Mountaindale Condominium Assn., Inc. v. Zappone

• Decision Date: 15 August 2000
• Docket Number: (AC 18538)
• Citation: Mountaindale Condominium Assn., Inc. v. Zappone, 59 Conn. App. 311, 757 A.2d 608 (Conn. App. 2000)
• Court: Connecticut Court of Appeals
• Parties: MOUNTAINDALE CONDOMINIUM ASSOCIATION, INC. v. JOSEPH ZAPPONE ET AL.

59 Conn. App. 311

757 A.2d 608

MOUNTAINDALE CONDOMINIUM ASSOCIATION, INC. v.JOSEPH ZAPPONE ET AL.

(AC 18538)

Appellate Court of Connecticut.

Argued December 10, 1999.

Officially released August 15, 2000.

Lavery, Landau and Dupont, Js.¹James W. Oliver, with whom, on the brief, was Durwin P. Jones, for the appellant(plaintiff).

Michael C. Deakin, for the appellees(defendantsRobert Norton et al.).

William C. Berry, for the appellee(defendanttown of Thomaston).

Opinion

LAVERY, J.

The plaintiff, Mountaindale Condominium Association, Inc., appeals from the judgment of the trial court rendered after the granting in part of the defendants'²motions for summary judgment.On appeal, the plaintiff claims that the court improperly (1) applied the statute of limitations, General Statutes § 52-584,³ where the defendants failed to allege the statute as a special defense, (2) applied the doctrine of constructive notice where fraudulent concealment was pleaded, (3) engaged in fact-finding where it found that the plaintiff had constructive notice of building code violations and failed to make reasonable inquiry, (4) ignored factual predicates that, as a matter of law, give rise to genuine issues of material fact concerning the fraudulent concealment by the defendants and (5) concluded that the continuing course of conduct doctrine did not toll the statute of limitations.We affirm the judgment of the trial court.

On January 13, 1995, according to the deputy sheriffs return of service, the plaintiff instituted causes of action against multiple defendants, alleging, in a thirty-five count complaint, violations of various building and fire codes with respect to the construction of Mountaindale Condominiums (Mountaindale) in Thomaston.The defendantCarmella Lecko's decedent, Robert Lecko, who died in May, 1992, was the building inspector who had issued the building permits and certificates of occupancy for the condominium units.⁴The defendanttown of Thomaston(town) employed Lecko as its building inspector and the defendantRobert Norton as its fire marshal.

On April 2, 1997, the plaintiff filed a fifth revised complaint.Counts twenty-two and twenty-three were against Lecko and Norton,⁵ and counts twenty-four and twenty-five were against the town.⁶The plaintiff alleged that the named defendant, Joseph Zappone, who constructed Mountaindale, created the plaintiff by declaration, with subsequent amendments, pursuant to the laws of the state of Connecticut on or about November 13, 1986.The named defendant controlled Mountaindale until April, 1988, when the plaintiff assumed control.The plaintiff further alleged that the named defendant failed to build the condominium units in accordance with local and state building codes.According to the allegations of the complaint, Lecko was reckless in issuing certificates of occupancy for the condominium units, and his recklessness created a nuisance.Furthermore, the plaintiff alleged that Lecko and Norton⁷ fraudulently concealed the construction defects.The plaintiff claims that the town, pursuant to General Statutes § 52-557n (b)(7), acted in reckless disregard of the health and safety of the plaintiffs unit owners and their families, was reckless in its employment and supervision of Lecko and Norton, and created a nuisance by recklessly permitting the certificates of occupancy to be issued.

The defendants filed motions for summary judgment on January 15, 1998, claiming that the plaintiffs causes of action were time barred and that the plaintiff had failed to state a cause of action in nuisance.⁸The plaintiff objected to each motion.All parties submitted affidavits and evidence in support of their various positions.The court granted in part the defendants' motions for summary judgment because the plaintiffs causes of action were barred by § 52-584 or General Statutes § 52-577.The plaintiff appealed.Additional facts will be discussed as needed.

Our review of the court's granting of motions for summary judgment involves questions of law and is de novo.SeeSerrano v. Burns,248 Conn. 419, 425, 727 A.2d 1276(1999).Practice Book§ 17-49, formerly § 384, "requires that 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.'A `material fact' is a fact that will make a difference in the result of the case.SeeHammer v. Lumberman's Mutual Casualty Co.,214 Conn. 573, 578, 573 A.2d 699(1990).The facts at issue are those alleged in the pleadings.SeePlouffe v. New York, N.H. & H.R. Co.,160 Conn. 482, 489, 280 A.2d 359(1971).The party seeking summary judgment `has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.'. . . D.H.R. Construction Co. v. Donnelly,180 Conn. 430, 434, 429 A.2d 908(1980).The party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.See Practice Book §§ [17-45 and 17-46].`In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . .The test is whether a party would be entitled to a directed verdict on the same facts.'. . . Connell v. Colwell,214 Conn. 242, 246-47, 571 A.2d 116(1990).A motion for summary judgment`is properly granted if it raises at least one legally sufficient defense that would bar the plaintiffs claim and involves no triable issue of fact.'Perille v. Raybestos-Manhattan-Europe, Inc.,196 Conn. 529, 543, 494 A.2d 555(1985)."Beebe v. East Haddam,48 Conn. App. 60, 64, 708 A.2d 231(1998).

"While the court must view the inferences to be drawn from the facts in the light most favorable to the party opposing the motion, Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538(1986), a party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment.Knight v. U.S. Fire Ins. Co.,804 F.2d 9, 12(2d Cir.1986), cert. denied, 480 U.S. 932, 107 S. Ct. 1570, 94 L. Ed. 2d 762(1987).Gallien v. Connecticut General Life Ins. Co.,49 F.3d 878, 882(2d Cir.1995).On appeal, however, the burden is on the opposing party to demonstrate that the trial court's decision to grant the movant's summary judgment motion was clearly erroneous.Pandolphe's Auto Parts, Inc. v. Manchester,181 Conn. 217, 222, 435 A.2d 24(1980).2830 Whitney Avenue Corp. v. Heritage Canal Development Associates, Inc.,33 Conn. App. 563, 567, 636 A.2d 1377(1994)."(Internal quotation marks omitted.)Norse Systems, Inc. v. Tingley Systems, Inc.,49 Conn. App. 582, 591, 715 A.2d 807(1998).

I

The plaintiff first claims that the court improperly considered § 52-584 as a bar to its claims because the defendants did not allege that particular statute of limitation as a special defense.We disagree.

Our rules of practice clearly state that "[n]o facts may be proved under either a general or special denial except such as show that the plaintiffs statements of fact are untrue.Facts which are consistent with such statements but show, notwithstanding, that the plaintiff has no cause of action, must be specially alleged.Thus. . . the statute of limitations ... must be specially pleaded...."Practice Book§ 10-50, formerly § 164."Where several matters of defense are pleaded, each must refer to the cause of action which it is intended to answer, and be separately stated and designated as a separate defense, as, First Defense, Second Defense, etc.Where the complaint or counterclaim is for more than one cause of action, set forth in several counts, each separate matter of defense should be preceded by a designation of the cause of action which it is designed to meet, in this manner: First Defense to First Count, Second Defense to First Count, First Defense to Second Count, and so on...."(Emphasis in original.)Practice Book§ 10-51, formerly § 165."When any claim made in a complaint, cross complaint, special defense, or other pleading is grounded on a statute, the statute shall be specifically identified by its number."Practice Book§ 10-3 (a), formerly § 109A (a).

Here, Lecko and Norton pleaded § 52-577 as a bar to the plaintiff's causes of action against them, but without referencing the count or counts to which it applied, as required by Practice Book§ 10-51, formerly § 165.The plaintiff, however, did not file a request to revise, asking Lecko and Norton to allege their special defenses in accordance with our rules of practice.The plaintiff merely filed a general denial of the special defenses.As to the town, it also did not plead its special defenses in explicit compliance with our rules of practice, but its special defenses were pleaded separately as to both counts against it.The town alleged § 52-577 as a special defense to both counts.The plaintiff denied the special defense.

In its motion for summary judgment, the town asserted both §§ 52-577and52-584 as precluding the plaintiffs causes of action, arguing that count twenty-four was barred by § 52-584⁹and§ 52-577 barred count twenty-five.Lecko and Norton claimed that count twenty-two was barred by § 52-584 and that count twenty-three was barred by the applicable statute of limitation without specifically designating the applicable statute.¹⁰The plaintiff did not object to the statutory basis of the motions for summary judgment or bring to the court's attention the fact that the defendants had not alleged § 52-584 as a special defense.The plaintiff, therefore, waived any objection to the defendants' failure to plead § 52-584 as a special defense.SeeThompson & Peck, Inc. v. Harbor Marine Contracting Corp.,...