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Vaccaro v. Shell Beach Condominium, Inc.

Court of Appeals of Connecticut

October 18, 2016

ENRICO VACCARO
v.
SHELL BEACH CONDOMINIUM, INC., ET AL.

          Argued May 17, 2016

         Appeal from Superior Court, judicial district of New Haven, Wilson, J.

          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.

          OPINION

          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 instruments[7] 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 complaint[9] 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 units[12] 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 particular action should be heard, they are by no means obliged to adhere to those time limitations.'' (Citations omitted.) Dunham v. Dunham, 204 Conn. 303, 326-27, 528 A.2d 1123 (1987), overruled in part on other grounds by Santopietro v. New Haven, 239 Conn. 207, 213 n.8, 221, 682 A.2d 106 (1996).

         The situation is different, however, where a party asserts a cause of action, pursuant to which it rightfully could seek both legal and equitable relief. ‘‘[W]here a party seeks equitable relief pursuant to a cause of action that would also allow that party to seek legal relief, concurrent legal and equitable jurisdiction exists, and the statute of limitations that would be applicable to bar the legal claim also applies to bar the equitable claim.'' (Internal quotation marks omitted.) Gager v. Sanger, 95 Conn.App. 632, 641-42, 897 A.2d 704, cert. denied, 280 Conn. 905, 907 A.2d 90 (2006). For instance, in Dowling v. Finley Associates, Inc., 49 Conn.App. 330, 334-35, 714 A.2d 694 (1998), rev'd on other grounds, 248 Conn. 364, 727 A.2d 1245 (1999), this court held that the plaintiff's claims for equitable relief pursuant to a provision of the Connecticut Uniform Securities Act, General Statutes § 36b-29 (a), were barred by the time limitation set forth in that statute.

         A party asserting a claim pursuant to the Condominium Act can seek either legal or equitable relief; see General Statutes § 47-75 (a); and a fair reading of count one of the plaintiff's complaint and the prayer for relief therein suggests that the plaintiff sought both. Further, the plaintiff has pleaded the same essential facts in each of the counts on which he bases his claims for legal and equitable relief. See Certain Underwriters at Lloyd's, London v. Cooperman, 289 Conn. 383, 411, 957 A.2d 836 (2008) (affirming trial court's determination that, where legal claims for statutory theft and conversion were time barred, ‘‘the plaintiffs' equitable claims based on the same facts also [were] time barred'' [emphasis added]). Under these circumstances, the court has concurrent equitable and legal jurisdiction, and the running of the applicable limitation period would bar both the plaintiff's legal and equitable claims brought pursuant to § 47-75.[18]

         B

         The plaintiff next argues that, even if the court properly determined that count one alleging a violation of § 47-75 is subject to a statute of limitations, it improperly determined that count one was subject to the three year limitations period set forth in General Statutes § 52-577, [19] which governs torts generally. Noting ‘‘the unique nature of condominiums, '' he asserts that the Condominium Act is concerned with property rights and that the declaration provides that both the relevant statutory provisions and the condominium instruments are covenants that run with the land.[20] Arguing that the appropriate limitations period therefore must be grounded in property law and asserting that his claims are similar to adverse possession claims, the plaintiff contends that the only potentially applicable limitations period is the fifteen year period prescribed for such an action by General Statutes § 52-575 (a).[21]

         The individually named defendants and the association disagree with the plaintiff and with each other as to which statute of limitations applies to claims brought pursuant to § 47-75. The individually named defendants assert that, because the plaintiff repeatedly contends that the defendants violated the Condominium Act, count one asserts a claim for a statutory violation and, thus, is subject to § 52-577. In contrast, the association claims that the plaintiff's first cause of action asserts a violation of the defendants' duties pursuant to the declaration and, therefore, is governed by General Statutes § 52-576 (a), [22] or, if interpreted as asserting a violation of the Condominium Act, by § 52-577. We conclude that either § 52-576 or § 52-577 would apply to bar this cause of action.

         ‘‘[W]hen a statute includes no express statute of limitations, we should not simply assume that there is no limitation period. Instead, we borrow the most suitable statute of limitations on the basis of the nature of the cause of action or of the right sued upon.'' Bellemare v. Wachovia Mortgage Corp., 284 Conn. 193, 199, 931 A.2d 916 (2007); see also 51 Am. Jur. 2d 533, Limitation of Actions § 129 (2000) (‘‘The nature of the cause of action or of the right sued upon is the test by which to determine which statute of limitations applies and whether the action is barred by the running of the limitation period. Thus, for an action under a state statute that lack[s] an express limitations period, the courts look to analogous causes of action for which express limitations periods are available, either by statute or by case law.'' [Footnote omitted.]).

         A number of cases have addressed whether an action sounds in contract or in tort. See, e.g., Meyers v. Livingston, Adler, Pulda, Meiklejohn & Kelly, P.C., 311 Conn. 282, 290-93, 87 A.3d 534 (2014); Bellemare v. Wachovia Mortgage Corp., supra, 284 Conn. 200-204; Gazo v. Stamford, 255 Conn. 245, 262-67, 765 A.2d 505 (2001). ‘‘[T]he fundamental difference between tort and contract lies in the nature of the interests protected. . . . The duties of conduct which give rise to [a tort action] are imposed by the law, and are based primarily upon social policy, and not necessarily upon the will or intention of the parties. . . . Furthermore, other courts have held that, when a plaintiff seeks to recover damages for the breach of a statutory duty, such an action sounds in tort.'' (Citation omitted; internal quotation marks omitted.) Bellemare v. Wachovia Mortgage Corp., supra, 200. ‘‘On the other hand, [c]ontract actions are created to protect the interest in having promises performed. Contract obligations are imposed because of [the] conduct of the parties manifesting consent, and are owed only to the specific individuals named in the contract. . . . In short, [a]n action in contract is for the breach of a duty arising out of a contract; an action in tort is for a breach of duty imposed by law.'' (Citation omitted; internal quotation marks omitted.) Id.

         In this case, we are not required to resolve whether count one sounds in contract or in tort. The court in its memorandum of decision determined that the applicable statute of limitations for each count of the plaintiff's complaint began to run in May, 1999, when the plaintiff purchased unit 14 in a deed dated May 26, 1999, and recorded on May 27, 1999. The plaintiff has not argued on appeal that the court erred in relying on this date. Thus, as it also is uncontested that this action was commenced in July, 2009, count one would be outside the limitations period provided under either §§ 52-576 or 52-577 and, in the absence of an equitable basis for tolling the limitations period, would be barred.

         In this light, we now consider the plaintiff's arguments that the most applicable limitations period is not one governing claims sounding in tort or in contract, but rather the time period provided in § 52-575, which defines a claimant's right to title based on adverse possession. ‘‘[T]o establish title by adverse possession, the claimant must oust an owner of possession and keep such owner out without interruption for fifteen years by an open, visible and exclusive possession under a claim of right with the intent to use the property as his own and without the consent of the owner. . . . A finding of adverse possession is to be made out by clear and positive proof. . . . The burden of proof is on the party claiming adverse possession.'' (Internal quotation marks omitted.) Caminis v. Troy, 300 Conn. 297, 311, 12 A.3d 984 (2011). The courts of this state frequently have referred to the fifteen year period provided in § 52-575 (a) as a statute of limitations. See, e.g., id.; Pollansky v. Pollansky, 162 Conn.App. 635, 654, 133 A.3d 167 (2016); Eberhart v. Meadow Haven, Inc., 111 Conn.App. 636, 645-46, 960 A.2d 1083 (2008). A determination that an adverse possessor meets the requirements of § 52-575 (a) prevents the original title owner from recovering on equitable claims based on title to the property. See Caminis v. Troy, supra, 299-300 (affirming trial court judgment against plaintiff seeking declaratory and injunctive relief on alternative ground that claims were ‘‘barred because they were brought outside the fifteen year limitations period'').

         A proper framing of the plaintiff's theory of recovery and of the relationships among the parties reveals compelling reasons to reject the plaintiff's proposal to use the limitations period set forth in our adverse possession statute. In the plaintiff's analogy, he is the rightful owner or possessor of garage 14 by virtue of the condominium instruments; therefore, if the analogy were to hold, he would be suing the defendants as the adverse possessors of the property. He does not allege or present any evidence, however, that the association or the individually named defendants, in their roles as directors of the board of the condominium, are in actual possession, or have been in possession, of garage 14 since the allegedly impermissible severance of that interest from unit 14, and no evidence in the record supports such a finding. Nor does he allege in his complaint or present any evidence showing that the current owner and user of garage 14, who has never been made a party to this action, is using it pursuant to the type of agreement or relationship with the defendants from which it could be inferred that the defendants, through that occupant, have been making the type of adverse and hostile use of the property in derogation of the plaintiff's interest that would constitute adverse possession. Cf. Richmond v.Stahle, 48 Conn. 22, 23 (1880) (possession by tenant of adversely possessing landlord may be tacked onto landlord's use when determining whether landlord has held property against third parties' possessory interest for statutory period). Instead, the plaintiff's entire theory of recovery against the defendants rests on ...


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