Sung–Ho Hwang v. Turtle Bay Master Association, Inc. (2013)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT # 126

On November 1, 2012, the plaintiff, Sung–Ho Hwang, commenced this action by service of process on the defendant, Turtle Bay Master Association, Inc. In the fourth amended complaint, the plaintiff alleges the following facts.   The plaintiff is the current owner of Turtle Bay Master condominium unit 181 (the condominium), which is located in Branford, Connecticut.   The defendant is an association consisting of individual condominium unit owners that makes decisions regarding the maintenance of the condominium buildings and the surrounding grounds.   On or about fall of 2010, the plaintiff had new front and rear doors installed at his condominium.   On or about January 9, 2012, the plaintiff received a letter indicating that such doors were non-conforming and, accordingly, the plaintiff made an application for variance to the Turtle Bay Master Association board (the board), which was denied.   The plaintiff was not afforded an opportunity to attend the meeting at which the variance request was denied and was further denied this right, despite his subsequent pleas to be heard.   On or about October 16, 2012, the defendant sent a letter informing the plaintiff that it was imposing upon the plaintiff a non-compliance fine of $25 per day, which would be applied retroactively starting March 1, 2012.   Based upon these alleged facts, the plaintiff alleges in count one that the defendant has violated the Common Interest Ownership Act (CIOA), General Statutes § 47–200 et seq., by denying the plaintiff the opportunity to be heard and also by imposing an unreasonable fine in light of the fact that other condominium owners have nonconforming doors.   In count two, the plaintiff alleges that the defendant is governed by the association bylaws and that the defendant violated various provisions of such bylaws, amounting to a breach of contract.¹

On September 4, 2013, the plaintiff filed a partial motion for summary judgment on counts one and two of the fourth amended complaint on the ground that there is no genuine issue of material fact as to whether the plaintiff's doors were conforming.   In the memorandum filed in support of his motion, the plaintiff claims that the defendant admitted in an interrogatory that the doors in question were conforming.   Based upon this admission, the plaintiff argues that there is no genuine issue of material fact as to the defendant's liability.   On October 30, 2013, the defendant filed an objection to the plaintiff's motion wherein the defendant argues that the defendant made no such admission in the interrogatory and therefore that summary judgment would not be proper.   The parties were heard at short calendar on November 4, 2013.

“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.)  Brooks v. Sweeney, 299 Conn. 196, 210, 9 A.3d 347 (2010).  “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.   The courts hold the movant to a strict standard.   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 ․ As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ․ When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ․ 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.)   Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).

Attached as evidence to the plaintiff's motion is exhibit A, which contains the defendant's answers to the plaintiff's interrogatories.   The sole basis for the plaintiff's claim that the defendant has admitted that the plaintiff's doors were conforming is the defendant's answer to interrogatory number six.   Interrogatory number six asked the defendant to “[l]ist all non-conforming doors or windows at Turtle Bay specifying the name of the owner, unit number, date of instillation [sic], and whether or not a variance was ever approved.”   The defendant first responded to this interrogatory with the following objection:  “This interrogatory is vague as to the terms ‘non-conforming’ and ‘variance,’ as they are not defined and is confusing as to the term ‘instillation,’ as it is unknown how a door or window can be subject to instillation.   Further, this interrogatory seeks information that is not relevant to the instant action and is confusing as it is unclear as to who approved the variance.   Additionally the temporal scope is overly broad as it is not defined.”   The defendant then noted its answer as follows:  “Subject to the foregoing objection and without waiving said objection, unknown.”

From these responses, the plaintiff curiously claims defendant's apparent “admission” that it did not know of any non-conforming doors at Turtle Bay is equivalent to an admission that the plaintiff's doors are conforming.   The plaintiff has misinterpreted the defendant's response to interrogatory number six because it is plain that the defendant's answer “unknown” was subject to its objection that the plaintiff's interrogatory was unclear, therefore, this court will not equate the defendant's answer of “unknown” to an admission that the plaintiff's doors were conforming.

Moreover, the defendant has provided evidence from which this court can confidently conclude that there is an issue of fact remaining as to whether the doors were conforming.   The defendant has attached a letter written to the plaintiff, which informs him that the front and back doors recently installed do not match the approved specifications of the defendant association.   Defendant's Exhibit A. The defendant also provides this court with a letter, which is dated February 7, 2012, wherein the plaintiff arguably acknowledges to the defendant that his doors are non-conforming.²  Defendant's Exhibit C.

Finally, our state Supreme Court has opined that “[i]t is true that ordinarily a response to a discovery interrogatory is not a judicial admission, and is not, therefore, conclusive on the party making it.”  Howat v. Passaretti, 11 Conn.App. 518, 525, 528 A.2d 834 (1987);  see also Rego v. Connecticut Ins. Placement Facility, 219 Conn. 339, 349 n.8, 593 A.2d 491 (1991) (“[W]e have held that ordinarily a response to a discovery interrogatory is not a judicial admission and is not conclusive on the party making it”).

Based upon the foregoing considerations, the plaintiff has failed to sustain his burden of demonstrating that there is no genuine issue of material fact as to the defendant's liability on counts one and two.   The plaintiff's motion is hereby denied.

BY THE COURT

Jack W. Fischer, Judge

FOOTNOTES

FN1. Inasmuch as the plaintiff only moves for summary judgment on counts one and two, the court need not discuss count three of the plaintiff's fourth amended complaint..  FN1. Inasmuch as the plaintiff only moves for summary judgment on counts one and two, the court need not discuss count three of the plaintiff's fourth amended complaint.

FN2. The letter provides, in relevant part:  “This is in response to your letter dated February 1, 2012 wherein you have informed me that my variance request has been denied and that the association seeks the removal of the non-conforming doors.   I find the Association's denial to be arbitrary and capricious.   There are a number of other units that have non-conforming doors.”.  FN2. The letter provides, in relevant part:  “This is in response to your letter dated February 1, 2012 wherein you have informed me that my variance request has been denied and that the association seeks the removal of the non-conforming doors.   I find the Association's denial to be arbitrary and capricious.   There are a number of other units that have non-conforming doors.”

Fischer, Jack W., J.