Bellemare v. Wachovia Mortg. Corp.

• Citation: 284 Conn. 193,931 A.2d 916
• Decision Date: 09 October 2007
• Docket Number: No. 17726.,17726.
• Parties: Irene D. BELLEMARE v. WACHOVIA MORTGAGE CORPORATION.
• Court: Supreme Court of Connecticut

931 A.2d 916

284 Conn. 193

Irene D. BELLEMARE v. WACHOVIA MORTGAGE CORPORATION.

No. 17726.

Supreme Court of Connecticut.

Argued March 15, 2007.

Decided October 9, 2007.

Eddi Z. Zyko, Middlebury, for the appellant (plaintiff).

Thomas A. Kaelin, Watertown, for the appellee (defendant).

BORDEN, KATZ, PALMER, VERTEFEUILLE and ZARELLA, Js.^*

ZARELLA, J.

The plaintiff, Irene D. Bellemare, appeals, following our grant of certification,¹ from the judgment of the Appellate Court affirming in part² the trial court's judgment rendered in favor of the defendant, Wachovia Mortgage Corporation. The principal issue in this certified appeal is whether the trial court properly applied the three year statute of limitations set forth in General Statutes § 52-577³ to the plaintiff's claim for damages arising from the defendant's failure to provide a release of mortgage to the plaintiff pursuant to General Statutes § 49-8.⁴ On appeal, the plaintiff claims that, because the trial court should have applied the six year statute of limitations set forth in General Statutes § 52-576,⁵ the Appellate Court incorrectly upheld the trial court's conclusion that the plaintiff's claim for damages was time barred. We disagree and, accordingly, affirm the judgment of the Appellate Court.

The following facts and procedural history are set forth in the opinion of the Appellate Court. "On or about May 31, 1998, William A. Bellemare and the plaintiff sold their home at 225 Citizens Avenue . . . [in] Waterbury.⁶ The [home was] subject to a mortgage held by the defendant. On June 18, 1998, the plaintiff's counsel sent the defendant a check in the amount of $31,729.34 as payment in full of the mortgage loan balance due to the defendant. The defendant received the sum in satisfaction of the loan . . . but [allegedly] failed to execute and deliver a release of the mortgage to the plaintiff.

"In April, 2003, the plaintiff, upon discovering that the release had not been recorded in the land records, demanded a release of the mortgage and damages in the amount of $5000 pursuant to § 49-8. The defendant provided the requested release, dated May 13, 2003, but declined to pay the sum of $5000. On December 22, 2003, the plaintiff filed a three count complaint against the defendant. The [plaintiff] . . . sought damages (1) pursuant to § 49-8, (2) under [the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq.] and (3) for breach of an implied covenant of good faith and fair dealing.

"In its answer, the defendant acknowledged that the loan had been paid in full but maintained that a timely release of the mortgage and a duplicate release had been sent to the plaintiff's counsel. The defendant also raised as special defenses to all counts that the claims were barred by applicable statutes of limitation and filed a motion for summary judgment on all counts on the basis of these special defenses.

"The [trial] court granted the defendant's motion for summary judgment on the grounds asserted. For the CUTPA count, the court relied on CUTPA's three year statute of limitations. See General Statutes § 42-110g (f). As to the remaining counts, the court concluded that the plaintiff's claims sounded in tort and, therefore, were barred by § 52-577, the statute of limitations applicable generally to tort actions." Bellemare v. Wachovia Mortgage Corp., 94 Conn.App. 593, 595-96, 894 A.2d 335 (2006). The trial court thereafter rendered judgment for the defendant on all counts of the plaintiff's complaint.

The plaintiff appealed to the Appellate Court from the trial court's judgment, claiming, inter alia, that a cause of action brought pursuant to § 49-8 does not sound in tort but, rather, in contract, and that, because the statute of limitations applicable to contract actions, namely, § 52-576, allows such an action to be brought within six years of the alleged breach, her claim was not time barred. The Appellate Court affirmed the judgment of the trial court in part, and this certified appeal followed.

The sole issue we address on appeal is whether the trial court improperly applied the three year statute of limitations of § 52-577 to the first count of the plaintiff's complaint.⁷ The plaintiff alleged, in the first count of her complaint, that the defendant had violated § 49-8 by failing to provide a release of mortgage within sixty days of the satisfaction of the underlying debt. The defendant claims that § 52-577 is the statute of limitations applicable to the plaintiff's claim under § 49-8 and that the trial court properly concluded, therefore, that that claim was time barred. We agree with the defendant.

We begin our analysis with the applicable standard of review. "Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. . . . On appeal, we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court. . . . Our review of the trial court's decision to grant the defendant's motion for summary judgment is plenary." (Citations omitted; internal quotation marks omitted.) Cogan v. Chase Manhattan Auto Financial Corp., 276 Conn. 1, 6-7, 882 A.2d 597 (2005).

Public policy generally supports the limitation of a cause of action in order to grant some degree of certainty to litigants. See, e.g., Neuhaus v. DeCholnoky, 280 Conn. 190, 206-207, 905 A.2d 1135 (2006); Tarnowsky v. Socci, 271 Conn. 284, 296, 856 A.2d 408 (2004); DeLeo v. Nusbaum, 263 Conn. 588, 596, 821 A.2d 744 (2003). "The purpose of [a] statute of limitation . . . is . . . to (1) prevent the unexpected enforcement of stale and fraudulent claims by allowing persons after the lapse of a reasonable time, to plan their affairs with a reasonable degree of certainty, free from the disruptive burden of protracted and unknown potential liability, and (2) to aid in the search for truth that may be impaired by the loss of evidence, whether by death or disappearance of witnesses, fading memories, disappearance of documents or otherwise." (Internal quotation marks omitted.) Neuhaus v. DeCholnoky, supra, at 206-207, 905 A.2d 1135. Therefore, when a statute includes no express statute of limitations, we should not simply assume that there is no limitation period. Instead, we borrow the most suitable statute of limitations on the basis of the nature of the cause of action or of the right sued upon. See, e.g., Woody v. State Farm Fire & Casualty Co., 965 F.Supp. 691, 692 (E.D.Pa.1997); Lowe v. Volkswagen of America, Inc., 879 F.Supp. 28,30 (E.D.Pa.1995); Johnson & Higgins of Texas, Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 518 (Tex.1998); cf. Gazo v. Stamford, 255 Conn. 245, 263, 765 A.2d 505 (2001).

In the present case, although the existence of a mortgage suggests that the plaintiff's claim sounds in contract, the duty that allegedly was breached was created by statute. We first note that "[t]he fundamental difference between tort and contract lies in the nature of the interests protected. . . . The duties of conduct which give rise to [a tort action] are imposed by the law, and are based primarily upon social policy, and not necessarily upon the will or intention of the parties." W. Prosser, Torts (3d Ed. 1964) § 93, p. 634. Furthermore, other courts have held that, when a plaintiff seeks to recover damages for the breach of a statutory duty, such an action sounds in tort. See, e.g., Curtis v. Loether, 415 U.S. 189, 195, 94 S.Ct. 1005, 39 L.Ed.2d 260 (1974) (damages action pursuant to statute sounds in tort because it defines new legal duty and authorizes courts to compensate plaintiff for injury caused by defendant's wrongful breach of duty); Federal Deposit Ins. Corp. v. Citizens Bank & Trust Co., 592 F.2d 364, 368-69 (7th Cir.) (liability for breach of duty imposed by statute sounds in tort), cert. denied, 444 U.S. 829, 100 S.Ct. 56, 62 L.Ed.2d 37 (1979).

On the other hand, "[c]ontract actions are created to protect the interest in having promises performed. Contract obligations are imposed because of [the] conduct of the parties manifesting consent, and are owed only to the specific individuals named in the contract." W. Prosser, supra, at § 93, p. 634. In short, "[a]n action in contract is for the breach of a duty arising out of a contract; an action in tort is for a breach of duty imposed by law." Gazo v. Stamford, supra, 255 Conn. at 263, 765 A.2d 505.

In the first count of her complaint, the plaintiff sought damages for the defendant's alleged violation of § 49-8. Pursuant to General Statutes § 49-8(c), "[t]he mortgagee . . . shall execute and deliver a release within sixty days from the date a written request for a release of such encumbrance (1) was sent to such mortgagee. . . ." There is no allegation in this count of the complaint that a term of the mortgage contract had been breached. In fact, the mortgage contract may be silent with regard to the issuance of a release, may provide for a longer or shorter time period for the issuance of a release, or may be vague or uncertain as to the period for the issuance of a release.⁸ Thus, the duty to release the mortgage that the plaintiff complained of in the first count of her complaint did not arise from the mortgage contract but, rather, from § 49-8, which also prescribes damages for a breach of that statutory duty. Therefore, such a breach is...