Avon Meadow Condominium Assn., Inc. v. Bank of Boston Connecticut

• Decision Date: 13 October 1998
• Docket Number: (AC 17267)
• Citation: 719 A.2d 66,50 Conn. App. 688
• Court: Connecticut Court of Appeals
• Parties: AVON MEADOW CONDOMINIUM ASSOCIATION, INC., ET AL. v. BANK OF BOSTON CONNECTICUT

50 Conn. App. 688

719 A.2d 66

AVON MEADOW CONDOMINIUM ASSOCIATION, INC., ET AL. v. BANK OF BOSTON CONNECTICUT

(AC 17267)

Appellate Court of Connecticut.

Argued June 4, 1998.

Officially released October 13, 1998.

Foti, Hennessy and Kulawiz, Js. Richard P. Weinstein, with whom, on the brief, were Nathan A. Schatz and Gail P. Ferris, for the appellants (plaintiffs).

Ben M. Krowicki, with whom was Ann M. Siczewicz, for the appellee (defendant).

Opinion

HENNESSY, J.

The plaintiffs, Avon Meadow Condominium Association, Inc., and the owners¹ of condominiums in the complex known as Avon Meadows, appeal from the summary judgment rendered in favor of the defendant, Bank of Boston Connecticut. At trial, the plaintiffs sought to recover damages, as third party beneficiaries, for expenses incurred and losses sustained as a result of the alleged breach by the defendant's predecessor, Colonial Bank (Colonial) of a contract between Colonial and Avon Meadow Associates (developer).² The plaintiffs claim that the trial court improperly applied the statute of limitations to each of the three counts of the complaint.

More specifically, the plaintiffs argue that (1) the three year statute of limitations, General Statutes § 52-581, does not apply to an agreement where the evidence tends to show that writings existed showing that the defendant had acknowledged the contract and where the contract sued upon was no longer executory, (2) the trial court improperly applied the three year statute of limitations to the common-law tort claim of misrepresentation, where it was not alleged by the defendant, and (3) the trial court improperly applied a three year statute of limitations, General Statutes § 42-110g (f), to the third count of the complaint, which alleged a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., where it was not specifically pleaded by the defendant. We reverse the judgment in part.

The trial court found the following facts. Colonial loaned money to the developer for the construction and development of a commercial condominium project. The developer defaulted on its payments to Colonial, which then filed an action to recover on the note. The jury in the note action found that Colonial had breached an oral agreement with the developer to fund the project to completion and that the developer had released Colonial from any claims it had against it, including those stemming from the breach of the oral contract. The plaintiffs' purchase of the condominium units from the developer forms the basis of their claims against the defendant. The plaintiffs, predicating their claims on their status as third party beneficiaries, instituted this action seeking damages for losses allegedly incurred as a result of Colonial's breach of its oral agreement with the developer.

The plaintiffs, in a three count complaint, claimed the following: In count one, that Colonial had breached its contract with the developer by refusing to fund the condominium project to completion; in count two, that Colonial had misrepresented the state of its financial condition in that it did not have sufficient funds to meet its lending commitments to existing customers, including the developer, and refused to continue construction lending as a matter of corporate policy; and, in count three, that Colonial had violated CUTPA.

The defendant raised the following special defenses: (1) that the plaintiffs are collaterally estopped to make claims based upon the alleged oral contract; (2) that the plaintiffs' claims were released in a forbearance agreement signed by their predecessor in interest; (3) that the claims are barred by the doctrine of res judicata; (4) the claims are barred by the statutes of limitation; and (5) that the plaintiffs waived all claims because they entered into a prior agreement with the defendant.³ On September 18, 1995, the defendant filed a motion for summary judgment to which the plaintiffs filed an opposition motion on September 20, 1995. On March 18, 1997,⁴ the trial court granted the defendant's motion for summary judgment, finding that counts one and two of the plaintiffs' complaint are subject to the three year statute of limitations set out in General Statutes §§ 52-581 and 52-577, respectively, and that count three is subject to the three year statute of limitations set forth in § 42-110g (f).⁵

On April 2, 1997, the plaintiffs filed a motion to reargue, which was granted. On April 14, 1997, the trial court heard reargument and, on May 12, 1997, denied the plaintiffs' request to reconsider the granting of the defendant's motion for summary judgment as to all counts.

We note that our standard of review on appeal following a trial court's grant of summary judgment is well established and is set forth in Practice Book § 17-49.⁶ "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Bruttomesso v. Northeastern Connecticut Sexual Assault Crisis Services, Inc., 242 Conn. 1, 5, 698 A.2d 795 (1997); Home Ins. Co. v. Aetna Life & Casualty Co., 235 Conn. 185, 202, 663 A.2d 1001 (1995). "The test is whether a party would be entitled to a directed verdict on the same facts. Connell v. Colwell, 214 Conn. 242, [247], 571 A.2d 116 (1990)." (Internal quotation marks omitted.) Beebe v. East Haddam, 48 Conn. App. 60, 64, 708 A.2d 231 (1998).

"A motion for summary judgment is properly granted if it raises at least one legally sufficient defense that would bar the plaintiff's claim and involves no triable issue of fact. Perille v. Raybestos-Manhattan-Europe, Inc., 196 Conn. 529, 543, 494 A.2d 555 (1985)." (Internal quotation marks omitted.) Beebe v. East Haddam, supra, 48 Conn. App. 64.

On appeal, "[w]e must decide whether the trial court erred in determining that there was no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.... Aetna Casualty & Surety Co. v. Jones, 220 Conn. 285, 292, 596 A.2d 414 (1991)." (Internal quotation marks omitted.) Connecticut National Bank v. Rytman, 241 Conn. 24, 37, 694 A.2d 1246 (1997).

I

The first count of the plaintiffs' April 19, 1994 amended revised complaint alleges that the parties entered into an agreement in which the defendant agreed to finance the construction and development of the condominium project. The plaintiffs argue that the defendant breached that agreement in 1990 when it "failed, neglected and refused to complete the construction financing." The sole claim of the plaintiffs is that certain expenses were incurred and losses sustained as a result of "the breach of the defendant's obligation to complete the funding." The defendant's April 12, 1995 amended answer to the revised complaint stated the following under its fourth special defense: "Paragraphs 4, 6, and 8 of Plaintiffs' Revised Complaint, dated April 19, 1994, make reference to an alleged oral⁷ contract between [the developer] and [the defendant]. Pursuant to General Statutes § 52-581, `No action founded upon any express contract or agreement which is not reduced to writing... shall be brought but within three years after the right of action accrues.' ... The above-captioned action was not brought within three years after any alleged right of action under the Alleged Oral Contract accrued. Plaintiffs claims are, therefore, barred by the applicable statutes of limitations."

On September 18, 1995, the defendant moved for summary judgment, arguing that no genuine issues of material fact existed and that because the plaintiffs' claims were barred by the statute of limitations, it was entitled to judgment as a matter of law. On September 20, 1995, the plaintiffs filed an opposition to the motion for summary judgment. In their opposition, the plaintiffs argued that the defendant failed to plead the applicable statute of limitations, which applies to a written contract, and that the motion should be denied on those grounds.

On March 18, 1997, the trial court issued its memorandum of decision in which it characterized the plaintiffs' complaint as "breach of an oral construction financing agreement between [the developer] and [the defendant]." Thereafter, the trial court dismissed the first count as untimely filed, relying on § 52-581.

On April 2, 1997, the plaintiffs filed a motion for reargument and reconsideration in which they asserted that they are entitled to a determination of whether the contract was written or oral; see Practice Book § 64-1, formerly § 4059; as they had raised that in their opposition to the defendant's motion for summary judgment pursuant to § 52-581. The plaintiffs argued that they claimed that a written contract existed. Although this claim was extensively briefed and evidence was produced to support it, the trial court made no determination on this issue; rather, it took as true the defendant's assertion that the contract was oral.

The trial court granted reconsideration but denied the relief requested. In a memorandum of decision filed on May 12, 1997, the trial court reviewed the plaintiffs' claim, which was, in the trial court's words, "whether the multiple writings in this case support a conclusion that the six year statute of limitations" applies. The trial court found that the writings were insufficient to support the conclusion that a written contract was formed and that "the court assumes there was an oral contract. What the plaintiffs have failed to prove by affidavit and documentation is what the contract provided."

Under the facts of this case, we cannot say that the trial court properly granted the defendant's motion for summary judgment as to count one. For the trial court to conclude that the plaintiffs' action was barred by the statute of limitations, it had to determine two things: First, whether a contract existed and, second, whether the contract was oral...