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EDWARD COSS ET AL. v. DANIEL M. STEWARD ET AL. (AC 32014)
Bishop, Lavine and Peters, Js. Argued October 14, 2010--officially released January 11, 2011

(Appeal from Superior Court, judicial district of New London, Cosgrove, J.) Joseph P. Zeppieri, with whom was Joseph J. Pfeuffer, for the appellants (plaintiffs). Martha A. Shaw, for the appellees (defendants).

Opinion

LAVINE, J. The plaintiffs, Edward Coss and Kathleen Coss, appeal following the rendering of summary judgment in favor of the defendants.1 On appeal, the plaintiffs claim that the trial court improperly granted the defendants' motion for summary judgment by (1) concluding that the defendants were not equitably estopped from asserting the statute of limitations as a special defense, (2) considering the plaintiffs' right to seek redress from the third party defendant,2 (3) weighing the facts before the plaintiffs had an opportunity to conduct discovery, (4) considering whether their stone wall was within the defendant town's right-of-way, (5) determining that the defendants' conduct at issue was discretionary, not ministerial, (6) concluding that the statutes of limitation applicable to all counts of their amended complaint were tolled on the same date and (7) concluding that there was no evidence that the defendants sought to prevent the plaintiffs from bringing an action. We affirm the judgment of the trial court. Given the number of claims and defenses, a detailed discussion of the allegations is necessary. The plaintiffs' amended complaint, filed August 27, 2008, alleged that the plaintiffs own 166 Oswegatchie Road in Waterford (town) and that, at all times relevant, the individual defendants were acting in their capacities as agents, officers and/or employees of the town within the scope of their employment for the benefit of the town.3 The amended complaint further alleged that on February 14, 2001, the defendant Michael Stoffel, the chief engineer of the town's utility commission, and the defendant Ronald R. Cusano, the director of the town's department of public works, wrote to the plaintiffs and others owning property along Oswegatchie Road, informing them that the town planned to install sewers and storm drains along Oswegatchie Road (sewer project). The complaint also alleged that ``[t]he letter promised that `[a]t the completion of the job, all property will be restored to an equal or better condition than at the start of the job.' '' It further alleged that the town had hired Baltazar Contractors, Inc. (Baltazar), to install sewer and storm drains in front of the plaintiffs' home. Moreover, the complaint alleged, the defendants knew that Baltazar cut through the earth and stone by blasting, which is an inherently dangerous activity. The plaintiffs further alleged that the blasting and heavy equipment used during the sewer project disrupted at least one section of the 560 foot wall and shifted stones at points along the wall. In December, 2002, the plaintiffs informed the town and Baltazar that the stone wall had been damaged extensively. The plaintiffs asked the town to undertake repairs as promised. On January 18, 2005, the plaintiffs alleged, Baltazar had restacked some stones along roughly twenty-five feet of their wall but had ignored a section of wall that

had been destroyed. The plaintiff's also alleged that the repairs were not done to their satisfaction. Count one of the amended complaint sounded in negligence. The plaintiffs alleged that the defendants had a nondelegable duty to repair the damage to their wall that was caused by the sewer project and that the defendants were negligent in one or more ways. As a proximate result of the defendants' negligence, the plaintiffs suffered extensive damage to their property. Moreover, the defendants' authorizing of Baltazar to undertake the sewer project, to blast and to use heavy equipment were discretionary acts. The plaintiffs alleged that they served notice of their intention to bring an action against the defendants on February 14, 2008, and that their repeated entreaties to the defendants to repair the wall constituted actual notice that the sewer project was not complete. The plaintiffs alleged further that the defendants' repeated promises that they would repair the wall comprised a continuing course of action that tolled the statute of limitations. Count two of the amended complaint alleged strict liability and count three nuisance.4 Count four of the amended complaint sounded in fraud, alleging that Stoffel and Cusano ``promised that `[a]t the completion of the job, all property will be restored to an equal or better condition than at the start of the job.' '' When the plaintiffs called the town on April 28, 2003, to inquire about the plan to repair their wall, they were told that the town was preparing a ``punch list'' for repairs and that their wall would be repaired. On July 14, 2003, the plaintiffs called the town utility commission to complain that their wall had not been repaired. On June 25, 2004, Kathleen Coss complained to the defendant Stephen A. Steadman, the assistant director of the town's public works department, that nothing had been done to repair the plaintiffs' wall. Steadman promised to discuss the problem with the defendant Edward Machinski, the assistant inspector of the town's utility commission. The plaintiffs alleged that on June 29, 2004, they sent Machinski, at his request, a series of photographs depicting the damage to their wall. On December 10, 2004, Kathleen Coss went to the department of public works to speak with Machinski and was promised that Baltazar would be asked to repair the plaintiffs' wall. On January 24, 2005, after Baltazar had performed repairs to the wall, Machinski wrote to the plaintiffs and declared that the repairs were satisfactory. The plaintiffs alleged, however, that Edward Coss spoke with Machinski on February 2, 2005, and told him that the plaintiffs had a videotape of the wall made prior to the blasting. Machinski agreed to review the tape and to reconsider repairs to the wall. Edward Coss called the utility commission on October 27, 2005, and was informed that the defendant James A. Bartelli, the assis-

tant director of the town's utility commission, was to review the videotape. On October 31, 2005, Bartelli sent a brief note to the plaintiffs, attaching a copy of Machinski's January 24, 2005 letter. The plaintiffs alleged that they continued to discuss repairs to their wall with the defendants. On April 18, 2006, Steadman wrote to the plaintiffs and promised to repair their wall during the summer of 2006. No repairs, however, were made to their wall during the summer of 2006. Kathleen Coss met with the defendant Daniel M. Steward, the town's first selectman, on August 20, 2007. Steward promised to contact the appropriate people and agreed that the town should make the repairs when funds were available. The plaintiffs met with the defendant Kristin B. Zawacki, the assistant director of the town's department of public works, who promised to research the matter and to get back to them. The plaintiffs also alleged that Cusano wrote to them on October 3, 2007, telling them that the town's utility commission, not the department of public works, was responsible for repairing their wall. The plaintiffs alleged that the defendants repeatedly stalled and made false promises to repair the damage to their property. Finally, the plaintiffs alleged that the intent and effect of the defendants' false promises were to deceive the plaintiffs and to induce them to forgo their right to seek a legal remedy. The plaintiffs sought money damages, punitive damages, costs, attorney's fees and any other remedy the court might deem appropriate. On September 18, 2008, the defendants responded to the amended complaint. They admitted that on February 14, 2001, they informed the plaintiffs of the sewer project by letter and that the letter stated that `` `[a]t the completion of the job, all property will be restored to an equal or better condition than at the start of the job' . . . .'' The defendants also admitted that the town entered into a contract with Baltazar, which was a discretionary act. As to the remaining allegations of the amended complaint, the defendants denied sufficient knowledge or information as to some of the allegations and denied any allegations of wrongdoing. The defendants also alleged special defenses to the counts sounding in negligence, strict liability and nuisance, and five special defenses to the fraud count. The parties engaged in an extended period of discovery disputes before the defendants filed a motion for summary judgment on August 26, 2009. In their motion, the defendants claimed that all of the plaintiffs' claims were barred by the applicable statutes of limitation and that some were barred by governmental immunity. The court granted the motion for summary judgment as to all counts, finding that there were no genuine issues of material fact that the plaintiffs first noticed the blasting damage to their stone wall in December, 2002, at which time they informed the town and Baltazar of the dam-

age. The court concluded that the plaintiffs had until December 30, 2005, to bring their claims for damages, absent inequitable conduct by the defendants. The plaintiffs, however, did not commence this litigation until June, 2008, which was well beyond the three year statute of limitations provided by General Statutes

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