Limberger v. Burke Ridge Construction, LLC
| Decision Date | 03 December 2015 |
| Docket Number | HHDCV126037168S |
| Court | Connecticut Superior Court |
| Parties | Mark Limberger v. Burke Ridge Construction, LLC et al |
UNPUBLISHED OPINION
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.
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; [1] (4) the second, fourth, and fifth counts are barred by the statute of limitations in General Statutes § 52-296; [2] (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 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.[3] 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.
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.
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.
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).
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: (...
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