Vaccaro v. Shell Beach Condo., Inc.

• Decision Date: 18 October 2016
• Docket Number: AC 37811
• Court: Connecticut Court of Appeals
• Parties: Enrico Vaccaro v. Shell Beach Condominium, Inc., et al.

169 Conn.App. 21

148 A.3d 1123

Enrico Vaccaro

v.Shell Beach Condominium, Inc., et al.

AC 37811

Appellate Court of Connecticut.

Argued May 17, 2016

Officially released October 18, 2016

Enrico Vaccaro, self-represented, with whom, on the brief, was Emily A. Gianquinto, for the appellant (plaintiff).

Sharon Baldwin, for the appellee (named defendant).

Daniel J. Krisch, with whom was Joshua M. Auxier, for the appellees (defendant Andrew Hames et al.).

Sheldon, Prescott and Bear, Js.

BEAR, J.

The plaintiff, Enrico Vaccaro, appeals from the summary judgment rendered by the trial court in favor of the defendants, Shell Beach Condominium, Inc. (association), and certain individual members of its board of directors, Andrew Hames, Frank Meolli, Michael Gagliardi, Michelle Augliera, and Raymond Vermette (individually named defendants), on the basis that all of the plaintiff's claims arising from the deprivation of the use of a particular garage were time barred.

The plaintiff argues that the court erred in rendering summary judgment in favor of the defendants, because, inter alia: (1) the trial court applied the wrong statute of limitations to count one of his complaint, which sought to enforce the condominium instruments; and (2) genuine issues of material fact exist as to whether the applicable statutes of limitations were tolled by virtue of the continuing course of conduct doctrine. We affirm the judgment of the court.¹

Evidence concerning the following facts and procedural history appears in the record. Shell Beach Condominium (condominium) is a condominium complex located in East Haven and organized pursuant to the Condominium Act of 1976 (Condominium Act), General Statutes § 47–68a et seq. It is comprised of forty-seven residential units and fifty-two garages,² and includes a number of open-air parking spaces. The association is a nonstock corporation, owned by the unit owners of the condominium; membership in the association occurs immediately upon acquisition of title in a unit. The affairs of the condominium are conducted by a board of directors (board), all of whom are unit owners.

See General Statutes § 47–80 (c) (1) (bylaws required to contain, inter alia, “[t]he election from among the unit owners of a board of directors”). Each of the individually named defendants was a member of the board when the plaintiff commenced this action.

In 1999, the plaintiff became a unit owner in the condominium when he purchased his individual unit from Salvatore Amendola, who was assisted in the sale by his daughter, Rosalie Porrello. The warranty deed, dated May 26, 1999, and recorded May 27, 1999, purported to convey unit 14 and garage 49.³ During this transaction, the plaintiff was informed that garage 49 was the garage that would be conveyed with unit 14. Neither Amendola nor Porrello, however, discussed with the plaintiff any use of or ownership in garage 14.⁴ Further, although Amendola was a member of the board at the time of the transaction, he was selling a unit that he personally owned.⁵ Apart from his conversations with Amendola, the plaintiff did not speak with any member on the board at the time of the conveyance, nor did he speak with any of the individually named defendants, at or before the time of the closing.⁶

The plaintiff did not receive the condominium declaration prior to or during the closing; instead, the association mailed it to him at some point thereafter. Although the plaintiff received a copy of the declaration in 1999, he admittedly did not review that document until 2009.

In January, 2009, the plaintiff received a tax assessment that he believed to be substantially higher than prior assessments. He contacted the assessor, and was informed that he was being assessed for both garage 14 and garage 49. After this conversation, the plaintiff examined the condominium instruments⁷ and came to believe that he was entitled to the exclusive use of garage 14, not garage 49.⁸ The plaintiff contacted the board and demanded that it, on behalf of the association, take action to provide him with use of garage 14 pursuant to the applicable statutory authority and provisions of the condominium instruments. After the board denied the plaintiff's request, the plaintiff commenced this action by summons and a seven count complaint⁹ on each of the defendants in July, 2009, in which he alleged, inter alia, that the defendants had deprived him of the use of garage 14 in violation of the condominium instruments and the Condominium Act.

The defendants filed a motion for summary judgment on January 23, 2012, in which they claimed, inter alia, that the statutes of limitations had run on all seven counts of the plaintiff's complaint.¹⁰ After the court allowed additional time for the parties to conduct discovery, and the parties had filed additional briefs, the court heard argument on October 20, 2014. In a memorandum of decision dated February 9, 2015, the court granted the defendants' motion for summary judgment as to all counts, making several determinations relevant to this appeal. First, it determined that, pursuant to the declaration, garages are limited common elements of the condominium,¹¹ rather than units¹² as the defendants had contended. Second, it also determined that the declaration did not require that particular garages or parking areas be assigned to any particular units, and the defendants therefore had no ongoing duty to ensure that the plaintiff, as title owner of unit 14, be assigned garage 14. Having already concluded that there was no genuine issue of material fact concerning whether the applicable statute of limitations as to each count had run, the court accordingly rendered judgment for the defendants on all counts.¹³ The plaintiff filed a motion for reargument and/or reconsideration, which the court denied. This appeal followed.¹⁴

I

The plaintiff argues that the court erred in rendering summary judgment on the first count of his complaint, in which he claimed that the defendants, by their conduct, had violated General Statutes § 47–75 (a),¹⁵ because it improperly relied upon the wrong limitations period in ruling on the timeliness of that claim. In this respect, the plaintiff makes two separate and distinct claims. First, he argues that the court erred in determining that any statute of limitations applies to count one because a claim under § 47–75 is equitable in nature. Second, he argues that, even if the court properly determined that the claim pleaded in his first count is subject to a statute of limitations, the court erred in determining that the applicable limitations period is the three year limitations period for tort actions.

The determination of which statute of limitations applies to a given action is a question of law over which our review is plenary. See Fleet National Bank v. Lahm , 86 Conn.App. 403, 405, 861 A.2d 545 (2004), cert. denied, 273 Conn. 904, 868 A.2d 744 (2005). We address each of the plaintiff's claims in turn.

A

With respect to his first claim, the plaintiff argues that the court improperly determined that count one is subject to any statute of limitations because an action pursuant to § 47–75 is equitable, and equitable proceedings are not subject to statutes of limitations.¹⁶ We disagree.

The following facts are relevant to the resolution of this claim. In the first count of the complaint, the plaintiff alleges that the defendants, pursuant to both § 47–75 and article 15 of the declaration,¹⁷ are required to comply with and enforce the condominium instruments and the Condominium Act. Pursuant to the declaration, the plaintiff alleges that garages are limited common elements, and that he, as the title owner of unit 14, is entitled to an exclusive easement in garage 14. He further alleges that the declaration forbids any attempt to convey or mortgage the title to a unit without conveying all appurtenant interests or any attempt to sell or transfer an appurtenant interest except as part of the unit to which it is attached, and that the defendants, “in violation of the condominium instruments and the Condominium Act,” have “wilfully allowed and/or permitted and/or caused” the interest in garage 14 to be severed from unit 14 and unit 14 to be sold to the plaintiff without the exclusive use of garage 14, and have “wilfully allowed and/or caused and/or permitted and/or continue to permit” another unit owner to use garage 14. (Internal quotation marks omitted.) Further, the plaintiff alleges that the defendants have failed to correct this situation, despite demands by the plaintiff that they “comply with and enforce the condominium instruments, the Condominium Act ... and the easement in favor of the plaintiff for the exclusive use of” the garage. (Internal quotation marks omitted.) As a result of the defendants' actions, the plaintiff alleges a number of injuries, including that he has been denied the use of garage 14 and has suffered financial harm because, inter alia, he has been assessed for and has paid taxes on that garage, paid for electricity for that garage, and the fair market value of his property has been substantially reduced. Counts two through seven of his complaint rely on most of the same operative facts as count one. In his prayer for relief, he seeks, inter alia, various forms of injunctive relief pursuant to § 47–75 and compensatory damages, but does not attempt to allocate any particular relief to any particular count.

Our case law draws a distinction where statutes of limitations are concerned between purely equitable proceedings and actions where a party can seek both legal and equitable relief. “[I]n an equitable proceeding, a court may provide a remedy even though the governing statute of limitations has expired, just as it has discretion to dismiss for laches an action initiated within the period of the statute.... Although courts in equitable proceedings often look by analogy to the statute of limitations to determine whether, in the interests of justice, a...