Opinion
FBTCV156049466
01-20-2016
Virginia Silano v. Daniel Wheeler et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO STRIKE #115
Michael P. Kamp, J.
The issue before the court is the defendant's motion to strike count ten of the complaint on the following grounds: (1) the statute of limitations for civil conspiracy has expired, and General Statutes § 52-592 does not apply to save the claim because no action has failed to be tried against this defendant; and/or (2) the plaintiff has failed to allege a cause of action for civil conspiracy because no independent cause of action against the defendant is also alleged.
FACTS
On March 6, 2015, the plaintiff, Virginia Silano, commenced this action by service of process on the defendants, Daniel Wheeler, William Verespy, Thomas Chetlen, and George Cooney. In the complaint dated March 2, 2015, Silano alleges that count ten, sounding in criminal conspiracy against all of the defendants, is brought in accordance with General Statutes § 52-592. More specifically, Silano alleges that there existed a separate action previously filed against the same defendants, which action was dismissed as to defendants Wheeler, Verespy, and Cooney on March 3, 2014, due to insufficient service of process and/or a defective return date. That action currently remains pending as to defendant Chetlen. The complaint in the present action further alleges the following relevant facts in count ten. On February 8, 2011, at 6:44 p.m., Silano was parked lawfully at 33 East Lake Road in Trumbull, Connecticut, in view of surveillance camera #2 owned by the Pinewood Lake Association (association), after retrieving her runaway cat from said road. At 6:45 p.m., Chetlen approached Silano's vehicle, " acted theatrical, then ran back into the clubhouse located at 33 East Lake Road . . ." Thereafter, at 6:59 p.m., defendant Wheeler and police officer Gregory Lee arrived at 33 East Lake Road and obtained two sworn statements, one from Chetlen and one from defendant Verespy, at which point Wheeler went to Silano's residence and arrested her for violation of General Statutes § 29-35, carrying a pistol without a permit; General Statutes § 53a-38, having a weapon in a motor vehicle; General Statutes § 53a-181, breach of peace; General Statutes § 53a-62, threatening; and General Statutes § 53a-63, reckless endangerment.
General Statutes § 52-592 provides, in relevant part: " (a) If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because of insufficient service or return of the writ due to unavoidable accident or the default or neglect of the officer to whom it was committed . . . or the action has been otherwise avoided or defeated by the death of a party or for any matter of form; . . . the plaintiff . . . may commence a new action, except as provided in subsection (b) of this section, for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment."
The action, which is docket number FBT-CV-13-6034148-S, remains pending as against defendant Chetlen.
The written, sworn affidavit supporting Silano's arrest that was provided to Wheeler by Chetlen stated that on February 8, 2011, at 7 p.m., Silano was leaning outside of her vehicle while pointing a gun with both hands at Chetlen. The written, sworn affidavit supporting Silano's arrest that was provided by Verespy stated that on February 8, 2011, at 6:50 p.m., he saw someone with something in his or her hand. Silano's arrest was further supported by Wheeler's warrantless search of Silano's home and unlawful confiscation of her firearm, which Wheeler falsely stated was in " plain sight." Also on February 8, 2011, defendant Cooney stated to Wheeler and/or Lee that there was no camera and no video. On February 9, 2011, Cooney provided the surveillance system and hard drive to the Trumbull Police Department pursuant to the request of former detective Kevin Hammel. The data from camera #2 was deleted and/or erased from the hard drive, however, despite that the association " on February 8, 2011, at approximately 6:47 p.m. . . . backed up and memorialized the contents of the hard drive at Silano's request which backup contains the video data from camera #2."
Accordingly, Silano alleges that the defendants joined and conspired together to deliberately and unlawfully cause the arrest and prosecution of Silano in that: Wheeler deliberately overlooked the inconsistences in the statements of Chetlen and Verepsy in that Verespy did not corroborate that Silano was leaning outside her vehicle with a gun pointed at Chetlen and Verespy; Wheeler deliberately overlooked the implausibility of Chetlen's statement that the incident occurred at 7 p.m., after the arrival of Wheeler; Wheeler falsely memorialized in his incident report that when he arrived at 33 East Lake Road there were " cushions" everywhere when the surveillance video does not depict cushions in that area at 6:59 p.m.; Wheeler falsely stated that Silano's firearm was in plain sight when he took possession of it, which is untrue; Wheeler searched Silano's home without a warrant; Wheeler demanded, while she was handcuffed, that Silano disclose to him the location of her firearm, prior to any advisement of her rights; Chetlen provided a false written statement concerning the alleged events of February 8, 2011; Verespy provided a false written statement concerning the alleged events of February 8, 2011; Wheeler deliberately failed to seize, collect, or take possession of the hard drive of the association's surveillance system, which allowed for the deletion of the data recorded on camera #2, despite the fact that the surveillance system was in plain sight and easily accessible; Cooney stated on February 8, 2011, that there was no camera and no video recording the events of that day, despite his knowledge to the contrary; and Cooney had physical access to and the administrative codes to the association's surveillance system hard drive, which he used to delete or cause to be deleted the data from camera #2.
Count ten alleges that the " acts performed by one or more of the defendants on or about February 8, 2011, were performed pursuant to the scheme and in furtherance of the defendants' desire to cause Silano's arrest based solely on the sworn statements of Chetlen and Verespy and to eliminate all evidence to the contrary." Furthermore, it alleges that Wheeler failed to take any law enforcement action against either Chetlen and/or Verespy " despite the irrefutable evidence contained on [camera #2] that . . . Chetlen and Verespy made false statements on February 8, 2011, " and failed to investigate and/or take any law enforcement action against Cooney, despite Wheeler's knowledge that Cooney falsely stated on February 8, 2011, that there existed no camera and no video.
Silano was acquitted in May 2012 of the charges arising out of the alleged February 8, 2011 incident. As a result of Chetlen's and the rest of the defendants' actions, however, Silano was criminally processed, held in lockup for over twenty-three hours, forced to post a $200,000 bond, photographed, fingerprinted, and had her freedom impacted while released on bond in that she was caused to appear in Superior Court for numerous appearances for over a year, eventually being put to trial, which caused Silano to incur stress, inconvenience, strain, and humiliation. Furthermore, the defendants' actions caused Silano to incur attorneys fees and expenses that exceeded over $25,000, and caused Silano to suffer and continue to suffer scorn and humiliation in her community, emotional distress, and anguish, including fear and embarrassment. The defendants' actions " imported on her character a stigma which is not likely to ever completely disappear." As a further result of the defendants' actions, Silano's arrest was posted on the state judicial branch's website, causing Silano, who has been a paralegal for over twenty-five years, to be embarrassed, humiliated, and held up to scorn in the legal community. Additionally, a poster containing Silano's mug shot and stating that Silano was " armed and dangerous" was displayed at the Bridgeport Police Department, where it was viewed by others and caused further stigma to Silano's character.
On June 16, 2015, Chetlen filed a motion to strike count ten of the complaint on the grounds that: (1) the statute of limitations for civil conspiracy has expired, and § 52-592 does not apply to save the claim with respect to Chetlen because no action has failed to be tried against him; and/or (2) Silano has failed to allege a cause of action for civil conspiracy because no independent cause of action against Chetlen is also alleged. The motion was accompanied by a memorandum of law in support. On August 17, 2015, Silano filed a memorandum in opposition, and on August 24, 2015, she filed a supplemental memorandum in opposition. Oral arguments on the motion were heard before the court on September 29, 2015.
DISCUSSION
" The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). " [I]t is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted . . . The role of the trial court in ruling on a motion to strike is to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action. (Citation omitted; internal quotation marks omitted.) Coe v. Board of Education, 301 Conn. 112, 116-17, 19 A.3d 640 (2011). " [P]leadings are to be construed broadly and realistically, rather than narrowly and technically . . ." (Internal quotation marks omitted.) Downs v. Trias, 306 Conn. 81, 92, 49 A.3d 180 (2012).
" [O]rdinarily, [a] claim that an action is barred by the lapse of the statute of limitations must be pleaded as a special defense, not raised by a motion to strike." (Internal quotation marks omitted.) Greco v. United Technologies Corp., 277 Conn. 337, 344 n.12, 890 A.2d 1269 (2006). " [T]here are two exceptions to that holding. Those exceptions relate to situations in which a motion to strike, filed instead of a special defense of a statute of limitations, would be permitted." Girard v. Weiss, 43 Conn.App. 397, 415, 682 A.2d 1078, cert. denied, 239 Conn. 946, 686 A.2d 121 (1996). " The first is when [t]he parties agree that the complaint sets forth all the facts pertinent to the question [of] whether the action is barred by the [s]tatute of [l]imitations and that, therefore, it is proper to raise that question by [a motion to strike] instead of by answer." (Internal quotation marks omitted.) Forbes v. Ballaro, 31 Conn.App. 235, 239, 624 A.2d 389 (1993). The second exception " exists . . . when a statute gives a right of action which did not exist at common law, and fixes the time within which the right must be enforced, the time fixed is a limitation or condition attached to the right--it is a limitation of the liability itself as created, and not of the remedy alone." (Internal quotation marks omitted.) Greco v. United Technologies Corp., supra, 277 Conn. 344 n.12. In neither their memoranda of law nor in their oral arguments before the court did the parties contend that additional facts are necessary to prove whether the claims here are time barred. Accordingly, the court determines that this issue is properly before the court on a motion to strike under the first exception to the general rule.
Chetlen first argues that count ten is barred by the applicable statute of limitations and that § 52-592 cannot act to save it because the original 2013 action is still pending against him and thus has not failed to be tried on its merits. In response, Silano argues that her voluntary act in withdrawing the conspiracy claim in the original 2013 action by amending the complaint in anticipation of an imminent motion to strike does not preclude Silano from now reinstating the action under the terms of § 52-592, as the statute is broad enough to include an action voluntarily withdrawn by the plaintiff when faced with ultimate dismissal.
" Although § 52-592 is remedial in nature, passed to avoid hardships arising from an unbending enforcement of limitation statutes; . . . it should not be construed so liberally as to render statutes of limitation virtually meaningless . . . [B]y its plain language, [§ 52-592] is designed to prevent a miscarriage of justice if the [plaintiff fails] to get a proper day in court due to the various enumerated procedural problems . . . It was adopted to avoid hardships arising from an unbending enforcement of limitation statutes . . . Its purpose is to aid the diligent suitor . . . Its broad and liberal purpose is not to be frittered away by any narrow construction. The important consideration is that by invoking judicial aid, a litigant gives timely notice to his adversary of a present purpose to maintain his rights before the courts." (Citations omitted; internal quotation marks omitted.) Davis v. Family Dollar Store, 78 Conn.App. 235, 240, 826 A.2d 262 (2003), appeal dismissed, 271 Conn. 655, 859 A.2d 25 (2004).
" The prior pending action doctrine permits the court to dismiss a second case that raises issues currently pending before the court. The pendency of a prior suit of the same character, between the same parties, brought to obtain the same end or object, is, at common law, good cause for abatement. It is so, because there cannot be any reason or necessity for bringing the second, and, therefore, it must be oppressive and vexatious. This is a rule of justice and equity, generally applicable, and always, where two suits are virtually alike, and in the same jurisdiction . . . We must examine the pleadings to ascertain whether the actions are 'virtually alike' . . . and whether they are brought to adjudicate the 'same underlying rights.'" (Citations omitted; internal quotation marks omitted.) Cumberland Farms, Inc. v. Groton, 247 Conn. 196, 216, 719 A.2d 465 (1998).
Here, Silano argues that the prior pending action doctrine does not apply to count ten because the 2013 action currently pending against Chetlen does not contain a count for civil conspiracy. Even if the court were to agree with Silano on this point, however, the court finds that Silano cannot avail herself of the savings provisions of § 52-592 because, as she argues herself in her memorandum of law in opposition, her original claim of civil conspiracy was consciously and voluntarily withdrawn by her. " Where a plaintiff has voluntarily withdrawn his action, he may not take advantage of the extension of time provided by the accidental failure of suit statute . . ." Lydem v. Feldman, Superior Court, judicial district of Fairfield, Docket No. 174519 (December 5, 1979) (36 Conn.Supp. 121, 125, 414 A.2d 202), citing Baker v. Baningoso, 134 Conn. 382, 387, 58 A.2d 5 (1948); see also Parrott v. Meacham, 161 Conn. 573, 575, 290 A.2d 335 (1971) (" The original action having been voluntarily withdrawn by the plaintiff, that 'withdrawal . . . cannot by the most liberal construction constitute accidental failure of suit for matter of form, ' and the circumstances do not bring this case within the saving terms of § 52-592"). In the present case, Silano's original claim of civil conspiracy in the 2013 action did not, by any means, accidentally fail. Pursuant to Lydem, Silano cannot withdraw the original claim of civil conspiracy by choice and then take advantage of the extension of time provided by § 52-592. Because § 52-592 does not apply to save count ten as it is alleged against Chetlen, the three-year statute of limitations bars this claim, and count ten must be stricken.
The applicable statute of limitations for an action founded upon a tort is set forth in 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." The allegations in count ten stem from incidents which occurred in February of 2011, and the present action was not commenced until March of 2015. Silano alleges for the first time in her August 24, 2015 supplemental memorandum in opposition that the conspiracy continued through May of 2012, when the defendants committed perjury at her trial. As this factual allegation was not present in Silano's complaint, the court will not consider it for purposes of this motion.
Because the court's ruling on this ground is dispositive, it need not adjudicate the merits of the remaining arguments in Chetlen's motion.
CONCLUSION
For the foregoing reasons, the defendant's motion to strike is granted.