Kidder v. Read

• Decision Date: 10 June 2014
• Docket Number: No. 35224.,35224.
• Citation: 93 A.3d 599,150 Conn.App. 720
• Court: Connecticut Court of Appeals
• Parties: Katherine J. KIDDER v. Randy READ et al.

150 Conn.App. 720

93 A.3d 599

Katherine J. KIDDER

v.Randy READ et al.

No. 35224.

Appellate Court of Connecticut.

Argued March 18, 2014.

Decided June 10, 2014.

Robert F. Maslan, Jr., Darien, with whom was Carolyn M. Colangelo, Norwalk, for the appellants (defendants).

Thomas B. Noonan, Darien, for the appellee (plaintiff).

GRUENDEL, ALVORD and KELLER, Js.

GRUENDEL, J.

The defendants, Randy Read and Barbara Read, appeal from the judgment of the trial court denying their motion for summary judgment and granting the motion of the plaintiff, Katherine J. Kidder, to enforce a settlement agreement. On appeal, the defendants claim that the court erred in (1) denying their motion for summaryjudgment on statute of limitations grounds, and (2) granting the plaintiff's motion to enforce a settlement agreement. We affirm in part and reverse in part the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the defendants' claims. The defendants previously owned residential real property in Darien. On April 4, 2001, they applied to the Darien Environmental Protection Commission (commission) to fill a man-made pond in their backyard to the surrounding grade and to plant a variety of vegetation in and around the filled area, and to install an inground swimming pool. Although the commission approved the plan, it stated that “[t]he work activity is to conform to the approved plans entitled, ‘Site Plan,’ and ‘Wetlands Restoration.’ ” It further stated that in order “[t]o ensure that disturbance of the wetlands and stream is avoided, all sediment and erosion controls must be maintained in proper condition until the site is fully stabilized.” The defendants did not install a swimming pool, but they did fill in the pond. Town officials subsequently inspected the property and issued a “Certificate of Occupancy and Zoning Compliance.”

The plaintiff later purchased the property from the defendants, and the closing took place on May 19, 2003. The plaintiff alleged that prior to listing the property, the defendants, in violation of the town wetlands regulations, removed a number of trees, filled an existing pond, and created an expansive backyard area. The defendants then listed their property for sale, claiming that it had a private level yard with an approved pool site. The plaintiff further alleged that the defendants knew that their alterations were outside the scope of the commission's approval, but that they failed to inform her prior to her purchase of the property.

On July 7, 2003, the plaintiff received a letter from the commission that granted, with condition, the transfer of the wetlands permit to her name. The condition was that the plaintiff “confirm in writing prior to the issuance of a Zoning Permit that [she is] familiar with the plans and decision adopted by the [commission]. Specifically, the [commission] requests written confirmation that (1) [she is] aware that the inground pool cannot be constructed without the implementation of the wetland restoration ... and (2) the wooded regulated areas shall be preserved. These wooded areas are documented within the February 2001 ... report. Any unauthorized clearing of vegetation and trees from within the wetlands and regulated [fifty] foot setback area shall be deemed a violation of the Wetlands Permit and the Town's Wetland and Watercourses Regulations.” The defendants assert that their “restoration was completed prior to the August 31, 2001 issuance of the Certificate of Occupancy and Zoning Compliance [which] confirms that both the renovations and the wetlands restoration were completed in compliance with the two wetland approvals.”

The plaintiff thereafter installed an inground pool around July 16, 2003, in reliance on the defendants' statements that the property had an approved pool site. On November 22, 2006, the plaintiff received a letter from the Darien Planning and Zoning Department (department) stating that she was in violation of the commission's approval given to the defendants. The letter stated that “the wetland area has been modified, and to a great extent eliminated. The lawn has been extended throughout much of the wetland, and now connects the house area to the pool area. Many of the mature trees in the wetlands and in the regulated area around the wetlands have been removed and replaced with lawn. This work is in violation of the Inland Wetlands and Watercourses Regulations and the past permits that have been granted for the development and use of the property.” The department then informed her that she was responsible for correcting the aforementioned violations.

On November 3, 2007, the plaintiff brought this action against the defendants alleging misrepresentation, fraud, and fraudulent concealment, seeking money damages to compensate her for the sums that she expended to correct the wetlands violations. The defendants filed a motion for summary judgment, which was denied by the court. In its order, the court stated only that “there are substantial issues of material fact as to when the statute of limitations began to run.” The parties thereafter engaged in settlement discussions, which resulted in the plaintiff filing a motion to enforce a settlement agreement purportedly reached with the defendants. The court granted the motion and ordered the defendants to pay the plaintiff $15,000. This appeal followed.

I

The defendants first claim that the court erred in denying their motion for summary judgment because the plaintiff's action is barred by the three year statute of limitations for torts set forth in General Statutes § 52–577. We agree in part and disagree in part.

We first set forth 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.” (Internal quotation marks omitted.) Southwick at Milford Condominium Assn., Inc. v. 523 Wheelers Farm Road, Milford, LLC, 294 Conn. 311, 318, 984 A.2d 676 (2009). The denial of a motion for summary judgment is not a final judgment and therefore is not ordinarily appealable. Brown & Brown, Inc. v. Blumenthal, 288 Conn. 646, 653, 954 A.2d 816 (2008). When a case has not gone to trial, however, the denial of a motion for summary judgment is reviewable following the entering of a final judgment by the court so long as the review does not require the resolution of substantive issues that were not addressed by the trial court. Aetna Casualty & Surety Co. v. Jones, 220 Conn. 285, 295 n. 12, 596 A.2d 414 (1991); see also Levine v. Advest, Inc., 244 Conn. 732, 756, 714 A.2d 649 (1998) (“a party may obtain review of a trial court's ruling denying summary judgment in the context of an appeal from a subsequent final judgment”).

When the court denied the defendants' motion for summary judgment, it stated only that “there are substantial issues of material fact as to when the statute of limitations began to run.” The court did not file a memorandum of decision, and the defendants did not provide a transcript of any oral decision or request an articulation from the court's order. However, because our review “is de novo, the precise legal analysis undertaken by the trial court is not essential to the reviewing court's considerationof the issue on appeal.” Community Action for Greater Middlesex County, Inc. v. American Alliance Ins. Co., 254 Conn. 387, 396, 757 A.2d 1074 (2000). We therefore look to the record that was before the court on the defendants' motion for summary judgment.

The defendants claim that the court erred in denying their motion for summary judgment because there is no genuine issue as to when the statute of limitations began to run. They argue that it began to run on May 19, 2003, the closing date, or at the latest, July 16, 2003, the building permit date. They come to this conclusion by first arguing that the commission approved their application to fill in their man-made pond and, after such work was completed, they were issued a “Certificate of Occupancy and Zoning Compliance.” The defendants thus claim that their actions could not have constituted a violation of the town wetlands regulations.¹ The defendants further claim that they “were not aware of any regulatory issues or alleged wetlands or [commission] violations ... that arose during [their] ownership of the property,” and therefore did not conceal anything from the plaintiff. Moreover, they contend that the commission's July 16, 2003 letter to the plaintiff outlining the requirements that must be completed prior to a pool installation would have given her notice of any wetlands violations, and, therefore, it was at that time that the plaintiff had sufficient information to raise a claim concerning the property. Because the plaintiff did not bring an action within three years of either date, the defendants contend that her action is barred by the three year statute of limitations set forth in § 52–577.

The plaintiff, in contrast, argues that she was not aware that the defendants violated the wetlands regulations by wrongfully filling in the wetlands area until she received the violation letter dated November 22, 2006. She also claims that because the defendants fraudulently misrepresented that...