Robert W. Depretis et al. v. Michael D. Lynch et al. (2010)

MEMORANDUM OF DECISION

This is an action for defamation and tortious interference with business expectancy.   The defendant, Michael Lynch, has filed a motion for summary judgment (# 134) based upon the statute of limitations.   The motion is supported by an affidavit from Mr. Lynch.   The plaintiffs, Robert W. DePretis, Jackson Hill Road, Sharon, CT. and Jackson Hill Road, Sharon, Ct. Number Two, LLC, have objected to the motion and have filed an affidavit of Mr. DePretis and a portion of a deposition of Mr. Lynch.   For the reasons given, the motion must be granted.

This action arises from Emails sent by Mr. Lynch on February 27, 2005, June 24, 2005 and October 3, 2007.   Mr. Lynch was part of an organization known as Sharon Association which had been established to oppose Mr. DePretis' development plans for his property.   These Emails allegedly contain defamatory statements about Mr. DePretis.

This suit was served on the defendants on March 24, 2009.   The initial complaint contained a count of defamation relating to the first Email of February 27, 2005.   It also contained a count of tortious interference with business expectancy based upon the first Email.   The plaintiffs amended their complaint in June 2009 and again in January 2010 to add a second count of defamation relating to the second Email of June 24, 2005.   On May 27, 2010 the plaintiff filed another amended complaint (titled as Second Amended Complaint) to add a third count of defamation relating to the third Email of October 3, 2007.   Therefore, the first, second, third counts of this amended complaint each address a separate Email as defamation.   Each count contains allegations that the defendant concealed the Emails from the plaintiff who did not discover the Emails until later dates:  November 6, 2008 for the first Email, August 21, 2009 for the second and third Emails.   The sixth count sets forth a claim for tortious interference of a business expectancy.   The same dates of discovery are incorporated into this count.

The defendant has filed an answer and special defenses to this Second Amended Complaint.   One special defense alleges that the first and second counts are barred by the two-year statute of limitations contained in C.G.S. § 52-597.   Another special defense alleges that the third count is barred by the two-year statute of in C.G.S. § 52-597.   Another special defense alleges that the sixth count is barred by the three-year statute of limitations in C.G.S. § 52-577.

In their brief in opposition to the motion for summary judgment, the plaintiffs “acknowledge that in order to recover against Lynch, the statute of limitations applicable to Plaintiff's respective causes of action must be tolled pursuant to C.G.S. § 52-595.”   They claim that the determination of whether a claim may be tolled pursuant to § 52-595 is a question of fact about which there is a genuine issue.

“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 moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law.”  (Internal quotation marks omitted.)  Southwick at Milford Condominium Assn., Inc. v. 523 Wheelers Farm Road, Milford, LLC, 294 Conn. 311, 318, 984 A.2d 676 (2009).  “It necessarily follows that it is only [o]nce [a] [movant's] burden in establishing [its] entitlement to summary judgment is met [that] the burden shifts to [a] [nonmovant] to show that a genuine issue of fact exists justifying a trial.”  (Internal quotation marks omitted.)  Himmelstein v. Windsor, 116 Conn.App. 28, 45 n.14, 974 A.2d 820, cert. granted in part by 293 Conn. 927, 980 A.2d 910 (2009).

“[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way ․ [A] summary disposition ․ should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party ․ [A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed.”  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).

§ 52-595 provides:

“Fraudulent concealment of cause of action.   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.”

“To establish that the [defendant] had fraudulently concealed the existence of [her] cause of action and so had tolled the statute of limitations, the [plaintiff] had the burden of proving that the [defendant was] aware of the facts necessary to establish this cause of action ․ and that [he] had intentionally concealed those facts from the [plaintiff].”  (Citations omitted.)  Connell v. Colwell, 214 Conn. 242, 250 (1990).

“To meet this burden, it is not sufficient for the plaintiffs to prove merely that it was more likely than not that the defendants had concealed the cause of action.   Instead, the plaintiffs had to prove fraudulent concealment by the more exacting standard of clear, precise, and unequivocal evidence.   Under our case law, to prove fraudulent concealment, the plaintiffs were required to show;  (1) a defendant's actual awareness, rather than imputed knowledge, of action;  (2) that defendant's intentional concealment of these facts from the plaintiffs;  and (3) that defendant's concealment of the facts for the purpose of obtaining delay on the plaintiff's part in filing a complaint on their cause of action.”  (Citations omitted.)  Bartone v. Robert L. Day Co., 232 Conn. 527, 533 (1995).  “The defendants' actions must have been directed to the very point of obtaining the delay [in filing the action] of which [they] afterward [seek] to take advantage by pleading the statute.”  (Internal quotation marks omitted.   Citations omitted.)  Bound Brook Association v. Norwalk, 198 Conn. 660, 666 (1986).   Based upon the cases law cited above, I agree with the plaintiffs that a determination of whether the concealment statute applies involves the finding of certain facts necessary to support the elements set forth in the statute and case law.

The evidence cited by the plaintiff for the claim that Mr. Lynch's conduct satisfies the elements set forth in the Bartone case is as follows:  1) Mr. Lynch is a lawyer who must have been aware of the requirements of the plaintiffs' claims against him.   2) The first Email and the deposition of Mr. Lynch indicate that Mr. Lynch was trying to limit publication of the Emails in order to prevent the plaintiffs from becoming aware of them and filing a defamation action.

In response to this argument, Mr. Lynch contends that there is no evidence that Mr. Lynch made any effort to conceal the existence of the Emails in order to delay the onset of litigation.   He points out that, absent a fiduciary relationship, satisfaction of the requirements of concealment set forth in § 52-595 requires proof of some affirmative act on the part of the defendant in furtherance of concealment.  Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, 281 Conn. 84, 107-08 (2007).

I agree with the defendant that the plaintiff is asking the court to speculate as to the facts supporting the application of the concealment statute.   There is simply no evidence that Mr. Lynch was aware of the requirements of an action for defamation or of an action for tortious interference.   It would not be reasonable to draw this inference simply because Mr. Lynch is a lawyer who practices in the state of Connecticut.   A license to practice law does mean that the attorney has actual knowledge of every aspect of Connecticut law.   The plaintiff has presented no evidence which might lead to a reasonable inference that Mr. Lynch was familiar with the elements of defamation or tortious interference.

Nor is there any evidence that Mr. Lynch attempted to limit publication of the Emails in order to delay Mr. DePretis in filing an action.   The affidavit of Mr. DePretis and the excerpt of the deposition of Mr. Lynch do not present any evidence that Mr. Lynch sought to conceal a potential cause of action.   All they show is that Mr. Lynch did not send the Emails to Mr. DePretis.   There are many reasons why this would be so other than an attempt to conceal a cause of action.  “While we continue to adhere to the general principle that summary judgment procedure is particularly inappropriate where the inferences which the parties seek to have drawn deal with questions of motive, intent, arid subjective feelings and reactions ․ it remains, nevertheless, incumbent upon the party opposing summary judgment to establish a factual predicate from which it can be determined, as a matter of law, that a genuine issue of material fact exists.”  (Citations omitted.   Internal quotation marks omitted.)  Connell v. Colwell, 214 Conn. 242, 251 (1990).

In summary, I agree with the plaintiffs that the determination of whether these four causes of action were tolled pursuant to § 52-595 involves the determination of facts.   But, I disagree with the plaintiffs they have raised a genuine issue of material fact concerning the application of the statute.   The plaintiffs have the burden of presenting some evidence on that issue.   They have presented none.   For this reason, summary judgment is granted on the special defenses raising the concealment statute to prevent the running of the two statute of limitations which otherwise bar the causes of action set forth in the first, second, third and sixth counts of the plaintiffs' Second Amended Complaint.

BY ORDER OF THE COURT

Pickard, J.

Pickard, John W., J.