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ENRICO VACCARO v. SHELL BEACH

CONDOMINIUM, INC., ET AL.

(AC 37811)

Sheldon, Prescott and Bear, Js.

Argued May 17—officially released October 18, 2016

(Appeal from Superior Court, judicial district of New

Haven, Wilson, J.)

Enrico Vaccaro, self-represented, with whom, on the

brief, was Emily A. Gianquinto, for the appellant

(plaintiff).

SharonBaldwin,forthe appellee (named defendant).

Daniel J. Krisch, with whom was Joshua M. Auxier,

for the appellees (defendant Andrew Hames et al.).
Opinion

BEAR, J. The plaintiff, Enrico Vaccaro, appeals from

the summary judgment rendered by the trial court in

favor of the defendants, Shell Beach Condominium,

Inc. (association), and certain individual members of

its board of directors, Andrew Hames, Frank Meolli,

Michael Gagliardi, Michelle Augliera, and Raymond Vermette (individually named defendants), on the basis

that all of the plaintiff’s claims arising from the deprivation of the use of a particular garage were time barred.

The plaintiff argues that the court erred in rendering

summary judgment in favor of the defendants, because,

inter alia: (1) the trial court applied the wrong statute

of limitations to count one of his complaint, which

sought to enforce the condominium instruments; and

(2) genuine issues of material fact exist as to whether

the applicable statutes of limitations were tolled by

virtue of the continuing course of conduct doctrine. We

affirm the judgment of the court.1

Evidence concerning the following facts and procedural history appears in the record. Shell Beach Condominium (condominium) is a condominium complex

located in East Haven and organized pursuant to the

Condominium Act of 1976 (Condominium Act), General

Statutes § 47-68a et seq. It is comprised of forty-seven

residential units and fifty-two garages,2 and includes a

number of open-air parking spaces. The association is

a nonstock corporation, owned by the unit owners of

the condominium; membership in the association

occurs immediately upon acquisition of title in a unit.

The affairs of the condominium are conducted by a

board of directors (board), all of whom are unit owners.

See General Statutes § 47-80 (c) (1) (bylaws required

to contain, inter alia, ‘‘[t]he election from among the

unit owners of a board of directors’’). Each of the individually named defendants was a member of the board

when the plaintiff commenced this action.

In 1999, the plaintiff became a unit owner in the

condominium when he purchased his individual unit

from Salvatore Amendola, who was assisted in the sale

by his daughter, Rosalie Porrello. The warranty deed,

dated May 26, 1999, and recorded May 27, 1999, purported to convey unit 14 and garage 49.3 During this

transaction, the plaintiff was informed that garage 49

was the garage that would be conveyed with unit 14.

Neither Amendola nor Porrello, however, discussed

with the plaintiff any use of or ownership in garage 14.4

Further, although Amendola was a member of the board

at the time of the transaction, he was selling a unit that

he personally owned.5 Apart from his conversations

with Amendola, the plaintiff did not speak with any

member on the board at the time of the conveyance,

nor did he speak with any of the individually named

defendants, at or before the time of the closing.6
The plaintiff did not receive the condominium declaration priorto or during the closing; instead,the association mailed it to him at some point thereafter. Although

the plaintiff received a copy of the declaration in 1999,

he admittedly did not review that document until 2009.

In January, 2009, the plaintiff received a tax assessment that he believed to be substantially higher than

prior assessments. He contacted the assessor, and was

informed that he was being assessed for both garage

14 and garage 49. After this conversation, the plaintiff

examined the condominium instruments7 and came to

believe that he was entitled to the exclusive use of

garage 14, not garage 49.8 The plaintiff contacted the

board and demanded that it, on behalf of the association, take action to provide him with use of garage

14 pursuant to the applicable statutory authority and

provisions of the condominium instruments. After the

board denied the plaintiff’s request, the plaintiff commenced this action by summons and a seven count

complaint9 on each of the defendants in July, 2009, in

which he alleged, inter alia, that the defendants had

deprived him of the use of garage 14 in violation of the

condominium instruments and the Condominium Act.

The defendants filed a motion for summary judgment

on January 23, 2012, in which they claimed, inter alia,

that the statutes of limitations had run on all seven

counts of the plaintiff’s complaint.10 After the court

allowed additional time for the parties to conduct discovery, and the parties had filed additional briefs, the

court heard argument on October 20, 2014. In a memorandum of decision dated February 9, 2015, the court

granted the defendants’ motion for summary judgment

as to all counts, making several determinations relevant

to this appeal. First, it determined that, pursuant to the

declaration, garages are limited common elements of

the condominium,11 ratherthan units12 as the defendants

had contended. Second, it also determined that the declaration did not require that particular garages or parking areas be assigned to any particular units, and the

defendants therefore had no ongoing duty to ensure

that the plaintiff, as title owner of unit 14, be assigned

garage 14. Having already concluded that there was no

genuine issue of material fact concerning whether the

applicable statute of limitations as to each count had

run, the court accordingly rendered judgment for the

defendants on all counts.13 The plaintiff filed a motion

for reargument and/or reconsideration, which the court

denied. This appeal followed.14

I

The plaintiff argues that the court erred in rendering

summary judgment on the first count of his complaint,

in which he claimed that the defendants, by their conduct, had violated General Statutes § 47-75 (a),15

because it improperly relied upon the wrong limitations
period in ruling on the timeliness of that claim. In this

respect, the plaintiff makes two separate and distinct

claims. First, he argues that the court erred in determining that any statute of limitations applies to count one

because a claim under § 47-75 is equitable in nature.

Second, he argues that, even if the court properly determined that the claim pleaded in his first count is subject

to a statute of limitations, the court erred in determining

that the applicable limitations period is the three year

limitations period for tort actions.

The determination of which statute of limitations

applies to a given action is a question of law over which

ourreview is plenary. See Fleet National Bank v. Lahm,

86 Conn. App. 403, 405, 861 A.2d 545 (2004), cert. denied,

273 Conn. 904, 868 A.2d 744 (2005). We address each

of the plaintiff’s claims in turn.

A

With respect to his first claim, the plaintiff argues

that the court improperly determined that count one is

subject to any statute of limitations because an action

pursuant to § 47-75 is equitable, and equitable proceedings are not subject to statutes of limitations.16 We

disagree.

The following facts are relevant to the resolution of

this claim. In the first count of the complaint, the plaintiff alleges that the defendants, pursuant to both § 47-

75 and article 15 of the declaration,17 are required to

comply with and enforce the condominium instruments

and the Condominium Act. Pursuant to the declaration,

the plaintiff alleges that garages are limited common

elements, and that he, as the title owner of unit 14, is

entitled to an exclusive easement in garage 14. He further alleges that the declaration forbids any attempt to

convey or mortgage the title to a unit without conveying

all appurtenant interests or any attempt to sell or transfer an appurtenant interest except as part of the unit

to which it is attached, and that the defendants, ‘‘in

violation of the condominium instruments and the Condominium Act,’’ have ‘‘wilfully allowed and/or permitted

and/or caused’’ the interest in garage 14 to be severed

from unit 14 and unit 14 to be sold to the plaintiff

without the exclusive use of garage 14, and have ‘‘wilfully allowed and/or caused and/or permitted and/or

continue to permit’’ another unit owner to use garage

14. (Internal quotation marks omitted.) Further, the

plaintiff alleges that the defendants have failed to correct this situation, despite demands by the plaintiff that

they ‘‘comply with and enforce the condominium instruments, the Condominium Act . . . and the easement

in favor of the plaintiff for the exclusive use of’’ the

garage. (Internal quotation marks omitted.) As a result

of the defendants’ actions, the plaintiff alleges a number

of injuries, including that he has been denied the use

of garage 14 and has suffered financial harm because,

inter alia, he has been assessed for and has paid taxes
on that garage, paid for electricity for that garage, and

the fair market value of his property has been substantially reduced. Counts two through seven of his complaint rely on most of the same operative facts as count

one. In his prayer for relief, he seeks, inter alia, various

forms of injunctive relief pursuant to § 47-75 and compensatory damages, but does not attempt to allocate

any particular relief to any particular count.

Our case law draws a distinction where statutes of

limitations are concerned between purely equitable proceedings and actions where a party can seek both legal

and equitable relief. ‘‘[I]n an equitable proceeding, a

court may provide a remedy even though the governing

statute of limitations has expired, just as it has discretion to dismiss for laches an action initiated within the

period of the statute. . . . Although courts in equitable

proceedings often look by analogy to the statute of

limitations to determine whether, in the interests of

justice, a particular action should be heard, they are by

no means obliged to adhere to those time limitations.’’

(Citations omitted.) Dunham v. Dunham, 204 Conn.

303, 326–27, 528 A.2d 1123 (1987), overruled in part on

other grounds by Santopietro v. New Haven, 239 Conn.

207, 213 n.8, 221, 682 A.2d 106 (1996).

The situation is different, however, where a party

asserts a cause of action, pursuant to which it rightfully

could seek both legal and equitable relief. ‘‘[W]here a

party seeks equitable relief pursuant to a cause of action

that would also allow that party to seek legal relief,

concurrent legal and equitable jurisdiction exists, and

the statute of limitations that would be applicable to

bar the legal claim also applies to bar the equitable

claim.’’ (Internal quotation marks omitted.) Gager v.

Sanger, 95 Conn. App. 632, 641–42, 897 A.2d 704, cert.

denied, 280 Conn. 905, 907 A.2d 90 (2006). For instance,

in Dowling v. Finley Associates, Inc., 49 Conn. App.

330, 334–35, 714 A.2d 694 (1998),rev’d on other grounds,

248 Conn. 364, 727 A.2d 1245 (1999), this court held

that the plaintiff’s claims for equitable relief pursuant

to a provision of the Connecticut Uniform Securities

Act, General Statutes § 36b-29 (a), were barred by the

time limitation set forth in that statute.

A party asserting a claim pursuant to the Condominium Act can seek either legal or equitable relief; see

General Statutes § 47-75 (a); and a fair reading of count

one of the plaintiff’s complaint and the prayer for relief

therein suggests that the plaintiff sought both. Further,

the plaintiff has pleaded the same essential facts in

each of the counts on which he bases his claims for

legal and equitable relief. See Certain Underwriters at

Lloyd’s, London v. Cooperman, 289 Conn. 383, 411, 957

A.2d 836 (2008) (affirming trial court’s determination

that, where legal claims for statutory theft and conversion were time barred, ‘‘the plaintiffs’ equitable claims

based on the same facts also [were] time barred’’
[emphasis added]). Under these circumstances, the

court has concurrent equitable and legal jurisdiction,

and the running of the applicable limitation period

would bar both the plaintiff’s legal and equitable claims

brought pursuant to § 47-75.18

B

The plaintiff next argues that, even if the court properly determined that count one alleging a violation of

§ 47-75 is subject to a statute of limitations, it improperly determined that count one was subject to the three

year limitations period set forth in General Statutes

§ 52-577,19 which governs torts generally. Noting ‘‘the

unique nature of condominiums,’’ he asserts that the

Condominium Act is concerned with property rights

and that the declaration provides that both the relevant

statutory provisions and the condominium instruments

are covenants that run with the land.20 Arguing that

the appropriate limitations period therefore must be

grounded in property law and asserting that his claims

are similar to adverse possession claims, the plaintiff

contends that the only potentially applicable limitations

period is the fifteen year period prescribed for such an

action by General Statutes § 52-575 (a).21

The individually named defendants and the association disagree with the plaintiff and with each other as

to which statute of limitations applies to claims brought

pursuant to § 47-75. The individually named defendants

assert that, because the plaintiff repeatedly contends

that the defendants violated the Condominium Act,

count one asserts a claim for a statutory violation and,

thus, is subject to § 52-577. In contrast, the association

claims that the plaintiff’s first cause of action asserts

a violation of the defendants’ duties pursuant to the

declaration and, therefore, is governed by General Statutes § 52-576 (a),22 or, if interpreted as asserting a violation of the Condominium Act, by § 52-577. We conclude

that either § 52-576 or § 52-577 would apply to bar this

cause of action.

‘‘[W]hen a statute includes no express statute of limitations, we should not simply assume that there is no

limitation period. Instead, we borrow the most suitable

statute of limitations on the basis of the nature of the

cause of action or of the right sued upon.’’ Bellemare

v. Wachovia Mortgage Corp., 284 Conn. 193, 199, 931

A.2d 916 (2007); see also 51 Am. Jur. 2d 533, Limitation

of Actions § 129 (2000) (‘‘The nature of the cause of

action or of the right sued upon is the test by which

to determine which statute of limitations applies and

whetherthe action is barred by the running of the limitation period. Thus, for an action under a state statute

that lack[s] an express limitations period, the courts

look to analogous causes of action for which express

limitations periods are available, either by statute or

by case law.’’ [Footnote omitted.]).
A number of cases have addressed whether an action

sounds in contract orin tort. See, e.g., Meyers v. Livingston, Adler, Pulda, Meiklejohn & Kelly, P.C., 311 Conn.

282, 290–93, 87 A.3d 534 (2014); Bellemare v. Wachovia

Mortgage Corp., supra, 284 Conn. 200–204; Gazo v.

Stamford, 255 Conn. 245, 262–67, 765 A.2d 505 (2001).

‘‘[T]he fundamental difference between tort and contract lies in the nature of the interests protected. . . .

The duties of conduct which give rise to [a tort action]

are imposed by the law, and are based primarily upon

social policy, and not necessarily upon the will or intention of the parties. . . . Furthermore, other courts

have held that, when a plaintiff seeks to recover damages for the breach of a statutory duty, such an action

sounds in tort.’’ (Citation omitted; internal quotation

marks omitted.) Bellemare v. Wachovia Mortgage

Corp., supra, 200. ‘‘On the other hand, [c]ontract actions

are created to protect the interest in having promises

performed. Contract obligations are imposed because

of [the] conduct of the parties manifesting consent, and

are owed only to the specific individuals named in the

contract. . . . In short, [a]n action in contract is for

the breach of a duty arising out of a contract; an action

in tort is for a breach of duty imposed by law.’’ (Citation

omitted; internal quotation marks omitted.) Id.

In this case, we are not required to resolve whether

count one sounds in contract or in tort. The court in

its memorandum of decision determined that the applicable statute of limitations for each count of the plaintiff’s complaint began to run in May, 1999, when the

plaintiff purchased unit 14 in a deed dated May 26, 1999,

and recorded on May 27, 1999. The plaintiff has not

argued on appeal that the court erred in relying on this

date. Thus, as it also is uncontested that this action

was commenced in July, 2009, count one would be

outside the limitations period provided under either

§§ 52-576 or 52-577 and, in the absence of an equitable

basis for tolling the limitations period, would be barred.

In this light, we now consider the plaintiff’s arguments that the most applicable limitations period is not

one governing claims sounding in tort or in contract,

but rather the time period provided in § 52-575, which

defines a claimant’s right to title based on adverse possession. ‘‘[T]o establish title by adverse possession, the

claimant must oust an owner of possession and keep

such owner out without interruption for fifteen years

by an open, visible and exclusive possession under a

claim of right with the intent to use the property as his

own and without the consent of the owner. . . . A finding of adverse possession is to be made out by clear

and positive proof. . . . The burden of proof is on the

party claiming adverse possession.’’ (Internal quotation

marks omitted.) Caminis v. Troy, 300 Conn. 297, 311,

12 A.3d 984 (2011). The courts of this state frequently

have referred to the fifteen year period provided in § 52-
575 (a) as a statute of limitations. See, e.g., id.; Pollansky

v. Pollansky, 162 Conn. App. 635, 654, 133 A.3d 167

(2016); Eberhart v. Meadow Haven, Inc., 111 Conn.

App. 636, 645–46, 960 A.2d 1083 (2008). A determination

that an adverse possessor meets the requirements of

§ 52-575 (a) prevents the original title ownerfrom recovering on equitable claims based on title to the property.

See Caminis v. Troy, supra, 299–300 (affirming trial

court judgment against plaintiff seeking declaratory and

injunctive relief on alternative ground that claims were

‘‘barred because they were brought outside the fifteen

year limitations period’’).

A proper framing of the plaintiff’s theory of recovery

and of the relationships among the parties reveals compelling reasons to reject the plaintiff’s proposal to use

the limitations period set forth in our adverse possession statute. In the plaintiff’s analogy, he is the rightful

owner or possessor of garage 14 by virtue of the condominium instruments; therefore, if the analogy were to

hold, he would be suing the defendants as the adverse

possessors of the property. He does not allege or present any evidence, however, that the association or

the individually named defendants, in their roles as

directors of the board of the condominium, are in actual

possession, or have been in possession, of garage 14

since the allegedly impermissible severance of that

interest from unit 14, and no evidence in the record

supports such a finding. Nor does he allege in his complaint or present any evidence showing that the current

owner and user of garage 14, who has never been made

a party to this action, is using it pursuant to the type

of agreement or relationship with the defendants from

which it could be inferred that the defendants, through

that occupant, have been making the type of adverse

and hostile use of the property in derogation of the

plaintiff’s interest that would constitute adverse possession. Cf. Richmond v. Stahle, 48 Conn. 22, 23 (1880)

(possession by tenant of adversely possessing landlord

may be tacked onto landlord’s use when determining

whether landlord has held property against third parties’ possessory interest for statutory period). Instead,

the plaintiff’s entire theory of recovery against the

defendants rests on the assertion that they breached

their statutory and contractual duties to him by causing

or failing to prevent the severance of garage 14 from

unit 14 and by failing thereafter to take any action to

return possession of the garage to him.23 Actions that

assert a breach of a duty sound in contract or tort,

depending on the source of the duty alleged. See

Bellemare v. Wachovia Mortgage Corp., supra, 284

Conn. 200.

It is undisputed that the court is required in cases

such as this one to determine what is the most analogous statute of limitations, given the ‘‘nature of the

cause of action or of the right sued upon.’’ Id., 199. The

analysis employed by our Supreme Court in Bellemare
could support the application in this case of either the

general tort or written contract statute of limitations.

Determining that an action seeking damages for violation of General Statutes § 49-8, the mortgage release

statute, sounded in tort, our Supreme Court noted that,

despite the presence of a contract, the duty contemplated arose entirely by statute and would exist even

without any specific terms in a mortgage contract. Id.,

200–201 (‘‘the mortgage contract may be silent with

regard to the issuance of a release, may provide for a

longer or shorter time period for the issuance of a

release, or may be vague or uncertain as to the period

for the issuance of a release’’). Unlike this case, however, the court in Bellemare also noted that ‘‘[t]here

[was] no allegation in this count of the complaint that

a term of the mortgage contract had been breached’’;

id., 201; and that ‘‘the record and case file do not contain

a copy of the mortgage contract’’ at issue there. Id.,

201 n.8.24

Additionally, accepting the plaintiff’s adverse possession argument would result in one of two unfavorable

outcomes. First, at a bare minimum, it would require

the courts to apply different limitations periods to a

single duty, which is something that we generally seek

to avoid because it would lead to an unpredictable

result. See id., 201–202 (rejecting interpretation of § 49-

8 that would, inter alia, result in different limitations

periods depending on specific claim brought). Alternatively, it would necessitate that we apply a fifteen year

statute of limitations period to all claims pursuant to

§ 47-75 (a), regardless of the type of claim asserted, the

source of the right sued upon, or the particular relief

requested. ‘‘[I]t is axiomatic that those who promulgate

statutes . . . do not intend to promulgate statutes . . .

that lead to absurd consequences or bizarre results.’’

(Internal quotation marks omitted.) State v. Courchesne, 296 Conn. 622, 710, 998 A.2d 1 (2010). Although

we note that the plain language of the statute might

support an argument for the application of two statutes

of limitations—one for those coming from the condominium instruments, another for those duties specifically arising from the Condominium Act; see General

Statutes § 47-75 (a)(liability results from failure to comply ‘‘with [the Condominium Act], the condominium

instruments, and the rules and regulations adopted pursuant thereto’’); we conclude that the plaintiff has not

presented any reason for us to risk either further confusion or a patently absurd result by applying yet a third

potential limitations period that finds no explicit support within the section’s text.

Finally, although the nature of the relief requested

can be indicative of the nature of the right or cause of

action at issue; see Gazo v. Stamford, supra, 255 Conn.

265–66 (action seeking damages for, inter alia, pain and

suffering sounded in tort, not contract); it is by no

means determinative in every case. See Bellemare v.
Wachovia Mortgage Corp., supra, 284 Conn. 200–204

(relying on numerous factors, including source of

underlying duty, desirability of having one statute of

limitations for duty created by statute, and similarity

of claim pursuant to § 49-8 to common-law action for

slander of title, to determine that § 49-8 claim sounds

in tort); see also Bellemare v. Wachovia Mortgage Corp.,

94 Conn. App. 593, 600–605, 894 A.2d 335 (2006)(relying

on additional factors, such as structure of complaint’s

allegations, ‘‘distinct relief’’ requested for each count,

and legislative history and statutory scheme of § 49-8),

aff’d, 284 Conn. 193, 931 A.2d 916 (2007). The nature

of the right or cause of action alleged by the plaintiff

in count one is not similar in its essence to an adverse

possession claim, and we reject the plaintiff’s argument

that the only appropriate statute of limitations for that

cause of action is that set forth in § 52-575.25 Accordingly, the trial court properly concluded that the first

count of the plaintiff’s complaint was time barred.

II

The plaintiff next argues that the court improperly

rendered summary judgment because it erroneously

determined that five counts of his complaint26 were time

barred due to his failure to demonstrate a genuine issue

of material fact as to the applicability of the continuing

course of conduct doctrine. We disagree.

‘‘Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any 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.

. . . In deciding a motion for summary judgment, the

trial court must view the evidence in the light most

favorable to the nonmoving party. . . . The party seeking summary judgment has the burden of showing the

absence of any genuine issue [of] material facts which,

under applicable principles of substantive law, entitle

him to a judgment as a matter of law . . . and the party

opposing such a motion must provide an evidentiary

foundation to demonstrate the existence of a genuine

issue of material fact. . . . A material fact . . . [is] a

fact which will make a difference in the result of the

case. . . . Finally, the scope of our review of the trial

court’s decision to grant the [defendant’s] motion for

summary judgment is plenary. . . . Summary judgment may be granted where the claim[s] [are] 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 . . . .

‘‘[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.’’ (Citation omitted; internal quotation marks omitted.) Flannery v. Singer Asset Finance Co., LLC, 312

Conn. 286, 309–310, 94 A.3d 553 (2014).

The plaintiff does not argue that the court erred in

relying upon the transfer of the unit from Amendola

to the plaintiff in May, 1999, as the relevant point for

determining when the various statutes of limitations

began to run. Additionally, beyond his arguments concerning the appropriate statute of limitations, if any,

governing count one, he does not contest that, without

the application of a ground to justify the equitable tolling of the statute of limitations, each of the five

remaining counts would be barred as beyond the applicable limitations period. See Rickel v. Komaromi, 144

Conn. App. 775, 782, 73 A.3d 851 (2013) (trespass claims

subject to three year limitations period in § 52-577);

Blinkoff v. O & G Industries, Inc., 113 Conn. App. 1,

8, 965 A.2d 556 (‘‘General Statutes § 42-110g [f], which

governs CUTPA claims, provides: An action under this

section may not be brought more than three years after

the occurrence of a violation of this chapter’’ [internal

quotation marks omitted]), cert. denied, 291 Conn. 913,

969 A.2d 175 (2009); Ahern v. Kappalumakkel, 97 Conn.

App. 189, 192 n.3, 903 A.2d 266 (2006) (‘‘[b]reach of

fiduciary duty is a tort action governed by the three

year statute of limitations contained within . . . § 52-

577’’); Bellemare v. Wachovia Mortgage Corp., supra,

94 Conn. App. 610 (‘‘a claim brought pursuant to a

contract, alleging a breach of the implied covenant of

good faith and fair dealing, sounds in contract . . .

[and] is therefore subject to the six year contract statute

of limitations as provided in § 52-576);27 see also part I

B of this opinion (determining whether §§ 52-577 or 52-

576 is applicable statute of limitations to cause of action

in count one unnecessary under facts of this case).

Instead, the plaintiff asserts that these limitations

periods were tolled by the continuing course of conduct

doctrine. ‘‘In certain circumstances . . . we have recognized the applicability of the continuing course of

conduct doctrine to toll a statute of limitations. Tolling

does not enlarge the period in which to sue that is

imposed by a statute of limitations, but it operates to

suspend or interrupt its running while certain activity

takes place. . . . Consistent with that notion, [w]hen

the wrong sued upon consists of a continuing course

of conduct, the statute does not begin to run until that

course of conduct is completed.’’ (Citations omitted;

internal quotation marks omitted.) Flannery v. Singer

Asset Finance Co., LLC, supra, 312 Conn. 311.

‘‘[I]n order [t]o support a finding of a continuing
course of conduct that may toll the statute of limitations

there must be evidence of the breach of a duty that

remained in existence after commission of the original

wrong related thereto. That duty must not have terminated prior to commencement of the period allowed

for bringing an action for such a wrong . . . . Where

we have upheld a finding that a duty continued to exist

after the cessation of the act or omission relied upon,

there has been evidence of either a special relationship

between the parties giving rise to such a continuing

duty or some later wrongful conduct of a defendant

related to the prior act. . . . Therefore, a precondition

for the operation of the continuing course of conduct

doctrine is that the defendant must have committed an

initial wrong upon the plaintiff. . . . A second requirement for the operation of the continuing course of conduct doctrine is that there must be evidence of the

breach of a duty that remained in existence after commission of the original wrong related thereto. . . . The

doctrine of continuing course of conduct as used to

toll a statute of limitations is better suited to claims

where the situation keeps evolving after the act complained of is complete . . . .’’ (Citations omitted; internal quotation marks omitted.) Targonski v. Clebowicz,

142 Conn. App. 97, 108–09, 63 A.3d 1001 (2013).

‘‘In sum, [i]n deciding whetherthe trial court properly

granted the defendant’s motion for summary judgment,

we must determine if there is a genuine issue of material

fact with respect to whether the defendant: (1) committed an initial wrong upon the plaintiff;(2) owed a continuing duty to the plaintiff that was related to the alleged

original wrong; and (3) continually breached that duty.’’

(Internal quotation marks omitted.) Flannery v. Singer

Asset Finance Co., LLC, supra, 312 Conn. 313. ‘‘[I]f

there is no genuine issue of material fact with respect

to any one of the three prongs . . . summary judgment

is appropriate.’’ Cefaratti v. Aranow, 154 Conn. App.

1, 11, 105 A.3d 265 (2014), rev’d on other grounds, 321

Conn. 593, 141 A.3d 752 (question certified in plaintiff’s

petition), aff’d, 321 Conn. 637, 138 A.3d 837 (question

certified in defendants’ petition) (2016).

In support of his claim that the continuing course

of conduct doctrine applies, the plaintiff makes the

following contentions. First, he asserts that, pursuant

to the declaration, garage 14 is assigned as a limited

common element to unit 14. Other provisions of the

declaration, he contests, forbid the severance of the

garage from the unit, and, pursuant to the Condominium

Act and the condominium instruments, the defendants

had the power and obligation to both prevent this severance and take the necessary actions to correct the continuance thereof.28 Thus, although the plaintiff asserted

varying theories of recovery in his complaint, some of

which do not require the existence of a duty of care,29

the central underlying ground for each of the plaintiff’s

arguments concerns the duties owed to the plaintiff
‘‘from the [Condominium] Act and the condominium

instruments, which place the obligation of enforcing

their provisions on the association.’’30

‘‘Duty is a legal conclusion about relationships

between individuals, made after the fact . . . . The

nature of the duty, and the specific persons to whom

it is owed, are determined by the circumstances surrounding the conduct of the individual.’’(Internal quotation marks omitted.) Lawrence v. O & G Industries,

Inc., 319 Conn. 641, 649, 126 A.3d 569 (2015). ‘‘A duty

. . . may arise from a contract [or] . . . from a statute

. . . .’’ Coburn v. Lenox Homes, Inc., 186 Conn. 370,

375, 441 A.2d 620 (1982).

Reviewing the plaintiff’s claims requires us to consider and interpret those provisions of the Condominium Act and the condominium instruments relevant to

the issues raised; we restate the principles that govern

this analysis. ‘‘[C]onstruing a statute is a question of

law.’’ Somers West Towne Houses, Inc. v. LAS Properties Ltd. Partnership, 108 Conn. App. 426, 432, 949

A.2d 483 (2008). ‘‘The principles that govern statutory

construction are well established. When construing a

statute, [o]ur fundamental objective is to ascertain and

give effect to the apparent intent of the legislature. . . .

In other words, we seek to determine, in a reasoned

manner, the meaning of the statutory language as

applied to the facts of [the] case, including the question

of whether the language actually does apply. . . . In

seeking to determine that meaning, General Statutes

§ 1-2z directs us first to consider the text of the statute

itself and its relationship to other statutes. If, after

examining such text and considering such relationship,

the meaning of such text is plain and unambiguous and

does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not

be considered. . . . When a statute is not plain and

unambiguous, we also look for interpretive guidance

to the legislative history and circumstances surrounding

its enactment, to the legislative policy it was designed to

implement, and to its relationship to existing legislation

and common law principles governing the same general

subject matter . . . .’’ (Internal quotation marks omitted.) Mickey v. Mickey, 292 Conn. 597, 613–14, 974 A.2d

641 (2009).

Determining the defendants’ responsibilities under

the condominium instruments on which the plaintiff

relies—specifically, the declaration and the bylaws—

also requires resolution of questions of law. Oronoque

Shores Condominium Assn. No. 1, Inc. v. Smulley, 114

Conn. App. 233, 237, 968 A.2d 996 (‘‘The interpretation

of a condominium’s declaration presents a question of

law. . . . We also conduct plenary review of corporate

articles and bylaws.’’ [Citation omitted; internal quotation marks omitted.]), cert. denied, 292 Conn. 922, 974

A.2d 722 (2009). ‘‘Because the [condominium] declara-
tion operates in the nature of a contract, in that it

establishes the parties’ rights and obligations, we apply

the rules of contract construction to the interpretation

of [the declaration].’’ (Internal quotation marks omitted.) Harbour Pointe, LLC v. Harbour Landing Condominium Assn., Inc., 300 Conn. 254, 259, 14 A.3d 284

(2011).

‘‘[W]e first attempt to ascertain the parties’ intent

from the language they used in their contract, looking

at the contract as a whole and giving the contract’s

words their ordinary meaning and one that renders its

provisions consistent. . . . Only if the language in the

contract is truly capable of more than one reasonable

interpretation will we look to evidence beyond the contract language for guidance as to what the parties

intended.’’ (Citation omitted.) C & H Electric, Inc. v.

Bethel, 312 Conn. 843, 853, 96 A.3d 477 (2014). ‘‘The

rules of construction dictate giving effect to all the

provisions of a contract, construing it as a whole and

reconciling its clauses. . . . Where two clauses which

are apparently inconsistent may be reconciled by a reasonable construction, that construction must be given,

because it cannot be assumed that the parties intended

to insert inconsistent and repugnant provisions.’’ (Internal quotation marks omitted.) Regency Savings Bank

v. Westmark Partners, 59 Conn. App. 160, 166, 756 A.2d

299 (2000).

‘‘[A] contract is unambiguous when its language is

clear and conveys a definite and precise intent. . . .

The court will not torture words to impart ambiguity

where ordinary meaning leaves no room for ambiguity.

. . . Moreover, the mere fact that the parties advance

different interpretations of the language in question

does not necessitate a conclusion that the language is

ambiguous. . . . In contrast, a contract is ambiguous

if the intent of the parties is not clear and certain from

the language of the contract itself. . . . [A]ny ambiguity in a contract must emanate from the language used

by the parties. . . . The contract must be viewed in its

entirety, with each provision read in light of the other

provisions . . . and every provision must be given

effect if it is possible to do so. . . . If the language of

the contract is susceptible to more than one reasonable

interpretation, the contract is ambiguous.’’ (Internal

quotation marks omitted.) Harbour Pointe, LLC v. Harbour Landing Condominium Assn., Inc., supra, 300

Conn. 260–61.

Even if we were to accept the plaintiff’s argument

that the declaration, at its inception,required the allocation of garage 14 to unit 14, and unit 14 alone, and that

the defendants had breached the declaration by causing

or permitting the garage to be severed from that unit,

the plaintiff still would have to prove that any duty

owed by the defendants to the plaintiff was continuing.

As previously noted, the plaintiffrelies on the applicable
provisions of the Condominium Act and the condominium instruments as the sources of that alleged duty

of care.

Section 47-75 (a) provides in relevant part: ‘‘Each unit

owner, and the association of unit owners, shall comply

with this chapter, the condominium instruments, and

the rules and regulations adopted pursuant thereto.

Failure to so comply shall be ground for an action to

recover damages orforinjunctive relief, orfor any other

relief to which the party bringing such action may be

entitled. Such action may be brought by the association

of unit owners against any unit owner or owners or, in

any proper case, by one or more aggrieved unit owners

on their own behalf or as a class action. . . .’’ Article

15 of the declaration contains very similar language to

§ 47-75. See footnote 17 of this opinion.

Turning to the bylaws, § 4 (b) provides in relevant

part: ‘‘The Board of Directors shall have the powers and

duties necessary for the administration of the affairs of

the Association and shall do all such acts or things

except as by law or by the Declaration or by these

Bylaws may not be delegated to the Board of Directors

by the Unit Owners. . . . The Board of Directors shall

have the power to enforce the obligations of the Unit

Owners . . . and to do anything and everything else

necessary and proper for the sound management of the

Association.’’31 That section also contains a number of

illustrative ‘‘powers and duties’’ of the board.

Examining these provisions, none of them defines

how the board of directors or association is to execute

its power in any enforcement action, or when, if ever,

itrightly may choose not to act at all;rather, they merely

provide that the defendants ‘‘shall have the powers’’

to enforce the Condominium Act or the condominium

instruments.32 Thus, any duty owed by the association

is not an absolute duty to act in all cases.33 Furthermore,

we note that these provisions stand in stark contrast

to other provisions of the Condominium Act,34 the declaration,35 and the bylaws36 that affirmatively require certain actions be taken or the manner in which those

actions are to be taken. Finally, none of these provisions

establishes any requirementthatthe association redress

prior breaches of its duty to enforce the Condominium

Act or the condominium instruments.

In support of his claim that the defendants had an

ongoing responsibility to remedy a past breach of its

duties, the plaintiff also relies on § 10 (g) of the bylaws.37

That subsection provides: ‘‘The violation of any rule or

regulation adopted by the Association, or the breach

of any Bylaw contained herein, or the breach of any

provision of the Declaration, shall give the Association

the right, in addition to any other rights set forth in

these Bylaws:

‘‘i. [T]o enter the Unit in which, or as to which, such
violation or breach exists and to summarily abate and

remove, at the expense of the defaulting Unit Owner,

any structure, thing, or condition that may exist therein

contrary to the interest and meaning of the provisions

hereof and the Association shall not be there by deemed

guilty of trespass; or

‘‘ii. [T]o enjoin, abate, or remedy by appropriate legal

proceedings, either at law or in equity, the continuance

of any such breach.’’ This provision, however, like those

previously discussed, gives the board ‘‘the right’’ to take

action, but does not dictate the manner in which that

right is to be exercised or the circumstances under

which the board may refrain from acting. The subsection cannot be read to impose an absolute ongoing duty

on the defendants to remedy any and all breaches of

the Condominium Act or condominium instruments, no

matter how minor the breach or how distant in the past

the violation occurred.

Even more damaging to the plaintiff’s argument, however, is that the basic nature of the continuing course

of conduct doctrine counsels strongly against the plaintiff’s position that whatever duty that the association

might have had was ongoing. ‘‘[T]he continuing course

of conduct doctrine reflects the policy that, during an

ongoing relationship, lawsuits are premature because

specific tortious acts or omissions may be difficult to

identify and may yet be remedied.’’ (Emphasis added;

internal quotation marks omitted.) Flannery v. Singer

Asset Finance Co., LLC, supra, 312 Conn. 312. This

court has similarly observed that ‘‘[t]he doctrine . . .

is better suited to claims where the situation keeps

evolving after the act complained of is complete . . .

rather than one where the situation cannot change

. . . .’’ Sanborn v. Greenwald, 39 Conn. App. 289, 297–

98, 664 A.2d 803 (1995).

We also note our Supreme Court’s statements in the

recent case of Watts v. Chittenden, 301 Conn. 575, 22

A.3d 1214 (2011). There, ‘‘examining the use of the continuing course of conduct doctrine, [our Supreme Court

was] mindful of the nature of the doctrine as [then]

Chief JudgeRichard Posner ofthe Seventh CircuitCourt

of Appeals has explained . . . [that] [a] violation is

called continuing signifying that a plaintiff can reach

back to its beginning even if that beginning lies outside

the statutory limitations period, when it would be unreasonable to require or even permit him to sue separately

over every incident of the defendant’s unlawful conduct. The injuries about which the plaintiff is complaining in [these] case[s] are the consequence of a numerous

and continuous series of events. . . . When a single

event gives rise to continuing injuries . . . the plaintiff

can bring a single suit based on an estimation of his

total injuries, and that mode of proceeding is much to

be preferred to piecemeal litigation despite the possible

loss in accuracy. But in [cases in which the continuing
course of conduct doctrine is applicable, each incident

increases the plaintiff’s injury]. Not only would it be

unreasonable to require him, as a condition of preserving his right to have [the full limitations period] to sue

. . . to bring separate suits [during the limitations

period] after each [incident giving rise to the claim];

but it would impose an unreasonable burden on the

courts to entertain an indefinite number of suits and

apportion damages among them.’’ (Internal quotation

marks omitted.) Fradianni v. Protective Life Ins. Co.,

145 Conn. App. 90, 98–99, 73 A.3d 896, cert. denied, 310

Conn. 934, 79 A.3d 888 (2013). Rather, the doctrine

applies to cases ‘‘that involv[e] a continuing course of

conduct which over a period of years cause[s] injury.

Since usually no single incident in a continuous chain

of tortious activity can fairly orrealistically be identified

as the cause of significant harm, it seems proper to

regard the cumulative effect of the conduct as actionable.’’(Internal quotation marks omitted.) Watts v. Chittenden, supra, 592, quoting Twyman v. Twyman, 790

S.W.2d 819, 821 (Tex. App. 1990), rev’d on other

grounds, 855 S.W.2d 619, 620 (Tex. 1993).38

In the present case, the original wrong, if any, was

completed either upon the 1986 purported conveyance

of garage 14 separate from the like numbered unit or,

at the absolute latest, upon the 1999 transfer of unit 14

to the plaintiff without garage 14. All of the injuries

claimed by the plaintiff arise from either, or both, of

those acts or occurrences, and the plaintiff has pointed

to no separate injuries that have arisen as a result of

any ongoing failure by the defendants to enforce his

alleged rights under the documents. These circumstances do not present the type of case that merits the

application of the continuing course of conduct

doctrine.

Additionally, the plaintiff has not produced any evidence that the defendants have breached any ongoing

duty to enforce the condominium instruments. In particular, we note that, although the provisions of the Condominium Act and condominium instruments delineate

the defendants’ powers to address violations, no evidence or law has been presented by the plaintiff in

support of his claims that there are genuine issues of

material fact or that summary judgment is incorrect as

a matter of law, from which we could conclude that

the defendants’ failure to do so under the facts of this

case is an abuse of their discretion. No evidence or

law has been presented concerning the circumstances

under which the choice not to enforce a provision of

the condominium instruments constitutes a breach of

the association’s duty. Further, we also note that there

is evidence that the deed purporting to convey garage

14 separately from unit 14 was executed in 1986 by the

developer; see footnotes 23 and 25 of this opinion; and

no evidence has been submitted that the garage and

unit, if they were originally required by the declaration
to be conjoined, ever have been conjoined in the

same owner.

In summary, the plaintiff has not raised a genuine

issue of material fact in this case that requires or justifies application of the continuous course of conduct

doctrine, and we therefore decline the plaintiff’s invitation to apply it.

The judgment is affirmed.

In this opinion the other judges concurred.

1 Because we affirm the judgment on the basis that the plaintiff’s claims

are time barred, we do not consider the plaintiff’s arguments that the court

improperly determined that other grounds existed for granting the motion

for summary judgment as to his claims of trespass and unfair trade practices

in violation of the Connecticut Unfair Trade Practices Act (CUTPA), General

Statutes § 42-110a et seq.

2 Although a point of contention in the trial court, we do not need to

determine conclusively whether the court properly determined that, pursuant to the terms of the condominium declaration, garages are limited common elements and not separate units. Even if we were to conclude that the

court properly determined that garages are limited common elements under

the declaration, the plaintiff cannot prevail on the remaining aspects of his

claim that the defendants owed, and continuously breached, any duty they

had as to him. Consequently, we also do not address the plaintiff’s arguments

that certain actions by the defendants in 2009 tolled the statute of limitations,

as the plaintiff explicitly premises these arguments on this court’s determination that, contrary to the trial court’s memorandum of decision, the garages

are separate units.

3 Pursuant to the warranty deed, the plaintiff received ‘‘all that certain

real property . . . known as 2 Old Town Highway, Unit #14, and Garage

#49, East Haven, CT . . . .’’ On the date of this conveyance, however, Porrello, and not Amendola, was the record owner of garage 49.

4 There is no indication in the record that Amendola or Porrello ever had

used or owned garage 14, which, from April 1, 1986, appears to have been

owned and used by the owner of unit 19. See footnotes 23 and 25 of this

opinion.

5

Indeed, Amendola was not a party to the underlying action, and the

court noted in its memorandum of decision granting summary judgment

that ‘‘the plaintiff has not alleged any legal relationship or agency between

the defendants and Amendola.’’

6

In fact, most of the individually named defendants were not unit owners

when the plaintiff purchased his unit.

7 Pursuant to General Statutes § 47-68a (d), ‘‘ ‘[c]ondominium instruments’ ’’ include: the declarations, bylaws, survey maps, and plans recorded

and filed pursuant to chapter 825 of the General Statutes; any exhibit,

schedule, or certification appended to, and recorded or filed with, any

declaration, bylaw, survey map, or plan; and any amendment or certification

of a declaration, bylaw, survey map, or plan made in accordance with the

Condominium Act.

8 Certain other facts informed the plaintiff’s belief that he had an exclusive

right to garage 14. Garage 14 is attached to the building in which the plaintiff’s

unit is located; however garage 49 is considerably farther away. Additionally,

at least some of the garages do not have separate meters for electricity,

but, instead, are metered through the like numbered unit to which they

are attached.

9

In this complaint, the plaintiff asserted the following causes of action

against the defendants: violation of General Statutes § 47-75 (count one);

breach of fiduciary duty (count two); fraudulent misrepresentation (count

three); trespass (count four); CUTPA (count five); negligent infliction of

emotional distress (count six); and ‘‘tortuously’’ breaching the implicit covenant of good faith and fair dealing (count seven).

10 At the time that the defendants filed their motion for summary judgment,

the defendants were represented jointly by the same law firms. Subsequently,

on August 31, 2012, counsel forthe association withdrew representation as to

the individually named defendants, and the association and the individually

named defendants are represented separately in this appeal.

11 Pursuant to § 47-68a (g), a limited common element within the meaning

of the Condominium Act ‘‘means and includes those common elements
designated in the declaration as reserved for the use of a certain unit or

units to the exclusion of other units.’’ A common element, in turn, is any

part of a condominium that is not a unit. General Statutes § 47-68a (e).

Subsections (d) and (h) of the declaration explicitly incorporate these definitions, but then each provide specific examples of what shall be considered

a common element and limited common element, respectively, in the condominium.

12 A ‘‘unit’’ in the Condominium Act is defined by § 47-68a (b) as ‘‘a part

of the property including one or more rooms or designated spaces located

on one or more floors or a part or parts thereof in a building, intended for

any type of independent use, and with a direct exit to a public street or

highway or to common elements leading to such street or highway.’’ In light

of our decision, it is not necessary for us to determine if garage 14 is a unit

or a limited common element.

Article 2 (b) of the declaration defines a unit as ‘‘a part of the property

including one or more rooms or enclosed spaces or recessed balconies and

recessed decks located on one or more floors or parts thereof in a building

intended for the uses as are more particularly defined in Article 9 of this

Declaration, and with a direct exit to a common element leading to a public

street or highway. It shall comprise one of the separate and numbered units

which are designated in Schedule C attached hereto and made a part hereof,

each of which is more particularly described in the Floor Plans of the

building referred to in Article 4 hereof, excluding, however, all spaces and

improvements lying beneath the undecorated and/or unfinished inner surfaces of the perimeter walls, trim, and floors, and above the undecorated

and/or unfinished inner surfaces of the ceilings, and further excluding all

spaces and improvements lying beneath the undecorated and/or unfinished

inner surfaces of all interior bearing walls and/or bearing partitions, and

partition walls between separate Units and between Units and the Common

Elements and Facilities, and further excluding all pipes, ducts, wires, conduits and other facilities running through any interior wall or partition for

the furnishing of utility services to other Units or Common Elements. A

[U]nit shall include all doors installed within or providing access to a Unit

and the heating facility and all window glass installed in any wall or partition

in or adjacent to a Unit.’’

13 Although disposing of the entire case by determining that there was not

a genuine issue of material fact and that the defendants were entitled to

judgment as a matter of law with respect to their statutes of limitations

defenses, the court also determined that separate grounds existed for granting the motion as to the fraudulent misrepresentation, trespass, CUTPA,

and negligent infliction of emotional distress claims. On appeal, the plaintiff

does not challenge the court’s decision as to his fraudulent misrepresentation

and negligent infliction of emotional distress claims.

14 We address a preliminary matter before considering the merits of the

plaintiff’s arguments. It is uncontested that the condominium in question

was created prior to January 1, 1984, and, therefore, generally is governed

by the terms of the Condominium Act and not the Common Interest Ownership Act, General Statutes § 47-200 et seq. (Common Interest Ownership

Act). See General Statutes § 47-214. Despite this uncontested fact, certain

defined provisions of the Common Interest Ownership Act are applicable

to preexisting common interest communities. See General Statutes § 47-216.

Because the parties generally have neither raised nor briefed the potential

applicability of these provisions, however, we will analyze the issues raised

primarily pursuant to the applicable provisions of the Condominium Act.

15 General Statutes § 47-75 (a) provides: ‘‘Each unit owner, and the association of unit owners, shall comply with this chapter, the condominium instruments, and the rules and regulations adopted pursuant thereto. Failure to

so comply shall be ground for an action to recover damages or for injunctive

relief, or for any other relief to which the party bringing such action may

be entitled. Such action may be brought by the association of unit owners

against any unit owner or owners or, in any proper case, by one or more

aggrieved unit owners on their own behalf or as a class action. If any such

action results in a final judgment or decree in favor of the party instituting

such action, such judgment or decree may incorporate a provision forreasonable attorney’s fees, as specified in such judgment or decree, to be paid by

the party against whom such judgment or decree is entered.’’

16 To support his claim that a claim brought pursuant to § 47-75 is equitable

in nature, the plaintiff urges us to take cognizance of the ‘‘unique amalgamation of property, contract, and tort law’’ at work in the Condominium Act.

Thus, he asserts that an action to enforce the condominium instruments

and the Condominium Act is akin to an action to enforce a restrictive

covenant, which may be enforced by an injunction, and relies upon both

the nature of the relief that he seeks as well as the equivalent provision in
the Common Interest Ownership Act to show that a § 47-75 action is equitable. See General Statutes § 47-278 (a) (‘‘A declarant, association, unit owner

or any other person subject to this chapter may bring an action to enforce

a right granted or obligation imposed by this chapter, the declaration or the

bylaws. The court may award reasonable attorney’s fees and costs.’’).

17 The pertinent language of article 15 of the declaration essentially incorporates the text of § 47-75 (a) and broadens its application. Article 15 provides in relevant part: ‘‘All present and future Owners,tenants, and occupants

of Units and the Association of Unit Owners shall be subject to and shall

comply with [the Condominium Act], the provisions of this Declaration, and

the Bylaws, attached hereto and as they may be amended from time to time,

as well as to such regulations as may be adopted by the Board of Directors

of the Association, pursuant thereto. Failure to so comply shall be ground

for an action to recover damages or for injunctive relief or for any other

relief to which the party bringing such action may be entitled. Such action

may be brought by the Association against any Unit Owner or Owners, or,

in any proper case, by one or more aggrieved Unit Owners on their own

behalf or as a class action.’’

18 Because of this determination, the plaintiff’s remaining arguments

require little attention. We note that the plaintiff’s contention that his action

is similar to one to enforce a restrictive covenant would not necessarily

exempt his cause of action from being time barred. See General Statutes

§ 52-575a (‘‘[n]o action or any othertype of court proceeding shall be brought

to enforce a private restriction recorded in the land records of the municipality in which the property is located or a notation on a filed map pertaining

to the use of privately owned land . . . unless such action or proceeding

shall be commenced within three years of the time that the person seeking

to enforce such restriction had actual or constructive knowledge of such violation’’).

19 General Statutes § 52-577 provides: ‘‘No action founded upon a tort shall

be brought but within three years from the date of the act or omission

complained of.’’ ‘‘[T]he three-year limitation of § 52-577 is applicable to all

actions founded upon a tort which do not fall within those causes of action

carved out of § 52-577 and enumerated in [General Statutes] § 52-584 or

another section.’’ (Internal quotation marks omitted.) Travelers Indemnity

Co. v. Rubin, 209 Conn. 437, 441, 551 A.2d 1220 (1988). ‘‘The date of the

act or omission complained of is the date when the . . . conduct of the

defendant occurs . . . .’’ (Internal quotation marks omitted.) Certain

Underwriters at Lloyd’s, London v. Cooperman, supra, 289 Conn. 408; see

also Farnsworth v. O’Doherty, 85 Conn. App. 145, 150, 856 A.2d 518 (2004)

(‘‘[t]he three year limitation period of § 52-577 begins with the date of the

act or omission complained of, not the date when the plaintiff first discovers

an injury’’ [internal quotation marks omitted]).

20 Given this characterization, as well as the clear centrality to the plaintiff’s

claim of the provisions in the declaration that forbid the severance of interests appurtenant to a unit, we note the failure of the parties to consider the

potential applicability of General Statutes § 52-575a. See footnote 18 of this

opinion. Because the parties have limited their arguments to three potential

statutes of limitations, however, and have not briefed this issue, we do not

consider whether this statute of limitations governs the plaintiff’s claim.

21 General Statutes § 52-575 (a) provides: ‘‘No person shall make entry

into any lands or tenements but within fifteen years next after his right or

title to the same first descends or accrues or within fifteen years next after

such person or persons have been ousted from possession of such land or

tenements; and every person, not entering as aforesaid, and his heirs, shall

be utterly disabled to make such entry afterwards; and no such entry shall

be sufficient, unless within such fifteen-year period, any person or persons

claiming ownership of such lands and tenements and the right of entry

and possession thereof against any person or persons who are in actual

possession of such lands or tenements, gives notice in writing to the person

or persons in possession of the land or tenements of the intention of the

person giving the notice to dispute the right of possession of the person or

persons to whom such notice is given and to prevent the other party or

parties from acquiring such right, and the notice being served and recorded

as provided in sections 47-39 and 47-40 shall be deemed an interruption of

the use and possession and shall prevent the acquiring of a right thereto by

the continuance of the use and possession for any length of time thereafter,

provided an action is commenced thereupon within one year next after the

recording of such notice. The limitation herein prescribed shall not begin

to run against the right of entry of any owner of a remainder or reversionary
interest in real estate, which is in the adverse possession of another, until

the expiration of the particular estate preceding such remainder orreversionary estate.’’

22 General Statutes § 52-576 (a) provides in relevant part: ‘‘No action . . .

on any contract in writing . . . shall be brought but within six years after

the right of action accrues . . . .’’ ‘‘[I]n an action for breach of contract

. . . the cause of action is complete at the time the breach of contract occurs,

that is, when the injury has been inflicted. . . . Although the application of

this rule may result in occasional hardship, [i]t is well established that

ignorance of the fact that damage has been done does not prevent the

running of the statute, except where there is something tantamount to a

fraudulent concealment of a cause of action. . . . While the statute of limitations normally begins to run immediately upon the accrual of the cause of

action, some difficulty may arise in determining when the cause or right of

action is considered as having accrued. . . . The true test for determining

the appropriate date when a statute of limitations begins to run is to establish

the time when the plaintiff first successfully could have maintained an

action. That is, an action cannot be maintained until a right of action is

complete and hence, the statute of limitations cannot run before that time.

. . . A cause of action does not accrue for the purposes of a statute of

limitations until all elements are present, including damages, howevertrivial.

However, the occurrence of an act or omission . . . that causes a direct

injury, however slight, may start the statute of limitations running against

the right to maintain an action even if the plaintiff is not aware of the injury,

and even if all resulting damages have not yet occurred; it is sufficient if

nominal damages are recoverable for the breach or for the wrong, and where

that is the case, it is unimportant that the actual or substantial damage is

not discovered or does not occur until later. The fact that the extent of the

damages cannot be determined at the time of the wrongful act does not

postpone the running of the statute of limitations.’’ (Citations omitted; footnote omitted; internal quotation marks omitted.) Rosenfield v. I. David

Marder & Associates, LLC, 110 Conn. App. 679, 685–86, 956 A.2d 581 (2008).

23 In a warranty deed dated April 1, 1986, however, the developer, Shell

Beach, Inc., purportedly conveyed garage 14 to the purchaser of unit 19,

George J. Lepofsky, trustee. The deed provided that ‘‘Residential Unit No.

19 of Shell Beach Condominium . . . and Garage Unit Nos. 14 and 15 of

Shell Beach Condominium . . . are conveyed . . . .’’

24 We reiterate that we do not determine which of these two statutes of

limitations—§§ 52-576 (a) or 52-577—definitively applies to count one.

25 Even if we were to accept the plaintiff’s invitation and apply the limitations period within § 52-575 to count one of the plaintiff’s complaint, his

claim still would be time barred. The developer assigned the interest in

garage 14 separately from unit 14 in 1986, when it included garage 14 in the

deed conveying unit 19. See footnote 23 of this opinion. No evidence has

been presented that, since 1986, garage 14 was ever used or owned by an

owner of unit 14, or that any of the defendants have had a possessory

interest in that garage. Further, the deed transferring unit 14 to the plaintiff

in 1999 did not make any reference to garage 14. Thus, this action, commenced in 2009, would have occurred twenty-three years after the ‘‘wrong’’

committed in 1986 by the developer, e.g., the definitive act, occurrence, or

breach for the purpose of beginning the limitations period within §§ 52-575,

52-576, or 52-577.

26 See footnote 13 of this opinion.

27 We note that the plaintiff alleges that the defendants ‘‘tortiously’’

breached the covenant of good faith and fair dealing in count seven. Although

the court does not have to accept the label that a party appends to its cause

of action; see, e.g., Meyers v. Livingston, Adler, Pulda, Meiklejohn & Kelly,

P.C., supra, 311 Conn. 290 (‘‘[O]ne cannot bring an action [under both

theories, however] merely by couching a claim that one has breached a

standard of care in the language of contract. . . . [T]ort claims cloaked in

contractual language are, as a matter of law, not breach of contract claims.’’

[Internal quotation marks omitted.]); we recognize that ‘‘the same course

of conduct may sound both in tort and in contract . . . and the court should

apply the relevant statute of limitations to each claim.’’ (Citation omitted.)

Hill v. Williams, 74 Conn. App. 654, 660, 813 A.2d 130, cert. denied, 263

Conn. 918, 822 A.2d 242 (2003). Nevertheless, even if we were to accept

that this count sounds in tort, and not in contract, it would not help the

defendant. If § 52-576 is inapplicable, this claim would be governed then by

General Statutes §§ 52-577 or 52-584, both of which are subject to a three

year repose period.
28 During oral argument before this court, the plaintiff referred to the

ongoing duty of the defendants as a ‘‘continuing duty of disclosure.’’ The

plaintiff did not brief this theory, however, instead asserting that the duty

of the defendants was to enforce the condominium instruments and remedy

any breaches thereof. ‘‘[I]t is well settled that arguments cannot be raised

for the first time at oral argument.’’ J.E. Robert Co. v. Signature Properties,

LLC, 309 Conn. 307, 328 n.20, 71 A.3d 492 (2013).

29 For instance, ‘‘in Connecticut, [t]he essentials of an action for trespass

are:(1) ownership or possessory interest in land by the plaintiff; (2)invasion,

intrusion or entry by the defendant affecting the plaintiff’s exclusive possessory interest; (3) done intentionally; and (4) causing direct injury.’’ (Internal

quotation marks omitted.) Boyne v. Glastonbury, 110 Conn. App. 591, 601,

955 A.2d 645, cert. denied, 289 Conn. 947, 959 A.2d 1011 (2008).

30 We note that, although the plaintiff contends that ‘‘Connecticut courts

have concluded that condominium associations owe duties to unit owners

. . . [and] [s]everal courts have expressly concluded that condominium

instruments create duties owed to unit owners,’’ he does not attempt to

define more specifically, in either analysis or through citation to relevant

authority, the particular type of duty that he contends exists in this case.

(Citations omitted.) Rather, the plaintiff grounds his entire argument as to

both the existence and ongoing nature of the defendants’ duty strictly on

the applicable statutory authority and provisions of the condominium

instruments.

31 An amendment, executed subsequent to the commencement of this

action, modifies the language in § 4 (b) (14) of the bylaws in ways nonmaterial to this analysis.

32 Indeed, § 47-75 (a) itself suggests that the responsibility to enforce the

Condominium Act or the condominium instruments is not exclusively in

the association in all cases, as it explicitly allows a unit owner to enforce the

condominium instruments and the Condominium Act ‘‘in any proper case.’’

33 In another context, our Supreme Court has opined as to the proper

method for appraising a decision by an association: ‘‘When a court is called

upon to assess the validity of [an action taken] by a board of directors, it

first determines whether the board acted within its scope of authority and,

second, whether the [action] reflects reasoned or arbitrary and capricious

decision making.’’ (Internal quotation marks omitted.) Weldy v. Northbrook

Condominium Assn., Inc., 279 Conn. 728, 734, 904 A.2d 188 (2006). Further,

various provisions of the Restatement (Third) of Property similarly suggest

that the association and the board, although owing duties to unit owners

in the exercise of their authority, are not required to take action in all cases.

See 2 Restatement (Third), Property, Servitudes § 6.13 (1), p. 233 (2000)

(‘‘[i]n addition to duties imposed by statute and the governing documents,

the association has the following duties to the members of the commoninterest community . . . to act reasonably in the exercise of its discretionary powers including . . . enforcement’’ [emphasis added]); see also id.,

§ 6.14, p. 268 (‘‘[t]he directors and officers of an association have a duty to

act in good faith, to act in compliance with the law and the governing

documents, to deal fairly with the association and its members, and to use

ordinary care and prudence in performing their functions’’).

Finally, certain provisions of the Common Interest Ownership Act clarify

which actions by an association are mandatory and which are discretionary,

and support a clear inference that enforcement, on the whole, is generally

subject to the association’s and the directors’ discretion. See General Statutes § 47-244 (a); see also Public Acts 2009, No. 09-225, § 20 (clarifications

making more explicit which duties are discretionary and which are mandatory in § 47-244 [a], applicable as of date of passage, July 8, 2009). Other

provisions provide that the board of directors is not required to take any

enforcement action if it determines that one of four specified circumstances

is met; General Statutes § 47-244 (g); and allows the board to choose to

take an enforcement action in one case, but not another, as long as the

choice is not arbitrary or capricious. General Statutes § 47-244 (h). These

latter provisions, which would generally be applicable to condominiums that

were created before 1984; see General Statutes § 47-216 (a); are technically

inapplicable in this case, as they became effective after this case had commenced. See Public Acts 2009, No. 09-225, § 21 (added subsections [g] and

[h] to § 47-244, effective July 1, 2010). Nevertheless, their existence provides

further support for our position, in that they demonstrate legislative

affirmance of preexisting common law principles.

34 For instance, General Statutes § 47-84 (a) provides in relevant part that

‘‘damage to or destruction of any building or improvement located on the
condominium parcel or serving the condominium shall be promptly repaired

and restored by . . . the association, using the proceeds of insurance, if

any, on such building or improvement for that purpose . . . .’’ See also

General Statutes § 47-71 (h) and (i) (requiring association to record specified

information on annual basis).

35 Article 25 (e) of the declaration requires the association to provide its

books and records to a first mortgagee when the request is received reasonably in advance of the examination and in writing. Article 26 provides that

the association ‘‘shall at all times keep an adequate reserve fund for the

replacement of common elements’’ and that the fund be maintained through

monthly payments rather than special assessments. Prior to an amendment

in 1987 that removed the article from the declaration, article 27 required

that the association maintain a separate budget for the operation, care, and

upkeep of the swimming pool, tennis court, and community building that

would have been built on a separate tract.

36 Section 4 (i) of the bylaws requires that the board must elect certain

officers at the annual organization meeting of each new board. Section 5

(d) makes it ‘‘the duty of the Secretary to mail a notice for each annual or

special meeting’’ to all unit owners and dictates the timing and contents

of such notice. Section 10 (f) requires the association to provide various

information to any unit owner that requests it in writing and, depending on

the information requested, requires that information be delivered either

promptly or within fifteen days of the association’s receipt of the request.

37 An amendment, executed subsequent to the commencement of this

action, modifies the language in § 10 (g) (iv) of the bylaws in ways nonmaterial to this analysis.

38 Indeed, circumstances falling between these two extremes generally

will not merit the application of the continuing course of conduct doctrine.

See Brusby v. Metropolitan District, 160 Conn. App. 638, 664, 127 A.3d 257

(2015) (‘‘In between the case in which a single event gives rise to continuing

injuries and the case in which a continuous series of events gives rise to a

cumulative injury is the case in which repeated events give rise to discrete

injuries . . . . [In such a case] the damages from each discrete act . . .

would be readily calculable without waiting for the entire series of acts to

end. There would be no excuse for the delay. And so the violation would

not be deemed continuing.’’ [Internal quotation marks omitted.])