PMG LAND ASSOCIATES, L.P.
HARBOUR LANDINGCONDOMINIUM ASSOCIATION, INC., ET AL.
December 2, 2016
from Superior Court, judicial district of New Haven, Holden,
J., [motion to dismiss]; Wilson, J. [motion for summary
M. Maser, for the appellant (plaintiff).
Pascale Zaino, with whom was Joshua M. Auxier, for the
DiPentima, C. J., and Beach and Sheldon, Js. [*]
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.
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. 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,
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.
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
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
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. 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.
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
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 ...