PMG Land Associates, L.P. v. Harbour Landing Condominium Assn., Inc. , 172 Conn. App. 688 ( 2017 )

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PMG LAND ASSOCIATES, L.P. v. HARBOUR LANDING
CONDOMINIUM ASSOCIATION, INC., ET AL.
(AC 37965)
DiPentima, C. J., and Beach and Sheldon, Js.*
Argued December 2, 2016—officially released May 2, 2017
(Appeal from Superior Court, judicial district of New
Haven, Holden, J., [motion to dismiss]; Wilson, J.
[motion for summary judgment].)
Scott M. Maser, for the appellant (plaintiff).
Laura Pascale Zaino, with whom was Joshua M.
Auxier, for the appellees (defendants).
Opinion
BEACH, J. The plaintiff, PMG Land Associates, L.P.,
appeals from the judgment of the trial court granting the
motion for summary judgment filed by the defendants,
Harbour Landing Condominium Association, Inc.,
David Potter, Vincent DeLauro, and Margareth Butter-
worth. On appeal, the plaintiff contends that the court
improperly held that the action was barred by the appli-
cable statute of limitations. We affirm the judgment of
the trial court.
The following facts are relevant to this appeal. The
plaintiff and the defendants owned adjacent properties
in New Haven. The defendants’ land comprised phases
I and II of the Harbour Landing condominium complex.
Contiguous land owned by the plaintiff was planned to
be phases III, IV, and V of the development.1 In 2000,
the plaintiff placed the land intended for phases III,
IV, and V on the market. In response, the defendants
commenced an action seeking a prescriptive easement
over portions of the plaintiff’s property (defendants’
2001 action) and, in connection with that action,
recorded a lis pendens applicable to all of the plaintiff’s
property slated for development. The plaintiff subse-
quently sought a discharge of the lis pendens. On March
26, 2003, the court, Hon. Robert I. Berdon, judge trial
referee, granted relief to the plaintiff as to certain por-
tions of the land, and denied it as to others. On January
28, 2004, the court modified its 2003 decision to further
limit the scope of the defendants’ lis pendens. On May
28, 2004, as will be explained, the defendants’ 2001
action, which provided the basis for the lis pendens,
was dismissed.
Meanwhile, in October, 2003, while the defendants’
2001 action seeking a prescriptive easement was pend-
ing, the plaintiff initiated an action against the defen-
dants seeking to quiet title; it also alleged slander of
title and tortious interference with a contract (plaintiff’s
2003 action). The plaintiff alleged that the lis pendens
filed by the defendants was false and was intended to
interfere with the plaintiff’s ability to market and sell
its property, and that, in an attempt to interfere with
the plaintiff’s recently signed agreement for sale, the
defendants had failed to remove the lis pendens in
accordance with Judge Berdon’s order. The plaintiff
also alleged that the defendants interfered with the
plaintiff’s ability to access its property by changing the
access codes on the gates surrounding the property. In
April, 2004, the parties informed the court that both the
defendants’ 2001 action and the plaintiff’s 2003 action
had been settled. The court, accordingly, ordered the
parties to withdraw both cases on or before May 27,
2004. The required withdrawals never were filed, and
the court dismissed the defendants’ 2001 action on May
28, 2004, and the plaintiff’s 2003 action on June 30, 2004.
Approximately six months later, in November, 2004,
the plaintiff filed a second complaint against the defen-
dants. The plaintiff alleged (1) statutory vexatious litiga-
tion, (2) common-law vexatious litigation, and, again,
(3) tortious interference with a contract. The factual
allegations in the second complaint largely mirrored
the allegations in the plaintiff’s 2003 action, with the
additional allegation that the defendants had filed a
zoning appeal against the plaintiff’s buyer, The Christo-
pher Companies, Ltd. (Christopher Companies), in
2004, in another attempt to interfere with the plaintiff’s
sale of the property. The plaintiff subsequently failed
to respond to the defendants’ request to revise, interrog-
atories, and requests for production, and the court
granted the defendants’ motion for a judgment of non-
suit on January 2, 2007.
More than a year later, on January 18, 2008, the plain-
tiff commenced the action underlying this appeal. The
underlying action alleges, as the plaintiff noted in its
brief, ‘‘the same facts and causes of action as were
present in the 2004 lawsuit.’’ The defendants filed a
motion to dismiss the complaint, arguing that the plain-
tiff’s action was time barred. The court granted the
defendants’ motion to dismiss on May 28, 2009, and the
plaintiff subsequently appealed to this court. On appeal,
this court affirmed the trial court’s decision as to the
vexatious litigation claims, but reversed the judgment
of the trial court and remanded the case for further
proceedings on the tortious interference with business
expectancies claim. PMG Land Associates, L.P. v. Har-
bour Landing Condominium Assn., Inc., 135 Conn.
App. 710, 719, 42 A.3d 508 (2012).2
On remand, the defendants filed a motion for sum-
mary judgment, arguing that the plaintiff’s claim for
tortious interference was time barred pursuant to Gen-
eral Statutes § 52-577.3 This action was commenced on
January 18, 2008; therefore, conduct prior to January
18, 2005, was outside the statute of limitations. Because
the defendants’ 2001 action was dismissed on May 28,
2004, the obligation to release the lis pendens arose in
2004, and, therefore, this action was time barred unless
the running of the statute of limitations was tolled. The
plaintiff argued that the defendants’ continuing failure
to release the lis pendens constituted a continuing
course of conduct that tolled the statute of limitations
until the lis pendens was released on June 6, 2005. The
plaintiff also argued that the defendants had committed
other tortious acts within the relevant time frame, and
that those acts satisfied one method of establishing a
continuing course of conduct for the purpose of tolling
the statute of limitations. The defendants argued that,
under this court’s holding in Bellemare v. Wachovia
Mortgage Corp., 94 Conn. App. 593, 894 A.2d 335 (2006),
aff’d, 284 Conn. 193, 931 A.2d 916 (2007), the failure to
release the lis pendens constituted a single omission
that occurred when the action on which the lis pendens
was premised was dismissed. The defendants also
argued that the plaintiff failed sufficiently to establish
that they had committed other tortious acts within the
three years preceding the commencement of the plain-
tiff’s initiation of the underlying action. The trial court
agreed with the defendants and granted the motion for
summary judgment. This appeal followed.
The plaintiff argues that the court improperly granted
the defendants’ motion for summary judgment because
the statute of limitations was tolled until the defendants
released the lis pendens, and because there was a genu-
ine issue of material fact as to whether the defendants
committed other tortious acts relevant to this claim
within the three years prior to the initiation of the under-
lying action. We disagree.
We begin by setting forth the relevant standard of
review. ‘‘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. . . . On appeal, we must determine whether
the legal conclusions reached by the trial court are
legally and logically correct and whether they find sup-
port in the facts set out in the memorandum of decision
of the trial court. . . . Our review of the trial court’s
decision to grant the defendant’s motion for summary
judgment is plenary.’’ (Internal quotation marks omit-
ted.) Id., 597.
‘‘[I]n the context of a motion for summary judgment
based on a statute of limitations special defense, [the
defendants] typically [meet their] initial burden of
showing the absence of a genuine issue of material
fact by demonstrating 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 limita-
tions, the burden normally shifts to the plaintiff to estab-
lish a disputed issue of material fact in avoidance of
the statute. . . . Put differently, it is then incumbent
upon the party opposing summary judgment to establish
a factual predicate from which it can be determined,
as a matter of law, that a genuine issue of material
fact exists.’’ (Citation omitted; internal quotation marks
omitted.) Iacurci v. Sax, 313 Conn. 786, 799, 99 A.3d
1145 (2014).
To make a claim for tortious interference, ‘‘[a plain-
tiff] must prove that the defendant’s conduct was in
fact tortious.’’ (Internal quotation marks omitted.) Blake
v. Levy, 191 Conn. 257, 261, 464 A.2d 52 (1983). Where
a tortious interference claim stems from the defendant’s
passive conduct, ‘‘common sense dictates that a court
should inquire whether the defendant was under any
obligation to do what it refrained from doing.’’ Downes-
Patterson Corp. v. First National Supermarkets, Inc.,
64 Conn. App. 417, 427, 780 A.2d 967, cert. granted, 258
Conn. 917, 782 A.2d 1242 (2001) (appeal dismissed June
25, 2002).
As the trial court properly determined, a party incurs
an obligation pursuant to General Statutes § 49-84 to
release a lis pendens when such lis pendens is rendered
ineffective. Here, the lis pendens was rendered ineffec-
tive on May 28, 2004, when the action underlying the
lis pendens was dismissed. See General Statutes § 52-
322.5 The defendants, therefore, breached their obliga-
tion to the plaintiff at that time. Because the plaintiff
commenced the present action more than three years
later, however, the plaintiff’s claim was, at least on the
surface, untimely. See General Statutes § 52-577.
The plaintiff argues, however, that pursuant to the
continuing course of conduct doctrine, the statute of
limitations was tolled until the defendants released the
lis pendens on June 5, 2006, because the defendants
had a continuing duty to release the lis pendens. There-
fore, the plaintiff argues, the underlying action, com-
menced by service of process on January 18, 2008, was
timely. The defendants respond that, in accordance with
this court’s holding in Bellemare v. Wachovia Mortgage
Corp., supra, 94 Conn. App. 609, the failure to release
the lis pendens did not did not constitute a continuing
course of conduct, but was a single act that occurred
on May 28, 2004. Therefore, the defendants argue, the
failure to release the lis pendens did not toll the statute
of limitations, and the plaintiff’s claim was time barred.
We agree with the defendants.
‘‘It is axiomatic that [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. . . . [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 terminated prior to commencement of the period
allowed for bringing an action for such a wrong. . . .
Where [our Supreme Court has] 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.’’ (Inter-
nal quotation marks omitted.) Id., 608.
In Bellemare, we held that the failure to release a lien
in violation of § 49-8 does not constitute a continuing
course of conduct, but, rather, is a single omission that
is not, without more, a violation of a continuing duty
for the purpose of tolling a statute of limitations. Id.,
609 (‘‘[a]lthough it may be true that the defendant never
was released of its contractual and statutory obligations
to provide a release of mortgage once the debt was
satisfied, its failure to provide the appropriate release
constituted a single omission and not an ongoing or
recurring wrongful act’’).6
Here, the defendants breached their original duty to
release a lien or attachment pursuant to § 49-8. The
plaintiff has not established that a special relationship
existed between the parties, and, as such, has not estab-
lished a continuing duty to the plaintiff as contemplated
by Bellemare. Therefore, we agree with the trial court’s
determination that the defendants’ failure to release the
lis pendens ‘‘constituted a single omission and not an
ongoing or recurring wrongful act,’’ and, consequently,
did not toll the statute of limitations. Id., 609.
The plaintiff also argues, however, that even if the
failure to remove the lis pendens did not toll the statute
of limitations, the defendants committed other, related
tortious acts within the three years prior to the com-
mencement of the underlying action, and, therefore,
engaged in a continuing course of conduct that tolled
the statute of limitations. It is ‘‘incumbent upon the
party opposing summary judgment to establish a factual
predicate from which it can be determined, as a matter
of law, that a genuine issue of material fact exists.’’
(Internal quotation marks omitted.) Iacurci v. Sax,
supra, 313 Conn. 799. In its materials in opposition to
the motion for summary judgment, the plaintiff did not
set forth sufficient facts to create a genuine issue as to
the defendants’ alleged other tortious acts, and, thus,
the plaintiff has not satisfied this burden.
In its brief to this court, the plaintiff alleged that,
within the relevant time period, the defendants tor-
tiously interfered with the plaintiff’s business expectan-
cies by (1) ‘‘refus[ing] to provide the plaintiff with
access [to the plaintiff’s property] through most of 2005
and certainly beyond January 18, 2005,’’ and (2) ‘‘contin-
uously fail[ing] to negotiate in good faith with Christo-
pher Companies up until and beyond the actual closing
in 2006.’’7 The record, however, does not support these
allegations to the degree necessary to establish that a
genuine issue of material fact exists.
The plaintiff alleges that the defendants interfered
with its ability to market and sell its property by hinder-
ing access to the property. At oral argument before this
court, however, the plaintiff’s attorney conceded that,
after the contract for sale to Christopher Companies
was signed in 2003—five years before the plaintiff com-
menced this action—the plaintiff ceased marketing the
property to other buyers. The plaintiff’s attorney also
conceded that, despite alleged access issues in 2005
and 2006, ‘‘it wasn’t that Christopher Companies was
totally, totally barred from entering the property,’’ but
that the access issues ‘‘caused concerns and questions
to arise.’’ As the trial court pointed out, however, Tullio
Bertoli, a representative from Christopher Companies,
testified at his deposition that while working on the
development plan for the property, he ‘‘didn’t have to
get on [to the property]. It did not matter to me, but
when I did get on . . . I went through the front gate.’’
He testified that he had access to the property ‘‘[a]s
needed,’’ and that when he did need to access the prop-
erty ‘‘[s]omebody let me in, I think, it was mostly David
Potter [a member of the board of directors of the defen-
dant corporation].’’ The record does not create a genu-
ine issue of fact as to tortious interference with the
plaintiff’s ability to sell its property by the defendants
hindering access during the three year period prior to
the commencement of this action.
The record also does not create a genuine issue of
fact as to the plaintiff’s allegation that the defendants
engaged in delay tactics that interfered with the sale
of the property to Christopher Companies while the
defendants were in negotiations with Christopher Com-
panies concerning its plan to develop condominiums
on the property. When Bertoli was asked about the
relationship between Christopher Companies and the
defendant corporation, he testified: ‘‘I wouldn’t say in
my mind that it was a knock-down, drag-out adversarial
[relationship], but it’s the kind of common stuff that
happens in every project. You always [have] issues that
arise.’’ In addition, although Patrick O’Keefe, a partner
in the plaintiff, stated that, in his opinion, the defendants
‘‘fail[ed] to negotiate in good faith with Christopher
Compan[ies] concerning various development issues,’’
he also stated that ‘‘[t]he only reason the sale of the
[p]roperty did not occur on or before January 15, 2004,
was the failure of [the defendants] to release the lis
pendens from the [p]roperty.’’ Over the course of his
eleven page sworn statement, O’Keefe repeated this
opinion—that the lis pendens was the only obstacle
preventing the sale to Christopher Companies—at least
four times. On this record, the plaintiff has failed to
establish that a genuine issue of material fact existed
as to the claim that the defendants engaged in bad faith
negotiations with Christopher Companies regarding its
plan to develop condominiums on the property, and
thereby interfered with the plaintiff’s ability to sell its
property.
Because the plaintiff has failed to establish a genuine
issue of material fact as to whether the defendants
engaged in any tortious acts within the three years
preceding the plaintiff’s initiation of the underlying
action, the court properly granted the defendants’
motion for summary judgment.
The judgment is affirmed.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
The plaintiff had previously developed phases I and II, but no longer
had an interest in that realty.
2
This court concluded that the case should be remanded because ‘‘the
plaintiff has set forth allegations that, if taken as true, are sufficient to
allow the plaintiff to proceed on its tortious interference with business
expectancies claim in count three.’’ PMG Land Associates, L.P. v. Harbour
Landing Condominium Assn., Inc., supra, 135 Conn. App. 718. The com-
plaint alleges that tortious acts had been committed within the three years
prior to the commencement of this action. Id., 716.
3
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.’’
4
General Statutes § 49-8 (b) provides in relevant part: ‘‘The plaintiff or
the plaintiff’s attorney shall execute and deliver a release when . . . a lis
pendens or other lien has become of no effect pursuant to section 52-326.’’
5
General Statutes § 52-322 provides in relevant part: ‘‘[w]hen the estate
of any person has been attached in any proceeding wherein a certificate of
such attachment or a copy of the writ or proceeding is required by law to
be filed in the office of the town clerk, and the plaintiff therein has received
satisfaction for the plaintiff’s claim, or final judgment has been rendered
against the plaintiff thereon, or when for any reason such attachment has
become of no effect, such plaintiff or the plaintiff’s attorney, at the request
of any person interested in the estate attached or in having the attachment
lien removed, shall file a certificate with such town clerk that such attach-
ment is dissolved and such lien removed.’’ Section 52-322 is made applicable
to lis pendens by General Statutes § 52-326, which states that ‘‘[t]he provi-
sions of sections 52-322 and 52-324 shall apply, mutatis mutandis, to any
lis pendens recorded according to the provisions of section 52-325 or any
invalid lien sought to be discharged under section 49-51.’’
6
Bellemare involved a mortgage rather than a lis pendens, but we see no
meaningful distinction for the purpose of the issue of continuing duty.
7
The plaintiff alleged several other ways in which the defendants tortiously
interfered with the plaintiff’s sale of its property, all of which occurred more
than three years prior to the plaintiff initiating the underlying action. Because
these claims are time barred, they cannot serve as the basis for the plaintiff’s
tortious interference claim, and we do not address them.