Canner v. Governor's Ridge Ass'n, Inc., AC 42981, (AC 42982)

• Court: Appellate Court of Connecticut
• Writing for the Court: SUAREZ, J.
• Citation: 210 Conn.App. 632,270 A.3d 694
• Parties: Glen A. CANNER, Executor (Estate of Charles A. Canner) v. GOVERNOR'S RIDGE ASSOCIATION, INC., et al. Louis D. Puteri v. Governor's Ridge Association, Inc., et al.
• Docket Number: AC 42981, (AC 42982)
• Decision Date: 15 February 2022

210 Conn.App. 632
270 A.3d 694

Glen A. CANNER, Executor (Estate of Charles A. Canner)
v.
GOVERNOR'S RIDGE ASSOCIATION, INC., et al.

Louis D. Puteri
v.
Governor's Ridge Association, Inc., et al.

AC 42981, (AC 42982)

Appellate Court of Connecticut.

Argued March 11, 2021
Officially released February 15, 2022

270 A.3d 697

Glen A. Canner, for the appellant in Docket Nos. AC 42981 and AC 42982 (plaintiff in each case).

Timothy M. Gondek, for the appellee in Docket Nos. AC 42981 and AC 42982 (named defendant).

Deborah Etlinger, with whom, on the brief, was Erin Canalia, for the appellees in Docket Nos. AC 42981 and AC 42982 (defendants South Meadow Development, LLC, Glenn Tatangelo, and Anthony O. Lucera).

Adam J. DiFulvio, with whom, on the brief, was Thomas R. Gerarde, for the appellees in Docket Nos. AC 42981 and AC 42982 (defendants Town of Trumbull and Donald G. Murray ).

Donald W. Doeg, with whom, on the brief, was Matthew K. Stiles, for the appellees in Docket Nos. AC 42981 and AC 42982 (defendants Adeeb Consulting, LLC, and Kareem Adeeb).

Prescott, Suarez and DiPentima, Js.

SUAREZ, J.

270 A.3d 698

210 Conn.App. 634

These appeals arise from a dispute concerning the foundations of two condominium units located in the Governor's Ridge common interest community in Trumbull.¹ In Docket No. AC 42981 (first appeal), the plaintiff, Glen A. Canner (Canner), in his capacity as executor of the estate of Charles A. Canner,² appeals from the judgment of the trial court in favor of the defendants, Governor's Ridge Association, Inc.

210 Conn.App. 635

(Governor's Ridge); South Meadow Development, LLC (South Meadow), Glenn Tatangelo, and Anthony O. Lucera (South Meadow defendants); the town of Trumbull and Donald G. Murray (town defendants); and Adeeb Consulting, LLC (Adeeb Consulting) and Kareem Adeeb (Adeeb defendants),³ after the court concluded that each count alleged against the defendants was time barred by the applicable statute of limitations. On appeal, Canner claims that the court improperly concluded that (1) his claim against Governor's Ridge brought pursuant to General Statutes § 47-278 is time barred by the statute of limitations period set forth in General Statutes § 52-577, and (2) his nuisance claims are time barred by the statute of limitations codified in either § 52-577 or General Statutes § 52-584.

In Docket No. AC 42982 (second appeal), the plaintiff, Louis D. Puteri, similarly appeals from the judgment of the trial court in favor of the defendants after the court concluded that each count alleged against the defendants was time barred by the applicable statute of limitations. On appeal, Puteri claims that the court erred for the same reasons Canner asserts in his appeal. We disagree with the plaintiffs and, accordingly, affirm the judgments of the court.

I

AC 42981

The first appeal involves property located at 220 Fitch's Pass, a condominium unit located in the Governor's Ridge common interest community in Trumbull (220 Unit). We begin by setting forth the procedural history of this case as well as the relevant facts that were found by the trial court or are otherwise undisputed.

270 A.3d 699

210 Conn.App. 636

In 2000, Governor's Ridge applied to the Trumbull Planning and Zoning Commission (planning and zoning commission) to construct thirty-six detached units constituting phase II of the Governor's Ridge common interest community. The 220 Unit was a part of this phase. A hearing was held on the application on November 27, 2000, and, on January 10, 2001, the planning and zoning commission issued a special permit to Governor's Ridge to construct the units. The permit stated: "A report shall be submitted to the Building Official which specifies the depth of the peat, where it begins and stops, the proposed method of remediation, the proposed depth of the fill, and the proposed depth of the pilings for each individual unit; the report shall be permanently retained at the Trumbull Town Hall." Although the planning and zoning commission's special permit contained provisions related to foundation construction in light of certain soil conditions, the Trumbull Building Department (building department) ultimately retained jurisdiction over how the foundations were constructed and whether to issue a certificate of occupancy for the particular units.

On June 27, 2001, Governor's Ridge sold the phase II development rights to South Meadow, which had been formed by Tatangelo and Lucera. According to Tatangelo, South Meadow was aware at the time that the soil conditions at the phase II location presented certain challenges. As a result, South Meadow hired Adeeb Consulting on June 13, 2001, for limited engineering services concerning the design of the foundations. Kareem Adeeb, a geotechnical and structural engineer, concluded that a piling system for phase II foundations would not be viable. Accordingly, Adeeb designed a foundation system using geo-fabric, footings, and grade beams to "tie all foundation elements together and increase the rigidity of the foundation system" in order "to decrease, if not eliminate, the

210 Conn.App. 637

chance that differential settlement will take place."⁴ Because the soil conditions were different for each unit's location, Adeeb addressed each unit separately by making borings, designing a foundation for each condominium unit, and performing site visits. The building department ultimately approved Adeeb's design and inspected each foundation to determine, inter alia, whether the geo-fabric was properly installed and the footings were properly designed.

On July 27, 2001, South Meadow issued a public offering statement for phase II. The statement included, among other things, architectural drawings for the various phase II unit models. The drawings showed that the foundations would be built with concrete walls and footings, not with piles. On December 28, 2001, Canner, on behalf of his parents, Charles A. Canner (Charles) and Doris L. Canner (Doris), sent South Meadow's attorney a signed contract with a purchaser's rider and a deposit check for the purchase of the 220 Unit. On January 16, 2002, after making borings at the site, Adeeb Consulting issued a report concerning the construction of the unit's foundation. That same day, a building department official issued a building permit that did not require that the foundation for the unit be built on piles.

While construction was in progress, Donald G. Murray, a building department official, issued a certificate of occupancy for the 220 Unit—the final act of the building

270 A.3d 700

department's involvement with the 220 Unit. As of the date the certificate was issued, construction

210 Conn.App. 638

was substantially complete. On April 30, 2002, Charles and Doris closed on the purchase of the 220 Unit.

Although not within his jurisdiction, Paul Kallmeyer, the Trumbull Director of Public Works and Town Engineer, decided to monitor certain phase II units for settlement.⁵ There was no directive from the town to do so. Between November 26, 2003, and September 30, 2008, the Trumbull engineering department went to the 220 Unit to take certain measurements, which Charles later received. Although the town maintained extensive documentation about phase II, Canner was not aware if his father had made any effort to obtain town records between 2003 and 2008.

In 2011, pursuant to a power of attorney, Canner took steps to put the unit on the market, including preparing a residential property condition form, which identified "[m]inor settling problem several years ago" with respect to the foundations and basement but indicated the settling had been repaired and there had been no problems since that time. The 220 Unit was put on the market on March 27, 2011, but it did not sell. On May 10, 2011, the real estate agent marketing the 220 Unit sent Canner an e-mail discussing a prospective buyer's concern "about the very dramatic slope in the floors—from the basement up to the second floor." Canner testified that he did not notice any settlement during the period of time when the unit was on the market, but he also testified that by May 10, 2011, he was aware of a slope in the unit's floors and that by March 27, 2011, Charles had given him the chart containing the 2003 to 2008 engineering measurements.

In June, 2012, Governor's Ridge hired Fuller Engineering & Land Surveying, LLC, to monitor settling at

210 Conn.App. 639

the 220 Unit, in addition to several other units. On February 15, 2013, Canner hired Peter Seirup, a professional engineer, of Home Directions, Inc., to inspect the unit. Seirup's home inspection report took into account, in part, "a table of settlement data taken from 2003 to 2008 ...." This presumably was the engineering...