Altfeter v. Naugatuck

• Decision Date: 22 June 1999
• Citation: 53 Conn. App. 791,732 A.2d 207
• Court: Connecticut Court of Appeals
• Parties: FREDERICK R. ALTFETER ET AL. v. BOROUGH OF NAUGATUCK ET AL.

53 Conn. App. 791

732 A.2d 207

FREDERICK R. ALTFETER ET AL. v. BOROUGH OF NAUGATUCK ET AL.

(AC 17724), (AC 17865), (AC 17996)

Appellate Court of Connecticut.

Argued January 20, 1999.

Officially released June 22, 1999.

Foti, Lavery and Landau, JS.

Eddi Z. Zyko, for the appellants (plaintiffs).

David J. Mathis, with whom, on the brief, was William F. Beckert, Jr., for the appellees (named defendant et al.).

Dana J. Beyer, for the appellees (defendant Edwin March et al).

Louis A. Annecchino, for the appellee (defendant John P. Pruchnicki).

Opinion

LANDAU, J.

The plaintiffs, Frederick R. Altfeter, Ellen Altfeter, his wife, and Frederick D. Altfeter and Sarah Altfeter, their children, appeal from the judgment of dismissal rendered in favor of the defendants, the borough of Naugatuck, the water pollution control board and John P. Pruchnicki, executive director of the water pollution control board (municipal defendants), and from the summary judgment rendered in favor of the defendants Edwin March and Stella March (March defendants) and the defendant John Pruchnicki, individually. We reverse the judgment of the trial court as to the municipal defendants and affirm the judgment as to the individual defendants.¹

On appeal, the plaintiffs claim with respect to the municipal defendants that (1) the municipal defendants have admitted all of the allegations in the amended complaint by failing to respond to the plaintiffs' requests for admission and (2) the trial court improperly determined that (a) the plaintiffs failed to provide notice of their intent to sue as required by General Statutes § 7-465,² (b) the municipal defendants were not estopped from asserting the notice provision of § 7-465, (c) § 7-465 does not apply to contractual relations and (d) 42 U.S.C §§ 1981 and 1983 do not supersede state law and the plaintiffs' claims thereunder are barred by § 7-465. The plaintiffs claim with respect to the individual defendants that the trial court improperly determined that (1) their causes of action are barred by the applicable statute of limitations, (2) the defendants' motions for summary judgment do not violate Practice Book § 17-49, (3) the plaintiffs do not have standing to bring a cause of action for breach of contract either as parties to or third party beneficiaries of the contract and (4) the March defendants and Pruchnicki did not commit a fraud on the court. They also claim that the trial court abused its discretion by denying their request for a continuance based on an affidavit filed pursuant to Practice Book § 17-47.

The following facts and procedural history are pertinent to our resolution of these consolidated appeals. In October of 1985, the March defendants sold three undeveloped parcels of land in the borough to the defendant Hillside Associates (Hillside).³ Pruchnicki was the attorney who represented the March defendants at the closing of the transaction. In 1986, the plaintiffs purchased one of the parcels from Hillside and entered into a contract with Hillside to construct a house for them. On June 1, 1986, the plaintiffs moved into the house at 239 Hillside Avenue, where they have since resided. The plaintiffs' home was connected to the borough's sewer system.

One Saturday in January, 1994, sewage backed up in the plaintiffs' washing machine. The plaintiffs contacted the police who referred them to the borough's street department. The plaintiffs engaged a private service to clean that portion of the sewer line connecting their home to the main line and no problem was detected. The street department cleared a blockage in the main line and the borough assumed responsibility for the costs that the plaintiffs incurred to clean the sewer line to their home. The problem recurred and sewage overflowed the plaintiffs' washing machine on Saturday, December 23, 1995. Again the street department responded and found a blockage in the main line, and again the borough assumed responsibility for the costs that the plaintiffs incurred to clean their home.

The problem recurred on Saturday, January 27, 1996, when the plaintiffs were absent from their home. When the plaintiffs returned home late in the evening, they discovered that their entire finished basement was flooded with approximately two inches of raw sewage. Again the street department responded and found a blockage in the main sewer line. The plaintiffs were advised by a street department employee to submit a claim for damages to the mayor's office. On February 8, 1996, the plaintiffs submitted a letter to the borough in care of the mayor's office, claims department. The incident was referred to the borough's insurance carrier who investigated the incident, denied liability but offered to settle the plaintiffs' claim for approximately $3900. The plaintiffs rejected the offer.

In November, 1996, the plaintiffs commenced a lawsuit against the defendants seeking damages for the losses they sustained as a result of the January 27, 1996 sewage backup in their home.⁴ The municipal defendants filed a motion to dismiss the claims against them because the plaintiffs failed to comply with the notice provision of § 7-465, which was granted. Pruchnicki and the March defendants filed separate motions for summary judgment as to the plaintiffs' causes of action against them, which also were granted. The plaintiffs appealed the separate judgments, which were consolidated for briefing and argument in this court. Additional facts will be addressed as necessary.

I

MUNICIPAL DEFENDANTS

A

The plaintiffs first claim that the municipal defendants admitted the allegations of the amended complaint by failing to respond to requests to admit, which were filed on September 22, 1997, and that the municipal defendants therefore are liable to the plaintiffs. The plaintiffs ask this court to render judgment as to liability against the municipal defendants and to return the case to the trial court for a hearing in damages. We decline to review this claim.

The plaintiffs filed requests to admit in September, 1997, more than five months after the trial court granted the municipal defendants' motion to dismiss. At the time the requests were filed, the plaintiffs had taken an appeal from the judgment of dismissal. No motions related to the requests for admission were ever filed in the trial court. The trial court, therefore, has never ruled on anything related to the requests for admission. "The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial...." Practice Book § 60-5. "`We have repeatedly held that this court will not consider claimed errors on the part of the trial court unless it appears on the record that the question was distinctly raised at trial and was ruled upon and decided by the court adversely to the appellant's claim.' Keating v. Glass Container Corp., 197 Conn. 428, 431, 497 A.2d 763 (1985)." State v. Beliveau, 52 Conn. App. 475, 479, 727 A.2d 737, cert. denied, 249 Conn. 920, 733 A.2d 235 (1999).⁵

B

The plaintiffs next claim that the trial court improperly determined that they had failed to provide notice of their intent to sue the municipal defendants as required by § 7-465.⁶ Because we conclude that § 7-465 does not apply to the allegations of the plaintiffs' complaint against the municipal defendants, we need not reach the question of notice.

"The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter...."Practice Book § 10-31 (a). "`[W]here [the] legal conclusions of the [trial] court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision ....' Pandolphe's Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221, 435 A.2d 24 (1980). Thus, our review of the trial court's ultimate legal conclusion and resulting grant of the motion to dismiss will be de novo." Pitchell v. Hartford, 247 Conn. 422, 428-29, 722 A.2d 797 (1999).

The following facts and procedure are relevant to our analysis. The plaintiffs' convoluted amended complaint dated January 2, 1997, purports to allege the following wrongdoing against the borough: count one, breach of contract; count two, violation of the constitution of Connecticut, article first, § 8; count three, violation of the constitution of Connecticut, article first, § 11; count four, violation of General Statutes § 7-248; count five, absolute nuisance; count six, negligent nuisance; count seven, recklessness; count eight, intentional infliction of emotional distress; count nine, fraud; count ten, violation of the borough's code of ordinances, public nuisance; count eleven, violation of the borough's code of ordinances, strict liability; count twelve, negligent misrepresentation; count thirteen, violation of 42 U.S.C. §§ 1981 and 1983. Counts fourteen through twenty-six purport to allege the same wrongdoing against the water pollution control board. Counts twenty-seven through thirty-nine purport to allege the same wrongdoing against the executive director of the water pollution control board. Nowhere in their amended complaint do the plaintiffs allege a claim for indemnification pursuant to § 7-465.

By pleading dated January 28, 1997, the municipal defendants moved to dismiss the plaintiffs' amended complaint as to them. The motion to dismiss states: "Pursuant to Connecticut Practice Book Section 162 [now § 10-30], the defendants, Borough of Naugatuck, Water Pollution Control Board and John P. Pruchnicki, Executive Director, Water Pollution Control Board, hereby move to dismiss the plaintiff's Amended Complaint against them. The plaintiffs failed to provide notice to the defendants of their intent to sue the municipality as required under § 7-465. The court therefore lacks jurisdiction over the subject matter."

In the memorandum of law submitted in support of their motion to dismiss, the municipal defenda...