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PMG Land Associates, L.P. v. Harbour Landing Condominium Association, Inc.

Court of Appeals of Connecticut

May 2, 2017

PMG LAND ASSOCIATES, L.P.
v.
HARBOUR LANDINGCONDOMINIUM ASSOCIATION, INC., ET AL.

          Argued December 2, 2016

         Appeal from Superior Court, judicial district of New Haven, Holden, J., [motion to dismiss]; Wilson, J. [motion for summary judgment].)

          Scott M. Maser, for the appellant (plaintiff).

          Laura Pascale Zaino, with whom was Joshua M. Auxier, for the appellees (defendants).

          DiPentima, C. J., and Beach and Sheldon, Js. [*]

          OPINION

          BEACH, J.

         The plaintiff, PMG Land Associates, L.P., appeals from the judgment of the trial court granting the motion for summary judgment filed by the defendants, Harbour Landing Condominium Association, Inc., David Potter, Vincent DeLauro, and Margareth Butter-worth. On appeal, the plaintiff contends that the court improperly held that the action was barred by the applicable statute of limitations. We affirm the judgment of the trial court.

         The following facts are relevant to this appeal. The plaintiff and the defendants owned adjacent properties in New Haven. The defendants' land comprised phases I and II of the Harbour Landing condominium complex. Contiguous land owned by the plaintiff was planned to be phases III, IV, and V of the development.[1] In 2000, the plaintiff placed the land intended for phases III, IV, and V on the market. In response, the defendants commenced an action seeking a prescriptive easement over portions of the plaintiff's property (defendants' 2001 action) and, in connection with that action, recorded a lis pendens applicable to all of the plaintiff's property slated for development. The plaintiff subsequently sought a discharge of the lis pendens. On March 26, 2003, the court, Hon. Robert I. Berdon, judge trial referee, granted relief to the plaintiff as to certain portions of the land, and denied it as to others. On January 28, 2004, the court modified its 2003 decision to further limit the scope of the defendants' lis pendens. On May 28, 2004, as will be explained, the defendants' 2001 action, which provided the basis for the lis pendens, was dismissed.

         Meanwhile, in October, 2003, while the defendants' 2001 action seeking a prescriptive easement was pending, the plaintiff initiated an action against the defendants seeking to quiet title; it also alleged slander of title and tortious interference with a contract (plaintiff's 2003 action). The plaintiff alleged that the lis pendens filed by the defendants was false and was intended to interfere with the plaintiff's ability to market and sell its property, and that, in an attempt to interfere with the plaintiff's recently signed agreement for sale, the defendants had failed to remove the lis pendens in accordance with Judge Berdon's order. The plaintiff also alleged that the defendants interfered with the plaintiff's ability to access its property by changing the access codes on the gates surrounding the property. In April, 2004, the parties informed the court that both the defendants' 2001 action and the plaintiff's 2003 action had been settled. The court, accordingly, ordered the parties to withdraw both cases on or before May 27, 2004. The required withdrawals never were filed, and the court dismissed the defendants' 2001 action on May 28, 2004, and the plaintiff's 2003 action on June 30, 2004.

         Approximately six months later, in November, 2004, the plaintiff filed a second complaint against the defendants. The plaintiff alleged (1) statutory vexatious litigation, (2) common-law vexatious litigation, and, again, (3) tortious interference with a contract. The factual allegations in the second complaint largely mirrored the allegations in the plaintiff's 2003 action, with the additional allegation that the defendants had filed a zoning appeal against the plaintiff's buyer, The Christopher Companies, Ltd. (Christopher Companies), in 2004, in another attempt to interfere with the plaintiff's sale of the property. The plaintiff subsequently failed to respond to the defendants' request to revise, interrogatories, and requests for production, and the court granted the defendants' motion for a judgment of nonsuit on January 2, 2007.

         More than a year later, on January 18, 2008, the plaintiff commenced the action underlying this appeal. The underlying action alleges, as the plaintiff noted in its brief, ‘‘the same facts and causes of action as were present in the 2004 lawsuit.'' The defendants filed a motion to dismiss the complaint, arguing that the plaintiff's action was time barred. The court granted the defendants' motion to dismiss on May 28, 2009, and the plaintiff subsequently appealed to this court. On appeal, this court affirmed the trial court's decision as to the vexatious litigation claims, but reversed the judgment of the trial court and remanded the case for further proceedings on the tortious interference with business expectancies claim. PMG Land Associates, L.P. v. Harbour Landing Condominium Assn., Inc., 135 Conn.App. 710, 719, 42 A.3d 508 (2012).[2]

         On remand, the defendants filed a motion for summary judgment, arguing that the plaintiff's claim for tortious interference was time barred pursuant to General Statutes § 52-577.[3] This action was commenced on January 18, 2008; therefore, conduct prior to January 18, 2005, was outside the statute of limitations. Because the defendants' 2001 action was dismissed on May 28, 2004, the obligation to release the lis pendens arose in 2004, and, therefore, this action was time barred unless the running of the statute of limitations was tolled. The plaintiff argued that the defendants' continuing failure to release the lis pendens constituted a continuing course of conduct that tolled the statute of limitations until the lis pendens was released on June 6, 2005. The plaintiff also argued that the defendants had committed other tortious acts within the relevant time frame, and that those acts satisfied one method of establishing a continuing course of conduct for the purpose of tolling the statute of limitations. The defendants argued that, under this court's holding in Bellemare v. Wachovia Mortgage Corp., 94 Conn.App. 593, 894 A.2d 335 (2006), aff'd, 284 Conn. 193, 931 A.2d 916 (2007), the failure to release the lis pendens constituted a single omission that occurred when the action on which the lis pendens was premised was dismissed. The defendants also argued that the plaintiff failed sufficiently to establish that they had committed other tortious acts within the three years preceding the commencement of the plaintiff's initiation of the underlying action. The trial court agreed with the defendants and granted the motion for summary judgment. This appeal followed.

         The plaintiff argues that the court improperly granted the defendants' motion for summary judgment because the statute of limitations was tolled until the defendants released the lis pendens, and because there was a genuine issue of material fact as to whether the defendants committed other tortious acts relevant to this claim within the three years prior to the initiation of the underlying action. We disagree.

         We begin by setting forth the relevant standard of review. ‘‘Practice Book § 17-49 provides that summary 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. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. . . . 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 ...


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