DocketNumber: No. 61850
Citation Numbers: 1992 Conn. Super. Ct. 11800
Judges: WALSH, J.
Filed Date: 12/21/1992
Status: Non-Precedential
Modified Date: 4/18/2021
(a) the steel building support columns are too short, and cannot adequately support the building frame;
(b) the foundation is improperly sized to support the steel structure of the building, leaving the steel building support columns partially unsupported;
(c) the foundation, including the concrete piers and wall, is structurally inadequate to support the building frame; CT Page 11801
(d) the foundation elevation is incorrect, and not in conformance with the applicable plans and structural requirements;
(e) the foundation lacks a non-shrinking grout surface for the steel building support columns;
(f) the building was not constructed in accordance with applicable building code provisions;
(g) the building was not constructed utilizing an engineer of record and/or a licensed engineer or architect.
On October 30, 1991, the defendant filed his motion to dismiss for lack of subject matter jurisdiction. The defendant argues that the plaintiffs' CUTPA claims are barred by a three-year statute of limitations because the agreement at issue was entered into in November or December, 1987 and the plaintiffs subsequently filed their action on May 3, 1991. General Statutes Sec.
The plaintiffs, in their opposition memorandum, argue that even if the CUTPA claims are barred by General Statutes Sec.
The purpose of the motion to dismiss is to test the jurisdiction of the court. Reynolds v. Soffer,
Generally, "[i]n determining whether a court lacks subject matter jurisdiction, the inquiry does not extend to the merits of the case." (Citation omitted.) Lampasona v. CT Page 11802 Jacobs,
The defendants argues that the three year limitation of action under CUTPA, General Statutes Sec.
The general rule is that where the right of action exists independently of the statute in which the limitation is found, such a statutory bar is considered personal and procedural. . . Where, however, a specific limitation is contained in the statute which establishes the remedy. . . the court may properly raise the statute of limitations issue on its own motion because it is considered substantive or jurisdictional, and not subject to waive.
Id.
In the present case, the three year statute of limitations under CUTPA is included within the CUTPA statute. CT Page 11803 General Statutes Sec.
The three year statute of limitations under General Statutes Sec.
In the present case, the defendant argues that the three year statute of limitations bars the plaintiffs' CUTPA counts where the agreement at issue was executed in November or December, 1987, and the plaintiffs filed their action on May 3, 1991. However, the running of the statute of limitation begins upon the occurrence of a CUTPA violation, including a continuing course of conduct that would toll the statute of limitations, and not necessarily upon the execution of the agreement from which the claim arises. Id., 208-209.
The plaintiffs allege that the CUTPA violations are based on the defendant's defective workmanship in the construction of the subject premises. The record is silent as to any jurisdictional facts concerning the period of time that the alleged CUTPA violations occurred. Because the court is limited to a determination based on the record in ruling on the motion to dismiss, there is insufficient evidence to determine that the statute of limitations had or had not expired previous to the plaintiffs' filing of their present action. See Amore v. Frankel,
"A reviewing court should indulge every presumption in favor of a trial court's subject matter jurisdiction." (Citation omitted.) Ind., 565. "In ruling on a motion to CT Page 11804 dismiss for lack of jurisdiction, a court should resist deciding the case on the merits." (Citation omitted.) Id., 571. In the present case, the record is insufficient to support a conclusion that the statute of limitations bars the plaintiff's CUTPA claims. Accordingly, the defendant's motion to dismiss for lack of subject matter jurisdiction is denied.
JOHN F. WALSH, J.