Navin v. Essex Savings Bank

• Decision Date: 30 March 2004
• Docket Number: (AC 24250).
• Citation: 843 A.2d 679,82 Conn. App. 255
• Court: Connecticut Court of Appeals
• Parties: JEFFREY W. NAVIN ET AL. v. ESSEX SAVINGS BANK ET AL.

82 Conn. App. 255

843 A.2d 679

JEFFREY W. NAVIN ET AL. v.ESSEX SAVINGS BANK ET AL.

(AC 24250).

Appellate Court of Connecticut.

Argued January 8, 2004.

Officially released March 30, 2004.

Lavery, C. J., and Dranginis and Bishop, Js.

John T. O'Reilly,pro se, the appellant(plaintiff).Kenneth R. Davis filed a brief for the appellants(named plaintiffs et al.).

John S. Bennett, for the appellees(defendants).

Opinion

LAVERY, C. J.

The plaintiffs, Jeffrey W. Navin, John F. Coyne and John T. O'Reilly, appeal from the summary judgment rendered by the trial court on each of their ten claims in favor of the defendants Essex Savings Bank (bank) and Douglas H. Olson.¹On appeal, the plaintiffs claim that the court improperly (1) determined that their claims were barred by the statute of limitations, (2) determined that their claims were barred by collateral estoppel and (3) granted the defendants' motion to disqualify their attorney.We agree with the court that the statute of limitations barred the plaintiffs' claims and, accordingly, affirm the judgment of the trial court.²

The following facts and procedural history are germane to our resolution of the plaintiffs' appeal.The origin of this case stems from certain land transactions that occurred in the 1980s.In 1986, Martin Frimberger gave a note to the bank in the amount of $300,000 and secured it with a mortgage on property he owned in Old Lyme.That mortgage was recorded in the town land records.Frimberger then gave two mortgages to two different groups to secure an unrelated debt.Those mortgages also were recorded in the town land records.

Frimberger then obtained a new mortgage loan in the amount of $650,000 and recorded it in the town land records on July 27, 1988.At that time, the holders of the two mortgages executed and delivered subordination agreements in favor of the bank.Those agreements were not recorded in the town land records until April 20, 1989.

In September, 1988, O'Reilly purchased Frimberger's property and conveyed lots to, among others, Kenneth Davis, Navin and Coyne.The bank issued purchase money mortgage loans to those buyers.O'Reilly also became involved in another subdivision project in the town of Lyme.Frimberger owned that property as well, and O'Reilly took title knowing that the property was subject to various mortgages.The plaintiffs subsequently defaulted on the mortgages, and the bank commenced foreclosure proceedings.

The plaintiffs commenced a ten count action against the defendants on July 15, 2002.The plaintiffs set forth various causes of action, including fraud, misrepresentation, breach of contract, negligence and unfair trade practices.The crux of the complaint alleged that the bank, acting by and through its attorney, conspired to cloud the title to the plaintiffs' properties by improperly recording mortgages on the land records in April, 1989, causing the plaintiffs to default and thereby allowing the bank to foreclose on the properties.

As a preliminary matter, we set forth certain legal principles and the standard of review that govern our resolution of the plaintiffs' claim."The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried."Wilson v. New Haven,213 Conn. 277, 279, 567 A.2d 829(1989)."Our review of the trial court's decision to grant the . . . motion for summary judgment is plenary. . . .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 . . . .Summary judgment may be granted where the claim is barred by the statute of limitations."(Citations omitted; internal quotation marks omitted.)Torringford Farms Assn., Inc. v. Torrington,75 Conn. App. 570, 573, 816 A.2d 736, cert. denied, 263 Conn. 924, 823 A.2d 1217(2003).On appeal, the burden is on the opposing party to demonstrate that the court's decision to grant the summary judgment motion was clearly erroneous.Prescott v. Meriden,80 Conn. App. 697, 700, 836 A.2d 1248(2003).

We note that in determining whether the court properly granted the defendants' motion for summary judgment, we do not address or consider the underlying merits of the plaintiffs' claims."Although a judgment based on the running of the statute of limitations bars the plaintiff from bringing an action to relitigate the claim within that jurisdiction, it is not a judgment on the merits and does not erase the plaintiff's claim."(Emphasis added.)Advest, Inc. v. Wachtel,235 Conn. 559, 566, 668 A.2d 367(1995).Thus, "the only facts material to the trial court's decision on a motion for summary judgment are the date of the wrongful conduct alleged in the complaint and the date the action was filed."(Internal quotation marks omitted.)Collum v. Chapin,40 Conn. App. 449, 451, 671 A.2d 1329(1996).Additionally, although the plaintiffs have cited various statements that were made during prior litigation, we are limited to the events alleged in the complaint of this case and any facts alleged in their affidavit in opposition to the motion for summary judgment.

The plaintiffs alleged various causes of action against the defendants, namely, fraud, misrepresentation, negligence, breach of contract and unfair trade practices under CUTPA, General Statutes § 42-110a et seq."Where . . . distinct causes of action arise from the same wrong, each is controlled by the statute of limitations appropriate to it."(Internal quotation marks omitted.)Mac's Car City, Inc. v. DeNigris,18 Conn. App. 525, 530, 559 A.2d 712, cert. denied, 212 Conn. 807, 563 A.2d 1356(1989).We therefore consider the various causes of action with respect to the appropriate statute of limitations.

General Statutes § 52-577 provides that "[n]o action founded upon a tort shall be brought but within three years from the date of the act or omission complained of."See alsoKrondes v. Norwalk Savings Society,53 Conn. App. 102, 113, 728 A.2d 1103(1999)(three year statute of limitations applicable to fraud, misrepresentation claims).General Statues§ 52-584 provides in relevant part that "[n]o action to recover damages for injury to the person, or to real or personal property, caused by negligence ... shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of...."General Statutes § 42-110g (f) provides that an action alleging unfair trade practices under CUTPA "may not be brought more than three years after the occurrence of a violation...."Finally, General Statutes § 52-576 (a) provides in relevant part that "[n]o action for an account, or on any simple or implied contract, or on any contract in writing, shall be brought but within six years after the right of action accrues...."

As alleged in the complaint, the plaintiffs became aware of actionable harm in the summer of 1989.³The complaint was not served on the defendants until July 15, 2002.Thus, it is evident that all of the applicable statutes of limitation had long since expired.

The plaintiffs argue that during the course of various litigation concerning the subject properties, including the foreclosure actions and a case brought in the United States District Court for the District Connecticut(federal case), the defendants had notice of those claims and, therefore, the primary purpose of the statute of limitations was satisfied.⁴We do not agree.

"A statute of limitation or of repose is designed 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.)DeLeo v. Nusbaum,263 Conn. 588, 596, 821 A.2d 744(2003).Additionally, statutes of limitation promote the public policy of advancing the finality of litigation.SeeRosario v. Hasak,...