Gordon v. Gordon ( 2017 )

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ALAN J. GORDON v. CAROL S. GORDON
(AC 38343)
Keller, Mullins and Sullivan, Js.
Argued November 28, 2016—officially released February 14, 2017
(Appeal from Superior Court, judicial district of New
Haven, B. Fischer, J.)
Alan J. Gordon, self-represented, the appellant
(plaintiff).
Irving H. Perlmutter, for the appellee (defendant).
Opinion
KELLER, J. In this civil action, the plaintiff, Alan J.
Gordon,1 appeals from the trial court’s order granting
summary judgment for the defendant, Carol Gordon,
on the ground that there was no genuine issue of mate-
rial fact that the three tort actions alleged in the plain-
tiff’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 deter-
mined by the trial court in its memorandum of decision,
are relevant to this appeal. ‘‘The plaintiff . . . insti-
tuted 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.
[H]e believed the restraining order applied to her, rather
than the family residence. The defendant filed a com-
plaint against the plaintiff on March 17, 2011, and an
arrest warrant was issued without the plaintiff’s knowl-
edge. 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 the 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 fam-
ily 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 furni-
ture and shoes.5
‘‘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 pursu-
ant 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 a 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 dissolu-
tion judgment in Gordon v. Gordon, 148 Conn. App. 59,
84 A.3d 923 (2014). The plaintiff filed a memorandum
in 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 counteraffi-
davit 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 Asso-
ciates, P.C., 139 Conn. App. 778, 788–89, 57 A.3d 794(2012). Section 53a-119 states that larceny includes
extortion. 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 Kid-
der 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 [plain-
tiff] 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.)
The court then found that the plaintiff had clearly
pinpointed when the wrong complained of occurred for
his 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 inap-
plicable 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 furnish-
ings 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, sur-
rendering all of his material assets and giving up virtu-
ally 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.
Having 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, ser-
vice of process commences an action. Pagan v. Gonza-
lez, 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 provided to a marshal
prior to the limitations period expiring and is served
within thirty days.’’ The court noted that absent a statu-
tory 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 appli-
cation 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 plain-
tiff 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
waived 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 doc-
trine. We conclude that the plaintiff has failed to demon-
strate 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 prop-
erly preserved or never raised at all in the trial court,
nonetheless requires reversal of the trial court’s judg-
ment, for reasons of policy. . . . In addition, the plain
error doctrine is reserved for truly extraordinary situa-
tions [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.
The plaintiff’s claim is based upon a perceived proce-
dural 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 a 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 com-
plaint 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 ques-
tions 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
summary 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., 416–17; 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 pro-
ceeding 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.
1
The plaintiff is self-represented in this appeal and was self-represented
during the proceedings before the trial court.
2
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.’’
3
In his reply brief, the plaintiff raises the following additional claimed
error on the part of the court. He asserts that the statute of limitations
should be equitably tolled on the date he filed his application for a waiver
of fees until the date the defendant was actually served based on important
public policy considerations and the egregious actions of the defendant and
her counsel in the prosecution of the parties’ marital dissolution case, actions
that form the basis for the present civil case. We decline to address this
contention because the plaintiff raised it for the first time on appeal in his
reply brief. See Grimm v. Grimm, 276 Conn. 377, 393–94 n.19, 886 A.2d
391 (2005), cert. denied, 547 U.S. 1148, 126 S. Ct. 2296, 164 L. Ed. 2d 815(2006); see also Electrical Contractors, Inc. v. Dept. of Education, 303 Conn.
402, 444 n.40, 35 A.3d 188 (2012) (‘‘[c]laims are also inadequately briefed
when they are raised for the first time in a reply brief’’).
4
In the dissolution action, the plaintiff previously had filed a motion to
open the judgment, in which he alleged that, with respect to the marital
residence, the defendant had ‘‘omitted critical information and made fraudu-
lent representations on her April 18, 2011 financial affidavit.’’ (Internal quota-
tion marks omitted.) Gordon v. Gordon, 148 Conn. App. 59, 63, 84 A.3d 923(2014). His motion to open the judgment was denied by the trial court,
Gould, J., on November 26, 2012. Id., 63–64. This court declined to review
his appeal from this denial due to an inadequate record for review. Id., 67–68.
5
In his ‘‘reply’’ to the motion for summary judgment and in oral argument
to the trial court, the plaintiff argued that ‘‘[the] [d]efendant . . . intention-
ally mis[led] the plaintiff to believe the mortgage free marital residence . . .
was in an irrevocable trust. No such trust was recorded on the land records
before, during or after the divorce on April 18, 2011.’’ He also argued that
‘‘state statutes provide that fraud can be attacked at any time.’’ The court
addressed this claim as follows: ‘‘The plaintiff’s claim that the statute of
limitations does not apply to fraud, for which he provided no citation, is
likely based on the principle that a court may vacate a judgment based on
fraud at any time, including a marital judgment based upon a fraudulently
obtained stipulation. See Billington v. Billington, 220 Conn. 212, 217–18,
595 A.2d 1377 (1991). This principle is inapplicable to a civil action for fraud.’’
6
Practice Book § 17-44 states in relevant part: ‘‘In any action . . . any
party may move for a 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. If a scheduling order has been entered by the
court, either party may move for summary judgment as to any claim or
defense as a matter of right by the time specified in the scheduling order.
If no scheduling order exists but the case has been assigned for trial, a
party must move for permission of the judicial authority to file a motion
for summary judgment.’’
7
The defendant also alleged that the doctrine of res judicata prevented
the plaintiff from relitigating issues that were determined in the parties’
divorce action and that the plaintiff was estopped from filing the present
action pursuant to an order issued in the divorce case on April 23, 2014
(Schofield, J.), enjoining him from further filings against the defendant
without the court’s prior permission. We do not address these issues because
the court based its summary judgment ruling solely on the ground that all
three of the plaintiff’s tort claims were barred by the statute of limitations.
8
The court also addressed the plaintiff’s contention that the actions of
the defendant’s attorney, who is not a named defendant in the present action,
were an ongoing process that continued through April 18, 2014. The plaintiff,
however, did not describe what these ongoing actions were or how they
could be imputed to the defendant. We note that the plaintiff also failed to
allege a special relationship with the defendant’s counsel that gave rise to
a continuing duty or some later wrongful conduct related to the prior act.
See Giulietti v. Giulietti, 65 Conn. App. 813, 833–35, 784 A.2d 905, cert.
denied, 258 Conn. 946, 947, 788 A.2d 95, 96, 97 (2001). The court therefore
found no basis to consider the application of the continuing course of
conduct doctrine and, on appeal, the plaintiff has not claimed error with
respect to this finding.
9
The court here mistakenly refers to the first count as a fraud count. The
facts discussed by the court, however, as contained in the first count of the
plaintiff’s revised complaint, apply to the statutory theft count the plaintiff
characterized as extortion.
10
In his reply brief to this court, the defendant appears to make an inade-
quately briefed reference to a potential fraudulent concealment claim in
stating he did not realize the marital residence was not held in trust until
September, 2011, when he checked the land records. We decline to consider
this issue because it was not raised before the trial court and was raised
for the first time in the plaintiff’s reply brief. We note, however, that the
plaintiff’s complaint merely alleges the defendant concealed this fact from
him but there is no allegation, nor is there a factual predicate, to establish
that the defendant had fraudulently concealed the existence of the plaintiff’s
causes of action with the intention of delaying the plaintiff in filing the
action. See Flannery v. Singer Asset Finance Co., LLC, 128 Conn. App.
507, 517–18, 17 A.3d 509 (2011), aff’d, 312 Conn. 286, 94 A.3d 553 (2014).
Furthermore, the plaintiff acknowledges that he learned the true nature of
the defendant’s interest in the marital home in September, 2011, by checking
the town land records, and thereby determined that the property was not
held in trust prior to or after the dissolution judgment.
11
We note that the plaintiff does not claim that the court considered the
motion for summary judgment in an untimely fashion under Practice Book
§ 17-44 by arguing either that the motion was filed in violation of a scheduling
order or that the case had been assigned for trial, nor does he claim that
he did not have an adequate opportunity to prepare a response. See Practice
Book § 17-44. The motion for summary judgment was filed on March 30,
2015, and the plaintiff’s reply was filed on May 18, 2015, the day the trial
court heard oral argument. The court considered the plaintiff’s reply to the
motion for summary judgment even though it was not filed at least five
days before the date the motion was considered on the short calendar, as
was required by Practice Book (Rev. to 2015) § 17-45.
12
The defendant’s reliance on Vertex, Inc. v. Waterbury, 278 Conn. 557,
898 A.2d 178 (2006), is unavailing. In Vertex, our Supreme Court considered
the scope of a trial court’s discretion to consider dispositive questions of
law outside the boundaries of the rules of practice. Id., 566–67.
13
Practice Book (Rev. to 2015) § 17-45 provides in relevant part: ‘‘A motion
for summary judgment shall be supported by such documents as may be
appropriate, including but not limited to affidavits, certified transcripts of
testimony under oath, disclosures, written admissions and the like. . . .
Any adverse party shall at least five days before the date the motion is to be
considered on the short calendar file opposing affidavits and other available
documentary evidence. . . .’’