Cue Assocs., LLC v. Cast Iron Assocs., LLC

958 A.2d 772

111 Conn.App. 107

CUE ASSOCIATES, LLC v. CAST IRON ASSOCIATES, LLC.

No. 28961.

Appellate Court of Connecticut.

Argued September 17, 2008.

Decided November 4, 2008.

Richard P. Weinstein, with whom was Nathan A. Schatz, for the appellant (plaintiff).

Michael D. O'Connell, with whom, on the brief, was Erin Arcesi Mutty, Hartford, for the appellee (defendant).

FLYNN, C.J., and LAVINE and PELLEGRINO, Js.

FLYNN, C.J.

The plaintiff, Cue Associates, LLC, appeals from the judgment of the trial court in favor of the defendant, Cast Iron Associates, LLC. On appeal, the plaintiff claims that the court improperly applied the statute of limitations found in General Statutes § 52-577 to bar the plaintiff's trespass claim, when the defendant did not plead this statute of limitations as a special defense. We agree with the plaintiff and therefore, reverse in part the judgment of the trial court.

The following facts, which are taken from the court's memorandum of decision and from the record, are undisputed. The plaintiff owns property known as 247-253 Asylum Street in Hartford. The defendant is the owner of an adjacent property known as 235-241 Asylum Street. The buildings on the parties' properties share a common, or party, wall. In December, 1981, Anthony B. Cacase, Roy Christiansen and Nicholas V. Perfito entered into an easement agreement with the defendant's predecessor in ownership, Asylum Associates, L.P. (Asylum). Cacase, Christiansen and Perfito subsequently formed the plaintiff limited liability company. The agreement granted Asylum and its successors the right to make certain repairs to the footings supporting the party wall, as well as the right to enter the plaintiff's property to make such repairs. The agreement also provided that if Asylum had to disturb the plaintiff's portion of the wall or the footings located within the easement area in any way, it would be obligated to restore them to their condition prior to the disturbance. Asylum further agreed to extend its chimney to an appropriate height above any new roof line of its building.

In the early 1980s, Asylum performed extensive renovative construction on its building. In the course of this construction, Asylum extended the party wall upward in order to add an additional floor and added a number of quoins, or rectangular bricks, to the facade of the building. As a result of the construction, Asylum's building encroached on the plaintiff's property line by approximately twenty-two inches. At no time did Asylum extend the chimney on its roof as it had agreed.

In 2005, the plaintiff became interested in a city restoration project. Under the project, the plaintiff's building would be restored to its original late nineteenth century appearance. The city's project required an accurate property survey, and it was as a result of this survey that the plaintiff became aware of the encroachment of the defendant's property across the plaintiff's property line. On November 10, 2005, the plaintiff filed suit against the defendant. In addition to claims that the defendant breached its contractual obligations under the easement agreement, the plaintiff's complaint stated a claim for trespass. The plaintiff sought equitable relief as well as monetary damages.

On July 12, 2006, the defendant filed a second amended answer and special defenses. The defendant denied the substantive allegations of the complaint and asserted special defenses of laches, waiver, estoppel, adverse possession and the statute of limitations. As to the last of these, the defendant pleaded as follows: "The claims of the [p]laintiff are barred, in whole or in part, by the statute of limitations as set forth in Connecticut General Statutes § 52-576." Section 52-576 is a statute of limitations governing actions sounding in contract.

A trial before the court followed. By memorandum of decision, the court ruled in favor of the defendant on each count of the complaint. The court's decision stated in part: "The plaintiff alleges that the activities of the defendant constitute a trespass to the plaintiff's property and that the trespass is a continuing one. As to the claim of trespass, the defendant pleads the statute of limitations. The statute of limitations for torts in Connecticut [is found in] General Statutes § 52-577, which provides [that] an action founded on a tort shall be brought within three years from the date of the act complained." Applying this statute of limitations, which had not been pleaded by the defendant, the court held that the plaintiff's trespass claim was time barred. This appeal followed.

I

The plaintiff claims that the court improperly applied the statute of limitations found in § 52-577 to its claim for trespass because the defendant did not plead this statute specifically as a special defense. The defendant argues in opposition that its failure to cite a specific statute was mitigated by the fact that the plaintiff had notice of the nature of the defendant's defense. We agree with the plaintiff.

The following standard of review and principles of law guide our resolution of the plaintiff's appeal. The interpretation of the requirements of the rules of practice presents a question of law, over which our review is plenary. Gilbert v. Beaver Dam Assn. of Stratford, Inc., 85 Conn.App. 663, 671, 858 A.2d 860 (2004), cert. denied, 272 Conn. 912, 866 A.2d 1283 (2005).

Practice Book § 10-3(a) provides that "[w]hen any claim made in a complaint, cross complaint, special defense, or other pleading is grounded on a statute, the statute shall be specifically identified by its number." Because the rule embodied in this section is directory rather than mandatory; see, e.g., Steele v. Stonington, 225 Conn. 217, 221 n. 7, 622 A.2d 551 (1993); Fleet National Bank v. Lahm, 86 Conn.App. 403, 405 n. 3, 861 A.2d 545 (2004), cert. denied, 273 Conn. 904, 868 A.2d 744 (2005); this court has emphasized that notice to the other party is the critical consideration in determining the sufficiency of a party's pleading. Michalski v. Hinz, 100 Conn.App. 389, 394, 918 A.2d 964 (2007). "As long as the defendant is sufficiently apprised of the nature of the action ... the failure to comply with the directive of Practice Book § 10-3(a) will not bar recovery." (Citation omitted; internal quotation marks omitted.) Spears v. Garcia, 66 Conn.App. 669, 676, 785 A.2d 1181 (2001), aff'd, 263 Conn. 22, 818 A.2d 37 (2003).

An additional consideration informs the analysis when the pleading in question is a special defense raising a statute of limitations. In instances in which a limitations period is contained within the statute that establishes the underlying remedy, such a limitations period is jurisdictional and cannot be waived. Travelers Indemnity Co. v. Rubin, 209 Conn. 437, 446, 551 A.2d 1220 (1988). However, when the right of action exists independently of the statute in which the limitations period is found, the statutory bar is considered personal and procedural and is deemed waived if not specially pleaded. Orticelli v. Powers, 197 Conn. 9, 15, 495 A.2d 1023 (1985). Our Supreme Court has determined that the limitations period found in § 52-577 is procedural rather than jurisdictional and, thus, may be waived by the party entitled to the defense. Id., at 16, 495 A.2d 1023.

In Avon Meadow Condominium Assn., Inc. v. Bank of Boston Connecticut, 50 Conn.App. 688, 691, 719 A.2d 66, cert. denied, 247 Conn. 946, 723 A.2d 320 (1998), the plaintiffs brought a three count complaint alleging breach of contract, misrepresentation and a violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. The defendant pleaded special defenses, including the statute of limitations. Avon Meadow Condominium Assn., Inc. v. Bank of Boston Connecticut, supra, at 691, 719 A.2d 66.¹ The trial court granted the defendant's motion for summary judgment, holding that the limitations period for actions sounding in tort found in § 52-577 barred the plaintiffs' misrepresentation claim. Id., at 692, 719 A.2d 66.

On appeal, the plaintiffs in Avon Meadow Condominium Assn., Inc., argued that the defendant's failure to plead specifically as a special defense the statute of limitations found in § 52-577 precluded the trial court from applying that section to bar their misrepresentation claim. Id., at 696, 719 A.2d 66. The defendant contended that, although it explicitly referenced only § 52-581, the wording of the special defense nevertheless was sufficient to raise the defense to the misrepresentation claim. Id., at 697, 719 A.2d 66. This court reversed the judgment of the trial court, concluding that "because the defendant cited General Statutes § 52-581, which pertains to contracts exclusively, it did not plead § 52-577. Moreover, there [was] no reference made to § 52-577, which applies to actions sounding in tort." Id., at 697-98, 719 A.2d 66. Because the defendant had not pleaded the statute of limitations section specifically, we concluded that it had waived its right to have that defense considered by the trial court. Id., at 698, 719 A.2d 66.

We recently addressed the issue of whether a trial court properly rejected a party's statute of limitations defense on the basis of the party's failure to plead the statute providing for that defense specifically. In Ramondetta v. Amenta, 97 Conn.App. 151, 161, 903 A.2d 232 (2006), the plaintiffs attempted to raise the special defense of the statute of limitations to the defendant's unjust enrichment counterclaim, which was based on an underlying oral contract. The plaintiffs pleaded that the defendant's "claims are barred by the applicable [s]tatute of [l]imitations." (Internal quotation marks omitted.) Id. The plaintiffs' only subsequent reference to the special defense came in their posttrial memorandum of law, which stated: "Clearly, the statute of limitations for an oral agreement is three (3) years, with a limitation for a written...