Opinion
FBTCV186073550S
08-13-2019
Main Street Business Management, Inc. v. Manuel Moutinho et al.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh):Welch, Thomas J., J.
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT NO. 121
WELCH, J.
I
FACTS
On September 13, 2018, the plaintiff, Main Street Business Management, Inc. (Main Street), filed a five-count complaint against the defendants, Manuel Moutinho and Mark IV Construction Company (Mark IV).
The plaintiff’s complaint alleges the following facts. The defendant, Moutinho, is the former owner of certain real property (the property) known as Hart Street in Bridgeport, Connecticut. The plaintiff is the current owner of the property and alleges that during Moutinho’s ownership of the property, he individually, or through his company, Mark IV, used a substantial amount of construction and demolition waste material as fill on the property. Specifically, the plaintiff alleges that the fill material was contaminated with oil and petroleum products at levels in excess of regulatory standards. Further, the plaintiff alleges that because some of the fill was dumped in portions of the property that are within the wetlands upland review area, the fill was dumped in violation of state and local inland wetland statutes and regulations. The plaintiff’s five-count complaint alleges that the defendants were negligent, negligent per se, and committed unfair trade practices in violation of General Statutes § 42-110g, the Connecticut Unfair Trade Practices Act (CUTPA). The plaintiff’s complaint also seeks reimbursement of costs pursuant to General Statutes § 22a-452.
The plaintiff’s third count is not at issue as it has been stricken by this Court via the order dated January 28, 2018 (#114.10).
On March 3, 2019, the defendants filed a motion for summary judgment (#121), accompanied by a memorandum of law in support of the motion, on the grounds that counts one, four, and five are barred by the applicable statute of limitations, count four does not allow a private cause of action, and that the entire complaint is barred based on the doctrine of judicial estoppel. On April 8, 2019, the plaintiff filed an objection and memorandum in opposition to the motion for summary judgment (#124). The defendants filed a reply (#125) on April 15, 2019. The motion for summary judgment was argued at short calendar on May 13, 2019.
II
DISCUSSION
"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 ... The trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Cefaratti v. Aranow, 321 Conn. 637, 645, 138 A.3d 837 (2016). "The party seeking summary judgment has the burden of showing the absence of any genuine issue of material facts which ... entitle him to a judgment as a matter of law ... and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of genuine issue of material fact ... A material fact is a fact that will make a difference in the result of a case." Stuart v. Freiberg, 316 Conn. 809, 821, 116 A.3d 1195 (2015).
Further, "[s]ummary judgment may be granted where the claim[s] [are] barred by the statute of limitations ... Summary judgment is appropriate on statute of limitations grounds when the material facts concerning the statute of limitations [are] not in dispute ..." Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 312-13, 77 A.3d 726 (2013). "When the plaintiff asserts that the limitations period has been tolled by an equitable exception to the statute of limitations, the burden normally shifts to the plaintiff to establish a disputed issue of material fact in avoidance of the statute." Cerfaratti v. Aranow, supra, 321 Conn. 645-46. "Put differently, it is then incumbent upon the party opposing summary judgment to establish a factual predicate from which it can be determined, as a matter of law, that a genuine issue of material fact exists." (Internal quotation marks omitted.) Iacurci v. Sax, 313 Conn. 786, 799, 99 A.3d 1145 (2014).
A. Count One: Negligence
The defendants argue that count one, sounding in negligence, is barred by the statute of limitations under General Statutes § 52-584. The plaintiff counters that pursuant to General Statutes § 52-595, the statute of limitations is tolled because the defendants fraudulently concealed the current cause of action and because defendant Moutinho has a continued ongoing relationship with the plaintiff in a pending foreclosure action, which is a continuing course of conduct.
Section 52-584 provides in relevant part that "[n]o action to recover damages for injury to the person, or 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 ..." However, § 52-595 provides that "[i]f any person, liable to an action by another, fraudulently conceals from him the existence of the cause of such action, such cause of action shall be deemed to accrue against such person so liable therefor at the time when the person entitled to sue thereon first discovers its existence." "[T]o toll a statute of limitations by way of our fraudulent concealment statute, a plaintiff must present evidence that a defendant: (1) had actual awareness, rather than imputed knowledge, of the facts necessary to establish the plaintiff’s cause of action; (2) intentionally concealed these facts from the plaintiff; and (3) concealed the facts for the purpose of obtaining delay on the plaintiff’s part in filing a complaint on their cause of action." (Internal quotation marks omitted.) Iacurci v. Sax, supra, 313 Conn. 799-800. Further, "[i]t is not sufficient for [a] plaintiff to prove merely that it was more likely than not that a defendant [has] concealed the cause of action. Instead, the plaintiff has to prove fraudulent concealment by the more exacting standard of clear, precise, and unequivocal evidence." Bartone v. Robert L. Day Co., 232 Conn. 527, 533, 656 A.2d 221 (1995).
In the present case, the defendants assert that count one of the plaintiff’s complaint is time barred, pursuant to § 52-584, because the plaintiff first became aware of the alleged contamination in October 2014, or at the latest, in April 2015. In support of their argument, the defendants reference the plaintiff’s verified responses to the defendants’ first set of interrogatories, a letter sent by GeoQuest, Inc. to the plaintiff’s prior counsel, Alan Kosloff, dated October 15, 2014, and a letter and a draft complaint, sent by Kosloff on or about April 10, 2015, to the defendants. Therefore, the defendants argue that the plaintiff knew of any alleged contamination beyond the three-year statute of limitations pursuant to § 52-584.
The complaint drafted by Kosloff, on or about April 10, 2015, was never filed with the court.
The demand letter stated that the plaintiff recently discovered the presence of contaminated waste materials on the property and alleged that the defendants were responsible for the contamination.
In response, the plaintiff argues that although it was aware of contaminated fill on the site on or about September 2014 when GeoQuest, Inc. inspected the property, it was not aware of who dumped the fill until October 2017. Specifically, the plaintiff contends that the defendants intentionally concealed the contaminated fill by flattening it out and covering it with soil. In support of its argument, the plaintiff submitted several affidavits of neighbors to the property. In their affidavits, the neighbors attest that they were told that the defendants were dumping on the property or that they had personally witnessed Mark IV construction trucks dump debris on the property and then cover it up with soil. Based upon this evidence, the plaintiff argues that a genuine issue of material fact exists as to whether the defendants fraudulently concealed the plaintiff’s cause of action. Therefore, the plaintiff argues that the applicable statute of limitations should be tolled pursuant to § 52-595.
In the present case, the plaintiff has failed to show that the defendants committed fraudulent concealment by clear, precise, and unequivocal evidence. The evidence submitted by the plaintiff, even when read in the light most favorable to the plaintiff, only satisfies the first two requirements for fraudulent concealment. Specifically, the plaintiff’s evidence establishes that the defendants might have known about the contaminated fill on the property and that they might have intentionally concealed the contaminated fill from the plaintiff. However, the plaintiff has failed to provide any evidence to satisfy the third requirement for fraudulent concealment. Specifically, the plaintiff has failed to provide any evidence indicating that the defendants’ alleged activity was done with the purpose of obtaining a delay on the plaintiff’s part in filing a complaint for the current cause of action. Consequently, § 52-595 does not toll the statute of limitations pursuant to § 52-584.
The evidence submitted by the plaintiff establishes that the defendants owned the property from January 1986 until 2004, and that during that timeframe, at least six neighbors witnessed the defendants dumping fill and then covering it with soil. Further, the evidence also establishes that the contaminated fill had been covered with soil at some point prior to the time the plaintiff and the defendants were negotiating the sale of the property. However, defendant Moutinho denied under oath that he, or defendant Mark IV, dumped any contaminated material on the property and he continues to deny the plaintiff’s allegations.
Additionally, although the plaintiff alleges that defendant Moutinho has a continued ongoing relationship with the plaintiff in a pending foreclosure action, which is a continuing course of conduct and therefore tolls the applicable statute of limitations, the court disagrees.
The continuing course of conduct doctrine has been applied to toll the three-year repose section of the statute of limitations. Blanchette v. Barrett, 229 Conn. 256, 265, 640 A.2d 74 (1994). The doctrine focuses on negligent conduct that is "specific tortious acts or omissions which may be difficult to identify and may yet be remedied." Id., 276. However, "the 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); see also, Rivera v. Fairbank Management Properties, Inc., Superior Court, judicial district of Waterbury, Docket No. CV-96-0134876-S (August 7, 1997, J. Lager) (policy of continuing course of conduct doctrine no longer has any force once harm is discovered). Therefore, in the present case, there is no genuine issue of material fact with respect to the defendant’s alleged conduct and the plaintiff’s argument that the continuing course of conduct doctrine tolls the running of the applicable statute of limitations. The evidence submitted by the plaintiff demonstrates that it was aware of contaminated materials on the property on or about September 2014, more than three years prior to commencing this action.
Accordingly, the defendants’ motion for summary judgment is granted as to count one of the plaintiff’s complaint.
B.
Count Two: Negligence Per Se
The defendants next contend that count two of the plaintiff’s complaint, sounding in negligence per se, is barred because the plaintiff has not fulfilled the conditions precedent for this Court to hear any claim under General Statutes § 22a-37, the "Inland Wetlands and Watercourses Act." In response, the plaintiff asserts that courts have allowed negligence per se claims pursuant to General Statutes § 22a-427 through § 22a-430, the "Water Pollution Control Act."
Section 22a-37 provides that "Sections 22a-36 to 22a-45, inclusive, shall be known and may be cited as the ‘Inland Wetlands and Watercourses Act.’" General Statues § 22a-44(b) provides in relevant part that "[a]ny person who commits, takes part in, or assists in any violation of any provision of sections 22a-36 to 22a-45, inclusive, including regulations adopted by the commissioner and ordinances and regulations promulgated by municipalities or districts pursuant to the grant of authority herein contained, shall be assessed a civil penalty of not more than one thousand dollars for each offense ... The Superior Court, in an action brought by ... any person, shall have jurisdiction to restrain a continuing violation of said sections, to issue orders directing that the violation be corrected or removed and to assess civil penalties pursuant to this section."
In the present case, the defendants assert that there is no private right of action contained within § 22a-36, as such is included in the appeal provision of § 22a-43. Therefore, the defendants contend that the Court cannot grant the relief demanded by the plaintiff as the plaintiff is not appealing any decision or action to the Superior Court. The court disagrees. The statute is clear that the Superior Court has jurisdiction to assess civil penalties in actions brought by "any person" pursuant to § 22a-44(b). Additionally, the Supreme Court has held that § 22a-42a and its enforcement provision, § 22a-44(b), allow a private cause of action alleging that a defendant has failed to obtain a required permit for a regulated activity pursuant to § 22a-42a(c)(1). See, Windels v. Environmental Protection Commission, 284 Conn. 268, 295-300, 933 A.2d 256 (2007). Additionally, although the plaintiff argues that there is a private cause of action under a different set of statutes, § 22a-427 and § 22a-430, it is clear from the pleadings that the alleged actions of the defendants were committed in violation of the Inland Wetlands and Watercourses Act. Specifically, count two alleges that the defendant’s actions were committed in "violation of Connecticut General Statute § 22a-37 and Bridgeport inland wetland regulations."
Further, "[w]hen the commissioner of environmental protection, a district, or municipality has not formally asserted jurisdiction under the Inland Wetlands and Watercourses Act, it can render no appealable order, decision, or action." Therefore, in the present case, the provisions of § 22a-43 are not applicable, as "the private right of action recognized in § 22a-44(b) is not duplicative of the appeal provisions of § 22a-43." Windels v. Environmental Protection Commission, supra, 284 Conn. 300.
Accordingly, because § 22a-44(b) allows for a private cause of action and § 22a-43 is not applicable in the present case, the defendants’ motion for summary judgment as to count two of the plaintiff’s complaint is denied.
C.
Count Four: Reimbursement for Removal Costs
The defendants next assert that count four of the plaintiff’s complaint, which seeks reimbursement of costs pursuant to § 22a-452, is barred by the statute of limitations under General Statutes § 52-577c. In response, the plaintiff argues that pursuant to § 52-595, the applicable statute of limitations is tolled because the defendants fraudulently concealed the current cause of action.
Section 22a-452(a) provides in relevant part that "[a]ny person, firm, corporation or municipality which contains or removes or otherwise mitigates the effects of oil or petroleum or chemical liquids or solid, liquid or gaseous products or hazardous wastes resulting from any discharge, spillage, uncontrolled loss, seepage or filtration of such substance or material or waste shall be entitled to reimbursement from any person, firm or corporation for the reasonable costs expended for such containment, removal, or mitigation ..." Further, § 52-577c(b) provides in relevant part that "no action to recover damages for personal injury, death or property damage caused by exposure to a hazardous chemical substance or mixture or hazardous pollutant released into the environment shall be brought but within two years from the date when the injury or damage complained of is discovered or in the exercise of reasonable care should have been discovered."
In the present case, the defendants argue that the applicable statute of limitations for a claim under § 22a-452 is two years, pursuant to § 52-577c. Additionally, the defendants argue that with respect to claims arising under § 22a-452, the critical date for the statute of limitations, is the date that the contamination occurred or should have been reasonably discovered. In response, the plaintiff argues that, again, the applicable statute of limitations is tolled pursuant to § 52-595 because the defendants fraudulently concealed the current cause of action. The language of § 52-577c(b) clearly requires the action to be initiated "within two years from the date when the ... damage complained of is discovered ..." (Emphasis added.) Additionally, "our Supreme Court, suggests that, with respect to § 22a-452 actions, the critical date for the statute of limitations analysis is the date the contamination occurred." Cadlerock Properties Joint Venture, L.P. v. Schilberg, Superior Court, judicial district of Tolland, Docket No. CV-99-0069263-S (July 17, 2001, Sferrazza, J.) .
Although "Connecticut’s appellate courts have not decided the issue, several Superior Court cases have held that the applicable statute of limitations for a claim pursuant to § 22a-452 is § 52-577c." 70 Water St. Associates v. Harris & Gans Co., Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-00-0180713-S (March 7, 2005, Lewis, J.T.R) ; see also French Putnam, LLC v. County Environmental Services, Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV-98-0166445-S (September 6, 2002, Adams, J.) ; Cadlerock Properties Joint Venture, L.P. v. Schilberg, Superior Court, judicial district of Tolland, Docket No. CV-99-0069263-S (July 17, 2001, Sferrazza, J.) ; Blackburn v. Miller-Stephenson Chemical Co., Inc., Superior Court, judicial district of Danbury, Docket No. CV-93-0314089-S (September 11, 1998, Leheny, J.).
In the present case, the plaintiff has failed to meet its burden in order prove the third requirement for fraudulent concealment by clear, precise, and unequivocal evidence. Therefore, because the plaintiff had actual knowledge of the contamination in October 2014, at the earliest, or in April 2015, at the latest, the two-year statute of limitations on the § 22a-452 claim began running in either October 2014 or April 2015. Therefore, the complaint, served more than two years later, on April 10, 2018, was untimely.
See Part I above.
Accordingly, the defendants’ motions for summary judgment as to count four of the plaintiff’s complaint is granted.
D.
Count Five: CUTPA
The defendants contend that count five of the plaintiff’s complaint, which alleges a violation of CUTPA, § 42-110g, is barred by the statute of limitations under § 42-110g(f). In response, the plaintiff argues that pursuant to § 52-595, the applicable statute of limitations is tolled because the defendants fraudulently concealed the current cause of action.
Section 42-110g provides in relevant part that "[a]ny person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42-110b, may bring an action in the judicial district in which the plaintiff or defendant resides or has his principal place of business or is doing business, to recover actual damages." Additionally, § 42-110g(f) provides that "[a]n action under this section may not be brought more than three years after the occurrence of a violation of this chapter." Further, contrary to the plaintiff’s argument, the Supreme Court has held that § 52-595 does not toll the statute of limitations set forth in § 42-110g(f). See, Fichera v. Mine Hill Corporation, 207 Conn. 204, 216-17, 541 A.2d 472 (1998).
Therefore, in the present case, because § 52-595 does not apply to the statute of limitations set forth in § 42-110g(f), the alleged violation of CUTPA took place during the defendants’ ownership of the property, which lasted from 1986 until 2009, the three year statute of limitations on the plaintiff’s CUTPA claim began running sometime during that same period. Consequently, count five of the plaintiff’s complaint is barred by the statute of limitations pursuant to § 42-110g(f).
Accordingly, the defendants’ motion for summary judgment as to count five of the plaintiff’s complaint is granted.
E.
Judicial Estoppel
The defendants further contend that the plaintiff should be barred from asserting all of its claims based on the doctrine of judicial estoppel. Specifically, the defendant argues that the plaintiff failed to list, include, or mention the existence of the alleged claims in the present action, against the defendant in a prior bankruptcy action. In response, the plaintiff argues that the Second Circuit has not adopted judicial estoppel. Additionally, the plaintiff argues that the doctrine of judicial estoppel is meritless in the present action because the plaintiff did not know the identity of the persons responsible for the contamination until four months after the bankruptcy proceeding was dismissed.
"Judicial estoppel prevents a party in a legal proceeding from taking a position contrary to a position the party has taken in an earlier proceeding ... The courts invoke judicial estoppel as a means to preserve the sanctity of the oath or to protect judicial integrity by avoiding the risk of inconsistent results in two proceedings." MacDermid, Inc. v. Cookson Group, PLC, 149 Conn.App. 571, 578, 89 A.3d 447, 452 (2014). "Typically, judicial estoppel will apply if: 1) a party’s later position is clearly inconsistent with its earlier position; 2) the party’s former position has been adopted in some way by the court in the earlier proceeding; and 3) the party asserting the two positions would derive an unfair advantage against the party seeking estoppel ... We further limit judicial estoppel to situations where the risk of inconsistent results with its impact on judicial integrity is certain ... Thus, courts generally will not apply the doctrine if the first statement or omission was the result of a good faith mistake ... or an unintentional error." Id. Additionally, "[b]ecause [judicial estoppel] is intended to prevent improper use of judicial machinery ... judicial estoppel is an equitable doctrine invoked by a court at its discretion ..." Id. Further, "[a] party who fails to schedule a cause of action as an asset in a bankruptcy proceeding may create an inconsistency subject to the doctrine of judicial estoppel that would preclude it from bringing that cause of action subsequent to the bankruptcy." Assn. Resources, Inc. v. Wall, 298 Conn. 145, 169-70, 2 A.3d 873 (2010).
In the present case, the defendants have failed to present any evidence which proves that the plaintiff’s omission in the bankruptcy proceeding was not the result of a good faith mistake or an unintentional error. More importantly, given the dismissal of the plaintiff’s bankruptcy action, there is neither a risk of inconsistent results between the state and federal courts, nor any indication that either the bankruptcy court or the defendants, were prejudiced by the plaintiff’s nondisclosure. Accordingly, summary judgment as to the defendants’ judicial estoppel argument is denied.
III
CONCLUSION
For the foregoing reasons, the defendants’ motion for summary judgment is granted as to counts one, four, and five. Additionally, for the foregoing reasons, the court denies the defendants’ motion for summary judgment as to count two and the defendant’s argument regarding the doctrine of judicial estoppel.