Opinion
CV186076642S
01-09-2020
Virginia Silano v. Diana Cooney et al.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Stevens, Barry K., J.
MEMORANDUM OF DECISION ON DEFENDANT DIANA COONEY’S MOTION FOR SUMMARY JUDGMENT
STEVENS, J. PRESIDING JUDGE, CIVIL
STATEMENT OF THE CASE
On June 21, 2019, the plaintiff in this action, Virginia Silano, filed a two-count, fourth amended complaint alleging malicious prosecution against the defendants Diana Cooney and Kevin Hammel. The first count asserts this claim against Diana Cooney and the second count asserts this claim against Kevin Hammel. The complaint alleges the following facts.
Diana Cooney filed the present motion for summary judgment, therefore, this memorandum will only discuss the complaint as it pertains to Diana Cooney. Diana Cooney is referred to as the defendant throughout this memorandum.
On September 30, 2011, the defendant initiated criminal proceedings against the plaintiff for reckless driving and/or reckless endangerment without good faith and with malice. On February 3, 2012, the defendant acquired a no contact order as a condition of the plaintiff’s release from custody. According to the complaint, the defendant abused the conditions of this release order, entrapped the plaintiff, and caused the plaintiff to be arrested three additional times, on June 20, 2012, December 2012, and April 2013. The plaintiff was acquitted in criminal court of the charges on June 3, 2015. As a result of the defendant’s alleged actions, the plaintiff claims that she was put to trial twice and incurred attorneys fees as well as other damages.
The defendant filed a motion for summary judgment and a memorandum of law in support of the motion for summary judgment on April 1, 2019, on the ground that the plaintiff’s complaint is barred by the statute of limitations. The plaintiff filed an objection to the motion for summary judgment on May 20, 2019. The court heard oral argument on the motions on September 16, 2019.
At oral argument, the court determined that the operative complaint for this motion is the fourth amended complaint that was filed on June 21, 2019.
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 ... The motion for summary 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.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534-35, 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). "[I]n the context of a motion for summary judgment based on a statute of limitations special defense, a defendant typically meets its initial burden of showing the absence of a genuine issue of material fact by demonstrating that the action had commenced outside of the statutory limitation period ... When the plaintiff asserts that the limitations period has been tolled by an equitable exception to the statute of limitations, the burden normally shifts to the plaintiff to establish a disputed issue of material fact in avoidance of the statute." (Internal quotation marks omitted.) Cefaratti v. Aranow, 321 Conn. 637, 645-46, 138 A.3d 837 (2016). "In these circumstances, it is incumbent upon the party opposing summary judgment to establish a factual predicate from which it can be determined, as a matter of law, that a genuine issue of material fact [as to the timeliness of the action] exists." (Internal quotation marks omitted.) Doe v. West Hartford, 328 Conn. 172, 192, 177 A.3d 1128 (2018).
The defendant argues that the three-year limitation period of General Statutes § 52-577 bars the plaintiff’s malicious prosecution claim. "Malicious prosecution is a tort arising out of a criminal complaint that is intended to protect an individual’s interest in freedom from unjustifiable and unreasonable litigation ..." (Internal quotation marks omitted.) Dubinsky v. Black, 185 Conn.App. 53, 61, 196 A.3d 870 (2018). "An action for malicious prosecution against a private person requires a plaintiff to prove that: (1) the defendant initiated or procured the institution of criminal proceedings against the plaintiff; (2) the criminal proceedings have terminated in favor of the plaintiff; (3) the defendant acted without probable cause; and (4) the defendant acted with malice, primarily for a purpose other than that of bringing an offender to justice." (Emphasis omitted; internal quotation marks omitted.) Lopes v. Farmer, 286 Conn. 384, 389-90, 944 A.2d 921 (2008).
There is no dispute that the underlying criminal action on which the plaintiff’s malicious prosecution claim is based was resolved in her favor on June 3, 2015. Based on the supplemental return of service (#102), there also appears to be no dispute that the summons and complaint of this action were delivered to the sheriff for service on June 2, 2018, and these documents were served on the defendants on June 27, 2018. The defendant argues that the complaint is time barred under § 52-577 because the alleged acts forming the basis of the plaintiff’s malicious prosecution claim all took place in or before 2013, and the complaint was instituted by service in June 2018. In response, the plaintiff explains that an element of her malicious prosecution claim is the resolution of the underlying criminal action in her favor; Lopes v. Farmer, supra, 286 Conn. 389-90; and this favorable resolution occurred in June 2015. Because she filed suit within three years of the disposition of the underlying case, the plaintiff insists that she has complied with the provisions of § 52-577. The court agrees with the defendant.
"[U]nder the law of our state, an action is commenced not when the writ is returned but when it is served upon the defendant." (Footnote omitted; internal quotation marks omitted.) Rocco v. Garrison, 268 Conn. 541, 549, 848 A.2d 352 (2004). Additionally, General Statutes § 52-593a(a) provides: "Except in the case of an appeal from an administrative agency governed by section 4-183, a cause or right of action shall not be lost because of the passage of the time limited by law within which the action may be brought, if the process to be served is personally delivered to a state marshal, constable or other proper officer within such time and the process is served, as provided by law, within thirty days of the delivery."
General Statutes § 52-577 provides: "No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of." "Section 52-577 is a statute of repose that sets a fixed limit after which the tortfeasor will not be held liable ... [S]ection 52-577 is an occurrence statute, meaning that the time period within which a plaintiff must commence an action begins to run at the moment the act or omission complained of occurs." (Citation omitted; internal quotation marks omitted.) Pagan v. Gonzalez, 113 Conn.App. 135, 139, 965 A.2d 582 (2009).
"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.) Pagan v. Gonzalez, supra, 113 Conn.App. 139. Performing this analysis to the facts presented here, there is no dispute that the alleged wrongful conduct occurred in 2013 or earlier, and as this action was instituted in 2018, it was not instituted within three years of the wrongful acts. Consequently, the plaintiff’s action is barred under § 52-577.
As a statute of repose, § 52-577 sets a fixed and specific time for the commencement of the limitation period. Specifically, the limitation period under § 52-577 commences from the date of the "act or omission complained of." This statute must be distinguished from other statutes that commence the running of the time limitation from the date of accrual, the date of injury, or the date of the discovery of the wrongful act. "In adopting this specific language, our legislature distinguished Connecticut’s statutes of limitations for torts from those of other jurisdictions, the majority of which begin to run only ‘after the cause of action has accrued.’" Prokolkin v. General Motors Corp., 170 Conn. 289, 294-95, 365 A.2d 1180 (1976).
A case on point is Judge Sommer’s decision in Komoroski v. Corso, Superior Court, judicial district of Fairfield, Docket No. CV-12-6028084-S (February 13, 2013, Sommer, J.) (2013 WL 1010641), and the reasoning of that case is fully applicable here. "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 ... The three-year limitation period of § 52-577 begins with the date of the act or omission complained of, not the date when the plaintiff first discovers an injury ... Therefore, [s]ection 52-577 is a statute of repose in that it sets a fixed limit after which the tortfeasor will not be held liable and in some cases will serve to bar an action before it accrues ... In construing our general tort statute of limitations, General Statutes § 52-577, which allows an action to be brought within three years ‘from the date of the act or omission complained of, ’ we have concluded that the history of that legislative choice of language precludes any construction thereof delaying the start of the limitation period until the cause of action has accrued or the injury has occurred.
"The plaintiff’s argument that the relevant date for the purpose of the statute of limitations [in a malicious prosecution action] is the date the prior action terminated in the plaintiff’s favor is not persuasive. Section 52-577 does not concern the date a cause of action accrues and in fact, it may work to preclude an action even before it accrues ... Courts of this state have recognized that the application of General Statutes § 52-577 may be harsh because the plaintiff may very well be foreclosed from any remedy for what might have been an actionable injury ... But it is within the General Assembly’s constitutional authority to decide when claims for injury are to be brought ... The plaintiff has not been deprived of an opportunity to bring an action. The opportunity was there, but was limited by time." (Citations omitted; internal quotation marks omitted.) Komoroski v. Corso, supra, Superior Court, Docket No. CV-12-6028084-S.
Another case on point is Gojcaj v. Danbury, United States District Court, Docket No. 3:14-cv-01739 (MPS) (D.Conn. January 5, 2016), where the District Court provided the following explanation about the running of the limitation period of § 52-577 as it applied to malicious prosecution claims as compared to claims under 42 U.S.C. § 1983. "Despite sharing a statute of limitations provision, Section 1983 and state law claims differ as to the date on which the statute of limitations begins to run. For Section 1983 claims, federal law, not state law, determines the accrual date of a claim ... Under federal law, it is the standard rule that accrual occurs when the plaintiff has a complete and present cause of action ... In contrast, the accrual date for state law claims governed by [General Statutes] § 52-577 follows an ‘occurrence’ rule: In construing [Section 52-577], which allows an action to be brought within three years from the date of the act or [omission] complained of, we have concluded that the history of that legislative choice of language precludes any construction thereof delaying the start of the limitation period until the cause of action has accrued or the injury has occurred ... In certain cases, then, the statute of limitations applicable to a Connecticut law malicious prosecution claim may begin to run before the same statute of limitations would begin to run for a Section 1983 malicious prosecution claim based on the same facts. This is such a case." (Citations omitted; internal quotation marks omitted.) Id.; accord, Lopes v. Farmer, supra, 286 Conn. 38990 (for malicious prosecution actions brought under § 1983, time period under § 52-577 commences from favorable termination of underlying criminal proceedings).
Thus, the court rejects the plaintiff’s arguments and the cases on which she relies that reason that a common law malicious prosecution claim is timely under § 52-577 when the action is filed within three years from the favorable disposition of the underlying criminal action. See, e.g., Silano v. Wheeler, Superior Court, judicial district of Fairfield, Docket No. CV-156049466 (ruling on motion to strike #106) (January 20, 2016, Kamp, J.) (2016 WL 572459) (court held that statute of limitations in malicious prosecution case begins to run when underlying criminal action is terminated in plaintiff’s favor). This reasoning is contrary to the long established case law construing § 52-577 and is erroneous because it, is based on the view that the § 52-577 limitation period begins to run when the cause of action accrues. As just discussed, as a statute of repose, § 52-577 "sets a fixed limit after which the tortfeasor will not be held liable and in some cases will serve to bar an action before it accrues." Zapata v. Burns, 207 Conn. 496, 508, 542 A.2d 700 (1988); accord, Sanborn v. Greenwald, 39 Conn.App. 289, 302, 664 A.2d 803, cert. denied, 235 Conn. 925, 666 A.2d 1186 (1995) (same). Although this result may appear harsh because the plaintiff’s claim may be barred before accruing to a legally cognizable claim, "[i]t is not the function of the court to alter a legislative policy merely because it produces unfair results." (Internal quotation marks omitted.) Greco v. United Technologies Corp., 277 Conn. 337, 354, 890 A.2d 1269 (2006). To reiterate, "[t]he plaintiff has not been deprived of an opportunity to bring an action. The opportunity was there, but was limited by time." Vessichio v. Hollenbeck, 18 Conn.App. 515, 520, 558 A.2d 686 (1989).
CONCLUSION
For these reasons, the defendant Diana Cooney’s motion for summary judgment is granted and the plaintiff Virginia Silano’s objection to the motion is overruled.