LAURENCE V. PARNOFF
v.
AQUARION WATER COMPANY OF CONNECTICUT ET AL.
Argued
October 22, 2018
Procedural
History
Action
to recover damages for, inter alia, trespass, and for other
relief, brought to the Superior Court in the judicial
district of Fairfield, where the court, Radcliffe,
J., granted in part the motion for summary judgment
filed by the named defendant et al. and rendered judgment
thereon; thereafter, the court granted the supplemental
motion for summary judgment filed by the named defendant et
al. and rendered judgment thereon, from which the plaintiff
appealed to this court.
Affirmed.
Thomas
J. Weihing, with whom, on the brief, were John T. Bochanis
and Joeseph D. Compagnone, for the appellant (plaintiff).
Edward
P. McCreery, with whom, on the brief, were Adam S. Mocciolo
and Martha M. Royston, for the appellees (named defendant et
al.).
Keller, Moll and Eveleigh, Js.
OPINION
KELLER, J.
This
appeal, and a related appeal, Parnoff v. Aquarion Water
Co. of Connecticut, 188 Conn. App., A.3d (2019), which
we also officially release today, involve a challenge by the
plaintiff, Laurence V. Parnoff, to the summary
judgments rendered by the trial court in favor of the
defendants in this action. In this appeal, the plaintiff
appeals from the summary judgments rendered by the trial
court in favor of the defendants Aquarion Water Company of
Connecticut (Aquarion) and its employees, Beverly A. Doyle,
David Lathlean, and Kyle Lavin.[1] The plaintiff claims that the
trial court erred by rendering summary judgment in favor of
the defendants as to his (1) claims of trespass, (2) claims
of negligent infliction of emotional distress, (3) claims of
invasion of privacy, (4) claims of intentional infliction of
emotional distress, and (5) claim under the Connecticut
Unfair Trade Practices Act (CUTPA), General Statutes §
42-110b (a). For the reasons set forth in this opinion, we
disagree with the plaintiff and affirm the judgments of the
trial court.
In
July, 2014, the plaintiff commenced the present action
against the defendants, alleging in his twenty-five count
revised complaint filed on May 24, 2016, various claims
arising from a July 11, 2011 incident that took place on his
property at 3392 Huntington Road, Stratford, and the adjacent
lot he owned. Therein, he alleged, inter alia, that the
defendants trespassed onto his property beyond any easement
rights of Aquarion and did so against his express orders or
consent. He alleged that Lavin ‘‘ran up to [the
plaintiff] shouting ‘you're stealing water' and
put his camera in [the plaintiff's] face.'' The
plaintiff alleged that he denied stealing any water and
instructed the defendants to ‘‘immediately remove
their three vehicles from [his property] and leave.''
Furthermore,
the plaintiff alleged that both he and Lathlean called the
Stratford Police Department.[2] After doing so, the plaintiff
alleged that Police ‘‘[O]fficer [Glynn] McGlynn
was dispatched by the Stratford Police Department and told of
both calls.'' Upon arrival, the plaintiff asserted,
inter alia, that McGlynn ‘‘spoke at length with
the Aquarion employees'' and asked the plaintiff to
‘‘leave because McGlynn was conducting an
investigation.'' The plaintiff alleged that McGlynn
eventually arrested him. He averred that McGlynn transported
him to a holding cell at the Stratford Police Department,
allowing the defendants to trespass further on his property.
Moreover, he asserted that the defendants
‘‘exhort[ed] public officials to take further
baseless action to humiliate and embarrass'' him and
publicly accused him of theft. In his complaint, the
plaintiff included counts against each of the four defendants
for trespass (counts one through four), negligent infliction
of emotional distress (counts five through eight),
intentional infliction of emotional distress (counts nine
through twelve), and invasion of privacy (counts thirteen
through sixteen). He also included a count against Aquarion
alleging a violation under CUTPA (count
seventeen).[3]
On July
13, 2016, the defendants filed an answer with eleven special
defenses.[4] The defendants alleged that the
plaintiff's trespass claims in counts one through four
were barred because Doyle, Lathlean, and Lavin's entry,
presence, and activities on the property were expressly
permitted by easements, reservations, and exceptions held by
Aquarion. As to counts five through eight, the defendants
argued that the plaintiff's claims were barred by the
relevant statute of limitations. As to all the counts, the
defendants alleged the plaintiff's claims were barred in
whole or in part by the plaintiff's waiver because he had
agreed, inter alia, to permit Aquarion to
‘‘inspect, maintain and repair
hydrants''; by the doctrines of absolute and
qualified immunity; by the doctrine of privilege with
consent; by the doctrine of privilege; by the doctrine of
consent or license; by the plaintiff's contributory
negligence; and because the defendants' actions were
authorized and/or permitted by federal and state laws, rules
and regulations, including those promulgated and approved by
the Connecticut Public Utilities Regulatory Authority (PURA)
and the Connecticut Department of Energy and Environmental
Protection. As to the plaintiff's claims in equity, the
defendants alleged that the claims were barred in whole or in
part by the doctrine of unclean hands.[5]
On
August 1, 2016, the defendants filed a motion for summary
judgment as to all of the counts directed against them. As to
the trespass allegations in counts one through four, the
defendants argued that, in addition to their rights pursuant
to an easement on the plaintiff's property, they also had
a tariff from PURA to access the plaintiff's
property.[6] In regard to counts five through twelve
and seventeen, which included the claims of negligent
infliction of emotional distress, intentional infliction of
emotional distress, and a violation of CUTPA, the defendants
argued that the counts were barred by absolute immunity for
all statements made in relation to the judicial action
brought against the plaintiff and any statements made to the
Statewide Grievance Committee, which began an investigation
of the plaintiff, a member of the Connecticut bar, related to
the incident on July 11, 2011. They also argued that
qualified immunity barred the counts for all communications
made to the police or other investigative officers on July
11, 2011, the day before criminal charges arising from the
July 11, 2011 incident were filed against the plaintiff.
As to
counts five through eight, in which the plaintiff raised
claims of negligent infliction of emotional distress, the
defendants argued they were time barred under the applicable
statute of limitations. With respect to counts nine through
twelve, in which the plaintiff raised claims of intentional
infliction of emotional distress, the defendants argued that
the counts were deficient because the defendants' conduct
could not be regarded as extreme or outrageous. Furthermore,
with respect to counts thirteen through sixteen, the
defendants argued that the pleadings were facially deficient
as to the plaintiff's invasion of privacy by unreasonable
intrusion upon seclusion claims because the conduct alleged
by the plaintiff cannot be regarded as highly offensive.
Lastly, as to count seventeen, Aquarion alleged that the
plaintiff failed to establish a CUTPA violation because he
did not suffer an ascertainable loss as required under the
act, a trespass or police report does not form a business
relationship to satisfy the commercial transaction
requirement, and the conduct complained of ‘‘does
not rise to the required level of a deceptive practice or
violation'' under the act.
In
support of their motion, the defendants filed a memorandum of
law and thirty-two exhibits.[7] These exhibits demonstrate that
on the morning of July 11, 2011, the defendants were
servicing one of Aquarion's hydrants, which was located
on the plaintiff's property. When Lavin and Lathean first
located the hydrant, they found that it was missing a cap and
was leaking, and that the ground was wet. They also observed
a red garden hose on the ground next to the hydrant, which
they traced to a goat pen located next to a pond.
Additionally, they observed other hoses located under leaves
that appeared to lead to the goat pen, where two goats
resided. These hoses branched off from a red hose that was
located on the fencing of the goat pen. Lathlean and Lavin
began searching for the missing hydrant cap in the immediate
vicinity of the hydrant and walked into an open canopy tent
located about ten feet from the hydrant, where they spotted
the missing hydrant cap on the floor of the plaintiff's
tractor, along with a pipe wrench. The defendants provided
photographs of the altered cap, which showed that a hole was
drilled into it with a connection welded over it. Lavin and
Lathlean's affidavits demonstrate that they suspected
that tampering with the fire hydrant had occurred,
potentially including an unsafe cross-connection to the water
system, which they believed could lead to contamination and
endanger the health and safety of Aquarion's
customers.[8] They attested that the plaintiff
confronted them and yelled at them to get off his property.
They also attested that the plaintiff threatened to get a gun
and kill them if they did not get off his property. At that
point, Lathlean decided to call the police. By submitting the
plaintiff's deposition testimony, the defendants
demonstrated that the plaintiff knew that they were Aquarion
workers and had arrived in Aquarion trucks, that there was a
hydrant on his property, and that he suspected that they were
there to inspect the hydrant even before he walked over to
them.
The
plaintiff filed an amended memorandum of law in opposition to
the defendants' motion for summary judgment on August 26,
2016, which he supported with court transcripts, deposition
transcripts, and an interrogatory response from the
defendants. On August 29, 2016, the defendants filed a reply
memorandum to the plaintiff's opposition, and the court
held a hearing on the motion.
On
January 5, 2017, the court issued a memorandum of decision.
As to the trespass claims in counts one through four, the
court concluded that the defendants were entitled to summary
judgment on two separate grounds: (1) Aquarion
‘‘has an express easement to enter upon the
property''; and (2) even in the absence of an express
easement, the defendants' entry was also
‘‘permitted by the Department of Public Utilit[y]
Control.''[9] As to the negligent infliction of
emotional distress claim in count five directed against
Doyle, the court concluded that summary judgment was
appropriate because there was no genuine issue of material
fact and that her conduct did not rise to the level necessary
to sustain such a claim because she never spoke to the
plaintiff. As to the negligent infliction of emotional
distress claims against the other defendants in counts six
through eight, the court denied the motion for summary
judgment on their statute of limitations argument because it
concluded that a trier of fact might find ‘‘that
the actionable harm was not sustained, until sometime after
July 11, 2011, when the extent of [the plaintiff's]
alleged distress became known.''
As to
the intentional infliction of emotional distress claims in
counts nine through twelve, the court concluded that the
defendants' alleged conduct ‘‘does not even
approach the threshold for extreme and outrageous
conduct.'' As to the invasion of privacy claims in
counts thirteen through sixteen, the court granted the motion
for summary judgment stating that the ‘‘claims
are utterly unsupported by the facts, even when viewed in the
light most favorable to the plaintiff.'' As to the
CUTPA claim in count seventeen against Aquarion, the court
concluded, inter alia, that the plaintiff failed to present
evidence to ‘‘establish any ascertain-able
loss.''
On
February 7, 2017, the defendants filed a motion requesting
permission to file a supplemental motion for summary judgment
because they obtained ‘‘irrefutable
evidence'' that showed that the plaintiff failed to
commence the action on the remaining negligent infliction of
emotional distress counts (six through eight) within the
applicable statute of limitations. On the same day, the court
granted the motion, and the defendants filed a supplemental
motion for summary judgment. On March 27, 2017, the defendant
filed an objection to the defendants' supplemental
motion, attaching to it an affidavit and deposition
transcripts. On April 10, 2017, the court held a hearing on
the motion and rendered summary judgment in favor of the
defendants on the remaining counts.[10] It concluded that the
‘‘actionable harm was sustained in September of
2011, and the action brought in July of 2014 [was] time
barred by the applicable statute of limitations . . .
.'' (Citation omitted.) This appeal followed.
Our
review of a trial court's decision granting a motion for
summary judgment is well established. Practice Book §
17-49 provides that the ‘‘judgment sought 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.'' ‘‘A
material fact is a fact that will make a difference in the
result of the case. . . . The facts at issue are those
alleged in the pleadings. . . .
‘‘In
seeking summary judgment, it is the movant who has the burden
of showing the nonexistence of any issue of fact. The courts
are in entire agreement that the moving party for summary
judgment has the burden of showing the absence of any genuine
issue as to all the material facts, which, under applicable
principles of substantive law, entitle him to a judgment as a
matter of law. The courts hold the movant to a strict
standard. To satisfy his burden the movant must make a
showing that it is quite clear what the truth is, and that
excludes any real doubt as to the existence of any genuine
issue of material fact. . . . As the burden of proof is on
the movant, the evidence must be viewed in the light most
favorable to the opponent. . . .
‘‘The
party opposing a motion for summary judgment must present
evidence that demonstrates the existence of some disputed
factual issue . . . . The movant has the burden of showing
the nonexistence of such issues but the evidence thus
presented, if otherwise sufficient, is not rebutted by the
bald statement that an issue of fact does exist. . . . To
oppose a motion for summary judgment successfully, the
nonmovant must recite specific facts . . . which contradict
those stated in the movant's affidavits and documents. .
. . The opposing party to a motion for summary judgment must
substantiate its adverse claim by showing that there is a
genuine issue of material fact together with the evidence
disclosing the existence of such an issue. . . . The
existence of the genuine issue of material fact must be
demonstrated by counter affidavits and concrete evidence. . .
. Our review of the trial court's decision to grant a
motion for summary judgment is plenary.'' (Internal
quotation marks omitted.) Brusby v. Metropolitan
District, 160 Conn.App. 638, 645-46, 127 A.3d 257
(2015). ‘‘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 the memorandum of decision of the trial
court.'' (Internal quotation marks omitted.)
Lucenti v. Laviero, 327 Conn. 764, 773, 176 A.3d 1
(2018).
I
The
plaintiff first claims that the court improperly granted the
defendants' motion for summary judgment on his trespass
claims, arguing that the defendants' use of the easement
was unreasonable and, thus, constituted a trespass. We need
not, however, reach the merits of the plaintiff's
trespass claims because we conclude that those claims are
moot.
‘‘Where
an appellant fails to challenge all bases for a trial
court's adverse ruling on his claim, even if this court
were to agree with the appellant on the issues that he does
raise, we still would not be able to provide [him] any relief
in light of the binding adverse finding[s] [not raised] with
respect to those claims. . . . Therefore, when an appellant
challenges a trial court's adverse ruling, but does not
challenge all independent bases for that ruling, the appeal
is moot.'' (Internal quotation marks omitted.)
MacDermid, Inc. v. Leonetti, 328 Conn. 726, 755, ...