the defendants' reply. See Bagley v. Adel Wiggins Group, Superior Court, judicial branch of Fairfield, Docket No. CV-12-6024725-S (July 28, 2015, Bellis, J.) (" the submission of new evidence with a reply brief is improper").
In count two, the plaintiff claims that the defendants violated General Statutes § 31-71f by failing to provide him with certain written information. General Statutes § 31-71f provides as follows: " Each employer shall: (1) Advise his employees in writing, at the time of hiring, of the rate of remuneration, hours of employment and wage payment schedules, and (2) make available to his employees, either in writing or through a posted notice maintained in a place accessible to his employees, any employment practices and policies or change therein with regard to wages, vacation pay, sick leave, health and welfare benefits and comparable matters."
The complaint does not state how the plaintiff was harmed by the defendants' alleged failure to provide this information or what damages are claimed in relation to it. The defendants, however, did not file a request to revise or a motion to strike count two. Had they done so, the plaintiff might have been able to replead and clarify the nature of his claim and the damages sought under this theory.
The defendants argue that count two is untimely because General Statutes § 31-71(b) requires an employer to make regular weekly payment of wages, and General Statutes § 52-596 therefore applies to any claims arising under § 31-71f. The plaintiff does not dispute that General Statutes § 52-596 may apply to claims under § 31-71f, but does dispute the factual basis for applying § 52-596 to the plaintiff. Cases construing § 52-596 make it clear that there can be factual issues concerning whether wages are " payable periodically." See Evans v. Tiger Claw, Inc., supra, 141 Conn.App. 121 n.16. On a motion for summary judgment, the movants bear the burden of establishing the nonexistence of any material facts in dispute. Because the defendants dispute that they employed the plaintiff at all, and because they failed to provide any evidentiary support for the claim that the plaintiff, if employed by them, would have been paid periodically, they have failed to meet this burden with respect to count two. The record before the court is insufficiently developed to allow the granting of summary judgment on this count.
There is no § 31-71(b) in the General Statutes. The court assumes that the defendants intended to invoke General Statutes § 31-71b, which does require employers to pay wages on a weekly basis.
The defendants also claimed that counts four and five are barred by § 52-596. In count four, the plaintiff asserts that he is entitled to at least the minimum wage for his work for the defendants, and in count five, he claims that he had an oral contract with the defendants, under which he would provide services and the defendants would pay him " lawful and reasonable compensation." The defendant argues that counts four and five are both essentially claims for wages because they arise out of the same alleged transactions and occurrences. See Veits v. Hartford, 134 Conn. 428, 439, 58 A.2d 389 (1948) (a cause of action is " the group of facts upon which the plaintiff bases his claims for relief"). The plaintiff does not dispute that § 52-596 is a statute of limitations applicable to certain wage claims, but he challenges the factual basis for the application of § 52-596 in this case on the ground that he has not claimed payment that was payable periodically. Since the defendants do not admit that they employed him at all and did not present any evidence related to periodic payments in their summary judgment motion, there is an insufficient factual basis on which to grant summary judgment on this claim at this stage in the litigation.
Conclusion
The defendants' claims that the action should be dismissed are denied because they do not raise any issues with respect to the court's subject matter jurisdiction. The defendants' claims that certain of the plaintiff's counts are legally insufficient are claims that should have been raised in a motion to strike so that the plaintiff would have had the opportunity to replead. Because the defendants have not demonstrated that the plaintiff could not have repleaded a legally sufficient claim if certain counts had been stricken, summary judgment is inappropriate. The defendants' claim that all counts as to Christa Burke should be dismissed for lack of evidence is rejected because genuine issues of material fact are disputed.
The statute of frauds does not bar this action. General Statutes § 52-550(a)(5), governing oral contracts with a duration greater than a year, does not apply because the contract alleged in this action was of indefinite duration and does expressly require performance in a period greater than one year.
Finally, summary judgment is not warranted on the defendants' various claims regarding statutes of limitation. The defendants' claim that § 52-581 bars recovery of damages incurred more than three years before November 7, 2012, fails as a matter of law. Because the plaintiff has alleged that he fully performed his obligations under the agreement, his action is not subject to the bar of § 52-581, which applies solely to executory contracts. The defendants' claim that § 52-577 bars certain of the plaintiff's claims appears to have been abandoned. The defendants' claim that § 52-596 bars all of the plaintiff's claims for wages involves disputed issues of material fact regarding whether the plaintiff was entitled to remuneration payable periodically. The court declines to address § 52-584 because it was not raised in the defendant's motion.
For all the reasons stated above, summary judgment is denied.