Opinion
No. CV08 5019114
February 1, 2010
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #123
The defendant Robert F. Maslan, Jr. has moved for summary judgment as to all claims against him as set forth in Counts Three, Six and Twelve of the plaintiff's complaint. Maslan argues that these claims are barred by General Statutes § 52-577, the applicable statute of limitations. He states that there are no issues of material fact as to the key dates which control the court's analysis under Section 52-577.
The subject complaint alleges that Maslan, an attorney, and the co-defendants, his former clients, Hart Investment Properties, LLC and Douglas Hart, commenced groundless and/or vexatious litigation against the plaintiff, Windels, on August 21, 2002. The matter bore the return date of September 10, 2002. The underlying complaint was issued in connection with a real estate dispute between the parties. On or about June 19, 2003, a successor law firm filed its appearance, in lieu of Maslan, in effect, replacing Maslan and his former law firm as legal counsel. Maslan argues that pursuant to Practice Book §§ 3-8 and 3-9, the "in lieu of appearance" operated as a withdrawal of Maslan and his former law firm's appearance in the underlying legal action, as of June 29, 2003, plaintiff's present complaint is dated September 15, 2008 and was served thereafter. Therefore, Maslan argues that the present matter is time-barred by General Statutes § 52-577, as it was instituted in excess of six years after the alleged "occurrence," which was the commencement of the underlying lawsuit and more than five years after Maslan and his former law firm's appearance in the underlying lawsuit was deemed to have been withdrawn.
Sec. 52-577 reads as follows:
No action founded upon a tort shall be brought but within three years from the date of the act or ommission complained of.
In addition to claiming that the plaintiff's present matter is time-barred, Maslan argues that there was probable cause for the filing of underlying action in 2002. Maslan argues that the fact that the court denied two motions for summary judgment in the previous suit which were filed by this plaintiff, conclusively established that there were genuine issues of material fact regarding the plaintiff's conduct, which Maslan concludes "establishes that probable cause existed" for Maslan and his clients to commence the underlying lawsuit in 2002.
The plaintiff's present action for malicious prosecution sounds in common law and as a statutory violation pursuant to General Statutes § 52-568, which reads as follows:
Any person who commences and prosecutes any civil action or complaint against another, in his own name or the name of others, or asserts a defense to any civil action or complaint commenced and prosecuted by another (1) without probable cause, shall pay such other person double damages, or (2) without probable cause, and with a malicious intent unjustly to vex and trouble such other person, shall Pay him treble damages.
The plaintiff has objected to the motion for summary judgment arguing that the statute of limitations does not begin to run until such time as the underlying litigation terminates favorably for the plaintiff. The underlying litigation terminated in the plaintiff's favor on September 23, 2005. The complaint in the present case is dated September 15, 2008 and bears a return date of October 21, 2008. The state marshal's return of service reveals that he served the defendant Hart Investment properties, LLC, Douglas B, Hart on September 19, 2008 and Robert F. Maslan, Jr. on September 24, 2008.
I Standard of Law
"A Motion for Summary Judgment is designed to eliminate the delay and expense of litigating an issue where there is no real issue to be tried." Wilson v. New Haven, 213 Conn. 277, 279, 576 A.2d 829 (1989). "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." Hertz Corp. v. Federal Ins., Co. 245 Conn. 374, 381, 713 A.2d 820 (1998). In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any issues exist. Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). The moving party has the burden of demonstrating the absence of any genuine issue of material fact. Hertz Corp. v. Federal Ins. Corp., supra, 245 Conn. 381. "The opposing party must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." Id. "A material fact is a fact which will make a difference in the result of a case." Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 639 A.2d 507 (1994); Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).
"The existence of the genuine issue of material fact must be demonstrated by counter affidavits and concrete evidence." (Internal quotation marks omitted.) Mozeleski v. Thomas, 76 Conn.App. 287, 290, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003) "A defendant's motion for summary judgment is properly granted if it raises at least one legally sufficient defense that would bar the plaintiff's claim and involves no triable issue of fact." (Internal quotation marks omitted.) Brunswick v. Safeco Ins. Co., 48 Conn.App. 699, 704, 711 A.2d 1202, cert. denied, 247 Conn. 923, 719 A.2d 1168 (1998).
II Discussion
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 f repose that sets a fixed limit after which the tortfeasor will not be held liable . . ." (Internal quotation marks omitted.) LaBow v. Rubin, 95 Conn.App. 454, 468, 897 A.2d 136, cert. denied, 280 Conn. 933, 909 A.2d 960 (2006). "[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." (Internal quotation marks omitted.) Id. "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.) See Farnsworth v. O'Doherty, 85 Conn.App. 145, 149-50, 856 A.2d 518 (2004); Byrne v. Burke, 112 Conn.App. 262, 271-72, 962 A.2d 825 (2009).
No party disputes that the three-year limitation period pursuant to § 52-577 applies to the plaintiff's action. Instead, the dispute centers on the date on which the limitations period commenced. The plaintiff claims that the statute of limitations began to run upon the termination of the underlying civil action in her favor. The defendant Maslan responds that the limitations period properly was measured from the time his appearance was withdrawn from the underlying lawsuit.
The plaintiff argues that the three-year statute of limitations runs from the date of the termination, in her favor, of the underlying lawsuit and relies on the decision in Lopes v. Farmer, 286 Conn. 384, 944 A.2d 921 (2008), a 42 U.S.C. § 1983 action for malicious prosecution. In Lopes, our Supreme Court stated:
There is no limitation provision contained in 42 U.S.C. § 1983 setting forth a time period within which the right must be enforced. Where Congress has not established a time limitation for a federal cause of action, the settled practice has been to adopt a local limitation if it is not inconsistent with federal law or policy to do so. In the case of an action for malicious prosecution brought pursuant to § 1983, the appropriate limit is the three-year limitations period applicable to tort actions, set forth in § 52-577.
Although the length of the limitations period for actions brought pursuant to 42 U.S.C. § 1983 is governed by state law, the accrual date of a § 1983 cause of action is a question of federal law that is not resolved by reference to state law. Aspects of § 1983 which are not governed by reference to state law are governed by federal rules conforming in general to common-law tort principles . . . Under those principles, it is the standard rule that [accrual occurs] when the plaintiff has a complete and present cause of action . . . [T]hat is, when the plaintiff can file suit and obtain relief . . . Because one of the elements of the tort of malicious prosecution is favorable termination of the underlying action, a cause of action for malicious prosecution accrues only when the underlying action terminates in the plaintiff's favor.
(Internal citations and internal quotation marks omitted.) Lopes v. Farmer, supra, 286 Conn. 388-90; see also, Washington v. Ivancic, 113 Conn.App. 131, 965 A.2d 618 (2009).
"The requirement of favorable termination is well established in our case law. 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." Lopes v. Farmer, supra, 286 Conn. 389-90. The elements of the torts of malicious prosecution and vexatious litigation "are identical . . ." Rioux v. Barry, 283 Conn. 338, 340 n. 3, 927 A.2d 304 (2007). The difference is that malicious prosecution is based on a former criminal prosecution, while the vexatious litigation is based on a prior civil action. Bernard Thomas Building Systems, LLC v. Dunican, 286 Conn. 548, 553 n. 6, 944 A.2d 329 (2008).
The defendant Maslan argues that the decision in Lopes v. Farmer, supra, pertains solely to causes of action brought pursuant to 42 U.S.C. 1983 and does not pertain to the present action which is a civil lawsuit brought pursuant to General Statutes § 52-568 and common law principles. Thus the plaintiff's action is governed by General Statutes § 52-577, an occurrence based statute of imitations. The court agrees.
"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.'" Shuster v. Buckley, 5 Conn.App. 473, 477, 500 A.2d 240 (1985); Balletti v. Alter, Superior Court, judicial district of Hartford, No. CV 94-0541996 S (Sep. 25, 1998, Peck, J.), 23 Conn. L. Rptr. 70. 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. Fichera v. Mine Hill Corporation, 207 Conn. 204, 212-13, 541 A.2d 472 (1988)." Collum v. Chapin, 40 Conn.App. 449, 451-52, 671 A.2d 1329 (1996). 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." (Internal quotation marks omitted.) Sanborn v. Greenwald, 39 Conn.App. 289, 301-02, 664 A.2d 803, cert. denied, 235 Conn. 925, 666 A.2d 1186 (1995). "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." Fichera v. Mine Hill Corporation, supra, 207 Conn. 212.
The plaintiff's argument that the relevant date for the purpose of the statute of limitations 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." Balletti v. Alter, supra, Superior Court, judicial district of Hartford, No. CV 94-0541996 S. 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. See Nusbaum v. Sosnoski, Superior Court, judicial district of Fairfield at Bridgeport, No. CV05 5000831S (Jun. 14, 2006, Arnold, J.). But it is within the General Assembly's constitutional authority to decide when claims for injury are to be brought." Burns v. Hartford Hospital, 192 Conn. 451, 460, 472 A.2d 1257 (1984). "The 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); see also Ecker v. West Hartford, 205 Conn. 219, 241, 530 A.2d 1056 (1987) (holding that although actions may be barred before they even exist. "[i]t is not the function of the court to alter a legislative policy merely because it produces unfair results").
"The relevant dates the court must examine in the present case are the date of the wrongful conduct complained of and the date the present action was filed. In his complaint, the plaintiff alleges that the defendants instituted and maintained the prior action without probable cause." Balletti v. Alter, supra, Superior Court, judicial district of Hartford, No. CV 940541996 S. The last possible date of the wrongful conduct complained of for each defendant was the date of Maslan's last involvement with the case. Those dates are the date of the complaint, August 21, 2002 and the date Maslan's appearance was withdrawn on June 29, 2003, per operation of Practice Book §§ 3-8 and 3-9. Id. Because the present action was commenced on September 15, 2008, over five years later, it was commenced beyond the statutory period set forth in Section 52-577 and is therefore barred. The motion for summary judgment is granted as to the defendant Robert F. Maslan, Jr.
Since the court has found that the plaintiff's action is time-barred as to Maslan, the court does not address the merits of whether Maslan instituted the underlying suit against the plaintiff without probable cause. In assessing probable cause, as it relates to actions of attorneys, the critical question is whether on the basis of the facts known by the law firm, a reasonable attorney familiar with Connecticut law would believe he or she had probable cause to bring the lawsuit. Embalmers' Supply Co. v. Giannitti, 103 Conn.App. 20, 34-35, CT Page 4067 929 A.2d 729, cert. denied, 284 Conn. 931, 934 A.2d 246 (2007).