Bartone v. Robert L. Day Co., Inc., s. 15094

• Decision Date: 04 April 1995
• Docket Number: 15096,Nos. 15094,s. 15094
• Citation: 656 A.2d 221,232 Conn. 527
• Court: Connecticut Supreme Court
• Parties: Anthony BARTONE et al. v. ROBERT L. DAY COMPANY, INC., et al.

Page 221

656 A.2d 221

232 Conn. 527

Anthony BARTONE et al. v. ROBERT L. DAY COMPANY, INC., et al.

Nos. 15094, 15096.

Supreme Court of Connecticut.

Argued Feb. 9, 1995.

Decided April 4, 1995.

Constance L. Epstein, with whom, on the brief, was Robert P. Volpe, Hartford, for appellant in Docket No. 15094, appellee in Docket No. 15096 (named defendant).

Philip M. Block, Hartford, for appellees in Docket No. 15094, appellants in Docket No. 15096 (plaintiffs).

Charles J. Irving, New London, for appellees in Docket No. 15096 (defendant Gene Gualazzi et al.).

John R. McLain, Chester, for appellee in Docket No. 15096 (defendant Robert L. Day.).

Thomas A. Kyzivat, Hartford, for appellees in Docket No. 15096 (defendant town of Deep River et al.).

Before PETERS, C.J., and BORDEN, BERDON, KATZ and PALMER, JJ.

PETERS, Chief Justice.

In this case involving the allegedly negligent installation of a septic system as part of a newly constructed home, the principal issue is whether otherwise applicable statutes of limitation have been superseded by the fraudulent concealment of the existence of the home owners' cause of action. The plaintiffs, Anthony Bartone and Linda Bartone, filed an amended complaint charging the defendants Robert L. Day Company, Inc. (Day Company), Robert L. Day and Robert L. Day II, the general contractor, with five counts of tortious misconduct, including a claim that these defendants had violated General Statutes § 42-110b of the Connecticut Unfair Trade Practices Act (CUTPA). ¹ The plaintiffs' fourth amended complaint contained five additional counts claiming similar misconduct on the part of the defendants Gene Gualazzi and Jerry Gualazzi, the installers of the septic system. In three further counts, the plaintiffs' complaint charged the defendant Landon Woodcock, the public health officer of the town of Deep River, and the defendant town of Deep River (town), with negligence and fraud in the issuance of permits relating to the plaintiffs' septic system.

The trial court, Arena, J., granted motions for summary judgment filed by the defendants Gene Gualazzi, Woodcock and the town. The trial court, Arena, J., granted a motion filed by the defendant Jerry Gualazzi to strike the fourth amended complaint insofar as it added an allegation of fraudulent concealment on his part. The trial court, J. Walsh, J., struck the plaintiffs' CUTPA claim, but allowed their remaining counts to be determined by a jury. In accordance with the jury's verdict, the trial court, J. Walsh, J., rendered judgment in favor of Robert L. Day and Robert L. Day II, and against the Day Company.

The plaintiffs have appealed from the granting of the motions for summary judgment and of the motion to strike, and from the verdict with respect to Robert L. Day. The Day Company has appealed from the judgment rendered against it. After consolidation of the appeals, we transferred them from the Appellate Court to this court pursuant to Practice Book § 4023 and General Statutes § 51-199(c). On the Day Company's appeal, we reverse the judgment holding it liable; on the plaintiffs' appeal, we affirm the judgment finding no liability on the part of any of the remaining defendants.

For the purposes of these appeals, the following facts are not disputed. On June 9, 1986, the plaintiffs contracted with the Day Company for the construction of a new home on property in a subdivision in Deep River. Radcliffe Engineering, P.C. (Radcliffe), was the Day Company's subcontractor for the design of the septic system on the plaintiffs' property. Twin Oaks Construction, Inc. (Twin Oaks), was the Day Company's subcontractor for the installation of the septic system; Jerry Gualazzi, a licensed septic system installer, performed the actual work of installation on behalf of Twin Oaks. Woodcock, the sanitarian of the town, issued a permit for the construction of the septic system as designed by Radcliffe. Woodcock subsequently issued a certificate of occupancy, implying that all necessary inspections had been successfully completed, on February 10, 1987. That same day, the closing between the plaintiffs and the Day Company took place.

The parties did not discuss any possible problems with the septic system until March, 1991, more than four years after the date of the closing. On March 6, 1991, at the plaintiffs' request, the Day Company dug up and replaced a portion of damaged piping within the septic system. The damaged pipe was left on the plaintiffs' property. Subsequent investigators of the septic system found its construction to be significantly deficient because of improper fill, foreign objects in the fill, improper placement of pipes and a hole in the septic tank.

Between July, 1991, when the plaintiffs filed their initial complaint, and July, 1993, when they filed their fourth amended complaint, the plaintiffs amplified their pleadings to charge all the defendants with tortious misconduct and violations of CUTPA. Each of the defendants replied by citing applicable statutes of limitations that, on their face, would have barred the plaintiffs' complaint because it had not been filed within three years of "the act or omission complained of." See General Statutes § § 52-577, 52-584 and 42-110g(f). ² In response, the plaintiffs have, in the main, ³ invoked General Statutes § 52-595, which provides: "If any person, liable to an action by another, fraudulently conceals from him the existence of the cause of such action, such cause of action shall be deemed to accrue against such person so liable therefor at the time when the person entitled to sue thereon first discovers its existence." ⁴

The applicability of § 52-595 in the circumstances of this case is, therefore, the dispositive issue in these appeals. The question before us is whether the plaintiffs have adduced any credible evidence that any of the defendants fraudulently concealed the existence of the plaintiffs' cause of action. "To meet this burden, it was not sufficient for the plaintiffs to prove merely that it was more likely than not that the defendants had concealed the cause of action. Instead, the plaintiffs had to prove fraudulent concealment by the more exacting standard of clear, precise, and unequivocal evidence. Beckenstein v. Potter & Carrier, Inc., 191 Conn. 150, 163, 464 A.2d 18 (1983); Puro v. Henry, [188 Conn. 301, 308, 449 A.2d 176 (1982) ]; Alaimo v. Royer, 188 Conn. 36, 39, 448 A.2d 207 (1982)." (Internal quotation marks omitted.) Bound Brook Assn. v. Norwalk, 198 Conn. 660, 666, 504 A.2d 1047, cert. denied, 479 U.S. 819, 107 S.Ct. 81, 93 L.Ed.2d 36 (1986). Under our case law, to prove fraudulent concealment, the plaintiffs were required to show: (1) a defendant's actual awareness, rather than imputed knowledge, of the facts necessary to establish the plaintiffs' cause of action; (2) that defendant's intentional concealment of these facts from the plaintiffs; and (3) that defendant's concealment of the facts for the purpose of obtaining delay on the plaintiffs' part in filing a complaint on their cause of action. Connell v. Colwell, 214 Conn. 242, 250-51, 571 A.2d 116 (1990); Bound Brook Assn. v. Norwalk, supra, 198 Conn. at 665-66, 504 A.2d 1047; Lippitt v. Ashley, 89 Conn. 451, 480, 94 A. 995 (1915). Our examination of the evidence persuades us that the plaintiffs have failed to make such a showing.

The plaintiffs' argument on fraudulent concealment is principally predicated on the proposition that, because a septic system is buried in the course of construction, any defects arising out of its negligent construction or out of its failure to correspond with representations about its reliability are necessarily concealed by those who have any responsibility, direct or indirect, for its construction. ⁵ If that argument were to prevail, it would toll, until the time of discovery, the statute of limitations with respect to any latent defects in a construction project.

The plaintiffs' argument cannot be sustained in light of our decision directing a verdict for similarly situated defendants in Bound Brook Assn. v. Norwalk, supra, 198 Conn. 660, 504 A.2d 1047. In that case, this court held that the defendants could not be held liable for fraudulent concealment without a showing of their actual knowledge of deficiencies in the construction of the plaintiffs' homes. Id., at 668, 504 A.2d 1047. This court further held that the defendants' failure to warn the plaintiffs "after problems had developed" with respect to their homes did not prove fraudulent concealment without a showing that such a failure to warn was motivated by an intent to conceal from the plaintiffs the existence of a cause of action in order to delay their filing suit. Id., at 669-70, 504 A.2d 1047.

Our holding in Bound Brook Assn. is, moreover, fully consistent with statutory policy regarding liability for new home construction. General Statutes § 47-121, ⁶ which provides for a home owner an implied warranty that a newly constructed single-family home complies with the building code, expressly limits such a cause of action to a period of three years from the issuance of a certificate of occupancy. Although noncompliance with the building code often will not be immediately apparent to home owners, the legislature chose not to postpone the running of the statutory cause of action until the time when such noncompliance could reasonably be discovered. The legislature has, therefore, impliedly rejected the broad imposition of liability that the plaintiffs are urging upon us in this case.

The record in this case discloses that, after the issuance of the certificate of occupancy and the closing, none of the defendants said or did anything with respect to the plaintiffs' septic system until well after the expiration of the applicable statutes of limitations. There is no evidence that, during the three year period prescribed by §§ 52-577, 52-584 and 42-110g(f), any of the defendants discovered evidence...