Spencer v. Star Steel Structures, Inc.

900 A.2d 42, 96 Conn. App. 142, 2006 Conn. App. LEXIS 281
CourtConnecticut Appellate Court
DecidedJune 20, 2006
DocketAC 26399; AC 26630
StatusPublished
Cited by5 cases

This text of 900 A.2d 42 (Spencer v. Star Steel Structures, Inc.) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Spencer v. Star Steel Structures, Inc., 900 A.2d 42, 96 Conn. App. 142, 2006 Conn. App. LEXIS 281 (Colo. Ct. App. 2006).

Opinion

Opinion

PETERS, J.

This case concerns the validity of a judgment awarding damages for losses associated with the purchase of a greenhouse that, because of a design defect, partially collapsed in a windstorm. The principal claim in two appeals by the seller and the manufacturer of the greenhouse is that the trial court lacked subject matter jurisdiction either to render a judgment in favor of the buyer or to grant the buyer a prejudgment remedy. This claim is based on the novel proposition that a jurisdictional inference should be drawn from General Statutes § 42a-2-607 (3),1 which requires a buyer of [145]*145accepted goods, in timely fashion, to “notify the seller of breach or be barred from any remedy . . . .” Because we disagree with this interpretation of the statute, we affirm the judgment of the trial court in all respects.

In an amended, multicount complaint2 filed July 10, 2002, the named plaintiff, J. Daniel Spencer, doing business as Highland Gardens (Spencer), and his insurer, the plaintiff underwriters at Lloyd’s of London, sought recovery for the destruction of a combined greenhouse that Spencer had assembled from two greenhouses manufactured by the defendant Star Steel Structures, Inc. (Star), on the advice of a retailer, the defendant W.H. Milikowski, Inc. (Milikowski).3 The defendants denied their liability and, in their affirmative defenses, alleged that Spencer had failed to mitigate damages.

After a trial to the court, the court found that the greenhouse “was in a defective condition and unreasonably dangerous to the user when it was sold by . . . Milikowski to . . . Spencer. The defect, in this case the design and redesign of the product to incorporate two structures into one, caused the damages suffered by . . . Spencer. The defects existed at the time of sale, and the product was expected to and did reach [Spencer] without substantial change in condition. Further, [Spencer] did not misuse or alter the product in any way prior to its partial destruction on the evening of November 2 through November 3, 1999, due to the [146]*146high wind gusts that evening. After the loss, [Spencer] took all reasonable actions to mitigate damages and consequential losses.” Accordingly, the court held that the plaintiffs were entitled to a judgment in their favor.

The court issued two supplemental memoranda of decision in response to motions for articulation filed by the parties. The court declined the defendants’ request to articulate its allocation of damages under General Statutes § 52-572h (f), concerning negligence, because it had not adjudicated the plaintiffs’ claims under that statute.4 The court granted Spencer’s motion to address the remaining counts of his complaint and resolved all the issues in each count, including those raised by the defendants, in his favor.

Thereafter, the plaintiffs moved for a prejudgment remedy. In opposition, the defendants filed an affidavit arguing, for the first time, that the plaintiffs were barred from any recovery, and hence had not established the probable validity of their claim because Spencer, in violation of § 42a-2-607 (3), had failed to notify Milikow-ski of any breach of warranty “until approximately a year and a half after the sale when the structure itself failed.”5

The trial court nonetheless granted the plaintiffs’ application for an attachment in the amount of $220,000. Responding to the defendants’ motion for articulation, the court rejected their statutory claim on the ground that § 42a-2-607 (3) “does not deal with the issue of a [147]*147prejudgment remedy pursuant to [General Statutes] § 52-278a et seq., but rather with issues more appropriately considered, if at all, in the underlying appeal from the judgment rendered by the court.”

In two appeals that were consolidated for consideration by this court, the defendants challenge both the validity of the underlying judgment in favor of the plaintiffs and the propriety of the attachment of their property. The centerpiece of both appeals is their argument that the court lacked subject matter jurisdiction to render a judgment against them because Spencer had failed to comply with the notice requirement of § 42a-2-607 (3). We disagree.

I

APPEAL FROM THE JUDGMENT ON THE MERITS

In their appeal from the underlying judgment in favor of the plaintiffs, AC 26399, the defendants have raised three issues. They argue that the trial court (1) lacked jurisdiction to adjudicate the plaintiffs’ claims under the Uniform Commercial Code because the plaintiffs did not comply with § 42a-2-607 (3), (2) lacked jurisdiction to adjudicate the plaintiffs’ claims under the product liability statute because General Statutes § 52-572n (c) excludes recoveries for transactions between commercial parties and (3) made findings that were clearly erroneous. We are not persuaded.

A

General Statutes § 42a-2-607 (3) provides in relevant part that a buyer who has accepted a tender of goods that are defective “must within a reasonable time after he discovers or should have discovered any breach notify the seller of breach or be barred from any remedy . . . .” The defendants maintain that (1) the statute required the plaintiffs to notify them of a defect in the greenhouse before its collapse, (2) the plaintiffs did not [148]*148give them such notice and (3) in the absence of timely notice, the statutory language that they would “be barred from any remedy” signifies that the trial court lacked subject matter jurisdiction to adjudicate the plaintiffs’ damages claim. We disagree.

At the outset, we note, as the defendants conceded at oral argument in this court, that if § 42a-2-607 (3) provides any shelter from liability under the circumstances of this case, such shelter is limited in its scope. The only party entitled to notice under the statute is “the seller” of the goods. Because Star concededly was not the seller of the goods to Spencer, its liability is unaffected by § 42a-2-607 (3). It is only Milikowski that has standing to defend against liability because of Spencer’s alleged failure to give it timely notice of a defect in the greenhouse.

Milikowski’s argument under § 42a-2-607 (3) is, nonetheless, flawed because it assumes the existence of a factual predicate that the record does not contain. The trial court made no finding that Spencer failed to provide timely notification of a problem with the greenhouse.6 See Stelco Industries, Inc. v. Cohen, 182 Conn. 561, 565-66, 438 A.2d 759 (1980) (purpose of notification is to alert seller that transaction is still troublesome rather than to particularize buyer’s entitlement to damages). The defendants did not ask the court to make such a finding. Indeed, they never cited § 42a-2-607 (3) [149]*149to the court until they filed their opposition to the plaintiffs’ application for a prejudgment remedy. Their claim devolves into the proposition that the court had a responsibility, on its own initiative, to make a finding of lack of notice. This is an unpreserved claim of error. “This court will undertake review of unpreserved claims only when the claim is of constitutional magnitude; State v. Golding, 213 Conn.

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Cite This Page — Counsel Stack

Bluebook (online)
900 A.2d 42, 96 Conn. App. 142, 2006 Conn. App. LEXIS 281, Counsel Stack Legal Research, https://law.counselstack.com/opinion/spencer-v-star-steel-structures-inc-connappct-2006.