Opinion
No. CV 05 400 87 43
January 29, 2007
MEMORANDUM OF DECISION
FACTS
This action for malicious persecution has been instituted against three defendants, Shawn Farmer, Melissa Lucas and Kristy Tryjada.
The plaintiff, Y'isiah Lopes, was a substitute teacher assigned to Stratford High School in November of 2000. He claims that the defendant Kristy Tryjada, a student at Stratford High School, falsely and maliciously accused him of "stalking" her, and reported those allegations to the Stratford Police Department.
The defendant, Shawn Farmer, who was assigned as a resource officer at Stratford High School in the fall of 2000, and has been employed by the Stratford Police Department since 1999, claims that Kristy Tryjada contacted him on October 20, 2000. She reported that an individual, described as a black male in his late 20s or early 30s, had been following her, and had threatened her.
On November 6, 2000, the defendant, Melissa Lucas, now known as Melissa Niemiec, a police officer employed by the Town of Stratford, met with Kristy Tryjada and her mother, Melanie Nemeth. They reported to Officer Lucas that the man who had been allegedly following Kristy Tryjada was driving a black mustang, with a Kansas registration plate number OAV 121.
A vehicle matching that description was stopped by Stratford police officers later that day. The plaintiff, Y'isiah Lopes, was the operator of the vehicle, according to Officer Lucas.
The officer claims to have warned the plaintiff to refrain from any contact with Kristy Tryjada. The plaintiff denied knowing Kristy Tryjada and denied that he had been following anyone.
After obtaining a report from Officer Lucas, the defendant, Shawn Farmer, met with Kristy Tryjada and her mother on November 9, 2000 at Stratford High School. During a meeting in the school principal's office, the plaintiff was identified by both Kristy Tryjada and her mother as the individual who had followed, harassed and threatened Kristy Tryjada.
Officer Farmer prepared an arrest warrant application charging Y'isiah Lopes with the crime of stalking in the second degree, in violation of § 53a-181d of the General Statutes. The arrest warrant was signed by a judge of the Superior Court (Brennan, J.) on November 9, 2000 and Y'isiah Lopes was subsequently arrested pursuant to that warrant.
On July 22, 2002, all of the criminal charges lodged against the plaintiff, Y'isiah Lopes, were dismissed, according to the complaint.
The writ, summons and complaint in this action was signed on April 18, 2005 and made returnable to this court on May 24, 2005. Service of process was made on all three defendants on May 15, 2005.
The defendants, Shawn Farmer and Melissa Lucas, have moved for summary judgment on the counts directed toward them. Summary judgment is requested based upon two grounds: 1) the action instituted by the plaintiff Y'isiah Lopes is barred by the applicable statute of limitations, and 2) both defendants claim to have acted in good faith in initiating the action which led to the plaintiff's arrest.
In affidavits appended to their motions for summary judgment, both of the defendants claim that they have had no contact with the plaintiff, Y'isiah Lopes, since November of 2000. The plaintiff has not disputed these claims.
STANDARD OF REVIEW
A trial court may appropriately render summary judgment when documentary and other evidence demonstrate that no genuine issue of material fact remains between the parties, and the moving party is entitled to a judgment as a matter of law. Bartha v. Waterbury House Wrecking Co., 190 Conn. 8, 11 (1983); Daily v. New Britain Machine Co., 200 Conn. 562, 568 (1986). A material fact has been defined as one which will make a difference in the case. United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 379 (1969).
Connecticut Practice Book § 17-49 provides that summary judgment "shall be rendered forthwith if the pleadings, affidavits and 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."
In deciding a motion for summary judgment, a trial court must view all of the evidence in the light most favorable to the nonmoving party. Home Ins. Co. v. Aetna Life Casualty Co., 235 Conn. 185, 202 (1995). The burden is on the party seeking summary judgment to show clearly what the law is, and that it excludes any read doubt as to the existence of a genuine issue of material fact. Fogarty v. Rashaw, 193 Conn. 442, 445 (1984); Yanow v. Teal Industries, Inc., 178 Conn. 262, 268 (1979).
The test to be applied is whether the party seeking summary judgment would be entitled to a directed verdict were the trial to a jury. United Oil Co. v. Urban Redevelopment Commission, supra, 380.
THE PLAINTIFF'S ACTION IS BARRED BY THE APPLICABLE STATUTE OF LIMITATIONS, § 52-577 OF THE GENERAL STATUTES
In order to prevail in an action for malicious persecution, a plaintiff must establish four elements: 1) he must prove that the defendant intended 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, a purpose other than bringing an offender to justice. McHale v. W.B.S. Corporation, 187 Conn. 444, 447 (1982); Zenik v. O'Brien, 137 Conn. 592, 595 (1951). The plaintiff has further claimed that he was prosecuted in violation of his rights under the Fourth Amendment to the United States Constitution, as enforced through 42 U.S.C., § 1983.
Since 42 U.S.C., § 1983 does not set forth any time limitation for the bringing of an action to enforce a plaintiff's rights, the practice is to look to state law to determine the period of limitation. Wilson v. Garcia, 471 U.S. 261, 266-67 (1985); Orticelli v. Powers, 197 Conn. 1, 16 (1985).
Because no specific provision of the General Statutes establishes a limitation for the bringing of a malicious prosecution action, or an action in state court pursuant to 42 USC, § 1983, the statute applicable to all tort actions not specifically exempted, § 52-577 of the General Statutes controls. Lambert v. Stovell, 205 Conn. 1, 4 (1987). Federal courts which have considered the issue have also determined that § 52-577, C.G.S. is the applicable statute. Williams v. Walsh, 558 F.2d 667, 670-71 (2d Cir. 1977). Section 52-577, C.G.S. reads:
No action founded upon a tort shall be brought but within three years from the date of the act of omission complained of.
The defendants claim that the statute of limitations begins when the defendants committed any of the acts specified in the complaint, in this case, November of 2000.
The plaintiff maintains that the statute did not begin to run until the criminal prosecution terminated in his favor. Since all criminal charges were dropped in July of 2002, he argues, suit was instituted within three years, as required by § 52-577, C.G.S.
§ 52-577 of the General Statutes is what is known as an "occurrence" statute of limitations rather than a "discovery" statute. This means that the time period within which a plaintiff may commence an action begins to run at the moment the act or omission occurs. Fichera v. Mine Hill Corporation, 207 Conn. 204, 212 (1988); Rosenfield v. Rogan, Nassau, Chaplan, Lassman Hirtle, 69 Conn.App. 151, 158-59 (2002); S.M.S. Textile Mills, Inc. v. Brown, Jacobson, Tillinghast, Lahan King, P.C., 32 Conn.App. 786, 790 (1993).
When conducting an analysis of § 52-577, C.G.S., the only facts which are material to a court's decision when faced with a motion for summary judgment, are 1) the date of the wrongful conduct alleged, and 2) the date on which the action was filed. Farnsworth v. O'Doherty, 85 Conn.App. 145, 150 (2004); Collum v. Chapin, 40 Conn.App. 449, 451, (1996).
Courts of this state have declined to construe the statute to delay the start of the limitation period, or to toll the running of the statute, until either a cause of action has accrued, or an injury has been sustained. Fichera v. Mine Hill Corporation, supra, 212; Prokolkin v. General Motors Corporation, 170 Conn. 289, 294-97 (1976); Vilcinskas v. Sears, Roebuck Co., 144 Conn. 170, 174-75 (1956). By limiting the time for the bringing of an action, even though no injury has been sustained, or prior to a cause of action having arisen, the legislature has not acted in an unconstitutional manner. Ecker v. West Hartford, 205 Conn. 219, 241 (1987); Sanborn v. Greenwald, 39 Conn.App. 289, 305 (1995).
A fair reading of the plaintiff's complaints and all of the materials submitted, unambiguously demonstrates that the last acts committed by the defendants Farmer and Lucas concerning the arrest of the plaintiff, were completed in November of 2000. Therefore, the applicable statute of limitations expired in November of 2003, prior to the plaintiff initiating this action, and after the criminal proceedings had apparently terminated in favor of the defendant, thus permitting an action for malicious prosecution to be commenced.
There is no evidence that either defendant waived the statute of limitation defense or that the statute was tolled, based upon any equitable considerations.
In opposition to the overwhelming weight of Connecticut authority, the plaintiff cites two federal cases, Murphy v. Lynn, 53 F.3d 547 (2d Cir. 1995) and Brown v. Wargo, 815 F.Sup. 59 (1992). Neither is helpful to the plaintiff's claim.
The decision in Murphy v. Lynn, supra, was based upon an analysis of New York law. In New York, the period of limitation begins to run when the underlying criminal activity has conclusively terminated. Murphy v. Lynn, supra, 548.
Brown v. Wargo, supra, is a Connecticut case, in which the Court (Eginton, J.) found that § 52-577 was the applicable statute of limitation.
However, without citing any Connecticut law, or referring to the specific language of the statute in any way, or the construction placed upon that statute by the courts of Connecticut, the Federal Court found that the statute of limitation began to run at the time of the favorable disposition of the criminal matter. Brown v. Wargo, supra, 60. The only case cited in support of that proposition was Janetka v. Dabe, 892 F.2d 187 (2d Cir. 1989), a New York case.
Furthermore, Janetka v. Dabe did not involve an interpretation of either the New York or Connecticut statute of limitation. Instead, it involved a claim that a criminal prosecution had in fact terminated in favor of the plaintiff, thus permitting an action for malicious prosecution to begin. Janetka v. Dabe, supra, 189-90.
Although our courts have found decisions of the Second Circuit to be persuasive, particularly when looking to the interpretation of a federal statute or regulation, those decisions are not binding upon state courts. Turner v. Frowein, 253 Conn. 313, 341 (2000).
Here, we are not concerned with the interpretation of a federal statute, but with Connecticut's statute of limitations provision.
The Court in Brown v. Wargo eschewed any analysis of the language of the Connecticut statute, and apparently gave no consideration to the well settled construction of that statute by the Connecticut Supreme Court. No Connecticut authority was cited in support of the decision.
Faced with the weight of state court decisions, and in light of the cursory examination of the applicable statute in Brown v. Wargo, supra, the federal precedent cited by the plaintiff is not binding or controlling.
The motion for summary judgment filed by the defendants, Shawn Farmer and Melissa Lucas, is GRANTED.
Since the plaintiff's action is barred by the application of the applicable statute of limitations, it is not necessary to consider the defendants' remaining claim in support of their motion for summary judgment.