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PANFILIO GUGLIEMI ET AL. v. WILLOWBROOK

CONDOMINIUM ASSOCIATION, INC.

(AC 35557)

Alvord, Keller and Peters, Js.

Argued May 20—officially released July 29, 2014

(Appeal from Superior Court, judicial district of

Hartford, Hon. Richard M. Rittenband, judge trial

referee.)

Matthew S. Carlone, for the appellants (plaintiffs).

Anita M. Varunes, with whom was Jesalyn Cole, for

the appellee (defendant).
Opinion

KELLER, J. The plaintiffs, Panfilio Gugliemi and

David Babych, appeal from the judgment of the trial

court rendered in favor of the defendant, Willowbrook

Condominium Association, Inc. (Willowbrook), following a trial to the court. In this appeal, the plaintiffs

claim that the court improperly determined that: (1) the

action was barred by the two year statute of limitations

contained in General Statutes § 52-584; (2) the action

was barred by the three year statute ofrepose contained

in § 52-584; and (3) the plaintiffs did not suffer any

damages as a matter of law. The plaintiffs also contend

that the court erred by failing to consider evidence of

the plaintiffs’ property damage. We conclude that the

first issue raised by the plaintiffs is dispositive of this

appeal, and that the court properly determined that the

plaintiffs’ action is barred by the two year statute of

limitations prescribed by § 52-584. We therefore affirm

the judgment of the trial court.1

The following facts and procedural history are relevant to this appeal. Babych owned unit number six

of the Willowbrook condominium complex from 2007

through 2010, when he sold it to Gugliemi.2 Gugliemi

occupied the unit during the period of time relevant

to this appeal. Sometime during the summer of 2007,

Gugliemi discovered that a water spigot situated near

his condominium unit and part of the Willowbrook condominium complex’ common elements had begun to

leak. Gugliemi testified that he first noticed the leak

when the hose was taken off the spigot, such that there

was no water pressure, and, as a result of the leak,

water flowed into the basement of the condominium

unit that he occupied.3 At that time, Gugliemi complained to Maryanne Allen, his neighbor and the manager of Willowbrook. Allen asked Gugliemi to put his

complaint in writing; she also stated that Willowbrook

would fix the leaking water spigot. Gugliemi discovered

mold and water damage in the basement of the condominium unit in October, 2009. He did not send a written

complaint to Willowbrook, however, until February

1, 2010.

On January 31, 2011, the plaintiffs commenced this

two count action. The plaintiffs twice amended their

complaint. The first count was pleaded as a negligence

action. The second count was brought under General

Statutes § 47-278 (a), which provides in relevant part: ‘‘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 defendant, in

its answer to the amended complaint, pleaded five special defenses; the only special defense that is relevant

for present purposes is that the action is barred by the

statute of limitations under § 52-584.
Following three days of testimony, the court, Hon.

Richard M. Rittenband, judge trial referee, issued a

memorandum of decision on March 28, 2013. The court

concluded that the plaintiffs’ action was barred by the

statute of limitations because the statute began to run

in 2007 and the action was not brought until 2011, which

was outside the two year period provided for under

§ 52-584. The court reasoned that Gugliemi suffered

actionable harm in 2007 because ‘‘[t]he plaintiffs were

aware of a leak in the unit in 2007, and the court finds

this to be the injury for purposes of [§] 52-584.’’ The

court also concluded that the statute of limitations was

not tolled by the continuing course of conduct doctrine

and that the plaintiffs’ action also was not timely under

the three year statute of repose provided for under § 52-

584. Accordingly, the court rendered judgment in favor

of the defendant. This appeal followed.

The dispositive issue raised in this appeal is the plaintiffs’ claim that the court erred in concluding that the

action was barred by the two year statute of limitations

set forth in § 52-584. Specifically, they argue that the

court ‘‘misconstrued what constituted ‘actionable

harm’ ’’ and, thus, ‘‘erred by finding that the statute of

limitations began to run on the date that . . . Gugliemi

first discovered the leaking water spigot rather than

the date that . . . Gugliemi discovered the water and

mold damage to his property.’’ We disagree.

Section 52-584 provides in relevant part: ‘‘No action

to recover damages for injury to . . . real or personal

property, caused by negligence . . . shall be brought

but within two years from the date when the injury

is first sustained or discovered or in the exercise of

reasonable care should have been discovered, and

except that no such action may be brought more than

three years from the date of the act or omission complained of . . . .’’ ‘‘When applying § 52-584 to determine whether an action was timely commenced, this

court has held that an injury occurs when a party suffers

some form of actionable harm. . . . Actionable harm

occurs when the plaintiff discovers . . . that he or she

has been injured and that the defendant’s conduct

caused such injury. . . . The statute begins to run

when the plaintiff discovers some form of actionable

harm, not the fullest manifestation thereof. . . . The

focus is on the plaintiff’s knowledge of facts, rather

than on discovery of applicable legaltheories.’’(Internal

quotation marks omitted.)Rosato v. Mascardo, 82Conn.

App. 396, 404–405, 844 A.2d 893 (2004).

‘‘[T]he question of whether a party’s claim is barred

by the statute of limitations is a question of law, which

this court reviews de novo.’’ (Internal quotation marks

omitted.) Certain Underwriters at Lloyd’s, London v.

Cooperman, 289 Conn. 383, 407–408, 957 A.2d 836

(2008). Determining when a plaintiff suffers actionable

harm, however, is ordinarily a question of fact. Tarnow-
sky v. Socci, 271 Conn. 284, 288, 856 A.2d 408 (2004).

‘‘[When] the factual basis of the court’s decision is challenged we must determine whether the facts set out

in the memorandum of decision are supported by the

evidence or whether, in light of the evidence and the

pleadings in the whole record, those facts are clearly

erroneous.’’ (Internal quotation marks omitted.) Saunders v. Firtel, 293 Conn. 515, 535, 978 A.2d 487 (2009).

‘‘A finding is clearly erroneous when although there is

evidence to support it, the reviewing court on the entire

evidence is left with the definite and firm conviction

that a mistake has been committed.’’(Internal quotation

marks omitted.) D’Amato Investments, LLC v. Sutton,

117 Conn. App. 418, 426, 978 A.2d 1135 (2009).

To resolve this appeal, we must determine whether

the trial court properly found that the plaintiffs suffered

actionable harm in the summer of 2007 when Gugliemi

complained to Allen. The plaintiffs contend that this

determination was erroneous. They contend that the

statute of limitations began to run in 2009 when Gugliemi first discovered mold and water damage in the

condominium unit’s basement. This assertion, however,

is belied by Gugliemi’s own admissions attrial. Gugliemi

testified that he noticed the spigot leaking in 2007, and

that he observed water leaking into the basement of

the condominium unit at that time. When he could not

stop the spigot from leaking, Gugliemi informed Allen

of the issue. Despite the spigot not being fixed, Gugliemi

continued to use the spigot in the summer of 2007 and

beyond. Later he testified that in 2007, he saw water

leaking inside his unit and could have shut the spigot

off at that time, but chose not to do so. Therefore,

Gugliemi’s testimony was sufficient for the court to find

thatthe plaintiffs suffered actionable harm in 2007 when

Gugliemi first observed water seeping into the basement of the condominium unit.

To the extent that the plaintiffs contend that they did

not suffer actionable harm until 2009 ‘‘when Gugliemi

discovered the mold and water damage’’ to the condominium unit’s basement, we reiterate what this court

stated in Rosato: ‘‘The statute begins to run when the

plaintiff discovers some form of actionable harm, not

the fullest manifestation thereof.’’ (Internal quotation

marks omitted.) Rosato v. Mascardo, supra, 82 Conn.

App. 405. The mold may be the ‘‘fullest manifestation’’

of the plaintiffs’ harm, but according to Gugliemi’s own

admissions, actionable harm occurred in the summer

of 2007. Moreover, even though Gugliemi claimed not

to have seen the mold or water damage until October,

2009, the court found his testimony not to be credible,

and we have no basis to conclude that the court’s

implicit determination that this damage should have

been discovered sooner through the exercise of reasonable care; see General Statutes § 52-584; is clearly

erroneous.
We conclude therefore that the trial court’s factual

determination that the plaintiffs suffered actionable

harm in 2007 is not clearly erroneous. Given that conclusion, the statute of limitations applicable to the plaintiffs’ negligence action began to run in the summer of

2007 when they first became aware of the water leaking

into the condominium unit. The period in which the

plaintiffs could bring an action expired two years thereafter, in the summer of 2009. See General Statutes § 52-

584. Therefore, the plaintiffs’ 2011 action was untimely,

and the trial court properly rendered judgment in favor

of the defendant.

The judgment is affirmed.

In this opinion the other judges concurred.

1 Even though the plaintiffs appeal from the judgment in its entirety, no

claims that would undermine the court’s judgment as to count two of the

plaintiffs’ complaint are raised in this appeal. Therefore, all claims as to the

court’s judgment pertaining to count two of the complaint are abandoned.

See Sequenzia v. Guerrieri Masonry, Inc., 298 Conn. 816, 824, 9 A.3d 322

(2010). Additionally, because we conclude that the two year statute of

limitations is dispositive of the plaintiffs’ appeal, we do not review any other

issues decided by the court and raised by the plaintiffs on appeal.

2 The record reflects that Babych owned the condominium unit that Gugliemi, his father-in-law, occupied at all relevant times, and that Babych sold

the unit to Gugliemi in 2010. A mortgage on the property was executed by

Babych and subsequently assumed by Gugliemi. Gugliemi paid the condominium fees and homeowner’s insurance premiums when he occupied the

unit. Babych has executed a power of attorney authorizing Gugliemi to act

and speak on his behalf in connection with this action.

3 The court found that both plaintiffs were aware of the leak in the unit

in 2007, and this factual finding is not challenged on appeal.