Edward Hill et al. v. Ocwen Financial Corp. et al. (2013)

MEMORANDUM OF DECISION (Motion for Summary Judgment—pleading # 138.00)

Nature of the Proceeding

The plaintiffs, Edward Hill and Robin Hill, allege they and their three children were wrongfully evicted from their Norwalk residence on March 26, 2009.¹  The defendants are various lending and loan servicing companies and their successors, and Connecticut State Marshal Alan Freedman.

The revised complaint alleges that;  (1) plaintiffs were wrongfully evicted even though the Hills had filed for bankruptcy and there was an automatic stay in effect at the time;  (2) their furniture and belongings were loaded on an “open-air-truck” during a heavy snowstorm and were damaged;  (3) the plaintiffs suffered emotional harm;  (4) the defendants displayed reckless indifference to the plaintiffs' legal rights and acted despicably, and (5) the defendants violated the Connecticut Unfair Trade Practices Act Connecticut General Statutes § 42–110a et seq.  (CUTPA).

The revised complaint sets forth five counts directed at all defendants:  negligence, trespass, negligent infliction of emotional harm, “punitive damages” and a violation of CUTPA.

Marshal Freedman moved to strike the revised complaint in its entirety.   The motion was heard on November 19, 2012.   Freedman's motion was extensively briefed.   The plaintiffs filed a one-page objection and subsequently filed a “post hearing memorandum” on November 26, 2012 (to which counsel for Freedman objected).   The Court, Adams, J.T.R., granted the motion to strike as to all counts except the Fourth Count, which count was interpreted as alleging a legally-sufficient claim of recklessness.²

Defendant Freedman subsequently filed the pending motion for summary judgment, claiming that the surviving Fourth Count is barred by the applicable statute of limitations, General Statutes § 52–584.   Defendant submitted a brief in support of his motion.   In the submission in support of the motion, defendant attempted to establish that the actual date of the eviction was February 25, 2010 (see footnote 1), but that regardless of which date is correct, the action is barred by the applicable statute of limitations.

The court heard argument on May 6, 2013.   Plaintiffs did not file any written opposition to the motion, but did argue against the granting of the motion, essentially arguing that although some level of legally-cognizable injury was known as of the date of eviction, the extent and scope of injuries sustained did not become apparent until some (indeterminate) time thereafter.

Standard of Review

“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.”  (Internal quotation marks omitted.)  Sherman v. Ronco, 294 Conn. 548, 553–54 (2010).  “In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact.   The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ․ The courts hold the movant to a strict standard.   To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ․ As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ․ When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ․ It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.   Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17–45].”  (Internal quotation marks omitted.)   Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11 (2008).  “A material fact ․ [is] a fact that will make a difference in the result of the case ․” Hurley v. Heart Physicians P.C. (Internal quotation marks omitted.)   278 Conn. 305, 314 (2006).

“A judge's function when considering a summary judgment motion is not to cull out the weak cases from the herd of lawsuits waiting to be tried;  rather, only if the case is dead on arrival, should the court take the drastic step of administering the last rites by granting summary judgment.”  Mott v. Wal–Mart Stores East, L.P, 139 Conn.App. 618, 631 (2012) (internal quotation marks and citations, omitted).

Discussion

Defendant claims that the surviving claim against him (the Fourth Count, interpreted as sounding in recklessness) is barred by the applicable statute of limitations, § 52–584.   The threshold question is whether that is the appropriate statute of limitations.

Section 52–584 provides, in relevant part:

No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct ․ 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 complained of ․

Relying on the fact that the statute explicitly encompasses reckless conduct, defendant claims that this is the applicable statute of limitations.   At argument, the court inquired of plaintiff as to whether there was any challenge to that statute as being the appropriate one, and plaintiffs did not suggest that it was inappropriate.  Section 52–584 does appear to be the proper standard for timely commencement of an action based on recklessness.  Hill v. Williams, 74 Conn.App. 654, 658 (2003).

In Connecticut, an action is commenced upon service of process on the defendant, Aqleh v. Cadlerock Joint Venture II, L.P., 299 Conn. 84, 92 n.7 (2010).   Defendant Freedman was served on March 30, 2012 (pleading # 102.00).   According to the complaint, the events in question occurred in March of 2009, but attachments to defendant's submission in connection with this motion—and acknowledged probably to be correct by plaintiffs during argument—indicate that the actual events occurred on or about February 25, 2010.

As noted earlier, plaintiffs did not file a written objection.   At argument, plaintiffs did not dispute that they were aware of some level of injury as of the date of eviction (whichever was the correct date), but instead argued that the full extent of injuries was not known until some time later than the eviction.   However, “[t]he fact that the plaintiff's injuries increased in severity following the accident does not delay commencement of the statute of limitations period.   The harm need not have reached its fullest manifestation before the statute begins to run.”  Lindsay v. Pierre, 90 Conn.App. 696, 701 (2005) (internal quotation marks and citation, omitted).

Plaintiffs have not claimed any statutory tolling or extension, e.g. General Statutes § 52–593a (up to 30–day extension of time to serve defendant if process in hands of marshal within applicable statute of limitations), nor have they claimed that the progressive awareness of extent of injuries satisfies any common-law tolling principle, e.g. continuing course of conduct, Targonski v. Clebowitz, 142 Conn.App. 97, 110–11 (2013).

Whether the eviction occurred on or about March 26, 2009, or on or about February 25, 2010, it was more than two years prior to the date of service on defendant Freedman (March 30, 2012), commencing the action.  “Because the plaintiff did not bring suit within two years of discovering the injury, the trial court correctly ruled that the action was barred by the statute of limitations.”  Burns v. Hartford Hospital, 192 Conn. 451, 460 (1984).   This is true whichever date is the correct one for the date of eviction.³

Given the undisputed sequence of events, defendant Freedman's motion for summary judgment, as to the Fourth Count, must be, and hereby is, granted.

POVADATOR, J.

FOOTNOTES

FN1. During argument on May 6, 2013 on this and another motion, counsel for plaintiffs acknowledged that this date probably is incorrect.   Defendant's argument does not depend on which of the proposed dates is accurate, as set forth in the discussion below..  FN1. During argument on May 6, 2013 on this and another motion, counsel for plaintiffs acknowledged that this date probably is incorrect.   Defendant's argument does not depend on which of the proposed dates is accurate, as set forth in the discussion below.

FN2. In setting forth the background of this motion, the court has borrowed extensively from Judge Adam's memorandum of decision..  FN2. In setting forth the background of this motion, the court has borrowed extensively from Judge Adam's memorandum of decision.

FN3. Although it often is said that “[i]n order for a motion for summary judgment to be granted properly, the moving party must demonstrate that it is quite clear what the truth is ․,” Farrell v. Twenty–First Century Insurance Company, 301 Conn. 657, 662 (2011) (internal quotation marks, omitted), in the unusual situation at hand, the uncertainty as to “what the truth is”—the difference in dates—is not material..  FN3. Although it often is said that “[i]n order for a motion for summary judgment to be granted properly, the moving party must demonstrate that it is quite clear what the truth is ․,” Farrell v. Twenty–First Century Insurance Company, 301 Conn. 657, 662 (2011) (internal quotation marks, omitted), in the unusual situation at hand, the uncertainty as to “what the truth is”—the difference in dates—is not material.

Povodator, Kenneth B., J.