Opinion
FSTCV176032437S
08-14-2018
Manik ADVANI v. PARK MEAD CONDOMINIUM ASS’N
UNPUBLISHED OPINION
POVODATOR, JTR
Nature of the Proceeding/Background
This is essentially a follow-up to earlier litigation between the parties. The plaintiff contends that he is entitled to certain rights with respect to a storage area immediately below his condominium unit, dating back to his original acquisition of the condominium unit some 30+ years ago. An earlier action was "settled" and withdrawn, less than a year prior to commencement of this proceeding, and that earlier proceeding plays a prominent role in the motion before the court.
Currently before the court is the defendant’s motion for summary judgment. As the court is limited to considering the issues raised by the moving party, Greene v. Keating, 156 Conn.App. 854 (2015), the defendant’s formulation of the issues, and the context in which they arise, would seem to be an appropriate starting point:
Plaintiff ... filed a summons and complaint on June 15, 2017 alleging, inter alia, three counts sounding in: 1) Breach of Contract; 2) Breach of the PMCA Declaration; and 3) Quiet Title. The crux of [the plaintiff’s] claims stem from a condominium unit he purchased more than 30 years [ago] in 1985. [The plaintiff] now claims that [the defendant] has breached the 1985 agreement in failing to provide him exclusive access to a certain basement utility space below his unit and in further failing to make other improvements to the basement space.
As argued more fully herein, Plaintiff cannot succeed on any of his claims and summary judgment must enter as a matter of law for the following reasons: 1) Plaintiff’s claims are more than 30 years old and are therefore barred by any applicable statute of limitations; 2) Plaintiff’s claims are rendered legally impossible as a result of the application of the merger by deed doctrine; 3) Plaintiff’s claims were expressly released as a result of settlement agreement in another related lawsuit; and 4) after 30 years, Plaintiff’s claims are equitably barred under a theory of laches.
The plaintiff, of course, contends that the defendant is not entitled to judgment based on the record before the court.
Having identified the issues, a more detailed recitation of the essentially undisputed facts is appropriate. On July 12, 1985, a closing took place with respect to the plaintiff’s purchase of the subject condominium unit (Unit 20 South) with associated rights as designated in the contract of sale. The agreement for the sale- an excerpt having been submitted by the plaintiff as an exhibit in opposition to this motion- identified a basement space or crawl space, immediately under his unit, as a limited common element, for which a separate price was paid.
At or around the time of the closing, plaintiff’s attorney received a letter from defendant’s attorney stating that the plaintiff would receive a key to the basement door, that the defendant would build access steps to the crawl space, and would undertake various improvements. At or shortly after the closing, the plaintiff was given a key to the basement door, which the plaintiff still possesses. The defendant also provided a memo to the plaintiff stating that the key was being provided "pursuant to Northeast Utilities confirmation that its equipment was relocated out of the crawl space to the utility pole on Park Street"- along with a confirmation that access steps to the crawl space door would be constructed.
In fact, the electrical equipment owned by Northeast Utilities had not been relocated out of the crawl space such that the plaintiff could not use the storage unit at all. The defendant installed a grate to limit/prevent access, but the plaintiff continued to retain the key to the door.
Plaintiff raised the issue with the condominium’s board of directors on a number of occasions, and was told- as recently as 2013, per meeting minutes submitted by the plaintiff- that the electrical equipment would be relocated.
In 2014, the plaintiff sued both the defendant and the electrical utility. That case was withdrawn on February 6, 2017 based on a settlement reported on the record on November 30, 2016. Shortly thereafter, the electrical equipment was removed.
Focusing on the November 30, 2016 court proceeding, counsel for the defendant recited that a copy of a 1985 document on which the plaintiff relies/relied had just been provided, and there had been no opportunity to verify it. The transcript of those proceedings (submitted by the defendant in connection with this motion) indicates that the attorney for the defendant recited that the plaintiff would get everything that he was entitled to receive, although arguably qualifying that statement by reference to deeded rights (e.g., "my client will provide Mr. Advani with everything that he’s supposed to have, pursuant to what was deeded to him").
Earlier in the transcript: "But I will represent that the Condominium Association will provide Mr. Advani with what he’s supposed to have, in accordance with the- what was deeded to him on the date of the sale. Okay?"
This, in turn, was after counsel for the plaintiff had stated on the record that "[a]nd then we discussed, today, once the wires- or cables are removed, then- he was using that unit as storage. So he’ll be able to use that unit as storage again, because the cables will be out of there." After the court sought some clarification, counsel continued that "there’s like a basement unit where- it’s a storage unit where the cables are going, under his condo." There also was some discussion about the need to return the key for access to the area to the plaintiff (after the equipment was removed), given historical problems with making copies of that key.
Approximately 2 months later, the plaintiff executed a release containing the language upon which the defendant relies in part, whereby the releasor (the plaintiff) released all releasees, including the defendant and utility company, "from any and all known and unknown manner of claims, ... which releasor has, ever had or which may accrue in the future, on account of, arising out of, or relating to the removal of cables running at or near Unit 20 on the premises of the Park Mead Condominium Association" (followed by reference to the earlier litigation being terminated).
Apparently in response to the defendant’s failure to construct steps leading to the crawl space area as part of its perceived obligation under the settlement, this action was commenced.
Discussion
The generally-applicable standards for summary judgment are sufficiently well-established that they do not need to be recited in detail. See, e.g., Windsor Federal Savings & Loan Assn. v. Reliable Mechanical Contractors, LLC, 175 Conn.App. 651, 658-59 (2017). At its most basic level, summary judgment may be granted if the moving party can establish "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." (Internal quotation marks and citation, omitted.) Ferri v. Powell-Ferri, 317 Conn. 223, 228 (2015). Another simplified but helpful formulation- also from Ferri - is that the moving party has the burden of establishing "what the truth is."
The court will address the issues as presented by the defendant, in the order presented by the defendant. However, the court notes that in the course of its research (relating to the statute of limitations and/or laches), it came across a case with facts and issues that were similar, and while perhaps not controlling due to material variations in details, the case is perceived to be highly informative even where there are such differences. Vaccaro v. Shell Beach Condominium, Inc., 169 Conn.App. 21, 31-32, 148 A.3d 1123, 1133 (2016).
1. The defendant claims that the plaintiff’s action is barred by the statute of limitations. In order to prevail on a statute of limitations- any statue limitations- it is necessary to establish the initial date on which the relevant statute of limitations began to run, and the date on which the statute of limitations expired. Further, to the extent that there is or may be a claim of tolling or other exception, the moving party needs to negate any such possible exception. Usually but not always, the applicable limitations period must be identified.
The defendant starts with the breach of contract claim, asserting that this action is barred by General Statutes § 52-576 and/or § 52-581. The court can dispense with the possible applicability of the latter statute, as § 52-581 only is applicable to purely executory agreements, Hitchcock v. Union & New Haven Trust Co., 134 Conn. 246, 257-59 (1947), and more recently, see, Cacace v. Morcaldi, 37 Conn.Supp. 735, 741 (App.Sess. 1981). To the extent that there does not appear to be any issue as to performance- the plaintiff seemingly performed his obligations (paid whatever consideration was required for acquisition of the property)- the initial purchase agreement is not purely executory in nature.
A contract is executory when neither party has fully performed its contractual obligations and is executed when one party has fully performed its contractual obligations. John H. Kolb & Sons, Inc. v. G & L Excavating, Inc., 76 Conn.App. 599, 610, 821 A.2d 774, 780 (2003).
The plaintiff’s response to applicability of the contract statute of limitations is that there was a condition to the obligation as set forth in the original agreement- removal of electrical equipment- and until that was arranged and accomplished (requiring the participation of a non-party to the transaction which did not occur until 2017), there could have been no performance by the defendant. The defendant has not addressed this contention in its submission.
More persuasively, the plaintiff claims that the suit is based on a newer agreement, specifically the agreement which resolved the earlier litigation. The complaint clearly invokes the events of the last few years as of consequence, and there is no analysis suggesting that whatever obligations were incurred as part of the settlement of the earlier litigation are barred by any possibly-applicable limitations period, and particularly § 52-576. (The actual language of the release will be discussed in some detail, below.)
Note that this is closely related to the principle that an unambiguous reaffirmation of a contractual obligation is a basis on which to "restart" the statute of limitations applicable to the original claim, Zatakia v. Ecoair Corporation, 128 Conn.App. 362, 369 (2011), and the plaintiff has identified at least a material issue of fact in that regard- the settlement as well as the board meeting minutes acknowledging a need to attend to the plaintiff’s complaints.
With respect to the quiet title count, the defendant asserts the limitation period set forth in General Statutes § 52-575, a statute which is technically a statute of limitations but also is the time period that establishes adverse possession, and the defendant contends that it has established exclusive possession for the requisite period of time. It is not clear, however, how the defendant can reconcile the claim of exclusive possession with the evidence presented to the court that the plaintiff had a key to the area and that the plaintiff had been asked for use of his key to allow the utility to access the area for removal of electrical cables/equipment. In other words, if the plaintiff had a key, and the utility company acting under authority of the defendant needed to borrow the key from the plaintiff, how can the defendant’s possession be deemed exclusive with respect to any claim by the plaintiff? A need for permission or cooperation from the plaintiff, to gain access to the area in dispute, seems to be inconsistent with an ouster from control- at least for purposes of demonstrating the existence of a material issue of fact.
Further, this is one of the issues on which Vaccaro potentially is instructive. There, a unit owner sued the association in connection with a claimed right to use of a garage, also a limited common element. The court identified numerous problems associated with efforts to apply an adverse possession analysis in such a context. 169 Conn.App. 37-41. Perhaps even more fundamentally, are the rights associated with a contractual right to a limited common element, in a condominium context, properly subject to the title-based analysis of adverse possession? The defendant has tacitly assumed that to be the case, but without any real analysis. (If a "wrong" unit owner made exclusive use of a limited common element for the statutory period, would he/she be deemed to have acquired a title-based interest by virtue of adverse possession, an interest then subject to transfer to a third party?)
To the extent that the plaintiff may pursue this claim at trial, it will be his burden. In the context of this motion for summary judgment, the defendant has not raised any such issue such that the court cannot address its merits, and if it had, the burden would be on the defendant to establish its entitlement to judgment based on the absence of any material issue of fact.
More directly, Vaccaro discusses the identification of the proper statute of limitations, both in general terms (based on statutory violations without clear connections to a specific statute of limitations) as well as in the narrower and more applicable context of rights under a condominium agreement. The court discussed Bellemare v. Wachovia Mortgage Corp., 284 Conn. 193, 931 A.2d 916 (2007), also cited by the defendant. In Vaccaro, however, the court had the benefit of a more complete record, including a discussion of the contents of the controlling condominium documents, necessarily considered when evaluating whether a claimed breach related to a contractual obligation as opposed to a violation occurring in a contractual context but not implicating an actual breach of a contractual obligation. Here, the court cannot undertake such a refined analysis, thereby being forced to rely on an "it doesn’t matter which" approach to the possibly-applicable statutes of limitation. (The defendant suggests that because General Statutes § 47-278 does not specify a limitations period, a violation of the statute should be treated as a generic tort notwithstanding the reliance on rights created by contractually-based relationships.)
Probably the most recent discussion of Bellemare can be found in Bouchard v. State Employees Retirement Commission, 328 Conn. 345, 359-60, 178 A.3d 1023, 1031 (2018).
The defendant contends that the third count, claiming a breach of the Declaration, is governed by the same statutes of limitation as set forth in the discussion of breach of contract generally, with the possible additional applicability of the tort statute of limitations, General Statutes § 52-577 (see last parenthetical sentence of last paragraph). The discussion of breach of contract, above, is equally applicable here. Again, Vaccaro specifically addresses the issue of proper characterization of a breach relating to condominium instruments, but the court cannot make that refined distinction based on the record presented.
In most instances, a statute of limitations only limits the remedy available to a plaintiff, without extinguishing the underlying right, Doe v. Hartford Roman Catholic Diocesan Corp., 317 Conn. 357, 412-13, 119 A.3d 462, 500 (2015); St. Paul Travelers Companies, Inc. v. Kuehl, 299 Conn. 800, 815, 12 A.3d 852, 863 (2011). The defendant has not established conclusively that there was not a new agreement as of the settlement of the earlier litigation or otherwise a reaffirmation of an obligation sufficient to revive the period of time in which the plaintiff’s rights can be enforced. As discussed below in the context of the release as a defense, there is at least some ambiguity as to what the parties intended by their "agreement," which includes at least some basis for the plaintiff’s claim that the defendant had either re-affirmed a pre-existing obligation or assumed a new obligation- but either scenario places the statute of limitations into the "material issue of fact" category.
Notable exceptions exist where a statute creates a limitation period as well as the right, in which situation the limitations period generally is considered jurisdictional in nature.
2. The defendant next argues that the doctrine of merger by deed is a bar to all of the plaintiff’s claims. The defendant correctly cites cases discussing the concept of merger by deed, but fails to explain why it believes that the recognized caveat/condition "absent a reservation of collateral rights" is not applicable here, to the requisite level of certainty (no material issue of fact).
Furthermore, although the sales contract contained a reservation of slope rights, it is axiomatic that a deed supersedes the underlying contract. See Mongillo v. Commissioner of Transportation, 214 Conn. 225, 231, 571 A.2d 112 (1990) ("under the principle of merger by deed, the terms of the deed would automatically replace and supersede the terms of the underlying contract, absent a reservation of collateral rights"); Knight v. Breckheimer, 3 Conn.App. 487, 490, 489 A.2d 1066 (1985) ("the general rule is that acceptance of a deed in pursuance of articles of agreement for the conveyance of land is prima facie the completion of the contract; and all stipulations contained therein ... are merged in the deed although omitted therefrom" [internal quotation marks omitted] ).
In the present case, the defendant testified and the trial court determined that he specifically had authorized the removal of the reservation of slope rights from the deeds. The defendant further testified, however, that although he had explicitly so agreed, he privately assumed that he still would have the right to slope the property pursuant to § 7-31. It is undisputed that the defendant did not reveal this assumption to the plaintiff at any point during the course of the transaction. On this record, there is no basis to support the trial court’s finding that the plaintiff had actual notice of a reservation of slope rights. Powers v. Olson, 252 Conn. 98, 106-07, 742 A.2d 799, 804 (2000).
The plaintiff has submitted documents roughly contemporaneous with the closing in which the obligations upon which he now relies are recited. Those documents would seem to create at least a material issue of fact as to whether there was a "reservation of collateral rights" at the time of the closing, such that the obligations recited did not merge into the deed. The defendant fails to explain why or how such evidence does not preclude any determination, as a matter of law, that the claimed obligations merged into the deed. (To the extent that there is or may be a statute of limitations issue, that is addressed separately, as is appropriate.)
A further measure of the less than absolute quality of the merger by deed doctrine is in the quote from Knight, set forth in the passage quoted above, wherein merger by deed is characterized as a "general rule" that is "prima facie" of completion of contractual obligations.
Further, there is a question as to the extent to which a deed would encompass (recite) non-title issues (including the right to use limited common elements). The plaintiff submitted a breakdown of the cost of acquisition of the condominium unit plus limited common elements. There are three limited common elements listed on the sale breakdown (storage space, parking, and the basement/crawl space), each with a designated price component, but only one is listed on the deed. Either there was what presumably must be acknowledged to have been at least one mistake, or the deed is not a reliable repository for "everything" (all rights to limited common elements) being purchased along with the unit itself. To prevail, the moving party must remove these issues from the realm of material issue of fact, which it has not done.
3. The defendant contends that the release executed as part of the termination of prior litigation between the parties precludes the plaintiff from asserting the claims he is asserting. As recited earlier, the relevant language is that the plaintiff was releasing the defendant (and the utility company as well as all those in privity) "from any and all known and unknown manner of claims ... which releasor has, ever had or which may accrue in the future, on account of, arising out of, or relating to the removal of cables running at or near Unit 20 on the premises of the Park Mead Condominium Association."
Condensing and minimally narrowing the focus, the plaintiff released the defendant from "[all claims] on account of, arising out of, or relating to the removal of cables" from the space under the plaintiff’s unit.
The court believes that there is at least some level of potential ambiguity in this language. The transcript of the proceeding at which the agreement to terminate the litigation was placed on the record increases the level of ambiguity, to the point of possibly raising a question as to whether there actually was a meeting of the minds on all material terms, as required by Audubon Parking Associates Limited Partnership v. Barclay & Stubbs, Inc., 225 Conn. 804 (1993); see, e.g., Kidder v. Read, 150 Conn.App. 720, 729-36, 93 A.3d 599 (2014).
Ordinarily, a written withdrawal or formal settlement agreement would avoid any uncertainty, but it is clear that the parties disagree as to the intended scope of the quoted language. The plaintiff, consistent with the comments on the record in court, interpreted the settlement as effectuating the removal of the electrical equipment, such that the language of the release meant that there would and could be no further claims relating to the presence or removal of the cables. For example, given the release, the plaintiff almost certainly could not claim damages for loss of use of the space prior to removal of equipment, and almost certainly he could not claim that the presence of the cables somehow interfered with his enjoyment of his unit. Issues relating to the plaintiff’s ability to use the area after removal of the cables are not inherently within the scope of "[claims] on account of, arising out of, or relating to the removal of cables" if for no other reason than that such a claim would arise in a post-cable-removal environment rather than relating to presence or removal of cables. The completion of removal was essentially a precondition to the existence of the rights that the plaintiff seeks to vindicate, but his claim is not rooted in ("on account of, arising out of, or relating to") the removal or its consequences. Perhaps making the point more clearly, the defendant appears to be interpreting the language as barring claims relating to the space itself. Whether that is a permissible or plausible interpretation is beyond the scope of this motion; it is sufficient to state that that is not the interpretation that the court must apply, as a matter of law.
From a more practical perspective, the plaintiff clearly contemplated that he would obtain unimpeded access to the area, once the utility wires and equipment were removed; the attorney for the defendant repeatedly stated that the plaintiff would obtain the benefit of all that had been deeded to him. The language of the release does not address this discrepancy- the plaintiff released claims based on the presence or removal of the utility cables (which had precluded his use of the area) but did not release claims that he was entitled to use (exclusive use) the space once the utility had removed its equipment.
Accordingly, the court cannot conclude that there is no material issue of fact as to applicability of the release.
4. Finally, the defendant contends that there is a bar arising from the equitable concept of laches. The defendant does not explain, adequately, how an equitable doctrine such as laches can apply here, given the claimed applicability of a statute of limitations. More critically, from the perspective of a claim that might be susceptible to application of laches, there is an absence of any claimed change of position or reliance by the defendant, or any other form of prejudice, which might make it inequitable to allow any claim for relief being sought.
A conclusion that a plaintiff has been guilty of laches is one of fact for the trier and not one that can be made [as a matter of law], unless the subordinate facts found make such a conclusion inevitable ... The defense of laches, if proven, bars a plaintiff from seeking equitable relief ... First, there must have been a delay that was inexcusable, and, second, that delay must have prejudiced the defendant ... The mere lapse of time does not constitute laches ... unless it results in prejudice to the [opposing party] ... as where, for example, the [opposing party] is led to change his position with respect to the matter in question. (Internal quotation marks and citation, omitted.) Town of Glastonbury v. Metropolitan District Commission, 328 Conn. 326, 341-42, 179 A.3d 201, 210-11 (2018) (trial court decision adopted by Supreme Court and printed as "appendix" to decision).See, also, Mendillo v. Board of Education of Town of East Haddam, 246 Conn. 456, 487 n.21, 717 A.2d 1177, 1192 (1998), overruled on other grounds by Campos v. Coleman, 319 Conn. 36, 123 A.3d 854 (2015).
The defendant does not explain how this case is an exception to the general rule that laches is a factual issue for the court; it has not identified a basis on which the court must find, as a matter of law, that the plaintiff’s claims are barred by laches. This is on top of the total omission of any claim- much less evidence- of prejudice to the defendant. The defendant presumably was not prejudiced by the presence of electrical cables in the crawl space, as it tolerated their presence for approximately 30 years, and the cables (at least presumptively) were serving a purpose with respect to providing electricity to some or all unit owners. (In other words, the plaintiff may well have benefited from the delay in removal of the equipment.) Conversely, there is evidence in the form of Board meeting minutes that at least in recent times, the plaintiff brought the situation to the defendant’s attention on multiple occasions, at least creating a factual issue as to whether he delayed in asserting his rights. (There is a reference in the minutes to the action being overdue.) Once the cables were removed, he started this action (within months) after being satisfied that the defendant would not honor its obligations (as perceived by the plaintiff). Indeed, returning again to Vaccaro - and the point for which the decision first was encountered- it is at-best doubtful whether laches can be applicable, even if there is an equitable component to the relief being sought (not clearly identified). The defendant’s own discussion, in connection with earlier issues, suggests a contractual or tort-based nature of the plaintiff’s claims. Focusing on what can be characterized as a particular application or variation of the principle that !aches is inapplicable when a statute of limitations applies, the court addressed situations where it might be claimed that there is a choice: "Our case law draws a distinction where statutes of limitations are concerned between purely equitable proceedings and actions where a party can seek both legal and equitable relief. [l]n an equitable proceeding, a court may provide a remedy even though the governing statute of limitations has expired, just as it has discretion 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. "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. 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." Vaccaro, supra, 169 Conn.App. 31-32.
Thus, even if it were possible to discern an equitable component to the relief being sought, e.g., something analogous to specific performance, it is doubtful that laches could apply and there is no proffered evidence of a required element for laches (prejudice) and there is an absence of indicia that if laches might be applicable it must apply in this situation.
Conclusion
The issue before the court is not the level of persuasiveness of the arguments advanced by the plaintiff. The issue solely is whether there is a material factual issue, as to each defense identified/raised by the defendant, that suffices to defeat (preclude) summary judgment.
The court is limited to the issues raised and arguments presented by the moving party, and must construe the available evidence in a manner most favorable to the non-moving party.
The defendant has not eliminated all material issues of fact relating to the claimed application of a statute of limitations, most notably reaffirmations of the need to address the electrical cables and the extent to which the settlement of the earlier litigation might actually constitute a new agreement. It has not removed the issue of merger by deed from the realm of material issues of fact, particularly given the existence of documentation supporting a claim that there was a reservation of collateral rights (and the facial incompleteness of the deed to encompass all seemingly-conceded limited common elements). It has not established a lack of ambiguity- material issue of fact- as to the scope of the release, for the purpose to which the defendant seeks to use the release. The defendant has not established that laches might be applicable, much less has the defendant established the elements of such a claim to the requisite level of proof.
For all of these reasons, the motion for summary judgment is denied.