Opinion
CV155030326S
06-26-2017
Michael Holbrook v. State of Connecticut
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #111
Barbara N. Bellis, J.
FACTS
On December 31, 2014, the plaintiff, Michael Holbrook, commenced this action, a petition for a new trial, by service of process on the defendant, the State of Connecticut. In count one of the operative petition, filed on January 5, 2015, the plaintiff alleges the following facts. The plaintiff was found guilty and sentenced to thirty-five years of imprisonment by the trial court, Owens, J. At his subsequent habeas trial on December 3, 2010, December 22, 2010, and July 29, 2011, the plaintiff learned that one of the state's witnesses, Gary Browning, recanted testimony given during the plaintiff's criminal trial. Specifically, the plaintiff alleges that Browning " received consideration for pending charges of robbery, for his cooperation and conviction of the petitioner, at his trial, " and that Browning had " lied under oath at the petitioner's trial, stating that he did not make any deals for his testimony, which was not corrected." In count two, the plaintiff further alleges that, based on the aforementioned facts, the state's attorney at his criminal trial " used false testimony to obtain a tainted conviction against the petitioner and failed to correct the false testimony when it appeared, " and, in addition, failed to disclose any deals made with Browning. The plaintiff now seeks a new trial on the ground of newly discovered evidence pursuant to General Statutes § 52-270.
General Statutes § 52-270(a) provides in relevant part: " The Superior Court may grant a new trial of any action that may come before it, for mispleading, the discovery of new evidence or want of actual notice of the action to any defendant or of a reasonable opportunity to appear and defend, when a just defense in whole or part existed, or the want of actual notice to any plaintiff of the entry of a nonsuit for failure to appear at trial or dismissal for failure to prosecute with reasonable diligence, or for other reasonable cause, according to the usual rules in such cases."
On December 6, 2016, the defendant filed the present motion for summary judgment on the grounds that the petition is (1) barred by the doctrines of res judicata and collateral estoppel, and (2) time barred, as it was filed beyond the three-year limitations period set forth in General Statutes § § 52-270 and 52-582. On March 1, 2017, the plaintiff filed a memorandum in opposition to the motion for summary judgment. Neither party submitted evidence in support of its position. The court heard oral argument at short calendar on March 13, 2017, at which time the defendant withdrew the grounds of res judicata and collateral estoppel. Accordingly, the court will evaluate the defendant's motion solely with respect to the argument that is it time barred.
General Statutes § 52-582 provides in relevant part: " No petition for a new trial in any civil or criminal proceeding shall be brought but within three years next after the rendition of the judgment or decree complained of."
DISCUSSION
" Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . [S]ummary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." (Internal quotation marks omitted.) Straw Pond Associates, LLC v. Fitzpatrick, Mariano & Santos, P.C., 167 Conn.App. 691, 704, 145 A.3d 292, cert. denied, 323 Conn. 930, 150 A.3d 231 (2016). " However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury . . . the moving party for summary judgment is held to a strict standard . . . of demonstrating his entitlement to summary judgment." (Internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 535, 51 A.3d 367 (2012). " Summary judgment may be granted where the claim is barred by the statute of limitations . . . Summary judgment is appropriate on statute of limitations grounds when the material facts concerning the statute of limitations [are] not in dispute . . ." (Citation omitted; internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 313, 77 A.3d 726 (2013).
In its motion for summary judgment, the defendant argues that the present petition for a new trial is time barred, as it was filed beyond the three-year limitations period prescribed by General Statutes § § 52-270 and 52-582. The defendant argues that the date of judgment of the plaintiff's sentence by the trial court was September 12, 2003, and therefore, the filing of the present petition is untimely. In response, although the plaintiff concedes that the petition was filed outside of the three-year period prescribed by § 52-582, he contends that, due to the defendant's fraudulent concealment of the newly discovered evidence that serves as the basis for the petition, the statute of limitations should be tolled pursuant to General Statutes § 52-595.
Although the plaintiff disputes the defendant's recitation of the date of judgment entered by the trial court as September 12, 2003, both parties agree that the present petition for a new trial is outside of the three-year limitations period prescribed by the relevant statutes and therefore, the precise date of judgment is irrelevant for the purposes of this motion.
General Statutes § 52-595 provides: " If any person, liable to an action by another, fraudulently conceals from him the existence of the cause of such action, such cause of action shall be deemed to accrue against such person so liable therefore at the time when the person entitled to sue thereon first discovers its existence."
" The opportunity for a new trial when new evidence comes to light provides a criminal defendant an important procedural mechanism for remedying an injustice . . . A critical limitation on the exercise of the trial court's discretion in passing on such a petition for a new trial, however, is the statute of limitations." (Citation omitted.) Holliday v. State, 111 Conn.App. 656, 662-63, 960 A.2d 1101 (2008), cert. denied, 291 Conn. 902, 967 A.2d 112 (2009). " The three-year statute of limitations on a petition for a new trial based on newly discovered evidence is the product of the legislature's balancing of the interests of the petitioner against the interests of the public and the state . . . Thus, for a petition for a new trial, within the three-year limitations period, the petitioner's interests trump those of the public and the state. Beyond that period, however, the interests of the public and the state trump those of the petitioner." (Citations omitted.) Summerville v. Warden, 229 Conn. 397, 426-27, 641 A.2d 1356 (1994). " The three-year period begins to run from the date of rendition of judgment by the trial court . . . which, in a criminal case, is the date of imposition of the sentence by the trial court." (Internal quotation marks omitted.) Barrett v. Commissioner of Correction, 106 Conn.App. 710, 713 n.2, 943 A.2d 1107 (2008).
In the present case, it is undisputed that the present petition for a new trial was filed more than three years after the imposition of the plaintiff's sentence by the trial court. Nonetheless, the plaintiff argues that the statute of limitations should be tolled as a result of the defendant's concealment of the newly discovered evidence. " To prove fraudulent concealment, the [plaintiff is] required to show that the [defendant] (1) had actual awareness, rather than imputed knowledge, of the facts necessary to establish the cause of action, (2) intentionally concealed these facts from the [plaintiff], and (3) concealed the facts for the purpose of obtaining delay on the [plaintiff's] part in filing a complaint on their cause of action." Holliday v. State, supra, 111 Conn.App. 664 n.5. Moreover, " [fraudulent concealment must be proved by the more exacting standard of clear, precise, and unequivocal evidence." Macellaio v. Newington Police Dept., 145 Conn.App. 426, 433, 75 A.3d 78 (2013).
In Holliday v. State, supra, 111 Conn.App. 658, on appeal from the denial of his petition for certification to appeal from the judgment of the trial court denying his petition for a new trial, the petitioner argued that the statute of limitations, with respect to his petition for a new trial, should be tolled because the state Department of Veterans' Affairs had fraudulently concealed evidence. In granting the respondent's motion for summary judgment, the trial court found that the petition was outside of the limitations period and, moreover, that the petitioner " failed to present any evidence that the respondent, rather than the United States Department of Veterans Affairs, had engaged in any conduct that would warrant the tolling of the statute of limitations." Id., 662. The Appellate Court agreed with the trial court's determination that " the petitioner has presented no evidence that the respondent, rather than a federal agency, fraudulently had concealed evidence, " and, accordingly, held that " there is no genuine issue of material fact, and the court properly granted the respondent's motion for summary judgment." Id., 665-66.
Here, like in Holiday, the plaintiff's petition for a new trial was clearly brought outside of the three-year statute of limitations. Moreover, the plaintiff in the present case, like. the petitioner in Holliday, has failed to allege sufficient facts to support of a claim of fraudulent concealment by the defendant. There are no facts alleged to indicate that the defendant intentionally concealed the information with respect to Browning's false testimony and plea deal from the plaintiff. The plaintiff only alleges, in the operative petition, that Browning's testimony concerning the absence of a plea deal was " not corrected, " and that the state's attorney " used false testimony to obtain a tainted conviction against the petitioner, " and " failed to disclose to the petitioner any deals made to [Browning]." In addition, the plaintiff has not submitted any evidence to the court to show that the defendant concealed Browning's false testimony and plea deal for the purpose of obtaining delay on the plaintiff's part in filing a petition for a new trial. See Connell v. Colwell, 214 Conn. 242, 251, 571 A.2d 116 (1990) (" [t]he actions of the defendant must be directed to the very point of obtaining the delay of which he afterward seeks to take advantage by pleading the statute" [internal quotation marks omitted]). Accordingly, the plaintiff has failed to plead facts or prove that the defendant fraudulently concealed Browning's false testimony and plea deal and therefore cannot toll the three-year statute of limitations pursuant to § 52-595.
Assuming, arguendo, that the plaintiff had pleaded fraudulent concealment and the statute of limitations had been tolled until he learned of Browning's false testimony and alleged plea deal, the present petition for a new trial would still be time barred. The plaintiff alleges in his petition that he " discovered new evidence at the habeas trial of the petitioner on December 3, 2010, December 22, 2010, and July 29, 2011." Even if the court were to use the latest date of July 29, 2011, from which to toll the statute of limitations, the plaintiff would have had until July 29, 2014, to file the petition. The defendant was not served with process until December 31, 2014. Thus, the plaintiff alleges that he was aware of Browning's alleged false testimony and plea deal for more than three years before the filing of the present petition. See Howard v. Robertson, 27 Conn.App. 621, 625, 608 A.2d 711 (1992) (" [i]t is well settled that an action is brought on the date on which the writ is served on a defendant"). See also Meikle v. State, Superior Court, judicial district of Hartford, Docket No. CV-13-5037031-S, (August 13, 2014, Bentivegna, J.) (granting motion for summary judgment where present action was brought beyond three-year statute of limitations whether measured from date of judgment or date when petitioner acquired actual knowledge of existence of newly discovered evidence); Mukhtaar v. Smriga, Superior Court, judicial district of Fairfield, Docket No. CV-13-4044407-S, (November 12, 2013, Devlin, J.) (same). Accordingly, the present petition for a new trial is time barred.
CONCLUSION
In light of the foregoing, the court grants the defendant's motion for summary judgment.