Susan Samuels et al. v. Deanna M. Russell (2014)

MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT

The plaintiffs, Susan and Sylvester Samuels, filed this one-count complaint against the defendant, Deanna M. Russell on October 27, 2012, alleging the following facts.   The plaintiffs own a parcel of land and improvements thereon at 148 St. Augustine Street in West Hartford.   The defendant owns a parcel and improvements thereon to the immediate west of the plaintiffs' parcel, at 152 St. Augustine Street.   Prior to 2005, the defendant's parcel contained a fence, no part of which was located on the plaintiffs' parcel.   In 2005, the defendant caused the old fence to be replaced by a new fence, which encroaches on the plaintiffs' parcel.   Promptly after noticing the construction of the new fence on their parcel, the plaintiffs repeatedly demanded that the defendant remove it from their parcel, but the defendant refused.   The plaintiffs allege that the defendant is liable for trespass, and demand an injunction compelling the defendant to remove the portion of the fence that encroaches on their parcel, and restore the plaintiffs' parcel to its prior condition.

On April 15, 2013, the defendant filed an amended answer, special defenses, and counterclaim, in which she asserted, among other things, a special defense based on the running of the relevant statute of limitations.   On October 9, 2013, the defendant filed this motion for summary judgment on the ground that there is no genuine issue of material fact with respect to the fact that the plaintiffs' action is time-barred.

In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact.  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).   The movant is required to support its motion with supporting documentation.  Heyman Associates No. 1 v. Ins. Co. of Pennsylvania, 231 Conn. 756, 796, 653 A.2d 122 (1995).   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].  Marinos v. Poirot, 308 Conn. 706, 712, 66 A.3d 860 (2013).

In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.  Patel v. Flexo Converters U.S.A., Inc., 309 Conn. 52, 57, 68 A.3d 1162 (2013).

The defendant argues that her motion for summary judgment must be granted because the plaintiff's trespass claim is barred by General Statutes § 52–577, which provides that “[n]o action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.”   Since the fence was erected in 2005, and the plaintiffs waited until 2012 to commence the present action, the plaintiffs' claim is time-barred, and because no genuine issue of material fact exists, the court must grant the defendant's motion.

The plaintiffs argue that the presence of the fence on their parcel constitutes a continuing trespass, and therefore, the relevant statute of limitations begins anew each day that the fence remains on the plaintiffs' parcel, and the plaintiffs were within the statutory period when they commenced this action.

Since a single valid defense may defeat recovery, a movant's motion for summary judgment should be denied when any defense presents significant fact issues that should be tried.  Union Trust Co. v. Jackson, 42 Conn.App. 413, 417, 679 A.2d 421 (1996).

Here, the parties do not agree whether a trespass has occurred, let alone whether the alleged trespass is permanent or continuing.   The defendant disputes the fact that the fence in question encroaches on the plaintiffs' parcel, and while the plaintiff Sylvester Samuels stated in his affidavit that he obtained a survey of the parcel that showed that the defendant's fence encroached, the plaintiffs did not attach a copy of that survey to the affidavit.  Practice Book § 17–46 requires that “[s]upporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein requires Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto.”   Because the plaintiffs have not provided the court with a sworn or certified copy of the survey the court cannot consider Sylvester Samuels' statement.

Whether the defendant's fence encroaches on the plaintiffs' parcel remains a genuine issue of material fact that is critical to a determination of whether the statute of limitations has run on the plaintiffs' action.

Because a genuine issue of material fact exists with respect to the existence of a trespass to the plaintiffs' parcel, the defendant's motion for summary judgment is denied.

Wagner, J.

Wagner, Jerry, J.T.R.