text:
    SIKORSKY FINANCIAL CREDIT UNION, INC. v. WILLIAM D. BUTTS
    (AC 34669)
    Robinson, Alvord and Peters, Js.

      Argued March 12
    —officially released August 6, 2013

      William L. Marohn, for the appellant (plaintiff).
   Opinion

PER CURIAM.

Pursuant to the terms of a retail instalment contract for the purchase of an automobile, the defendant agreed that, in the event of his default, he would be hable for postmaturity interest on the deficiency balance. The issue in this case is whether this provision determined the rate of interest for postjudgment interest. The plaintiff appeals from the judgment of the trial court concluding that postjudgment interest was governed by General Statutes § 37-Sa rather than by the contract. We affirm the judgment of the trial court.

In a complaint filed on July 12, 2011, the plaintiff, Sikorsky Financial Credit Union, Inc., alleged that the defendant, William D. Butts, had defaulted on the terms of a retail instalment contract securing a loan of $24,740.42. The plaintiff further alleged that the defendant had promised to make payments in accordance with this contract, and that, pursuant to the contract, the defendant had granted the plaintiff a security interest in his 2005 Mitsubishi Lancer. When the defendant subsequently defaulted on the terms of the retail instalment contract, the plaintiff took possession of the collateral and sold it at a public auction. The proceeds of the sale netted $13,200. The plaintiff alleged that pursuant to General Statutes § 36a-785 (g), the fair market value of the collateral was $17,250, leaving a deficiency after crediting the defendant $5673.58 for credits due. After the defendant failed to pay the amount of this deficiency, the plaintiff filed suit for a deficiency judgment plus interest, reasonable attorney’s fees and costs of suit. The defendant failed to appear, and a default judgment was entered against him.

A hearing in damages was held before the court on April 16, 2012. The court awarded the plaintiff damages totaling $7501, which included the difference between the sale proceeds and the fair market value of the collateral, attorney’s fees, and prejudgment interest at the contractual rate of 9.14 percent. Exercising its discretion pursuant to § 37-3a, the court also awarded the plaintiff postjudgment interest at the rate of 2 percent.

On April 24, 2012, the plaintiff moved for reargument and reconsideration on the issue of the applicable rate of postjudgment interest. The court granted the motion but declined to alter its judgment, stating that “[t]here is nothing in the agreement between the parties governing postjudgment interest. Postjudgment interest is discretionary with this court . . . .” The plaintiff subsequently sought articulation of the court’s judgment with respect to that portion of its judgment granting post-judgment interest at the rate of 2 percent. Granting the motion for articulation, the court stated that it had awarded postjudgment interest at a rate of 2 percent pursuant to its statutory authority under § 37-3a. It explained that its award of postjudgment interest was not an award of interest to be calculated under the contractual provision for “eo nomine interest” because in its view that postmaturity interest qualified as prejudgment interest.

On appeal, the plaintiff claims that the trial court improperly granted discretionary postjudgment interest at a rate of 2 percent pursuant to § 37-3a. The plaintiff argues that the court was required to grant postjudgment interest at the alleged contractually stipulated rate of 9.14 percent pursuant to General Statutes § 37-1, or, in the alternative, at the legal rate under that statute. We affirm the judgment of the court.

We first set forth the standard of review that governs our analysis. “Although a trial court’s decision to award postjudgment interest is subject to review for an abuse of discretion; see Bower v. D’Onfro, 45 Conn. App. 543, 551, 696 A.2d 1285 (1997); the [plaintiffs] claim on appeal that § 37-3a is inapplicable is a question of law.” Cadle Co. v. D’Addario, 131 Conn. App. 223, 243, 26 A.3d 682 (2011). Determining whether the plaintiff is entitled to postjudgment interest at the statutory rate or at the rate specified in the contract requires interpretation of the unambiguous terms of the contract and of the applicable statute; these are questions of law to which the plenary standard of review applies. See id., 243-44.

The plaintiff claims that it was entitled to postjudgment interest at the contractual rate of 9.14 percent pursuant to § 37-1 because the defendant agreed to pay this rate. According to the plaintiff, the court, therefore, improperly awarded interest under § 37-3a. Our Supreme Court has held that General Statutes § 37-3, a more recent predecessor to § 37-3a, and substantially the same in substance, “was not intended to, and did not, apply to contracts in which there was an express agreement for the payment of a specified lawful rate of interest after maturity. . . . The statute is applicable to damages for the detention of money after it becomes payable in those cases in which the contract makes no provision as to the rate of interest after maturity but is not applicable in those in which ... a rate of interest, otherwise lawful, is prescribed as applying from and after the time when the principal becomes payable. . . . The court explained that [t]he legislative history of [§] 37-1 . . . viewed in the fight of the developing case law, [could] only lead to the unquestioned conclusion that the General Assembly by use of the phrase in the absence of any agreement to the contrary in § 37-1 defining the legal rate of interest to be paid on judgments intended to and did, within the limits of the usury restrictions, allow parties to agree on the rate of interest on judgments . . . .” (Citation omitted; emphasis added; internal quotation marks omitted.) Id., 246, citing Little v. United National Investors Corp., 160 Conn. 534, 534-41, 280 A.2d 890 (1971).

In this case, the contract between the parties provides for an “annual percentage rate ([t]he cost of your credit as a yearly rate)” of 9.14 percent. In its grant of prejudgment interest, the court awarded interest pursuant to § 37-1 at the rate of 9.14 percent, as contemplated under the contract. The contract does not, however, explicitly address postjudgment interest. Accordingly, it was reasonable for the court to conclude that the rate of 9.14 percent applied only to prejudgment interest.

The contract also states, in a separate section describing the consequences of a default in payment by the defendant, that the vehicle would be repossessed and that “[i]f the amount we apply [from the sale of the vehicle] (less allowed expenses) is not enough to pay all you owe, you must pay the rest to us, unless the law provides otherwise. If you do not pay this amount when we ask, we may charge you interest at a rate not exceeding the highest lawful rate until you pay.” Nowhere in this section or elsewhere in the contract do the parties specify whether the “until you pay” language of the contract refers to interest to be accrued before or after a final judgment had been rendered against the defendant. In the absence of such a contractual provision for the rate of interest to accrue postjudgment, we are not persuaded by the plaintiff’s claim that it is entitled to postjudgment interest at a rate of 9.14 percent.

The plaintiff alternatively argues that, even if the rate of 9.14 percent applies only to prejudgment interest, it is still entitled to postjudgment interest at the legal rate of 8 percent pursuant to § 37-1. “[I]f contracting parties agree to or contemplate interest but fail to set a rate of interest, § 37-1 (a) provides that interest will accrue at the legal rate of 8 percent up to the date of maturity, and § 37-1 (b) provides that interest will continue to accrue at the legal rate of 8 percent from the date of maturity.” Ballou v. Law Offices Howard Lee Schiff, P.C., 304 Conn. 348, 382, 39 A.3d 1075 (2012). As we noted, however, the court properly determined that the “postmaturity” interest to be accrued under the contract should be characterized as prejudgment interest. Because the award of prejudgment interest included postmaturity interest at the contractual rate of 9.14 percent, we are, therefore, not persuaded that the plaintiff was entitled to additional postmaturity interest at the legal rate of 8 percent.

Furthermore, in its order awarding damages to the plaintiff, the court, in its calculation of the deficiency judgment and interest, relied on evidence submitted by the plaintiff, including a statement of debt, affidavits and a calculation of interest. In the plaintiff’s calculation, it did not claim postjudgment interest, but claimed prejudgment interest at 9.14 percent in accordance with § 37-1, totaling $600.96, which sum is the exact amount the court granted to the plaintiff in prejudgment interest. It is thus apparent that the plaintiff characterized the postmaturiiy or “eo nomine” interest to which it was entitled as “prejudgment interest.” Indeed, the plaintiff did not allege that it was owed postjudgment interest at the same rate until it filed its motion for reargument. This court has stated that “[a] motion to reargue ... is not to be used as an opportunity to have a second bite of the apple or to present additional cases or briefs which could have been presented at the time of the original argument.” (Internal quotation marks omitted.) Opoku v. Grant, 63 Conn. App. 686, 692-93, 778 A.2d 981 (2001). Because the plaintiff failed to claim contractual postjudgment interest in bringing its action or at the hearing in damages, it cannot fault the court’s consideration of the merits of its claim.

Having decided that it could properly consider the issue of postjudgment interest under § 37-3a, and not § 37-1, the court properly exercised its discretion to grant postjudgment interest at the rate of 2 percent pursuant to that statute. “A decision to deny or grant postjudgment interest is primarily an equitable determination and a matter lying within the discretion of the trial court. ... In determining whether the trial court has abused its discretion, we must make every reasonable presumption in favor of the correctness of its action. . . . The court’s determination regarding the award of interest should be made in view of the demands of justice rather than through the application of any arbitrary rule. . . . Whether interest may be awarded depends on whether the money involved is payable . . . and whether the detention of the money is or is not wrongful under the circumstances.” (Citations omitted; internal quotation marks omitted.) Bower v. D’Onfro, supra, 45 Conn. App. 550-51; see also Discover Bank v. Mayer, 127 Conn. App. 813, 818, 17 A.3d 80 (2011). Here, the court, weighing equitable considerations, determined that postjudgment interest was due at the rate of 2 percent. The plaintiff has advanced no reasonable ground for us to find an abuse of discretion in that determination. See Bower v. D’Onfro, supra, 551.

The judgment is affirmed.

       General Statutes § 37-3a provides: “(a) Except as provided in sections 37-3b, 37-3c and 52-192a, interest at the rate of ten per cent a year, and no more, may be recovered and allowed in civil actions or arbitration proceedings under chapter 909, including actions to recover money loaned at a greater rate, as damages for the detention of money after it becomes payable. Judgment may be given for the recovery of taxes assessed and paid upon the loan, and the insurance upon the estate mortgaged to secure the loan, whenever the borrower has agreed in writing to pay such taxes or insurance or both. Whenever the maker of any contract is a resident of another state or the mortgage security is located in another state, any obligee or holder of such contract, residing in this state, may lawfully recover any agreed rate of interest or damages on such contract until it is fully performed, not exceeding the legal rate of interest in the state where such contract purports to have been made or such mortgage security is located.
      “(b) In the case of a debt arising out of services provided at a hospital, prejudgment and postjudgment interest shall be no more than five per cent per year. The awarding of interest in such cases is discretionary.”

       General Statutes § 36a-785 (g) provides in relevant part: “If the goods retaken consist of a motor vehicle the aggregate cash price of which was more than two thousand dollars, the prima facie fair market value of such motor vehicle shall be calculated by adding together the average trade-in value for that motor vehicle and the average retail value for that motor vehicle and dividing that sum by two. Such average trade-in value and average retail value shall be determined by the values as stated in the National Automobile Dealers Association Used Car Guide, Eastern Edition, as of the date of repossession. ... In the event that the value of such motor vehicle ... is not stated in such publication, then the fair market value at retail minus the reasonable costs of resale shall be determined by the court. The prima facie evidence of fair market value of such motor vehicle ... so determined may be rebutted only by direct in-court testimony. If such value of the motor vehicle ... is less than the balance due under the contract, plus the actual and reasonable expenses of the retaking of possession, the holder of the contract may recover from the retail buyer, or from anyone who has succeeded to his obligations, as a deficiency, the amount by which such liability exceeds such fair market value, as defined in this subsection. If the actual resale price received by the holder exceeds such fair market value, as defined in this subsection, the actual resale price shall govern.”

       General Statutes § 37-1 provides: “(a) The compensation for forbearance of property loaned at a fixed valuation, or for money, shall, in the absence of any agreement to the contrary, be at the rate of eight per cent a year; and, in computing interest, three hundred and sixty days may be considered to be a year.
      “(b) Unless otherwise provided by agreement, interest at the legal rate from the date of maturity of a debt shall accrue as an addition to the debt.”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    CUDA AND ASSOCIATES, LLC v. CHARLIE J. SMITH
    (AC 34812)
    Bear, Sheldon and Keller, Js.
    Argued May 30
    —officially released August 6, 2013

      Chamina Smith, for the appellant (defendant).

      Carolyn M. Futtner, for the appellee (plaintiff).
   Opinion

PER CURIAM.

In this action brought by the plaintiff, CUDA & Associates, LLC, to collect on a credit card debt, the defendant, Charlie J. Smith, claims that the trial court improperly denied his second motion to open the judgment rendered in favor of the plaintiff. We disagree and thus affirm the judgment of the trial court.

The record reveals the following procedural history. On September 19, 2009, the defendant was served in hand with the writ, summons and complaint in this matter in which the plaintiff sought to collect a debt due on a credit card. On November 16, 2009, the defendant was defaulted for failing to appear and, on December 14, 2009, judgment entered in favor of the plaintiff in the amount of $5989.98, to be paid at the rate of $35 per week commencing on January 18, 2010.

On April 23, 2012, approximately twenty-eight months after the entry of such judgment, the defendant filed an appearance in this action, along with a motion to open the judgment, claiming that he previously had not known of this action and that he wanted to challenge the court’s jurisdiction and the validity of the alleged debt. In response, the plaintiff filed an objection claiming that the defendant was precluded from opening the judgment because he had not done so within four months of the date of judgment as required by our rules of practice. See Practice Book § 17-4 (a). On May 18, 2012, the court summarily denied the defendant’s motion and sustained the plaintiffs objection thereto.

On May 30, 2012, the defendant filed another motion to open and vacate the judgment in which he again challenged the jurisdiction of the court and claimed that the plaintiff did not have standing to bring this collection action and that it failed to state a cause of action. The plaintiff again objected. On June 18, 2012, the court denied the defendant’s motion and sustained the plaintiffs objection. On August 8, 2012, the court issued a very brief memorandum of decision explaining that the defendant’s proper remedy following the denial of his first motion to open was to appeal to this court, not to file another motion to open. This appeal followed.

“The principles that govern motions to open or set aside a civil judgment are well established. Within four months of the date of the original judgment, Practice Book [§ 17-4] vests discretion in the trial court to determine whether there is a good and compelling reason for its modification or vacation. . . . The exercise of equitable authority is vested in the discretion of the trial court and is subject only to limited review on appeal. . . . We do not undertake a plenary review of the merits of a decision of the trial court to grant or to deny a motion to open a judgment. The only issue on appeal is whether the trial court has acted unreasonably and in clear abuse of its discretion. ... In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of its action.” (Internal quotation marks omitted.) Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 94-95, 952 A.2d 1 (2008).

The defendant has appealed from the trial court’s June 18, 2012 denial of his second motion to open and vacate the judgment filed on May 30, 2012. The court’s denial of this motion was explained in its August 8, 2012 memorandum of decision, in which it did not address the merits of the defendant’s jurisdictional claims, but, rather, explained that the proper vehicle for challenging the earlier denial of his motion to open the judgment was an appeal to this court, not another motion to open. We agree. “A collateral attack on a judgment is a procedurally impermissible substitute for an appeal.” (Internal quotation marks omitted.) Gerte v. Logistec Connecticut, Inc., 283 Conn. 60, 63, 924 A.2d 855 (2007). The defendant’s second motion to open clearly constituted an untimely and impermissible collateral attack on the underlying judgment.

Moreover, our Supreme Court has stated: “[T]he modem law of civil procedure suggests that even litigation about subject matter jurisdiction should take into account the importance of the principle of the finality of judgments, particularly when the parties have had a full opportunity originally to contest the jurisdiction of the adjudicatory tribunal.” (Internal quotation marks omitted.) Upjohn Co. v. Zoning Board of Appeals, 224 Conn. 96, 103-104, 616 A.2d 793 (1992). Thus, although the defendant is correct in his contention that the issue of subject matter jurisdiction can be raised at any time and, once raised, must be addressed by the court, the time period during which jurisdiction may be challenged is not unbounded. The defendant had an opportunity to challenge the court’s jurisdiction and the validity of the plaintiffs complaint prior to the entry of judgment, and he had the opportunity to appeal directly from that judgment. After he filed his appearance in April, 2012, the defendant also had the opportunity to appeal from the judgment denying his first motion to open. He failed to do so.

The judgment is affirmed.

       The record reflects that the defendant was served in hand with a true and attested copy of the original writ, summons and complaint at 228 Judwin Avenue in New Haven, on September 19, 2009. The plaintiffs motion for default for failure to appear contains a certification of service to the defendant at that address. The court’s notice of default was mailed to the defendant at that address. The plaintiff sent notice of the final judgment to the defendant at that address. Notwithstanding his claim that he was unaware of the prior proceedings, the defendant used that address on his April 23, 2012, appearance and his first motion to open, also filed on April 23, 2012.

       The record reflects that notice of the court’s ruling was sent to the parties on May 22, 2012.

       We further note that although the defendant describes his claim as a challenge to the court’s subject matter jurisdiction, the essence of his claim is a lack of personal jurisdiction that he has not supported with any relevant factual allegations.


text:
    HAKIM R. JEFFERSON v. COMMISSIONER OF CORRECTION
    (AC 33240)
    Lavine, Robinson and Bear, Js.

      Argued April 17
    —officially released August 6, 2013

      Mary Boehlert, assigned counsel, for the appellant (petitioner).

      Melissa L. Streeto, senior assistant state’s attorney, with whom, on the brief, were David I. Cohen, state’s attorney, and Angela R. Macchiarulo, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Hakim R. Jefferson, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal the petitioner claims that the habeas court abused its discretion by denying (1) his petition for certification to appeal and (2) his petition for a writ of habeas corpus. We dismiss the appeal.

The following facts and procedural posture are relevant to this case. The petitioner was convicted of murder in November, 2003, and sentenced to fifty years imprisonment. On his direct appeal, this court described the offense: “In early May, 2002, the [petitioner] witnessed an argument between his friend, David Wash, and the victim, a man he had never met before, on Stillwater Avenue in Stamford. Approximately one week later, on May 11, 2002, the [petitioner] and Wash went to a Stamford nightclub called Sonny’s Cafe. They arrived at the club between 12:15 and 12:30 a.m. Shortly thereafter, the [petitioner] noticed that the victim was also at the club. The victim ‘was staring at [Wash and the petitioner] in a provoking manner.’ This made the [petitioner] ‘nervous and scared . . . that [the victim] was going to do or say something to [him].’ The [petitioner] left the club and waited outside until closing time. ... At approximately 2 a.m., the [petitioner] saw the victim leaning on a vehicle parked in front of the club. The victim stared at the [petitioner] and Wash and then approached a group of men as he pointed at the [petitioner]. The victim said to the group: ‘I’m [going to] set it on these guys. Watch my back.’ The victim walked away, heading úp the street and away from the club.

“The [petitioner] followed the victim, pulled out his loaded gun and fired two gunshots in the victim’s direction. The victim began to run, with the [petitioner] chasing him and firing three more gunshots from about three to four feet away. Those three bullets hit the victim, causing him to collapse to the ground in the middle of the road. The [petitioner] stood over the victim and fired two more gunshots at point blank range into the victim’s body. The [petitioner] fired a total of seven gunshots at the victim. The medical examiner found evidence of five gunshot wounds on the victim’s body, all of which were located in the back portion of the trunk area.” State v. Jefferson, 114 Conn. App. 566, 567-68, 970 A.2d 797, cert. denied, 292 Conn. 921, 974 A.2d 722 (2009).

Following the close of evidence at trial, defense counsel represented to the court that he was not pursuing any of the lesser included offense charges originally contained in his initial request to charge. A discussion between the corut and counsel “ensued regarding two lesser included offenses that were not included in that document, namely, intentional manslaughter in the first degree with a firearm . . . and reckless manslaughter in the first degree with a firearm .... The parties specifically agreed that, given the nature of the murder and the evidence produced at trial, the jury should be instructed on [reckless manslaughter]. Defense counsel represented that he did not intend to request an instruction on [intentional manslaughter], as he believed there would be no practical advantage in arguing to the jury that the [petitioner] possessed inconsistent mental states.” Id., 569. Thereafter, the court charged the jury on the lesser included offense of reckless manslaughter. No exceptions to the charge were taken by either party. The jury returned a verdict finding the petitioner guilty of murder. Id., 571-72.

The petitioner failed to appeal from his conviction in a timely manner, but filed a self-represented petition for a writ of habeas corpus on May 17, 2004 (first habeas). The petition included a number of trial-related issues, including ineffective assistance of trial counsel. Sometime thereafter, Genevieve Salvatore (first habeas counsel) was appointed to represent the petitioner in his first habeas case. Due in part to miscommunication between first habeas counsel and the petitioner, the first habeas court never adjudicated the petitioner’s trial-related claims. The case concluded with a stipulated judgment and restoration of the petitioner’s rights to a direct appeal and sentence review. It is the failure of first habeas counsel to pursue the petitioner’s trial-related claims in the first habeas that forms the basis of the petitioner’s ineffective assistance of habeas counsel claim in this case.

With his appellate rights restored, the petitioner appealed to this court directly. The petitioner claimed that the trial court improperly failed to instruct the jury on intentional manslaughter in the first degree with a firearm as a lesser included offense within the crime of murder. This court found that the petitioner was not entitled to the instruction because there had not been a proper request. Nonetheless, this court considered whether the charge could have been given as a matter of law. This court noted that intentional manslaughter requires the specific intent to seriously injure and reviewed the evidence. This court reasoned: “[W]hen asked why he shot the victim; the [petitioner] responded that he ‘was very intoxicated so . . . [he] really had no control over [his] actions,’ and he ‘didn’t know what [he] was doing.’ This testimony is entirely inconsistent with the [petitioner’s] claim on appeal that when he shot the victim, he possessed the specific intent to cause serious physical injury to the victim. Therefore, we conclude that the evidence does not support an instruction on intentional manslaughter in the first degree with a firearm.” Id., 581.

Following his direct appeal, the petitioner commenced a second petition for a writ of habeas corpus, the subject of this case, alleging ineffective assistance of counsel claims as to trial counsel and first habeas counsel. The habeas court found that trial counsel was not deficient, and that although first habeas counsel was deficient, there was no prejudice to the petitioner. The habeas court denied relief in a decision from the bench on February 7, 2011. The petitioner then filed a petition for certification to appeal on February 15,2011, which the habeas court denied. This appeal followed.

We now turn to the standard of review. When the habeas court denies certification to appeal, a petitioner faces a formidable challenge, as we will not consider the merits of a habeas appeal unless the petitioner establishes that the denial of certification to appeal amounts to an abuse of discretion. Castonguay v. Commissioner of Correction, 300 Conn. 649, 657, 16 A.3d 676 (2011). An abuse of discretion exists only when the petitioner can show “that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” (Emphasis omitted; internal quotation marks omitted.) Simms v. Warden, 230 Conn. 608, 616, 646 A.2d 126 (1994). “[For this task] we necessarily must consider the merits of the petitioner's underlying claims to determine whether the habeas court reasonably determined that the petitioner’s appeal was frivolous.” Taylor v. Commissioner of Correction, 284 Conn. 433, 449, 936 A.2d 611 (2007).

In order to establish an ineffective assistance of counsel claim a petitioner must meet the two-pronged test enunciated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Specifically, “the claim must be supported by evidence establishing that (1) counsel’s representation fell below an objective standard of reasonableness, and (2) counsel’s deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance.” (Emphasis in original; internal quotation marks omitted.) Crocker v. Commissioner of Correction, 126 Conn. App. 110, 116, 10 A.3d 1079, cert. denied, 300 Conn. 919, 14 A.3d 333 (2011). Because both prongs of Strickland must be demonstrated for the petitioner to prevail, failure to prove either prong is fatal to an ineffective assistance claim. See Mock v. Commissioner of Correction, 115 Conn. App. 99, 110, 971 A.2d 802, cert. denied, 293 Conn. 918, 979 A.2d 490 (2009).

On the basis of our review, we conclude that the habeas court did not abuse its discretion by denying certification to appeal. The habeas court concluded that the lesser included offense instruction was unavailable under State v. Whistnant, 179 Conn. 576, 427 A.2d 414 (1980). That conclusion is consistent with this court’s decision in the petitioner’s direct appeal. State v. Jefferson, supra, 114 Conn. App. 581. The petitioner argues that there was sufficient evidence to justify the charge of intentional manslaughter because there was “ample evidence of the petitioner’s intent to cause serious physical injury . . . .” We disagree.

After carefully considering the record, we agree with the court that there was insufficient evidence to warrant giving the charge. As the charge was not supported as a matter of law, trial counsel could not have been deficient in failing to request it. Accordingly, the petitioner has failed to show that this issue is debatable among jurists of reason, that a court could have resolved the issue differently, or that the issue deserves encouragement to proceed further.

The petitioner also claims that his first habeas counsel was ineffective. As we have concluded that trial counsel was not ineffective, the petitioner cannot demonstrate that the deficient performance of habeas counsel was prejudicial. See Edwards v. Commissioner of Correction, 141 Conn. App. 430, 438, 63 A.3d 540 (“a petitioner claiming ineffective assistance of habeas counsel on the basis of ineffective assistance of trial counsel must essentially satisfy Strickland twice: he must prove both [1] that his appointed habeas counsel was ineffective, and [2] that his trial counsel was ineffective” [emphasis omitted; internal quotation marks omitted]), cert. denied, 308 Conn. 940, 66 A.3d 882 (2013).

The appeal is dismissed.

       See General Statutes §§ 53a-55a and 53a-55 (a) (1).

       The habeas court also found that the prejudice prong of Strickland was not met because the petitioner did not prove that there was a reasonable probability that the jury would have found him not guilty of murder but guilty of the lesser included offense of intentional manslaughter with a firearm. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).


text:
    CHRISTOPHER STANTON v. CHRISTINE STANTON
    (AC 34464)
    Beach, Bear and Mihalakos, Js.
    Argued May 21
    —officially released August 6, 2013

      Sandra M. McDonough, for the appellant (defendant).

      Frank J. Kolb, Jr., with whom, on the brief, was Joseph A. DiSilvestro, for the appellee (plaintiff).
   Opinion

PER CURIAM.

The defendant, Christine Stanton, appeals from an order of the trial court granting her postjudgment motion for modification of the parties’ separation agreement. On appeal, the defendant claims that the court erred in reducing the child support obligations of the plaintiff, Christopher Stanton, despite the finding of the court that the plaintiffs income had substantially increased.

After examining the record and the briefs and considering the arguments of the parties, we are not persuaded that the court abused its discretion in modifying the plaintiffs child support obligations.

The judgment is affirmed.


author: BEAR, J.

text:
    CARYN RICKEL v. MICHAEL KOMAROMI ET AL.
    (AC 35062)
    Graendel, Bear and Lavery, Js.

      Argued May 22
    —officially released August 13, 2013

      Keith R. Ainsworth, for the appellant (plaintiff).

      W. Glen Pierson, for the appellees (named defendant et al.).
   Opinion

BEAR, J.

The plaintiff, Caryn Rickel, appeals from the summary judgment rendered by the trial court in favor of the defendants Michael Komaromi and Roberta Komaromi with respect to the counts of her complaint sounding in nuisance and trespass. On appeal, the plaintiff claims that the court erred in rendering summary judgment because (1) it did not address the plaintiffs allegations and arguments in opposition to the defendants’ motion for summary judgment that the repeated bamboo encroachment from the defendants’ property to her property constituted a continuing nuisance and a continuing trespass, and (2) it did not address the factual question of whether the nuisance and trespass were continuing or permanent. We reverse the judgment of the trial court.

The record reveals the following undisputed facts and procedural history. The plaintiff resides at 13 Edgehill Terrace in Seymour. The defendants reside at 10 Sunset Terrace in Seymour, which is adjacent to the plaintiffs property. On or about July 1, 1997, the defendants planted phyllostachys aureosulcata, a type of invasive running bamboo, along their comer property line, but they did not put up any barrier to contain it. The bamboo encroached upon the plaintiffs property. In 2005, during the installation of a patio at the comer of the plaintiffs property, a landscaper used a backhoe and dump track in order to eradicate the bamboo from the area. The landscaper also installed steel sheathing along this corner property line in order to protect the patio. Despite the steel sheathing, the bamboo had reentered the area by July, 2010.

The plaintiff commenced her action against the defendants by service of process on November 5, 2010. She brought claims of nuisance, trespass and negligence against them. In addition to the aforementioned undisputed facts, the plaintiff also alleged in her complaint that the bamboo further and repeatedly encroached on her property at all relevant times, and it presently continues to do so. The defendants filed their answer on August 4, 2011, in which they raised a statute of limitations special defense on all of the claims against them.

On June 28, 2012, the defendants moved for summary judgment on the ground that the applicable statutes of limitations had run on the three claims against them. They submitted no documentary proof in support of their motion; they cited only to the complaint for the facts on which they relied to argue their entitlement to a judgment as a matter of law. The court granted the defendants’ motion on August 16,2012. In its memorandum of decision, the court concluded that the applicable statutes of limitations had provided the plaintiff with a maximum of three years from “the date of the act or omission complained of’ to commence her action against the defendants. The court noted that there was no dispute that the defendants planted the bamboo in 1997 or that the plaintiff “discovered the actionable harm in 2005 . . . .” Nonetheless, because the plaintiff did not commence her action against the defendants until 2010, the court held that each count of the action was time barred as a matter of law. This appeal followed. The plaintiff appeals only from the court’s judgment with respect to her nuisance and trespass claims.

On appeal, the plaintiff claims that (1) the court erred in rendering summary judgment on her nuisance and trespass counts because she raised a genuine issue of material fact by alleging in her complaint and arguing in her opposition to summary judgment that the repeated encroachment of the defendants’ bamboo upon her property created a continuing nuisance and a continuing trespass; and (2) the court committed error by failing to acknowledge, let alone address, her continuing nuisance and continuing trespass allegations and arguments, and the factual question of whether a nuisance or trespass is continuing or permanent requires the denial of a motion for summary judgment made solely on statute of limitations grounds. She claims that this is because, for statute of limitations purposes, each instance of nuisance or trespass in a continuing nuisance or trespass creates a new cause of action, whereas a permanent nuisance or trespass involves a discrete occurrence of nuisance or trespass from which the applicable statute of limitations begins to run. The existence of this genuine issue of material fact, she contends, should have precluded the court from concluding that the defendants were entitled to a judgment as a matter of law. We agree.

We begin our analysis with the well settled standard of review applied to a court’s decision to grant a motion for summary judgment. “Our review of the trial court’s decision to grant [a] motion for summary judgment is plenary.” (Internal quotation marks omitted.) Boone v. William W. Backus Hospital, 272 Conn. 551, 559, 864 A.2d 1 (2005). “In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts; which, under applicable principles of law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact. ... As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent. . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue. . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue. ... It is not enough . . . for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45].” (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008).

“An important exception exists, however, to the general rule that a party opposing summary judgment must provide evidentiary support for its opposition, and that exception has been articulated in our jurisprudence with less frequency than has the general rule. On a motion by the defendant for summary judgment the burden is on [the] defendant to negate each claim as framed by the complaint. ... It necessarily follows that it is only [o]nce [the] defendant’s burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying atrial.” (Emphasis added; internal quotation marks omitted.) Baldwin v. Curtis, 105 Conn. App. 844, 850-51, 939 A.2d 1249 (2008).

The plaintiffs complaint contains several allegations that the defendants’ bamboo repeatedly has encroached on her property, resulting in a continuing nuisance and a continuing trespass. For example, in her nuisance count, the plaintiff alleged in relevant part that the defendants “have planted this normative invasive [bamboo] with no containment of any kind. They have continued to cultivate it and freely allow it to aggressively spread to . . . adjacent properties .... This has been continual nuisance to my use and enjoyment of my land.” The plaintiff similarly alleged in her trespass count that the defendants “have allowed this nonnative invasive [bamboo] to aggressively spread from their original planting which was directly on my property line to all three of the properties mentioned [previously]. The infestation ... is massive . . . [and has] continuously been aggressively invading my land.” The plaintiffs continuing nuisance and continuing trespass allegations therefore factor into the question of whether the court correctly concluded that the defendants met their summary judgment burden with respect to the plaintiffs nuisance and trespass claims, as framed by her complaint. We note that the defendants did not address the plaintiffs continuing nuisance and continuing trespass allegations at any point in moving for summary judgment.

We now direct our attention to the plaintiffs’ claims on appeal. We start with her claim that the factual question of whether a nuisance or trespass is continuing or permanent requires the denial of a motion for summary judgment made solely on statute of limitations grounds. Our resolution of this claim will bear upon our resolution of the plaintiffs other claim, that the court erred in rendering summary judgment without addressing her continuing nuisance and continuing trespass allegations.

“[R]ecent case law treats trespass cases as involving acts that interfere with a plaintiff s exclusive possession of real property and nuisance cases as involving acts interfering with a plaintiffs use and enjoyment of real property.” Boyne v. Glastonbury, 110 Conn. App. 591, 599-600, 955 A.2d 645, cert. denied, 289 Conn. 947, 959 A.2d 1011 (2008). “[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 plaintiffs exclusive possess-ory interest; (3) done intentionally; and (4) causing direct injury. . . . The invasion, intrusion or entry must be physical. . . . [B]ecause it is the right of the owner in possession to exclusive possession that is protected by an action for trespass, it is generally held that the intrusion of the property be physical and accomplished by a tangible matter. Thus, in order to be liable for trespass, one must intentionally cause some substance or thing to enter upon another’s land.” (Citations omitted; internal quotation marks omitted.) Bristol v. Tilcon Minerals, Inc., 284 Conn. 55, 87-88, 931 A.2d 237 (2007). “A temporary injury [in the trespass context] is one which may be abated or discontinued at any time .... When injury to property resulting from a trespass is remedial by restoration or repair, it is considered to be temporary . . . .” (Citations omitted; internal quotation marks omitted.) Id., 90.

The applicable statute of limitations for trespass actions is General Statutes § 52-577, which provides: “No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.” See Caciopoli v. Lebowitz, 131 Conn. App. 306, 315, 26 A.3d 136 (2011). “When conducting an analysis under § 52-577, the only facts material to the trial court’s decision on a motion for summary judgment are the date of the wrongful conduct alleged in the complaint and the date the action was filed.” (Internal quotation marks omitted.) Valentine v. LaBow, 95 Conn. App. 436, 446-47, 897 A.2d 624, cert. denied, 280 Conn. 933, 909 A.2d 963 (2006).

A “private nuisance,” in contrast to a trespass, “is a nontrespassory invasion of another’s interest in the private use and enjoyment of land. . . . The law of private nuisance springs from the general principle that [i]t is the duty of every person to make a reasonable use of his own property so as to occasion no unnecessary damage or annoyance to his neighbor. . . . The essence of a private nuisance is an interference with the use and enjoyment of land.” (Citations omitted; internal quotation marks omitted.) Pestey v. Cushman, 259 Conn. 345, 352, 788 A.2d 496 (2002). “[I]n order to recover damages in a common-law private nuisance cause of action, a plaintiff must show that the defendant’s conduct was the proximate cause of an unreasonable interference with the plaintiffs use and enjoyment of his or her property. The interference may be either intentional ... or the result of the defendant’s negligence.” (Citation omitted.) Id., 361; accord Ugrin v. Cheshire, 307 Conn. 364, 376-77, 54 A.3d 532 (2012).

“A permanent nuisance has been said to be one which inflicts a permanent injury upon real estate . . . .” Filisko v. Bridgeport Hydraulic Co., 176 Conn. 33, 40, 404 A.2d 889 (1978). “A temporary nuisance is one where there is but temporary interference with the use and enjoyment of property . . . .” Id. “Whether a nuisance is temporary or permanent is ordinarily a question of fact.” Id.

The applicable statute of limitations for a nuisance claim based on alleged negligent conduct is General Statutes § 52-584; Sinotte v. Waterbury, 121 Conn. App. 420, 430, 995 A.2d 131, cert. denied, 297 Conn. 921, 996 A.2d 1192 (2010); which provides in relevant part: “No action to recover damages for injury to . . . real . . . property, caused by negligence, or by reckless or wanton misconduct . . . shall be brought but within two years from the date when the iqjury 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 . . . .” “In the context of applying § 52-584 to decide whether a particular action was commenced in a timely fashion, we have stated that an injury occurs when a party suffers some form of actionable harm.” (Internal quotation marks omitted.) Lindsay v. Pierre, 90 Conn. App. 696, 700, 879 A.2d 482 (2005).

Nuisance and negligence may share the same statute of limitations, depending on the factual basis for the nuisance claim, but otherwise they “are terms that describe completely distinct concepts, which constitute distinct torts, different in their nature and in their consequences. ... A claim for nuisance is more than a claim of negligence, and negligent acts do not, in themselves, constitute a nuisance; rather, negligence is merely one type of conduct upon which liability for nuisance may be based.” (Footnote omitted.) 57A Am. Jur. 2d 85, Negligence § 15 (2012). Furthermore, “[n]uisance is a word often very loosely used; it has been not inaptly described as a catch-all of ill-defined rights. . . . There is perhaps no more impenetrable jungle in the entire law than that which surrounds the word nuisance. . . . There is general agreement that it is incapable of any exact or comprehensive definition.” (Citation omitted; internal quotation marks omitted.) Heritage Village Master Assn., Inc. v. Heritage Village Water Co., 30 Conn. App. 693, 708, 622 A.2d 578 (1993).

In applying these principles to the plaintiffs claims, we note that “[s]ummary judgment may be granted where the claim is barred by the statute of limitations ... as long as there are no material facts concerning the statute of limitations in dispute.” (Citation omitted.) Haggerty v. Williams, 84 Conn. App. 675, 678-79, 855 A.2d 264 (2004). We therefore consider whether there were any material facts in dispute concerning the applicability of §§ 52-577 and 52-584 to the plaintiffs nuisance and trespass claims when the court rendered summary judgment.

The plaintiff argues that the “date of the act or omission complained of’ and “the date when the injury [was] first sustained or discovered” depend on whether the alleged nuisance and trespass are characterized as continuing or permanent. Again, she argues that this is because, for statute of limitations purposes, each instance of nuisance or trespass in a continuing nuisance or trespass situation creates a new cause of action, whereas a permanent nuisance or trespass situation involves a discrete occurrence of nuisance or trespass from which the applicable statute of limitations begins to run.

Whether the applicable statute of limitations runs differently for a continuing nuisance or trespass than it does for a permanent nuisance or trespass seems to be an issue of first impression for our appellate courts. The plaintiff cites only to trial court decisions in support of her position, all of which cite to each other and ultimately to other jurisdictions’ decisions and secondary sources for support. See, e.g., Liss v. Milford Partners, Inc., Superior Court, judicial district of Hartford, Complex Litigation Docket, Docket No. X07-CV-04-4025123-S (February 20, 2008) (45 Conn. L. Rptr. 89); Benson v. Redding, Superior Court, judicial district of Danbury, Docket No. CV-02-0344668-S (February 4, 2003); Healy-Ford Lincoln Mercury v. USI, Inc., Superior Court, judicial district of New Haven, Docket No. CV-97-0402651-S (August 5, 2002); Blackburn v. Miller-Stephenson Chemical Co., Superior Court, judicial district of Danbury, Docket No. CV-93-0314089 (September 11, 1998); Piccolo v. Connecticut Light & Power Co., Superior Court, judicial district of New Haven, Docket No. CV-95-0371992-S (November 5, 1996); Prescott v. Northeast Utilities, Superior Court, judicial district of Fairfield, Docket No. CV-94-0315423-S (December 18, 1995) (15 Conn. L. Rptr. 489).

Indeed, our research indicates that this issue has not come before this court or our Supreme Court for resolution on appeal. See Corcoran v. Milford, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-08-5017014 (July 8, 2008) (45 Conn. L. Rptr. 850, 851) (“[t]here is a split in the Superior Court, and no appellate authority, on whether the distinction between temporary and permanent nuisance is relevant to the statute of limitations period” [internal quotation marks omitted]). “In the absence of state decisional guidance, we look to the reasoning of other jurisdictions that have confronted analogous circumstances.” Connecticut Carpenters Benefit Funds v. Burkhard Hotel Partners II, LLC, 83 Conn. App. 352, 357, 849 A.2d 922 (2004). Our review of such reasoning establishes that the distinction between temporary and permanent nuisances and trespasses for statute of limitations purposes has been broadly and readily adopted.

“The nature of a nuisance as permanent or temporary has an important bearing on the running of the statute of limitations. . . . For limitations purposes, a permanent nuisance claim accrues when injury first occurs or is discovered while a temporary nuisance claim accrues anew upon each injury.” (Footnote omitted.) 58 Am. Jur. 2d 764, Nuisances § 254 (2012). Likewise, “[i]n the case of a continuing trespass, the statute of limitations does not begin to run from the date of the original wrong but rather gives rise to successive causes of action each time there is an interference with a person’s property. . . . Thus, if there are multiple acts of trespass, then there are multiple causes of action, and the statute of limitations begins to run anew with each act. ... On the other hand, if a trespass is characterized as permanent, the statute of limitations begins to run from the time the trespass is created, and the trespass may not be challenged once the limitation period has run.” (Footnotes omitted.) 54 C.J.S. 280-81, Limitations of Actions § 239 (2010); accord 75 Am. Jur. 2d 168, Trespass § 175 (2012).

“Generally, whether a nuisance is deemed to be continuing or permanent in nature determines the manner in which the statute of limitations will be applied. . . . If a nuisance is not abatable, it is considered permanent, and a plaintiff is allowed only one cause of action to recover damages for past and future harm. The statute of limitations begins to run against such a claim upon the creation of the nuisance once some portion of the harm becomes observable. See . . . Restatement (Second) of Torts § 899, [comment] d. A nuisance is deemed not abatable, even if possible to abate, if it is one whose character is such that, from its nature and under the circumstances of its existence, it presumably will continue indefinitely. . . . However, a nuisance is not considered permanent if it is one which can and should be abated. ... In this situation, every continuance of the nuisance is a fresh nuisance for which a fresh action will lie, and the statute of limitation will begin to run at the time of each continuance of the harm.” (Citations omitted; internal quotation marks omitted.) Oglethorpe Power Corp. v. Forrister, 289 Ga. 331, 333, 711 S.E.2d 641 (2011); accord, e.g., Burley v. Burlington Northern & Santa Fe Railway Co., 364 Mont. 77, 82-83, 273 P.3d 825 (2012); Russo Farms, Inc. v. Board of Education, 144 N.J. 84, 99-105, 675 A.2d 1077 (1996).

Similarly, with respect to trespass, “[t]he typical trespass ... is complete when it is committed; the cause of action accrues, and the statute of limitations begins to run at that time. . . . However, when the defendant erects a structure or places something on or underneath the plaintiffs land, the defendant’s invasion continues if he fails to stop the invasion and to remove the harmful condition. In such a case, there is a continuing tort so long as the offending object remains and continues to cause the plaintiff harm. ... In other words, each day a trespass of this type continues, a new cause of action arises.” (Citation omitted; internal quotation marks omitted.) Sanderson v. Heath Mesa Homeowners Assn., 183 P.3d 679, 682 (Colo. App.), cert. denied, Docket No. 08SC340, 2008 Colo. LEXIS 929 (Colo. September 2, 2008); accord, e.g., Doherty v. Admiral’s Flagship Condominium Trust, 80 Mass. App. Ct. 104, 110, 951 N.E.2d 936, review denied, 460 Mass. 1114, 954 N.E.2d 539 (2011); Fradkin v. Northshore Utility District, 96 Wn. App. 118, 119-20, 124-26, 977 P.2d 1265 (1999).

In Lucchesi v. Perfetto, 72 App. Div. 3d 909, 899 N.Y.S.2d 341 (2010), the Appellate Division of the Supreme Court of New York addressed arguments and issues similar to those before us. Before the court in Lucchesi was a motion for summary judgment granted in a nuisance and trespass action involving repeated deposits onto the plaintiffs’ property from an embankment on the defendants’ adjacent property. The court held that the New York Supreme Court “erred in concluding that the first cause of action to recover damages for nuisance, and the second cause of action to recover damages for trespass, were time-barred in their entirety. . . . [T]he first and second causes of action are based upon allegations of continuing wrongs—the continued entry of boulders, mud, and debris onto the plaintiffs’ property, and the continued presence of fill. These alleged acts of continuous nuisance and trespass give rise to successive causes of action under the continuous wrong doctrine. . . . Accordingly, summary judgment dismissing the first and second causes of action should have been awarded to the defendants only insofar as those causes of action seek damages for acts of nuisance and trespass alleged to have occurred more than three years before the action was commenced.” (Citations omitted.) Id., 911-12.

We conclude likewise in the present action. The plaintiff alleged facts in her complaint to support her claims that the defendants’ conduct in planting the bamboo and then failing to control its growth resulted in a continuing nuisance and a continuing trespass. The plaintiffs continuing nuisance and continuing trespass allegations therefore were part of the defendants’ initial burden to rebut in its motion for summary judgment, by demonstrating that there were no genuine issues of material fact regarding the application of the relevant statutes of limitations. In seeking summary judgment, however, the defendants referred only to three dates to establish the untimeliness of the plaintiffs claims—the 1997 planting of the bamboo, the 2005 installation of the patio, and the 2010 commencement of the action. They ignored other allegations in the complaint by limiting their focus to these dates. Even in their arguments before us, the defendants narrowly frame the “act or omission complained of’ on which they rely. They cite to the plaintiffs allegation that they “have planted this nonnative invasive [bamboo] with no containment of any kind,” but they do not cite to the immediately succeeding allegation by the plaintiff that, additionally, “[t]hey have continued to cultivate it and freely allow it to aggressively spread to . . . adjacent properties ...."

By conducting its summary judgment analysis only on the basis of the 1997,2005 and 2010 dates, the court, with respect to the trespass and nuisance counts, did not address the allegations of the defendants’ failure to control the underground spread of the bamboo rhizomes and the above ground spread of the bamboo on the plaintiffs property. This continuing underground and above ground activity on the plaintiffs property created a genuine issue of material fact about whether §§ 52-577 and 52-584 were a bar to all of her claims encompassed in her trespass and nuisance counts. “A ‘genuine’ issue has been variously described as a ‘triable,’ ‘substantial’ or ‘real’ issue of fact . . . and has been defined as one which can be maintained by substantial evidence. . . . Hence, the ‘genuine issue’ aspect of summary judgment procedure requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred. ... A ‘material’ fact has been defined adequately and simply as a fact which will make a difference in the result of the case. . . . ‘Issue of fact’ encompasses not only evidentiary facts in issue but also questions as to how the trier would characterize such evidentiary facts and what inferences and conclusions it would draw from them. . . . [S]ummary judgment is to be denied where there exist ‘genuine issues of fact and inferences of mixed law and fact to be drawn from the evidence before the [c]ourt.’ ” (Citations omitted.) United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 378-79, 260 A.2d 596 (1969).

In summary, whether the alleged nuisance and trespass by the rhizomes and bamboo were continuing or permanent presents a genuine issue of material fact with respect to the plaintiffs trespass and nuisance counts. The distinction drawn between continuing and permanent nuisances and trespasses for statute of limitations purposes has achieved wide recognition in other jurisdictions and in our Superior Court. Previous statements by this court and our Supreme Court suggest that this distinction is in accord with our construction of our law of nuisance and trespass. For example, in Stoto v. Waterbury, 119 Conn. 14, 17, 174 A. 189 (1934), our Supreme Court stated: “If the conditions necessary to create a nuisance were present, it might have arisen as well out of subsequent negligent omissions as out of the manner in which the situation was originally created.” We find another example in Cue Associates, LLC v. Cast Iron Associates, LLC, 111 Conn. App. 107, 118 n.3, 958 A.2d 772 (2008), where we stated in dictum: “[A] continuing trespass arguably might have taken the trespass [at issue] out of the statutory bar of § 52-577...."

We conclude that the court erred in rendering summary judgment without addressing the plaintiffs continuing nuisance and continuing trespass allegations, because, by doing so, the court overlooked genuine issues of material fact about whether the alleged nuisance and trespass were continuing or permanent, and thus whether the applicable statutes of limitations had run on the plaintiffs nuisance and trespass claims.

In assessing a motion for summary judgment, we hold the movants to their burden of “showing that it is quite clear what the truth is . . . .” (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., supra, 285 Conn. 11. The defendants have not met their burden. We reiterate that “[n]uisance is a word often very loosely used; it has been not inaptly described as a catch-all of ill-defined rights. . . . There is perhaps no more impenetrable jungle in the entire law than that which surrounds the word nuisance. . . . There is general agreement that it is incapable of any exact or comprehensive definition.” (Citation omitted; internal quotation marks omitted.) Heritage Village Master Assn., Inc. v. Heritage Village Water Co., supra, 30 Conn. App. 708. The complexity that commonly characterizes a nuisance claim is heightened when the issues raised by that claim are entangled with those raised by a trespass claim. The grafting together of these claims, when combined with the inquiry of whether such nuisances and trespasses are continuing or permanent, presents a knotty thicket of deeply factual issues that raise genuine issues of material fact and are inappropriate to decide on a motion for summary judgment. Accordingly, the court in this action erred in overprun-ing the multiplicity of facts and issues before it, leaving only the July, 1997 planting of the bamboo and the mechanical application of the relevant statutes of limitations to that date.

The judgment is reversed and the case is remanded for further proceedings according to law.

In this opinion the other judges concurred.

       In addition to Michael Komaromi and Roberta Komaromi (Komaromis), the plaintiff initially filed her action against William Price and Laura Price (Prices). She alleged in her complaint that the Prices reside at 8 Sunset Terrace in Seymour, which is adjacent to both the Komaromis’ property and her rental property at 11 Edgehill Terrace, and that bamboo growth on their property, which had originated on the Komaromis’ property, had encroached upon her rental property by June, 2010, constituting a trespass. The Prices were not parties to the Komaromis’ motion for summary judgment, however, and the plaintiff withdrew her claims against them on Janu-aiy 29, 2013. Accordingly, the Prices are not parties to this appeal. We therefore refer in this opinion to the Komaromis as the defendants.

       We note that our legislature recently has attempted to address the issue of invasive bamboo in No. 13-82, § 1, of the 2013 Public Acts.

       In characterizing both her nuisance and trespass claims, the plaintiff treats “temporary” as synonymous with “continuing.” Black’s Law Dictionary has distinct definitions for continuing and temporary nuisances and trespasses. It defines a continuing nuisance as “[a] nuisance that is either uninterrupted or frequently recurring” and a temporary nuisance as “[a] nuisance that can be corrected by a reasonable expenditure of money or labor.” Black’s Law Dictionary (9th Ed. 2009). It further defines a continuing trespass as “[a] trespass in the nature of a permanent invasion on another’s rights.” Id. Nonetheless, our trial courts, courts in other jurisdictions and secondary sources that have addressed the issues before us have also treated “temporary” as synonymous with “continuing.” See, e.g., United States v. Hess, 194 F.3d 1164, 1176 n.12 (10th Cir. 1999) (“[t]he crucial question in regard to the applicability of the statute of limitations for trespass is whether the injuries sustained are permanent [fixed] or continuing [sometimes referred to as ‘temporary’]”); Maderia v. Northeast Utilities Service Co., Superior Court, judicial district of Middlesex, Complex Litigation Docket, Docket No. X04-CV-00-0103499-S (November 17, 2004) (38 Conn. L. Rptr. 286); Healy-Ford Lincoln Mercury v. USI, Inc., Superior Court, judicial district of New Haven, Docket No. CV-97-0402661-S (August 5, 2002); Stickdorn v. Zook, 957 N.E.2d 1014, 1022 (Ind. App. 2011) (“[t]he distinction between an injury caused by a nuisance that is ‘permanent’ or ‘original,’ and one that is considered temporary, transient, continuing, or recurring, is critical to determining when the statute of limitations period for a nuisance action begins to run”); 58 Am. Jur. 2d 586, Nuisances § 21 (2012).

       One of the defendants’ arguments for affirming the court’s judgment is that the continuing course of conduct doctrine is not applicable in the present action. A tort statute of limitations “may be tolled under the . . . continuing course of conduct doctrine . . . .” (Internal quotation marks omitted.) Neuhaus v. DeCholnoky, 280 Conn. 190, 201, 905 A.2d 1135 (2006). In order for the doctrine to apply, “there must be evidence of the breach of a duty that remained in existence after the commission of the original wrong related thereto.” (tntemal quotation marks omitted.) Id. We have held, however, that “the continuing course of conduct doctrine has no application after the plaintiff has discovered the harm.” (Internal quotation marks omitted.) Mollica v. Toohey, 134 Conn. App. 607, 613, 39 A.3d 1202 (2012). “[A]fter the discovery of actionable harm, the policy behind [the continuing course of conduct doctrine] is no longer served.” (Internal quotation marks omitted.) Id., 614. Mollica was a negligent maintenance and ownership action for injuries suffered from toxic mold on the leased premises that the plaintiff tenants commenced against the defendant landlord in 2005. Id., 608-609. The trial court held that the action was untimely under § 52-584, and this court affirmed the judgment. Id., 610, 612. We concluded that the continuing course of conduct doctrine was unavailable to toll the statute of limitations, because there was no dispute that the plaintiffs “became aware of their injuries from the mold in 2001”; id., 614; and the statute of limitations therefore ran in 2003. Id. Similarly, in the present action, there is no dispute that the plaintiff had become aware of the harm caused to her property by 2005. The continuing course of conduct doctrine is therefore unavailable to toll the applicable statutes of limitations; the plaintiff concedes this point. We do not conclude, however, that the applicable statutes of limitations have otherwise run on the plaintiff’s nuisance and trespass claims. The court in Mollica came to its conclusion based on the facts before it and the plaintiffs one claim sounding in negligence. The facts presently before us are distinguishable from those in Mollica, and the claims at issue sound in nuisance and trespass, not negligence.


author: PELLEGRINO, J.

text:
    TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA v. MICHAEL CARIDI ET AL.
    (AC 34559)
    Bear, Sheldon and Pellegrino, Js.

      Argued April 10
    —officially released August 13, 2013

      Ralph J. Monaco, with whom, on the brief, was Jonathan T. Lane, for the appellants (defendants).

      Jared Cohane, with whom was Timothy T. Corey, for the appellee (plaintiff).
   Opinion

PELLEGRINO, J.

The defendants, Michael Caridi and Jill DeBiasi Caridi, appeal from the judgment of the trial court granting an application for a prejudgment remedy filed by the plaintiff, Travelers Casualty and Surety Company of America. The defendants claim that the court improperly (1) prejudged the merits of the plaintiffs application before the defendants’ presentation of their evidence, thereby effectively precluding them from presenting their case, (2) found that the plaintiffs action was timely after concluding that the statute of limitations began to run in 2009, rather than in 2005, and (3) concluded that it had jurisdiction over the plaintiffs action when a purportedly identical action between the parties also was pending in New York. We affirm the judgment of the trial court.

The following facts, as found by the court, and procedural history are relevant to our disposition of this appeal. Michael Caridi is the president of SRC Construction Corporation of Monroe, Inc. (SRC). On or about April 24,2002, SRC entered into a construction contract with the Atlantic City Housing Authority (housing authority) for the construction of a senior living center in Atlantic City, New Jersey. As a condition for entering into the contract, SRC was required to obtain a performance and payment bond from a surety company. In August, 2001, SRC arranged for the issuance of such a bond with the plaintiff, a surety company. The plaintiff and SRC entered into the performance and payment bond on June 14, 2002.

A general agreement of indemnity (agreement) dated August 22, 2001, was executed by the plaintiff to SRC. The agreement identified the plaintiff as the “Company” and identified the other parties to the agreement as “Indemnitor.” There were three indemnitors under the agreement: the defendants, as individual indemnitors; and SRC, as corporate indemnitor. The agreement concerned certain bonds that “have heretofore been or may hereafter be required by, for, or on behalf of the Indemnitor,” and provided that “[a]s a prerequisite to the execution of such [b]onds, the Company requires complete indemnification.”

Construction commenced on the senior living center project. On April 30, 2009, when the project was close to completion, the housing authority terminated its construction contract with SRC. By letter to the plaintiff dated May 7, 2009, the housing authority demanded “that in accordance with the requirements of the performance bond, [the plaintiff] take over and complete the project.” The plaintiff thereafter arranged for the completion of the project, as required by the terms of the performance and payment bond.

On March 8, 2011, the plaintiff filed an application for prejudgment remedy seeking to secure the sum of $1,276,662. In the unsigned complaint attached to its application, the plaintiff alleged, inter alia, that it had paid $886,125 from its reserves to satisfy claims arising under the performance and payment bond, and that it might be required to pay an additional $390,537 for future claims arising under the bond. The plaintiff further asserted that the defendants had failed to satisfy their obligations under the agreement; the proposed complaint sought, inter alia, specific performance of the agreement and indemnification.

The defendants moved to dismiss the application on May 6, 2011, claiming that an identical action was pending in New York state court. The court denied the defendants’ motion on July 22, 2011. Following briefing by the parties and a contested hearing, the court granted the application by issuing a prejudgment remedy in favor of the plaintiff in the amount of $1,272,630.95 and authorizing the attachment of certain real estate located in Greenwich, Connecticut. This appeal followed. Additional facts and procedural history will be set forth as necessary.

We begin by setting forth the standard of review and general legal principles relevant to this appeal. Our Supreme Court has recognized that appellate “review of the granting of a prejudgment remedy is very circumscribed. ... In its determination of probable cause, the trial court is vested with broad discretion which is not to be overruled in the absence of clear error.” (Citation omitted; internal quotation marks omitted.) TES Franchising, LLC v. Feldman, 286 Conn. 132, 137, 943 A.2d 406 (2008). “[T]he clear error standard in this context is a heightened standard of deference that exceeds the level of deference afforded under the abuse of discretion standard. Therefore, [an appellate] court will overrule the trial court’s determination on a prejudgment remedy only if [it is] left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Id., 138 n.6.

I

The defendants first claim that the court improperly predetermined the outcome of the prejudgment remedy application before the defendants had the opportunity to submit their evidence, effectively precluding them from presenting a defense. Specifically, the defendants assert that the court “made comments to the [defendants that showed the court had decided the merits of the case before the [defendants] presented any evidence or submitted any defense, other than cross examination,” which purportedly violated the defendants’ due process rights to a meaningful hearing prior to the attachment of their property. We are not persuaded.

The record reveals the following additional facts and procedural history relevant to the resolution of this claim. Commencing on November 9, 2011, the court conducted a contested hearing on the plaintiffs application for a prejudgment remedy; the hearing continued with the plaintiffs case-in-chief on November 10, 22, and 29, 2011. At the conclusion of the plaintiff’s casein-chief, on November 29, 2011, the defendants moved to dismiss pursuant to Practice Book § 15-8 for failure to make out a prima facie case. The court denied the defendants’ motion in an oral ruling, concluding, inter alia, that Practice Book § 15-8 is inapplicable in the context of a prejudgment remedy proceeding because § 15-8 references the “trial of any issue of fact,” and a prejudgment remedy hearing is not a trial. The court further rejected the defendants’ substantive arguments in favor of dismissal, referencing the evidence submitted by the plaintiff and determining that the plaintiff had satisfied the probable cause standard with respect to the elements of its prima facie case.

At the conclusion of its oral ruling, the court stated: “I did forty-five minutes [of an oral decision], Mr. Monaco [the defendants’ counsel] the handwriting’s on the wall. Isn’t it? Isn’t the handwriting on the wall? You asked for [Practice Book §] 15-8, and I made some rulings that may very well affect the prejudgment remedy decision on the merits. You have a couple minutes to consider that with your client. And you’ll have some time to talk about—Counsel, I’m not offended with a prejudgment remedy at less [than] $1,200,000. You can resolve that yourselves too. Okay?” The plaintiffs counsel indicated that he understood the court, and the defendants’ counsel asked: “Is the Court asking me to refrain from presenting evidence, because it’s decided the case?” The court responded: “No. You asked me to decide the issues on [§] 15-8.1 did. I decided the issues. You heard me decide the issues. You heard me decide issues that relate to the essence of the case. . . . You asked me to do that. I didn’t have to do that. But you asked me to do it. I did it. Okay? So, you can present all the evidence you want to. I told you, you have ten days in this case. You have five days. Somebody said a day, I said no, it’s ten days. I’m ready to do ten days. I’ll do ten days, but I’m just giving you fair warning. . . . You have the right to put on evidence. You lose the case, you have a right to appeal, and test it all on appeal. That’s perfectly all right. I’m not going to deprive you of anything. But I don’t have a—I have an open mind. I don’t have a closed mind.” (Emphasis added.)

The defendants’ counsel then stated that he did not “wish to waste anyone’s time,” and that “[i]f the Court has decided the case, you’ve decided the case.” The court responded: “No. I have decided the case, based upon what prima facie probable cause is. ... I denied your motion because it’s not applicable to prejudgment remedy. . . . But I went ahead ... to go through each of the factual issues that you had raised, and I decided each of those, on a probable cause standard. You heard that. That’s the issue that I have to decide after I hear all the evidence. And you have the burden to prove it by preponderance of the evidence, not by probable cause standards. . . . You have the lunch break to talk to your client and decide what you wish to do. ... At two o’clock I’d come back on the bench. You want to call your first witness, or whatever happens to be done. . . . But I have not decided this case. I have an open mind. You just saw my open mind. You asked me to decide the [$] 15-8. . . . And I rendered a decision on probable cause standards, based upon the plaintiffs case. Your evidence may show me otherwise. I have an open mind. . . . So it’s up to your client to figure out whether I can change my mind. You can make that decision. Okay?” (Emphasis added.) Upon return from the lunch break, the defendants’ counsel informed the court that “based on the Court’s rulings on the [§] 15-8 motion, and comments immediately preceding our lunch break, [the defendants] will not be offering any evidence . . . other than what’s already been offered . . . during the plaintiffs presentation of its case.” The court responded, “Okay.”

On the basis of our review of the record, we cannot conclude that the court deprived the defendants of the opportunity to present their evidence in opposition to the plaintiffs application for a prejudgment remedy. The hearing transcript makes clear that the court addressed the merits of the plaintiffs application as part of its resolution of the defendants’ motion to dismiss and then suggested to the parties that after hearing the court’s initial thoughts on the merits, the parties should communicate with each other and attempt to resolve the issue without the need for further judicial intervention. The court explicitly informed the defendants’ counsel that it had not reached a final decision on the plaintiffs application, and invited the defendants to present whatever evidence they desired in the hopes of changing the court’s initial impressions of the case formed under the motion to dismiss standard. Yet, the defendants declined this invitation. Having chosen not to present their case, the defendants cannot now be heard to claim that the court denied them the opportunity to do so. Accordingly, we reject the defendants’ first claim on appeal.

II

Next, the defendants assert that the court erred in concluding that the plaintiffs action was not barred by the statute of limitations. Specifically, the defendants contend that the plaintiffs underlying claim accrued in November, 2005, and that the plaintiff had not yet served its complaint by the time the statute of limitations expired in November, 2011. According to the defendants, the court improperly rejected this argument and concluded that the statute of limitations began to run in 2009. We are not persuaded.

“The 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. . . . The factual findings that underpin that question of law, however, will not be disturbed unless shown to be clearly erroneous.” (Citation omitted; internal quotation marks omitted.) Jarvis v. Lieder, 117 Conn. App. 129, 146, 978 A.2d 106 (2009). Because the defendants are challenging the court’s factual finding that the operative date for calculating the statute of limitations occurred in 2009, the clearly erroneous standard of review applies. “A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or 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.) Id., 143.

The record reveals the following additional facts relevant to our resolution of this claim. Paragraph 1 of the agreement defines what constitutes a “default” under the agreement, providing in relevant part: “Any of the following shall constitute a [d]efault: A declaration of [c]ontract default by the obligee or entity for whom a [c]ontract is performed; actual breach or abandonment of any [c]ontract; a breach of any provision of [the agreement]. . . .”

On April 30, 2009, the housing authority adopted a resolution finding that SRC had defaulted under its contractual obligations to the housing authority and terminating its contract with SRC. By letter dated May 7, 2009, counsel for the housing authority demanded that the plaintiff take over and complete the project “in accordance with the requirements of the performance bond.” The court treated this May, 2009 letter as the operative event triggering the statute of limitations and found the plaintiffs application to be timely.

In concluding that the plaintiffs underlying cause of action accrued in 2009, the court rejected the defendants’ argument that the statute of limitations actually began to run in 2005, when the plaintiff incurred $884 in attorney’s fees upon hiring an attorney to examine the terms of the contract between SRC and the housing authority. The only evidence before the court concerning the defendants’ contention were a voucher and copy of a check reflecting an $884 payment to counsel on November 9, 2005, and testimony from one of the plaintiffs witnesses that the plaintiff had received a letter from the housing authority in 2005, expressing concern over SRC’s delay in completing the construction project and stating that it had engaged an attorney to attend a meeting between the plaintiff and SRC to understand the nature of the delay. In rejecting the defendants’ argument and concluding that May, 2009, was the operative date, the court found that “[t]here was no evidence of any breach of contract, declaration of breach of contract or termination of the SRC contract on or about November 2005,” and that the “underlying facts involved in the attorney rendering those $884 worth of legal services in 2005 were not fully explored before this court.”

After our review of the record, we conclude that there was evidence before the court supporting its finding that the statute of limitations began to run in May, 2009, when the housing authority first demanded that the plaintiff take over completion of the construction project following the declaration of SRC’s default and the termination of the contract between SRC and the housing authority. The court’s finding was not clearly erroneous, and, accordingly, we reject the defendants’ second claim on appeal.

III

Finally, the defendants contend that an identical action is pending in New York, and that, in view of that action, the court improperly failed to dismiss the plaintiffs application for lack of subject matter jurisdiction. We do not agree.

The record reveals the following additional relevant facts and procedural history. Together with its application for a prejudgment remedy, the plaintiff submitted, inter alia, an unsigned complaint to be filed in Connecticut Superior Court. The complaint asserted causes of action including specific enforcement of the agreement, indemnification, and exoneration. On May 6, 2011, the defendants moved to dismiss the plaintiffs application for lack of subject matter jurisdiction, claiming that in 2010, the plaintiff had filed an action in New York state court against the same parties and alleging the same causes of action as those set forth in the proposed complaint. The defendants asserted that because the application was based upon the plaintiffs anticipation of a judgment in their favor in the New York litigation, it was not an “action” upon which a prejudgment remedy could be obtained pursuant to General Statutes § 52-278c. The trial court denied the defendants’ motion to dismiss, finding that “the complaint and affidavit attached to the application state that the prejudgment remedy is being sought for a contemplated domestic action on the indemnity agreement, not to enforce a judgment.” We agree with the conclusion of the trial court.

The defendants argue that Cahaly v. Benistar Property Exchange Trust Co., 268 Conn. 264, 842 A.2d 1113 (2004), should govern our analysis of this claim, but their reliance on Cahaly is misplaced. In Cahaly, several plaintiffs filed an action in Massachusetts Superior Court on January 21, 2001, seeking approximately $9 million in damages resulting from the defendants’ failure to return funds to them. See id., 267. On January 30, 2001, one of the plaintiffs in the Massachusetts action filed an application for a prejudgment remedy in the Superior Court in the judicial district of Hartford, seeking an attachment of $1.1 million against the defendants. Id., 268. That plaintiff admitted that she had no intention to litigate her underlying claim against the defendants in Connecticut; rather, the single count in her complaint asserted that she was “likely to obtain a judgment against [the defendants] in the amount of $992,230 plus accruing interest and costs” in the Massachusetts action. (Internal quotation marks omitted.) Id., 277. Characterizing the plaintiffs Connecticut complaint as a “prospective action in Connecticut that will be brought to enforce a foreign judgment, prior to the foreign judgment’s having been obtained,” our Supreme Court held that the plaintiffs complaint did not satisfy § 52-278c because it was not “an action that the plaintiff [was] about to bring in Connecticut upon which a Connecticut court [would] render judgment.” (Internal quotation marks omitted.) Id., 274 and n.9. The court concluded that Connecticut’s “prejudgment remedy statutes do not provide authority for the issuance of a prejudgment remedy to secure an action brought to enforce a potential foreign judgment.” Id., 278.

In General Electric Capital Corp. of Puerto Rico v. Rizvi, 113 Conn. App. 673, 971 A.2d 41 (2009)—upon which the trial court relied in denying the defendants’ motion to dismiss—this court recognized that the rule articulated in Cahaly does not apply where a prejudgment remedy is sought in Connecticut on a contemplated domestic action. In Rizvi, the plaintiff filed an action against the defendants in the Puerto Rico Court of First Instance on March 7, 2007, seeking damages for an alleged breach of lease agreement and enforcement of a personal guarantee. Id., 676-76. On June 8, 2007, the plaintiff filed an application for a prejudgment remedy in the Superior Court in the judicial district of Stamford-Norwalk, seeking an attachment of approximately $1.1 million. Id., 676. The defendants filed a motion to dismiss based on Cahaly, asserting that the prejudgment attachment was improper because the complaint attached to the plaintiffs application “was not an independent action contemplated in Connecticut but, rather, an action in support of a foreign judgment yet to be obtained.” Id. The trial court denied the defendants’ motion and ultimately ordered an attachment of the defendants’ real estate. Id., 676-77. This court affirmed the judgment of the trial court, distinguishing Cahaly and noting that “the complaint [attached to the plaintiffs application for prejudgment remedy] plainly states that the prejudgment remedy was sought for a contemplated domestic action on the guarantee.” Id., 680.

Here, as in Rizvi, the unsigned complaint attached to the plaintiffs application for a prejudgment remedy reflects a contemplated action in our Superior Court seeking, inter alia, specific performance of the agreement, indemnification, and exoneration. The plaintiff was not seeking merely to enforce a judgment yet to be rendered in the New York action—indeed, the complaint is utterly silent about any action in New York or any anticipated judgment therein. Because the plaintiff here sought a prejudgment remedy on a contemplated domestic action to enforce the agreement, Cahaly has no bearing on the present matter, and the trial court properly denied the defendants’ motion to dismiss. See id.

The judgment is affirmed.

In this opinion the other judges concurred.

       SRC was not named as a defendant in the underlying action and is not a party to this appeal.

       Practice Book § 15-8 provides: “If, on the trial of any issue of fact in a civil matter tried to the court, the plaintiff has produced evidence and rested, a defendant may move for judgment of dismissal, and the judicial authority may grant such motion if the plaintiff has failed to make out a prima facie case. The defendant may offer evidence in the event the motion is not granted, without having reserved the right to do so and to the extent as if the motion had not been made.”

       We do not reach the question of the propriety of a Practice Book § 15-8 motion in the prejudgment remedy context, as that issue is not directly implicated by the defendants’ claims on appeal.

        Soltesz v. Miller, 56 Conn. App. 114, 741 A.2d 335 (1999), cited by the defendants in support of their argument that the trial court denied them their right to a meaningful hearing, is inapposite. In Soltesz, the court denied the plaintiffs motion for a prejudgment attachment without affording the parties any opportunity for an evidentiary hearing. Id., 116-17 and n.5 (transcript showed only “a dialogue between the trial court and each counsel,” where parties presented no stipulations, affidavits or testimony and “[n] either counsel appealed] to have considered that appearance before the trial court as an ‘evidentiary hearing’ ”). By contrast, in the present case, the court had conducted numerous days of contested evidentiary hearing on the plaintiffs application at the time it decided the defendants’ motion to dismiss, and after denying the motion, the court indicated that it would allow the defendants an additional five days to present evidence related to their defenses if they so chose.

       The defendants assert that the plaintiffs underlying causes of action are subject to the six year statute of limitations for breach of contract. For purposes of this appeal, we assume without deciding that a six year statute of limitations; see General Statutes § 52-576; applies to the claims asserted in the plaintiffs complaint.

       Both parties appear to agree that the statute of limitations would begin to run upon a default of the agreement; they disagree as to what constituted the operative default here.

       Paragraph 3 of the agreement provides in relevant part that the indemni-tors “shall exonerate, indemnify and save the [plaintiff] harmless from and against every claim, loss, damage, demand, liability, cost, charge, suit, judgment, attorney’s fee, and expense which the [plaintiff] occurs in consequence of having executed, or procured the execution of the [bond].” Relying on Balboa Insurance Co. v. Zaleski, 12 Conn. App. 529, 532 A.2d 973, cert. denied, 206 Conn. 802, 535 A.2d 1315 (1987), the defendants appear to argue that the attorney’s fees incurred in 2005 constituted a breach of paragraph 3 of the agreement triggering a “default” under paragraph 1—and that the plaintiffs “liability to pay any fees manifests execution of the bond and acceptance that [the defendants] must have been in default of the [agreement] in 2005.” The plaintiff, however, presented testimony that the bill for attorney’s fees was not submitted to SRC for payment in 2005, and furthermore, that because SRC and the housing authority came to an agreement to continue the project in 2005, the plaintiff “[did not] investigate whether or not SRC was in [breach of contract] in 2005.” Given this testimony, and the lack of any other evidence in the record to support the defendants’ position, it was not clearly erroneous for the trial court to conclude that “ [t]here was no evidence of any breach of contract, declaration of breach of contract or termination of the SRC contract” in November, 2005.

       As a factual matter, the defendants’ repeated assertion that the action in New York involves “identical parties” appears to be inaccurate. Indeed, the record reveals that SRC was named as a defendant in the New York action but was not named as a defendant in the unsigned complaint attached to the application for prejudgment remedy.

       Although the defendants initially framed this issue as a challenge arising under the prior pending action doctrine, it is well settled that “the pendency of a prior action between the same parties and to the same ends is grounds for dismissal only where the actions are pending in the same jurisdiction. The pendency of an action in one state is not a ground for abatement of a later action in another state.” Sauter v. Sauter, 4 Conn. App. 581, 584, 495 A.2d 1116 (1985). It should also be noted that the prior pending action doctrine does not implicate the subject matter jurisdiction of the court. See Bayer v. Showmotion, Inc., 292 Conn. 381, 403, 973 A.2d 1229 (2009). Here, in fact, the defendants’ motion to dismiss raised a question of the court’s subject matter jurisdiction because the plaintiffs action allegedly did not satisfy the statutory requirements of § 52-278c.

       General Statutes § 52-278c (a) provides in relevant part that to obtain a prejudgment remedy, a plaintiff must file with the court a “proposed unsigned writ, summons and complaint,” attached to the plaintiffs “application, directed to the Superior Court to which the action is made returnable, for the prejudgment remedy requested.” In Cahaly v. Benistar Property Exchange Trust Co., 268 Conn. 264, 842 A.2d 1113 (2004), our Supreme Court stated that “the ‘action’ referred to in § 52-278c (a) (1) must be an action that the plaintiff is about to bring in Connecticut upon which a Connecticut court will render judgment. It does not include a future judgment on an action that the plaintiff has filed or proposes to file in another state.” Id., 274. As discussed in further detail herein, the unsigned complaint attached to the plaintiffs application in the present case is a contemplated domestic action, and, therefore, it falls within the scope of § 52-278c.

       The defendants attempt to distinguish Rizvi by asserting that the Connecticut and Puerto Rico actions at issue in that case alleged different, “independent,” causes of action, whereas the New York and Connecticut actions at issue here are purportedly “identical.” Our decision in Rizvi included no such requirement that the contemplated domestic action underlying a prejudgment remedy application be unique from any pending foreign actions. The defendants’ argument on this point is further belied by longstanding precedent establishing that the prior pending action doctrine is inapplicable where actions—even identical actions—are pending in different jurisdictions. See, e.g., Bayer v. Showmotion, Inc., 292 Conn. 381, 397-98, 973 A.2d 1229 (2009) (trial court must dismiss second action under prior pending action doctrine only where two actions are “exactly alike, i.e., for the same matter, cause and thing, or seeking the same remedy, and in the same jurisdiction” [emphasis altered]).