Opinion
No. LLI CV 07 5001789S
June 6, 2008
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
This action commenced by complaint dated February 22, 2007. It arises from a claim that on or about March 2004, the defendants or their agents or apparent agents, while engaged in tree cutting and related activities on a neighbor's property, unlawfully entered upon the plaintiffs' land and cut down, damaged, and destroyed a number of trees and damaged the land, thereby causing a diminishment in value to the plaintiffs' property. The defendants move for summary judgment on the grounds that the action is barred by the three-year statute of limitations.
In support of their motion, the defendants claim that the logging operation was not performed by Benson Logging, LLC, but by Curtis Benson and that the logging operation took place in November 2003. Because the action was commenced in February 2007, the defendants claim that the action is barred by the statute of limitations. The plaintiffs object on the grounds that the logging operation involved a continuing course of conduct that did not terminate until the Spring of 2004.
In support of their motion for summary judgment, the defendants attached excerpts from the deposition of the plaintiff Scott Warner, but no certification was attached. Additionally, the defendants attached copies of what is purported to be a record of a complaint made by the plaintiff to the Connecticut Department of Environmental Protection, Division of Forestry. The documents are not certified, and some are completely unreadable. The defendants subsequently filed a memorandum of law in further support of motion for summary judgment to which they attached an affidavit of the attorney who filed the motion. She stated that the copies submitted are "true and accurate representations of what they purport to be." The defendants also submitted an unsigned affidavit of Ralph T. Benson Sr. None of these submission conforms with the requirements of the Practice Book. Therefore, the court does not consider these submissions. Subsequently, the defendant Ralph Benson, Sr. submitted a sworn affidavit dated February 26, 2008 in which he stated that he assisted with the performance of a contract for logging services entered into by and between Curtis Benson and Diane Brochendorff. That operation took two days and was finished by November 2003. All equipment was removed at the completion of the job. Curtis Benson submitted a sworn affidavit dated February 26, 2008 stating that it was he who entered into the agreement with Diane Brochendorff to perform logging services on her property, and he was finished by November 30, 2003. He stated that neither he nor anyone at his direction returned to the property owned by Diane Brochendorff after November 30, 2003. He stated that neither he nor anyone at his direction entered, returned to or otherwise made contact with the property identified in this action as being owned by Scott Warner or his mother after November 30, 2003.
The plaintiff filed a memorandum in opposition to summary judgment to which he attached a certified copy of excerpts from his deposition testimony. His testimony did not provide evidence of logging activity in March 2004. His responses to the defendants' attorney's questions were vague and established only his belief. In the sworn affidavit attached to his supplemental memorandum in opposition to the motion for summary judgment, however, the plaintiff testified that he "recollect[s] that the loggers returned to the job site in the Spring 2004, at which time they removed any remaining logs and equipment . . ." He states that he then visited the site and noticed the mess left on his property by the loggers.
"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 . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law . . ." Lopes v. Farmer, 286 Conn. 384, 388 (2008).
The governing statute is General Statutes § 52-577 provides: No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of. "Section 52-577 is an occurrence statute, meaning that the time period within which a plaintiff must commence an action begins to run at the moment the act or omission complained of occurs . . . Moreover, our Supreme Court has stated that [i]n construing our general tort statute of limitations, General Statutes § 52-577, which allows an action to be brought within three years from the date of the act or omission complained of, we have concluded that the history of that legislative choice of language precludes any construction thereof delaying the start of the limitation period until the cause of action has accrued or the injury has occurred . . . The three year limitation period of § 52-577, therefore, begins with the date of the act or omission complained of, not the date when the plaintiff first discovers an injury." (Internal quotation marks omitted; internal quotation marks omitted.) LaBow v. Rubin, 95 Conn.App. 454, 468-69, 897 A.2d 136 (2006). "[A]lthough, [a] statute which establishes a limitations period in an action for trespass to real property [generally] commences running at the occurrence of the first actual damages . . . A continuing trespass upon real property creates separate causes of action, which are barred only by the running of the statute against the successive trespasses, and not by the running of the statute from the time of the original trespass." (Internal quotation marks omitted.) Benson v. Redding, Superior Court, judicial district of Danbury, Docket No. CV 02 0344668 (February 4, 2003, White, J.), quoting Blackburn v. Miller-Stephenson Chemical Co., Superior Court, judicial district of Danbury, Docket No. CV 93 0314089 (September 11, 1998, Leheny, J.); see also Liss v. Milford Partners, Inc., Superior Court Judicial District of Hartford, Docket No. CV 04 4025123S (Feb. 20, 2008, Berger, J.) [45 Conn. L. Rptr. 89]; Bridgeport v. Admiral Associates, LLC, Superior Court, judicial district of New Haven, Docket No. CV 98 0035277 (Feb. 7, 2001, Moran, J.) [29 Conn. L. Rptr. 444].
The plaintiff, by his affidavit, has established an issue of material fact so as to avoid summary judgment with respect to his claim based on activity on or after March 2004. Any claim for damages sustained by the plaintiff as a result of logging activity performed in November 2003 is barred by the statute of limitations. The motion for summary judgment is denied based on the plaintiff's complaint that the claim is for damages resulting from logging activity in March 2004.