Gordon v. Gordon, 155 A.3d 809, 170 Conn. App. 713 (2017)

Feb. 14, 2017 · Connecticut Appellate Court · AC 38343
155 A.3d 809, 170 Conn. App. 713

Alan J. GORDON
v.
Carol S. GORDON

AC 38343

Appellate Court of Connecticut.

Argued November 28, 2016
Officially released February 14, 2017

Alan J. Gordon, self-represented, the appellant (plaintiff).

Irving H. Perlmutter, for the appellee (defendant).

Keller, Mullins and Sullivan, Js.

KELLER, J.

*713In this civil action, the plaintiff, Alan J. Gordon,1 appeals from the trial court's order granting *714summary judgment for the defendant, Carol Gordon, on the ground that there was no genuine issue of material fact that the three tort actions alleged in the plaintiff's complaint were barred by the applicable statute of limitations, General Statutes § 52-577.2 The plaintiff claims that the court committed plain error in granting the defendant's motion for summary judgment because the defendant had not properly pleaded the statute of limitations as a special defense, and, therefore, had waived her right to raise it as a ground for summary judgment.3 We affirm the judgment of the court.

The following facts and procedural history, as determined by the trial court in its memorandum of decision, are relevant to this appeal. "The plaintiff ... instituted the present action through service of process on the defendant ... on May 18, 2014. The [amended and] revised complaint filed on March 12, 2015, alleges three counts of extortion, fraud, and larceny arising out of the parties' divorce on April 18, 2011.

"In the extortion count, the plaintiff alleges that the defendant obtained a restraining order against him, then convinced him to break that order by asking him to watch their children while she vacationed in Mexico.

*715[H]e believed the restraining order applied to her, rather than the family residence. The defendant filed a complaint against the plaintiff on March 17, 2011, and an arrest warrant was issued without the plaintiff's knowledge. In order to coerce the plaintiff into signing the separation agreement, the defendant and her attorney ... who is the defendant in a companion case, told the plaintiff that if he signed the separation agreement, no charges would be brought against him. The plaintiff [signed the separation agreement] on April 18, 2011, completely against his will. On April 24, 2011, the police arrested *811the plaintiff for violation of the protective order.

"In the fraud count, the plaintiff alleges the defendant abetted her attorney in leading the plaintiff to believe things which were not true. He also alleges that she did so in 'taking the steps necessary to have plaintiff removed from his home' even though she had never called the police before in their twenty-two years of marriage .... The plaintiff also alleges that the defendant committed fraud when she filed her financial [affidavit in the dissolution action], stating that the family residence was in an irrevocable trust when it was not,4 that two other residences were worth considerably less than their actual value, and that her 'other personal property' had a total value of $4700 when the plaintiff paid over $5000 for her wedding ring twenty years prior and the house contained a substantial quantity of furniture and shoes.5

*716"In the larceny count, the plaintiff alleges that the defendant 'refused to return any of the more than forty household items owned by the plaintiff and purchased many years prior to their marriage.' " (Footnotes added.)

The defendant moved for summary judgment pursuant to Practice Book § 17-446 on March 30, 2015, on the ground that the statute of limitations for tort actions had expired prior to the date on which the defendant was served with process.7 In support of her motion, the defendant provided *812a memorandum of law and her own affidavit, and requested that the court take judicial notice of the parties' dissolution file and this court's decision in the plaintiff's direct appeal from the dissolution judgment in Gordon v. Gordon , 148 Conn.App. 59, 84 A.3d 923 (2014). The plaintiff filed a memorandum *717in opposition, which he styled a "reply," on May 18, 2015. In his reply, the plaintiff asserted that there was no statute of limitations applicable to his fraud claim and that he filed his complaint within the limitations period, but had to wait until his application for a fee waiver was approved so that he could serve process on the defendant.8 The plaintiff did not file a counteraffidavit or submit any documentation in opposition to the motion for summary judgment.

The court noted that the first count9 of the revised complaint clearly alleged a civil action for fraud, but that the larceny and extortion claims required "further explication," as larceny and extortion are crimes set forth in General Statutes § 53a-119, rather than claims that may be brought in a civil action. The court stated, "[p]ursuant to General Statutes § 52-564, [a]ny person who steals any property of another, or knowingly receives and conceals stolen property, shall pay the owner treble his damages. Statutory theft under § 52-564 is synonymous with larceny under ... § 53a-119. Hospital of Central Connecticut v. Neurosurgical Associates, P.C. , 139 Conn.App. 778, 788-89, 57 A.3d 794 (2012). Section 53a-119 states that larceny includes *718extortion. Therefore, the larceny and extortion claims made by the plaintiff are properly statutory theft claims ...." (Internal quotation marks omitted.)

The court concluded that the plaintiff's claims for fraud and statutory theft were subject to the three year statute of limitations contained in § 52-577. Citing Kidder v. Read , 150 Conn.App. 720, 726-27, 93 A.3d 599 (2014), the court stated that 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 .... The relevant date of the act or omission complained of, as that phrase is used in § 52-577, is the date when the negligent conduct of the defendant occurs and not the date when the [plaintiff] first sustain[s] damage .... Ignorance of his rights on the part of the person against whom the statute has begun to run, will not suspend its operation .... 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."10 (Internal quotation marks omitted.)

*813The court then found that the plaintiff had clearly pinpointed when the wrong complained of occurred for *719his statutory theft count pertaining to extortion because the dissolution agreement was signed on April 18, 2011, under the false belief on the part of the plaintiff that the defendant would not pursue her police complaint for violation of the protective order, and, thereafter, he was arrested on April 24, 2011. The court concluded that the continuing course of conduct doctrine is inapplicable and that the relevant date on which the statute of limitations period began to run for the first count was April 18, 2011.

As to the second count, alleging fraud, and the third count, alleging larceny, the court noted that the these counts in the revised complaint "do not contain any specific dates on which the wrongs complained of occurred." It found that the allegations regarding the defendant abetting fraud when she took steps to have the plaintiff removed from his home related to her securing a restraining order on February 3, 2011, and that the statute of limitations for these actions would therefore begin to run on February 3, 2011, or earlier. The court also found that the allegations in the revised complaint concerning the fraudulent financial affidavit as to real property and the values of household furnishings and jewelry in the second count, and the refusal to return his property in the third count, contained no specific dates, but clearly related to the division of assets between the parties in the dissolution action. In relevant part, the court reasoned: "The background section of the complaint states that on April 18, 2011, the defendant 'signed the dissolution agreement, surrendering all of his material assets and giving up virtually all of his worldly goods.' " Therefore, the court concluded that the statute of limitations for the second and third counts also began to run on April 18, 2011, the date on which the separation agreement was signed and the judgment of dissolution entered.

*720Having determined the dates on which the statute of limitations began to run with respect to each of the three counts in the revised complaint, the court addressed whether the present action was commenced within the limitations period. It stated: "The complaint was served on the defendant on May 18, 2014. In Connecticut, service of process commences an action. Pagan v. Gonzalez , 113 Conn.App. 135, 139, 965 A.2d 582 (2009). The plaintiff has argued that the limitations period was tolled because he applied for a fee waiver on April 16, 2014, but has not provided any statute tolling the statute of limitations period due to the filing of [an application for] a fee waiver. Such a provision does exist in certain appeals to the Superior Court; see General Statutes § 4-183 (m) ; and General Statutes § 52-593a provides that an action will not be lost if it is *814provided to a marshal prior to the limitations period expiring and is served within thirty days." The court noted that absent a statutory exception, even though the plaintiff had filed his fee waiver application two days before the limitations period expired and had no control over how long it would take for the application to be approved, the application of the three year statute of limitations could not be avoided. The court reasoned that "[a]ccording to the allegations in the plaintiff's [revised] complaint, the present action accrued on April 18, 2011. The three year statute of limitations expired on April 18, 2014, and the action was not initiated until May 18, 2014. The complaint in this action is therefore untimely and the motion for summary judgment is granted on this ground."

On appeal, the sole issue properly raised by the plaintiff is that the court committed plain error in granting the defendant's motion for summary judgment because the defendant had not properly pleaded the statute of limitations as a special defense, and, therefore, she had *721waived her right to assert it as a ground for summary judgment.11

The plaintiff acknowledges that he failed to make this argument to the trial court and is raising it for the first time on appeal. He argues, however, that this court should reverse the judgment under the plain error doctrine. We conclude that the plaintiff has failed to demonstrate that plain error exists and, thus, affirm the judgment of the trial court.

This court is not bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. "[T]he plain error doctrine ... is not ... a rule of reviewability. It is a rule of reversibility. That is, it is a doctrine that this court invokes in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court's judgment, for reasons of policy .... In addition, the plain error doctrine is reserved for truly extraordinary situations [in which] the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings .... Plain error is a doctrine that should be invoked sparingly." (Internal quotation marks omitted.) State v. Myers , 290 Conn. 278, 289, 963 A.2d 11 (2009) ; see also Practice Book § 60-5.

*722The plaintiff's claim is based upon a perceived procedural abnormality; he argues that the court erroneously considered the defendant's statute of limitations defense because the defendant did not file an answer and special defenses to his revised complaint. Thus, the plaintiff argues, the defendant waived any claim that the statute of limitations barred his causes of action.

The applicable rule of practice, Practice Book § 17-44, provides in relevant part: "In any action ... any party may move for *815a summary judgment as to any claim or defense as a matter of right at any time if no scheduling order exists and the case has not been assigned for trial."12 Although prior to October 1, 1992, Practice Book § 379, the precursor to § 17-44, required that the pleadings be closed before seeking a summary judgment, in Girard v. Weiss , 43 Conn.App. 397, 682 A.2d 1078, cert. denied, 239 Conn. 946, 686 A.2d 121 (1996), this court stated: "If we were to hold that a motion for summary judgment cannot be made prior to pleading a statute of limitations as a special defense, we would negate that portion of § 379 [now § 17-44 ] that provides that a motion for summary judgment can be made at any time, without the necessity of closing the pleadings .... Facts that are not alleged in a complaint may be added to the procedural mix and facts in avoidance of the statutory time limitation of action can be considered in a motion for summary judgment whereas they cannot be considered in a motion to strike. On a motion for summary judgment, the questions are whether there is any material fact in issue, and, if not, whether the movant is entitled to judgment as a matter of law. The key difference between the two motions is that, when considering a motion for *723summary judgment, facts in addition to those asserted in the complaint can form the basis for an argument that there is no material fact in dispute that would prevent judgment as a matter of law.13 When there is no such material fact in dispute or where there is agreement of the parties as to every relevant fact, we conclude that the pleadings need not be closed in order to move for summary judgment." (Footnotes altered; internal quotation marks omitted.) Id., at 416-17, 682 A.2d 1078 ; see also Emmerson v. Super 8 Motel-Stamford , 59 Conn.App. 462, 468-69, 757 A.2d 651 (2000).

Accordingly, as it is apparent from our review of the record that the court acted within the boundaries of our applicable rules of procedure in considering and ruling on the motion for summary judgment, we do not conclude that the court's consideration of the motion for summary judgment prior to the defendant's raising the special defense of the statute of limitations in a responsive pleading affected the fairness and integrity of or undermined public confidence in the judicial proceeding at issue. See State v. Hinckley , 198 Conn. 77, 87-88, 502 A.2d 388 (1985). Accordingly, we are not persuaded that plain error exists.

The judgment is affirmed.

In this opinion the other judges concurred.