Gugliemi v. Willowbrook Condominium Assn., Inc. ( 2014 )

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PANFILIO GUGLIEMI ET AL. v. WILLOWBROOK
CONDOMINIUM ASSOCIATION, INC.
(AC 35557)
Alvord, Keller and Peters, Js.
Argued May 20—officially released July 29, 2014
(Appeal from Superior Court, judicial district of
Hartford, Hon. Richard M. Rittenband, judge trial
referee.)
Matthew S. Carlone, for the appellants (plaintiffs).
Anita M. Varunes, with whom was Jesalyn Cole, for
the appellee (defendant).
Opinion
KELLER, J. The plaintiffs, Panfilio Gugliemi and
David Babych, appeal from the judgment of the trial
court rendered in favor of the defendant, Willowbrook
Condominium Association, Inc. (Willowbrook), follow-
ing a trial to the court. In this appeal, the plaintiffs
claim that the court improperly determined that: (1) the
action was barred by the two year statute of limitations
contained in General Statutes § 52-584; (2) the action
was barred by the three year statute of repose contained
in § 52-584; and (3) the plaintiffs did not suffer any
damages as a matter of law. The plaintiffs also contend
that the court erred by failing to consider evidence of
the plaintiffs’ property damage. We conclude that the
first issue raised by the plaintiffs is dispositive of this
appeal, and that the court properly determined that the
plaintiffs’ action is barred by the two year statute of
limitations prescribed by § 52-584. We therefore affirm
the judgment of the trial court.1
The following facts and procedural history are rele-
vant to this appeal. Babych owned unit number six
of the Willowbrook condominium complex from 2007
through 2010, when he sold it to Gugliemi.2 Gugliemi
occupied the unit during the period of time relevant
to this appeal. Sometime during the summer of 2007,
Gugliemi discovered that a water spigot situated near
his condominium unit and part of the Willowbrook con-
dominium complex’ common elements had begun to
leak. Gugliemi testified that he first noticed the leak
when the hose was taken off the spigot, such that there
was no water pressure, and, as a result of the leak,
water flowed into the basement of the condominium
unit that he occupied.3 At that time, Gugliemi com-
plained to Maryanne Allen, his neighbor and the man-
ager of Willowbrook. Allen asked Gugliemi to put his
complaint in writing; she also stated that Willowbrook
would fix the leaking water spigot. Gugliemi discovered
mold and water damage in the basement of the condo-
minium unit in October, 2009. He did not send a written
complaint to Willowbrook, however, until February
1, 2010.
On January 31, 2011, the plaintiffs commenced this
two count action. The plaintiffs twice amended their
complaint. The first count was pleaded as a negligence
action. The second count was brought under General
Statutes § 47-278 (a), which provides in relevant part: ‘‘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 defendant, in
its answer to the amended complaint, pleaded five spe-
cial defenses; the only special defense that is relevant
for present purposes is that the action is barred by the
statute of limitations under § 52-584.
Following three days of testimony, the court, Hon.
Richard M. Rittenband, judge trial referee, issued a
memorandum of decision on March 28, 2013. The court
concluded that the plaintiffs’ action was barred by the
statute of limitations because the statute began to run
in 2007 and the action was not brought until 2011, which
was outside the two year period provided for under
§ 52-584. The court reasoned that Gugliemi suffered
actionable harm in 2007 because ‘‘[t]he plaintiffs were
aware of a leak in the unit in 2007, and the court finds
this to be the injury for purposes of [§] 52-584.’’ The
court also concluded that the statute of limitations was
not tolled by the continuing course of conduct doctrine
and that the plaintiffs’ action also was not timely under
the three year statute of repose provided for under § 52-
584. Accordingly, the court rendered judgment in favor
of the defendant. This appeal followed.
The dispositive issue raised in this appeal is the plain-
tiffs’ claim that the court erred in concluding that the
action was barred by the two year statute of limitations
set forth in § 52-584. Specifically, they argue that the
court ‘‘misconstrued what constituted ‘actionable
harm’ ’’ and, thus, ‘‘erred by finding that the statute of
limitations began to run on the date that . . . Gugliemi
first discovered the leaking water spigot rather than
the date that . . . Gugliemi discovered the water and
mold damage to his property.’’ We disagree.
Section 52-584 provides in relevant part: ‘‘No action
to recover damages for injury to . . . real or personal
property, caused by negligence . . . shall be brought
but within two years from the date when the injury
is first sustained or discovered or in the exercise of
reasonable care should have been discovered, and
except that no such action may be brought more than
three years from the date of the act or omission com-
plained of . . . .’’ ‘‘When applying § 52-584 to deter-
mine whether an action was timely commenced, this
court has held that an injury occurs when a party suffers
some form of actionable harm. . . . Actionable harm
occurs when the plaintiff discovers . . . that he or she
has been injured and that the defendant’s conduct
caused such injury. . . . The statute begins to run
when the plaintiff discovers some form of actionable
harm, not the fullest manifestation thereof. . . . The
focus is on the plaintiff’s knowledge of facts, rather
than on discovery of applicable legal theories.’’ (Internal
quotation marks omitted.) Rosato v. Mascardo, 82 Conn.
App. 396, 404–405, 844 A.2d 893 (2004).
‘‘[T]he question of whether a party’s claim is barred
by the statute of limitations is a question of law, which
this court reviews de novo.’’ (Internal quotation marks
omitted.) Certain Underwriters at Lloyd’s, London v.
Cooperman, 289 Conn. 383, 407–408, 957 A.2d 836
(2008). Determining when a plaintiff suffers actionable
harm, however, is ordinarily a question of fact. Tarnow-
sky v. Socci, 271 Conn. 284, 288, 856 A.2d 408 (2004).
‘‘[When] the factual basis of the court’s decision is chal-
lenged we must determine whether the facts set out
in the memorandum of decision are supported by the
evidence or whether, in light of the evidence and the
pleadings in the whole record, those facts are clearly
erroneous.’’ (Internal quotation marks omitted.) Saun-
ders v. Firtel, 293 Conn. 515, 535, 978 A.2d 487 (2009).
‘‘A finding is clearly erroneous when although there is
evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction
that a mistake has been committed.’’ (Internal quotation
marks omitted.) D’Amato Investments, LLC v. Sutton,
117 Conn. App. 418, 426, 978 A.2d 1135 (2009).
To resolve this appeal, we must determine whether
the trial court properly found that the plaintiffs suffered
actionable harm in the summer of 2007 when Gugliemi
complained to Allen. The plaintiffs contend that this
determination was erroneous. They contend that the
statute of limitations began to run in 2009 when Gug-
liemi first discovered mold and water damage in the
condominium unit’s basement. This assertion, however,
is belied by Gugliemi’s own admissions at trial. Gugliemi
testified that he noticed the spigot leaking in 2007, and
that he observed water leaking into the basement of
the condominium unit at that time. When he could not
stop the spigot from leaking, Gugliemi informed Allen
of the issue. Despite the spigot not being fixed, Gugliemi
continued to use the spigot in the summer of 2007 and
beyond. Later he testified that in 2007, he saw water
leaking inside his unit and could have shut the spigot
off at that time, but chose not to do so. Therefore,
Gugliemi’s testimony was sufficient for the court to find
that the plaintiffs suffered actionable harm in 2007 when
Gugliemi first observed water seeping into the base-
ment of the condominium unit.
To the extent that the plaintiffs contend that they did
not suffer actionable harm until 2009 ‘‘when Gugliemi
discovered the mold and water damage’’ to the condo-
minium unit’s basement, we reiterate what this court
stated in Rosato: ‘‘The statute begins to run when the
plaintiff discovers some form of actionable harm, not
the fullest manifestation thereof.’’ (Internal quotation
marks omitted.) Rosato v. Mascardo, supra, 82 Conn.
App. 405. The mold may be the ‘‘fullest manifestation’’
of the plaintiffs’ harm, but according to Gugliemi’s own
admissions, actionable harm occurred in the summer
of 2007. Moreover, even though Gugliemi claimed not
to have seen the mold or water damage until October,
2009, the court found his testimony not to be credible,
and we have no basis to conclude that the court’s
implicit determination that this damage should have
been discovered sooner through the exercise of reason-
able care; see General Statutes § 52-584; is clearly
erroneous.
We conclude therefore that the trial court’s factual
determination that the plaintiffs suffered actionable
harm in 2007 is not clearly erroneous. Given that conclu-
sion, the statute of limitations applicable to the plain-
tiffs’ negligence action began to run in the summer of
2007 when they first became aware of the water leaking
into the condominium unit. The period in which the
plaintiffs could bring an action expired two years there-
after, in the summer of 2009. See General Statutes § 52-
584. Therefore, the plaintiffs’ 2011 action was untimely,
and the trial court properly rendered judgment in favor
of the defendant.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Even though the plaintiffs appeal from the judgment in its entirety, no
claims that would undermine the court’s judgment as to count two of the
plaintiffs’ complaint are raised in this appeal. Therefore, all claims as to the
court’s judgment pertaining to count two of the complaint are abandoned.
See Sequenzia v. Guerrieri Masonry, Inc., 298 Conn. 816, 824, 9 A.3d 322
(2010). Additionally, because we conclude that the two year statute of
limitations is dispositive of the plaintiffs’ appeal, we do not review any other
issues decided by the court and raised by the plaintiffs on appeal.
2
The record reflects that Babych owned the condominium unit that Gug-
liemi, his father-in-law, occupied at all relevant times, and that Babych sold
the unit to Gugliemi in 2010. A mortgage on the property was executed by
Babych and subsequently assumed by Gugliemi. Gugliemi paid the condo-
minium fees and homeowner’s insurance premiums when he occupied the
unit. Babych has executed a power of attorney authorizing Gugliemi to act
and speak on his behalf in connection with this action.
3
The court found that both plaintiffs were aware of the leak in the unit
in 2007, and this factual finding is not challenged on appeal.