Cashman v. Calvo

493 A.2d 891, 196 Conn. 509, 1985 Conn. LEXIS 787
CourtSupreme Court of Connecticut
DecidedJune 18, 1985
Docket12497
StatusPublished
Cited by14 cases

This text of 493 A.2d 891 (Cashman v. Calvo) is published on Counsel Stack Legal Research, covering Supreme Court of Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cashman v. Calvo, 493 A.2d 891, 196 Conn. 509, 1985 Conn. LEXIS 787 (Colo. 1985).

Opinion

Shea, J.

This action was brought by the plaintiff home buyers for breach of the warranties provided by General Statutes §§ 47-117 and 47-118 concerning the construction of a home the plaintiffs purchased from the defendant builders. The case was tried to the court, Doyle, J., which found the issues for the plaintiffs and rendered judgment accordingly. The defendants appealed, claiming that the trial court erred in denying their motion to dismiss based on the absence of subject matter jurisdiction due to the alleged expiration of the applicable statute of limitations and in finding the evidence adequate to support recovery as to two of the claimed defects relied upon to prove the breach of warranty. We find no error.

The trial court found from undisputed evidence that the plaintiffs, Howard J. Cashman and Helene M. Cashman, had purchased a new one-family dwelling in Berlin from the defendants, Thomas R. Farr, Esther A. Farr, and Frank Calvo. The purchase price and a warranty deed were exchanged on July 12,1979. The plaintiffs notified the defendants of certain alleged defects in the residence on or about February 13,1980. The plaintiffs commenced this action on February 2, [511]*5111981, for breach of the express and implied warranties created by General Statutes §§ 47-117 and 47-118. The express warranty claims were dismissed for failure to make out a prima facie case after the plaintiffs had rested; Practice Book § 302; and only the implied warranty claims are involved in this appeal.

The claim of error in the denial of the motion to dismiss for lack of subject matter jurisdiction is based upon the defendants’ interpretation of § 47-118 (e), which limits the duration of the implied warranties created by the statute. The defendants argue that the language of § 47-118 (e) providing that the implied warranties relied upon by the plaintiffs shall “terminate,” in this case one year after delivery of the deed on July 12, 1979, is also a statute of limitations defining the period beyond which no action may be brought on the warranties. They maintain that, because § 47-118 creates liability unknown at common law, the limitation is jurisdictional; Diamond National Corporation v. Dwelle, 164 Conn. 540, 543, 325 A.2d 259 (1973); and, on the face of the complaint, has been exceeded by commencement of the suit on February 2, 1981, more than one year after the sale on July 12, 1979.

We agree with the trial court that the one year period allowed by § 47-118 (e) does not limit the period within which an action based on the implied warranties provided by the statute must be brought. The one year period from the delivery of the deed or the taking of possession is a limitation upon the period within which an action for breach of warranty may arise, not within which it must be commenced.1 While this distinction [512]*512is made more explicit in the Maryland statute from which § 47-118 is derived; see 18 H. R. Proc., Pt. 10, 1975 Sess., p. 4900 (remarks of Rep. Martin B. Burke); Md. Real Prop. Code Ann. § 10-204 (1985); we consider our statute plainly to dictate the same result. “It is a cardinal rule of construction that statutes are to be construed so that they carry out the intent of the legislature. This intent is to be ascertained from the language of the statute itself, if the language is plain and unambiguous.” Hartford Hospital v. Hartford, 160 Conn. 370, 375, 279 A.2d 561 (1971). Section 47-118 (e) provides only that “[t]he implied warranties created in this section shall terminate” upon the expiration of the one year period, not that no action may be brought upon them subsequent to that time. 2 It would be inconsistent with the one year duration of the warranties provided by the statute to require that a suit for breach thereof be commenced within the same period. Even where the utmost diligence is exercised, some time must inevitably lapse between the accrual of a cause [513]*513of action and its commencement by service of papers. We see no reason to read into the statute the limitation proposed by the defendants.

In order to bolster their argument that the time limit in § 47-118 must be a restriction upon the time to bring an action for breach of the warranties created by the statute, the defendants point out that there is no other statute of limitations expressly made applicable to such an action. The trial court resolved this problem by opining that the three year limitation contained in General Statutes § 47-121 was applicable,3 but also noted that, if § 47-121 were inapplicable, the six year limitation of § 52-576 relating to implied contracts would control. See Cacace v. Morcaldi, 37 Conn. Sup. 735, 741, 435 A.2d 1035 (1981). In either event, this action, brought less than two years after it arose, would not be time-barred. Like the trial court, we perceive no reason to render our advice as to which of these limitations is appropriate or whether that limitation should be characterized as jurisdictional in a case where the resolution of those issues is unnecessary. See Zoning Commission v. Tarasevich, 165 Conn. 86, 92, 328 A.2d 682 (1973); Anastasio v. Gulf Oil Corporation, 131 Conn. 708, 719, 42 A.2d 149 (1945). The trial court did not err in denying the defendants’ motion to dismiss.

The defendants’ remaining claims relate to the adequacy of the evidence establishing breaches of their implied warranties that the front door and the exterior siding of the house were free from faulty materials and constructed in a workmanlike manner. General Statutes § 47-118 (a) (1) and (3). It is familiar law that “[i]t was for the trial court to weigh the evidence and deter[514]*514mine the credibility of the witnesses. This court cannot and will not weigh the evidence contained in the record before us. Edgewood Construction Co. v. West Haven Redevelopment Agency, 170 Conn. 271, 272, 365 A.2d 819 (1976). If there is sufficient evidence in the record in support of the decision of the trial court such decision must be affirmed.” Pantlin & Chananie Development Corporation v. Hartford Cement & Building Supply Co., 196 Conn. 233, 237, 492 A.2d 159 (1985).

As to the adequacy of the evidence concerning the workmanship and composition of the exterior siding, the defendants do not question the trial court’s finding that shrinkage had occurred and gaps had appeared, necessitating replacement and restaining of substantial portions of the siding. The defendants do question whether the evidence was sufficient to support the trial court’s conclusion that this problem manifested itself within the one year period during which the implied warranties ran under § 47-118 and that faulty workmanship and use of inferior materials contributed to the deficiency.

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Cite This Page — Counsel Stack

Bluebook (online)
493 A.2d 891, 196 Conn. 509, 1985 Conn. LEXIS 787, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cashman-v-calvo-conn-1985.