Rickel v. Komaromi
Decision Date | 13 August 2013 |
Docket Number | No. 35062.,35062. |
Citation | 144 Conn.App. 775,73 A.3d 851 |
Court | Connecticut Court of Appeals |
Parties | Caryn RICKEL v. Michael KOMAROMI et al. |
OPINION TEXT STARTS HERE
Keith R. Ainsworth, New Haven, for the appellant (plaintiff).
W. Glen Pierson, Wallingford, for the appellees (named defendant et al.).
GRUENDEL, BEAR and LAVERY, Js.
The plaintiff, Caryn Rickel, appeals from the summary judgment rendered by the trial court in favor of the defendants Michael Komaromi and Roberta Komaromi with respect to the counts of her complaint sounding in nuisance and trespass.1 On appeal, the plaintiff claims that the court erred in rendering summary judgment because (1) it did not address the plaintiff's allegations and arguments in opposition to the defendants' motion for summary judgment that the repeated bamboo encroachment from the defendants' property to her property constituted a continuing nuisance and a continuing trespass, and (2) it did not address the factual question of whether the nuisance and trespass were continuing or permanent. We reverse the judgment of the trial court.
The record reveals the following undisputed facts and procedural history. The plaintiff resides at 13 Edgehill Terrace in Seymour. The defendants reside at 10 Sunset Terrace in Seymour, which is adjacent to the plaintiff's property. On or about July 1, 1997, the defendants planted phyllostachys aureosulcata, a type of invasive running bamboo, along their corner property line, but they did not put up any barrier to contain it. The bamboo encroached upon the plaintiff's property. In 2005, during the installation of a patio at the corner of the plaintiff's property, a landscaper used a backhoe and dump truck in order to eradicate the bamboo from the area. The landscaper also installed steel sheathing along this corner property line in order to protect the patio. Despite the steel sheathing, the bamboo had reentered the area by July, 2010.2
The plaintiff commenced her action against the defendants by service of process on November 5, 2010. She brought claims of nuisance, trespass and negligence against them. In addition to the aforementioned undisputed facts, the plaintiff also alleged in her complaint that the bamboo further and repeatedly encroached on her property at all relevant times, and it presently continues to do so. The defendants filed their answer on August 4, 2011, in which they raised a statute of limitations special defense on all of the claims against them.
On June 28, 2012, the defendants moved for summary judgment on the ground that the applicable statutes of limitations had run on the three claims against them. They submitted no documentary proof in support of their motion; they cited only to the complaint for the facts on which they relied to argue their entitlement to a judgment as a matter of law. The court granted the defendants' motion on August 16, 2012. In its memorandum of decision, the court concluded that the applicable statutes of limitations had provided the plaintiff with a maximum of three years from “the date of the act or omission complained of” to commence her action against the defendants. The court noted that there was no dispute that the defendants planted the bamboo in 1997 or that the plaintiff “discovered the actionable harm in 2005....” Nonetheless, because the plaintiff did not commence her action against the defendants until 2010, the court held that each count of the action was time barred as a matter of law. This appeal followed. The plaintiff appeals only from the court's judgment with respect to her nuisance and trespass claims.
On appeal, the plaintiff claims that (1) the court erred in rendering summary judgment on her nuisance and trespass counts because she raised a genuine issue of material fact by alleging in her complaint and arguing in her opposition to summary judgment that the repeated encroachment of the defendants' bamboo upon her property created a continuing nuisance and a continuing trespass; and (2) the court committed error by failing to acknowledge, let alone address, her continuing nuisance and continuing trespass allegations and arguments, and the factual question of whether a nuisance or trespass is continuing or permanent requires the denial of a motion for summary judgment made solely on statute of limitations grounds. She claims that this is because, for statute of limitations purposes, each instance of nuisance or trespass in a continuing nuisance or trespass creates a new cause of action, whereas a permanent nuisance or trespass involves a discrete occurrence of nuisance or trespass from which the applicable statute of limitations begins to run. The existence of this genuine issue of material fact, she contends, should have precluded the court from concluding that the defendants were entitled to a judgment as a matter of law. We agree.
We begin our analysis with the well settled standard of review applied to a court's decision to grant a motion for summary judgment. “Our review of the trial court's decision to grant [a] motion for summary judgment is plenary.” (Internal quotation marks omitted.) Boone v. William W. Backus Hospital, 272 Conn. 551, 559, 864 A.2d 1 (2005). (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).
(Emphasis added; internal quotation marks omitted.) Baldwin v. Curtis, 105 Conn.App. 844, 850–51, 939 A.2d 1249 (2008).
The plaintiff's complaint contains several allegations that the defendants' bamboo repeatedly has encroached on her property, resulting in a continuing nuisance and a continuing trespass. For example, in her nuisance count, the plaintiff alleged in relevant part that the defendants The plaintiff similarly alleged in her trespass count that the defendants The plaintiff's continuing nuisance and continuing trespass allegations therefore factor into the question of whether the court correctly concluded that the defendants met their summary judgment burden with respect to the plaintiff's nuisance and trespass claims, as framed by her complaint. We note that the defendants did not address the plaintiff's continuing nuisance and continuing trespass allegations at any point in moving for summary judgment.
We now direct our attention to the plaintiffs' claims on appeal. We start with her claim that the factual question of whether a nuisance or trespass is continuing or permanent requires the denial of a motion for summary judgment made solely on statute of limitations grounds. Our resolution of this claim will bear upon our resolution of the plaintiff's other claim, that the court erred in rendering summary judgment without addressing her continuing nuisance and continuing trespass allegations.
“[R]ecent case law treats trespass cases as involving acts that interfere with a plaintiff's exclusive possession of real property and nuisance cases as involving acts interfering with a plaintiff's use and enjoyment of real property.” Boyne v. Glastonbury, 110 Conn.App. 591, 599–600, 955 A.2d 645, cert. denied, 289 Conn. 947, 959 A.2d 1011 (2008). ...
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