Parnoff v. Aquarion Water Company of Connecticut

          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, ...