Jamie Wilson v. LLC (2015)

MEMORANDUM OF DECISION ON MOTION OF VALLEY CONDOMINIUM ASSOCIATION, INC., FOR SUMMARY JUDGMENT (# 134)

By complaint filed September 12, 2013, the plaintiff in this action, Jamie Wilson, sued for property damage due to water and moisture, in her rented apartment, resulting from the alleged negligence of one defendant, CASRI, LLC. The plaintiff's motion to cite in Valley Condominium Association, Inc. (“the Association” or “movant”), as a defendant was granted on May 19, 2014.   On November 25, 2014, a revised complaint was filed (“the complaint”), count two of which is against the Association.   The Association answered with special defenses of the bar of two statutes of limitation, General Statutes §§ 52–584 and 52–577.

On December 31, 2014, the Association moved for summary judgment as to count two based on § 52–584, with supporting affidavit and other documents.   On March 2, 2015, the plaintiff filed an opposing brief, also with supporting affidavit and other documents, raising the “relation back” doctrine as a ground of opposition.   The Association filed a reply brief on April 15, 2015.   The motion was argued May 18, 2015.

FACTS

Viewing the evidence in the light most favorable to the nonmoving party, as the court must;  Patel v. Flexo Converters U.S.A., Inc., 309 Conn. 52, 57, 68 A.3d 1162 (2013);  the essential facts are as follows.   The plaintiff has claimed that, while she was a tenant living at Unit A of a condominium building at 17R Hillcrest Street in Norwich, the Association operated and was in control of the subject condominium complex.   The plaintiff further alleges that, by one or more of eight negligent acts, the Association allowed the plaintiff's unit, beginning with a “flood” on April 28, 2011, and on numerous other occasions until the last “flood” on April 23, 2012, “to be exposed to excessive moisture, water, and dampness as a result of flooding, improper and defective drainage, inadequate catch basins, leaks, inadequate and defective ventilation ․ [and] inadequate and defective sealant ․ resulting in the penetration of water and dampness into the unit, improper and unreasonable transition from the exterior surface to the home's threshold” which damaged her personal property.   In count one of all versions of the plaintiff's complaint, she alleges substantially the same acts and results of CASRI, LLC, which was served on September 4, 2013, through Donald DiFrancesca, in hand, at 811 Boswell Avenue, Norwich, CT. The Association was served with process in this case on May 30, 2014 (the same day process was placed in the marshal's hands for service), through a different agent, Jeffrey Godley, at 22 Courthouse Square, Norwich, CT. Other facts will be discussed as necessary.

DISCUSSION

Summary judgment is a method of resolving litigation when pleadings, affidavits and other proper evidence 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.  Grenier v. Commissioner of Transportation, 306 Conn. 523, 534, 51 A.3d 367 (2012);  Patel v. Flexo Converters U.S.A., Inc., supra, 309 Conn. 56.  “The trial court must view the pleadings and the documents submitted in the light most favorable to the non-moving party.”  Id., 57.   The party seeking summary judgment has the burden of showing the nonexistence of any genuine issue of material fact.  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).   Once the movant has met that burden, however, the opposing party may defeat the motion only by presenting evidence that reveals a material, factual dispute.  Id., 11.   Neither unsworn assertions of fact nor mere conclusions are evidence for present purposes.   See id. (assertions of fact);  Gupta v. New Britain General Hospital, 239 Conn. 574, 583, 687 A.2d 111 (1996) (conclusions).  “[O]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment.”  Nash v. Stevens, 144 Conn.App. 1, 15, 71 A.3d 635, cert. denied, 310 Conn. 915, 76 A.3d 628 (2013).

The movant claims that the plaintiff's claims against it are barred by the § 52–584 statute of limitation, regardless of whether the statute started to run on April 23, 2012, the date of the last flood, or on April 28, 2011, the date of the first flood.¹  It is obvious that May 30, 2014, the date on which the movant was served with process in this action, is more than two years after April 23, 2012 and, for purposes of the three-year repose provision of § 52–584, more than three years after April 28, 2011.   The question presented by this motion is whether either the two-year bar, which runs from the plaintiff's actual or constructive discovery of her claim, or the three-year bar, which runs from the date of the allegedly negligent conduct whether or not the plaintiff has actually or constructively discovered her claim (let alone the defendant's identity), applies in this case.

For purposes of the two-year limitation in § 52–584, “the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered” when the plaintiff discovers some form of actionable harm, whether or not that harm has ended or reached its fullest manifestation.   See Merly v. State, 211 Conn. 199, 206, 588 A.2d 977 (1989).   For purposes of the three-year statute of repose in § 52–584, the clock starts to run not when the plaintiff is injured, let alone when she discovered, or should have discovered, her injury:  that clock starts to run on the date on which the allegedly negligent conduct (be it act or omission) occurred.   See Martinelli v. Fusi, 290 Conn. 347, 355, 963 A.2d 640 (2009).

The plaintiff claims that the “relation back” doctrine applies and therefore her claim against the movant is deemed to relate back to the day her action against CASRI, LLC, began with service of process on CASRI on September 3, 2013.   The movant denies that the “relation back” doctrine applies here.

“Under the relation back doctrine, a party properly may amplify or expand what has already been alleged in support of a cause of action, provided the identity of the cause of action remains substantially the same ․ If a new cause of action is alleged in an amended complaint ․ it will [speak] as of the date when it was filed ․ A cause of action is that single group of facts which is claimed to have brought about an unlawful injury to the plaintiff and which entitles the plaintiff to relief ․ It is proper to amplify or expand what has already been alleged in support of a cause of action, provided the identity of the cause of action remains substantially the same, but [when] an entirely new and different factual situation is presented, a new and different cause of action is stated ․ [O]ur relation back doctrine is akin to rule 15(c) of the Federal Rules of Civil Procedure, which provides in [relevant] part ․ [that] [w]henever the claim or defense asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading ․ The policy behind rule 15(c) is that a party, once notified of litigation based [on] a particular transaction or occurrence, has been provided with all the notice that statutes of [limitation] are intended to afford.”  (Citation omitted;  internal quotation marks omitted.)  Austin–Casares v. Safeco Ins. Co. of America, 310 Conn. 640, 656–57, 81 A.3d 200 (2013).

“While an amendment that corrects a minor defect relates back to the date of the original complaint, one stating a separate cause of action is barred by the statute of limitations.   Further, if the amendment is deemed to be a substitution or entire change of a party, it will not be permitted ․ If the amendment does not affect the identity of the party sought to be described in the complaint, but merely corrects the description of that party, the amendment will be allowed.”  (Citation omitted.)  Kaye v. Manchester, 20 Conn.App. 439, 444, 568 A.2d 459, 462 (1990).

In this case, the plaintiff clearly and as a matter of law added a new claim against a new defendant when she cited in the movant.   Her motion to cite in the movant stated she “moves to cite-in Valley Condominium Association, Inc., as a party defendant to the case at bar and requests leave to amend her Complaint adding causes [sic] of action against said defendant ․ [by] adding Count Two against the proposed defendant.   This cause of action alleges negligence against the defendants in failing to provide a safe, fit, and habitable dwelling, which resulted in damage to plaintiff's personal property.   The proposed defendant was the condominium association responsible for maintenance of the premises ․” This language makes clear that, contrary to her claim in her objection to the present motion that her counsel “discovered the proper party is [the movant],” the plaintiff chose not to seek to substitute the Association for CASRI, LLC, as sole defendant—a plausible claim of misnomer—but to pursue her claims against both CASRI and the movant.²  The plaintiff states a new cause of action against the movant:  the relation back doctrine does not apply.   See Austin–Casares v. Safeco Ins. Co. of America, supra.

The plaintiff's other grounds for denying the present motion are unavailing.   Where the “action against wrong defendant” statute, General Statutes § 52–593, applies, it allows new cases to be filed after judgment:  it does not prevent cases from going to judgment.   See Hoskinson v. Regional School District # 1, Superior Court, judicial district of Litchfield, Docket No. CV–00–0083953–S (November 19, 2001, Agati, J.).

The plaintiff invokes a “judicial economy” exception to the bar of the statutes of limitation, but offers no authority for such an exception.   That is no surprise since, if there were such an exception, litigation over its applicability would defeat the purpose of bright line time limits on lawsuits.

For the foregoing reasons, the motion of Valley Condominium Association for summary judgment on count two of the complaint is granted.

Cole–Chu, J.

FOOTNOTES

FN1. Sec. 52–584 provides in pertinent part as follows:  “No action to recover damages for injury to the person, or to real or personal property, caused by negligence ․ shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of ․”.  FN1. Sec. 52–584 provides in pertinent part as follows:  “No action to recover damages for injury to the person, or to real or personal property, caused by negligence ․ shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of ․”

FN2. The parties basically agree that Kaye v. Manchester, supra, sets forth the test for determining whether an amendment concerning a party's identity is merely correcting a misnomer as opposed to substituting a new party or claim:  “(1) [W]hether the defendant had notice of institution of the action, (2) whether the defendant knew he was a proper party, and (3) whether the defendant was prejudiced or misled in any way.”  Kaye v. Manchester, supra, 20 Conn.App. 444.   Given the plaintiff's clear choice to add the movant rather than attempt to substitute the movant for CASRI, LLC, the court need not apply the Kaye test..  FN2. The parties basically agree that Kaye v. Manchester, supra, sets forth the test for determining whether an amendment concerning a party's identity is merely correcting a misnomer as opposed to substituting a new party or claim:  “(1) [W]hether the defendant had notice of institution of the action, (2) whether the defendant knew he was a proper party, and (3) whether the defendant was prejudiced or misled in any way.”  Kaye v. Manchester, supra, 20 Conn.App. 444.   Given the plaintiff's clear choice to add the movant rather than attempt to substitute the movant for CASRI, LLC, the court need not apply the Kaye test.

Cole–Chu, Leeland J., J.