Randolph v. Mambrino ( 2022 )

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GORDON RANDOLPH v. DONNA MAMBRINO ET AL.
(AC 42742)
Alvord, Elgo and Palmer, Js.
Syllabus
Pursuant to statute (§ 52-595), if a person fraudulently conceals the existence
of a cause of action, that cause of action shall be deemed to accrue
against such person when the person entitled to bring an action thereon
first discovers its existence.
The petitioner, who had been convicted, on a guilty plea, of various crimes
in connection with his role in an armed robbery, filed a petition for a
new trial, claiming that he was entitled to a new trial because several
newly discovered letters written by an individual named ‘‘Iris S.’’ con-
tained evidence establishing his innocence and that the respondents,
a senior assistant state’s attorney and the state of Connecticut, had
possession of the letters and knowledge of their contents at the time
of his guilty plea but purposefully failed to disclose them to him. The
respondents asserted as a special defense that the petition was time
barred because it was not filed within the applicable three year statute
of limitations (§ 52-582). The petitioner filed an amended petition for a
new trial claiming, inter alia, that the limitation period was tolled by
§ 52-595 as a result of the respondents’ fraudulent concealment of the
letters. Thereafter, the respondents filed a motion for summary judg-
ment, arguing that there was no dispute between the parties that the
petition was untimely under § 52-582 and that the petitioner’s tolling
claim failed as a matter of law because he had not adduced facts suffi-
cient to permit a finding of fraudulent concealment. The trial court
granted the motion and rendered summary judgment in favor of the
respondents. In reaching its decision, the court, relying on Turner v.
State (172 Conn. App. 352), and Fichera v. Mine Hill Corp. (207 Conn.
204), concluded that the limitation period set forth in § 52-582 is jurisdic-
tional in nature and, therefore, not subject to the tolling provision of
§ 52-595. Thereafter, the petitioner, on the granting of certification,
appealed to this court. Held:
1. Contrary to the trial court’s conclusion, the tolling provision of § 52-595
applies to the three year limitation period of § 52-582, and, therefore,
that limitation period may be tolled by proof of fraudulent concealment:
this court concluded that the trial court’s reliance on Turner and Fichera
was misplaced, as the principal issue in this case, namely, whether the
legislature intended that the limitation period of § 52-582 may be tolled
by proof of fraudulent concealment pursuant to the tolling provision of
§ 52-595, was not addressed in Turner, and our Supreme Court’s decision
in Fichera had no bearing on that issue; moreover, given the plain and
encompassing language of § 52-595, it must be deemed to apply to any
limitation period that does not expressly disclaim its applicability, and,
because § 52-582 contains no such disclaimer, its limitation period may
be tolled upon a showing of fraudulent concealment pursuant to § 52-
595; furthermore, this court could discern no policy consideration that
would prompt the legislature to deny the petitioner the benefit of that
tolling provision and to conclude otherwise would be to impute to the
legislature an intent to countenance such fraudulent concealment, a
bizarre and wholly inequitable result that should not be attributed to
that body.
2. The judgment of the trial court was affirmed on the alternative ground
that the respondents were entitled to summary judgment because the
petitioner failed to present evidence sufficient to demonstrate that there
was a genuine issue of material fact with respect to his claim that the
limitation period of § 52-582 was tolled by the respondents’ fraudulent
concealment of the letters: the petitioner inadequately briefed the issue
of the sufficiency of his showing of fraudulent concealment, as he relied
entirely on a patently meritless, if not frivolous, legal argument, the
substance of which was set forth in two sentences, and, although he
had a second opportunity to address the issue in a reply brief, he failed
to do so; moreover, it was apparent that the evidence proffered by
the petitioner in opposition to the respondents’ motion for summary
judgment, namely, the letters, was inadequate for that purpose, as the
letters were not authenticated and, therefore, could not be relied on as
probative evidence, the petitioner never identified the author of the
letters with any particularity, there was nothing in the record to corrobo-
rate the content of the letters, and there was no proof that the respon-
dents received the letters or, if they did, that they concealed them from
the petitioner for the purpose of preventing him from seeking a new trial.
Argued February 9—officially released October 25, 2022
Procedural History
Amended petition for a new trial following the peti-
tioner’s conviction of the crimes of robbery in the first
degree, conspiracy to commit robbery in the first degree
and kidnapping in the second degree with a firearm,
brought to the Superior Court in the judicial district of
Hartford, where the court, Hon. John F. Mulcahy, Jr.,
judge trial referee, granted the respondents’ motion for
summary judgment and rendered judgment thereon,
from which the petitioner, on the granting of certifica-
tion, appealed to this court. Affirmed.
Gordon Randolph, self-represented, the appellant
(petitioner).
Nancy L. Chupak, senior assistant state’s attorney,
with whom, on the brief, were Gail P. Hardy, former
state’s attorney, and Debra A. Collins, senior assistant
state’s attorney, for the appellees (respondents).
Opinion
PALMER, J. The self-represented petitioner, Gordon
Randolph, appeals from the summary judgment ren-
dered by the trial court in favor of the respondents,
Donna Mambrino and the state of Connecticut, and its
subsequent dismissal of his petition for a new trial.
On appeal, the petitioner claims that the trial court
incorrectly concluded that General Statutes § 52-595,1
which provides for the tolling of the statute of limita-
tions applicable to a particular cause of action upon
proof by the party bringing the action that the defendant
fraudulently concealed the existence of the cause of
action, does not toll the three year limitation period of
General Statutes § 52-5822 applicable to petitions for a
new trial brought under General Statutes § 52-270.3 We
agree with the petitioner that the trial court incorrectly
determined that § 52-595 does not apply to § 52-582.
We also conclude, however, that the respondents are
entitled to summary judgment because the petitioner,
who alleges that the respondents intentionally con-
cealed exculpatory evidence from him in violation of
Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10
L. Ed. 2d 215 (1963), has failed to demonstrate that the
facts, viewed most favorably to sustaining his claim
under § 52-595, are sufficient to satisfy the stringent
requirements of that tolling provision. Accordingly, we
affirm the judgment of the trial court.
The following facts and procedural history regarding
both the petitioner’s underlying conviction and the pres-
ent action are relevant to this appeal. With respect to
the petitioner’s conviction, the trial court explained:
‘‘On August 24, 2012, Hartford police responded to an
armed robbery in progress at [a restaurant] on Brainard
Road. Upon arrival, a vehicle was observed leaving the
area, it was followed by the police across local streets,
it proceeded on to the highway, and the vehicle crashed
while exiting the interstate. The petitioner was the
driver; a passenger in the vehicle subsequently impli-
cated the petitioner in the armed robbery. Inculpatory
items of evidence were found in the vehicle. The peti-
tioner was arrested on August 24, 2012, and charged
with robbery in the first degree, conspiracy [to commit
robbery in the first degree], and kidnapping [in the]
second degree with a firearm. [On July 11, 2013, the
petitioner] pleaded guilty [pursuant to a plea agree-
ment] to all counts . . . [following] an exhaustive can-
vass [and a presentence investigation report] was
ordered . . . .’’ He was sentenced on October 17, 2013,
in accordance with that agreement to a total effective
term of imprisonment of twenty-two years. The peti-
tioner was represented, at all relevant times, by a public
defender, R. Bruce Lorenzen. Mambrino, a senior assis-
tant state’s attorney, was involved in the prosecution
of the case for the state.
The petitioner then filed a petition for a new trial
dated October 7, 2016, alleging that several letters writ-
ten by someone named ‘‘Iris S.’’ contained evidence
establishing his innocence in his criminal case and that
the respondents had possession of the letters and
knowledge of their contents at the time of his guilty
plea but purposefully failed to disclose them to him. In
their amended answer to the petition, the respondents
asserted that the petitioner had ‘‘failed to allege any-
thing identifiable that could not have been discovered
earlier by the exercise of due diligence, that would be
material on a new trial, that is not merely cumulative
nor is likely to produce a different result in a new trial,’’
thereby failing to satisfy any of the requirements for a
petition for a new trial enumerated by our Supreme
Court in Asherman v. State, 202 Conn. 429, 434, 521
A.2d 578 (1987). The respondents also alleged, by way
of a special defense, that the petition was time barred
because it was not filed within three years from the
date of the petitioner’s sentencing as required under
§ 52-582.4 In an amended petition for a new trial, the
petitioner maintained that § 52-582 was tolled by § 52-
595 as a result of the respondents’ fraudulent conceal-
ment of the ‘‘Iris S.’’ letters, which, he further claimed,
violated his constitutional rights under Brady.
The respondents subsequently filed a motion for sum-
mary judgment, arguing that there was no dispute
between the parties that the petitioner had not served
the respondents within the time frame mandated by
§ 52-582. The respondents further argued that the peti-
tioner’s tolling claim failed as a matter of law because
he had not adduced facts sufficient to permit a finding
of fraudulent concealment.
At a hearing on the respondents’ motion, the court
voiced concerns over whether the question of the
court’s subject matter jurisdiction had been properly
addressed. The court then noted that it had provided
the parties with several cases to review on that point,
including Fichera v. Mine Hill Corp., 207 Conn. 204,
541 A.2d 472 (1988), and Turner v. State, 172 Conn. App.
352, 160 A.3d 398 (2017). At the hearing, the respondents
maintained that the court in Turner ‘‘was very explicit
in . . . conclud[ing] that the [three year] limitation
period set forth in [§] 52-582 . . . is jurisdictional in
nature,’’ such that the trial court in the present case
lacked jurisdiction to consider the petitioner’s untimely
petition for any reason after the expiration of that
period. The petitioner countered that neither Fichera
nor Turner mandated the conclusion that § 52-582 can-
not be tolled by proof of fraudulent concealment under
§ 52-595.
On September 27, 2018, the court granted the respon-
dents’ motion for summary judgment. The court relied
in large part on this court’s determination in Turner
that § 52-582 is jurisdictional in nature and not subject
to equitable tolling. See Turner v. State, supra, 172
Conn. App. 370. The court also noted that, although
Turner did not rule on whether § 52-595 applies to § 52-
582, it ‘‘provide[d] guidance’’ by citing to Fichera, in
which our Supreme Court concluded, under the facts
of that case, that § 52-595 was unavailable to the plaintiff
as a matter of law to toll General Statutes § 42-110g (f),
the three year statute of limitations for claims under
the Connecticut Unfair Trade Practices Act (CUTPA),
General Statutes § 42-110a et seq.5 See Fichera v. Mine
Hill Corp., supra, 207 Conn. 216–17. The court therefore
concluded that the petitioner’s failure to bring his peti-
tion within three years of his sentence operated as a
jurisdictional bar to consideration of his petition for a
new trial. The court thus dismissed the petition, and
this appeal followed. Additional facts and procedural
history will be set forth as necessary.
I
On appeal, the petitioner claims that the trial court
incorrectly concluded that the three year limitation
period of § 52-582 cannot be tolled by application of
§ 52-595. In response, the respondents contend that the
trial court properly held that the limitation period of
§ 52-582 is jurisdictional in nature and therefore not
subject to tolling under § 52-595.6 Specifically, the
respondents, relying on the analyses in Turner and
Fichera, argue that there is ‘‘a clear legislative intent
not to have § 52-595 apply to toll the statute of limita-
tions for a petition for a new trial.’’ We agree with the
petitioner and, accordingly, conclude that the three year
limitation period of § 52-582 may be tolled by a showing
of fraudulent concealment pursuant to § 52-595.
We begin by noting that ‘‘[t]his court’s standard of
review for a motion for summary judgment is well estab-
lished. Practice Book § [17-49] provides that summary
judgment shall be rendered forthwith if the pleadings,
affidavits and any 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, the
trial court must view the evidence in the light most
favorable to the nonmoving party. . . . The party seek-
ing summary judgment has the burden of showing the
absence of any genuine issue [of] material facts which,
under applicable principles of substantive law, entitle
him to a judgment as a matter of law . . . and the party
opposing such a motion must provide an evidentiary
foundation to demonstrate the existence of a genuine
issue of material fact. . . . [I]ssue-finding, rather than
issue-determination, is the key to the procedure. . . .
[T]he trial court does not sit as the trier of fact when
ruling on a motion for summary judgment. . . . [Its]
function is not to decide issues of material fact, but
rather to determine whether any such issues exist. . . .
Our review of the decision to grant a motion for sum-
mary judgment is plenary. . . . We therefore must
decide whether the court’s conclusions were legally
and logically correct and find support in the record.’’
(Internal quotation marks omitted.) Electrical Contrac-
tors, Inc. v. 50 Morgan Hospitality Group, LLC, 211
Conn. App. 724, 730–31, 273 A.3d 726 (2022).
‘‘Summary judgment may be granted where the claim
is barred by the statute of limitations.’’ Doty v. Mucci,
238 Conn. 800, 806, 679 A.2d 945 (1996). ‘‘Typically, in
the context of a motion for summary judgment based
on a statute of limitations special defense, a defendant
. . . meets its initial burden of showing the absence of
a genuine issue of material fact by demonstrating that
the action had commenced outside of the statutory
limitation period. . . . Then, if the plaintiff claims the
benefit of a provision that operates to extend the limita-
tion period, the burden . . . shifts to the plaintiff to
establish a disputed issue of material fact in avoidance
of the statute. . . . In these circumstances, it is incum-
bent upon the party opposing summary judgment to
establish a factual predicate from which it can be deter-
mined, as a matter of law, that a genuine issue of mate-
rial fact [as to the timeliness of the action] exists.’’
(Citations omitted; internal quotation marks omitted.)
Doe v. West Hartford, 328 Conn. 172, 192, 177 A.3d
1128 (2018).
It is also necessary to set forth certain legal principles
concerning §§ 52-270 and 52-595. A petition for a new
trial brought in accordance with § 52-270 is governed
by the standard set forth by our Supreme Court in
Asherman v. State, supra, 202 Conn. 434, pursuant to
which ‘‘a court is justified in granting [such] a petition
. . . when it is satisfied that the evidence offered in
support thereof: (1) is newly discovered such that it
could not have been discovered previously despite the
exercise of due diligence; (2) would be material to the
issues on a new trial; (3) is not cumulative; and (4) is
likely to produce a different result in the event of a
new trial.’’ Shabazz v. State, 259 Conn. 811, 820–21, 792
A.2d 797 (2002). In addition to these specific elements,
our Supreme Court has observed that ‘‘a court’s deci-
sion on the petition should be guided by the more gen-
eral principle that a new trial will be warranted on
the basis of newly discovered evidence only where an
injustice was done . . . .’’ (Internal quotation marks
omitted.) Id., 821. Although a petition for a new trial
‘‘does not furnish a substitute for, or an alternative to, an
ordinary appeal,’’ it is available to remedy an injustice
when, in light of ‘‘newly discovered evidence . . . that
. . . could not have been discovered and produced at
the former trial by the exercise of proper diligence,’’
considerations of ‘‘equity and good conscience’’
demand that ‘‘relief against [the] judgment . . . be
granted.’’ State v. Grimes, 154 Conn. 314, 325, 228 A.2d
141 (1966); see also Rizzo v. Pack, 15 Conn. App. 312,
315–16, 544 A.2d 252 (1988). ‘‘The salutary purpose of
[a petition for a new trial] is that if a party has a meritori-
ous defense and has been deprived of [a] reasonable
opportunity to present it, he ought to be permitted to
make it upon another trial.’’ (Internal quotation marks
omitted.) State v. Grimes, supra, 325. This ‘‘opportunity
for a new trial when new evidence comes to light pro-
vides a [criminal] defendant [a] . . . critical proce-
dural mechanism for remedying an injustice.’’ Seebeck
v. State, 246 Conn. 514, 531, 717 A.2d 1161 (1998); see
also Holliday v. State, 111 Conn. App. 656, 662–63, 960
A.2d 1101 (2008) (same), cert. denied, 291 Conn. 902,
967 A.2d 112 (2009).
With respect to the limitation period applicable to a
petition for a new trial, our Supreme Court has
explained: ‘‘[T]he scope of review of a trial court’s deci-
sion to grant a new trial on the basis of newly discovered
evidence is limited to whether the trial court abused
its discretion. . . . A critical limitation on the exercise
of the trial court’s discretion in passing upon such a
petition for a new trial, however, is the statute of limita-
tions [set forth in § 52-582]. . . .
‘‘The three year statute of limitations on a petition
for a new trial based on newly discovered evidence is
the product of the legislature’s balancing of the interests
of the petitioner against the interests of the public and
the state. The petitioner’s interest is in attempting to
establish that he is probably not guilty and that, there-
fore, the verdict in his criminal trial should be over-
turned. The state’s interests are in preserving the finality
of judgments, in not degrading the properly prominent
place given to the original trial as the forum for deciding
the question of guilt or innocence within the limits of
human fallibility, and in the fact that in many cases an
order for a new trial may in reality reward the accused
with complete freedom from prosecution because of
the debilitating effect of the passage of time on the
state’s evidence. . . .
‘‘Indeed, one of the principal purposes of any statute
of limitations is to enhance the reliability of fact-finding,
based upon the common sense notions that the unrelia-
bility of fact-finding increases with the passage of time
. . . and that it is wise public policy to minimize that
degree of unreliability by barring the fact-finding pro-
cess after the applicable limitations period. . . .
‘‘Thus, for a petition for a new trial, within the three
year limitations period, the petitioner’s interests trump
those of the public and the state. Beyond that period,
however, the interests of the public and the state trump
those of the petitioner.’’ (Citations omitted.) Sum-
merville v. Warden, 229 Conn. 397, 426–27, 641 A.2d
1356 (1994).7
With respect to fraudulent concealment under § 52-
595, ‘‘[t]he question before us is whether the [petitioner]
[has] adduced any credible evidence that [the respon-
dents] fraudulently concealed the existence of the [peti-
tioner’s] cause of action. To meet this burden, it was
not sufficient for the [petitioner] to prove merely that
it was more likely than not that the [respondents] had
concealed the cause of action. Instead, the [petitioner]
had to prove fraudulent concealment by the more exact-
ing standard of clear, precise, and unequivocal evi-
dence. . . . Under our case law, to prove fraudulent
concealment, the [petitioner] [was] required to show:
(1) [the respondents’] actual awareness, rather than
imputed knowledge, of the facts necessary to establish
the [petitioner’s] cause of action; (2) the [respondents’]
intentional concealment of these facts from the [peti-
tioner]; and (3) the [respondents’] concealment of the
facts for the purpose of obtaining delay on the [petition-
er’s] part in filing a complaint on [his] cause of action.’’
(Internal quotation marks omitted.) Medical Device
Solutions, LLC v. Aferzon, 207 Conn. App. 707, 745–46,
264 A.3d 130, cert. denied, 340 Conn. 911, 264 A.3d 94(2021). ‘‘[Additionally], the [respondents’] actions must
have been directed to the very point of obtaining the
delay [in filing the action] of which [the respondents]
afterward [seek] to take advantage by pleading the stat-
ute.’’ (Internal quotation marks omitted.) Id., 746.
The rationale underlying § 52-595 is readily apparent,
namely, to prevent a party from engaging in fraud to
conceal a cause of action until the statute of limitations
applicable to that action has expired. As the United
States Supreme Court explained in the seminal case of
Bailey v. Glover, 88 U.S. 342, 22 L. Ed. 636 (1874), the
fraudulent concealment doctrine ‘‘is founded in a sound
and philosophical view of the principles of statutes
of limitation. They were enacted to prevent frauds; to
prevent parties from asserting rights after the lapse of
time had destroyed or impaired the evidence from
which would show that such rights never existed, or
had been satisfied, transferred, or extinguished, if they
ever did exist. To hold that by concealing a fraud . . .
until such time as the party committing the fraud could
plead the statute of limitations to protect it, is to make
the law which was designed to prevent fraud the means
by which it is made successful and secure.’’ Id., 349. In
general terms, then, the fraudulent concealment doc-
trine, like other related doctrines, is based on the equita-
ble principle that ‘‘no man may take advantage of his
own wrong.’’ Glus v. Brooklyn Eastern District Termi-
nal, 359 U.S. 231, 232, 79 S. Ct. 760, 3 L. Ed. 2d 770(1959); see also General Stencils, Inc. v. Chiappa, 18
N.Y.2d 125, 127, 219 N.E.2d 169, 272 N.Y.S.2d 337 (1966)
(‘‘[t]he principle that a wrongdoer should not be able
to take refuge behind the shield of his own wrong is a
truism’’).
Of course, ascertaining the interrelationship between
§§ 52-582 and 52-595 gives rise to a question of the
intent of the legislature. See, e.g., Quarry Knoll II Corp.
v. Planning & Zoning Commission, 256 Conn. 674,
731–32, 780 A.2d 1 (2001) (interpretation of two interre-
lated statutory provisions requires determination of leg-
islative intent). More specifically, we must determine
whether the legislature intended that the limitation
period of the former is subject to the tolling provision
of the latter.
With these principles in mind, we turn to the trial
court’s decision in the present case. In concluding that
proof of fraudulent concealment under § 52-595 does
not apply to the three year limitation period of § 52-
582, the trial court relied largely on Turner v. State,
supra, 172 Conn. App. 352, in which this court held that
§ 52-582 erects a subject matter jurisdictional bar to
consideration of a petition for a new trial that has not
been filed within that three year period. Id., 370. We
further explained in Turner that, for purposes of an
untimely petition, the jurisdictional nature of § 52-582
deprives a trial court of the authority to entertain a claim
of equitable tolling; id., 359–60; which we characterized
therein ‘‘as a doctrine that includes notions of ‘waiver,
consent, or estoppel, that is, as an equitable principle
to excuse untimeliness.’ ’’ Id., 360 n.8, quoting Williams
v. Commission on Human Rights & Opportunities, 67
Conn. App. 316, 320 n.9, 786 A.2d 1283 (2001). As the
court in Turner expressly recognized, however, it was
not deciding whether proof of fraudulent concealment
under § 52-595 would suffice to toll the limitation period
of § 52-582, a question that we decided to ‘‘leave . . .
for another day when the issue is squarely before us’’;
Turner v. State, supra, 358 n.6; because the petitioner
in that case had not alleged fraudulent concealment. Id.
Although acknowledging that the court in Turner
explicitly declined to address the issue of whether § 52-
595 applies to § 52-582, the trial court concluded that
the consideration that was deemed determinative in
Turner with respect to equitable tolling, namely, the
jurisdictional nature of § 52-582, is also the critical con-
sideration with respect to the applicability of § 52-595
to § 52-582. In support of its reasoning in this regard, the
trial court noted that, in Turner, this court ‘‘provide[d]
guidance’’ by citing to Fichera v. Mine Hill Corp., supra,
207 Conn. 216, which held that reaching the merits of
a fraudulent concealment claim brought outside the
statute of limitations, in the context of a CUTPA claim,
‘‘would defeat the legislative intention expressed in
§ 42-110g (f) to bar actions for CUTPA violations after
the lapse of more than three years from their occur-
rence.’’ The trial court viewed that statute, which the
court in Fichera held could not be tolled by § 52-595,
as jurisdictional and ‘‘textually comparable’’ to § 52-
582, and ultimately determined that this court’s conclu-
sion in Turner—that the three year limitation period
of § 52-582 is jurisdictional in nature and, therefore,
principles of equitable tolling do not operate to toll that
provision—is equally applicable to the statutory tolling
available for fraudulent concealment under § 52-595.
We are not persuaded that Turner controls the out-
come of this case. Although it is true that, in Turner,
this court held that § 52-582 is subject matter jurisdic-
tional, the court found that factor determinative only
with respect to the applicability of equitable tolling,
that is, tolling predicated on the equitable common-law
authority of the court itself. See Turner v. State, supra,
172 Conn. App. 360–61. In such cases, involving a legisla-
tively created jurisdictional time limitation, the court
does not have the power to permit the tolling of the
limitation provision under its equitable or discretionary
authority. See id., 360 (‘‘[o]ur Supreme Court [in Wil-
liams v. Commission on Human Rights & Opportuni-
ties, 257 Conn. 258, 269, 777 A.2d 645 (2001)] has made
clear that a court lacks the authority to apply the doc-
trine of equitable tolling or otherwise exercise discre-
tionary authority to extend a limitations period if the
applicable statute of limitations constitutes a limit on
the court’s subject matter jurisdiction’’). That constraint
on the court’s authority, however, is not at issue when,
as here, the question presented is not whether the court
itself has the power to authorize the tolling or extension
of a statute of limitations, but, rather, whether a broadly
applicable tolling provision promulgated by the legisla-
ture operates to toll the limitation period. In other
words, the fact that the three year limitation period of
§ 52-582 is jurisdictional in nature reflects an intent by
the legislature that a court shall not have the power to
allow for the tolling of that period in the exercise of
its equitable authority. Although that three year period
no doubt operates as an important limitation on the
availability of a petition for a new trial, we must decide,
as a matter of statutory interpretation, whether the leg-
islature intended that the limitation period may be tolled
by proof of fraudulent concealment under § 52-595, an
issue not addressed in Turner.
We also conclude that the trial court’s reliance on
Fichera was misplaced. Fichera involved a claim of,
inter alia, fraudulent concealment under § 52-595 in the
context of an alleged CUTPA violation. Fichera v. Mine
Hill Corp., supra, 207 Conn. 213. In rejecting the plain-
tiff’s claim that § 52-595 tolled § 42-110g (f),8 the three
year statute of limitations applicable to CUTPA claims,
the court concluded only that the tolling claim was
unavailable under the particular facts of that case
because the deceptive or fraudulent practice alleged in
support of that tolling claim was the very same conduct
that comprised the alleged CUTPA violation. Id., 216–17.
The court explained that, under such facts, ‘‘[w]e are
convinced that . . . application [of § 52-595] here
would defeat the legislative intention expressed in § 42-
110g (f) to bar actions for CUTPA violations after the
lapse of more than three years from their occurrence.
Since CUTPA violations are defined in General Statutes
§ 42-110b to include ‘deceptive acts or practices in the
conduct of any trade or commerce,’ it is evident that
the legislature intended that the perpetrators of such
fraudulent practices, as well as other CUTPA violators,
should be permitted to avail themselves of the statute
of limitations defense provided by § 42-110g (f). . . .
We conclude, therefore, that those who violate CUTPA
by committing ‘deceptive acts,’ as the trial court found
the defendants to have done, were intended by the
legislature to have the same protection that § 42-110g
(f) affords to other CUTPA violators, such as those who
engage in ‘unfair methods of competition’ and ‘unfair
. . . practices in the conduct of any trade or business.’
General Statutes § 42-110b (a).’’ Fichera v. Mine Hill
Corp., supra, 216–17. No such potential conflict exists
between §§ 52-582 and 52-595. Moreover, although the
trial court was guided by Fichera because, like § 52-
582, § 42-110g (f) is jurisdictional, the court in Fichera
never even referred to § 42-110g (f) as jurisdictional in
nature, let alone did its analysis depend on any such
characterization.9 Thus, Fichera has no bearing on
whether proof of fraudulent concealment under § 52-
595 tolls the limitation period of § 52-582.10
Nevertheless, the respondents argue that, if the legis-
lature had intended for § 52-582 to be tolled by fraudu-
lent concealment, it could have said so in § 52-582.
The respondents borrow this argument from Turner,
in which the court reasoned that the legislature could
have included express exceptions for equitable tolling
in § 52-582 if it intended for such exceptions to apply
to that three year limitation provision. See Turner v.
State, supra, 172 Conn. App. 364–65. The flaw in the
respondents’ argument is that the legislature already
has enacted a tolling provision for fraudulent conceal-
ment, § 52-595, which contains no limiting language and,
therefore, by its plain terms is applicable generally to
all statutes of limitations. Consequently, there would
be no reason for the legislature to amend § 52-582 to
include an exception for fraudulent concealment
because there already is such a provision in the General
Statutes. Thus, no inference that § 52-595 is inapplicable
to § 52-582 may by drawn merely because the legislature
has not amended § 52-582 to add a tolling provision for
fraudulent concealment.
Contrary to the respondents’ contention, the intent
of the legislature that § 52-595 applies to § 52-582 is
apparent from the straightforward language and evident
purpose of those statutory sections.11 As stated pre-
viously, there is no language in § 52-595 to indicate that
its application is restricted only to certain statutes of
limitations and not to others. Rather, § 52-595 provides,
in broadly applicable terms, for the tolling of the limita-
tion period applicable to a cause of action ‘‘[i]f any
person’’ who is liable to such an action by another
‘‘fraudulently conceals from him the existence of’’ that
cause of action. (Emphasis added.) Moreover, there is
nothing in the wording of § 52-582 to indicate that the
legislature intended to exempt that limitation period
from the operation of § 52-595 and thereby reward a
respondent for his own misconduct in fraudulently con-
cealing evidence that would warrant a new trial. It is
axiomatic that ‘‘[w]e will not read into a [statute] words
or limitations that are not there’’; Putnam Park Apart-
ments, Inc. v. Planning & Zoning Commission, 193
Conn. App. 42, 51, 218 A.3d 1127 (2019); see also Tower
v. Miller Johnson, Inc., 67 Conn. App. 71, 78, 787 A.2d
26 (2001) (‘‘[w]e will not read into clearly expressed
legislative provisions which do not find expression in
its words’’ (internal quotation marks omitted)); because
‘‘[w]e are bound to interpret legislative intent by refer-
ring to what the legislative text contains, not what it
might have contained.’’ (Internal quotation marks omit-
ted.) Gamez-Reyes v. Biagi, 136 Conn. App. 258, 274,
44 A.3d 197, cert. denied, 306 Conn. 905, 52 A.3d 731(2012). There is no justification for deviating from this
well established principle in the present case.
Indeed, our Supreme Court made this very point with
respect to § 52-595 in Connell v. Colwell, 214 Conn. 242,
571 A.2d 116 (1990), wherein the court addressed a
claim brought by the plaintiff, the administratrix of the
estate of her late husband, alleging that the defendant
physician had committed malpractice in failing to diag-
nose her husband’s cancer. Id., 243–44. The trial court
granted the defendant’s motion for summary judgment,
concluding that the action was time barred by the rele-
vant statute of limitations, General Statutes § 52-584,12
notwithstanding the plaintiff’s contention that the appli-
cable limitation period was tolled under § 52-595 by
virtue of the defendant’s fraudulent concealment of the
cause of action. Id., 243. On appeal, our Supreme Court
concluded that the trial court properly granted the
motion on the basis of its determination, inter alia, that
the evidence did not support the plaintiff’s claim of
fraudulent concealment. Id., 250. In doing so, however,
the court rejected the defendant’s contention, raised at
oral argument, ‘‘that the fraudulent concealment excep-
tion to the statute of limitations, contained in . . . § 52-
595, will not save actions brought beyond the three year
repose period contained in . . . § 52-584.’’ Id., 245–46
n.4. The court explained its conclusion as follows: ‘‘The
defendant was unable, however, to articulate how the
language of § 52-595 was to be construed to provide
the selective application he suggests. We find no merit
to the defendant’s argument. Section 52-595 provides
that causes of action fraudulently concealed by a defen-
dant will ‘accrue against such person so liable therefor
at the time when the person entitled to sue thereon
first discovers its existence.’ . . . ‘It is clear that, when
the language of a statute is plain and unambiguous,
we need look no further than the words themselves
because we assume that the language expresses the
legislature’s intent.’ American Universal Ins. Co. v.
DelGreco, 205 Conn. 178, 193, 530 A.2d 171 (1987). Since
fraudulent concealment will cause an action to accrue
upon the date of discovery rather than on ‘the date of
the act or omission complained of,’ as specified in § 52-
584, we conclude that the exception contained in § 52-
595 constitutes a clear and unambiguous general
exception to any statute of limitations that does not
specifically preclude its application.’’ (Emphasis
altered.) Connell v. Colwell, supra, 214 Conn. 246 n.4.
The court in Connell could not have been clearer:
given the plain and encompassing language of § 52-595,
it must be deemed to apply to any limitation period
that does not expressly disclaim its applicability.
Because § 52-582 contains no such disclaimer, its three
year limitation period may be tolled upon a showing of
fraudulent concealment in accordance with § 52-595.
This conclusion makes a great deal of sense when
considered in light of the important purpose of a peti-
tion for a new trial and the rationale underlying the
fraudulent concealment doctrine codified in § 52-595.
As discussed previously, a petition for a new trial is
available, within certain time limits, only when newly
discovered evidence casts serious doubt on the legiti-
macy of a previous judgment. See, e.g., Skakel v. State,
295 Conn. 447, 468, 501 n.41, 991 A.2d 414 (2010).
Indeed, in a criminal case, a petition for a new trial
may be granted only when the petitioner has established
that a second trial is necessary ‘‘to avoid an injustice,’’
a standard that is not met unless evidence that is newly
discovered—and which, despite the exercise of due
diligence, could not have been discovered in time for
its use in the original trial—‘‘would be likely to result
in the acquittal of the petitioner . . . .’’ Id., 468. More-
over, under § 52-582, a petitioner who can meet this
demanding standard has only three years within which
to file a petition, a time frame that reflects a legislative
judgment that, during that three year period, the con-
victed petitioner’s interest in showing that he is proba-
bly not guilty on the basis of evidence that was unavail-
able at the time of trial trumps the state’s interest in
preserving the finality of the judgment and avoiding the
adverse effect of the passage of time on the state’s
evidence. See Summerville v. Warden, supra, 229 Conn.
426–27. This balancing of interests lies at the heart of
the legislative scheme providing for the filing of a peti-
tion for a new trial within three years of the original
judgment.
When, however, a party engages in fraud to conceal
evidence that would support a petition for a new trial—
that is, evidence that likely would result in a different
outcome following a second trial—the offending party
has effectively skewed that legislative balance in his
favor by curtailing or even eliminating the opportunity
afforded a petitioner under § 52-582 to vindicate his
right to seek a new trial for a period of three years
following the original judgment. In such a case, it seems
self-evident that it is manifestly unfair and unjust to
permit that party to benefit from his own fraudulent
conduct. It is that unfairness that § 52-595 was designed
to thwart by affording the petitioner the right to file a
petition for a new trial three years from the date of the
discovery of the evidence, thereby negating the adverse
effect of the fraudulent concealment. If a petitioner can
establish the stringent elements of § 52-595—that is, he
can prove by clear and convincing evidence that the
party against whom the petition is brought, acting with
actual knowledge of the facts necessary to establish
the petitioner’s cause of action, intentionally concealed
those facts for the very purpose of subverting the peti-
tioner’s ability to file a timely petition—we can think
of no policy consideration that would prompt the legis-
lature to deny the petitioner the benefit of that tolling
provision. In fact, to conclude otherwise would be to
impute to the legislature an intent to countenance—
indeed, to encourage—such fraudulent concealment, a
bizarre and wholly inequitable result that should not
be attributed to that body; see, e.g., State v. Rivera, 250
Conn. 188, 200, 736 A.2d 790 (1999) (‘‘[w]e decline to
read statutes so as to reach bizarre or absurd results’’);
especially when, as here, the language and evident pur-
pose of the relevant statutory provisions point decid-
edly in the opposite direction.
For the foregoing reasons, we conclude that the
fraudulent concealment tolling provision of § 52-595
applies to the three year limitation period of § 52-582.
Consequently, we must address the respondents’ alter-
native ground for affirmance regarding the sufficiency
of the petitioner’s evidence to support a claim under
§ 52-595.
II
As an alternative ground to affirm the summary judg-
ment rendered by the trial court in their favor, the
respondents maintain that the petitioner has failed to
demonstrate that, viewing the evidence in the light most
favorable to the petitioner, there is a genuine issue of
material fact in dispute that would entitle him to a
trial on his claim under § 52-595. We agree with the
respondents.
Some additional facts and procedural history are nec-
essary to our resolution of this issue. With respect to
the merits of the petitioner’s claim under § 52-595, the
memorandum of decision of the trial court granting the
respondents’ motion for summary judgment sets forth
the following facts relevant to the evidence that the
petitioner claims is newly discovered and was fraudu-
lently concealed by the respondents. ‘‘The petitioner
. . . an unrepresented litigant, filed a petition for a new
trial . . . in two counts alleging, first, that [he] received
a written statement from an ‘Iris [S.],’ which ‘verifies’
that he is ‘actually innocent’ of the crimes with which
he was charged, and to which he was ‘forced’ to plead
guilty’’ and that ‘‘had the ‘Iris [S.]’ letter(s) been dis-
closed, the petitioner would not have entered pleas of
guilty to the charges and would have opted for a trial,
and second, that the respondents ‘knew or should have
known the facts of the case.’ ’’
In his opposition to the respondents’ motion for sum-
mary judgment, the petitioner, citing § 52-595, claimed
that ‘‘the statute of limitations [relative to his petition
for a new trial, § 52-582] was tolled due to fraudulent
concealment of the ‘Iris [S.] letters’ by the respondents.
Specifically, the petitioner claim[ed] that the ‘letters’
annexed to the opposition to a former motion to dismiss
were unknown to him until November 15, 2015, which
was roughly eleven months before the running of the
[§] 52-582 time limitation.’’ (Footnote omitted.)
In a footnote, the court added: ‘‘By way of back-
ground, certain undisputed facts serve to place the pur-
ported ‘Iris [S.] letters’ in perspective. . . . All five of
the handwritten statements (‘letters’) attached to the
petitioner’s original opposition [to the respondents’
motion to dismiss] are unsigned; four are undated. The
first (in the order presented) bears an upper right hand
corner notation: ‘6:30 P.M. 1/18/13.’ It reads: ‘To Prose-
cutor Donna Mambrino’ and begins by reciting ‘My
name is Iris.’ While the one page document contains
certain details, and considerable hearsay, the portion
claimed by the petitioner as particularly probative is
the recitation that, on August 24, 2012, while she (‘Iris’)
was in a car at a Brainard Road gas station, waiting to
meet one Kelly Cooper, a vehicle pulled up in front of
her ‘real fast’ and [Cooper’s] friend ‘Ty’ exited the driver
seat of that vehicle and entered her car. Somebody from
a moving truck that was leaving the gas station, who
she later learned was the petitioner, got into the vehicle
‘Ty’ had exited, and drove it until it ‘crashed off the
highway.’
‘‘The four other unsigned statements or ‘letters’ are,
as stated, undated, and do not contain the name ‘Iris’
or ‘Iris [S.]’; they can be summarized . . . as follows:
[1] follow-up letter to . . . Mambrino referring to the
document dated January 18, 2013, and inquiring about
what happened to . . . Cooper and his friend ‘Ty’; it
also states that the prosecutor has not called her back,
expresses concern for her safety, and indicates [that]
she is still living in Massachusetts; [2] ‘letter’ to Attorney
. . . Lorenzen advising that the statement dated Janu-
ary 18, 2013, had been sent to . . . Mambrino and
enclosing a copy thereof; [3] similar letter with enclo-
sure (statement dated January 18, 2013) to Judge [Joan
K.] Alexander; and [4] similar letter with enclosure
(statement dated January 18, 2013) to the petitioner.
‘‘The petitioner characterizes the Iris [S.] documents
as ‘exoneration’ evidence; in [the court’s] view, the Iris
[S.] documents are of a decidedly inculpatory character:
the purported author does not claim to have been an
eyewitness to the armed robbery, her January 18, 2013
‘letter’ places the petitioner in proximity to the scene
immediately following the robbery, and serves to con-
firm his participation in the alleged getaway.’’
Although describing the ‘‘Iris S.’’ letters in its memo-
randum of decision in order to provide context for the
petitioner’s claim, the trial court did not reach the mer-
its of the respondents’ claim that those letters are insuf-
ficient to defeat their motion for summary judgment.
The trial court concluded, rather, that the three year
limitation period of § 52-582 had expired before the
petitioner commenced his petition for a new trial
because, as a matter of law, that limitation period could
not be tolled by proof of fraudulent concealment under
§ 52-595. On appeal, however, the petitioner relies on
those letters to support his contention, made in
response to the respondents’ alternative ground for
affirmance, that he is entitled to a trial on his fraudulent
concealment claim. In his brief to this court, however,
the petitioner fails to explain why those letters are
sufficient to give rise to a genuine issue of material fact
such that summary judgment is inappropriate. Instead,
his sole argument—the sum total of which comprises
less than one full page of his brief—is that the respon-
dents are estopped from contesting the sufficiency of
the letters because, in their motions to dismiss the peti-
tion for a new trial, the respondents did not ‘‘seek to
introduce evidence outside of the record to controvert
or contradict the facts [alleged in the] petitioner’s com-
plaint.’’ This result is required, according to the peti-
tioner, because ‘‘[a] motion to dismiss is a responsive
pleading that admits all facts well pleaded especially
when it does not seek to introduce evidence outside of
the record to deny or rebut the facts of the allegations,’’
and the respondents therefore must be deemed to have
‘‘admitted to all the facts of the allegations in the peti-
tioner’s amended petition for a new trial. Because of
this, the trial court was not permitted to make a finding
to the contrary.’’13
This argument is plainly lacking in merit because ‘‘[a]
motion to dismiss tests, inter alia, whether, on the face
of the record, the court is without jurisdiction. . . .
When a . . . court decides a jurisdictional question
raised by a pretrial motion to dismiss, it must consider
the allegations of the complaint in their most favorable
light. . . . In this regard, a court must take the facts
to be those alleged in the complaint, including those
facts necessarily implied from the allegations, constru-
ing them in a manner most favorable to the pleader.
. . . The motion to dismiss . . . admits all facts which
are well pleaded, invokes the existing record and must
be decided upon that alone.’’ (Internal quotation marks
omitted.) Pickard v. Dept. of Mental Health & Addiction
Services, 210 Conn. App. 788, 792–93, 271 A.3d 178(2022). This is in marked contrast to a motion for sum-
mary judgment, which requires the production of evi-
dence so that the court can determine whether there
is a genuine issue of material fact in dispute. See, e.g.,
Day v. Seblatnigg, 341 Conn. 815, 825, 268 A.3d 595(2022). Consequently, the failure of the respondents to
dispute the allegations of the petition for a new trial
in connection with their motions to dismiss does not
constitute an admission of those facts for purposes of
their motion for summary judgment, and there is noth-
ing whatsoever in our law to support the petitioner’s
assertion otherwise.
Moreover, in the respondents’ brief to this court, filed
following the petitioner’s submission of his brief, the
respondents explained, with citation to case law, why
they are not deemed to have admitted the petition’s
allegations merely because they elected not to challenge
those allegations for purposes of their motions to dis-
miss, which did not depend on the veracity of the allega-
tions of the petition. Nevertheless, the respondents also
set forth the arguments as to why, in their view, the
‘‘Iris S.’’ letters were insufficient from an evidentiary
perspective to defeat their motion for summary judg-
ment. Although he could have done so, the petitioner
failed to file a reply brief addressing the respondents’
arguments.
We recognize that the petitioner is a self-represented
party and that, ‘‘[a]lthough self-represented parties are
not excused from complying with relevant rules of pro-
cedural and substantive law, [i]t is the established pol-
icy of the Connecticut courts to be solicitous of [self-
represented] litigants and when it does not interfere
with the rights of other parties to construe the rules
of practice liberally in favor of the [self-represented]
party.’’ (Internal quotation marks omitted.) Gutierrez
v. Mosor, 206 Conn. App. 818, 835, 261 A.3d 850, cert.
denied, 340 Conn. 913, 265 A.3d 926 (2021). Thus, ‘‘like
the trial court, [this court] will endeavor to see that
such a litigant shall have the opportunity to have his
case fully and fairly heard so far as such latitude is
consistent with the just rights of any adverse party.’’
(Internal quotation marks omitted.) Id. Nonetheless,
‘‘[a]lthough we allow [self-represented] litigants some
latitude, the right of self-representation provides no
attendant license not to comply with relevant rules of
procedural and substantive law’’; (internal quotation
marks omitted) C. B. v. S. B., 211 Conn. App. 628, 630,
273 A.3d 271 (2022); and ‘‘[w]e repeatedly have stated
that [w]e are not required to review issues that have
been improperly presented to this court through an
inadequate brief. . . . Analysis, rather than mere
abstract assertion, is required in order to avoid aban-
doning an issue by failure to brief the issue properly.
. . . [When] a claim is asserted in the statement of
issues but thereafter receives only cursory attention in
the brief without substantive discussion or citation of
authorities, it is deemed to be abandoned. . . . For a
reviewing court to judiciously and efficiently . . . con-
sider claims of error raised on appeal . . . the parties
must clearly and fully set forth their arguments in their
briefs.’’ (Internal quotation marks omitted.) Id.In the present case, the petitioner’s brief with respect
to the sufficiency of his showing of fraudulent conceal-
ment is inadequate because he relies entirely on what
fairly may be characterized as a patently meritless, if
not frivolous, legal argument, the substance of which
is set forth in two sentences. Although the petitioner
had a second opportunity to address that sufficiency
issue in a reply brief, he did not do so. Even if the
petitioner is afforded considerable leeway by virtue of
his self-represented status, it cannot reasonably be said
that he has adequately briefed this issue.
Moreover, it is apparent that the evidence proffered
by the petitioner in support of his opposition to the
respondents’ motion for summary judgment, namely,
the ‘‘Iris S.’’ letters, is inadequate for that purpose. First,
as the respondents point out, the letters have never
been authenticated. ‘‘This court has made clear that
[the] rules [of practice] would be meaningless if they
could be circumvented by filing [unauthenticated docu-
ments] in support of or in opposition to summary judg-
ment. . . . Therefore, before a document may be con-
sidered by the court [in connection with] a motion for
summary judgment, there must be a preliminary show-
ing of [the document’s] genuineness, i.e., that the prof-
fered item of evidence is what its proponent claims it
to be. . . . Documents in support of or in opposition
to a motion for summary judgment may be authenti-
cated in a variety of ways, including, but not limited to
. . . the addition of an affidavit by a person with per-
sonal knowledge that the offered evidence is a true and
accurate representation of what its proponent claims
it to be.’’ (Citation omitted; internal quotation marks
omitted.) Anderson v. Dike, 187 Conn. App. 405, 411–12,
202 A.3d 448, cert. denied, 331 Conn. 910, 203 A.3d 1245(2019). In the absence of some kind of authentication,
the letters cannot reasonably be relied on as probative
evidence.14
Furthermore, the petitioner has never identified ‘‘Iris
S.’’ with any particularity, and there is nothing in the
record to corroborate the content of the letters she
purportedly wrote. Indeed, there is no proof that the
respondents received the letters, and the petitioner has
made no showing that, if they did receive the letters,
they concealed them from the petitioner for the purpose
of preventing him from seeking a new trial. For all these
reasons, the petitioner has failed to present evidence
sufficient to establish a genuine issue of material fact
with respect to his claim that the three year limitation
period of § 52-582 was tolled by the respondents’ fraud-
ulent concealment of the letters.15 Accordingly, the
respondents are entitled to summary judgment.
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 52-595 provides: ‘‘If any person, liable to an action
by another, fraudulently conceals from him the existence of the cause of
such action, such cause of action shall be deemed to accrue against such
person so liable therefor at the time when the person entitled to sue thereon
first discovers its existence.’’
2
General Statutes § 52-582 (a) provides in relevant part: ‘‘No petition for
a new trial in any civil or criminal proceeding shall be brought but within
three years next after the rendition of the judgment or decree complained
of . . . .’’
3
General Statutes § 52-270 (a) provides in relevant part: ‘‘The Superior
Court may grant a new trial of any action that may come before it, for . . .
the discovery of new evidence . . . .’’
4
‘‘The three year period [of § 52-582] begins to run from the date of
rendition of judgment by the trial court; Varley v. Varley, 181 Conn. 58, 61,
434 A.2d 312 (1980); which, in a criminal case, is the date of imposition of
the sentence by the trial court. State v. Coleman, 202 Conn. 86, 89, 519 A.2d
1201 (1987).’’ Holliday v. State, 111 Conn. App. 656, 663, 960 A.2d 1101(2008), cert. denied, 291 Conn. 902, 967 A.2d 112 (2009).
5
We discuss both Fichera and Turner at greater length in part I of this opin-
ion.
6
The respondents also contend, as an alternative ground for affirming
the judgment of the trial court, that, even if § 52-595 applies to § 52-582, the
petitioner has failed to present facts sufficient to establish a genuine issue
of material fact with respect to his claim of fraudulent concealment under
§ 52-595. We discuss that alternative ground in part II of this opinion.
7
Although the court in Summerville spoke in terms of the filing of a
petition for a new trial in the context of a challenge to a judgment of
conviction following a trial, there is no dispute that such a petition may be
brought, as it was here, in the context of a claim challenging a judgment
of conviction rendered after a guilty plea. Moreover, although Summerville
was decided in the context of a petition for a new trial in a criminal case,
such a petition may also be brought in a civil case. See, e.g., Rizzo v. Pack,
supra, 15 Conn. App. 315 (‘‘[t]he procedure for procuring a new trial by
petition, whether in a civil or criminal case, is authorized by § 52-270’’).
8
This court has concluded that § 42-110g (f) is jurisdictional in nature.
Avon Meadow Condominium Assn., Inc. v. Bank of Boston Connecticut,
50 Conn. App. 688, 700, 719 A.2d 66, cert. denied, 247 Conn. 946, 723 A.2d
320 (1998), and cert. denied, 247 Conn. 946, 723 A.2d 320 (1998).
9
Indeed, in 1988, when Fichera was decided, no appellate court of this
state had held that § 42-110g (f) is jurisdictional in nature. As we have
indicated, subsequently, in 1998, this court determined that it is. See footnote
8 of this opinion.
10
In this connection, it bears noting that our Supreme Court has expressly
reserved the question of whether CUTPA’s three year limitation period of
§ 42-110g (f) may be equitably tolled. See Normandy v. American Medical
Systems, Inc., 340 Conn. 93, 112 n.18, 262 A.3d 698 (2021) (‘‘[h]ere, we again
do not need to reach the issue of whether the CUTPA limitation period may
be tolled by the continuing course of conduct doctrine because we conclude
that there is no factual predicate for the application of that doctrine’’). If
our Supreme Court were of the view that, under Fichera, statutory tolling
for fraudulent concealment is unavailable for CUTPA claims generally, it
seems apparent that the court in Normandy would have had no difficulty
in concluding that equitable tolling is also jurisdictionally barred under
CUTPA. No doubt the court has not done so because Fichera did not hold
that § 52-595 is inapplicable for purposes of CUTPA, only that that tolling
provision did not apply under the specific facts of that case.
11
We note that there is no reported legislative history for the fraudulent
concealment statute, which first was enacted in 1874. See General Statutes
(1875 Rev.) tit. 19, c. 18, § 20.
12
General Statutes § 52-584 provides in relevant part: ‘‘No action to recover
damages for injury to the person . . . caused . . . by malpractice of a
physician . . . shall be brought but within two years from the date when
the injury is first sustained or discovered or in the exercise of reasonable
care should have been discovered, and except that no such action may be
brought more than three years from the date of the act or omission com-
plained of . . . .’’
13
The foregoing represents the entirety of the petitioner’s argument as to
why the letters are sufficient to require a trial on his fraudulent conceal-
ment claim.
14
The petitioner was granted permission by the trial court to subpoena
‘‘Iris S.’’ Although the petitioner asserted that he received the letters from
‘‘Iris S.’’ and not the respondents, it appears that he did not know her last
name or address, thereby rendering him unable to secure her presence or
testimony.
15
As the respondents acknowledge, because the petitioner’s fraudulent
concealment claim regarding newly discovered evidence also gives rise to
a Brady claim, the petitioner’s right to a new trial may be vindicated by
virtue of a petition for a new trial; see State v. McCoy, 331 Conn. 561, 598,
206 A.3d 725 (2019) (‘‘newly discovered Brady claims may . . . be brought
by way of a petition for a new trial up to three years after sentencing’’);
and via a petition for a writ of habeas corpus. In fact, while the present
case was pending in the trial court, the petitioner filed a habeas petition
based on the same alleged Brady violation that he has raised here. He
subsequently withdrew that claim, however, without explanation. We
express no view with respect to any aspect of any such habeas claim that
the petitioner might seek to commence in the future.
Finally, it bears noting that, in cases that do not involve an alleged constitu-
tional violation, a petition for a new trial will almost invariably be the only
relief available to an individual seeking a new trial on the basis of newly
discovered evidence. This is true, of course, with respect to both criminal
and civil cases.