Governors Grove Condominium Ass'n, Inc. v. Hill Development Corp., 27614

• Decision Date: 28 January 1980
• Docket Number: No. 27614,27614
• Citation: 414 A.2d 1177,36 Conn.Supp. 144
• Parties: GOVERNORS GROVE CONDOMINIUM ASSOCIATION, INC., et al. v. HILL DEVELOPMENT CORPORATION et al.
• Court: Connecticut Superior Court

Page 1177

414 A.2d 1177

36 Conn.Supp. 144

GOVERNORS GROVE CONDOMINIUM ASSOCIATION, INC., et al. v. HILL DEVELOPMENT CORPORATION et al.

No. 27614.

Superior Court of Connecticut, Judicial District of Middlesex.

Jan. 28, 1980.

Broadman & Noble, Hartford, for plaintiffs.

Dzialo, Pickett & Allen, Hartford, for named defendant.

Hyman, Harding, Asmar & Svonkin, Hartford, for defendant LaCava Const. Co.

BORDEN, Judge.

The plaintiffs are a nonstock corporation which is a condominium association (hereinafter referred to as the association) and two individual condominium owners acting for themselves and for the class of past and present condominium unit owners. The right of the plaintiffs to represent all the class members was determined in an earlier decision in the case. Governors Grove Condominium Ass'n v. Hill Development Corporation, 35 Conn.Sup. 199, 404 A.2d 131. The defendants are Hill Development Corporation and LaCava Construction Company (hereinafter referred to as Hill and LaCava). The plaintiffs' amended complaint (hereinafter referred to as the complaint), dated March 21, 1979, is in four counts, each directed to both defendants. Contesting the legal sufficiency of the allegations to state a claim upon which relief can be granted, both defendants move under § 152 of the 1978 Practice Book to strike each count of the complaint.

The purpose and scope of a motion to strike are identical to those of the demurrer under the previous rules of practice, and the rules which applied to the demurrer apply to the motion to strike. It is axiomatic that the factual allegations of the pleading to which the motion is addressed are to be considered as true; that unsupported legal conclusions are, however, not admitted; and that the motion is tested, not by the bare factual allegations, but "by the facts provable under the allegations of the pleading to which the . . . (motion) is addressed." Fraser v. Henninger, 173 Conn. 52, 60, 376 A.2d 406, 411; Tango v. New Haven, 173 Conn. 203, 205, 377 A.2d 284.

I

The essential allegations of the first count are as follows: In 1971 Hill contracted with LaCava for the construction of thirty-eight condominium units, in ten separate buildings, on land owned by Hill and in accordance with plans and specifications provided by Hill. The plans and specifications called for roofing of cedar shingle over wood stripping. Under the contract Hill conveyed title to the land to LaCava which, conducting itself as general contractor and owner, contracted for or installed the cedar roofs. Hill undertook to act in the capacity of sales agent and was the overall developer of the condominium project. On or about January 26, 1972, when the construction was substantially complete, LaCava conveyed title to the property to Hill, which created and filed on the land records a declaration of condominium. Pursuant to chapter 825 of the General Statutes Hill created the association. The declaration of condominium provided, inter alia, that Hill would designate and select a majority of the association's board of directors so long as Hill owned five or more units. From January 26, 1972, until Hill sold all the units, Hill's control of the association prevented the association from having any separate mind or existence and denied it the ability to act in its own interests or in those of the individuals who became unit owners while Hill was in control of the board of directors. At some time during or after construction Hill and LaCava became aware that the cedar roofs were defective and/or improperly installed. The defective construction was apparent to Hill and LaCava because leaks and seepage from rain and snow were a problem when the property was conveyed from LaCava to Hill. LaCava's construction contract contained an express or implied warranty that its work would be performed in a good and workmanlike manner and in accordance with standard practices for the specified materials. The installation of the cedar roofs violated LaCava's warranty in one or more of eight specified ways, causing specified damages to the plaintiffs.

The gist of the allegations against LaCava in the first count is breach of warranty, express or implied, arising out of the contract between LaCava and Hill. A careful reading of Coburn v. Lenox Homes, Inc., 173 Conn. 567, 378 A.2d 599, makes it clear that the lack of privity between LaCava and the plaintiffs is fatal to the plaintiffs' claim against LaCava.

To the extent that the claim rests on express warranty, "(t)he proposition that one who was neither a party to a contract nor a contemplated beneficiary thereof cannot sue to enforce the promises of the contract merits little discussion. Knapp v. New Haven Road Construction Co., 150 Conn. 321, 189 A.2d 386. We can . . . dispose of the . . . plaintiffs' third count which alleges that the plaintiffs have an action based on express warranties in the contract between the defendant and the original purchaser." Coburn v. Lenox Homes, Inc., supra, 570-71, 378 A.2d 601. Since the first count alleges neither that the plaintiffs were parties to the contract between Hill and LaCava nor that they were third party beneficiaries thereof; see Knapp v. New Haven Road Construction Co., supra, 150 Conn. 325, 189 A.2d 386, it fails to state a claim in express warranty against LaCava upon which relief can be granted.

The plaintiffs' claim in implied warranty is similarly lacking. The court in Coburn v. Lenox Homes, Inc., supra, noted " 'that the overwhelming trend in recent decisions from other jurisdictions, as well as in our own Superior Court, is to invoke the doctrine of implied warranty of workmanship and habitability in cases involving the sale of new homes by the builder.' . . . The cases recognizing an implied warranty covering homes have almost uniformly limited recovery to actions by the original purchaser against the builder-vendor of a new home. . . . We find these limits to be well founded and fatal to the plaintiffs' implied warranty claim." (Citations omitted.) Id. 173 Conn. 571, 378 A.2d 601. The allegations of the first count as against LaCava do not amount to a claim by original purchasers against a builder-vendor. The cases relied on by the plaintiffs are not in point. Hamon v. Digliani, 148 Conn. 710, 174 A.2d 294, and its progeny involved the abolition of the privity requirement as to the manufacture and sale of goods, not homes. Cf. Coburn v. Lenox Homes, Inc., supra, 173 Conn. 572-73, 378 A.2d 559; Hartford v. Associated Construction Co., 34 Conn.Sup. 204, 384 A.2d 390, involved a claim grounded in strict products liability under § 402A of the Restatement (Second) of Torts, and Rossignol v. Danbury School of Aeronautics, Inc., 154 Conn. 549, 227 A.2d 418, involved a claim against the manufacturer and distributor of roofing insulation.

The court in Coburn did appear to imply that where a house is the product of a mass marketing scheme or is designed as a temporary dwelling, and where the builder attempted to insulate itself behind a wall of intermediaries who destroyed the chain of privity, the doctrine of privity might not apply. See Coburn v. Lenox Homes, Inc., supra, 173 Conn. 572-73, 378 A.2d 599. No such facts are provable under the allegations made here, however. The Coburn case also recognized that privity is not a prerequisite to a negligence claim against a home builder-vendor; but no such claim is alleged here. Id., 574-76, 378 A.2d 599.

As against Hill the first count is an a fortiori case. Not only does the count fail to allege that the plaintiffs were parties to the contract or intended beneficiaries thereof, or that they were in privity with the implied warrantor, but it also fails to allege any warranty by Hill. The only warranty, express or implied, alleged is that of LaCava.

The plaintiffs claim in their brief that Hill's liability is based on a theory of a joint enterprise between Hill and LaCava. There is, however, no allegation of that in the first count, nor would the allegations of the business relationship between the defendants, even read broadly, permit proof thereof. Nor are there any allegations of a combination of property, money, efforts, skill or knowledge in a common undertaking, with sharing of profits and losses, necessary to spell out a claim of joint adventure or enterprise. See Wall v. Wason, 146 Conn. 32, 36, 147 A.2d 200; Lesser v. Smith, 115 Conn. 86, 89, 160 A. 302. And, in any event, in order for this theory to avail the plaintiffs, sufficient facts have to be alleged to hold liable one of the alleged joint adventurers. That has not been done.

The plaintiffs also claim in their brief that the first count contains allegations that Hill "created and controlled the construction." Suffice it to say that, while this claim may appear in the brief, the court does not perceive it in the complaint.

Accordingly, the motion to strike the first count is granted as to both defendants.

II

The second count incorporates the allegations of the first count and adds that Hill's "undertaking to act as developer and sales agent of the subject Condominium created an express or implied warranty of quality by 'Hill' in favor of unit buyers which warranty applied to the quality of construction of the roofs."

As against LaCava, the second count adds nothing to the first count. Therefore the motion to strike is granted as to LaCava.

As against Hill, the additional allegation supplies the missing link in the chain of privity. While the pleading is something less than a model of artfulness, it would permit proof of facts that Hill sold condominium units to some of the members of the class represented by the plaintiffs and that those sales carried a warranty with them. ¹ As to the nature of that warranty, the allegation is that it was a "warranty of quality . . ." which applied to the quality of construction of the roof. Again, while this may be somewhat general, it can only be reasonably...