Wishneski v. Sielski

James Wishneski et al. v. Andrzej Sielski

No. HHDCV126029887S

Superior Court of Connecticut, Judicial District of Hartford, Hartford

February 11, 2016

UNPUBLISHED OPINION

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT

Susan A. Peck, J.

On March 11, 2012, the plaintiffs, James and Meghan Wishneski commenced this action by service of process on the defendant Andrzej Sielski.^[1] The dispute between the parties arises out of the sale of a residential property in Canton.

As alleged in the plaintiffs' third amended complaint ^[2] the parties entered into a real estate purchase contract on or about January 10, 2009, whereby the defendant agreed to sell, and the plaintiffs agreed to buy, a property located at 308 Cherry Brook Road in Canton (property). In connection with this transaction of real estate, the defendant provided the plaintiffs with a residential property disclosure report (disclosure report) prior to the closing date. The disclosure report is dated September 14, 2008, while the plaintiffs' signatures on the disclosure report are dated January 7 2009. The actual closing for the property took place on March 13, 2009.

Pursuant to the disclosure report, the defendant was obligated to disclose his knowledge of any problems related to basement water seepage, rot and water damage, water drainage problems, and driveway problems. The defendant claimed on this disclosure report that he had no knowledge of any such problems with the property. Moreover, the defendant marketed the property as a " Builder's Own Extreme Home Makeover! Stripped down to the rafters and rebuilt!" The plaintiffs allege that they relied on such representations in purchasing the property.

The plaintiffs allege that, sometime between April and June 2009, they began to notice water drainage problems around the perimeter of the property. In early March 2011, the plaintiffs noticed that portions of their house located on the property were flooded with twelve to twenty-four inches of water. A similar occurrence took place in August 2011, when flood water surrounded the entire perimeter of the property, washing away their driveway and closing all of Cherry Brook Road. Due to the August 2011 flooding, the plaintiffs and their young children needed to be evacuated by emergency personnel. Moreover, the Federal Emergency Management Agency (FEMA) issued a natural disaster designation for the county in which the property was located.

Based on these alleged facts, the plaintiffs filed a seven-count complaint, alleging fraudulent misrepresentation (count one), negligent misrepresentation (count two), breach of contract (count three), breach of implied covenant of good faith and fair dealing (count four), a CUTPA violation (count five), intentional infliction of emotional distress (count six), and negligent infliction of emotional distress (count seven). The defendant filed an answer on January 3, 2014, and raised the statute of limitations as a special defense to counts one, two, five, six, and seven. On November 11, 2014, the defendant moved for summary judgment, arguing that he was entitled to judgment as a matter of law based on statute of limitations and substantive grounds. The defendant attached the real estate purchase contract and portions of the plaintiffs' depositions to his memorandum of law. Subsequently, on the same date that the plaintiffs filed their request to amend their second amended complaint; see footnote 2 of this memorandum; the plaintiffs filed their objection to the defendant's motion for summary judgment. The plaintiffs attached various exhibits to their memorandum of law, including, inter alia, the disclosure report and additional portions of their deposition testimonies. The defendant did not file a reply.^[3]

This court heard oral argument on this matter on the November 2, 2015 short calendar. Additional factual allegations will be included as necessary.

SUMMARY JUDGMENT STANDARD

The standard governing this court's review of the present motion for summary judgment is well settled. " [S]ummary judgment shall be rendered forthwith if the pleadings affidavits and other proof submitted 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." Stuart v. Freiberg, 316 Conn. 809, 820-21, 116 A.3d 1195 (2015); see also Practice Book § 17-49 (summary judgment standard). " 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 substantive 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 material fact, 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, however, 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]." Nodoushani v. Southern Connecticut State University, 152 Conn.App. 84, 90-91, 95 A.3d 1248 (2014).

" Summary judgment may be granted where the claim is barred by the statute of limitations . . . Summary judgment is appropriate on statute of limitations grounds when the material facts concerning the statute of limitations [are] not in dispute . . ." (Citation omitted; internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 313, 77 A.3d 726 (2013). " [I]n the context of a motion for summary judgment based on a statute of limitations special defense, a defendant typically meets its initial burden of showing the absence of a genuine issue of material fact by demonstrating that the action had commenced outside of the statutory limitation period . . . When the plaintiff asserts that the limitations period has been tolled by an equitable exception to the statute of limitations, the burden normally shifts to the plaintiff to establish a disputed issue of material fact in avoidance of the statute." Id., 321.

" [A]lthough, generally, the device used to challenge the sufficiency of the pleadings is a motion to strike; see Practice Book § 10-39; our case law [has] sanctioned the use of a motion for summary judgment to test the legal sufficiency of a pleading" if a party has waived its right to file a motion to strike by filing a responsive pleading. (Internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 535 n.10, 51 A.3d 367 (2012). " [T]he use of a motion for summary judgment to challenge the legal sufficiency of a complaint is appropriate when the complaint fails to set forth a cause of action and the defendant can establish that the defect could not be cured by repleading . . . [The Supreme Court] has recognized that there are competing concerns at issue when considering the propriety of using a motion for summary judgment for such a purpose. On the one hand, [i]f it is clear on the face of the complaint that it is legally insufficient and that an opportunity to amend it would not [cure that insufficiency], [there is] no reason why [a] defendant should be prohibited from claiming that he is entitled to judgment as a matter of law and from invoking the only available procedure for raising such a claim after the pleadings are closed . . . It is incumbent on a plaintiff to allege some recognizable cause of action in his complaint . . . Thus, failure by [a defendant] to [strike] any portion of the . . . complaint does not prevent [that defendant] from claiming that the [plaintiff] had no cause of action and that [summary judgment was] warranted . . . [Indeed], [the Supreme Court] repeatedly has recognized that the desire for judicial efficiency inherent in the summary judgment procedure would be frustrated if parties were forced to try a case where there was no real issue to be tried . . . On the other hand, the use of a motion for summary judgment instead of a motion to strike may be unfair to the nonmoving party because [t]he granting of a defendant's motion for summary judgment puts [a] plaintiff out of court . . . [while the] granting of a motion to strike allows [a] plaintiff to replead his or her case." (Citations omitted; internal quotation marks omitted.) Ferri v. Powell-Ferri, 317 Conn. 223, 236-37, 116 A.3d 297 (2015). Indeed, " [i]f a plaintiff is unable to present sufficient evidence in support of an essential element of his cause of action at trial, he cannot prevail as a matter of law." Stuart v. Freiberg, supra, 316 Conn. 823.^[4]

A Count One--Fraudulent Misrepresentation

In count one, the plaintiff additionally alleges that the defendant purchased the property in or around March 2007 and, in April 2007, the property was exposed to severe flooding that washed away the driveway at the property and resulted in the closure of Cherry Brook Road. After the August 2011 flooding, the plaintiffs...