Rickel v. Komaromi

CARYN RICKEL

v.MICHAEL KOMAROMI ET AL.

AC 35062

COURT OF APPEALS OF THE STATE OF CONNECTICUT

Argued May 22, 2013

officially released August 13, 2013

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(Appeal from Superior Court, judicial district of

Ansonia-Milford, Keegan, J.)

Keith R. Ainsworth, for the appellant (plaintiff).

W. Glen Pierson, for the appellees (named defendant et al.).

Opinion

BEAR, J. The plaintiff, Caryn Rickel, appeals from the summary judgment rendered by the trial court in favor of the defendants Michael Komaromi and Roberta Komaromi with respect to the counts of her complaint sounding in nuisance and trespass.¹ On appeal, the plaintiff claims that the court erred in rendering summary judgment because (1) it did not address the plaintiff's allegations and arguments in opposition to the defendants' motion for summary judgment that the repeated bamboo encroachment from the defendants' property to her property constituted a continuing nuisance and a continuing trespass, and (2) it did not address the factual question of whether the nuisance and trespass were continuing or permanent. We reverse the judgment of the trial court.

The record reveals the following undisputed facts and procedural history. The plaintiff resides at 13 Edgehill Terrace in Seymour. The defendants reside at 10 Sunset Terrace in Seymour, which is adjacent to the plaintiff's property. On or about July 1, 1997, the defendants planted phyllostachys aureosulcata, a type of invasive running bamboo, along their corner property line, but they did not put up any barrier to contain it. The bamboo encroached upon the plaintiff's property. In 2005, during the installation of a patio at the corner of the plaintiff's property, a landscaper used a backhoe and dump truck in order to eradicate the bamboo from the area. The landscaper also installed steel sheathing along this corner property line in order to protect the patio. Despite the steel sheathing, the bamboo had reentered the area by July, 2010.²

The plaintiff commenced her action against the defendants by service of process on November 5, 2010. She brought claims of nuisance, trespass and negligence against them. In addition to the aforementioned undisputed facts, the plaintiff also alleged in her complaint that the bamboo further and repeatedly encroached on her property at all relevant times, and it presently continues to do so. The defendants filed their answer on August 4, 2011, in which they raised a statute of limitations special defense on all of the claims against them.

On June 28, 2012, the defendants moved for summary judgment on the ground that the applicable statutes of limitations had run on the three claims against them. They submitted no documentary proof in support of their motion; they cited only to the complaint for the facts on which they relied to argue their entitlement to a judgment as a matter of law. The court granted the defendants' motion on August 16, 2012. In its memorandum of decision, the court concluded that the applicable statutes of limitations had provided the plaintiff with a maximum of three years from ''the date of the actor omission complained of" to commence her action against the defendants. The court noted that there was no dispute that the defendants planted the bamboo in 1997 or that the plaintiff ''discovered the actionable harm in 2005 . . . ." Nonetheless, because the plaintiff did not commence her action against the defendants until 2010, the court held that each count of the action was time barred as a matter of law. This appeal followed. The plaintiff appeals only from the court's judgment with respect to her nuisance and trespass claims.

On appeal, the plaintiff claims that (1) the court erred in rendering summary judgment on her nuisance and trespass counts because she raised a genuine issue of material fact by alleging in her complaint and arguing in her opposition to summary judgment that the repeated encroachment of the defendants' bamboo upon her property created a continuing nuisance and a continuing trespass; and (2) the court committed error by failing to acknowledge, let alone address, her continuing nuisance and continuing trespass allegations and arguments, and the factual question of whether a nuisance or trespass is continuing or permanent requires the denial of a motion for summary judgment made solely on statute of limitations grounds. She claims that this is because, for statute of limitations purposes, each instance of nuisance or trespass in a continuing nuisance or trespass creates a new cause of action, whereas a permanent nuisance or trespass involves a discrete occurrence of nuisance or trespass from which the applicable statute of limitations begins to run. The existence of this genuine issue of material fact, she contends, should have precluded the court from concluding that the defendants were entitled to a judgment as a matter of law. We agree.

We begin our analysis with the well settled standard of review applied to a court's decision to grant a motion for summary judgment. ''Our review of the trial court's decision to grant [a] motion for summary judgment is plenary.'' (Internal quotation marks omitted.) Boone v. William W. Backus Hospital, 272 Conn. 551, 559, 864 A.2d 1 (2005). ''In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact. . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent. . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of materialfact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue. . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue. . . . It is not enough . . . for the opposing party merely to assert the existence of such a disputed issue. 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].'' (Internal quotation marks omitted.) Ramirez v. HealthNet of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008).

''An important exception exists, however, to the general rule that a party opposing summary judgment must provide evidentiary support for its opposition, and that exception has been articulated in our jurisprudence with less frequency than has the general rule. On a motion by the defendant for summary judgment the burden is on [the] defendant to negate each claim as framed by the complaint. . . . It necessarily follows that it is only [o]nce [the] defendant's burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial.'' (Emphasis added; internal quotation marks omitted.) Baldwin v. Curtis, 105 Conn. App. 844, 850-51, 939 A.2d 1249 (2008).

The plaintiff's complaint contains several allegations that the defendants' bamboo repeatedly has encroached on her property, resulting in a continuing nuisance and a continuing trespass. For example, in her nuisance count, the plaintiff alleged in relevant part that the defendants ''have planted this nonnative invasive [bamboo] with no containment of any kind. They have continued to cultivate it and freely allow it to aggressively spread to . . . adjacent properties . . . . This has been continual nuisance to my use and enjoyment of my land.'' The plaintiff similarly alleged in her trespass count that the defendants ''have allowed this nonnative invasive [bamboo] to aggressively spread from their original planting which was directly on my property line to all three of the properties mentioned [previously]. The infestation . . . is massive . . . [and has] continuously been aggressively invading my land.'' The plaintiff's continuing nuisance and continuing trespass allegations therefore factor into the question of whether ...