Opinion
No. AAN-CV-06-4006038S
December 22, 2006
MEMORANDUM OF DECISION DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT #135 #137
On March 3, 2006, the plaintiffs, Walker Manor Environmental Trust (Trust), Martha Shea (Shea), Susan Dubrow (Dubrow), Lee Dubrow (Lee), Chris Wrinn (Wrinn) and David Wiemer (Wiemer), filed an application for a temporary injunction and an order to show cause against the defendant, Oyster Landing Condominium Association (Oyster Landing). Therein, the plaintiffs allege that Oyster Landing maintains a nuisance, namely, a surface and subsurface water drainage structure. According to the plaintiffs, Oyster Landing's failure to maintain the drainage structure caused flooding to the plaintiffs' properties. Pursuant to General Statutes § 52-472 et seq., and General Statutes § 22a-16, part of the Connecticut Environmental Protection Act (CEPA), the plaintiffs requested an order requiring Oyster Landing to abate the nuisance by performing maintenance on the drainage structure. In addition to the application for temporary injunction and order to show cause, the plaintiffs also filed a four-count complaint against Oyster Landing seeking a permanent injunction, money damages, attorneys fees and any other relief the court deems equitable.
General Statutes § 52-472 provides: "No temporary injunction may be granted, except in favor of the state or of a public officer thereof in respect to any matter of a public nature, until the party making application therefor gives bond, with surety satisfactory to the court or judge granting the injunction, to the opposite party, to answer all damages in case the plaintiff fails to prosecute the action in which the injunction is applied for to effect; provided a bond need not be required when, for good cause shown, the court or a judge is of the opinion that a temporary injunction ought to issue without bond."
General Statutes § 22a-16 provides in part: "any person, partnership, corporation, association, organization or other legal entity may maintain an action in the superior court for the judicial district wherein the defendant is located, resides or conducts business . . . for declaratory and equitable relief against the state, any political subdivision thereof . . . any person, partnership, corporation, association, organization or other legal entity, acting alone, or in combination with others, for the protection of the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction . . ."
Thereafter, the court ordered that all parties who potentially have an interest in the litigation be brought into the case. Pursuant to the court's order, the plaintiffs filed a motion to cite in Oyster Landing Beach Club Association, Inc. (Beach Club) as an additional defendant. The plaintiffs also filed a second amended complaint in which they added claims against Beach Club, Gary Opin and the town of Milford. Therein, in count one which contains the plaintiffs' claims against Oyster Landing, they allege the following.
Oyster Landing is, pursuant to General Statutes § 47-80a, the association for the condominium unit owners. The Trust is a voluntary association of citizens residing and/or owning property in Milford, Connecticut, concerned with maintaining the integrity of Milford's natural resources including its hydrology. Shea, Wrinn, Dubrow and Lee, live on property located on Harborview Avenue, Milford and but for the water drainage nuisance created by Oyster Landing, these plaintiffs benefit from the peaceable enjoyment of their property.
The drainage structure impeding Shea, Wrinn, Dubrow and Lee's enjoyment of their property runs along the northerly end of Oyster Landing and is a man-made structure. It replaced a tidal creek that had provided natural drainage to the area where the plaintiffs live. Oyster Landing filled the creek to provide itself with more land upon which it could build. Oyster Landing has failed to maintain the drainage structure, and this failure has unreasonably interfered with the plaintiffs' quiet enjoyment of their property because the water which previously ran through the creek now intrudes into their residences thereby creating a flooding nuisance. In addition, Oyster Landing's failure to maintain the drainage structure has created a public nuisance. Despite numerous requests, Oyster Landing has continually failed, refused and neglected to perform the appropriate maintenance to abate the nuisance conditions. Furthermore, Milford has issued orders to Oyster Landing to perform maintenance on the drainage structure, however, Oyster Landing still failed to abate the nuisance. The flooding conditions created by the nuisance continue to worsen and, if not enjoined, the public trust in the natural resources of Connecticut and the plaintiffs' use and enjoyment of the area will be irreparably harmed. Furthermore, as a result of the nuisance, pursuant to § 22a-16, the public trust in the natural resources of the Connecticut have been, and will continue to be unreasonably impaired.
In count five, which is directed against Milford, the plaintiffs incorporate by reference the allegations of count one and further allege that Milford is a municipal corporation which has or may have an interest in this litigation by virtue of its ownership in a right of way adjacent to the drainage structure and portions of the drainage structure may lie within that right of way. In addition, to the extent that Milford has allowed or permitted the drainage structure and nuisance to be created and maintained on city property, Milford should be enjoined from maintaining the conditions complained of and directed to abate the nuisance.
In count six, which is directed against Opin, the plaintiffs incorporate by reference the allegations of count one and further allege that Opin owns property adjacent to the drainage structure and may have an interest in this litigation by virtue of that ownership. In addition, Opin may own property upon which portions of the drainage ditch may lie and, to the extent that he has allowed, aquiesced or permitted the drainage structure and nuisance condition to be created and maintained on his property, he should be enjoined from maintaining the conditions and directed to abate the nuisance.
In the plaintiffs' demand for relief they request a temporary and permanent injunction, money damages, reasonable attorneys fees and "[a]ny other relief the court in its equitable discretion deems proper." Additionally, the plaintiffs' statement of amount in demand states: "The plaintiffs though their complaint claim equitable relief in the form of an injunction and damages in excess of $15,000.00 exclusive of attorneys fees, interest and costs." On July 5, 2006, the court entered a scheduling order in which it required the parties file summary judgment motions by August 18, 2006. On August 18, 2006, both Milford and Opin filed motions for summary judgment. The plaintiffs opposed both motions and the court heard oral argument at short calendar on December 4, 2006.
DISCUSSION
"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." (Internal quotation marks omitted.) Neuhaus v. DeCholnoky, 280 Conn. 190, 199, 905 A.2d 1135 (2006). "In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318, 901 A.2d 1207 (2006). "Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Id., 319.
In Milford's motion, the town argues that the plaintiffs have not "produced a scintilla of evidence that could support their claim for nuisance against the city." Milford claims that it merely issued permits for the drainage ditch's improvement which were not complied with and that it is entitled to judgment as a matter of law on count five of the plaintiffs' complaint because it did not create or maintain the nuisance. Milford also argues that the plaintiffs' action is barred by General Statutes § 52-577 and the equitable doctrine of laches. In support, Milford attaches numerous items to its memorandum.
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."
Useful to note is the language set forth in New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005), wherein the Appellate Court stated, "before a document may be considered by the court in support of a motion for summary judgment, `there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be. The requirement of authentication applies to all types of evidence, including writings . . .' Conn. Code Evid. § 9-1(a), commentary. Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be."
In Opin's motion for summary judgment, he argues that count six is deficient because it attempts to combine a common-law nuisance claim with a CEPA claim. In addition, Opin argues that summary judgment should enter in his favor because the complaint fails to allege any conduct on the part of defendant Opin which would lead to liability. Opin also argues that the plaintiffs lack standing to assert this claim against Opin pursuant to CEPA. In support, Opin attaches a deed without an attached Schedule A identified therein, and an affidavit from Opin in which he attests that he purchased the property known as 30 Edgewater Place in Milford, Connecticut on or around December 1, 2003. He also attests that he did not construct the drainage structure and, up until the time of the plaintiffs' complaint, he was unaware of any damages suffered by them.
In reply to Milford and Opin's motions, the plaintiffs argue that Milford is part owner of the nuisance, it is a necessary party, the court has jurisdiction over the plaintiffs' CEPA claim, § 52-577 does not apply to equitable claims made under CEPA, and laches does not bar the plaintiffs' action.
With regard to the plaintiffs' CEPA claims, our Supreme Court has explained "that § 22a-16 permits any private party, including a municipality, to seek injunctive relief for the protection of the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction . . . [The] invocation of [CEPA] is not [however] an open sesame for standing to raise environmental claims with regard to any and all environmental legislation." (Internal quotation marks omitted.) Connecticut Coalition Against Millstone v. Rocque, 267 Conn. 116, 132, 836 A.2d 414 (2003). "[T]o establish a prima facie case under § 22a-16, the plaintiff must establish that the conduct of the defendant, acting alone, or in combination with others, has, or is reasonably likely unreasonably to pollute . . . the public trust in the . . . water of the state . . . [A] claim under CEPA that conduct causes unreasonable pollution is not the same as a claim that conduct fails to comply with the requirements of other environmental statutes. To illustrate the point, the fact that conduct may be permitted under the relevant environmental statute does not preclude a claim that the activity causes unreasonable pollution under CEPA, as when the alleged pollution exceeds the amount approved in the permit. Conversely, a claim that conduct is not properly authorized does not necessarily establish that the conduct causes unreasonable pollution under CEPA." (Internal quotation marks omitted.) Id., 140-41.
With regard to the plaintiffs' nuisance claims, the court initially recognizes that our appellate courts have stated, "[w]hether the elements necessary to establish a claim of nuisance have been proven is . . . a question of fact which is ordinarily determined by the trier of fact." (Internal quotation marks omitted.) Tomasso Bros., Inc. v. October Twenty-Four, Inc., 221 Conn. 194, 197, 602 A.2d 1011 (1992); see Couture v. Board of Education, 6 Conn.App. 309, 314, 505 A.2d 432 (1986); Heilig v. Le Quire, 4 Conn.App. 125, 127, 492 A.2d 542 (1985). Furthermore, our Supreme Court has recognized that "[o]ur case law has established no bright-line test to determine when a defendant's connection to a particular parcel of property suffices to make it an unreasonable or unlawful `user' of that property. While the defendant in a nuisance action frequently is the owner of the property alleged to be the source of nuisance . . . property ownership is not a prerequisite to nuisance liability." (Citations omitted.) State v. Tippetts-Abbett-McCarthy-Stratton, 204 Conn. 177, 183-84, 527 A.2d 688 (1987). This court also acknowledges that our Supreme Court has stated that "[t]here is perhaps no more impenetrable jungle in the entire law than that which surrounds the word nuisance." (Internal quotation marks omitted.) Pestey v. Cushman, 259 Conn. 345, 355, 788 A.2d 496 (2002). In fact, it has been said that the "term `nuisance' defies concise definition suitable for general use." Carabetta v. Meriden, 145 Conn. 338, 340, 142 A.2d 727 (1958).
Adding to the difficulty of our nuisance law, is the fact that our cases have identified many different nuisance classifications including: public nuisance; see Pestey v. Cushman, supra, 259 Conn. 357; private nuisance; see id.; absolute nuisance; see Carabetta v. Meriden, supra, 145 Conn. 340; negligent nuisance; see id., 340-41; temporary nuisance; Filisko v. Bridgeport Hydraulic Co., 176 Conn. 33, 40, 404 A.2d 889 (1978); permanent nuisance; id.; nuisance per se; Wood v. Wilton, 156 Conn. 304, 310, 240 A.2d 904 (1968); and, nuisance in fact. Id. Although seemingly innocuous modifiers of the word nuisance, these classifications carry acutely different legal implications. For example, issues may arise regarding the amount of damages flowing from a permanent nuisance as opposed to a temporary nuisance; see Filisko v. Bridgeport Hydraulic Co., supra, 40; see also, Kinsale, LLC v. Tombari, 95 Conn.App. 472, 476 n. 4, 897 A.2d 646 (2006); and a defense of contributory negligence may be asserted against a negligent nuisance claim but not an absolute nuisance claim. See Kostyal v. Cass, 163 Conn. 92, 99, 302 A.2d 121 (1972) (contributory negligence not a defense to an absolute nuisance, but is viable defense against negligent nuisance). In addition, a leading treatise explains that the distinctions between "nuisance per se and a nuisance in fact lies in the proof, not the remedy. The existence of a nuisance in fact is a question for the trier of fact, which may or may not find the existence of a nuisance from proof of the act and its consequences." 58 Am.Jur.2d, Nuisance 586, § 21 (2002). This treatise also states that the distinction between a permanent nuisance and a temporary nuisance "is significant with regard to remedies available, the availability of single or successive actions, limitations periods applicable, and the measure of damages available." (Emphasis added.) 58 Am.Jur.2d, Nuisance 587, § 24 (2002). Moreover, our Supreme Court has clarified that the distinction between a public nuisance and a private nuisance is significant in that the elements of these two causes of action differ. Pestey v. Cushman, supra. 259 Conn. 357.
In Pestey v. Cushman, 259 Conn. 345, 788 A.2d 496 (2002), our Supreme Court analyzed public nuisance and private nuisance stating the following: "This court has stated often that a plaintiff must prove four elements to succeed in a nuisance cause of action: (1) the condition complained of had a natural tendency to create danger and inflict injury upon person or property; (2) the danger created was a continuing one; (3) the use of the land was unreasonable or unlawful; [and] (4) the existence of the nuisance was the proximate cause of the plaintiffs' injuries and damages." (Internal quotation marks omitted.) Id., 355. For the most part, "[t]hese elements developed through a long line of cases that can be described best as public nuisance cases." (Emphasis added.) Id., 356. "Despite its grounding in public nuisance law, [however] this four factor analysis has . . . been applied without distinction to both public and private nuisance causes of action." (Emphasis added.) Id.
"Although there are some similarities between a public and a private nuisance, the two causes of action are distinct . . . Public nuisance law is concerned with the interference with a public right, and cases in this realm typically involve conduct that allegedly interferes with the public health and safety." (Emphasis added; citation omitted.) Id., 357. "Private nuisance law, on the other hand, is concerned with conduct that interferes with an individual's private right to the use and enjoyment of his or her land. Showing the existence of a condition detrimental to the public safety, or, as the first two elements of the four factor analysis discussed previously require, showing that the condition complained of had a natural tendency to create a continuing danger, is often irrelevant to a private nuisance claim. In light of the fundamental differences between these two distinct causes of action . . . attempts to employ the four part test discussed previously herein in the assessment of private nuisance causes of action would be imprudent; private nuisance claims simply do not fit comfortably within the same analytical rubric as public nuisance claims." Id.
In Pestey, the Supreme Court adopted the language of the Restatement (Second) of Torts which provides that in order to prevail on a claim for damages in common-law private nuisance, "a plaintiff must prove that: (1) there was an invasion of the plaintiff's use and enjoyment of his or her property; (2) the defendant's conduct was the proximate cause of the invasion; and (3) the invasion was either intentional and unreasonable, or unintentional and the defendant's conduct was negligent or reckless . . . Although the language used in this third element does not make the point clearly, under this test, showing unreasonableness is an essential element of a private nuisance cause of action based on negligence or recklessness." (Citation omitted.) Id., 358.
The Pestey court also "conclude[d] that in order to recover damages in a common-law private nuisance cause of action, a plaintiff must show that the defendant's conduct was the proximate cause of an unreasonable interference with the plaintiff's use and enjoyment of his or her property. The interference may be either intentional . . . or the result of the defendant's negligence . . . Whether the interference is unreasonable depends upon a balancing of the interests involved under the circumstances of each individual case. In balancing the interests, the fact finder must take into consideration all relevant factors, including the nature of both the interfering use and the use and enjoyment invaded, the nature, extent and duration of the interference, the suitability for the locality of both the interfering conduct and the particular use and enjoyment invaded, whether the defendant is taking all feasible precautions to avoid any unnecessary interference with the plaintiff's use and enjoyment of his or her property, and any other factors that the fact finder deems relevant to the question of whether the interference is unreasonable. No one factor should dominate this balancing of interests; all relevant factors must be considered in determining whether the interference is unreasonable." (Citations omitted; emphasis added.) Id., 360-61. In addition, the "determination of whether the interference is unreasonable should be made in light of the fact that some level of interference is inherent in modern society. There are few, if any, places remaining where an individual may rest assured that he will be able to use and enjoy his property free from all interference. Accordingly, the interference must be substantial to be unreasonable." Id., 361. "Ultimately, the question of reasonableness is whether the interference is beyond that which the plaintiff should bear, under all of the circumstances of the particular case, without being compensated." Id., 362.
While, the Pestey case has, to some extent, clarified the difference between public and private nuisance, other intricacies add to this obfuscating legal landscape. For example, "where absolute public nuisance is alleged, the plaintiff's burden includes two other elements of proof: (1) that the condition or conduct complained of interfered with a right common to the general public . . . and (2) that the alleged nuisance was absolute, that is, that the defendants' intentional conduct, rather than their negligence, caused the condition deemed to be a nuisance." (Citations omitted.) State v. Tippetts-Abbett-McCarthy-Stratton, supra, 204 Conn. 183. Furthermore, when asserting a public nuisance claim against a municipality, the law requires that "the plaintiff must prove that the defendants, by some positive act, intentionally created the conditions alleged to constitute a nuisance." Elliott v. Waterbury, 245 Conn. 385, 421, 715 A.2d 27 (1998); see also Keeney v. Old Saybrook, 237 Conn. 135, 164, 676 A.2d 795 (1996) (liability against municipality can only be imposed in event that if condition constitutes nuisance, it was created by some positive act of municipality). The intricacies of nuisance law do not, however, stop there. In the context of environmental pollution, an exception to the public nuisance creation requirement exists and a "municipality may be liable for a public nuisance that it intentionally creates through its prolonged and deliberate failure to act to abate that nuisance." Keeney v. Saybrook, supra, 237 Conn. 166.
In the present case, the party's pleadings, motions and memoranda mirror the previously set forth enigmatic law of nuisance. In count one of the complaint, the plaintiffs, five individuals and one trust, appear to allege three different causes of action including private nuisance, public nuisance, and a CEPA claim against Oyster Landing. In counts five and six, asserted against Milford and Opin respectively, the plaintiffs incorporate paragraphs one thorough fifteen of count one, thereby apparently alleging those same three causes of action against Milford and Opin.
Alleging three causes of action in a count against one defendant and incorporating those three causes of action in a separate count against a second defendant poses a procedural hurdle for the second defendant's motion for summary judgment in that there is no appellate authority as to whether "a court can permit summary judgment against a party relative to individual allegations within a single count of a complaint. At the trial court level there is a split of authority on the issue. A review of the decisions finds that the majority of cases do not allow a party to eliminate some, but not all, of the allegations of a single count through a motion for summary judgment." Snodgrass v. Mulhearn, Superior Court, judicial district of New Britain, Docket No. CV 03 0523029 (May 18, 2006, Shaban, J.). Some trial courts have found, however, that the "language of Practice Book § 17-51 . . . authorizes the entry of summary judgment on a part of a claim within a single count provided final judgment can be entered with respect to that part of the claim and it can be severed from the remainder of the claim." Pelletier v. Sordoni/Skanska Construction Co., Superior Court, complex litigation docket at Waterbury, Docket No. X06 CV 95 0155184 (May 5, 2005, Alander, J.) ( 39 Conn. L. Rptr. 302). The parties have not, however, addressed this issue and both motions for summary judgment refer to counts five and six as the plaintiffs' sole claim against them.
Moreover, while the plaintiffs' complaint appears to set forth multiple causes of action, their memorandum in opposition does not delineate what these actions are. The plaintiffs' memorandum in opposition to Milford's motion is based "on the grounds that there are many material issues of fact which remain to be tried in this matter, including whether the city of Milford is maintaining a condition upon its property that is causing unreasonable harm to the environment and therefore subject to an equitable order of injunction requiring it to participate in the remediation of the problem alleged in the complaint." In their memorandum of law in opposition to Opin's motion the plaintiffs seem only to focus on the CEPA cause of action as the memorandum is predicated "on the grounds that there are many material issues of fact which remain to be tried in this equitable injunction matter under CEPA § 22a-16, including whether Gary Opin is maintaining a condition upon his property that is causing unreasonable harm to the environment and therefore subject to an equitable order of injunction requiring him to participate in the remediation of the problem alleged in the complaint."
It is apparent from the complaint as well as the parties' arguments that confusion exists as to what causes of action the plaintiffs are asserting and to which defendants the claims apply. This confusion, in conjunction with the unaddressed procedural hurdle, the impenetrable nuisance jungle and the court's order requiring the plaintiff cite in necessary parties makes summary judgment particularly inappropriate at this time. The court, therefore, denies the defendants' motions for summary judgment without prejudice. In accordance with Practice Book § 10-1 and in an attempt to render complete justice through the invocation of this court's equitable jurisdiction; see Morgera v. Chiappardi, 74 Conn.App. 442, 459, 813 A.2d 89 (2003); the court orders the plaintiffs to provide it with a more particular statement of what claims they are asserting against Milford and Opin. See Hay v. DeLaney, Superior Court, judicial district of New Haven, Docket No. CV 02 0467370 (October 10, 2003, Harper, J.) (pursuant to Practice Book § 10-1, plaintiff directed to draft new complaint setting forth separate and distinct causes of action against each defendant and defendant's motion for summary judgment denied without prejudice). As such, the plaintiffs are hereby ordered to amend their complaint to specify what causes of action they are asserting against each defendant. Thereafter, the defendants may file motions for summary judgment to address those particular claims.
Practice Book § 10-1 provides in relevant part: "If any such pleading does not fully disclose the ground of claim or defense, the judicial authority may order a fuller and more particular statement; and, if in the opinion of the judicial authority the pleadings do not sufficiently define the issues in dispute, it may direct the parties to prepare other issues, and such issues shall, if the parties differ, be settled by the judicial authority."
Pursuant to this order the court remains fully cognizant that Practice Book § 17-44 requires that a "party must obtain the judicial authority's permission to file a motion for summary judgment after the case has been assigned for trial"; and the recent Supreme Court case in which the Supreme Court "conclude[d] that the use of a motion for summary judgment to challenge the legal sufficiency of a complaint is appropriate when the complaint fails to set forth a cause of action and the defendant can establish that the defect could not be cured by repleading." (Emphasis added.) Larobina v. McDonald, 274 Conn. 394, 401, 876 A.2d 522 (2005).