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Raso v. Deer Hill Arms Condominium Association, Inc.

Superior Court of Connecticut, Judicial District of Danbury, Danbury

March 20, 2017

MICHAEL RASO
v.
DEER HILL ARMS CONDOMINIUM ASSOCIATION, INC

          MEMORANDUM OF DECISION RE; DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. NO.105

          Anthony D. Truglia, Jr., J.

         I. Factual and Procedural Background.

         Michael Raso (the plaintiff) brings this action seeking a mandatory injunction ordering Deer Hill Arms Condominium Association, Inc. (defendant) to abate a nuisance. [1] The plaintiff owns a unit which is part of Deer Hill Arms Condominium. The defendant is the association of unit owners created to manage the Deer Hill Arms Condominium common interest community. The plaintiff brings his action in three counts. The first count alleges that the defendant has created a nuisance by failing to maintain certain common elements and limited common elements appurtenant to the plaintiff's unit, making his unit uninhabitable. The plaintiff alleges that rainwater leaks through the roof and portions of the exterior walls of his unit, causing mold to grow on the walls and floors of his unit and making his baseboard heating system inoperable. The second count incorporates the factual allegations of the first count and further alleges that the defendant has breached its obligations to him under its declaration and bylaws and pursuant to the Condominium Act [2] to repair and maintain the exterior of the plaintiff's unit. In his third count, the plaintiff alleges that the defendant continues to breach its contractual duty to maintain the common elements of the condominium (which form the exterior of the plaintiff's unit) by failing to repair the roof directly over the plaintiff's unit. The plaintiff claims a judgment of this court " prohibiting and restraining the defendant from causing and allowing the exterior walls, roof and structure [of the plaintiff's unit] to be in disrepair so that they leak water into [the unit] and directing the defendant to repair and remedy said leaks and the damage caused to the interior of [the unit] by the leaks."

         The defendant has moved for summary judgment in its favor on all three counts of the plaintiff's complaint. The defendant argues that the doctrine of res judicata bars consideration of the plaintiff's claims in the present action because the plaintiff filed a substantially similar action in 2014 arising from the same factual circumstances. The plaintiff's earlier action alleged that the defendant " negligently and carelessly failed to repair and remedy leaking of water from the exterior walls and structure into [the plaintiff's unit]." The plaintiff alleged that " as a direct and proximate result of [the defendant's] negligence and carelessness, ... water seeps through the exterior walls of [the plaintiff's unit] rendering it uninhabitable, worthless and unmarketable and destroying the plaintiff's personal property within the unit." The defendant moved for summary judgment in the earlier action as well on the grounds that the plaintiff did not commence the action within the three year statute of limitations for negligence actions. The court, Ozalis, J., granted the motion, agreeing with the defendant that all of the plaintiff's claims against it were time barred. See Raso v. Deer Hill Arms Condominium Assn., Inc., Superior Court, judicial district of Danbury, Docket No. CV-14-6016052-S (September 25, 2015, Ozalis, J.). In opposition to the motion in the present case, the plaintiff argues that (1) the present action arises from a different set of facts; and (2) the present action asserts new and different causes of action. Where the prior action asserted a single claim for monetary damages based on " negligent destruction" of the plaintiff's property, the plaintiff argues in opposition to the motion the present action asserts causes of action for injunctive relief based on the defendant's continuing obligations to maintain, repair and replace the common elements of the condominium. The plaintiff appears to argue that the Condominium Act and the defendant's own governing instruments (i.e., its declaration and bylaws) create a continuing obligation that can and should be enforced by injunction. The plaintiff has submitted an affidavit of fact in opposition to the motion demonstrating that the defendant's failure and refusal to make needed repairs to his unit continues despite his repeated requests. The court heard oral argument on the defendant's motion on November 21, 2016.

         II. Discussion

         " [S]ummary 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....[T]he trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Cefaratti v. Aranow, 321 Conn. 637, 645, 138 A.3d 837 (2016). " [S]ummary judgment is an appropriate vehicle for raising a claim of res judicata..." (Citations omitted.) Joe's Pizza, Inc. v. Aetna Life & Casualty Co., 236 Conn. 863, 867 n.8, 675 A.2d 441 (1996). " The doctrine of res judicata [claim preclusion] holds that an existing final judgment rendered upon the merits ... is conclusive of causes of action and of facts or issues thereby litigated as to the parties ... If the same cause of action is again sued on, the judgment is a bar with respect to any claims relating to the cause of action which were actually made or which might have been made." (Internal quotation marks omitted.) Hall v. Gulaid, 165 Conn.App. 857, 862-63, 140 A.3d 396 (2016). " This court has recognized that a judgment obtained through the grant of summary judgment against a plaintiff constitutes a judgment on the merits for purposes of res judicata." Id., 863." The rule of claim preclusion prevents reassertion of the same claim regardless of what additional or different evidence or legal theories might be advanced in support of it." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 127 Conn.App. 606, 615, 15 A.3d 1121 (201 l), aff'd, 308 Conn. 338, 63 A.3d 940 (2013). " [I]t is crucial to define the dimensions of [the] original claim. [T]he claim [that is] extinguished includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction ... out of which the action arose...[E]ven though a single group of facts may give rise to rights for several kinds of relief, it is still a single cause of action.... In applying the transactional test, we compare the complaint in the second action with the pleadings and the judgment in the earlier action." (Citation omitted; emphasis omitted; internal quotations marks omitted.) In re Probate Appeal of Cable Co., 152 Conn.App. 427, 436-37, 100 A.3d 30 (2014).In the present case, the plaintiff has filed a three-count complaint asserting the same obligation on the part of the defendant to maintain, repair and replace the exterior common elements of the condominium, and the defendant's failure to do so. That failure, the plaintiff now alleges, has caused significant additional damage to his unit from water leaking into the interior of his unit. In the prior action, the plaintiff alleged virtually identical facts and similar contractual obligations charged to the defendant. The only difference between the two actions is the relief requested. The court agrees with the defendant that the plaintiff could have brought these allegations in the prior action but did not do so. " It is well settled that [a] cause of action is that single group of facts which is claimed to have brought about an unlawful injury to the plaintiff and which entitles the plaintiff to relief. A right of action at law arises from the existence of a primary right in the plaintiff, and an invasion of that right by some delict on the part of the defendant. The facts which establish the existence of that right and that delict constitute the cause of action. Even though a single group of facts may give rise to rights for several different kinds of relief, it is still a single cause of action." (Internal citations omitted.) Daoust v. McWilliams, 49 Conn.App. 715, 721-22, 716 A.2d 922 (1998). The defendant's failure to maintain the common elements alleged in the prior action also gave rise to. the demand for injunctive relief to abate a nuisance now asserted in the present case.

         III. Conclusion

         For the foregoing reasons, the court rules that the plaintiffs claims are barred by application of the doctrine of res judicata. The court grants the defendant's motion for summary judgment.

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Notes:

[1]The plaintiff claims money damages in each of the three counts of his complaint, but each count also alleges that the plaintiff " has no remedy at law." The court construes all three counts of the plaintiff's complaint as an equitable claim for injunctive relief to abate a private nuisance.

[2]General Statutes § 47-68a et seq.


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