Scanner v. Governors Ridge Ass'n, Inc.

311 A.3d 173

348 Conn. 726

Glen A. SCANNER, Executor (Estate of Charles A. Canner)

v.GOVERNORS RIDGE ASSOCIATION, INC., et al.

Louis D. Puteri

v.Governors Ridge Association, Inc., et al.

(SC 20759), (SC 20760)

Supreme Court of Connecticut.

Argued November 13, 2023

Officially Released April 2, 2024

Glen A. Canner, the appellant in Docket No. SC 20759, and for the appellant in Docket No. SC 20760 (plaintiff in the first case and substitute plaintiff in the second case).

Timothy M. Gondek, for the appellee in Docket Nos. SC- 20759 and SC 20760 (named defendant in each case).

Robinson, C. J., and McDonald, D’Auria, Mullins, Ecker, Alexander and Dannehy, Js.

DANNEHY, J.

₇₂₉The plaintiffs, Glen A. Canner, the executor of the estate of Charles A. Can- ner, and Louis D. Puteri,¹ brought separate actions against a condominium₇₃₀ association, the named defendant in each case, Governors Ridge Association, Inc.,² alleging that the foundations supporting their respective units were sinking as a result of improper design. In this consolidated appeal, the plaintiffs contend that the Appellate Court improperly affirmed the trial court’s judgments in favor of the defendant on the ground that the three year tort Statute of limitations; see General Statutes § 52-577; barred pursuit of an alleged cause of action under the Common Interest Ownership Act (CIOA), General Statutes § 47-200 et seq. We conclude that some, but not all, of the plaintiffs’ claims against the defendant are time barred and, accordingly, we affirm in part and reverse in part the judgment of the Appellate Court.

The following undisputed facts and procedural history are relevant to our consideration of the present appeal. In 2001, the defendant received a special permit from the Trumbull Planning and Zoning Commission approving an expansion of an existing common interest community through the construction of thirty-six additional, detached single-family condominium units located in Trumbull. Motivated by concerns related to soil conditions on the proposed site, the defendant’s developer, South Meadow Development, LLC, hired Adeeb Consulting, LLC, to design a series of foundations for each of these new units.³ Although previous plans had called ₇₃₁for the use of pilings, Kareem Adeeb, a geotechnical and structural engineer and owner of Adeeb Consulting, LLC, proposed an alternative system relying on geofabric, footings, and grade beams. Such a design, Adeeb stated, would "tie all foundation elements together and increase the rigidity of the foundation system" and "decrease, if not eliminate, the chance that differential settlement will take place." Notwithstanding warnings from other engineers,⁴ the Trumbull Building Department approved Adeeb’s designs, and construction was subsequently completed.

The decedents owned, respectively, two detached single-family condominium units created during the course of this expansion that have, undisputedly, suffered from significant, uneven settling. One of the units, located at 105 Governor Trumbull Way, was purchased by Lorraine Sando’s father, the decedent Louis D. Puteri, on December 26, 2001. The other unit, located at 220

Fitch’s Pass, was purchased by Glen A. Canner’s father, the decedent Charles A. Canner, a few months later, on April 30, 2002.⁵ Around that same time, the defendant began to make statements affirming its responsibility for any future foundation settlement issues.⁶

₇₃₂Over the following years, the decedents experienced a series of escalating problems inside of their units as a result of settling: cracks appeared in the walls, doors stopped closing correctly, and windows began to stick. The decedents reported these problems to the defendant’s management company, Consolidated Management Group, which responded by effectuating repairs in connection with these individual issues.

Problems eventually came to a head in 2011 and 2012, when both decedents attempted, and failed, to sell their units. On May 9, 2011, the listing agent for 220 Fitch’s Pass, Kenneth Martin, received feedback from potential buyers about the "very dramatic slope in the floors …." Likewise, in an email to an employee of Consolidated Management Group dated June 20, 2012, Louis D. Puteri catalogued various "noticeable defects" in his unit located at 105 Governor Trumbull Way, including a shifted structural beam, a crack running the full length of the second floor landing, inoperable doors and windows through-out the house, damage to the rear concrete patio, and a "one, to two inch deviation in the floor height in the transition from the hallway to the spare bedroom on the second floor …."

The defendant investigated the possibility of making structural repairs to the foundations underlying the decedents’ units from 2012 to 2016.⁷ In 2012, the defendant hired Fuller Engineering & Land Surveying, LLC, ₇₃₃to measure the settling. In 2014, the defendant began seeking proposals from several contracting, engineering, and consulting firms to conduct repairs. On December 8, 2014, one of those firms, Maser Consulting P.A., held a teleconference with representatives of the defendant in order to discuss a plan to lift the two units and place them on piles. Although excavation was tentatively scheduled to start on December 29, 2014, that project was subsequently cancelled. From January, 2015, through March, 2016, the defendant continued to seek proposals from five additional firms. None of these companies, however, ultimately undertook repairs.

The civil actions underlying this consolidated appeal were commenced; first, on February 11, 2016, Conner v. Governors Ridge Assn., Inc., Superior Court, judicial district of Waterbury, Docket No. UWY-CV-16-6031521-S, and, then, on September 5, 2017, Puteri v. Governors Ridge Assn., Inc., Superior Court, judicial district of Waterbury, Docket No. UWY-CV-17-6037281-S. The complaints in each case asserted a statutory cause of action alleging that the defendant had violated CIOA. Read broadly, these, claims appeared to allege that the defendant had constructed the foundations under the units negligently and, thereafter, had violated their statutory duties by failing to conduct necessary repairs to common elements of the community.⁸ See General Statutes § 47-249 (a) ("[e]xcept to the extent provided by the declaration … or subsection (h) of section 47-255, the association is responsible for maintenance, repair and replacement of the common elements, and each unit owner is responsible for maintenance, repair and replacement of his unit"). The initial pleadings did not, however, allege that the defendant had breached its second amended and restated declaration (declaration) ₇₃₄or its operative bylaws (bylaws) with respect to the construction or maintenance of common elements.

The defendant filed its respective answers to the operative complaints in the underlying cases on June 1, 2018, both of which alleged by way of special defense that the CIOA claims "sound[ed] in tort, and therefore [are] time barred pursuant to … § 52-577." A few months later, on August 14, 2018, the original plaintiffs amended their CIOA claims to specifically allege, for the first time, that the defendant had violated, inter alia, § 23.1 of the declaration⁹ and § 5.2 (b) of the bylaws¹⁰ by failing to make timely repairs to the foundations underlying their units. A few days later, the trial court issued an order indicating that it had scheduled, with the consent of all parties, an evidentiary hearing limited to the statute of limitations defense and other matters raised in avoidance of the statute of limitations.

After conducting a two day evidentiary hearing and receiving additional briefing from the parties, the trial court issued memoranda of decision, concluding that the CIOA claims against the defendant were time barred. After observing that CIOA itself lacked an express limitation period, the trial court began its substantive analysis by looking to the pleadings to determine "the most suitable statute of limitations on the basis of the nature of the cause of action or of the right sued [on]." Bellemare v. Wachovia Mortgage Corp., 284 Conn. 193, 199, 931 A.2d 916 (2007). Although the trial court recognized ₇₃₅that the amended complaints alleged violations of both the declaration and bylaws, it found that those provisions were inapposite, noting that § 23.1 of the declaration mandates repair of only insured common elements and that, because foundations were not required to be insured; see General Statutes § 47-255 (a); the defendant had no contractual duty to repair the foundations. As a result of that conclusion, the trial court focused its analysis on the question of whether the statutory claims alleging violations of § 47-249 (a) were timely under the tort statute of limitations, § 52-577. See, e.g., Bellemare v. Wachovia Mortgage Corp., supra, at 200, 931 A.2d 916 ("when a plaintiff seeks to recover damages for the breach of a statutory duty, such an action sounds in tort").

The trial court concluded that the essence of the statutory claims was that the foundations had been improperly constructed on soft ground and that, because § 52-577 runs "from the date of the act or omission complained of"; (internal quotation marks omitted) Prokolkin v. General Motors Corp., 170 Conn. 289, 294, 365 A.2d 1180 (1976); the clock started to run on those particular claims when the decedents acquired their homes in 2001 and 2002, rather than the time that they first discovered harm. Finally, the trial court declined to apply the continuing course of conduct doctrine to toll the running of § 52-577, concluding that (1) the original plaintiffs had failed to demonstrate that the defendant owed an absolute duty to act, and (2) there was no evidence that the defendant had breached any discretionary duties imposed on it by acting "unreasonably or in bad faith …."

The original plaintiffs appealed to the Appellate Court from the trial court’s judgments in favor of...