Grigerik v. Sharpe

• Decision Date: 22 December 1998
• Docket Number: (SC 15779)
• Court: Connecticut Supreme Court
• Parties: JOSEPH GRIGERIK v. GARY SHARPE

247 Conn. 293

721 A.2d 526

JOSEPH GRIGERIK v. GARY SHARPE

(SC 15779)

Supreme Court of Connecticut.

Argued September 22, 1998.

Officially released December 22, 1998.

Callahan, C. J., and Borden, Berdon, Norcott and Katz, JS. Timothy Brignole, for the appellant-appellee (plaintiff).

Lorinda S. Coon, with whom was Elizabeth Fairbanks Flynn, for the appellants-appellees (defendants).

Opinion

BORDEN, J.

The dispositive issues in this certified appeal are: (1) whether the seven year limitation period of General Statutes § 52-584a,¹ or the two year limitation period of General Statutes § 52-584,² applies to this action; and (2) whether it is the intent of the promisee of a contractual obligation, rather than the intent of both of the parties to the contract, which determines whether a third party is a beneficiary of the contract in question. The plaintiff, Joseph Grigerik, appeals, and the defendants,³ Gary Sharpe and Angus McDonald-Gary Sharpe and Associates, Inc., cross appeal from the judgment of the Appellate Court. The Appellate Court concluded that: (1) as to the plaintiffs negligence count against the defendants, the two year statute of limitations of § 52-584 applied; and (2) as to the breach of contract count against the defendants by the plaintiff, as a third party beneficiary of the contract, the trial court improperly instructed the jury that it must find that both the contracting parties intended the plaintiff to be a third party beneficiary of the contract. We conclude that: (1) the seven year limitations period of § 52-584a applies to this action; and (2) it is the intent of both parties to a contract that determines whether a third party is a beneficiary of a contract. Accordingly, we reverse the judgment of the Appellate Court.

The plaintiff brought this action against the defendants in two counts.⁴ The first count alleged a breach of the contract between the defendants and Edward Lang, the plaintiffs predecessor in title to an unimproved plot of land in Killingworth. Pursuant to the contract, the defendants had agreed to perform professional engineering services, namely, certain soil testing and site planning necessary to the construction of a septic system that would comply with state and local regulations. The plaintiff claimed to be a third party beneficiary of that contract. The second count was based on the negligence of the defendants in performing these professional services.

With respect to the negligence count, the defendants pleaded, as a special defense, the two year limitations period of § 52-584. The trial court ruled, however, that the negligence action was not barred by that provision. With respect to the breach of contract count, the trial court instructed the jury that, in order for the plaintiff to recover as a third party beneficiary to the contract, he was required to establish that he was either an intended, a contemplated, or a foreseeable beneficiary of the contract between Lang and the defendants.⁵ In response to specific interrogatories, the jury found that, although the plaintiff was neither an intended nor a contemplated beneficiary, he was a foreseeable beneficiary of the contract. The jury found for the plaintiff on both counts, and the trial court rendered judgment for the plaintiff on the verdict.

On the defendants' appeal to the Appellate Court, the court concluded that the two year statute of limitations provided by § 52-584 applied so as to bar the plaintiffs negligence count. With respect to the breach of contract count, the Appellate Court concluded that the trial court's instructions were flawed in two respects: first, in favor of the plaintiff, by permitting him to recover as a foreseeable, rather than an intended beneficiary of the contract; second, in favor of the defendants, by requiring that both parties, rather than just the promisee of the contractual obligation in question, intended to benefit the plaintiff. Accordingly, the Appellate Court reversed the judgment of the trial court, ordered that judgment be rendered for the defendants on the negligence count, and ordered a new trial on the breach of contract count.⁶Grigerik v. Sharpe, 45 Conn. App. 775, 798, 699 A.2d 189 (1997). Both the plaintiff and the defendants sought certification to appeal, and this appeal followed.⁷

On his appeal regarding the negligence count, the plaintiff claims that the Appellate Court improperly concluded that the two year limitation period of § 52-584 applied so as to bar the action. On their cross appeal regarding the breach of contract count, the defendants claim that the Appellate Court improperly concluded that the intent of the promisee only, rather than the intent of both contracting parties, determines whether there is a third party beneficiary to a contract. We agree with the contentions of both the plaintiff and the defendants.

The Appellate Court opinion sets forth the following facts that the jury reasonably could have found. "In 1983, Edward Lang purchased a tract of undeveloped land on Reservoir Road in the town of Killingworth. The property contained a hill, a marshy area, trees and many vines and bushes. Lang removed some of the trees and bushes and also obtained the release of a power line easement that the utility company no longer needed. Because the land was adjacent to a reservoir, it was within a designated watershed area.

"In 1985, Lang negotiated with the plaintiff for the sale of the land. The plaintiff offered $9000 for the property `as is.' He told Lang, however, that he would pay $16,000 if Lang would do the work necessary to obtain the town's approval of the land as a building lot. Lang agreed to do so. Both of them accompanied the sanitarian for Killingworth when he examined the property. He told them that, because the land was within a watershed district, they needed an engineer to prepare a site plan for drainage.

"Lang hired the defendant Gary Sharpe, a professional engineer, and the corporate defendant [Angus McDonald-Gary Sharpe and Associates, Inc.] to prepare a site plan, to design a subsurface sanitary sewage disposal system and to perform the necessary soil testing. Lang told Sharpe that he needed the site plan in order to obtain approval of the land as a building lot and that he had a buyer for the land if the town granted approval.⁸ Sharpe did some of the work necessary for the application and various employees of his firm performed the remainder. They completed their work on the site plan on October 16, 1985. After receiving the site plan from Sharpe, Lang presented it to the Killingworth inland wetlands commission, which granted its approval. On November 19, 1985, Lang sold the property to the plaintiff for $16,000, as they had agreed.

"In the spring of 1986, the plaintiff cleared the land and applied to the town sanitarian for the permits necessary to begin construction of a house in August. The new town sanitarian for Killingworth denied the plaintiff's application for a building permit even though his predecessor had told the plaintiff that the septic system would be approved. The new sanitarian said he was concerned about the suitability of the soil conditions and whether the percolation tests had been performed in the presence of the previous sanitarian. He told the plaintiff that additional percolation tests would have to be performed by an engineer in the presence of a representative of the state department of health (department) during the following spring when the soil would be saturated.

"When the percolation tests were performed on March 5, 1987, it was concluded that a curtain drain would have to be installed on the land in order to control the seasonally high groundwater. After the plaintiff had constructed the curtain drain, more percolation tests were completed and submitted to the department. On May 20, 1987, that department informed the plaintiff that the tests indicated that the land was unsuitable for a septic sewage disposal system. Additional percolation testing was done in the spring of 1989 in the presence of a department representative, who determined that the tests indicated that minimum public health standards for a septic system could not be met and that the building permits could not be issued. "The plaintiff commenced this action by service on Sharpe on September 20, 1989, and, pursuant to a motion to cite in an additional defendant, his corporation was served on June 5, 1991. After a trial, the jury found the issues for the plaintiff and rendered a verdict for damages of $44,024, including interest, on both the negligence and breach of contract counts of the complaint." Grigerik v. Sharpe, supra, 45 Conn. App. 777-79.

I

We first consider the plaintiffs claim, asserted in his appeal; see footnote 7 of this opinion; that the Appellate Court improperly concluded that § 52-584 applied to this action against a professional engineer for negligent soil testing and the negligent design of a site plan. The plaintiff claims that the seven year statute of limitations of § 52-584a; see footnote 1 of this opinion; rather than the two year statute of limitations of § 52-584; see footnote 2 of this opinion; governs the negligence portion of this action. The defendants contend that the Appellate Court properly determined that § 52-584 applies and that the negligence count was therefore barred by the statute of limitations. We conclude that § 52-584a provides the statute of limitations applicable to the plaintiff's negligence claim and that, therefore, the claim was timely brought.

"The process of statutory interpretation involves a reasoned search for the intention of the legislature.... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of this case, including the question of whether the language actually does apply. In seeking to determine that meaning, we look to the words of the statute itself, to the legislative...