Vaccaro v. Shell Beach Condominium, Inc. , 169 Conn. App. 21 ( 2016 )

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ENRICO VACCARO v. SHELL BEACH
CONDOMINIUM, INC., ET AL.
(AC 37811)
Sheldon, Prescott and Bear, Js.
Argued May 17—officially released October 18, 2016
(Appeal from Superior Court, judicial district of New
Haven, Wilson, J.)
Enrico Vaccaro, self-represented, with whom, on the
brief, was Emily A. Gianquinto, for the appellant
(plaintiff).
Sharon Baldwin, for the appellee (named defendant).
Daniel J. Krisch, with whom was Joshua M. Auxier,
for the appellees (defendant Andrew Hames et al.).
Opinion
BEAR, J. The plaintiff, Enrico Vaccaro, appeals from
the summary judgment rendered by the trial court in
favor of the defendants, Shell Beach Condominium,
Inc. (association), and certain individual members of
its board of directors, Andrew Hames, Frank Meolli,
Michael Gagliardi, Michelle Augliera, and Raymond Ver-
mette (individually named defendants), on the basis
that all of the plaintiff’s claims arising from the depriva-
tion of the use of a particular garage were time barred.
The plaintiff argues that the court erred in rendering
summary judgment in favor of the defendants, because,
inter alia: (1) the trial court applied the wrong statute
of limitations to count one of his complaint, which
sought to enforce the condominium instruments; and
(2) genuine issues of material fact exist as to whether
the applicable statutes of limitations were tolled by
virtue of the continuing course of conduct doctrine. We
affirm the judgment of the court.1
Evidence concerning the following facts and proce-
dural history appears in the record. Shell Beach Condo-
minium (condominium) is a condominium complex
located in East Haven and organized pursuant to the
Condominium Act of 1976 (Condominium Act), General
Statutes § 47-68a et seq. It is comprised of forty-seven
residential units and fifty-two garages,2 and includes a
number of open-air parking spaces. The association is
a nonstock corporation, owned by the unit owners of
the condominium; membership in the association
occurs immediately upon acquisition of title in a unit.
The affairs of the condominium are conducted by a
board of directors (board), all of whom are unit owners.
See General Statutes § 47-80 (c) (1) (bylaws required
to contain, inter alia, ‘‘[t]he election from among the
unit owners of a board of directors’’). Each of the indi-
vidually named defendants was a member of the board
when the plaintiff commenced this action.
In 1999, the plaintiff became a unit owner in the
condominium when he purchased his individual unit
from Salvatore Amendola, who was assisted in the sale
by his daughter, Rosalie Porrello. The warranty deed,
dated May 26, 1999, and recorded May 27, 1999, pur-
ported to convey unit 14 and garage 49.3 During this
transaction, the plaintiff was informed that garage 49
was the garage that would be conveyed with unit 14.
Neither Amendola nor Porrello, however, discussed
with the plaintiff any use of or ownership in garage 14.4
Further, although Amendola was a member of the board
at the time of the transaction, he was selling a unit that
he personally owned.5 Apart from his conversations
with Amendola, the plaintiff did not speak with any
member on the board at the time of the conveyance,
nor did he speak with any of the individually named
defendants, at or before the time of the closing.6
The plaintiff did not receive the condominium decla-
ration prior to or during the closing; instead, the associa-
tion mailed it to him at some point thereafter. Although
the plaintiff received a copy of the declaration in 1999,
he admittedly did not review that document until 2009.
In January, 2009, the plaintiff received a tax assess-
ment that he believed to be substantially higher than
prior assessments. He contacted the assessor, and was
informed that he was being assessed for both garage
14 and garage 49. After this conversation, the plaintiff
examined the condominium instruments7 and came to
believe that he was entitled to the exclusive use of
garage 14, not garage 49.8 The plaintiff contacted the
board and demanded that it, on behalf of the associa-
tion, take action to provide him with use of garage
14 pursuant to the applicable statutory authority and
provisions of the condominium instruments. After the
board denied the plaintiff’s request, the plaintiff com-
menced this action by summons and a seven count
complaint9 on each of the defendants in July, 2009, in
which he alleged, inter alia, that the defendants had
deprived him of the use of garage 14 in violation of the
condominium instruments and the Condominium Act.
The defendants filed a motion for summary judgment
on January 23, 2012, in which they claimed, inter alia,
that the statutes of limitations had run on all seven
counts of the plaintiff’s complaint.10 After the court
allowed additional time for the parties to conduct dis-
covery, and the parties had filed additional briefs, the
court heard argument on October 20, 2014. In a memo-
randum of decision dated February 9, 2015, the court
granted the defendants’ motion for summary judgment
as to all counts, making several determinations relevant
to this appeal. First, it determined that, pursuant to the
declaration, garages are limited common elements of
the condominium,11 rather than units12 as the defendants
had contended. Second, it also determined that the dec-
laration did not require that particular garages or park-
ing areas be assigned to any particular units, and the
defendants therefore had no ongoing duty to ensure
that the plaintiff, as title owner of unit 14, be assigned
garage 14. Having already concluded that there was no
genuine issue of material fact concerning whether the
applicable statute of limitations as to each count had
run, the court accordingly rendered judgment for the
defendants on all counts.13 The plaintiff filed a motion
for reargument and/or reconsideration, which the court
denied. This appeal followed.14
I
The plaintiff argues that the court erred in rendering
summary judgment on the first count of his complaint,
in which he claimed that the defendants, by their con-
duct, had violated General Statutes § 47-75 (a),15
because it improperly relied upon the wrong limitations
period in ruling on the timeliness of that claim. In this
respect, the plaintiff makes two separate and distinct
claims. First, he argues that the court erred in determin-
ing that any statute of limitations applies to count one
because a claim under § 47-75 is equitable in nature.
Second, he argues that, even if the court properly deter-
mined that the claim pleaded in his first count is subject
to a statute of limitations, the court erred in determining
that the applicable limitations period is the three year
limitations period for tort actions.
The determination of which statute of limitations
applies to a given action is a question of law over which
our review is plenary. See Fleet National Bank v. Lahm,
86 Conn. App. 403, 405, 861 A.2d 545 (2004), cert. denied,
273 Conn. 904, 868 A.2d 744 (2005). We address each
of the plaintiff’s claims in turn.
A
With respect to his first claim, the plaintiff argues
that the court improperly determined that count one is
subject to any statute of limitations because an action
pursuant to § 47-75 is equitable, and equitable proceed-
ings are not subject to statutes of limitations.16 We
disagree.
The following facts are relevant to the resolution of
this claim. In the first count of the complaint, the plain-
tiff alleges that the defendants, pursuant to both § 47-
75 and article 15 of the declaration,17 are required to
comply with and enforce the condominium instruments
and the Condominium Act. Pursuant to the declaration,
the plaintiff alleges that garages are limited common
elements, and that he, as the title owner of unit 14, is
entitled to an exclusive easement in garage 14. He fur-
ther alleges that the declaration forbids any attempt to
convey or mortgage the title to a unit without conveying
all appurtenant interests or any attempt to sell or trans-
fer an appurtenant interest except as part of the unit
to which it is attached, and that the defendants, ‘‘in
violation of the condominium instruments and the Con-
dominium Act,’’ have ‘‘wilfully allowed and/or permitted
and/or caused’’ the interest in garage 14 to be severed
from unit 14 and unit 14 to be sold to the plaintiff
without the exclusive use of garage 14, and have ‘‘wil-
fully allowed and/or caused and/or permitted and/or
continue to permit’’ another unit owner to use garage
14. (Internal quotation marks omitted.) Further, the
plaintiff alleges that the defendants have failed to cor-
rect this situation, despite demands by the plaintiff that
they ‘‘comply with and enforce the condominium instru-
ments, the Condominium Act . . . and the easement
in favor of the plaintiff for the exclusive use of’’ the
garage. (Internal quotation marks omitted.) As a result
of the defendants’ actions, the plaintiff alleges a number
of injuries, including that he has been denied the use
of garage 14 and has suffered financial harm because,
inter alia, he has been assessed for and has paid taxes
on that garage, paid for electricity for that garage, and
the fair market value of his property has been substan-
tially reduced. Counts two through seven of his com-
plaint rely on most of the same operative facts as count
one. In his prayer for relief, he seeks, inter alia, various
forms of injunctive relief pursuant to § 47-75 and com-
pensatory damages, but does not attempt to allocate
any particular relief to any particular count.
Our case law draws a distinction where statutes of
limitations are concerned between purely equitable pro-
ceedings and actions where a party can seek both legal
and equitable relief. ‘‘[I]n an equitable proceeding, a
court may provide a remedy even though the governing
statute of limitations has expired, just as it has discre-
tion to dismiss for laches an action initiated within the
period of the statute. . . . Although courts in equitable
proceedings often look by analogy to the statute of
limitations to determine whether, in the interests of
justice, a particular action should be heard, they are by
no means obliged to adhere to those time limitations.’’
(Citations omitted.) Dunham v. Dunham, 204 Conn.
303, 326–27, 528 A.2d 1123 (1987), overruled in part on
other grounds by Santopietro v. New Haven, 239 Conn.
207, 213 n.8, 221, 682 A.2d 106 (1996).
The situation is different, however, where a party
asserts a cause of action, pursuant to which it rightfully
could seek both legal and equitable relief. ‘‘[W]here a
party seeks equitable relief pursuant to a cause of action
that would also allow that party to seek legal relief,
concurrent legal and equitable jurisdiction exists, and
the statute of limitations that would be applicable to
bar the legal claim also applies to bar the equitable
claim.’’ (Internal quotation marks omitted.) Gager v.
Sanger, 95 Conn. App. 632, 641–42, 897 A.2d 704, cert.
denied, 280 Conn. 905, 907 A.2d 90 (2006). For instance,
in Dowling v. Finley Associates, Inc., 49 Conn. App.
330, 334–35, 714 A.2d 694 (1998), rev’d on other grounds,
248 Conn. 364, 727 A.2d 1245 (1999), this court held
that the plaintiff’s claims for equitable relief pursuant
to a provision of the Connecticut Uniform Securities
Act, General Statutes § 36b-29 (a), were barred by the
time limitation set forth in that statute.
A party asserting a claim pursuant to the Condomin-
ium Act can seek either legal or equitable relief; see
General Statutes § 47-75 (a); and a fair reading of count
one of the plaintiff’s complaint and the prayer for relief
therein suggests that the plaintiff sought both. Further,
the plaintiff has pleaded the same essential facts in
each of the counts on which he bases his claims for
legal and equitable relief. See Certain Underwriters at
Lloyd’s, London v. Cooperman, 289 Conn. 383, 411, 957
A.2d 836 (2008) (affirming trial court’s determination
that, where legal claims for statutory theft and conver-
sion were time barred, ‘‘the plaintiffs’ equitable claims
based on the same facts also [were] time barred’’
[emphasis added]). Under these circumstances, the
court has concurrent equitable and legal jurisdiction,
and the running of the applicable limitation period
would bar both the plaintiff’s legal and equitable claims
brought pursuant to § 47-75.18
B
The plaintiff next argues that, even if the court prop-
erly determined that count one alleging a violation of
§ 47-75 is subject to a statute of limitations, it improp-
erly determined that count one was subject to the three
year limitations period set forth in General Statutes
§ 52-577,19 which governs torts generally. Noting ‘‘the
unique nature of condominiums,’’ he asserts that the
Condominium Act is concerned with property rights
and that the declaration provides that both the relevant
statutory provisions and the condominium instruments
are covenants that run with the land.20 Arguing that
the appropriate limitations period therefore must be
grounded in property law and asserting that his claims
are similar to adverse possession claims, the plaintiff
contends that the only potentially applicable limitations
period is the fifteen year period prescribed for such an
action by General Statutes § 52-575 (a).21
The individually named defendants and the associa-
tion disagree with the plaintiff and with each other as
to which statute of limitations applies to claims brought
pursuant to § 47-75. The individually named defendants
assert that, because the plaintiff repeatedly contends
that the defendants violated the Condominium Act,
count one asserts a claim for a statutory violation and,
thus, is subject to § 52-577. In contrast, the association
claims that the plaintiff’s first cause of action asserts
a violation of the defendants’ duties pursuant to the
declaration and, therefore, is governed by General Stat-
utes § 52-576 (a),22 or, if interpreted as asserting a viola-
tion of the Condominium Act, by § 52-577. We conclude
that either § 52-576 or § 52-577 would apply to bar this
cause of action.
‘‘[W]hen a statute includes no express statute of limi-
tations, we should not simply assume that there is no
limitation period. Instead, we borrow the most suitable
statute of limitations on the basis of the nature of the
cause of action or of the right sued upon.’’ Bellemare
v. Wachovia Mortgage Corp., 284 Conn. 193, 199, 931
A.2d 916 (2007); see also 51 Am. Jur. 2d 533, Limitation
of Actions § 129 (2000) (‘‘The nature of the cause of
action or of the right sued upon is the test by which
to determine which statute of limitations applies and
whether the action is barred by the running of the limita-
tion period. Thus, for an action under a state statute
that lack[s] an express limitations period, the courts
look to analogous causes of action for which express
limitations periods are available, either by statute or
by case law.’’ [Footnote omitted.]).
A number of cases have addressed whether an action
sounds in contract or in tort. See, e.g., Meyers v. Living-
ston, Adler, Pulda, Meiklejohn & Kelly, P.C., 311 Conn.
282, 290–93, 87 A.3d 534 (2014); Bellemare v. Wachovia
Mortgage Corp., supra, 284 Conn. 200–204; Gazo v.
Stamford, 255 Conn. 245, 262–67, 765 A.2d 505 (2001).
‘‘[T]he fundamental difference between tort and con-
tract lies in the nature of the interests protected. . . .
The duties of conduct which give rise to [a tort action]
are imposed by the law, and are based primarily upon
social policy, and not necessarily upon the will or inten-
tion of the parties. . . . Furthermore, other courts
have held that, when a plaintiff seeks to recover dam-
ages for the breach of a statutory duty, such an action
sounds in tort.’’ (Citation omitted; internal quotation
marks omitted.) Bellemare v. Wachovia Mortgage
Corp., supra, 200. ‘‘On the other hand, [c]ontract actions
are created to protect the interest in having promises
performed. Contract obligations are imposed because
of [the] conduct of the parties manifesting consent, and
are owed only to the specific individuals named in the
contract. . . . In short, [a]n action in contract is for
the breach of a duty arising out of a contract; an action
in tort is for a breach of duty imposed by law.’’ (Citation
omitted; internal quotation marks omitted.) Id.
In this case, we are not required to resolve whether
count one sounds in contract or in tort. The court in
its memorandum of decision determined that the appli-
cable statute of limitations for each count of the plain-
tiff’s complaint began to run in May, 1999, when the
plaintiff purchased unit 14 in a deed dated May 26, 1999,
and recorded on May 27, 1999. The plaintiff has not
argued on appeal that the court erred in relying on this
date. Thus, as it also is uncontested that this action
was commenced in July, 2009, count one would be
outside the limitations period provided under either
§§ 52-576 or 52-577 and, in the absence of an equitable
basis for tolling the limitations period, would be barred.
In this light, we now consider the plaintiff’s argu-
ments that the most applicable limitations period is not
one governing claims sounding in tort or in contract,
but rather the time period provided in § 52-575, which
defines a claimant’s right to title based on adverse pos-
session. ‘‘[T]o establish title by adverse possession, the
claimant must oust an owner of possession and keep
such owner out without interruption for fifteen years
by an open, visible and exclusive possession under a
claim of right with the intent to use the property as his
own and without the consent of the owner. . . . A find-
ing of adverse possession is to be made out by clear
and positive proof. . . . The burden of proof is on the
party claiming adverse possession.’’ (Internal quotation
marks omitted.) Caminis v. Troy, 300 Conn. 297, 311,
12 A.3d 984 (2011). The courts of this state frequently
have referred to the fifteen year period provided in § 52-
575 (a) as a statute of limitations. See, e.g., id.; Pollansky
v. Pollansky, 162 Conn. App. 635, 654, 133 A.3d 167
(2016); Eberhart v. Meadow Haven, Inc., 111 Conn.
App. 636, 645–46, 960 A.2d 1083 (2008). A determination
that an adverse possessor meets the requirements of
§ 52-575 (a) prevents the original title owner from recov-
ering on equitable claims based on title to the property.
See Caminis v. Troy, supra, 299–300 (affirming trial
court judgment against plaintiff seeking declaratory and
injunctive relief on alternative ground that claims were
‘‘barred because they were brought outside the fifteen
year limitations period’’).
A proper framing of the plaintiff’s theory of recovery
and of the relationships among the parties reveals com-
pelling reasons to reject the plaintiff’s proposal to use
the limitations period set forth in our adverse posses-
sion statute. In the plaintiff’s analogy, he is the rightful
owner or possessor of garage 14 by virtue of the condo-
minium instruments; therefore, if the analogy were to
hold, he would be suing the defendants as the adverse
possessors of the property. He does not allege or pre-
sent any evidence, however, that the association or
the individually named defendants, in their roles as
directors of the board of the condominium, are in actual
possession, or have been in possession, of garage 14
since the allegedly impermissible severance of that
interest from unit 14, and no evidence in the record
supports such a finding. Nor does he allege in his com-
plaint or present any evidence showing that the current
owner and user of garage 14, who has never been made
a party to this action, is using it pursuant to the type
of agreement or relationship with the defendants from
which it could be inferred that the defendants, through
that occupant, have been making the type of adverse
and hostile use of the property in derogation of the
plaintiff’s interest that would constitute adverse posses-
sion. Cf. Richmond v. Stahle, 48 Conn. 22, 23 (1880)
(possession by tenant of adversely possessing landlord
may be tacked onto landlord’s use when determining
whether landlord has held property against third par-
ties’ possessory interest for statutory period). Instead,
the plaintiff’s entire theory of recovery against the
defendants rests on the assertion that they breached
their statutory and contractual duties to him by causing
or failing to prevent the severance of garage 14 from
unit 14 and by failing thereafter to take any action to
return possession of the garage to him.23 Actions that
assert a breach of a duty sound in contract or tort,
depending on the source of the duty alleged. See
Bellemare v. Wachovia Mortgage Corp., supra, 284
Conn. 200.
It is undisputed that the court is required in cases
such as this one to determine what is the most analo-
gous statute of limitations, given the ‘‘nature of the
cause of action or of the right sued upon.’’ Id., 199. The
analysis employed by our Supreme Court in Bellemare
could support the application in this case of either the
general tort or written contract statute of limitations.
Determining that an action seeking damages for viola-
tion of General Statutes § 49-8, the mortgage release
statute, sounded in tort, our Supreme Court noted that,
despite the presence of a contract, the duty contem-
plated arose entirely by statute and would exist even
without any specific terms in a mortgage contract. Id.,
200–201 (‘‘the mortgage contract may be silent with
regard to the issuance of a release, may provide for a
longer or shorter time period for the issuance of a
release, or may be vague or uncertain as to the period
for the issuance of a release’’). Unlike this case, how-
ever, the court in Bellemare also noted that ‘‘[t]here
[was] no allegation in this count of the complaint that
a term of the mortgage contract had been breached’’;
id., 201; and that ‘‘the record and case file do not contain
a copy of the mortgage contract’’ at issue there. Id.,
201 n.8.24
Additionally, accepting the plaintiff’s adverse posses-
sion argument would result in one of two unfavorable
outcomes. First, at a bare minimum, it would require
the courts to apply different limitations periods to a
single duty, which is something that we generally seek
to avoid because it would lead to an unpredictable
result. See id., 201–202 (rejecting interpretation of § 49-
8 that would, inter alia, result in different limitations
periods depending on specific claim brought). Alterna-
tively, it would necessitate that we apply a fifteen year
statute of limitations period to all claims pursuant to
§ 47-75 (a), regardless of the type of claim asserted, the
source of the right sued upon, or the particular relief
requested. ‘‘[I]t is axiomatic that those who promulgate
statutes . . . do not intend to promulgate statutes . . .
that lead to absurd consequences or bizarre results.’’
(Internal quotation marks omitted.) State v. Courch-
esne, 296 Conn. 622, 710, 998 A.2d 1 (2010). Although
we note that the plain language of the statute might
support an argument for the application of two statutes
of limitations—one for those coming from the condo-
minium instruments, another for those duties specifi-
cally arising from the Condominium Act; see General
Statutes § 47-75 (a) (liability results from failure to com-
ply ‘‘with [the Condominium Act], the condominium
instruments, and the rules and regulations adopted pur-
suant thereto’’); we conclude that the plaintiff has not
presented any reason for us to risk either further confu-
sion or a patently absurd result by applying yet a third
potential limitations period that finds no explicit sup-
port within the section’s text.
Finally, although the nature of the relief requested
can be indicative of the nature of the right or cause of
action at issue; see Gazo v. Stamford, supra, 255 Conn.
265–66 (action seeking damages for, inter alia, pain and
suffering sounded in tort, not contract); it is by no
means determinative in every case. See Bellemare v.
Wachovia Mortgage Corp., supra, 284 Conn. 200–204
(relying on numerous factors, including source of
underlying duty, desirability of having one statute of
limitations for duty created by statute, and similarity
of claim pursuant to § 49-8 to common-law action for
slander of title, to determine that § 49-8 claim sounds
in tort); see also Bellemare v. Wachovia Mortgage Corp.,
94 Conn. App. 593, 600–605, 894 A.2d 335 (2006) (relying
on additional factors, such as structure of complaint’s
allegations, ‘‘distinct relief’’ requested for each count,
and legislative history and statutory scheme of § 49-8),
aff’d, 284 Conn. 193, 931 A.2d 916 (2007). The nature
of the right or cause of action alleged by the plaintiff
in count one is not similar in its essence to an adverse
possession claim, and we reject the plaintiff’s argument
that the only appropriate statute of limitations for that
cause of action is that set forth in § 52-575.25 Accord-
ingly, the trial court properly concluded that the first
count of the plaintiff’s complaint was time barred.
II
The plaintiff next argues that the court improperly
rendered summary judgment because it erroneously
determined that five counts of his complaint26 were time
barred due to his failure to demonstrate a genuine issue
of material fact as to the applicability of the continuing
course of conduct doctrine. We disagree.
‘‘Practice Book [§ 17-49] provides that summary judg-
ment shall be rendered forthwith if the pleadings, affida-
vits 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 seek-
ing summary judgment has the burden of showing the
absence of any genuine issue [of] material facts which,
under applicable principles of substantive law, 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 a genuine
issue of material fact. . . . A material fact . . . [is] a
fact which will make a difference in the result of the
case. . . . Finally, the scope of our review of the trial
court’s decision to grant the [defendant’s] motion for
summary judgment is plenary. . . . Summary judg-
ment 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 . . . .
‘‘[I]n the context of a motion for summary judgment
based on a statute of limitations special defense, a
defendant typically meets its initial burden of showing
the absence of a genuine issue of material fact by dem-
onstrating that the action had commenced outside of
the statutory limitation period. . . . 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 stat-
ute.’’ (Citation omitted; internal quotation marks omit-
ted.) Flannery v. Singer Asset Finance Co., LLC, 312
Conn. 286, 309–310, 94 A.3d 553 (2014).
The plaintiff does not argue that the court erred in
relying upon the transfer of the unit from Amendola
to the plaintiff in May, 1999, as the relevant point for
determining when the various statutes of limitations
began to run. Additionally, beyond his arguments con-
cerning the appropriate statute of limitations, if any,
governing count one, he does not contest that, without
the application of a ground to justify the equitable toll-
ing of the statute of limitations, each of the five
remaining counts would be barred as beyond the appli-
cable limitations period. See Rickel v. Komaromi, 144
Conn. App. 775, 782, 73 A.3d 851 (2013) (trespass claims
subject to three year limitations period in § 52-577);
Blinkoff v. O & G Industries, Inc., 113 Conn. App. 1,
8, 965 A.2d 556 (‘‘General Statutes § 42-110g [f], which
governs CUTPA claims, provides: An action under this
section may not be brought more than three years after
the occurrence of a violation of this chapter’’ [internal
quotation marks omitted]), cert. denied, 291 Conn. 913,
969 A.2d 175 (2009); Ahern v. Kappalumakkel, 97 Conn.
App. 189, 192 n.3, 903 A.2d 266 (2006) (‘‘[b]reach of
fiduciary duty is a tort action governed by the three
year statute of limitations contained within . . . § 52-
577’’); Bellemare v. Wachovia Mortgage Corp., supra,
94 Conn. App. 610 (‘‘a claim brought pursuant to a
contract, alleging a breach of the implied covenant of
good faith and fair dealing, sounds in contract . . .
[and] is therefore subject to the six year contract statute
of limitations as provided in § 52-576);27 see also part I
B of this opinion (determining whether §§ 52-577 or 52-
576 is applicable statute of limitations to cause of action
in count one unnecessary under facts of this case).
Instead, the plaintiff asserts that these limitations
periods were tolled by the continuing course of conduct
doctrine. ‘‘In certain circumstances . . . we have rec-
ognized the applicability of the continuing course of
conduct doctrine to toll a statute of limitations. Tolling
does not enlarge the period in which to sue that is
imposed by a statute of limitations, but it operates to
suspend or interrupt its running while certain activity
takes place. . . . Consistent with that notion, [w]hen
the wrong sued upon consists of a continuing course
of conduct, the statute does not begin to run until that
course of conduct is completed.’’ (Citations omitted;
internal quotation marks omitted.) Flannery v. Singer
Asset Finance Co., LLC, supra, 312 Conn. 311.
‘‘[I]n 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 termi-
nated 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. . . . Therefore, a precondition
for the operation of the continuing course of conduct
doctrine is that the defendant must have committed an
initial wrong upon the plaintiff. . . . A second require-
ment for the operation of the continuing course of con-
duct doctrine is that there must be evidence of the
breach of a duty that remained in existence after com-
mission of the original wrong related thereto. . . . The
doctrine of continuing course of conduct as used to
toll a statute of limitations is better suited to claims
where the situation keeps evolving after the act com-
plained of is complete . . . .’’ (Citations omitted; inter-
nal quotation marks omitted.) Targonski v. Clebowicz,
142 Conn. App. 97, 108–09, 63 A.3d 1001 (2013).
‘‘In sum, [i]n deciding whether the trial court properly
granted the defendant’s motion for summary judgment,
we must determine if there is a genuine issue of material
fact with respect to whether the defendant: (1) commit-
ted an initial wrong upon the plaintiff; (2) owed a contin-
uing duty to the plaintiff that was related to the alleged
original wrong; and (3) continually breached that duty.’’
(Internal quotation marks omitted.) Flannery v. Singer
Asset Finance Co., LLC, supra, 312 Conn. 313. ‘‘[I]f
there is no genuine issue of material fact with respect
to any one of the three prongs . . . summary judgment
is appropriate.’’ Cefaratti v. Aranow, 154 Conn. App.
1, 11, 105 A.3d 265 (2014), rev’d on other grounds, 321
Conn. 593, 141 A.3d 752 (question certified in plaintiff’s
petition), aff’d, 321 Conn. 637, 138 A.3d 837 (question
certified in defendants’ petition) (2016).
In support of his claim that the continuing course
of conduct doctrine applies, the plaintiff makes the
following contentions. First, he asserts that, pursuant
to the declaration, garage 14 is assigned as a limited
common element to unit 14. Other provisions of the
declaration, he contests, forbid the severance of the
garage from the unit, and, pursuant to the Condominium
Act and the condominium instruments, the defendants
had the power and obligation to both prevent this sever-
ance and take the necessary actions to correct the con-
tinuance thereof.28 Thus, although the plaintiff asserted
varying theories of recovery in his complaint, some of
which do not require the existence of a duty of care,29
the central underlying ground for each of the plaintiff’s
arguments concerns the duties owed to the plaintiff
‘‘from the [Condominium] Act and the condominium
instruments, which place the obligation of enforcing
their provisions on the association.’’30
‘‘Duty is a legal conclusion about relationships
between individuals, made after the fact . . . . The
nature of the duty, and the specific persons to whom
it is owed, are determined by the circumstances sur-
rounding the conduct of the individual.’’ (Internal quota-
tion marks omitted.) Lawrence v. O & G Industries,
Inc., 319 Conn. 641, 649, 126 A.3d 569 (2015). ‘‘A duty
. . . may arise from a contract [or] . . . from a statute
. . . .’’ Coburn v. Lenox Homes, Inc., 186 Conn. 370,
375, 441 A.2d 620 (1982).
Reviewing the plaintiff’s claims requires us to con-
sider and interpret those provisions of the Condomin-
ium Act and the condominium instruments relevant to
the issues raised; we restate the principles that govern
this analysis. ‘‘[C]onstruing a statute is a question of
law.’’ Somers West Towne Houses, Inc. v. LAS Proper-
ties Ltd. Partnership, 108 Conn. App. 426, 432, 949
A.2d 483 (2008). ‘‘The principles that govern statutory
construction are well established. When construing a
statute, [o]ur fundamental objective is to ascertain and
give effect to the apparent intent of the legislature. . . .
In other words, we seek to determine, in a reasoned
manner, the meaning of the statutory language as
applied to the facts of [the] case, including the question
of whether the language actually does apply. . . . In
seeking to determine that meaning, General Statutes
§ 1-2z directs us first to consider the text of the statute
itself and its relationship to other statutes. If, after
examining such text and considering such relationship,
the meaning of such text is plain and unambiguous and
does not yield absurd or unworkable results, extratex-
tual evidence of the meaning of the statute shall not
be considered. . . . When a statute is not plain and
unambiguous, we also look for interpretive guidance
to the legislative history and circumstances surrounding
its enactment, to the legislative policy it was designed to
implement, and to its relationship to existing legislation
and common law principles governing the same general
subject matter . . . .’’ (Internal quotation marks omit-
ted.) Mickey v. Mickey, 292 Conn. 597, 613–14, 974 A.2d
641 (2009).
Determining the defendants’ responsibilities under
the condominium instruments on which the plaintiff
relies—specifically, the declaration and the bylaws—
also requires resolution of questions of law. Oronoque
Shores Condominium Assn. No. 1, Inc. v. Smulley, 114
Conn. App. 233, 237, 968 A.2d 996 (‘‘The interpretation
of a condominium’s declaration presents a question of
law. . . . We also conduct plenary review of corporate
articles and bylaws.’’ [Citation omitted; internal quota-
tion marks omitted.]), cert. denied, 292 Conn. 922, 974
A.2d 722 (2009). ‘‘Because the [condominium] declara-
tion operates in the nature of a contract, in that it
establishes the parties’ rights and obligations, we apply
the rules of contract construction to the interpretation
of [the declaration].’’ (Internal quotation marks omit-
ted.) Harbour Pointe, LLC v. Harbour Landing Condo-
minium Assn., Inc., 300 Conn. 254, 259, 14 A.3d 284
(2011).
‘‘[W]e first attempt to ascertain the parties’ intent
from the language they used in their contract, looking
at the contract as a whole and giving the contract’s
words their ordinary meaning and one that renders its
provisions consistent. . . . Only if the language in the
contract is truly capable of more than one reasonable
interpretation will we look to evidence beyond the con-
tract language for guidance as to what the parties
intended.’’ (Citation omitted.) C & H Electric, Inc. v.
Bethel, 312 Conn. 843, 853, 96 A.3d 477 (2014). ‘‘The
rules of construction dictate giving effect to all the
provisions of a contract, construing it as a whole and
reconciling its clauses. . . . Where two clauses which
are apparently inconsistent may be reconciled by a rea-
sonable construction, that construction must be given,
because it cannot be assumed that the parties intended
to insert inconsistent and repugnant provisions.’’ (Inter-
nal quotation marks omitted.) Regency Savings Bank
v. Westmark Partners, 59 Conn. App. 160, 166, 756 A.2d
299 (2000).
‘‘[A] contract is unambiguous when its language is
clear and conveys a definite and precise intent. . . .
The court will not torture words to impart ambiguity
where ordinary meaning leaves no room for ambiguity.
. . . Moreover, the mere fact that the parties advance
different interpretations of the language in question
does not necessitate a conclusion that the language is
ambiguous. . . . In contrast, a contract is ambiguous
if the intent of the parties is not clear and certain from
the language of the contract itself. . . . [A]ny ambigu-
ity in a contract must emanate from the language used
by the parties. . . . The contract must be viewed in its
entirety, with each provision read in light of the other
provisions . . . and every provision must be given
effect if it is possible to do so. . . . If the language of
the contract is susceptible to more than one reasonable
interpretation, the contract is ambiguous.’’ (Internal
quotation marks omitted.) Harbour Pointe, LLC v. Har-
bour Landing Condominium Assn., Inc., supra, 300
Conn. 260–61.
Even if we were to accept the plaintiff’s argument
that the declaration, at its inception, required the alloca-
tion of garage 14 to unit 14, and unit 14 alone, and that
the defendants had breached the declaration by causing
or permitting the garage to be severed from that unit,
the plaintiff still would have to prove that any duty
owed by the defendants to the plaintiff was continuing.
As previously noted, the plaintiff relies on the applicable
provisions of the Condominium Act and the condomin-
ium instruments as the sources of that alleged duty
of care.
Section 47-75 (a) provides in relevant part: ‘‘Each unit
owner, and the association of unit owners, shall comply
with this chapter, the condominium instruments, and
the rules and regulations adopted pursuant thereto.
Failure to so comply shall be ground for an action to
recover damages or for injunctive relief, or for any other
relief to which the party bringing such action may be
entitled. Such action may be brought by the association
of unit owners against any unit owner or owners or, in
any proper case, by one or more aggrieved unit owners
on their own behalf or as a class action. . . .’’ Article
15 of the declaration contains very similar language to
§ 47-75. See footnote 17 of this opinion.
Turning to the bylaws, § 4 (b) provides in relevant
part: ‘‘The Board of Directors shall have the powers and
duties necessary for the administration of the affairs of
the Association and shall do all such acts or things
except as by law or by the Declaration or by these
Bylaws may not be delegated to the Board of Directors
by the Unit Owners. . . . The Board of Directors shall
have the power to enforce the obligations of the Unit
Owners . . . and to do anything and everything else
necessary and proper for the sound management of the
Association.’’31 That section also contains a number of
illustrative ‘‘powers and duties’’ of the board.
Examining these provisions, none of them defines
how the board of directors or association is to execute
its power in any enforcement action, or when, if ever,
it rightly may choose not to act at all; rather, they merely
provide that the defendants ‘‘shall have the powers’’
to enforce the Condominium Act or the condominium
instruments.32 Thus, any duty owed by the association
is not an absolute duty to act in all cases.33 Furthermore,
we note that these provisions stand in stark contrast
to other provisions of the Condominium Act,34 the decla-
ration,35 and the bylaws36 that affirmatively require cer-
tain actions be taken or the manner in which those
actions are to be taken. Finally, none of these provisions
establishes any requirement that the association redress
prior breaches of its duty to enforce the Condominium
Act or the condominium instruments.
In support of his claim that the defendants had an
ongoing responsibility to remedy a past breach of its
duties, the plaintiff also relies on § 10 (g) of the bylaws.37
That subsection provides: ‘‘The violation of any rule or
regulation adopted by the Association, or the breach
of any Bylaw contained herein, or the breach of any
provision of the Declaration, shall give the Association
the right, in addition to any other rights set forth in
these Bylaws:
‘‘i. [T]o enter the Unit in which, or as to which, such
violation or breach exists and to summarily abate and
remove, at the expense of the defaulting Unit Owner,
any structure, thing, or condition that may exist therein
contrary to the interest and meaning of the provisions
hereof and the Association shall not be there by deemed
guilty of trespass; or
‘‘ii. [T]o enjoin, abate, or remedy by appropriate legal
proceedings, either at law or in equity, the continuance
of any such breach.’’ This provision, however, like those
previously discussed, gives the board ‘‘the right’’ to take
action, but does not dictate the manner in which that
right is to be exercised or the circumstances under
which the board may refrain from acting. The subsec-
tion cannot be read to impose an absolute ongoing duty
on the defendants to remedy any and all breaches of
the Condominium Act or condominium instruments, no
matter how minor the breach or how distant in the past
the violation occurred.
Even more damaging to the plaintiff’s argument, how-
ever, is that the basic nature of the continuing course
of conduct doctrine counsels strongly against the plain-
tiff’s position that whatever duty that the association
might have had was ongoing. ‘‘[T]he 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.’’ (Emphasis added;
internal quotation marks omitted.) Flannery v. Singer
Asset Finance Co., LLC, supra, 312 Conn. 312. This
court has similarly observed that ‘‘[t]he doctrine . . .
is better suited to claims where the situation keeps
evolving after the act complained of is complete . . .
rather than one where the situation cannot change
. . . .’’ Sanborn v. Greenwald, 39 Conn. App. 289, 297–
98, 664 A.2d 803 (1995).
We also note our Supreme Court’s statements in the
recent case of Watts v. Chittenden, 301 Conn. 575, 22
A.3d 1214 (2011). There, ‘‘examining the use of the con-
tinuing course of conduct doctrine, [our Supreme Court
was] mindful of the nature of the doctrine as [then]
Chief Judge Richard Posner of the Seventh Circuit Court
of Appeals has explained . . . [that] [a] violation is
called continuing signifying that a plaintiff can reach
back to its beginning even if that beginning lies outside
the statutory limitations period, when it would be unrea-
sonable to require or even permit him to sue separately
over every incident of the defendant’s unlawful con-
duct. The injuries about which the plaintiff is complain-
ing in [these] case[s] are the consequence of a numerous
and continuous series of events. . . . When a single
event gives rise to continuing injuries . . . the plaintiff
can bring a single suit based on an estimation of his
total injuries, and that mode of proceeding is much to
be preferred to piecemeal litigation despite the possible
loss in accuracy. But in [cases in which the continuing
course of conduct doctrine is applicable, each incident
increases the plaintiff’s injury]. Not only would it be
unreasonable to require him, as a condition of preserv-
ing his right to have [the full limitations period] to sue
. . . to bring separate suits [during the limitations
period] after each [incident giving rise to the claim];
but it would impose an unreasonable burden on the
courts to entertain an indefinite number of suits and
apportion damages among them.’’ (Internal quotation
marks omitted.) Fradianni v. Protective Life Ins. Co.,
145 Conn. App. 90, 98–99, 73 A.3d 896, cert. denied, 310
Conn. 934, 79 A.3d 888 (2013). Rather, the doctrine
applies to cases ‘‘that involv[e] a continuing course of
conduct which over a period of years cause[s] injury.
Since usually no single incident in a continuous chain
of tortious activity can fairly or realistically be identified
as the cause of significant harm, it seems proper to
regard the cumulative effect of the conduct as action-
able.’’ (Internal quotation marks omitted.) Watts v. Chit-
tenden, supra, 592, quoting Twyman v. Twyman, 790
S.W.2d 819, 821 (Tex. App. 1990), rev’d on other
grounds, 855 S.W.2d 619, 620 (Tex. 1993).38
In the present case, the original wrong, if any, was
completed either upon the 1986 purported conveyance
of garage 14 separate from the like numbered unit or,
at the absolute latest, upon the 1999 transfer of unit 14
to the plaintiff without garage 14. All of the injuries
claimed by the plaintiff arise from either, or both, of
those acts or occurrences, and the plaintiff has pointed
to no separate injuries that have arisen as a result of
any ongoing failure by the defendants to enforce his
alleged rights under the documents. These circum-
stances do not present the type of case that merits the
application of the continuing course of conduct
doctrine.
Additionally, the plaintiff has not produced any evi-
dence that the defendants have breached any ongoing
duty to enforce the condominium instruments. In partic-
ular, we note that, although the provisions of the Condo-
minium Act and condominium instruments delineate
the defendants’ powers to address violations, no evi-
dence or law has been presented by the plaintiff in
support of his claims that there are genuine issues of
material fact or that summary judgment is incorrect as
a matter of law, from which we could conclude that
the defendants’ failure to do so under the facts of this
case is an abuse of their discretion. No evidence or
law has been presented concerning the circumstances
under which the choice not to enforce a provision of
the condominium instruments constitutes a breach of
the association’s duty. Further, we also note that there
is evidence that the deed purporting to convey garage
14 separately from unit 14 was executed in 1986 by the
developer; see footnotes 23 and 25 of this opinion; and
no evidence has been submitted that the garage and
unit, if they were originally required by the declaration
to be conjoined, ever have been conjoined in the
same owner.
In summary, the plaintiff has not raised a genuine
issue of material fact in this case that requires or justi-
fies application of the continuous course of conduct
doctrine, and we therefore decline the plaintiff’s invita-
tion to apply it.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Because we affirm the judgment on the basis that the plaintiff’s claims
are time barred, we do not consider the plaintiff’s arguments that the court
improperly determined that other grounds existed for granting the motion
for summary judgment as to his claims of trespass and unfair trade practices
in violation of the Connecticut Unfair Trade Practices Act (CUTPA), General
Statutes § 42-110a et seq.
2
Although a point of contention in the trial court, we do not need to
determine conclusively whether the court properly determined that, pursu-
ant to the terms of the condominium declaration, garages are limited com-
mon elements and not separate units. Even if we were to conclude that the
court properly determined that garages are limited common elements under
the declaration, the plaintiff cannot prevail on the remaining aspects of his
claim that the defendants owed, and continuously breached, any duty they
had as to him. Consequently, we also do not address the plaintiff’s arguments
that certain actions by the defendants in 2009 tolled the statute of limitations,
as the plaintiff explicitly premises these arguments on this court’s determina-
tion that, contrary to the trial court’s memorandum of decision, the garages
are separate units.
3
Pursuant to the warranty deed, the plaintiff received ‘‘all that certain
real property . . . known as 2 Old Town Highway, Unit #14, and Garage
#49, East Haven, CT . . . .’’ On the date of this conveyance, however, Por-
rello, and not Amendola, was the record owner of garage 49.
4
There is no indication in the record that Amendola or Porrello ever had
used or owned garage 14, which, from April 1, 1986, appears to have been
owned and used by the owner of unit 19. See footnotes 23 and 25 of this
opinion.
5
Indeed, Amendola was not a party to the underlying action, and the
court noted in its memorandum of decision granting summary judgment
that ‘‘the plaintiff has not alleged any legal relationship or agency between
the defendants and Amendola.’’
6
In fact, most of the individually named defendants were not unit owners
when the plaintiff purchased his unit.
7
Pursuant to General Statutes § 47-68a (d), ‘‘ ‘[c]ondominium instru-
ments’ ’’ include: the declarations, bylaws, survey maps, and plans recorded
and filed pursuant to chapter 825 of the General Statutes; any exhibit,
schedule, or certification appended to, and recorded or filed with, any
declaration, bylaw, survey map, or plan; and any amendment or certification
of a declaration, bylaw, survey map, or plan made in accordance with the
Condominium Act.
8
Certain other facts informed the plaintiff’s belief that he had an exclusive
right to garage 14. Garage 14 is attached to the building in which the plaintiff’s
unit is located; however garage 49 is considerably farther away. Additionally,
at least some of the garages do not have separate meters for electricity,
but, instead, are metered through the like numbered unit to which they
are attached.
9
In this complaint, the plaintiff asserted the following causes of action
against the defendants: violation of General Statutes § 47-75 (count one);
breach of fiduciary duty (count two); fraudulent misrepresentation (count
three); trespass (count four); CUTPA (count five); negligent infliction of
emotional distress (count six); and ‘‘tortuously’’ breaching the implicit cove-
nant of good faith and fair dealing (count seven).
10
At the time that the defendants filed their motion for summary judgment,
the defendants were represented jointly by the same law firms. Subsequently,
on August 31, 2012, counsel for the association withdrew representation as to
the individually named defendants, and the association and the individually
named defendants are represented separately in this appeal.
11
Pursuant to § 47-68a (g), a limited common element within the meaning
of the Condominium Act ‘‘means and includes those common elements
designated in the declaration as reserved for the use of a certain unit or
units to the exclusion of other units.’’ A common element, in turn, is any
part of a condominium that is not a unit. General Statutes § 47-68a (e).
Subsections (d) and (h) of the declaration explicitly incorporate these defini-
tions, but then each provide specific examples of what shall be considered
a common element and limited common element, respectively, in the condo-
minium.
12
A ‘‘unit’’ in the Condominium Act is defined by § 47-68a (b) as ‘‘a part
of the property including one or more rooms or designated spaces located
on one or more floors or a part or parts thereof in a building, intended for
any type of independent use, and with a direct exit to a public street or
highway or to common elements leading to such street or highway.’’ In light
of our decision, it is not necessary for us to determine if garage 14 is a unit
or a limited common element.
Article 2 (b) of the declaration defines a unit as ‘‘a part of the property
including one or more rooms or enclosed spaces or recessed balconies and
recessed decks located on one or more floors or parts thereof in a building
intended for the uses as are more particularly defined in Article 9 of this
Declaration, and with a direct exit to a common element leading to a public
street or highway. It shall comprise one of the separate and numbered units
which are designated in Schedule C attached hereto and made a part hereof,
each of which is more particularly described in the Floor Plans of the
building referred to in Article 4 hereof, excluding, however, all spaces and
improvements lying beneath the undecorated and/or unfinished inner sur-
faces of the perimeter walls, trim, and floors, and above the undecorated
and/or unfinished inner surfaces of the ceilings, and further excluding all
spaces and improvements lying beneath the undecorated and/or unfinished
inner surfaces of all interior bearing walls and/or bearing partitions, and
partition walls between separate Units and between Units and the Common
Elements and Facilities, and further excluding all pipes, ducts, wires, con-
duits and other facilities running through any interior wall or partition for
the furnishing of utility services to other Units or Common Elements. A
[U]nit shall include all doors installed within or providing access to a Unit
and the heating facility and all window glass installed in any wall or partition
in or adjacent to a Unit.’’
13
Although disposing of the entire case by determining that there was not
a genuine issue of material fact and that the defendants were entitled to
judgment as a matter of law with respect to their statutes of limitations
defenses, the court also determined that separate grounds existed for grant-
ing the motion as to the fraudulent misrepresentation, trespass, CUTPA,
and negligent infliction of emotional distress claims. On appeal, the plaintiff
does not challenge the court’s decision as to his fraudulent misrepresentation
and negligent infliction of emotional distress claims.
14
We address a preliminary matter before considering the merits of the
plaintiff’s arguments. It is uncontested that the condominium in question
was created prior to January 1, 1984, and, therefore, generally is governed
by the terms of the Condominium Act and not the Common Interest Owner-
ship Act, General Statutes § 47-200 et seq. (Common Interest Ownership
Act). See General Statutes § 47-214. Despite this uncontested fact, certain
defined provisions of the Common Interest Ownership Act are applicable
to preexisting common interest communities. See General Statutes § 47-216.
Because the parties generally have neither raised nor briefed the potential
applicability of these provisions, however, we will analyze the issues raised
primarily pursuant to the applicable provisions of the Condominium Act.
15
General Statutes § 47-75 (a) provides: ‘‘Each unit owner, and the associa-
tion of unit owners, shall comply with this chapter, the condominium instru-
ments, and the rules and regulations adopted pursuant thereto. Failure to
so comply shall be ground for an action to recover damages or for injunctive
relief, or for any other relief to which the party bringing such action may
be entitled. Such action may be brought by the association of unit owners
against any unit owner or owners or, in any proper case, by one or more
aggrieved unit owners on their own behalf or as a class action. If any such
action results in a final judgment or decree in favor of the party instituting
such action, such judgment or decree may incorporate a provision for reason-
able attorney’s fees, as specified in such judgment or decree, to be paid by
the party against whom such judgment or decree is entered.’’
16
To support his claim that a claim brought pursuant to § 47-75 is equitable
in nature, the plaintiff urges us to take cognizance of the ‘‘unique amalgam-
ation of property, contract, and tort law’’ at work in the Condominium Act.
Thus, he asserts that an action to enforce the condominium instruments
and the Condominium Act is akin to an action to enforce a restrictive
covenant, which may be enforced by an injunction, and relies upon both
the nature of the relief that he seeks as well as the equivalent provision in
the Common Interest Ownership Act to show that a § 47-75 action is equita-
ble. See General Statutes § 47-278 (a) (‘‘A declarant, association, unit owner
or any other person subject to this chapter may bring an action to enforce
a right granted or obligation imposed by this chapter, the declaration or the
bylaws. The court may award reasonable attorney’s fees and costs.’’).
17
The pertinent language of article 15 of the declaration essentially incor-
porates the text of § 47-75 (a) and broadens its application. Article 15 pro-
vides in relevant part: ‘‘All present and future Owners, tenants, and occupants
of Units and the Association of Unit Owners shall be subject to and shall
comply with [the Condominium Act], the provisions of this Declaration, and
the Bylaws, attached hereto and as they may be amended from time to time,
as well as to such regulations as may be adopted by the Board of Directors
of the Association, pursuant thereto. Failure to so comply shall be ground
for an action to recover damages or for injunctive relief or for any other
relief to which the party bringing such action may be entitled. Such action
may be brought by the Association against any Unit Owner or Owners, or,
in any proper case, by one or more aggrieved Unit Owners on their own
behalf or as a class action.’’
18
Because of this determination, the plaintiff’s remaining arguments
require little attention. We note that the plaintiff’s contention that his action
is similar to one to enforce a restrictive covenant would not necessarily
exempt his cause of action from being time barred. See General Statutes
§ 52-575a (‘‘[n]o action or any other type of court proceeding shall be brought
to enforce a private restriction recorded in the land records of the municipal-
ity in which the property is located or a notation on a filed map pertaining
to the use of privately owned land . . . unless such action or proceeding
shall be commenced within three years of the time that the person seeking
to enforce such restriction had actual or constructive knowledge of such vio-
lation’’).
19
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.’’ ‘‘[T]he three-year limitation of § 52-577 is applicable to all
actions founded upon a tort which do not fall within those causes of action
carved out of § 52-577 and enumerated in [General Statutes] § 52-584 or
another section.’’ (Internal quotation marks omitted.) Travelers Indemnity
Co. v. Rubin, 209 Conn. 437, 441, 551 A.2d 1220 (1988). ‘‘The date of the
act or omission complained of is the date when the . . . conduct of the
defendant occurs . . . .’’ (Internal quotation marks omitted.) Certain
Underwriters at Lloyd’s, London v. Cooperman, supra, 289 Conn. 408; see
also Farnsworth v. O’Doherty, 85 Conn. App. 145, 150, 856 A.2d 518 (2004)
(‘‘[t]he three year limitation period of § 52-577 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]).
20
Given this characterization, as well as the clear centrality to the plaintiff’s
claim of the provisions in the declaration that forbid the severance of inter-
ests appurtenant to a unit, we note the failure of the parties to consider the
potential applicability of General Statutes § 52-575a. See footnote 18 of this
opinion. Because the parties have limited their arguments to three potential
statutes of limitations, however, and have not briefed this issue, we do not
consider whether this statute of limitations governs the plaintiff’s claim.
21
General Statutes § 52-575 (a) provides: ‘‘No person shall make entry
into any lands or tenements but within fifteen years next after his right or
title to the same first descends or accrues or within fifteen years next after
such person or persons have been ousted from possession of such land or
tenements; and every person, not entering as aforesaid, and his heirs, shall
be utterly disabled to make such entry afterwards; and no such entry shall
be sufficient, unless within such fifteen-year period, any person or persons
claiming ownership of such lands and tenements and the right of entry
and possession thereof against any person or persons who are in actual
possession of such lands or tenements, gives notice in writing to the person
or persons in possession of the land or tenements of the intention of the
person giving the notice to dispute the right of possession of the person or
persons to whom such notice is given and to prevent the other party or
parties from acquiring such right, and the notice being served and recorded
as provided in sections 47-39 and 47-40 shall be deemed an interruption of
the use and possession and shall prevent the acquiring of a right thereto by
the continuance of the use and possession for any length of time thereafter,
provided an action is commenced thereupon within one year next after the
recording of such notice. The limitation herein prescribed shall not begin
to run against the right of entry of any owner of a remainder or reversionary
interest in real estate, which is in the adverse possession of another, until
the expiration of the particular estate preceding such remainder or reversion-
ary estate.’’
22
General Statutes § 52-576 (a) provides in relevant part: ‘‘No action . . .
on any contract in writing . . . shall be brought but within six years after
the right of action accrues . . . .’’ ‘‘[I]n an action for breach of contract
. . . the cause of action is complete at the time the breach of contract occurs,
that is, when the injury has been inflicted. . . . Although the application of
this rule may result in occasional hardship, [i]t is well established that
ignorance of the fact that damage has been done does not prevent the
running of the statute, except where there is something tantamount to a
fraudulent concealment of a cause of action. . . . While the statute of limita-
tions normally begins to run immediately upon the accrual of the cause of
action, some difficulty may arise in determining when the cause or right of
action is considered as having accrued. . . . The true test for determining
the appropriate date when a statute of limitations begins to run is to establish
the time when the plaintiff first successfully could have maintained an
action. That is, an action cannot be maintained until a right of action is
complete and hence, the statute of limitations cannot run before that time.
. . . A cause of action does not accrue for the purposes of a statute of
limitations until all elements are present, including damages, however trivial.
However, the occurrence of an act or omission . . . that causes a direct
injury, however slight, may start the statute of limitations running against
the right to maintain an action even if the plaintiff is not aware of the injury,
and even if all resulting damages have not yet occurred; it is sufficient if
nominal damages are recoverable for the breach or for the wrong, and where
that is the case, it is unimportant that the actual or substantial damage is
not discovered or does not occur until later. The fact that the extent of the
damages cannot be determined at the time of the wrongful act does not
postpone the running of the statute of limitations.’’ (Citations omitted; foot-
note omitted; internal quotation marks omitted.) Rosenfield v. I. David
Marder & Associates, LLC, 110 Conn. App. 679, 685–86, 956 A.2d 581 (2008).
23
In a warranty deed dated April 1, 1986, however, the developer, Shell
Beach, Inc., purportedly conveyed garage 14 to the purchaser of unit 19,
George J. Lepofsky, trustee. The deed provided that ‘‘Residential Unit No.
19 of Shell Beach Condominium . . . and Garage Unit Nos. 14 and 15 of
Shell Beach Condominium . . . are conveyed . . . .’’
24
We reiterate that we do not determine which of these two statutes of
limitations—§§ 52-576 (a) or 52-577—definitively applies to count one.
25
Even if we were to accept the plaintiff’s invitation and apply the limita-
tions period within § 52-575 to count one of the plaintiff’s complaint, his
claim still would be time barred. The developer assigned the interest in
garage 14 separately from unit 14 in 1986, when it included garage 14 in the
deed conveying unit 19. See footnote 23 of this opinion. No evidence has
been presented that, since 1986, garage 14 was ever used or owned by an
owner of unit 14, or that any of the defendants have had a possessory
interest in that garage. Further, the deed transferring unit 14 to the plaintiff
in 1999 did not make any reference to garage 14. Thus, this action, com-
menced in 2009, would have occurred twenty-three years after the ‘‘wrong’’
committed in 1986 by the developer, e.g., the definitive act, occurrence, or
breach for the purpose of beginning the limitations period within §§ 52-575,
52-576, or 52-577.
26
See footnote 13 of this opinion.
27
We note that the plaintiff alleges that the defendants ‘‘tortiously’’
breached the covenant of good faith and fair dealing in count seven. Although
the court does not have to accept the label that a party appends to its cause
of action; see, e.g., Meyers v. Livingston, Adler, Pulda, Meiklejohn & Kelly,
P.C., supra, 311 Conn. 290 (‘‘[O]ne cannot bring an action [under both
theories, however] merely by couching a claim that one has breached a
standard of care in the language of contract. . . . [T]ort claims cloaked in
contractual language are, as a matter of law, not breach of contract claims.’’
[Internal quotation marks omitted.]); we recognize that ‘‘the same course
of conduct may sound both in tort and in contract . . . and the court should
apply the relevant statute of limitations to each claim.’’ (Citation omitted.)
Hill v. Williams, 74 Conn. App. 654, 660, 813 A.2d 130, cert. denied, 263
Conn. 918, 822 A.2d 242 (2003). Nevertheless, even if we were to accept
that this count sounds in tort, and not in contract, it would not help the
defendant. If § 52-576 is inapplicable, this claim would be governed then by
General Statutes §§ 52-577 or 52-584, both of which are subject to a three
year repose period.
28
During oral argument before this court, the plaintiff referred to the
ongoing duty of the defendants as a ‘‘continuing duty of disclosure.’’ The
plaintiff did not brief this theory, however, instead asserting that the duty
of the defendants was to enforce the condominium instruments and remedy
any breaches thereof. ‘‘[I]t is well settled that arguments cannot be raised
for the first time at oral argument.’’ J.E. Robert Co. v. Signature Properties,
LLC, 309 Conn. 307, 328 n.20, 71 A.3d 492 (2013).
29
For instance, ‘‘in Connecticut, [t]he essentials of an action for trespass
are: (1) ownership or possessory interest in land by the plaintiff; (2) invasion,
intrusion or entry by the defendant affecting the plaintiff’s exclusive possess-
ory interest; (3) done intentionally; and (4) causing direct injury.’’ (Internal
quotation marks omitted.) Boyne v. Glastonbury, 110 Conn. App. 591, 601,
955 A.2d 645, cert. denied, 289 Conn. 947, 959 A.2d 1011 (2008).
30
We note that, although the plaintiff contends that ‘‘Connecticut courts
have concluded that condominium associations owe duties to unit owners
. . . [and] [s]everal courts have expressly concluded that condominium
instruments create duties owed to unit owners,’’ he does not attempt to
define more specifically, in either analysis or through citation to relevant
authority, the particular type of duty that he contends exists in this case.
(Citations omitted.) Rather, the plaintiff grounds his entire argument as to
both the existence and ongoing nature of the defendants’ duty strictly on
the applicable statutory authority and provisions of the condominium
instruments.
31
An amendment, executed subsequent to the commencement of this
action, modifies the language in § 4 (b) (14) of the bylaws in ways nonmate-
rial to this analysis.
32
Indeed, § 47-75 (a) itself suggests that the responsibility to enforce the
Condominium Act or the condominium instruments is not exclusively in
the association in all cases, as it explicitly allows a unit owner to enforce the
condominium instruments and the Condominium Act ‘‘in any proper case.’’
33
In another context, our Supreme Court has opined as to the proper
method for appraising a decision by an association: ‘‘When a court is called
upon to assess the validity of [an action taken] by a board of directors, it
first determines whether the board acted within its scope of authority and,
second, whether the [action] reflects reasoned or arbitrary and capricious
decision making.’’ (Internal quotation marks omitted.) Weldy v. Northbrook
Condominium Assn., Inc., 279 Conn. 728, 734, 904 A.2d 188 (2006). Further,
various provisions of the Restatement (Third) of Property similarly suggest
that the association and the board, although owing duties to unit owners
in the exercise of their authority, are not required to take action in all cases.
See 2 Restatement (Third), Property, Servitudes § 6.13 (1), p. 233 (2000)
(‘‘[i]n addition to duties imposed by statute and the governing documents,
the association has the following duties to the members of the common-
interest community . . . to act reasonably in the exercise of its discretion-
ary powers including . . . enforcement’’ [emphasis added]); see also id.,
§ 6.14, p. 268 (‘‘[t]he directors and officers of an association have a duty to
act in good faith, to act in compliance with the law and the governing
documents, to deal fairly with the association and its members, and to use
ordinary care and prudence in performing their functions’’).
Finally, certain provisions of the Common Interest Ownership Act clarify
which actions by an association are mandatory and which are discretionary,
and support a clear inference that enforcement, on the whole, is generally
subject to the association’s and the directors’ discretion. See General Stat-
utes § 47-244 (a); see also Public Acts 2009, No. 09-225, § 20 (clarifications
making more explicit which duties are discretionary and which are manda-
tory in § 47-244 [a], applicable as of date of passage, July 8, 2009). Other
provisions provide that the board of directors is not required to take any
enforcement action if it determines that one of four specified circumstances
is met; General Statutes § 47-244 (g); and allows the board to choose to
take an enforcement action in one case, but not another, as long as the
choice is not arbitrary or capricious. General Statutes § 47-244 (h). These
latter provisions, which would generally be applicable to condominiums that
were created before 1984; see General Statutes § 47-216 (a); are technically
inapplicable in this case, as they became effective after this case had com-
menced. See Public Acts 2009, No. 09-225, § 21 (added subsections [g] and
[h] to § 47-244, effective July 1, 2010). Nevertheless, their existence provides
further support for our position, in that they demonstrate legislative
affirmance of preexisting common law principles.
34
For instance, General Statutes § 47-84 (a) provides in relevant part that
‘‘damage to or destruction of any building or improvement located on the
condominium parcel or serving the condominium shall be promptly repaired
and restored by . . . the association, using the proceeds of insurance, if
any, on such building or improvement for that purpose . . . .’’ See also
General Statutes § 47-71 (h) and (i) (requiring association to record specified
information on annual basis).
35
Article 25 (e) of the declaration requires the association to provide its
books and records to a first mortgagee when the request is received reason-
ably in advance of the examination and in writing. Article 26 provides that
the association ‘‘shall at all times keep an adequate reserve fund for the
replacement of common elements’’ and that the fund be maintained through
monthly payments rather than special assessments. Prior to an amendment
in 1987 that removed the article from the declaration, article 27 required
that the association maintain a separate budget for the operation, care, and
upkeep of the swimming pool, tennis court, and community building that
would have been built on a separate tract.
36
Section 4 (i) of the bylaws requires that the board must elect certain
officers at the annual organization meeting of each new board. Section 5
(d) makes it ‘‘the duty of the Secretary to mail a notice for each annual or
special meeting’’ to all unit owners and dictates the timing and contents
of such notice. Section 10 (f) requires the association to provide various
information to any unit owner that requests it in writing and, depending on
the information requested, requires that information be delivered either
promptly or within fifteen days of the association’s receipt of the request.
37
An amendment, executed subsequent to the commencement of this
action, modifies the language in § 10 (g) (iv) of the bylaws in ways nonmate-
rial to this analysis.
38
Indeed, circumstances falling between these two extremes generally
will not merit the application of the continuing course of conduct doctrine.
See Brusby v. Metropolitan District, 160 Conn. App. 638, 664, 127 A.3d 257
(2015) (‘‘In between the case in which a single event gives rise to continuing
injuries and the case in which a continuous series of events gives rise to a
cumulative injury is the case in which repeated events give rise to discrete
injuries . . . . [In such a case] the damages from each discrete act . . .
would be readily calculable without waiting for the entire series of acts to
end. There would be no excuse for the delay. And so the violation would
not be deemed continuing.’’ [Internal quotation marks omitted.])