Opinion
No. CV05 500 04 95 S
August 14, 2009
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #127
Whether the court should grant the third-party defendant's motion for summary judgment on count two of the amended third-party complaint on the ground that it does not relate back to the original third-party complaint, and therefore, is untimely as being beyond the six-year statute of limitations. It is submitted that the motion for summary judgment should be denied.
On September 28, 2005, the plaintiff, Ronald Tenay, filed a five-count complaint against the defendants, Gary Oppedisano, individually and d/b/a G O Mechanical and/or G O Mechanical, LLC, as well as G O Mechanical, LLC. The complaint alleges the following facts. In 2002, "the plaintiff and the defendants entered into a written contract for the performance by the defendants of plumbing work in connection with the construction of the plaintiff's house . . . Pursuant to this contract, the defendants were required to install a faucet for the master bathroom sink . . . The defendants failed to make a proper connection between the PVC hot water supply riser and the faucet supply connection for the master bathroom sink. More particularly, the PVC hot water supply riser was not fully inserted into the gasket on the faucet supply connection . . . On . . . September 2, 2005, the connection failed, resulting in the release of water, which flooded the house, causing substantial damage to the plaintiff's real and personal property, as well as resulting in the plaintiff suffering additional living expenses."
Count one alleges a claim in negligence, count two a violation of General Statutes §§ 47-116 and 47-121 based on an implied warranty with the issuance of the certificate of occupancy; count three a claim for breach of contract, count four a claim for breach of express warranties and count five for breach of implied warranties.
On October 27, 2005, the defendants filed a motion to implead the third party defendant, Tonny Navarro d/b/a Tonny's Plumbing Service, on the ground that he may be liable for all or part of the plaintiff's claims against the defendants. The motion was granted by the court on November 15, 2005, the plaintiff filed an amended five-count complaint.
On December 4, 2008, the defendants moved for summary judgment as to the third, fourth, and fifth counts of the plaintiff's amended five-count complaint. On March 24, 2009, Judge Hiller denied the defendants' motion; however, the plaintiff in his memorandum in opposition consented to the entry of summary judgment on counts one and two. Hereinafter, the defendants shall be referred to as the third-party plaintiffs.
On December 1, 2005, the third-party plaintiff's filed a one-count complaint seeking indemnification, based on active/passive negligence, from the third party defendant. The complaint includes allegations from count one of the plaintiff's complaint, and further alleges the following facts. "At all times relevant . . . the third-party plaintiff had subcontracted with and hired the third-party defendant, Tonny Navarro, d/b/a Tonny's Plumbing Service, to complete all of the necessary plumbing work on the subject premises . . . If the plaintiff suffered injuries as alleged in his Complaint, the third-party defendant . . . as the contractor that completed all of the necessary plumbing work, was negligent in failing to complete all necessary plumbing connections on the job in accordance with the applicable plumbing standards . . . If the plaintiff was damaged as alleged in his complaint, the third-party defendants' negligence was primary and active, and the third-party plaintiff was a mere passive party . . . The third-party defendants' negligence . . . was the direct and immediate cause of the plaintiff's injuries . . . The third-party defendants had exclusive control over the situation, by virtue of the relationship between the parties, concerning all aspects of the plumbing work done on the subject premises [and] [t]he third-party plaintiff had no knowledge of the third-party defendants' negligence; had no reason to anticipate the third-party defendants' negligence; and reasonably relied on the third-party defendants to act without negligence."
On March 16, 2009, the third-party plaintiffs filed a request for leave to amend their third-party complaint, as well as an amended third-party complaint. In addition to the allegations from the first count of the original third-party complaint for indemnification based on negligence, the amended third-party complaint added a second count for indemnification, based on breach of contract. On June 19, 2009, the third-party defendant filed a motion for summary judgment as to the second count of the amended third-party complaint, on the ground that because it "is a new cause of action, it speaks as of the date when it was filed and is therefore time barred by [General Statutes] § 52-576," along with a memorandum of law in support of its motion for summary judgment. On July 2, 2009, the third-party plaintiff's filed a memorandum of law in opposition.
On May 29, 2009, the third-party defendant filed an amended motion to strike counts one and two of the amended third-party complaint on the grounds that count one fails "to state a legal theory under which the Third-Party Defendant can be held liable for damages" and count two "is clearly a new cause of action, it speaks as of the date when it was filed and is therefore barred by the statute of limitations." On June 15, 2009, Judge Tobin ordered that the motion was moot as to the first count and denied the motion as to the second count.
"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." (Internal quotation marks omitted.) Allen v. Cox, 285 Conn. 603, 609, 942 A.2d 296 (2008). "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 moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law." (Internal quotation marks omitted.) Neuhaus v. DeCholnoky, 280 Conn. 190, 200, 905 A.2d 1135 (2006). "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).
The third-party defendant does not argue that an issue of material fact exists, nor does he demonstrate one in his pleadings.
"[T]he use of a motion for summary judgment to challenge the legal sufficiency of a complaint is appropriate when the complaint fails to set forth a cause of action and the defendant can establish that by repleading . . . If it is clear on the face of the complaint that it is legally insufficient and that an opportunity to amend it would not help the plaintiff, we can perceive no reason why the defendant should be prohibited from claiming that he is entitled to judgment as a matter of law and from invoking the only available procedure for raising such a claim after the pleadings are closed." (Citation omitted.) Larobina v. McDonald, 274 Conn. 394, 401-02, 876 A.2d 522 (2005).
In his memorandum of law, the third-party defendant argues that the addition of a claim for a breach of contract in the amended third-party complaint is a "new and different" claim. The third-party defendant further argues that because "the breach of contract claim is clearly a new cause of action, it speaks as of the date when it was filed and is therefore barred by the statute of limitations," § 52-576(a), because the amended third-party complaint was filed more than six years after the original complaint.
In opposition, the third-party plaintiffs counter that the allegations of the second count are legally sufficient. Specifically, they argue that "an implied claim for indemnity can arise from the fact that the third-party defendant dishonored a contractual provision," and here, the allegations of the complaint are "sufficient to support a claim for contractual indemnity . . ." The third party plaintiffs further contend "that the amendment does relate back to the claims asserted in the original Third-Party Complaint filed by the defendant. The factual allegations of the Third-Party Complaint are identical in both the original and amended Complaints. The Third-Party Defendant was on notice that he was being sued for his work on this same job, at the same premises for the same actions or inactions, to wit — the alleged failure to properly install the plumbing connections to the master bathroom sink."
"[A]mendments [to a complaint] relate back to the date of the complaint unless they allege a new cause of action." (Internal quotation marks omitted.) Giglio v. Connecticut Light Power Co., 180 Conn. 230, 239, 429 A.2d 486 (1980). "An amendment to a complaint that sets up a new and different cause of action speaks as of the date when it is filed." Keenan v. Yale New Haven Hospital, 167 Conn. 284, 285, 355 A.2d 253 (1974).
"A cause of action is that single group of facts which is claimed to have brought about an unlawful injury to the plaintiff and which entitles the plaintiff to relief . . . A change in, or an addition to, a ground of negligence or an act of negligence arising out of the single group of facts which was originally claimed to have brought about the unlawful injury to the plaintiff does not change the cause of action . . . It is proper to amplify or expand what has already been alleged in support of a cause of action, provided the identity of the cause of action remains substantially the same, but whe[n] an entirely new and different factual situation is presented, a new and different cause of action is stated." (Internal quotation marks omitted.) Dimmock v. Lawrence Memorial Hospital, Inc., 286 Conn. 789, 798, 945 A.2d 955 (2008). Furthermore, "[o]ur relation back doctrine provides that an amendment relates back when the original complaint has given the party fair notice that a claim is being asserted stemming from a particular transaction or occurrence, thereby serving the objectives of our statute of limitations, namely, to protect parties from having to defend against stale claims . . ." (Internal quotation marks omitted.) Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 775, 905 A.2d 623 (2006).
In Alswanger v. Smego, 257 Conn. 58, 65-66, 776 A.2d 444 (2001), our Supreme Court examined two cases that it considered illustrative of its approach to the relation back doctrine. "In Sharp v. Mitchell, 209 Conn. 59, 60, 546 A.2d 846 (1988), three men were asphyxiated in an underground fuel storage facility during the course of their employment. The plaintiffs, the administrators of the decedents' estates, alleged a wrongful death action based on negligent supervision in their first complaint . . . They subsequently amended their complaint to allege that the defendant had negligently designed and constructed the storage facility . . . In concluding that the amended complaint did not relate back to the original complaint, the court held that [t]hese complaints involve two different sets of circumstances and depend on different facts to prove or disprove the allegations of a different basis of liability . . . The defendants did not have fair notice of the claim of negligent construction and design of the underground storage area when the original complaint merely alleged that [the defendant] was negligent in ordering the employees to enter the area." (Citations omitted; internal quotation marks omitted.) Alswanger v. Smego, supra, 65.
The Alswanger court contrasted its conclusion in Sharp with the conclusion it reached in Gurliacci v. Mayer, 218 Conn. 531, 590 A.2d 914 (1991). "In [ Gurliacci], the plaintiff claimed that she had suffered injuries when her vehicle was struck in the rear by a driver who was intoxicated . . . The plaintiff's first complaint alleged that the defendant had acted negligently in operating his automobile while he was intoxicated . . . After the relevant limitations period had passed, the plaintiff amended her complaint to add allegations that the defendant had acted either wilfully, wantonly and maliciously, or outside the scope of his employment . . . In distinguishing Gurliacci from Sharp, we explained that the amendment in Sharp was significant because the defendant would have been required to gather different facts, evidence and witnesses to defend the amended claim . . . In Gurliacci, however, the amendment did not inject two different sets of circumstances and depend on different facts . . ." (Citations omitted; internal quotation marks omitted.) Alswanger v. Smego, supra, 257 Conn. 66. Instead, the amendment "amplified and expanded upon the previous allegations by setting forth alternate theories of liability." Gurliacci v. Mayer, supra, 549. "Accordingly, [the Gurliacci court] concluded that the amended complaint related back to the original complaint." Alswanger v. Smego, supra.
Moreover, in Gurliacci the court noted that "our relation back doctrine is akin to rule 15(c) of the Federal Rules of Civil Procedure, which provides in pertinent part . . . `[w]henever the claim or defense asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth or attempted to set forth in the original pleading, the amendment relates back to the date of the original pleading.' . . . The policy behind rule 15(c) is that a party, once notified of litigation based upon a particular transaction or occurrence, has been provided with all the notice that statutes of limitations are intended to afford . . . Because rule 15 provides that an amendment relates back where the original complaint has given the party fair notice that a claim is being asserted stemming from a particular transaction or occurrence, the objectives of our statute of limitations, namely, to protect parties from having to defend against stale claims, is fully served." (Citations omitted; internal quotation marks omitted.) Gurliacci v. Mayer, supra, 218 Conn. 547-48.
In the present case, the allegations of paragraphs one through five in the second count of the amended third party complaint are almost identical to the same paragraphs in the original complaint. The third party plaintiffs further allege in the second count, however, that "[a]s a licensed professional in this state, the Third-Party Defendant . . . is required to do his work in a workmanlike manner, and that requirement is an implied term of the contract between the parties . . . If the plaintiff suffered injuries as alleged in his Complaint, the third-party defendant . . . as the contractor that completed all of the necessary plumbing work, breached the contact between the Third-Party Plaintiff and the Third-Party Defendant . . . As a result of the Third-Party Defendant's breach of the contract, the Third-Party Plaintiff has suffered damages and will face the possibility of an adverse verdict in the underlying complaint . . . Those damages and potential future damages are the direct and proximate result of the breach of contract by the third party defendants." These additional allegations do not require the admission of different facts, or evidence, nor do they involve two different sets of circumstances from the original complaint — instead, they merely offer an alterative theory of liability.
Furthermore, the original third-party complaint arose from the third-party defendant's alleged negligence in the performance of a subcontract. The original complaint alleged, in particular, that "[a]t all times relevant to this complaint, the third-party plaintiff had subcontracted with and hired the third-party defendant, Tonny Navarro, d/b/a Tonny's Plumbing Service, to complete all of the necessary plumbing work on the subject premises." Having alleged that a subcontract existed, from which the third-party complaint arose, the original complaint gave the third-party defendant fair notice that a claim was being asserted stemming from the contract, and fully served the objectives of our statute of limitations. Therefore, the second count of the amended complaint relates back to the original complaint.
Next, the third-party defendant maintains that since the breach of contract claim began to accrue in May of 2002 when all of the work in the master bathroom was completed and the third-party defendant filed its amended complaint on March 16, 2009, the action is time barred under § 52-576, the operative statute of limitation. Section 52-576(a), states in relevant part: "No action for an account, or on any simple or implied contract, or on any contract in writing, shall be brought but within six years after the right of action accrues . . ." In the present case, the third-party defendants stated in a response to a request for admission that "Tonny's Plumbing Service performed its last work at the premises . . . in August 2002." The third party plaintiffs have not alleged when the breach of contract occurred nor did they file their request for leave to amend their complaint until March 16, 2009. Nevertheless, because count two of the third-party plaintiffs' amended complaint relates back to the original third-party complaint filed on December 1, 2005, which is well within the six-year time period of § 52-576(a), the second count is not barred by the statute of limitations; accordingly, the motion for summary judgment is denied as to this count.