Opinion
FSTCV146021406S
07-26-2016
Irena Kobylanska v. Northstar Condominium Association, Inc.
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
David R. Tobin, Judge
In her complaint dated February 27, 2014, plaintiff, Irena Kobylanska, alleges that she is the owner of Unit 504, which is part of the condominium association represented by defendant, Northstar Condominium Association, Inc. (Northstar). The plaintiff claims that, in 2008, Northstar undertook an exterior renovation of the building (the Project), in which all the units of the condominium were located with an announced budget of $1,200,000. Upon completion of the Project, the total costs amounted to $1,940,000. The plaintiff alleges that she questioned the costs incurred in the Project and did not receive satisfactory answers from the defendant. In the sole count of her complaint the plaintiff requests the court to order an accounting of all disbursements made in connection with the Project.
On January 7, 2016, the plaintiff moved to have her husband, Aleksandr Yu Tarasyuk added as a party plaintiff, alleging that he became a 50% owner of Unit 504 on December 18, 2015. The court granted that motion on January 25, 2016 and Aleksandr Yu Tarasyuk entered his appearance as a plaintiff.
On April 6, 2016, the defendant filed a motion for permission to file a motion for summary judgment in a case assigned for trial. (#124.00.) The court (Mintz, J.) overruled the plaintiff's objection to the request. (#124.01.) Although the defendant did not actually file a motion for summary judgment, the plaintiff has filed an objection to the motion and does not claim that the failure to separately file the motion was in any way prejudicial. Accordingly, the court finds it appropriate to consider the merits of the motion for summary judgment.
In its motion, the defendant claims that the sole remedy requested by the plaintiffs is barred by the Connecticut Common Interest Ownership Act and that the sole cause of action alleged, a claim for an accounting, is not recognized as a substantive claim under Connecticut common law. The sole affidavit offered in support of the motion for summary judgment is signed by the defendant's attorney and authenticates 1) the Declaration of Common Interest Community for the defendant, 2) a copy of an auditor's report dated September 26, 2011, 3) a copy of the defendant's statement entitled " Capital Projects 2008-2010, " and 4) copies of correspondence between counsel concerning discovery.
In their objection to the motion for summary judgment, the plaintiffs submitted affidavits signed by Attorneys Richard Altman and Barbara G. Hager, who previously represented the plaintiffs in their dispute with the defendant. Those affidavits demonstrate that the plaintiffs were concerned that the defendant misappropriated funds collected from unit owners for a project to fix water intrusion problems. Attorney Hager's affidavit states that at a unit owner's meeting held on April 12, 2011, board members and the treasurer promised to provide unit owners with a detailed accounting of the project, however, the promised accounting was never produced.
DISCUSSION
" 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." (Internal quotation marks omitted.) Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007). " [S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way . . . [A] summary disposition . . . should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party." (Citations omitted; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003). The burden is on the moving party to demonstrate an absence of any triable issue of material fact, and " [t]o 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 . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).
After reviewing the defendant's moving papers, it is clear that the defendant is not actually attempting to show the absence of any factual issues, but rather to contest the legal sufficiency of the plaintiffs' complaint. Practice Book § 10-39 provides in relevant part: " A motion to strike shall be used whenever any party wishes to contest . . . the legal sufficiency of the allegations of any complaint . . . or of any one or more counts thereof, to state a claim upon which relief can be granted . . ." (Emphasis added.) " The role of the trial court in ruling on a motion to strike is to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Citation omitted; internal quotation marks omitted.) Coe v. Board of Education, 301 Conn. 112, 116-17, 19 A.3d 640 (2011). Practice Book § 10-44 allows a party whose pleading has been stricken to file a new pleading, which might correct the deficiency in the prior pleading
Practice Book § 10-6 establishes the order of pleadings. A motion to strike a complaint must be filed prior to the filing of answer. In this case, the defendant filed its answer on September 2, 2015 and an amended answer on February 18, 2016, but raised the issue of the legal sufficiency for the first time in its motion for summary judgment.
It is unclear whether the defendant failed to apprehend the now identified issues in the complaint when it was first reviewed, or whether the defendant decided, as a tactical matter, to raise the deficiency for the first time in order to prevent the plaintiffs from filing a substitute pleading. The Supreme Court has considered the circumstances under which it is appropriate to employ a motion for summary judgment in situations where the issues might have been addressed by a motion to strike. In Larobina v. McDonald, 274 Conn. 394, 400-02, 876 A.2d 522 (2005), the Supreme Court discussed at length the differences between a motion to strike and a motion for summary judgment. The court also noted that the use of a motion for summary judgment instead of a motion to strike may be unfair to the nonmoving party because " [t]he granting of a defendant's motion for summary judgment puts the plaintiff out of court . . . [while the] granting of a motion to strike allows the plaintiff to replead his or her case . . . With these authorities in mind, we conclude that the use of a motion for summary judgment to challenge the legal sufficiency of a complaint is appropriate when the complaint fails to set forth a cause of action and the defendant can establish that the defect could not be cured by repleading . . . If it is clear on the face of the complaint that it is legally insufficient and that an opportunity to amend it would not help the plaintiff, we can perceive no reason why the defendant should be prohibited from claiming that he is entitled to judgment as a matter of law and from invoking the only available procedure for raising such a claim after the pleadings are closed." (Citations omitted; internal quotation marks omitted.) Larobina v. McDonald, supra, 400-02.
Accordingly, in order for the defendant to prevail in its motion for summary judgment the court must not only determine that allegations of the complaint are legally insufficient, but also that affording the plaintiffs the opportunity to replead would not help them.
THE LEGAL SUFFICIENCY OF THE PLAINTIFF'S CLAIM
The defendant claims that an action for an accounting is not recognized as an independent cause of action in Connecticut, rather is only a remedy. In AW Power Holdings, LLC. v. Firstlight Waterbury Holdings, LLC., Superior Court, judicial district of Hartford, Docket No. CV 14 6047836 S (February 17, 2015, Peck, J.) [59 Conn.L.Rptr. 889, ], the court noted that " A split of authority exists among the judges of the Superior Court on whether accounting is a remedy of a cause of action . . . Connecticut Superior Court decisions that have granted a motion to strike an accounting as a cause of action have relied on the Connecticut Supreme Court case Macomber v. Travelers Property & Casualty Corp., 261 Conn. 620 n.3, 804 A.2d 180 (2002) . . . Connecticut Superior Court decisions that have denied a motion to strike an accounting as cause of action have typically cited Mankert v. Elmatco Products, Inc., 84 Conn.App. 456, 460, 854 A.2d 766, cert. denied, 271 Conn. 925, 859 A.2d 580 (2004). [I]n Macomber, our Supreme Court stated that an accounting is a remedy [noting that] plaintiffs also requested that the trial court order an accounting of all moneys that allegedly were wrongfully obtained by the defendant in purchasing the structured settlements on the plaintiff's behalf, and impose a constructive trust over such moneys. Although the plaintiffs framed these requests as counts eleven and twelve of their complaint, these are issues to be addressed by the trial court upon remand because, rather than being substantive causes of action upon which the complaint is predicated, these counts request remedies, the appropriateness of which is left to the discretion of the trial court if the plaintiffs, or either of them, were to prevail at trial." (Internal quotation marks omitted; emphasis added.)
This court agrees with Judge Peck's holding in AW Power Holdings, LLC., supra, Docket No. CV 14 6047836 S,, and the position of the defendant and, accordingly, concludes that a cause of action for an accounting is not recognized in the state of Connecticut.
Even if the court were to find otherwise, the court would be constrained by the provisions of the Common Interest Ownership Act to find that the plaintiff would be barred by statute from seeking an accounting. General Statutes § 47-207 provides: " The principles of law and equity, including the law of corporations and unincorporated associations, the law of real property and the law relative to capacity to contract, principal and agent, eminent domain, estoppel, fraud, misrepresentation, duress, coercion, mistake, receivership, substantial performance, or other validating or invalidating cause supplement the provisions of this chapter, except to the extent inconsistent with this chapter."
General Statutes § 47-260(a) and (b) detail the obligations of " an association" such as the defendant's obligation to retain records and make them available to unit owners and their agents. Subsections (c) and (d) specify the limited circumstances under which records may be withheld from inspection and copying. Subsection (f) provides: " An association is not obligated to compile or synthesize information."
The court concludes that the gravamen of the plaintiff's complaint is to require that the defendant prepare an accounting which does not presently exist with respect to the project and that, accordingly, the sole count of the complaint fails to state a cause of action.
WILL GRANTING THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT DEPRIVE THE PLAINTIFFS OF THE RIGHT TO REPLEAD?
The affidavit of Attorney Hager attached to the plaintiff's objection to the motion for summary judgment establishes that a representative of the defendant had promised to provide the plaintiffs with a detailed accounting of the project, but did not deliver the same to her. The affidavit is unclear as to whether the detailed accounting already existed or if the promise made was that such an accounting would be prepared. If the accounting existed then, the plaintiffs would be able to replead a cause of action based on their rights as unit owners under General Statutes § 47-260(a) and (b). Conceivably, the plaintiffs might also be able to plead a cause of action for a bill of discovery See Journal Publishing Co. v. Hartford Courant Co., 261 Conn. 673, 804 A.2d 823 (2002).
In Larobina, supra, 274 Conn. 403, the court noted that " the plaintiff stated in his brief to the trial court that the defendants were using the motion for summary judgment to challenge the legal sufficiency of his complaint. He then argued that the complaint was legally sufficient. We conclude, therefore, that he waived any objection to the use of the motion for that purpose and any claim that he should be permitted to replead." In this case, just as in Larobina, the plaintiffs met the motion for summary judgment with a claim of legal sufficiency and did not claim the right to replead, should the court decide otherwise. Accordingly, this court is required to find that, the plaintiffs waived their right to replead.
The defendant's motion for summary judgment is granted.