Wayne Cooke v. Anthony Daros (2013)

MEMORANDUM OF DECISION RE MOTION TO STRIKE (No. 104)

I. INTRODUCTION.

The Motion To Strike now before the Court contains two contentions:  (1) that the action is barred by the statute of limitations, Conn. Gen.Stat. § 52–597;  and (2) that the Amended Complaint, alleging defamation, is deficient because “the claim does not specifically set forth the alleged defamatory statement.”   For the reasons set forth below, the Motion must be denied.

II. HISTORY OF THE CASE.

Paragraph 2 of the Amended Complaint alleges that, “On July 21, 2010, Anthony DaRos in a public meeting of the Branford Board of Selectmen, accused [Wayne] Cooke of attempting to bribe Mr. DaRos in an incident that DaRos claimed had occurred in 2006.”

Cooke commenced this action against DaRos by service of process on November 15, 2012.   Cooke is the sole plaintiff, and DaRos is the sole defendant.   Cooke's original complaint consisted of one count alleging defamation.

On December 14, 2012, DaRos filed a Motion to Strike (No. 101) (“First Motion”).   The sole ground of the Motion was that, “the claim against Mr. DaRos was not brought within the statute of limitations as set forth in Connecticut General Statutes § 52–597.”

On January 7, 2013, the First Motion was heard by the Court (Mullins, J.).   Cooke was represented by Attorney David Doyle, and DaRos was represented by Attorney William Clendenen.   A masterpiece of confusion ensued:

ATTY. DOYLE:  Your—Your Honor, both sides are here on Cooke versus DaRos.   There's really not going to be an argument.

THE COURT:  Okay.

ATTY. CLENDENEN:  It's my understanding, your Honor, that the motion can be granted because Attorney Doyle is going to—

ATTY. DOYLE:  We're amending the pleadings.   And I apologize for it even being on the list, we didn't get a ready marking and I didn't think it was going to furnish business for today.   But we're amending the complaint and moving forward.

THE COURT:  Okay.

ATTY. CLENDENEN:  So the Motion to Strike should be granted.

THE COURT:  All right.

ATTY. CLENDENEN:  Thank you, your Honor.

THE COURT:  By agreement?

ATTY DOYLE:  Well, I—

ATTY. CLENDENEN:  He doesn't want to have it by agreement, your Honor.

ATTY. DOYLE:  I—I really wasn't giving a marking, but I'm doing the same thing anyway, the result is the same.   There's going to be an amended complaint within the next X number of days.

THE COURT:  Okay.

Later on the same day, the Court entered the following Order:

ORDER REGARDING:

12/14/2012 101.00 MOTION TO STRIKE

The foregoing, having been considered by the Court, is hereby:

ORDER:  GRANTED

Plaintiff states he will refile complaint.

It does not seem to have occurred to anyone involved in the proceedings that (for reasons explained below) a statute of limitations defense must ordinarily be asserted by a special defense and litigated by a motion for summary judgment.

On January 18, 2013, Cooke filed the Amended Complaint that is the subject of the Motion To Strike now before the Court.   Like the original complaint, the Amended Complaint consists of a single count alleging defamation.   Paragraph 2 of the Amended Complaint (which was also paragraph 2 of the original complaint) is quoted above.   The Amended Complaint adds (in paragraph 5) that, “DaRos continued to advance the idea that Cooke had tried to bribe him in conversations with Branford Town officials through at least November 2011.”

On February 1, 2013, DaRos filed the Motion To Strike (No. 104) (“Second Motion”) now before the Court.   As mentioned, the Second Motion contends both that the statute of limitations has expired and that the Amended Complaint is deficient in not specifically setting forth the alleged defamatory statement.   The Second Motion was argued on May 6, 2013.   Its contentions must now be reviewed in order.

III. THE STATUTE OF LIMITATIONS.

Conn. Gen.Stat. § 52–597 provides that, “No action for libel or slander shall be brought but within two years from the date of the act complained of.”   Since the act complained of in paragraph 2 allegedly occurred on July 21, 2010, and the action was commenced on November 15, 2012, DaRos's contention that the statute of limitations has expired with respect to that act is plainly forceful.

DaRos's central problem at this stage of the proceedings is that, “ordinarily, a claim that an action is barred by the lapse of the statute of limitations must be pleaded as a special defense, not raised by a motion to strike ․ This is because a motion to strike challenges only the legal sufficiency of the complaint and might ․ deprive a plaintiff of an opportunity to plead matters in avoidance of the statute of limitations defense.”  Greco v. United Technologies Corp., 277 Conn. 337, 344–45 n. 12, 890 A.2d 1269 (2006).  (Internal quotation marks, brackets, and citations omitted.)

DaRos argues that he must nevertheless prevail because the January 7, 2013 decision of Mullins, J. constitutes “the law of the case.”   Under the circumstances presented here, this argument is not persuasive.  “A judge is not bound to follow the decisions of another judge made at an earlier stage of the proceedings, and if the same point is again raised he ․ has the same right to reconsider the question as if he ․ had himself ․ made the original decision ․ This principle has been frequently applied to an earlier ruling during the pleading stage of a case.”  Brown & Brown, Inc. v. Blumenthal, 288 Conn. 646, 656, 954 A.2d 816 (2008).

In the singularly confusing context of this case, it is far from clear that “the law of the case” is what DaRos claims it is.   DaRos argues that “the law of the case” is that the statute of limitations has expired on the facts alleged in paragraph 2. Mullins, J., however, never said any such thing.   The phrase “statute of limitations” does not appear in his order, and, indeed, neither that phrase nor a reference to paragraph 2 was ever uttered by anyone in the proceedings before him.   All Mullins, J. did was give Cooke the opportunity to replead.   This jurisprudential background is far too weak a reed to constitute what Cooke now claims to be “the law of the case.”

Cooke has now repleaded in accordance with the order of the Court.   DaRos may well have a viable statute of limitations defense, but that defense must be asserted in the usual way.   DaRos must file a special defense and present his statute of limitations defense in a motion for summary judgment.

IV. THE PLEADING.

DaRos's second contention is that the Amended Complaint “does not specifically set forth the alleged defamatory statement.”   Although this argument appears to assert the traditional rule that defamation charges must be pleaded in haec verba, DaRos did not advance an in haec verba argument at the hearing.   His argument, rather, is that the Amended Complaint fails to state a cause of action for matters occurring within the statute of limitations period.

As previously discussed, however, DaRos's statute of limitations defense must be asserted by a special defense and a motion for summary judgment.   At this point, the Amended Complaint must be construed “broadly and realistically, rather than narrowly and technically.”  Carpenter v. Commissioner of Correction, 274 Conn. 834, 842, 878 A.2d 1088 (2005).  (Internal quotation marks and citation omitted.)   If DaRos's statute of limitations argument is, at least temporarily, set aside, he does not—as far as the Court can discern—dispute the proposition that Paragraph 2 of the Amended Complaint, quoted supra, fairly states a cause of action for defamation.   That fact is sufficient to defeat a motion to strike directed at this one-count complaint.

Under these circumstances, DaRos's argument that the language of the Amended Complaint is deficient is unpersuasive.

V. CONCLUSION.

The Motion to Strike (No. 104) is denied, without prejudice to a motion for summary judgment.   The specific allegations contained in paragraphs 2 and 5 of the Amended Complaint must be attacked by that well-established procedure.

Jon C. Blue

Judge of the Superior Court

Blue, Jon C., J.