Opinion
No. HHD X04 CV-06-6002110 S
May 25, 2010
MEMORANDUM OF DECISION
This matter is before the court concerning the defendant's motion for summary judgment (#147) as to the second and third counts of the plaintiff's amended complaint, dated March 13, 2007 (#112). The court heard oral argument concerning the motion on March 25, 2010. For the reasons stated below, the motion is granted.
I BACKGROUND
This action was commenced by the plaintiff, Wiretek, Inc., by serving its two-count complaint dated June 30, 2006. According to the return, the writ, summons and complaint were placed in the hands of a marshal on July 1, 2006 and served on July 7, 2006.
The plaintiff alleges that it was a commercial tenant at a building located in Vernon, Connecticut, and that the defendant, J.M. Taraerin Enterprises, LLC, was the property manager of the building. The complaint set forth allegations of negligence concerning two water leaks, which allegedly occurred on January 23, 2004 (second count) and July 2, 2004 (first count), and which allegedly caused damages to the plaintiff's business. On March 13, 2007, the plaintiff filed its amended complaint, which added a third count, alleging negligence as to a third water leak, which is alleged to have occurred on February 5, 2005, and which also is alleged to have caused damages to the plaintiff's business.
In October 2009, the defendant served the plaintiff with requests for admissions concerning the dates of the alleged damages sustained by the plaintiff (#146), to which the plaintiff did not respond. Months after the motion for summary judgment was filed on December 9, 2009, and a few days before the oral argument was heard thereon, the plaintiff filed a motion for permission to file untimely responses to the requests for admission (#151) on March 16, 2010 (motion for permission). The defendant timely objected thereto (#152). Since no request for adjudication was filed as to the plaintiff's motion for permission, it was not considered by the court.
After initially moving for a thirty-day extension to respond to the motion for summary judgment (#148), until February 8, 2010, the plaintiff belatedly filed an objection to the motion for summary judgment on the date before oral argument. The purported affidavit of Parminder S. Sandhu, presented therewith, was unsigned and unsworn. Although, at oral argument, plaintiff's counsel stated that he had filed the unsigned affidavit in error, and that a proper affidavit would be filed to correct this, no signed and sworn to affidavit was filed.
II 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." (Internal quotation marks omitted.) Southwick At Milford Condominium Association, Inc. v. 523 Wheelers Farm Road, Milford, LLC, 294 Conn. 311, 318, 984 A.2d 676 (2009). "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 . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008).
"[I]ssue-finding, rather than issue-determination, is the key to the procedure . . . [T]he trial court does not sit as the trier of fact when ruling on a motion for summary judgment . . . [Its] function is not to decide issues of material fact, but rather to determine whether any such issues exist." (Internal quotation marks omitted.) Precision Mechanical Services, Inc. v. T.J. Pfund Associates, Inc., 109 Conn.App. 560, 564, 952 A.2d 818, cert. denied, 289 Conn. 940, 959 A.2d 1007 (2008).
"Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment. See Practice Book [§ 17-46]." Home Insurance Co. v. Aetna Life Casualty Co., 235 Conn. 185, 202-03, 663 A.2d 1001 (1995). However, the Supreme Court has stated that parties may "knowingly waive . . . compliance with the procedural provisions of the Practice Book relating to motions for summary judgment." (Footnote omitted.) Krevis v. Bridgeport, 262 Conn. 813, 824, 817 A.2d 628 (2003). Also, the Supreme Court has stated, "[w]e previously have afforded trial courts discretion to overlook violations of the rules of practice and to review claims brought in violation of those rules as long as the opposing party has not raised a timely objection to the procedural deficiency." Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 273, 819 A.2d 773 (2003).
Here, at oral argument, the defendant objected to the plaintiff's evidentiary submission. As noted above, the plaintiff filed an unsigned affidavit. Although the plaintiff represented that this defect would be promptly corrected, it was not.
Practice Book § 17-45 provides that parties seeking or opposing summary judgment may support their positions by filing affidavits. The section does not define the term "affidavit." It is a general principle of statutory construction that words "shall be construed according to the commonly approved usage of the language . . ." General Statutes § 1-1(a). "The term `affidavit' is . . . defined as any voluntary ex parte statement reduced to writing, and sworn to or affirmed before some person legally authorized to administer an oath or affirmation." (Internal quotation marks omitted.) State v. Colon, 230 Conn. 24, 33, 644 A.2d 877 (1994). In the absence of a jurat, the court in State v. Colon noted that "the fact that the affidavit was properly sworn to may be proven by other evidence." (Footnote omitted; internal quotation marks omitted.) Id., 230 Conn. at 34-35.
In this case, no such evidence was presented to the court. Such an unsigned, unsworn affidavit "is of no evidentiary value." Viola v. O'Dell, 108 Conn.App. 760, 768, 950 A.2d 539 (2008). As a result, since the unsworn statement of Sandhu is not an affidavit, the court may not consider it.
III DISCUSSION
The defendant contends that the second and third counts, which concern the alleged leaks of January 23, 2004 and February 5, 2005, are time-barred by the two-year statute of limitations on negligence claims, General Statutes § 52-584. As noted, the action was commenced in July 2006, more than two years after January 23, 2004, the date of the leak complained of in the second count of the original complaint. The February 5, 2005 leak was not part of the allegations until more than two years later, when the amended complaint was filed in March 2007.
Section 52-584 provides, in relevant part, "No action to recover damages for injury . . . to real or personal property, caused by negligence . . . shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of . . ."
In response, the plaintiff argues that the statute of limitations is tolled by the continuing course of conduct doctrine, and that the amended complaint relates back to the original complaint and therefore falls within § 52-584.
"Summary judgment may be granted where the claim is barred by the statute of limitations." Doty v. Mucci, 238 Conn. 800, 806, 679 A.2d 945 (1996). Where the "material facts concerning the limitations period [are] not in dispute . . ." Burns v. Hartford Hospital, 192 Conn. 451, 452, 472 A.2d 1257 (1984), summary judgment is appropriate.
"Each matter of which an admission is requested is admitted unless, within thirty days after the filing of the notice required by Section 13-22(b), or within such shorter or longer time as the judicial authority may allow, the party to whom the request is directed files and serves upon the party requesting the admission a written answer or objection addressed to the matter . . ." Practice Book § 13-23(a). "A party's response to a request for admissions is binding as a judicial admission unless the judicial authority permits withdrawal or amendment." East Haven Builders Supply, Inc. v. Fanton, 80 Conn.App. 734, 744, 837 A.2d 866 (2004).
The defendant's requests for admissions are deemed admitted by operation of Practice Book § 13-23(a). In summary, they include that: the second count of the original complaint is one of negligence and alleges a water leak that occurred only on January 23, 2004; the amended complaint of March 13, 2007 alleges a new third count, which is one of negligence, and alleges a water leak that occurred only on February 5, 2005; and that the water leaks alleged in the second and third counts originated from different sources and are therefore not related. The defendant contends that (1) the time span between the alleged damage in the second count and the original complaint is greater than two years; and (2) the time span between the alleged damage in the third count and the filing of the amended complaint is greater than two years.
"Judicial admissions are voluntary and knowing concessions of fact by a party or a party's attorney occurring during judicial proceedings." Jones v. Forst, 41 Conn.App. 341, 346, 675 A.2d 922 (1996). In its response, the plaintiff, in its objection, page 5, concedes that the alleged losses occurred on or about January 23, 2004, July 2, 2004 (which is the subject of the first count), and February 5, 2005 (which is the subject of the third count). In its objection, page 13, the plaintiff also concedes that the first two alleged flood damages were "discovered on January 23, 2004 and July 2, 2004," and states that it experienced substantial flood damage "on or about February 5, 2005 . . ." At page 12, the plaintiff concedes that the alleged infiltration of water on February 5, 2005 was discovered on that date. Discovery of each of these incidents on these dates is acknowledged again at page 15 of the plaintiff's objection.
A Continuing Course of Conduct
The plaintiff's reliance on the continuing course of conduct doctrine is misplaced. "In its modern formulation, we have held that in order [t]o support a finding of a continuing course of conduct that may toll the statute of limitations there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto. That duty must not have terminated prior to commencement of the period allowed for bringing an action for such a wrong . . . Where we have upheld a finding that a duty continued to exist after the cessation of the act or omission relied upon, there has been evidence of either a special relationship between the parties giving rise to such a continuing duty or some later wrongful conduct of a defendant related to the prior act . . . The continuing course of conduct doctrine reflects the policy that, during an ongoing relationship, lawsuits are premature because specific tortious acts or omissions may be difficult to identify and may yet be remedied." (Internal quotation marks omitted.) Bednarz v. Eye Physicians Of Central Connecticut, P.C., 287 Conn. 158, 170, 947 A.2d 291 (2008).
In its answer to the original complaint (#104), the defendant pleaded special defenses, in which it raised the statute of limitations. In its reply to the defendant's special defenses, filed on March 13, 2007 (#110) (reply), while admitting that the first and second counts pertained to water damages that are alleged to have occurred, respectively, on July 2, 2004 and January 23, 2004, the plaintiff denied the other allegations in the special defenses. Practice Book § 10-57 provides, "[m]atter in avoidance of affirmative allegations in an answer or counterclaim shall be specially pleaded in the reply." "The issue must be one which the party opposing the motion is entitled to litigate under his pleadings . . ." (Internal quotation marks omitted.) Collum v. Chapin, 40 Conn.App. 449, 453, 671 A.2d 1329 (1996).
By failing to plead facts in its reply supporting its contentions concerning the continuing course of conduct doctrine, the plaintiff has not properly raised the issue before the court. See Grimes v. Stutman, Superior Court, judicial district of Middlesex at Middletown, Docket No. CV 04 4000108 (December 22, 2005, McWeeny, J.) ( 40 Conn. L. Rptr. 457); Franco v. Mediplex Construction, Inc., Superior Court, judicial district of New Haven at New Haven, Docket No. CV 96 390458 (August 25, 2000, Owens, J.) (factual allegations not sufficient to support claim of continuing course of conduct; claim was not properly before the court).
Even if the plaintiff properly had pleaded that the continuing course of conduct doctrine tolled the limitations periods, it has not substantiated these contentions. To toll the running of the limitations period, the plaintiff must meet a three-part test. "[U]nder the continuous course of conduct doctrine, we must determine whether there is a genuine issue of material fact with respect to whether the defendant (1) committed an initial wrong upon the plaintiff; (2) owed a continuing duty to the plaintiff that was related to the alleged original wrong; and (3) continually breached that duty." (Internal quotation marks omitted.) Martinelli v. Fusi, 290 Conn. 347, 357, 963 A.2d 640 (2009). Where, as here, the first prong is not at issue on the motion, resolution turns on the second and third elements of the test. See id.
As noted above, a plaintiff may not rely only on allegations to withstand a motion for summary judgment. Rather, as the opposing party, it was required to present evidence that demonstrates the existence of some disputed factual issue. See Ramirez v. Health Net of the Northeast, Inc., supra, 285 Conn. 11. As discussed above, the plaintiff's defective "affidavit" may not be considered. There is no evidence before the court of any continuing duty owed by the defendant to the plaintiff, let alone one which would come within the parameters of the continuing course of conduct doctrine.
Also, the continuing course of conduct doctrine is inapplicable here since, as discussed above, the plaintiff acknowledged that it discovered the alleged damages from the flooding on the dates of occurrence. "[T]he continuing course of conduct doctrine has no application after the plaintiff has discovered the harm." Rosato v. Mascardo, 82 Conn.App. 396, 405, 844 A.2d 893 (2004). "Upon discovery of actionable harm, the policy behind the continuing course of conduct doctrine, to preserve the ongoing relationship with the hope that any potential harm from a negligent act or omission may yet be remedied, no longer has any force." Rivera v. Fairbank Management Properties, Inc., 45 Conn.Sup. 154, 160, 703 A.2d 808 (1997) [ 20 Conn. L. Rptr. 338].
The plaintiff also argues that the second count and the third count are timely under the three-year repose provision of § 52-584. The alleged claim of negligence in the second count is based on an alleged incident which was discovered on January 23, 2004, more than two years before the service of the original complaint in July 2006; the third count is premised on an alleged incident which was discovered on February 5, 2005, more than two years before the service of the amended complaint in March 2007, when this count was first alleged. "Section 52-584 requires such actions to be brought within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered . . . The statute also establishes a repose period under which no such action may be brought more than three years from the date of the act or omission complained of." (Internal quotation marks omitted.) Martinelli v. Fusi, supra, 290 Conn. 355.
Where, as here, more than two years elapsed from the date when the injury is first sustained or discovered before suit was commenced, § 52-584 bars the claims in the second and third counts. See Pinette v. McLaughlin, 96 Conn.App. 769, 770, 775, 901 A.2d 1269, cert. denied, 280 Conn. 929, 906 A.2d 958 (2006) (statute of limitations ran on negligence action commenced on January 16, 2003, which was more than two years from the date when plaintiff sustained injuries on January 24, 2000, but within three years thereafter). The three-year period of repose is plainly inapplicable to these claims.
B Relation Back
The plaintiff asserts that the amended complaint of March 13, 2007, which adds allegations concerning an alleged incident which occurred on February 5, 2005 in the third count, is timely under the relation back doctrine. "Pursuant to the relation back doctrine, a party properly may amplify or expand what has already been alleged in support of a cause of action, provided the identity of the cause of action remains substantially the same . . . Conversely, [i]f a new cause of action is alleged in an amended complaint . . . it will [speak] as of the date when it was filed . . . and, therefore, be time barred. For purposes of the relation back doctrine, [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 . . . A change in, or an addition to, a ground of negligence or an act of negligence arising out of the single group of facts which was originally claimed to have brought about the unlawful injury to the plaintiff does not change the cause of action . . . Our relation back doctrine provides that an amendment relates back when the original complaint has given the party fair notice that a claim is being asserted stemming from a particular transaction or occurrence, thereby serving the objectives of our statute of limitations, namely, to protect parties from having to defend against stale claims . . ." (Citations omitted; internal quotation marks omitted.) New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 433, 483 n. 38, 970 A.2d 592 (2009).
The court must "compare . . . the pleadings to determine whether the new allegations relate back . . ." Dimmock v. Lawrence Memorial Hospital, Inc., 286 Conn. 789, 799, 945 A.2d 955 (2008).
The circumstances here differ markedly from those in Lugauskas v. Reis, Superior Court, judicial district of Waterbury at Waterbury, Docket No. 00 0161575 (November 29, 2001, Rogers, J.) (31 Conn. L. Rptr.), cited by the plaintiff, where the court found that an allegation of intoxication related back. There, the focus of the amended complaint was the same as that of the original complaint, the defendant's alleged negligent driving in a single traffic incident, which resulted in the plaintiff being struck by the defendant's vehicle. See id.
Here, the third count stems from new alleged facts concerning a different incident, in February 2005, which allegedly occurred months after the January 2004 and July 2004 incidents which are the subjects of the original complaint. It does not arise out of the single group of facts which were originally claimed to have brought about injury to the plaintiff. Rather, it amounts to a new cause of action. Accordingly, as a matter of law, the third count does not relate back to the original complaint. As stated above, this negligence claim is time-barred by § 52-584.
CONCLUSION
Based on the foregoing reasons, the defendant's motion for summary judgment as to the second and third counts is granted. Judgment may enter for the defendant as to the second and third counts of the plaintiff's amended complaint.
It is so ordered.
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