Tara S. v. Charles J.

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TARA S. v. CHARLES J.*
(AC 39284)
Lavine, Prescott and Bear, Js.
Syllabus
The plaintiff sought to recover damages from the defendant for personal
injuries she allegedly sustained in connection with his sexual assaults
of her when she was four years old. The plaintiff, who was thirty-six
years old, filed an application for a prejudgment remedy, seeking to
attach certain of the defendant’s real property. In response, the defen-
dant filed a motion to dismiss the application and the underlying action.
After a hearing, the trial court denied the defendant’s motion to dismiss
and granted a prejudgment remedy in the amount of $150,000 in favor
of the plaintiff, determining that she had shown that there was probable
cause that she would obtain a judgment against the defendant in that
amount. Thereafter, the defendant appealed to this court, claiming that
the trial court improperly denied his motion to dismiss because the
applicable statute of limitations (§ 52-577d), which permits a minor
victim of sexual abuse to bring an action for damages against the perpe-
trator of the abuse no later than thirty years from the date that the
victim attains the age of majority, was unconstitutional as applied to
him for a number of reasons. Specifically, he claimed that the statute
was unconstitutional as applied to him because the plaintiff allegedly
did not repress memories of the sexual assaults, and the legislative
purpose behind extending the limitations period was to allow victims
of childhood sexual abuse to recall memories of the abuse that had
been repressed. Held that the trial court properly denied the defendant’s
motion to dismiss the application for a prejudgment remedy and the
underlying action; the language of the statute was clear and unambiguous
in that it allows a victim of childhood sexual abuse to bring a claim for
damages against the perpetrator of the abuse no later than thirty years
from the date upon which the victim attains the age of majority, and does
not mention or require repressed memories, nor does it bar plaintiffs
who have not repressed memories of the abuse from relying on it, the
application of § 52-577d, as a statute of limitations, did not impact any
constitutionally protected conduct or any property right of the defen-
dant, and the defendant’s claims that the application of § 52-577d violated
his rights to a speedy trial, to confrontation and to protection against
double jeopardy were unavailing, as those constitutional provisions were
applicable only in criminal settings.
Argued October 10—officially released December 12, 2017
Procedural History
Action to recover damages for sexual assault, and
for other relief, brought to the Superior Court in the
judicial district of Middlesex, where the court, Auri-
gemma, J., granted the plaintiff’s application for a pre-
judgment remedy and denied the defendant’s motion
to dismiss the application and the action, and the defen-
dant appealed to this court. Affirmed.
Bryan P. Fiengo, with whom, on the brief, was Eric
W. Callahan, for the appellant (defendant).
Karen K. Clark, with whom, on the brief, was Timo-
thy L. O’Keefe, for the appellee (plaintiff).
Opinion
BEAR, J. The defendant, Charles J., appeals from the
trial court’s judgment (1) denying his motion to dismiss
the application for a prejudgment remedy filed by the
plaintiff, Tara S., and the underlying action,1 and (2)
granting a prejudgment attachment of $150,000 in favor
of the plaintiff. On appeal, the defendant claims that
the court improperly denied his motion to dismiss
because, as applied to him, General Statutes § 52-577d
is unconstitutional in that the plaintiff did not repress
memories of the sexual assault and, therefore, knew of
her potential claim against him for more than thirty
years. The defendant also argues that § 52-577d violates
his right to a speedy trial, his protection against double
jeopardy, and his right to confrontation provided by
both the United States and Connecticut constitutions.
Finally, the defendant argues that § 52-577d is unconsti-
tutionally overbroad and improperly deprives him of a
property interest. We affirm the judgment of the trial
court.
The relevant facts are set forth in the court’s memo-
randum of decision on the motion to dismiss and the
application for a prejudgment remedy. ‘‘The plaintiff is
a victim of sexual abuse at the hand of her father,
the defendant . . . who was the subject of a criminal
prosecution, the appeal of which resulted in a case of
first impression [in our Supreme Court] concerning the
use of videotaped testimony of minor victims . . . .
‘‘At the hearing on the prejudgment remedy applica-
tion, the plaintiff . . . testified that she had reviewed
the [Supreme Court] decision and other documents
relating to the prosecution shortly before she testified.
Her testimony about the events surrounding the sexual
assaults [was] nearly identical to the facts as recited
by the court . . . . The plaintiff was four years old at
the time of the assault and, although she claimed to
have memory of the assaults, the court finds that the
memory is largely based on a recent reading of the
accounts of the events and extensive discussion with
family members.
‘‘The plaintiff, now [thirty-six] years of age, testified
that she and her mother and brother moved away from
Middletown when she was [five] years old. She stated
that she thought she had received some counseling, but
had not received regular medical checkups as a child.
The plaintiff played sports and an instrument in high
school, where she was on the honor roll. She was never
suspended in school for any misconduct. The plaintiff
received her bachelor’s degree from the University of
North Carolina at Asheville, where she was on the
dean’s list, and a master’s degree from the University
of Oregon. She married in 2010, had a child, and
divorced in 2015.
‘‘The plaintiff testified that she had never been diag-
nosed with depression by any medical professional.
However, she stated that she diagnosed herself with
depression and obtained antidepression medication
from her primary care physician. She last took the anti-
depression medication in 2013. . . .
‘‘The plaintiff testified that the main effect that the
sexual assaults had on her life was that she grew up
only knowing her mother’s side of the family, she felt
guilty about her [the defendant’s] prosecution and was
embarrassed when people asked her where her father
was. When asked why she decided to bring this lawsuit
now, after the passage of so many years, the plaintiff
testified she struggled everyday and also, learned that
the case against [the defendant] had considerable
notoriety.’’
General Statutes § 52-577 provides that ‘‘[n]o action
founded upon a tort shall be brought but within three
years from the date of the act or omission complained
of.’’ Section 52-577d, upon which the plaintiff relies to
establish the timeliness of this litigation, provides that
‘‘[n]otwithstanding the provisions of section 52-577, no
action to recover damages for personal injury to a
minor, including emotional distress, caused by sexual
abuse, sexual exploitation or sexual assault may be
brought by such person later than thirty years from
the date such person attains the age of majority.’’2 The
defendant makes several arguments challenging the
constitutionality of § 52-577d as applied to him. Specifi-
cally, the defendant argues that the plaintiff’s claim does
not satisfy the legislative purpose behind extending the
limitations period for victims of childhood sexual abuse
because the plaintiff allegedly did not repress any mem-
ories of the sexual assaults. The defendant further
argues that this civil litigation is of a ‘‘quasi-criminal’’
nature and infringes upon certain constitutional protec-
tions typically afforded criminal defendants, namely,
the right to a speedy trial, the protection against double
jeopardy, and the right to confrontation under the
United States and Connecticut constitutions. The defen-
dant also claims that § 52-577d is unconstitutionally
overbroad and infringes upon a property interest of the
defendant. We disagree.
‘‘In considering an application for a prejudgment rem-
edy [t]he trial court’s function is to determine whether
there is probable cause to believe that a judgment will
be rendered in favor of the plaintiff in a trial on the
merits. . . . Appellate review of the granting of a [pre-
judgment remedy] is extremely narrow and focused. In
determining probable cause, the trial court is vested
with wide discretion and our role in reviewing the trial
court’s action is limited to determining whether the
court’s conclusion was reasonable. . . . Accordingly,
the trial court’s determination in a [prejudgment rem-
edy] proceeding should not be disturbed unless it is
clearly erroneous. . . . Furthermore, we are entitled
to presume that the trial court acted properly and con-
sidered all the evidence.’’ (Internal quotation marks
omitted.) Giordano v. Giordano, 39 Conn. App. 183,
206, 664 A.2d 1136 (1995). On appeal, the defendant does
not, separately from or in addition to his constitutional
claims, contest the court’s finding of probable cause or
its granting of or the amount of the prejudgment
remedy.
‘‘Determining the constitutionality of a statute pre-
sents a question of law over which our review is plenary.
. . . It [also] is well established that a validly enacted
statute carries with it a strong presumption of constitu-
tionality, [and that] those who challenge its constitu-
tionality must sustain the heavy burden of proving its
unconstitutionality beyond a reasonable doubt. . . .
The court will indulge in every presumption in favor of
the statute’s constitutionality . . . . Therefore, [w]hen
a question of constitutionality is raised, courts must
approach it with caution, examine it with care, and
sustain the legislation unless its invalidity is clear.’’
(Internal quotation marks omitted.) Doe v. Hartford
Roman Catholic Diocesan Corp., 317 Conn. 357, 405,
119 A.3d 462 (2015).
We first address the defendant’s claim that § 52-577d
is unconstitutional as applied to him because the plain-
tiff allegedly did not repress memories of the sexual
assaults perpetrated by the defendant.3 Relying on cer-
tain pieces of legislative history to support his claim,
the defendant argues that the purpose behind extending
the limitations period was to allow victims of childhood
sexual abuse time to recall memories of the abuse that
they had repressed. When § 52-577d is read in light of
General Statutes § 1-2z,4 however, we are compelled to
conclude that, whether the plaintiff did or did not
repress memories of the sexual abuse is irrelevant, as
§ 52-577d does not mention or require repressed memo-
ries, nor does it bar plaintiffs who have not repressed
memories of the abuse from relying on it. As our
Supreme Court has recognized, the language of § 52-
577d is clear and unambiguous in that it allows a victim
of childhood sexual abuse to bring a claim for damages
against the perpetrator of the abuse no later than thirty
years from the date upon which the victim attains the
age of majority. See Doe v. Norwich Roman Catholic
Diocesan Corp., 279 Conn. 207, 214, 901 A.2d 673 (2006)
(‘‘[t]he meaning of § 52-577d . . . is plain and unambig-
uous because it is susceptible of only one reasonable
interpretation, namely, that a minor victim of sexual
assault may bring a civil action no later than thirty years
from the date that he or she attains the age of majority
. . . .’’) Because the meaning of § 52-577d is plain and
unambiguous, we do not consider the legislative history
that the defendant relies on and conclude that its lan-
guage permitted the plaintiff to bring an action against
the defendant regardless of whether she had or had not
repressed her memories of the sexual assaults.
We next address the defendant’s constitutional chal-
lenges regarding the alleged ‘‘quasi-criminal’’ nature of
this civil litigation. The defendant argues that applica-
tion of § 52-577d violates his constitutional right to a
speedy trial,5 his protection against double jeopardy,6
and his right to confrontation.7 Each constitutional pro-
vision at issue, however, is applicable only in criminal
settings. See, e.g., U.S. Const., amend. VI (‘‘[i]n all crimi-
nal proceedings . . .’’); Conn. Const., art. 1, § 8 (same);
U.S. Const., amend. V (‘‘[n]o person shall be . . . sub-
ject for the same offence to be twice put in jeopardy
of life or limb . . .’’); cf. In re Ceana R., 177 Conn. App.
758, 772, A.3d (2017) (noting that constitutional
protections of sixth amendment to United States consti-
tution and article first, § 8, of state constitution do not
extend to parents in neglect proceeding, which is
civil proceeding).8
Finally, we address the defendant’s arguments that
§ 52-577d is unconstitutionally overbroad and unconsti-
tutionally infringes upon a property interest. ‘‘A clear
and precise enactment may . . . be overbroad if in its
reach it prohibits constitutionally protected conduct.’’
State v. Cook, 287 Conn. 237, 244–45, 947 A.2d 307, cert.
denied, 555 U.S. 970, 129 S. Ct. 464, 172 L Ed. 2d 328
(2008). Section 52-577d permits victims of childhood
sexual abuse to bring claims against perpetrators of the
abuse not later than thirty years after reaching the age
of majority. The statute, as a statute of limitations, does
not impact any constitutionally protected conduct. See
Doe v. Hartford Roman Catholic Diocesan Corp., supra,
317 Conn. 412–13 (‘‘[t]he Supreme Court [has] charac-
terized statutes of limitations as restrictions only on
that remedy, and emphasized that [the] authorities . . .
show that no right is destroyed when the law restores a
remedy which has been lost’’ [internal quotation marks
omitted]). Application of the statute also does not
impact any property right of the defendant. See Doe v.
Hartford Roman Catholic Diocesan Corp., supra, 317
Conn. 412 (citing two United States Supreme Court
cases that hold ‘‘that a defendant does not have a vested
property right in a statute of limitations defense such
that a legislative change reviving an otherwise time
barred cause of action violates the defendant’s rights
under the due process clause of the fourteenth amend-
ment to the United States constitution’’); see also
Roberts v. Caton, 224 Conn. 483, 492, 619 A.2d 844
(1993) (‘‘[t]his court, however, has never recognized a
vested right in the lapsing of a statute of limitations’’).
Our Supreme Court has consistently upheld the con-
stitutionality of § 52-577d, albeit for different reasons
than those presented in this case. In Roberts v. Caton,
supra, 224 Conn. 494, the Supreme Court held that it
was permissible to apply § 52-577d retroactively. In so
holding, the court stated: ‘‘Although statutes of limita-
tion generally operate to prevent the unexpected
enforcement of stale claims . . . one object of § 52-
577d is to afford the plaintiff sufficient time to recall
and come to terms with traumatic childhood events
before he or she must take action. The defendant’s
assertion that he is now unexpectedly exposed to liabil-
ity was an express purpose of the statute.’’ (Citation
omitted; footnote omitted.) Id., 493–94.
More recently, in Doe v. Hartford Roman Catholic
Diocesan Corp., supra, 317 Conn. 405, our Supreme
Court concluded: ‘‘[T]he application of § 52-577d retro-
actively to revive a time barred cause of action does not
violate a defendant’s substantive right to due process
under the Connecticut constitution because it is a
rational response by the legislature to the exceptional
circumstances and potential for injustice faced by
adults who fell victim to sexual abuse as a child.’’
This court has also had occasion to rule on the issue.
In Giordano v. Giordano, supra, 39 Conn. App. 193,
195, this court determined that § 52-577d did not violate
either the equal protection clause or the due process
clause of the fourteenth amendment to the United
States constitution. We also stated that ‘‘[t]he state has
a legitimate interest both in deterring the sexual abuse
of children and in providing a means for the victims of
childhood sexual abuse to recall the traumatic events
and understand the harm done to them before seeking
redress.’’ (Emphasis added.) Id., 193. This court conse-
quently upheld the granting of a prejudgment remedy
in the amount of $225,000. Id., 216.
We, accordingly, must reject the defendant’s argu-
ment that, because the plaintiff allegedly did not repress
her memories of the sexual assault, § 52-577d is uncon-
stitutional as applied to him. We also reject the defen-
dant’s argument that this civil litigation is ‘‘quasi-
criminal’’ in nature, and thus a civil action brought
within the permitted time frame of § 52-577d implicates
certain constitutional rights afforded criminal defen-
dants. Additionally, the defendant has not, on noncon-
stitutional grounds in this appeal, challenged or offered
proof of clear error in the court’s ruling that the plaintiff
has shown probable cause of obtaining a judgment
against the defendant in the amount of $150,000. We
thus affirm the court’s judgment denying the defen-
dant’s motion to dismiss the application for a prejudg-
ment remedy and the underlying action, and granting
a prejudgment remedy in the amount of $150,000 in
favor of the plaintiff.
The judgment is affirmed.
In this opinion the other judges concurred.
* In accordance with our policy of protecting the privacy interests of the
victims of sexual abuse, we decline to use the party’s full names or to
identify the victim or others through whom the victim’s identity may be
ascertained. See General Statutes § 54-86e.
1
A ruling denying a motion to dismiss is an interlocutory ruling that does
not usually constitute a final judgment. Sasso v. Aleshin, 197 Conn. 87,
89–90, 495 A.2d 1066 (1985). Because we determine, however, that the
defendant’s claim relating to the denial of his motion to dismiss is encom-
passed in the issues presented by the prejudgment remedy granted to the
plaintiff, we have jurisdiction to consider the defendant’s claim. See Canty
v. Otto, 304 Conn. 546, 555–56, 41 A.3d 280 (2012). An order granting a
prejudgment remedy after a hearing under General Statutes § 52-278d is a
final judgment for purposes of appeal. General Statutes § 52-278l.
2
The defendant does not dispute that the plaintiff’s complaint was served
on him within thirty years after she reached the age of majority.
3
The court rejected the defendant’s factual premise for this claim: ‘‘The
plaintiff was four years old at the time of the assault and, although she
claimed to have a memory of the assaults, the court finds that the memory
is largely based on a recent reading of the events and extensive discussion
with family members.’’ Although this finding is sufficient for us to reject
the claim because the defendant did not offer proof of the plaintiff’s memory
of the events in addition to her statements that the court did not believe
to be accurate, we, nevertheless, consider it on its merits.
4
General Statutes § 1-2z provides: ‘‘The meaning of a statute shall, in the
first instance, be ascertained from the text of the statute itself and its
relationship to other statutes. If, after examining such text and considering
such relationship, the meaning of such text is plain and unambiguous and
does not yield absurd or unworkable results, extratextual evidence of the
meaning of the statute shall not be considered.’’
5
See U.S. Const., amend. VI; see also Conn. Const., art. 1, § 8.
6
See U.S. Const., amend. V; see also Conn. Const. art. 1, § 8.
7
See U.S. Const., amend. VI; see also Conn. Const., art. 1, § 8.
8
The United States Supreme Court has stated that double jeopardy applies
only to criminal punishments. See Hudson v. United States, 522 U.S. 93,
98–99, 118 S. Ct. 488, 139 L. Ed. 2d 450 (1997) (‘‘We have long recognized
that the Double Jeopardy Clause does not prohibit the imposition of all
sanctions that could, in common parlance, be described as punishment.
. . . The [double jeopardy] [c]lause protects only against the imposition of
multiple criminal punishments . . . .’’ [Citations omitted; emphasis in origi-
nal; internal quotation marks omitted.]).
Our Supreme Court has not decided whether the confrontation clause
applies in civil cases, but it has noted that the right to confrontation is
limited to criminal prosecutions. See Struckman v. Burns, 205 Conn. 542,
549, 534 A.2d 888 (1987) (‘‘the right of cross-examination does have a consti-
tutional basis in the confrontation clause of our federal and state constitu-
tions. . . . These provisions, however, are expressly limited to criminal
prosecutions.’’ [Citations omitted; emphasis added.]); see also In re Ceana
R., supra, 177 Conn. App. 772.
Courts also have stated that the right to a speedy trial is reserved for
criminal cases. See, e.g., Caesar v. Sessions, 698 Fed.Appx. 655 (2d Cir.
2017) (concluding no ‘‘colorable speedy trial claim [existed] because the
Sixth Amendment does not apply in immigration proceedings, which are
classified as civil rather than criminal’’); Akande v. Warden, Corrigan Cor-
rectional Institution, United States District Court, Docket No. 3:08-CV-882
(AWT) 2009 WL 3838836 (D. Conn. November 16, 2009) (‘‘[t]he right to a
speedy trial . . . applies to an accused in a criminal case and does not
apply to litigants in civil actions’’).