Opinion
FSTCV166029248S
06-02-2017
Lanphier Day Spa, Inc. v. Urstadt Biddle Properties, Inc.
UNPUBLISHED OPINION
MEMORANDUM OF DECISION re MOTIONS FOR SUMMARY JUDGMENT (#105.00, #108.00 AND #113.00)
Kenneth B. Povodator, J.
Background/Procedural Context
This is second generation litigation arising from incidents that primarily occurred in the 2011-12 time frame. The earlier round of litigation was resolved or withdrawn in 2012-13 (with a vestige dismissed in 2015). The plaintiffs are a corporate entity and its principals; the defendants include the owners of the premises where the plaintiff business formerly did business, a former employee who also became the operator of a similar business at the subject premises after the plaintiffs ceased to operate the business at that location, and two law firms.
Arguably, this is third generation, as there also was a bill of discovery proceeding in the intervening years.
UB Darien, Inc. is identified in ¶ ¶ 9 and 10 of the complaint as the owner/ lessor of the demised premises. At other times and in other documents, Urstadt Biddle Properties, Inc. appears to be identified as the owner with UB Darien, Inc. identified as a property manager, e.g. ¶ 13. These defendants refer to themselves collectively as UBP and the court will use either that designation or refer to them collectively as the owner defendants.
The defendants--except for defendant Tibbetts Keating & Butler, LLC--have moved for summary judgment (three motions), primarily based on the outcome of the earlier litigation and/or the claimed running of the applicable statutes of limitations. The plaintiffs have filed objections to each of the motions. Although there are separate motions, the common facts and the extent to which the analysis in one motion is directly applicable to other motions, warrant addressing the three motions in one memorandum of decision.
The background starts with a lease renewal/extension process in or around 2011. The named plaintiff wanted to renew its lease with the owner defendants, and there were issues relating to possible sale of the business to an employee, defendant Stefanou. That evolved into a claim that the owner and defendant Stefanou were trying to prevent or undercut the efforts to renew/extend the lease. In December of 2011, the owner defendants commenced an eviction proceeding against the named plaintiff, based on the expiration and non-extension of the plaintiffs' lease (expiration on November 30, 2011); the plaintiffs responded by commencement of litigation asserting a number of theories of liability, similar to the claims here. Due to the landlord-tenant nexus of many of the claims, the civil litigation was transferred to the Housing Division of the Superior Court, Lanphier Day Spa, Inc. v. Stefanou, FSTCV116012063S; see, also, Lanphier Day Spa, Inc. v. Stefanou, FSTCV124023060S, which was consolidated with the 2011 case. A central issue is whether the critical events that occurred in court on January 10, 2012 (resolving the eviction proceeding) related solely to the eviction proceeding that had been commenced by the owner defendants, or also encompassed the separate litigation commenced by the current plaintiffs against the owner defendants (and Stefanou).
It is not clear how the individual plaintiffs have standing to pursue any or all of the claims being advanced by the named plaintiff, an LLC. The court generally will refer to the plaintiffs (plural) while noting the potential jurisdictional of standing of the individual plaintiffs. (The standing issue does not impact the ability of the named plaintiff to proceed, only whether the principals of the LLC also have a similar or derivative right.)
The two earlier Stamford cases were consolidated beyond the typical consolidation under Practice Book § 9-5, under which separate files are mandated; see, #109.00 in FSTCV116012063S: " No further pleadings shall be filed in docket number FSTCV124023060 by any party in this case. All pleadings must be filed under the original docket number of FSTCV116012063. The clerk shall scan any pleadings not filed in CV116012063 into that file." The cases were effectively merged, not merely consolidated. The court is unaware of an explanation for the two proceedings that were merged, separate and apart from the eviction proceeding commenced directly in the Housing Division. (Additional litigation included Stefanou v. Lanphier Day Spa, Inc., NNHCV116021879S (which included claims of defamation) and Lanphier Day Spa, Inc. v. Hinckley, Allen & Snyder, LLP, HHDCV146049977S (the previously-mentioned bill of discovery proceeding).)
In late January of 2012, the plaintiffs withdrew their claims against the owner defendants in the then-pending civil litigation (with the litigation remaining pending as to defendant Stefanou). In terms of final disposition, FSTCV116012063S was withdrawn on April 2, 2013; the last activity on FSTCV124023060S (as reflected by the court docket) was on or about September 7, 2012, with the case subsequently dismissed pursuant to Practice Book § 14-3 (so-called dormancy dismissal) on January 23, 2015.
Virtually the entire current dispute arises from the prior litigation and the circumstances surrounding the termination of the prior litigation, including claims relating to execution (or non-execution) of a formal release of claims in the courthouse on January 10, 2012. The court will discuss the facts and claimed facts as necessary. (The court will not recite the well-established standards for summary judgment in detail, alluding to principles in the course of the discussion, as appropriate.)
The First Count, setting forth the facts upon which all of the counts depend, contains 109 paragraphs occupying 22+ pages. The defendants recite additional facts and/or variations (different interpretations) of the facts as alleged by the plaintiffs. A comprehensive statement of the facts as agreed or disputed would be impractical. (The owner defendants' recitation of just the litigation history occupies over 6 full pages of their brief.)
Discussion
I. Urstadt Biddle Properties, Inc. and UB Darien (#105.00)
The owner defendants claim that they are entitled to summary judgment because
there is no genuine issue of material fact regarding the following: (1) the Plaintiffs are barred from re-filing and re-litigating claims against the UBP Defendants that have already been surrendered, released, and withdrawn back in January 2012; and (2) the Plaintiffs' claims in Count 3, Count 4, Count 5, Count 6 and Count 9 are not only barred by the applicable statute of limitations, but in addition, the doctrine of fraudulent concealment alleged in Count 8 for purposes of tolling is also unavailable to the Plaintiffs as a matter of law as to each of those applicable counts.
The plaintiffs do not appear to challenge the defendants' comparison of claims in this litigation and the earlier litigation, as recited by the owner defendants:
[B]oth contain six identical causes of action: Breach of Contract; Tortious Interference; Conversion; Unjust Enrichment; Fraud and Misrepresentation; and CUTPA. The only new cause of action that now appears in the 2016 Civil Action but was not included in the 2011 Civil Action against the UBP Defendant is the count alleging Breach of Good Faith and Fair Dealing (Count Three). The 2016 Civil Action also includes allegations of Fraudulent Concealment against the UBP Defendants and others (Count Eight), which is not an independent cause of action.
The paragraphs preceding the conclusion section of their brief summarizes the plaintiffs' position:
The fact remains that the plaintiffs deny they signed the General Release. It follows that a combination of TKB, HAS and UB induced the plaintiffs into believing that only the housing matters were being resolved and the civil case would continue. The plaintiffs would not have authorized settlement if they were aware of these facts. The plaintiffs believed they had a lucrative lawsuit for tortious interference against UB and Stefanou. They would not release those lucrative claims for a mere six month extension of their lease. The benefit received pursuant to the settlement is disproportionate to the damages they claimed in the underlying matter. Something is amiss here and we do not yet know what it is. What we do know, is that it is premature to find for the defendants as a matter of law.
Herein, the plaintiffs made reasonable efforts to discover if a wrong occurred. They filed a Bill of Discovery and had made every effort to examine the General Release. In response, they were only met with refusals and objections.
There remain genuine issues of material fact as to whether the plaintiffs were justified in their failure to discover their civil case had been withdrawn at the time of the Housing Session. Furthermore, it is axiomatic that the movant must establish the date on which the statute of limitations begins to run in his motion for summary judgment before a court can make a determination as to the date on which plaintiffs' claims are barred. In this matter, the defendant has completely failed to establish the start date. It has arbitrarily decided that the date UB purportedly ended negotiations for a lease extension on April 11, 2011 to be the date the statute of limitations began to run. There is no argument or explanation as to correct or more appropriate that some other date; e.g. the date the lease with Stefanou was recorded. The defendant's failure to meet its burden is fatal to its statute of limitations argument. This fact coupled with the lack of evidence as to whether the defendants' conduct warrants equitably tolling of the statute of limitations, and, if so, until when, renders this court completely unable to effectively establish the parameters needed to issue a finding on statute of limitations. Accordingly, the defendant's motion for summary judgment should be denied.
The court will start with the statement: " There remain genuine issues of material fact as to whether the plaintiffs were justified in their failure to discover their civil case had been withdrawn at the time of the Housing Session [settlement." The law does not always correspond to factual reality, but rephrasing that sentence to eliminate the passive voice demonstrates the existence of what might be characterized as a legal oxymoron: " There remain genuine issues of material fact as to whether the plaintiffs were justified in their failure to discover that the plaintiffs had withdrawn their civil case at the time of the Housing Session [withdrawal]."
" [T]he Housing Session" is not an event that occurred at a specific time; the statement only makes sense if the event/word " settlement" (or some similar term) is presumed to have been intended.
The plaintiffs withdrew the action as to the owner defendants in January of 2012. If they lacked actual knowledge, they had constructive knowledge as the knowledge of their agent--their attorney--is imputed to them. Related: Elsewhere, the plaintiffs claim that their attorney lacked actual or apparent authority to file a withdrawal; they cite no authority for the proposition, and while actual authority may be a factual issue, attorneys have apparent authority to act on behalf of their clients in connection with pending litigation, particularly when, as here, there had been in-court discussions of settlement of at least some aspects of the legal issues between the parties. Further, as discussed below, even if the plaintiffs lacked knowledge of the withdrawal, or if it is a factual issue, it is not a material issue for purposes of this motion because the court concludes that under the circumstances of this case, the withdrawal cannot form a basis for judgment for the defendants.
The plaintiffs state:
" It is hornbook law that clients generally are bound by the acts of their attorneys." Monroe v. Monroe, 177 Conn. 173, 181, 413 A.2d 819, appeal dismissed, 444 U.S. 801, 100 S.Ct. 20, 62 L.Ed.2d 14 (1979). " [T]he application of this rule of law assumes that the attorney who so acts in a way purporting to bind his client does no more than control the matter committed to him." Porcu v. Moore, No. CV950052136S, 1997 WL 381382, at *2 (Conn. Super. Ct. June 27, 1997) [19 Conn.L.Rptr. 666, ]. " An attorney who is authorized to represent a client in litigation does not automatically have either implied or apparent authority to settle or otherwise to compromise the client's cause of action." Acheson v. White, 195 Conn. 211, 218, 487 A.2d 197 (1985); Cole v. Myers, 128 Conn. 223, 228, 21 A.2d 396 (1941).
Assuming that the plaintiffs are correct in asserting that an attorney does not " automatically have either implied or apparent authority to settle or otherwise to compromise the client's cause of action" under current jurisprudence, this case does not involve any settlement or compromise of a client's cause of action. The issue of execution of a release by the plaintiffs is not a matter of authority of an attorney to settle or compromise a claim--the issue is whether there was actual consent by the plaintiffs as documented by the claimed signatures on the document.
Acheson relied on Cole; Cole involved the conduct of a municipal attorney, and it is well established that a party dealing with a municipal representative is charged with knowledge of the limits of the representative's actual authority; see, e.g. Norwalk v. Board of Labor Relations, 206 Conn. 449, 538 A.2d 694 (1988), implicitly recognizing distinction in case of municipal attorneys. More generally, see Keeney v. Old Saybrook, 237 Conn. 135, 676 A.2d 795 (1996). With respect to the expanding scope of recognition of apparent authority, see, Cefaratti v. Aranow, 321 Conn. 593, 141 A.3d 752 (2016). The facts in this case go beyond any " automatic" perception of authority, given the presence of the parties with attorneys in court on January 10, 2012, and undisputed discussions as to settlement of at least some matters in dispute.
The other issue identified by the plaintiffs in this regard is the withdrawal of litigation --but the withdrawal of litigation, unaccompanied by an enforceable agreement not to refile, is not a compromise or settlement of any claim but rather a matter of litigation strategy--or to use the language quoted above, it amounts to " no more than control [of] the matter committed to him." (The court notes that the dockets of the prior civil litigation do not reflect any effort to restore either case to the docket or open the judgment of dismissal.)
The plaintiffs' litigation was withdrawn in January of 2012 with respect to the owner defendants (roughly contemporaneously with resolution of the eviction proceeding). As noted earlier, the final terminations of the remaining litigation against defendant Stefanou occurred in April of 2013 and January of 2015.
To the extent that the non-release-based termination of prior litigation is germane, the plaintiffs have not identified a basis for challenging the authority of their attorney to withdraw litigation nor more importantly have they challenged their imputed knowledge of the withdrawals based on the undisputed status that their attorney was their authorized agent for purposes of litigation. Most importantly: If they have a complaint about the prior litigation having been terminated without permission or knowledge, that is not a matter of concern with respect to the moving defendants.
The next statement in the quoted passage departs from factual foundation, insofar as there is a record before the court: " It follows that a combination of TKB, HAS and UB induced the plaintiffs into believing that only the housing matters were being resolved and the civil case would continue." Again, the plaintiffs may have lacked actual knowledge of the global resolution as claimed by the defendants--but how does that become an inducement by all of the identified defendants to believe that " only the housing matters were being resolved and the civil case would continue?" This goes beyond the mere lack of authority of their own attorney to enter into a global settlement--this implies (but without any evidence of record) that their attorney and the other identified defendants affirmatively misled the plaintiffs. As to the moving parties, what did they say or do that induced the plaintiffs to believe that there was any remaining aspect of the pre-existing litigation? Summary judgment cannot be defeated by mere speculation as to possibilities.
Further, absent any attempt to proceed with the earlier litigation, including the absence of any effort to reinstate the prior litigation, how were the plaintiffs harmed? Especially since in the context of a denial of signing the release and the claimed lack of knowledge of the withdrawals, they necessarily believed that the litigation was still pending. As noted earlier, the court had done more than merely consolidate the cases for trial; they had been effectively merged into a single proceeding.
The next two linked sentences in the quoted passage: " The plaintiffs would not have authorized settlement if they were aware of these facts. The plaintiffs believed they had a lucrative lawsuit for tortious interference against UB and Stefanou." Arguably implicit in this passage is that they may have authorized a settlement but that they may not have appreciated or understood its full implications. The court must return to the refrain: How does that implicate the rights or obligations of the moving defendants? How does that represent tortious or wrongful conduct by the defendants? Again, it all boils down to enforceability of the release--and the court has concluded that there is a material issue of fact in that regard.
" Something is amiss here and we do not yet know what it is. What we do know, is that it is premature to find for the defendants as a matter of law." This proceeding was commenced 4 1/2 years after the withdrawal of the earlier litigation as to the owner defendants; other than the denial of signing the releases and the authorization of counsel to enter a global settlement, what intervening material conduct has transpired or been identified? The individual plaintiffs do not deny having been in court on the date that the releases allegedly were signed as part of the settlement process; even if they had not signed the releases, they were present during the court proceedings and were on notice that " something" had been terminated/settled. During the court's brief canvass, mention was made of the existence of attached releases. Communications shortly thereafter made mention of parties having been released. The defendants submitted evidence that a prior attorney of the plaintiffs (attorney Glucksman) had been provided a copy of the release (approximately 2013).
The merged 2011-2012 actions were withdrawn as to the owner defendants on January 31, 2012; this action was commenced by service on June 23-24, 2016 (#100.30).
Proceeding to the next paragraph quoted above: " Herein, the plaintiffs made reasonable efforts to discover if a wrong occurred. They filed a Bill of Discovery and had made every effort to examine the General Release. In response, they were only met with refusals and objections." If one or both of the individual plaintiffs deny having signed the releases, what more is/was needed, at least with respect to the likely existence of " a wrong" (to the extent that there is claimed to have been " a wrong" associated with the releases)? The bill of discovery may have sought confirmation or additional evidence, but the wrong was known, once the plaintiffs were aware of the existence of a purported release that they claim not to have executed.
Yet again, absent involvement of the moving defendants in the process of obtaining " unauthorized signatures" on the releases, how would that wrong be attributable to the moving defendants, or otherwise impact on their potential liability to the plaintiffs in this proceeding?
Before proceeding to a count-oriented analysis, it is helpful to identify and briefly discuss and review the three key issues that are presented by this motion. The existence/validity of releases executed by the plaintiffs, in favor of the owner defendants, potentially is dispositive as to claims directed to those defendants. The individual plaintiffs assert/insist, by way of their affidavits, that they did not sign the release. The defendants, in turn, insist/assert that the overwhelming evidence is that the plaintiffs did sign the release. The defendants do not explain how the court can disregard a sworn denial of that nature. Connecticut courts generally have not accepted the " sham affidavit doctrine" pursuant to which a court may disregard an affidavit that is in conflict with prior sworn testimony; see, Stuart v. Freiberg, 316 Conn. 809, 829 n.14, 116 A.3d 1195 (2015); DiPietro v. Farmington Sports Arena, LLC, 123 Conn.App. 583, 616-19, 2 A.3d 963 (2010), reversed on other grounds, 306 Conn. 107, 49 A.3d 951 (Conn. 2012); here, there is no prior sworn testimony that supposedly warrants disregard of later sworn statements, and the plaintiffs dispute the legitimacy of the prior claimed statement/act. The affidavit-based denials create a material issue of fact.
As with a motion for directed verdict or a motion to dismiss for failure to make out a prima facie case, in connection with summary judgment, the court is not concerned with the strength or weakness of a party's position/evidence; the issue is whether the non-moving party has proffered the minimum amount of evidence sufficient to get to a factfinder on the particular issue (assuming that the moving party has satisfied its initial burden of an apparent lack of material factual issue, based on its submission). In determining whether the non-moving party has met that burden, the court is required to give the non-moving party the benefit of all favorable inferences; the court does not weigh credibility. Under that standard, the court cannot determine the claimed release is enforceable, as a matter of law (i.e. is a sufficient basis for summary judgment).
The next issue that must be addressed is the effect, if any, of prior litigation. As already identified, there has been a proliferation of litigation between/among the parties. There is no dispute--the court can take judicial notice of the files, if there were any doubt at all--that the plaintiffs withdrew prior litigation against the owner defendants in early 2012, and the remaining portion of the litigation directed to defendant Stefanou was withdrawn and dismissed on dormancy. The defendants are correct in stating that a withdrawal concludes prior litigation, but a withdrawal does not conclude the prior litigation on the merits in a way that is sufficient to support a claim of res judicata or collateral estoppel.
The court rejects the defendants' contention that a withdrawal is the equivalent of a judgment for purposes of the issues in this case. A withdrawal is not a determination of the merits of a dispute, or the determination of any sub-issues. A withdrawal does not preclude commencement of a new proceeding raising the same issues. In and of itself, a withdrawal does not even indicate the party who " prevailed." In Connecticut Housing Finance Authority v. Alfaro, 163 Conn.App. 587, 135 A.3d 1256; cert. granted, 321 Conn. 925, 138 A.3d 286 (2016), the court rejected the claim that a plaintiff's withdrawal of a proceeding constituted (or implied) a favorable outcome for the defendant. The defendants have cited no authority for the implied proposition that a withdrawal has any bearing on claim or issue preclusion (res judicata or collateral estoppel), which require some level of determination of or on the merits. By contrast, a stipulated judgment, which does not require formal adjudication by the court, involves court adoption of the parties' agreement as a judgment, implicitly determining the merits (and the court is not required to adopt an agreement of the parties). Such a judgment properly is characterized as a judgment--something that is not applicable to a withdrawal. (In some jurisdictions, the protocol is utilization of a voluntary dismissal or some other term that is at least suggestive of a judgment, but that is not the practice in Connecticut.)
Under our law, the effect of a withdrawal, so far as the pendency of the action is concerned, is strictly analogous to that presented after the rendition of a final judgment or the erasure of a case from the docket. The withdrawal . . . effectively erased the court slate clean as though the eviction predicated on the . . . notice to quit possession had never been commenced . The plaintiff and the defendant were " back to square one, " and the continuation of their lease of January 9, 1981, was restored. (Emphasis added; internal quotation marks and citations, omitted.) Housing Authority of Town of East Hartford v. Hird, 13 Conn.App. 150, 157, 535 A.2d 377, 381 (1988).
To the extent that the defendants are arguing that the withdrawal was part of a global settlement, again, there is the inherent nature of the settlement that stands in the way of giving it preclusive effect here. Parties may settle a case by stipulating to judgment (as noted in the paragraph preceding the above quoted passage), or the parties may agree to a settlement that is not made part of a judgment. In practice, parties often have reasons for preferring one approach or the other, but the approaches are distinct. (It is not uncommon in non-judgment settlements for the settlement agreement to be recited on the record, as a means of memorializing the agreement, often coupled with a canvass by the court, but again, that is distinct from the entry of a judgment in accordance with the stipulation.) If a party breaches a non-judgment settlement agreement, the options available to the non-breaching party include, depending upon timing and circumstances, restoration of the case to the docket or summary enforcement under Audubon Parking Assocs. Ltd. Partnership v. Barclay & Stubbs, Inc., 225 Conn. 804, 626 A.2d 729 (1993). Even under Audubon, the allegedly breaching party would be entitled to a hearing, at which the non-breaching party would have the burden of establishing the existence of an agreement--and here, the plaintiffs have denied that there was any such agreement (beyond the scope of the eviction proceeding).
Therefore, the only aspect of the earlier litigation that might be subject to res judicata treatment would be in connection with the summary process action, which did go to judgment (stipulated judgment). Res judicata is conclusive as to all claims that were asserted as well as all claims that could have been asserted; collateral estoppel applies to issues that necessarily were resolved. The defendants, however, have not provided any analysis based on the summary process judgment, and the court is limited to consideration of issues actually advanced by the moving party. (Complicating factors might include the limited scope of issues that can be raised in summary process proceedings, which might impact the scope of issues subject to preclusion under res judicata or collateral estoppel.)
What is left, then, are the statute of limitations issues that have been presented by the defendants' motions. The applicable statute of limitations depends on the nature of the claims, so a brief review of the claims is a necessary first-step. That exercise, however, immediately encounters a problem--what is the first count? In the opposition to the motion for summary judgment, the plaintiffs state that " Count 1 sets forth the following pertinent allegations:" followed by excerpted paragraphs from what is identified as the first count, and then describes the remaining counts:
Count 2 is premised on Breach of Contract as to UB; Count 3 is premised on Breach of Duty of Good Faith and Fair Dealing as to UB; Count 4 is premised on Tortious Interference as to UB and Stefanou; Count 5 is premised on conversion and Unjust Enrichment as to UB and Stefanou; Count 6 is premised on Fraud and Misrepresentation as to Stefanou, TKB, HAS and UB; Count 7 is premised on Negligence as to TKB and HAS; Count 8 alleges Fraudulent Concealment as to TKB, HAS and UB Defendants; and Count 9 is premised on CUTPA against all five defendants.
The first count is not identified as anything other than a repository of facts to be incorporated into all other counts. To the extent that the first count is encompassed by the motion for summary judgment, the court is treating it as essentially a briefer version of the contract claim set forth in the second count.
Treating the first two counts as essentially the same, they allege a breach of contract. The only grounds for seeking judgment as to the contract claims are the releases and the claimed preclusive effect of the filing of a withdrawal. The court already has noted that the denial by the individual defendants relating to their signing the release creates a material issue of fact. The court has rejected the claim that the withdrawal of the earlier civil litigation, even if analogous to a judgment, is not a judgment for purposes of preclusive effect--or at least the defendants have not provided any convincing authority for such a proposition. Again, the only judgment that might be relied upon for preclusive effect was the stipulated judgment in the eviction action, but again, the defendants have not provided any analysis in that regard, and the court is limited to issues actually advanced by the moving party. Therefore, the motion must be denied as to the first two counts.
The claims of tortious interference with contractual rights, conversion, fraud and misrepresentation, and violation of CUTPA, all relate to the conduct of the defendants in 2011 and at the latest, 2012. The undisputed evidence is that the prior acknowledged lease of the subject premises in favor of the named plaintiff expired on November 30, 2011, leading to the December 2011 eviction proceedings and the January 10, 2012 resolution of the eviction proceedings. Therefore, any interference with contractual rights or expectancies must have predated January 10, 2012. Any conversion arising from Stefanou's occupation of the premises could not have taken place any later than initiation of that occupancy--also in 2012.
The plaintiffs do recite facts/events long after 2012, but they do not relate to any alleged cause of action. They deny the validity of the release so that any concealment or misrepresentation that occurred after the alleged execution of the release has no bearing on any harm they suffered. (They do not allege any form of reliance on anything done by these defendants after mid-2012, a necessary element of any claim of fraud or misrepresentation.) Any conduct that may have involved the conduct of a trade or business by these defendants occurred in 2011-12, such that CUTPA-based allegations are limited to that timeframe. (Concealment of a claimed release--essentially an oxymoron to the extent that the release, to be effective, had to have been executed by the plaintiffs and therefore known to the plaintiffs--is not conduct in the course of a trade or business but rather a litigation issue.) There is nothing in the plaintiffs' submission identifying liability-creating conduct within 3 years of the commencement of this litigation, and both General Statutes § 52-577 (general statute of limitations for torts) and General Statutes § 42-110g(f) (CUTPA time limitation for commencing action) limit the right to bring an action to 3 years after the wrongful conduct.
The plaintiffs argue that there should be equitable tolling of the applicable statute of limitations, General Statutes § 52-577, but they cite no Connecticut appellate authority, particularly for the discovery-based tolling that they seek. To the contrary, our appellate courts have recognized that § 52-577 is not discovery-based, and only in a limited number of situations might there be tolling. Thus, in Rosato v. Mascardo, 82 Conn.App. 396, 407, 844 A.2d 893, 900 (2004), the court stated: " Section 52-577 is solely a repose statute and contains no discovery provision. The repose portion of § 52-584 is not at issue in this case. Accordingly, the analysis and application of tolling doctrines in DeLeo as to § 52-577 do not guide us in our analysis and application of tolling doctrines as to § 52-584."
The reference to DeLeo v. Nusbaum, 263 Conn. 588, 821 A.2d 744 (2003) is instructive. Appellate decisions have recognized a basis for tolling in cases where there is a continuing relationship between the parties, including (in DeLeo) continuing representation by an attorney. Continuing course of treatment by a physician is another recognized basis for tolling, Straw Pond Assocs., LLC v. Fitzpatrick, Mariano & Santos, P.C., 167 Conn.App. 691, 715, 145 A.3d 292, 308 (2016). Other than conversion of § 52-577 into a discovery-based statute, the plaintiffs have identified no possible-equitable basis for any tolling of any claim that they have advanced.
As noted by the defendants, the fraudulent concealment statute, General Statutes § 52-595, has the effect of tolling the statute of limitations in connection with fraudulent concealment--but the burden is on the plaintiffs to establish such fraudulent concealment, Krondes v. Norwalk Sav. Soc'y, 53 Conn.App. 102, 115, 728 A.2d 1103 (1999)--an intent to conceal facts and an intent to delay the filing of an action against the defendants, id. at 114-15. The plaintiffs have identified nothing that was done by the defendants, after 2012, that concealed the existence of a cause of action or delayed the commencement of this litigation--the plaintiffs have identified no actionable harm caused by the release. Prior to it being raised as a defense in this case, the plaintiffs merely challenged its validity without any identified adverse impact on their rights--putting aside the knowledge of its existence imputed to the plaintiffs by virtue of counsel in 2012 and separate counsel later that year into 2013 knowing of the existence of the document. In other words, even if the defendants concealed the existence of a release, that concealment could not have hindered the plaintiffs in commencing an action. The plaintiffs do claim that the defendants failed to disclose information required to be disclosed by the release--but that is not concealment of a claim separate and apart from the release. In effect, that alleged concealment is identified as a breach of the contract-quality obligations imposed on the defendants by the release which might nullify the release if it were otherwise valid, but that is not concealment of a cause of action. And again, the plaintiffs do not acknowledge the possible validity of the release in the first instance, so their conduct could not have been influenced by non-disclosure under the provisions of that document.
One theoretical possibility: To the extent that the plaintiffs argue that conduct of the defendants (nondisclosure of a document) constitutes a violation of the conditions of the release, they could have commenced an action for breach of the release (as a contract). However, that is not within the scope of the complaint, and the plaintiffs consistently have unqualifiedly denied executing the release.
In sum, then, the owner defendants have established entitlement to judgment on the statute of limitations defenses to the claims of tortious interference, conversion, fraud and misrepresentation, and CUTPA.
The defendants' challenge to the claim of unjust enrichment is based on the existence of a contract-based claim asserted by the plaintiffs, coupled with the principle that the claims are mutually exclusive (" Unjust enrichment is a legal doctrine to be applied when no remedy is available pursuant to a contract . . ." Town of Stratford v. Wilson, 151 Conn.App. 39, 49, 94 A.3d 644, 652 (2014)). The defendants do not allow for the ability of a party to plead in the alternative--especially appropriate since the defendants appear to dispute the existence of any contractual basis for recovery (including an apparent claim that even without benefit of the release, the plaintiffs had no contractual rights once the lease expired on November 30, 2011). The inability to prevail on mutually-exclusive claims does not preclude assertion of such claims in the first instance. The motion must be denied as to the unjust enrichment claim.
Although the conversion and unjust enrichment claims are in a single count, they represent distinct causes of action and therefore the court can grant summary judgment as to one cause of action and not the other--especially appropriate since conversion is a legal claim while unjust enrichment is an equitable claim.
II. Defendant Hinckley Allen & Snyder LLP (#108.00)
Defendant Hinckley Allen & Snyder LLP (" HAS"), the law firm that had represented the owner defendants at the time of the eviction and other/earlier litigation, has moved for summary judgment, asserting that
the claims against HAS premised on Fraud and Misrepresentation (Count 6), Negligence (Count 7), Fraudulent Concealment (Count 8) and the Connecticut Unfair Trade Practices Act (" CUTPA") (Count 9) are barred by the applicable statute of limitations. Furthermore, the doctrine of fraudulent concealment which is alleged in Count 8 is unavailable to the Plaintiffs as a matter of law for purposes of tolling each of the Counts concerning HAS.
The court's analyses, above, of the fraud and misrepresentation claim and the CUTPA claim, as relates to the applicable statutes of limitation, are equally applicable here. HAS goes into perhaps greater detail, in part because of the need to respond to allegations of the plaintiffs intended to identify a possible duty of counsel for an adverse party.
Even assuming that the plaintiffs are correct that in reciting to the Housing Division court a clearly-identified summary of principal provisions of the settlement, a duty from opposing counsel to the plaintiffs was somehow created--and again, this was in their presence and in the presence of the plaintiffs' own attorney and the recitation was clearly abbreviated--what conduct or duty to act continued beyond the date of the settlement? Again, assuming that there was a concealment of the existence of a release, how did that affect--in a delaying or concealment sense--any cause of action that the plaintiffs could have asserted against any or all of the defendants in this action?
The " new" issue presented in this motion is the claim of negligence. Here, the operative statute of limitations is General Statutes § 52-584, which does include a discovery provision, but still within the confines of a repose period of 3 years from the date of wrongful conduct. Even if there had been a duty on the part of HAS as counsel for an adverse party to recite everything that the plaintiffs might deem important, there is no conduct identified subsequent to January 10, 2012 that might be a delayed trigger for commencement of the statute of limitations. To the extent that DeLeo discussed the circumstances in which there might be tolling of a statute of limitations relating to an attorney's duty, nothing in that decision is remotely applicable--starting with the non-existence at any time of an attorney-client relationship.
Thus, aside from the novel proposition that in summarizing in open court the salient provisions of a settlement for the benefit of the court's understanding of the settlement, an adverse attorney has a duty to fill in the unknown and unknowable gaps in what the party's own attorney told the client and the client's unknown possible state of lack of understanding--the plaintiffs go further and claim that the duty might continue for years thereafter. There is no factual or legal basis for an open-ended duty, and there is no claim of actionable conduct by HAS within 3 years of the commencement of this litigation.
Defendant HAS is entitled to summary judgment on all counts directed to it, based on the expiration of the relevant limitations periods applicable to the causes of action asserted against it, the plaintiffs having failed to identify any material issue of fact that might toll or negate any such limitations period.
III. Stefanou (#113.00)
The defendant, Spa Thea, LLC d/b/a Andrew Stefanou d/b/a Andrew Stefanou Salon and Spa (hereafter, Stefanou) also has moved for summary judgment as to all counts directed to it. The claims directed to defendant Stefanou are--except for the omission of the contractual claims--the same as directed to the owner defendants--tortious interference with contractual relations, conversion and unjust enrichment, fraud and misrepresentation, and a violation of CUTPA. As to each of these claims, the defendant contends that the applicable limitations period bars the claim.
The court's analyses in the previous sections fully address these claims. The latest conduct of Stefanou relevant to any of these claims was when it occupied the premises formerly occupied by the named plaintiff--in mid-2012. The plaintiffs cannot invoke concealment of the release as against this defendant because this defendant was not a released party nor involved in the eviction proceeding (as a participant).
Inferentially, the plaintiffs' vacating the premises was a necessary precondition for this defendant to commence occupancy of the subject premises.
Again, the plaintiffs have not identified any conduct of this defendant within 3 years of commencement of the litigation and they have not identified a colorable basis for tolling any limitations period (creating a material issue of fact).
Virtually the entire opposition to this motion is an incorporation of the inapplicable arguments relating to the other defendants and the release issues. The sole reference that the court could find that related specifically to this defendant was the statement: " In this matter, the defendant has completely failed to establish the start date. It has arbitrarily decided that the date UB purportedly ended negotiations for a lease extension on April 11, 2011 to be the date the statute of limitations began to run. There is no argument or explanation as to correct or more appropriate that some other date; e.g. the date the lease with Stefanou was recorded." That is accompanied by a footnote: " 'A lease that conveys an interest in land for more than one year is not effectual . . . unless the lease is recorded on the land records.' Clean Corp. v. Foston, 33 Conn.App. 197, 201, 634 A.2d 1200 (1993). The lease was not recorded until August 10, 2013. This date represents the time when the tortious interference occurred."
Taking the argument in reverse order, the plaintiffs omitted--via ellipsis--key qualifying language in the excerpt from Clean Corp.; the full sentence reads: " 'A lease that conveys an interest in land for more than one year is not effectual against a bona fide purchaser of the leased land unless the lease is recorded on the land records." This is but a routine application of the purpose for a recording system--recording provides notice of the current state of the land title to subsequent purchasers, encumbrancers, etc. A lease is a contract, and as between the parties to the contract, if it satisfies the requirements for a contract, it is enforceable. Conversely, the date of notice to the world of the existence of a lease--the date of recording--has no bearing on when or whether there had been claimed tortious interference. Any tortious interference occurred when the owner defendants stopped discussing extension of the plaintiffs' occupancy, or when the new lease was signed, or when the new tenant actually moved in. The defendant has relied on the allegations of the plaintiffs' own complaint in this regard. The plaintiffs have not submitted any evidence in support of a date that potentially could make the commencement of this litigation timely.
The contract right with which the defendant allegedly interfered was the right or expectancy of a lease extension to the then-existing lease scheduled to expire as of November 30, 2011. The plaintiffs have identified no other contractual rights with which this defendant allegedly interfered. With respect to conversion, actual occupancy of the premises by this defendant would have been the latest possible date for commencement of the applicable limitations period, and that was in 2012. Any business relationship or unfair practice of this defendant, as relates to the plaintiff, probably had to have occurred prior to the expiration of the plaintiffs' lease, and again, at the latest, as of the commencement of occupancy.
Against the defendant's reliance on the plaintiffs' own factual allegations, the plaintiffs have offered no evidence specific to this defendant--the submission contains the material submitted in opposition to the other motions relating to the denial of execution of the release on January 10, 2012, refusal to execute a release later in 2012, a walk-through of premises in 2012, an inability of counsel to find a court record relating to the release, etc.
Defendant Stefanou, then, has met its burden of establishing a prima facie case that the applicable statutes of limitation expired prior to the commencement of this litigation, and the plaintiffs have submitted nothing to create a material issue of fact in that regard. This defendant, then, is entitled to judgment.
Conclusion
The court's task is not to weigh evidence or credibility; the court's task is to determine whether the moving parties have established the absence of any material issue of fact and that based on those facts they are entitled to judgment. The plaintiffs have focused on the release, and the court cannot disregard the plaintiffs' denial of execution of the release in the process of determining whether there is a material issue of fact. The defendants cannot prevail in reliance on the purported release.
The withdrawal of the civil litigation--whether initially as to the owner defendants or later as to defendant Stefanou--has no bearing on the merits and cannot be used for purposes of res judicata or collateral estoppel; the withdrawal rendered the earlier litigation a nullity, with no possible preclusive effect.
The statutes of limitations bar all of the claims that the defendants have claimed are barred by the relevant statutes--§ 52-577, § 52-584 and § 42-110g(f). The defendants have not proved entitlement to judgment on the contract claims or unjust enrichment claims.
To summarize:
Judgment is entered in favor of the owner defendants, Urstadt Biddle Properties, Inc. and UB Darien, Inc., on the claim of tortious interference (fourth count), conversion (part of fifth count), fraud and misrepresentation (sixth count), and CUTPA (ninth count). The eighth count asserts fraudulent concealment; to the extent that it purports to be a basis for liability, the defendants are entitled to judgment and to the extent that it (properly) is considered as affecting applicability of relevant statutes of limitation in other counts, the court has taken it into consideration. The motion is denied as to these defendants with respect to the contract claims (second count and implicitly first count) and the claim of unjust enrichment (part of fifth count).
Judgment is entered in favor of the defendant Hinckley, Allen & Snyder, LLP on the claim of fraud and misrepresentation (sixth count), negligence (seventh count), and CUTPA (ninth count). The eighth count asserts fraudulent concealment; to the extent that it purports to be a basis for liability, the defendant is entitled to judgment and to the extent that it (properly) is considered as affecting applicability of relevant statutes of limitation in other counts, the court has taken it into consideration.
Judgment is entered in favor of defendant Spa Thea, LLC d/b/a Andrew Stefanou d/b/a Andrew Stefanou Salon & Spa on the claim of tortious interference (fourth count), conversion (part of fifth count), fraud and misrepresentation (sixth count), and CUTPA (ninth count). The eighth count asserts fraudulent concealment; to the extent that it purports to be a basis for liability, the defendants are entitled to judgment and to the extent that it (properly) is considered as affecting applicability of relevant statutes of limitation in other counts, the court has taken it into consideration. The motion is denied as to this defendant with respect to the claim of unjust enrichment (part of fifth count).