PMG Land Assocs., L.P. v. Harbour Landing Condo. Ass'n, Inc.

135 Conn.App. 710

42 A.3d 508

PMG LAND ASSOCIATES, L.P.

v.HARBOUR LANDING CONDOMINIUM ASSOCIATION, INC., et al.

No. 31270.

Appellate Court of Connecticut.

Argued Dec. 1, 2011.

Decided May 22, 2012.

Scott Maser, New Haven, for the appellant (plaintiff).

Laura Pascale Zaino, Hartford, with whom were Joshua M. Auxier, and, on the brief, Thomas P. Lambert, Westport, and Joseph J. Arcata III, Hartford, for the appellees (defendants).

DiPENTIMA, C.J., and ROBINSON and ESPINOSA, Js.

ROBINSON, J.

The plaintiff, PMG Land Associates, L.P., appeals from the judgment of the trial court granting the motion to dismiss filed by the defendants, Harbour Landing Condominium Association, Inc. (Harbour Landing), David Potter, Vincent DeLauro and Margareth Butterworth. ¹ On appeal, the plaintiff contends that the court improperly granted the defendants' motion to dismiss as to the third count of its complaint sounding in tortious interference with business expectancies. We reverse in part the judgment of the trial court.²

The following facts and procedural history are relevant to the resolution of the plaintiff's claim. The plaintiff is a real estate development company that at one time was the developer of the Harbour Landing condominium complex in New Haven. During the construction of the condominiums, various amenities were erected on three parcels of land that adjoined and abutted the Harbor Landing property, which parcels were owned by the plaintiff. The plaintiff put the three parcels of land on the market for sale and declared that the amenities were no longer available for use by the Harbor Landing condominium owners. In response, in 2001, Harbour Landing and its individual condominium owners commenced an action against the plaintiff and its principals, seeking a prescriptive easement over the property, as well as damages for an alleged violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42–110a et seq. A notice of lis pendens was recorded on the New Haven land records in connection with the prescriptive easement claim.

In October, 2003, while the prescriptive easement action was still pending, the plaintiff commenced an action against the defendants and numerous condominium owners in which it (1) sought to quiet title to the three parcels of land, (2) alleged slander of title and [135 Conn.App. 713]3) alleged tortious interference with the plaintiff's business. On April 1, 2004, the court issued postcard notices acknowledging that the parties had reported a settlement in both pending actions. At that time, however, the cases had not been withdrawn. The court ordered the parties to file the necessary withdrawals before May 27, 2004, or their cases would be dismissed. Both the prescriptive easement action and the plaintiff's action were dismissed on May 28, 2004, and June 30, 2004, respectively, pursuant to the court's order.

In November, 2004, the plaintiff commenced a second action against the defendants and numerous condominium owners. The complaint set forth three counts alleging (1) statutory vexatious litigation, (2) common-law vexatious litigation and (3) tortious interference with business expectancies. In July, 2005, the defendants filed a request to revise. The plaintiff objected to some, but not all, of the defendants' requests. The defendants also issued written interrogatories and requests for production. The court overruled some, but not all, of the defendants' requests to revise. The plaintiff, however, never revised its complaint, nor fully responded to the defendants' discovery requests. On January 2, 2007, the court granted the defendants' motion for a judgment of nonsuit against the plaintiff.

The plaintiff commenced the present action against the defendants on January 30, 2008, more than one year after the dismissal of the prior action. The complaint asserted the same three counts as alleged in the prior action: (1) statutory vexatious litigation, (2) common-law vexatious litigation and (3) tortious interference with business expectancies. On February 20, 2008, the defendants filed a motion to dismiss the plaintiff's complaint. The defendants contended that the plaintiff's claims were barred by the applicable statute of limitations in General Statutes § 52–577 and could not be saved by the accidental failure of suit statute set forth in General Statutes § 52–592 because the plaintiff waited more than one year to bring the new action. ³

The plaintiff filed an objection to the motion to dismiss on September 19, 2008, seven months after the motion was filed and only three days before oral argument was to occur on the motion. In its objection, the plaintiff argued that a motion to dismiss was not the proper procedural vehicle for adjudication of the applicability of the accidental failure of suit statute. The plaintiff further argued that the third count of the complaint alleging tortious interference with business expectancies fell within the applicable three year statute of limitations because the plaintiff alleged ongoing tortious actions of the defendants in 2005 and 2006. The plaintiff maintained that because the three year statute of limitations had not lapsed, it did not need to rely on the accidental failure of suit statute for count three. ⁴

The court issued its memorandum of decision on the defendants' motion to dismiss on May 28, 2009. The court noted that a determination under § 52–592 is very fact sensitive and should focus on “the type of conduct that occurred, the egregiousness of the conduct, any explanation for the conduct, and prejudice upon the nonmovant.” The court then set forth cases that analyzed whether the particular conduct of counsel was sufficiently egregious so as to prevent the claim from proceeding. Although the court did not analyze specifically the plaintiff's case in comparison to the cases cited, the court granted the motion to dismiss.

The plaintiff filed a motion for reconsideration and reargument on June 22, 2009. The plaintiff's principal argument was that the court failed to address the plaintiff's claim that count three of its complaint was brought within the applicable statute of limitations, thus making any analysis under § 52–592 improper. The court denied the plaintiff's motion on June 24, 2009. The plaintiff appealed on July 14, 2009.

On January 9, 2012, this court ordered the trial court to articulate whether it considered the plaintiff's argument in its objection to the defendants' motion to dismiss that the statute of limitations had not lapsed as to the tortious interference with business expectancies claim in count three. ⁵ On February 8, 2012, the trial court issued an articulation, which stated that it had in fact considered and analyzed the plaintiff's statute of limitations argument. The trial court noted that it had rejected the plaintiff's argument because the notice of lis pendens was no longer of any effect as of May 28, 2004, and the plaintiff could have requested that the notice of lis pendens be released after the dismissal of the action.

The plaintiff first contends that the trial court improperly granted the defendants' motion to dismiss as to the tortious interference with business expectancies claim because it was brought within the applicable three year statute of limitations. The plaintiff argues that the defendants committed acts relevant to this claim throughout 2005 and 2006 and, therefore, that the claim was brought within the applicable statute of limitations. We conclude that the plaintiff sufficiently alleged actions of the defendants that fell within three years of the filing of the complaint so as to allow the plaintiff to proceed with its claim.⁶

We begin by setting forth the relevant standard of review.⁷ “A motion to dismiss ... properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court.... A motion to dismiss tests ... whether, on the face of the record, the court is without jurisdiction.... When a ... court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light.... In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.... The motion to dismiss ... admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone.... [O]ur review of the trial court's ultimate legal conclusion and resulting [grant] of the motion to dismiss will be de novo.” (Citations omitted; internal quotation marks omitted.) Peruta v. Commissioner of Public Safety, 128 Conn.App. 777, 782–83, 20 A.3d 691, cert. denied, 302 Conn. 919, 28 A.3d 339 (2011).

“The question of whether a party's claim is barred by the statute of limitations is a question of law, which this court reviews de novo.” (Internal quotation marks omitted.) Certain Underwriters at Lloyd's, London v. Cooperman, 289 Conn. 383, 407–408, 957 A.2d 836 (2008). The plaintiff's claim is governed by the tort statute of limitations set forth in § 52–577, which provides: “No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.” “This court has determined that [§] 52–577 is an occurrence statute, meaning that the time period within which a plaintiff must commence an action begins to run at the moment the act or omission complained of occurs.” (Internal quotation marks omitted.) Valentine v. LaBow, 95 Conn.App. 436, 444, 897 A.2d 624, cert. denied, 280 Conn. 933, 909 A.2d 963 (2006).

Reading the complaint in the light most favorable to the plaintiff, we conclude that the plaintiff has set forth allegations that, if taken as true, are sufficient to allow the plaintiff to proceed on its tortious...