Peter White v. Latimer Point Condominium Association, Inc. et al. (2014)

MEMORANDUM OF DECISION ON MOTION TO STRIKE CLAIMS AGAINST CERTAIN INDIVIDUAL DEFENDANTS AND THIRD COUNT (# 104)

The plaintiff, Peter White, has sued Latimer Point Condominium Association, Inc., and nine individual defendants in three counts, each alleging violations of General Statutes § 47–278, which is part of the Connecticut Common Interest Ownership Act, General Statutes §§ 47–200 through 47–299.   The defendants, Latimer Point Condominium Association, Inc. (association), and Andrew Feinstein, Jill Bennett, Grace Ann Conti, Douglas Delehanty, Malcolm Smith, Michael Guidera and Sharon Stryker (collectively “individual movants”),¹ moved on May 2, 2013, to strike (1) all claims against the individual movants and (2) the third count in its entirety.   The plaintiff filed an opposing brief on June 26, 2013.   The movants filed a reply brief on August 29, 2013.   The motion was argued on September 9, 2013.

FACTS

For present purposes, the court takes the facts to be those alleged in the complaint, construed in favor of its legal sufficiency.   See New London County Mutual Ins. Co. v. Nantes, 303 Conn. 737, 747, 36 A.3d 224 (2012);  see also Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252–53, 990 A.2d 206 (2010) (complaint is construed broadly;  necessarily implied allegations are accepted as true).   Viewing the complaint in this light, the essential facts are as follows.

Peter White is the owner of unit # 23 at Latimer Point, a common interest ownership community located on the Long Island Sound shoreline in Stonington, Connecticut (Latimer Point or “the community”).   Latimer Point consists of real property owned by members of the association and was created by declaration recorded in the Stonington land records on November 25, 1998.   The defendant Feinstein is, and was at all times relevant to this case, the chairman of the Architectural Control Committee (ACC) of the association and acted in that capacity for purposes of this action.   The other individual movants are members of the ACC. The association and the ACC are governed by the association's duly enacted bylaws, which were in effect at all times relevant to this action.   In accordance with the bylaws, at least exterior building construction within the community is regulated by the ACC and the executive board of the association.   The association is the reviewing body for all decisions rendered by the ACC.

The Latimer Point bylaws establish a “Ten Percent Rule” in order to protect members' water views from obstructions including construction and renovation of buildings.   This rule mandates that “[t]he Association shall ensure that no member's water view shall ever be diminished by more than 10% due to cumulative constructions of other units and/or the Association ․ In considering building applications, the ACC shall take into account, and make part of the record, the number of other units within a member's water view that may desire space for future building construction (potential space).   After such determination, the ACC may allot up to 2% of a member's water view to a single construction ․”

Genarro Modugno and Elizabeth Modugno—who are defendants as to count one, but not parties to the present motion—are members of the association and the owners of unit # 7 at Latimer Point.   Unit # 7 is situated within the water view of the plaintiff's unit.   On or about May 25, 2012, Mr. and Ms. Modugno filed a construction application seeking, among other things, to increase the height of the roof on their unit.   On or about August 28, 2012, over the plaintiff's objection, the ACC approved recommending the Modugnos' construction application to the association.   On that date, the ACC found that the total water view obstruction caused by the Modugnos' construction application to the plaintiff's unit was 0.8%. On September 22, 2012, the association denied the plaintiff's appeal of the ACC's recommendation to approve the Modugnos' construction application.

Specifically concerning count one, the ACC and the association failed to adhere to the bylaws when they considered and approved the Modugnos' construction application, as it pertained to the plaintiff's unit.   The ACC's determination of the plaintiff's total water view obstruction percentage was in error.

Pertaining to count two, on September 3, 2005, pursuant to the Latimer Point bylaws, the ACC approved a resolution of a dispute between the plaintiff and the owners of unit # 17, Elizabeth Delehanty and the defendant Douglas Delehanty.²  That resolution required that “the trees on Unit 17 be trimmed at the annual June trimming and also be trimmed a second time in October to the same level as the June trimming.   The trees are to be trimmed to the level of the roof line of Unit 6 ․” In violation of the bylaws and the resolution, the tree trimmings on unit # 17 are occurring during the months of July and November annually and the trees in question are not being trimmed to the roof level of unit # 6.

Pertaining to count three, on August 23, 2008, the ACC and the association received a construction application from the Delehantys for roof shingling and siding replacement to their property located at unit # 17.   In a letter dated July 31, 2009, from the defendant Feinstein, as ACC chairman, to the then-president of the Latimer Point association, Feinstein said that the Delehantys flagrantly violated the rules and bylaws of the association by converting an approved screened-in porch into a permanent, heated sunroom.³  By that unauthorized improvement, the Delehantys converted their unit from a seasonal property to a year-round residence without the appropriate approval of the defendants, the ACC, the association, or any of the required federal or state regulatory agencies or town zoning and inland wetlands boards.   Despite the defendants' direct knowledge of these actions by the Delehantys, the ACC and the association refuse to take any action to address or correct them.

DISCUSSION

“Whenever any party wishes to contest ․ the legal sufficiency of the allegations of any complaint ․ or of any one or more counts thereof ․ that party may do so by filing a motion to strike the contested pleading or part thereof.”  Practice Book § 10–39(a)(1).   The purpose of a motion to strike is to challenge the legal sufficiency of the allegations of a complaint or count to state a claim upon which relief can be granted.  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).   In determining the sufficiency of a pleading, all well-pleaded facts and all necessarily implied facts are taken as admitted.  Coe v. Board of Education, 301 Conn. 112, 116–17, 19 A.3d 640 (2011).   If any facts provable under the stated and implied allegations support a cause of action, the motion must be denied.  Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991).

In all three counts, the plaintiff claims that the ACC and the association violated General Statutes § 47–278.⁴  The present motion first asks that all claims against the individual movants be stricken because all such claims are prohibited by General Statutes § 47–253(b).  That statute provides, in pertinent part, that “[a]n action alleging a wrong done by the association, including an action arising out of the condition or use of the common elements, may be maintained against the association and not against any unit owner.”   The plaintiff claims that § 47–253(a), which provides that “[a] unit owner is not liable, solely by reason of being a unit owner, for injury or damage arising out of the condition or use of the common elements,” means that § 47–253(b) is no bar to suing a unit owner in his or her capacity as members of “the regulatory body for Latimer Point when it comes to building construction and vegetation regulation in relation to unit owner's water view protection at Latimer Point.”   The court finds the plaintiff's argument flawed for two reasons.

First, in general, the part of § 47–253(b) relied upon by the movants is plain and unambiguous.   Applying it literally yields no strange results.  “The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes.   If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.”   General Statutes § 1–2z.   The court sees no reason to infer an exception to the statutory bar against suits against unit owners for alleged wrongs of the common interest community association.   Indeed, the court perceives a very sound reason for that bar:  without it, the risk of personal litigation could easily discourage unit owners from serving on common interest community association boards and committees and threaten the vitality and functioning of those communities and the value of interests in them.⁵

Second, the specific allegations of the complaint reveal no reason § 47–253(b)'s bar against suing unit owners does not apply.   The plaintiff concludes each of his three counts by stating:  “As a result of the foregoing, the ACC and [association] has violated ․ § 47–278.”   No portion of the complaint alleges that any individual person “violated” § 47–278 or any bylaw of the association.   It is clear that the plaintiff includes the individual movants solely by virtue of their being members of the ACC, and not for any personal misconduct, or any conduct outside their duties performed on behalf of the association.   In essence, the plaintiff alleges only wrongs by the association, including through the ACC. Under similar circumstances, the court in Lake Forest of Bridgeport, LLC v. Lake Forest Assn., Superior Court, judicial district of Fairfield, Docket No. CV–07–5011120–S (March 3, 2008, Franked, J.) (45 Conn. L. Rptr. 77), granted a motion to strike the claims against the individual members of a condominium association's board of directors pursuant to § 47–253.   This court finds Lake Forest well reasoned and persuasive.   Because § 47–253(b) provides that “[a]n action alleging a wrong done by the association ․ may be maintained against the association and not against any unit owner,” the claims against the individual movants shall be stricken.

The movants next ask that the third count be stricken in its entirety on the ground that it is barred by the statute of limitations.   The third count is brought by the plaintiff pursuant to § 47–278, which does not expressly contain its own limitation period.   The defendants argue that the third count sounds in tort and, as a result, the appropriate statute of limitations is three years, under General Statutes § 52–577.⁶  The plaintiff argues that the third count is not barred by the statute of limitations because the third count alleges facts of a continuing course of conduct by the defendants, even if the claim originated over three years ago.

A motion to strike is not the appropriate procedural mechanism to address this issue, and therefore the court declines to do so.   Generally, a claim that an action is barred by the lapse of the statute of limitations must be pleaded as a special defense, not raised by a motion to strike, because a motion to strike challenges only the legal sufficiency of the complaint and might deprive a plaintiff of an opportunity to plead matters in avoidance of the statute of limitations defense.  Greco v. United Technologies Corp., 277 Conn. 337, 344 n.12, 890 A.2d 1269 (2006);  see also Practice Book § 10–50.   This principle is especially compelling because the court cannot consider facts outside the four corners of a plaintiff's complaint when deciding a motion to strike;  see Himmelstein v. Windsor, 116 Conn.App. 28, 39 n.8, 974 A.2d 820 (2009), aff'd, 304 Conn. 298, 39 A.3d 1065 (2012);  and yet “plaintiffs ․ are not required to plead facts in anticipation of the defense of the statute of limitations”;  Forbes v. Ballaro, 31 Conn.App. 235, 241 n.9, 624 A.2d 389 (1993).

In two settings, a motion to strike may be used to raise a statute of limitations defense, but neither applies in the present case.   The first setting is when the parties agree that the complaint sets forth all of the facts pertinent to the question of whether the action is barred by the statute of limitations and that, therefore, it is proper to raise that issue by a motion to strike instead of by special defense.  Id., 239.   There is no such agreement here.   Alternatively, where a statute gives a right of action which did not exist at common law and establishes the time within which the right must, if at all, be enforced, the statutory time limit is a limitation of the liability itself and therefore jurisdictional.   See id., 239–40.  Section 47–278 does not fix a time within which a suit it allows must be brought.   The limitation period for violation of § 47–278, or for violation of the Common Interest Ownership Act—the chapter to which § 47–278 refers—whatever it may be, is not jurisdictional.   Consequently, the more appropriate course of action here would be for the defendants to plead any statute of limitations defense in the usual manner, and for the plaintiff to respond.   If, in due course, the defendants believe there is no triable issue of fact that count three is barred by the statute of limitations, they may seek summary judgment.

For the reasons stated, the motion to strike all counts as to the individual movants is granted, and the motion to strike count three is denied.

Cole–Chu, J.

FOOTNOTES

FN1. The other two defendants, Genarro Modugno and Elizabeth Modugno, are defendants as to count one of the complaint, but are not parties to the present motion..  FN1. The other two defendants, Genarro Modugno and Elizabeth Modugno, are defendants as to count one of the complaint, but are not parties to the present motion.

FN2. The Delehantys' last name is spelled both “Delehanty” and “Delahanty” in the complaint.   The court uses the name as it appears on the summons, which is Delehanty..  FN2. The Delehantys' last name is spelled both “Delehanty” and “Delahanty” in the complaint.   The court uses the name as it appears on the summons, which is Delehanty.

FN3. What defendant Feinstein is alleged to have said is taken as true for present purposes.   The legal conclusion that the Delehantys violated the association's rules and bylaws is not..  FN3. What defendant Feinstein is alleged to have said is taken as true for present purposes.   The legal conclusion that the Delehantys violated the association's rules and bylaws is not.

FN4. That the defendants “violated” § 47–278 is a misnomer.  General Statutes § 47–278 provides, in relevant part, “(a) A ․ unit owner or any other person subject to this chapter may bring an action to enforce a right granted or obligation imposed by this chapter, the declaration or the bylaws ․” Section 47–278 does not create duties the violation of which could be the subject of this suit.   Rather, it is an enabling statute:  it gives rights, for the most part, such as in this case where it is being utilized as the basis for a unit owner to bring a legal action to enforce a right granted or obligation imposed by the bylaws of a common interest community.   Although § 47–278 creates some duties—such as subsection (c), requiring the association to hold a hearing before suing a unit owner—the plaintiff's complaint alleges no facts that support a claim of violation of any duty created by § 47–278.   Instead, it is clear that what the plaintiff intends to convey is that his claims are brought pursuant to § 47–278(a).   For that reason, and because it is a conclusion of law, that the defendants violated § 47–278 is not here taken as true..  FN4. That the defendants “violated” § 47–278 is a misnomer.  General Statutes § 47–278 provides, in relevant part, “(a) A ․ unit owner or any other person subject to this chapter may bring an action to enforce a right granted or obligation imposed by this chapter, the declaration or the bylaws ․” Section 47–278 does not create duties the violation of which could be the subject of this suit.   Rather, it is an enabling statute:  it gives rights, for the most part, such as in this case where it is being utilized as the basis for a unit owner to bring a legal action to enforce a right granted or obligation imposed by the bylaws of a common interest community.   Although § 47–278 creates some duties—such as subsection (c), requiring the association to hold a hearing before suing a unit owner—the plaintiff's complaint alleges no facts that support a claim of violation of any duty created by § 47–278.   Instead, it is clear that what the plaintiff intends to convey is that his claims are brought pursuant to § 47–278(a).   For that reason, and because it is a conclusion of law, that the defendants violated § 47–278 is not here taken as true.

FN5. The plaintiff's argument for an exception to § 47–253(b) for claims “for injury or damage arising out of the condition or use of the common elements” is without merit for two reasons.   First, none of the counts of the complaint concern common elements.   Second, even if any of them did concern common elements, General Statutes § 47–75(c) bars such claims except in proportion to a unit owner's percentage interest in the common elements..  FN5. The plaintiff's argument for an exception to § 47–253(b) for claims “for injury or damage arising out of the condition or use of the common elements” is without merit for two reasons.   First, none of the counts of the complaint concern common elements.   Second, even if any of them did concern common elements, General Statutes § 47–75(c) bars such claims except in proportion to a unit owner's percentage interest in the common elements.

FN6. 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.”   The court expresses no opinion as to whether § 52–577 is the applicable statute of limitation..  FN6. 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.”   The court expresses no opinion as to whether § 52–577 is the applicable statute of limitation.

Cole–Chu, Leeland J., J.