Opinion
No. CV04-0182595
October 12, 2004
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT #108
The plaintiff's cause of action is before the court by way of an amended complaint in three counts. The first count is premised on a claim of a violation of General Statutes § 49-8. The second count alleges a violation of the Connecticut Unfair Trade Practices Act, General Statutes §§ 42a-110a et seq. The third count is based on the common-law claim of breach of the covenant of good faith and fair dealing.
The defendant has moved to have summary judgment entered on all three counts for the reason that the plaintiff's causes of action are barred by the applicable statute of limitations as to each count.
The salient facts are that on or about May 31, 1998 the plaintiff was the owner of real estate located in Waterbury, Connecticut. On said date, the plaintiff sold the real estate which was encumbered by a mortgage which was owned by the defendant/bank. The plaintiff, through her attorney, received a payoff statement from the defendant to pay off the mortgage. The pay off amount was forwarded to the defendant on June 18, 1998 by plaintiff's counsel. The plaintiff claims she did not receive a release of mortgage from the defendant. The plaintiff commenced this action with a return date of January 27, 2004.
The court first reviews the standards it must apply in deciding a motion for summary judgment. 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." Practice Book § 17-49; H.O.R.S.E. of Connecticut, Inc. v. Washington, 258 Conn. 553, 559 (2001); Alvarez v. New Haven Register, Inc., 249 Conn. 709, 714 (1991); CT Page 15457 Nicholas v. Lighthouse Restaurant, Inc., 246 Conn. 156, 163 (1998); Peerless Ins. Co. v. Gonzalez, 241 Conn. 476, 481 (1997); see Sherwood v. Danbury Hospital, 252 Conn. 193, 201 (2000); Rivera v. Double A. Transportation, Inc., 248 Conn. 21, 24 (1999).
The party moving for summary judgment bears the burden of proving the absence of a dispute as to any material fact which, under applicable principles of substantive law, entitles 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. H.O.R.S.E. of Connecticut, Inc. v. Washington, 258 Conn. 553, 559 (2001); Rivera v. Double A. Transportation, Inc., supra, 248 Conn. 24. "To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact." Witt v. St. Vincent's Medical Center, 242 Conn. 363, 372 n. 7 (2000). "Although, the moving party must show the nonexistence of any material fact, an opposing party must substantiate its adverse claims by showing there is a genuine issue of material fact along with the evidence disclosing the existence of such an issue." Paul Revere Life Ins. Co. v. Pastena, 52 Conn.App. 318, 322, cert. denied, 248 Conn. 917 (1999).
"In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. The test is whether a party would be entitled to a directed verdict on the same facts." Sherwood v. Danbury Hospital, supra, 252 Conn. 201; Serrano v. Burns, 248 Conn. 419, 424 (1999); Connell v. Colwell, 214 Conn. 242, 246-47 (1990); Forte v. Citicorp Mortgage, Inc., 66 Conn.App. 475, 482 (2001). In Connecticut, a directed verdict may be rendered only if, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed. United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 380 (1969); Vuono v. Eldred, 155 Conn. 704, 705 (1967) "In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500 (1988); Telesco v. Telesco, 187 Conn. 715, 718 (1982). "Summary judgment may be granted where the claim is barred by the statute of limitations." Doty v. Mucci, 238 Conn. 800, 806 (1996); Navin v. Essex Savings Bank, 82 Conn.App. 255, 258 (2004).
The court will review each count separately and determine whether the applicable statute of limitations applies to that count.
The First count alleges that the defendant failed to provide a release of mortgage after payoff funds were forwarded to the defendant by the plaintiff on June 18, 1998. Therefore, the plaintiff claims she is certified to damages pursuant to General Statutes § 49-8.
The pertinent provision of General Statutes § 49-8 is subsection (c) which states:
(c) The mortgagee or plaintiff or the plaintiff's attorney, as the case may be, shall execute and deliver a release within sixty days from the date a written request for a release of such encumbrance (1) was sent to such mortgagee, plaintiff or plaintiff's attorney at the person's last-known address by registered or certified mail, postage prepaid, return receipt requested or (2) was received by such mortgagee, plaintiff or plaintiff's attorney from a private messenger or courier service or through any means of communication, including electronic communication, reasonably calculated to give the person the written request or a copy of it. The mortgagee or plaintiff shall be liable for damages to any person aggrieved at the rate of two hundred dollars for each week after the expiration of such sixty days up to a maximum of five thousand dollars or in an amount equal to the loss sustained by such aggrieved person as a result of the failure of the mortgagee or plaintiff or the plaintiff's attorney to execute and deliver a release, whichever is greater, plus costs and reasonable attorneys fees.
In Lind-Larsen v. Fleet National Bank of Connecticut, 84 Conn.App. 1 (2004), the Appellate Court confirmed the trial court decision by Judge Sheldon in CV97-0159662 (June 26, 2002).
The conclusion reached by Judge Sheldon was that General Statutes § 49-8 creates a statutory cause of action for damages arising from the mortgagee's refusal to release a mortgage as specified within the statute and therefore, such an action is founded upon tort. The court further concluded that the applicable statute of limitations for an action brought under General Statutes § 49-8 is three years applying General Statutes § 52-577; the tort statute of limitations.
General Statutes § 52-577. Action founded upon a tort. No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.
In this action, the plaintiff alleges that the defendant is liable under General Statutes § 49-8 for damages due to the defendant's failure to provide a release within sixty days of the payoff being forwarded to the defendant on June 18, 1998. Due to the fact that the plaintiff did not commence this action until January 27, 2004, the court concludes that the plaintiff failed to commence this action within three years of the act or omission complained of as required by the statute of limitations. The court grants summary judgment on behalf of the defendant as to the First Count of Plaintiff's Amended Complaint.
The Second Count of Plaintiff's Amended Complaint alleges all the same facts from the First Count and further alleges that these facts establish a claim under General Statutes §§ 42-110a et seq., the Connecticut Unfair Trade Practices Act (CUTPA).
The salient section of CUTPA which applies to this action is General Statutes § 42-110g and the pertinent subsections are (a) and (f) which state the following:
(a) Any person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42-110b, may bring an action in the judicial district in which the plaintiff or defendant resides or has his principal place of business or is doing business, to recover actual damages. Proof of public interest or public injury shall not be required in any action brought under this section. The court may, in its discretion, award punitive damages and may provide such equitable relief as it deems necessary or proper.
(f) An action under this section may not be brought more than three years after the occurrence of a violation of this chapter.
The court in reviewing the viability of the Second Count of plaintiff's Amended Complaint, once again concludes from the facts alleged by the plaintiff; that the plaintiff did commence this action more than three years after the occurrence complained of, which is beyond the CUTPA statute of limitations. Therefore, as to the plaintiff's CUTPA claim alleged in the Second Count, the court grants the defendant summary judgment for the plaintiff's failure to bring this claim within the three-year time frame of the statute of limitations. See Navin v. Essex Savings Bank, 82 Conn.App. 225 (2004).
The Third Count of the plaintiff's Amended Complaint once again incorporates the facts from the First Count and then further alleges and claims that the plaintiff and the defendant were contractually bound and therefore, the defendant's actions violated the implied covenant of good faith and fair dealing.
This court again looks to Lind-Larsen v. Fleet National Bank of Connecticut, 84 Conn.App. 1 (2004). In Lind-Larsen, the plaintiff couched one of its counts as a breach of contract claim. As noted earlier, the Lind-Larsen case was based on a claim by the plaintiff against the defendant for failure to provide a timely release of mortgage. In Lind-Larsen, the Appellate Court concluded ". . . that the cause of action in the plaintiff's fifth count [the breach of contract count] is most closely reflective of tortious conduct arising out of negligent performance or nonperformance of a contractual duty. As such, this count is subject to the three year limitation . . ." Id. At pp. 16-17.
The court's analysis is that although the plaintiff alleges in the Third Court of her Amended Complaint a claim of violation of the implied covenant of good faith and fair dealing, that the Third Count incorporates the allegations of the First Court. The First count alleges a tort cause action. Although the Third Count sounds in contract, the allegations therein are reflective of tortious conduct. Therefore, the three-year statute of limitations for tort actions would apply.
The court in Nevin v. Essex Savings Bank, 82 Conn.App. 255, 260-61 (2004), provides guidance on the reason for statute of limitations:
A statute of limitation or of repose is designed to (1) prevent the unexpected enforcement of stale and fraudulent claims by allowing persons after the lapse of a reasonable time, to plan their affairs with a reasonable degree of certainty, free from the disruptive burden of protracted and unknown potential liability, and (2) to aid in the search for truth that may be impaired by the loss of evidence, whether by death or disappearance of witnesses, fading memories, disappearance of documents or otherwise. (Internal quotation marks omitted.) DeLeo v. Nusbaum, 263 Conn. 588, 596, 821 A.2d 744 (2003). Additionally, statutes of limitation promote the public policy of advancing the finality of litigation. See Rosario v. Hasak, 50 Conn.App. 632, 638, 718 A.2d 505 (1998).
The Nevin court further confirms ". . . that the only facts material to the trial court's decision on a motion for summary judgment are the date of the wrongful conduct alleged in the complaint and the date the action was filed." Id., at p. 259.
This court, therefore grants the Defendant's Motion for Summary Judgment as to the Plaintiff's Third Count of her Amended Complaint.
The court's granting of summary judgment as to all three counts of the Plaintiff's Amended Complaint on the basis of failing to commence the causes of action within the applicable statute of limitations is dispositive of this case. Therefore, the court does not reach the issues raised by the plaintiff's cross motion for summary judgment or the defendant's supplemental motion for summary judgment.
AGATI, J.