Shirley Maslak v. Kevin Maslak (2013)

MEMORANDUM OF DECISION

Before the court is the defendant's motion for summary judgment (# 109) on the ground that there is no genuine issue of material fact that the plaintiff's action is barred by the statute of limitations.   For the reasons stated, there is a genuine issue of material fact as to whether the statute of limitations was tolled by the defendant's fraudulent concealment and therefore, the motion for summary judgment will be denied.

I

FACTS

On June 7, 2012, the plaintiff, Shirley Maslak, filed a three-count revised complaint against the defendant, Kevin Maslak.¹  The complaint alleges the following relevant facts.   On or about July 11, 2008, the defendant conspired and caused a fire or explosion to occur on the plaintiff's property, causing damage to the plaintiff's real and personal property.   Count one seeks damages for the lost property.   Counts two and three allege negligent and intentional infliction of emotional distress, respectively.

On June 19, 2012, the defendant filed an answer and special defense, asserting that the plaintiff's claims are barred by the two-year statute of limitations set forth in General Statutes § 52–584.   On March 14, 2013, the defendant filed the present motion for summary judgment, along with a supporting memorandum of law, on the ground that there is no genuine issue of material fact that the plaintiff's claims are barred by the statute of limitations.   On April 17, 2013, the plaintiff filed a reply to the defendant's special defense, asserting that the statute of limitations was tolled by the defendant's fraudulent concealment.   One day later, on April 18, 2013, the plaintiff filed an objection to the motion for summary judgment.   Thereafter, on May 30, 2013, the plaintiff filed an amended reply to the special defense, alleging equitable tolling and fraudulent concealment.   On August 5, 2013, the plaintiff filed a memorandum of law in opposition to the motion for summary judgment along with evidentiary support.   This matter was heard on the August 19, 2013 short calendar.

II

DISCUSSIONASummary Judgment Standard

“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, 985 A.2d 1042 (2010).  “[T]he ‘genuine issue’ aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred ․ A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case.”  (Citation omitted;  internal quotation marks omitted.)  Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).

“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, 938 A.2d 576 (2008).

B

Parties' Arguments

The defendant argues that there is no genuine issue of material fact that the plaintiff's claims are barred by the two-year statute of limitations contained in General Statutes § 52–584, which provides that “[n]o 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 ․ and except that no action may be brought more than three years from the date of the act or omission complained of.”   The defendant asserts that the injury occurred on July 11, 2008, and the plaintiff did not commence this action until March 15, 2012, well beyond the two-year statute of limitations.

In contrast, the plaintiff argues that the action was brought within two years of the defendant's arrest, which occurred on April 13, 2010, and arraignment, which occurred on April 14, 2010.²  According to the plaintiff, it was upon these events when it first became possible for her to acquire or discover actual knowledge of the facts that compromise her causes of action.   The plaintiff argues that the defendant knowingly concealed his conspiracy to commit the fire and explosion in order to avoid a criminal conviction and to delay the plaintiff from bringing a civil action against him.   Thus, the plaintiff contends, the statute of limitations did not begin to run until April 13, 2010, or April 14, 2010, and the action was commenced within two years of either of those dates.

At oral argument, the defendant argued that the plaintiff should not be permitted to rely upon her reply and subsequent amended reply to the defendant's special defense as both pleadings were filed after the motion for summary judgment.

C

Analysis

As an initial matter, this court must address whether the plaintiff's allegations of equitable tolling and fraudulent concealment are properly before the court.  “In order to raise a claim of fraudulent concealment, the party challenging a statute of limitations defense must affirmatively plead it.”   Beckenstein v. Potter & Carrier, Inc., 191 Conn. 150, 163, 464 A.2d 18 (1983);  see Practice Book § 10–57 (“[m]atter in avoidance of affirmative allegations in an answer or counterclaim shall be specially pleaded in the reply”).   A court may refuse to address a plaintiff's tolling argument where the plaintiff did not raise it in her pleadings by way of a reply to the special defense, but rather for the first time in opposition to a motion for summary judgment.  Bellemare v. Wachovia Mortgage Corp., 94 Conn.App. 593, 607, 894 A.2d 335 (2006), aff'd, 284 Conn. 193, 931 A.2d 916 (2007);  see Arteaga v. Waterford, Superior Court, complex litigation docket at Hartford, Docket No. X07–CV–50–14477–S (March 16, 2010, Berger, J.) (49 Conn. L. Rptr. 787) (declining to consider plaintiff's continuing course of conduct argument where it was not asserted in a reply to the defendants' special defense but for the first time in opposition to summary judgment).

In the present case, the defendant's special defense of statute of limitations was filed on June 19, 2012.   Under Practice Book § 10–8, a party has fifteen days to file a reply to a special defense.   The plaintiff was granted an extension of time within which to file a reply to the defendant's special defense.   In her motion for extension of time, the plaintiff requested an extension of thirty days from the conclusion of the scheduled deposition of the defendant, which was noticed for July 20, 2012, within which to file a reply to the special defense.   There is no indication from the parties when, if at all, the defendant's deposition commenced or concluded.   However, on October 18, 2012, the plaintiff filed a motion to substitute Attorney Ebenezer Punderson, Administrator of the Estate of Kevin Maslak, deceased, as the defendant.   The motion asserts that, “[a]t sometime during 2012, defendant Kevin Maslak died.   Plaintiff never received written notice of Kevin Maslak's death.”   On March 14, 2013, the defendant filed the present motion for summary judgment.   The plaintiff filed a reply to the defendant's special defense on April 17, 2013, and an amended reply to the special defense on May 30, 2013.

Although the plaintiff ultimately filed a reply to the defendant's special defense, she did so some six months after becoming aware that the defendant was deceased and one month after the motion for summary judgment was filed.   The plaintiff has not explained why she waited six months after learning of the defendant's death to file a reply and she did not file any additional motions for extension of time.   Nonetheless, our Supreme Court has “previously ․ afforded trial courts discretion to overlook violations of the rules of practice and to review claims brought in violation of those rules as long as the opposing party has not raised a timely objection to the procedural deficiency.”  Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 273, 819 A.2d 773 (2003).   The defendant did not file an objection to the plaintiff's late filing of the reply or an objection to the subsequent amendment, despite the fact that those pleadings were filed in April and May, respectively.   Rather, the defendant made a passing reference to the late filings during oral argument on the motion for summary judgment, which occurred three to four months after the filings.   This court had the reply and amended reply before hearing oral argument on the motion for summary judgment.   Despite the defect, “the plaintiff placed the issue before the court and ․ it is just to reach the claim.”  Bellemare v. Wachovia Mortgage Corp, supra, 94 Conn.App. 607.   Accordingly, this court will address the plaintiff's arguments, set forth in her amended reply to the defendant's special defense as well as her objection to the motion for summary judgment, of equitable tolling and fraudulent concealment.

The parties do not dispute that the plaintiff's claims are governed by General Statutes § 52–577 which provides in relevant part 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,” and General Statutes § 52–584 which provides in relevant part that “[n]o 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 ․ and except that no action may be brought more than three years from the date of the act or omission complained of.”  General Statutes § 52–577 “is a statute of repose in that it sets a fixed limit after which the tortfeasor will not be held liable and in some cases will serve to bar an action before it accrues.”   (Internal quotation marks omitted.)  Rosenfield v. Rogin, Nassau, Caplan, Lassman & Hirtle, LLC, 69 Conn.App. 151, 159, 795 A.2d 572 (2002).   The three-year limitation set forth in General Statutes § 52–584 is “the repose section of the statute of limitations.”  (Internal quotation marks omitted.)   Witt v. St. Vincent's Medical Center, 252 Conn. 363, 369 n.5, 746 A.2d 753 (2000).   However, the plaintiff asserts that the statute of limitations was tolled by General statutes § 52–595, which provides that “[i]f 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.”

“In Martinelli v. Bridgeport Roman Catholic Dioceses, 196 F.3d 409, 427 (2nd Cir.1999) the court held that ‘because the statute provides that, after tolling, the cause of action shall be deemed to accrue ․ at the time when the person entitled to sue thereon first discovers its existence, there plainly can be no effective tolling for a plaintiff who was aware of the existence of his or her cause of action from the time the claim originally accrued ․ [T]he plaintiff must be ignorant of the facts that the defendant has sought to conceal for the statute of limitations to toll.’   This appears to comport with the general law to the effect that:  ‘There can be no concealment which will prevent the running of the statute of limitations where the cause of action is known to the plaintiff or there is a presumption of such knowledge.’  ․ In addition, equitable tolling only permits a plaintiff to avoid the bar of the statute of limitations if despite all due diligence, he is unable to obtain vital information bearing on the existence of his claim ․ When a plaintiff learns of information that would lead to discovery of a cause of action through due diligence, the statute of limitations runs even if there has been fraudulent concealment.”  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Weiner v. Clinton, Superior Court, judicial district of Hartford, Docket No. CV–04–4006045–S (October 19, 2006, Keller, J.), aff'd, 106 Conn.App. 379, 942 A.2d 469 (2008).

To prove fraudulent concealment, the plaintiff must plead and prove that the defendant “(1) had actual awareness, rather than imputed knowledge, of the facts necessary to establish the [plaintiff's] cause of action; ³  (2) intentionally concealed these facts from the [plaintiff];  and (3) concealed the facts for the purpose of obtaining delay on the [plaintiff's] part in filing a complaint on [his] cause of action.”  Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, 281 Conn. 84, 105, 912 A.2d 1019 (2007).  “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.)  Bound Brook Assn v. Norwalk, 198 Conn. 660, 666, 504 A.2d 1047, cert. denied, 479 U.S. 819, 107 S.Ct. 81, 93 L.Ed.2d 36 (1986).

“Fraudulent concealment can exist only if the plaintiff lacked the requisite knowledge pertinent to its cause of action until the time that the applicable limitations period expired.   Thus, a court will not toll the statute of limitations to the extent the plaintiff had actual knowledge of the defendant's wrongdoing and its own injury when they happened, and yet failed to file suit before the limitations period expired.   Nor may the plaintiff rely on the doctrine of fraudulent concealment simply because its knowledge was somewhat delayed or incomplete.   On the contrary, the statutory limitations period begins running as soon as the plaintiff has sufficient actual knowledge to be aware of its claim, even though it lacks some of the details of its cause of action and does not discover the full enormity of the defendant's wrongdoing until later ․ [A] person ․ under Connecticut law must show that it was the concealment by the defendant that led to the plaintiffs' failure to meet the statutory deadline.   A plaintiff trying to rely on the doctrine must show he was prejudiced by a deceptive act of the defendant that kept him from filing his action.”  (Emphasis in original;  internal quotation marks omitted.)   Holliday v. Ludgin, Superior Court, judicial district of Hartford, Docket No. CV–08–5023554–S (October 16, 2009, Domnarski, J.).

Although fraudulent concealment must be proved by the more exacting standard of clear, precise, and unequivocal evidence, the issue on summary judgment is whether there is “probable cause to believe that the test might be satisfied.”  Macellaio v. Newington Police Dept., 145 Conn.App. 426, 433 (2013).  “The issue becomes whether the plaintiff has raised a genuine issue of material fact that his failure to meet the statutory time limit for filing his complaint was due to fraudulent concealment on the part of the defendant.”   Holliday v. Ludgin, supra, Superior Court, Docket No. CV–08–5023554–S.

In the present case, the plaintiff's claim of fraudulent concealment is predicated on the allegation that it was not possible for her to acquire actual knowledge or discover the facts that comprise her causes of action until those facts became known at the defendant's public arraignment on April 14, 2010, because the defendant engaged in a course of “contrived denial of his involvement” in the arson.

In her affidavit, the plaintiff attests that, at the time of the explosion that caused the fire, she did not know who or what caused the fire, and that other fires had occurred in town and she believed that the fire may have been caused by the same person.   The plaintiff avers that she first became aware of the defendant's involvement on April 14, 2010, when he was arraigned on criminal charges.   From July 11, 2008, to April 14, 2010, the defendant actively concealed his involvement through his expressions of sympathy and concern for the plaintiff, his attempts to re-engage the plaintiff in a romantic relationship and his inquiries into the police investigation, including inquiries into whether the police had identified a suspect.   The plaintiff attests that, based on her conduct during prior divorce proceedings with the defendant, the defendant “knew I would not have left him alone for scaring the ‘heck’ out of me by causing an explosion and fire ․ [and] knew I would exercise my civil rights if I discovered he was involved with the fire.”   Finally, the plaintiff attests that the defendant had previously demonstrated his willingness to conceal information from the plaintiff, as demonstrated by his concealment of assets during their divorce proceedings.

The other evidence submitted by the plaintiff reveals the following.   The defendant did conceal assets from the plaintiff during the divorce process and he expressed his concern about the plaintiff exercising her rights in the divorce action.   The defendant staunchly denied any involvement in the arson to his family as well as to the police, although it is not readily clear to this court whether the plaintiff was aware of those denials during the relevant time period.   During the police investigation into the arson, the plaintiff provided the police with receipts from the defendant's business to substantiate her theory that the arson may have been a result of the defendant's attempts to under report cash earnings.   The plaintiff also submitted to this court copies of letters written to her by the defendant, which include expressions of love as well as negative feelings concerning post-judgment motions for contempt in their divorce.

The evidence submitted by the plaintiff also reveals that the information contained in the defendant's arrest warrant application was not disclosed to either the plaintiff or the public prior to the defendant's arraignment on April 14, 2010;  the arrest warrant application details the defendant's involvement in the arson;  and the defendant pled guilty, on February 29, 2012, to being an accessory to committing arson in the first degree.

In Short v. Estate of Jacobus, 212 Ill.App. 77 (1918), the Illinois Appellate Court held that a statute of limitations was not tolled by fraudulent concealment where, immediately after a fire destroyed a barn, the owner knew all the facts tending to support a theory that the defendant had set the fire.   The court held that the mere denial by the defendant and his subsequent alleged admission were insufficient to constitute fraudulent concealment.  Id. The court explained that “within a few days after the fire, plaintiff ․ had knowledge of all the facts which tended to support the theory that [the defendant] had burned the barn, except an actual confession by [the defendant] himself.   There is no conflict in the authorities upon the rule of law that the mere silence of a person liable is not a fraudulent concealment of a cause of action ․ There must be some trick or contrivance or affirmative act intended to exclude suspicion and prevent inquiry.”  (Citations omitted.)  Id. The court further explained that “[t]o deny a fact, or procure another to deny it, is not a positive or an affirmative act;  it is a negation.   That the guilty parties should deny the act averred in the complaint is not calculated to conceal the fact, but rather to awaken the attention of the aggrieved party to its existence, and put him upon inquiry as to its truth;  nor does it tend to avoid inquiry concerning it, but rather to invite it.”  Id.

In the present case, there is no evidence that the defendant expressly denied any involvement in the arson to the plaintiff, or that the plaintiff was aware of the denials made by the defendant to his family and the police.   Nonetheless, the defendant did engage in other affirmative acts towards the plaintiff in, what may have been, an effort to avoid exciting the plaintiff's suspicions as to, and inquiries into, the defendant's involvement in the arson.

As previously noted, “equitable tolling only permits a plaintiff to avoid the bar of the statute of limitations if despite all due diligence, he is unable to obtain vital information bearing on the existence of his claim.”  (Emphasis in original.)  Weiner v. Clinton, supra, Superior Court, Docket No. CV–04–4006045–S.  “Typically, a plaintiff will prove reasonable diligence either by showing that:  (a) the circumstances were such that a reasonable person would not have thought to investigate, or (b) the plaintiff's attempted investigation was thwarted.”  (Internal quotation marks omitted.)  OBG Technical Services, Inc. v. Northrop Grumman Space & Mission Systems Corp., 503 F.Sup.2d 490 (D.Conn.2007).   In In Re Polyurethane Foam Antitrust Litigation, 799 F.Sup.2d 777 (N.D.Ohio 2011), a case dealing with a price-fixing conspiracy, the court noted “a tension between the first two components of the fraudulent concealment test—the plaintiff's ignorance of the cause of action occasioned by the defendant's concealment—and the apparent requirement that an admittedly ignorant plaintiff must at the same time exercise diligence in discovering a concealed [cause of action].   When facts exist that should excite the suspicions of a reasonably diligent person, a plaintiff that fails to make proper inquiries to discover his cause of action will not see the limitations period tolled.   By contrast, when no information, actual or constructive, exists hinting at the fact of [the] plaintiff's injury, the ‘reasonable diligence’ requirement seems limited to denying tolling for careless plaintiffs ․ At bottom, the ‘reasonable diligence’ component of the fraudulent concealment doctrine requires the plaintiff to show ․ that he neither knew nor, in the exercise of due diligence, could reasonably have known of the offense ․ Thus, two paths exist to this showing.  [The][p]laintiff, after receiving information that causes him to inquire into [the] defendant's actions, remains ignorant of his injury despite exercising reasonable diligence;  or the plaintiff receives no hint of his claim, sees no need to actively inquire as to whether the defendant has wronged him, and timely files a claim after facts emerge disclosing his cause of action.”  (Citations omitted;  internal quotation marks omitted.)   In other words, “[i]f a hypothetical reasonably diligent plaintiff would not have been put on inquiry notice, the limitations period is tolled.”  Id.

A “claim of fraudulent concealment cannot rest on no more than an alleged failure to own up to illegal conduct.”  (Internal quotation marks omitted.)   Blue Cross of California v. SmithKline Beecham Clinical Laboratories, Inc., 108 F.Sup.2d 116 (D.Conn.2000).  “It can hardly be imagined that illegal activities would ever be so gratuitously revealed.   Fraudulent concealment implies conduct more affirmatively directed at deflecting litigation ․” (Internal quotation marks omitted.  ) Pocahontas Supreme Coal Co., Inc. v. Bethlehem Steel Corp., 828 F.2d 211 (4th Cir.1987).   However, “[a] defendant may be estopped from asserting a statute of limitations defense if, through fraud, deception or concealment of facts, a [defendant] lulls an injured person ․ into a sense of security so that such person's vigilance is relaxed ․ There are very few facts which diligence cannot discover, but there must be some reason to awaken inquiry and direct diligence in the channel in which it would be successful.”  (Citations omitted;  internal quotation marks omitted.)   Shrey v. Foresman, United States District Court, Docket No. 4:11–CV–1671 (M.D.Pa.2011).

In the present case, the defendant does not provide facts, or even suggestions, concerning the steps, if any, the plaintiff could have taken to discover that the defendant was responsible for the arson prior to his arrest and arraignment.   The defendant did not present any evidence of events that did, or should have, excited the plaintiff's suspicions.   The plaintiff cannot be expected to have conducted her own arson investigation in order to determine the proper party to hold responsible.

The plaintiff, on the other hand, did present evidence that she never received information that would have caused her to inquire into whether the defendant had a role in the arson.   To the contrary, the evidence presented by the plaintiff indicates that, after the arson, the defendant expressed sympathy and concern for the plaintiff, attempted to re-engage the plaintiff in a romantic relationship and inquired into the police investigation, including inquiries into whether the police had identified a suspect.   This evidence raises a genuine issue of material fact as to whether the defendant intentionally concealed his involvement in the arson from the plaintiff and did so for the purpose of obtaining delay on the plaintiff's part in filing a complaint against him.   Thus, the plaintiff has raised a genuine issue of material fact concerning the application of fraudulent concealment doctrine.

The arson occurred on or around July 11, 2008.   Thus, absent tolling, the latest date upon which the plaintiff could have commenced an action against the defendant would have been on or around July 11, 2011.   However, if the statute of limitations was tolled due to the defendant's fraudulent concealment, it remained tolled until April 14, 2010, the date of the defendant's arraignment.   Under those circumstances, the plaintiff's March 15, 2012 commencement of the action would have been timely.

As the plaintiff has raised a genuine issue of material fact as to whether the two-year statute of limitations and three-year statute of repose were tolled by the defendant's fraudulent concealment, the motion for summary judgment is denied.

BY THE COURT,

John W. Pickard

FOOTNOTES

FN1. On November 5, 2012, Attorney Ebenezer Punderson, Administrator of the Estate of Kevin Maslak, deceased, was substituted as the defendant.   Nonetheless, all references to “the defendant” will be to Kevin Maslak..  FN1. On November 5, 2012, Attorney Ebenezer Punderson, Administrator of the Estate of Kevin Maslak, deceased, was substituted as the defendant.   Nonetheless, all references to “the defendant” will be to Kevin Maslak.

FN2. In her memorandum of law, the plaintiff states that the action was commenced on April 10, 2012, which is the date the complaint was filed with the court.   However, “[i]n Connecticut, an action is commenced on the date of service of the writ upon the defendant.”  (Internal quotation marks omitted.)  Hillman v. Greenwich, 217 Conn. 520, 527, 587 A.2d 99 (1991).   The return of service indicates that the defendant was served with process on March 15, 2012..  FN2. In her memorandum of law, the plaintiff states that the action was commenced on April 10, 2012, which is the date the complaint was filed with the court.   However, “[i]n Connecticut, an action is commenced on the date of service of the writ upon the defendant.”  (Internal quotation marks omitted.)  Hillman v. Greenwich, 217 Conn. 520, 527, 587 A.2d 99 (1991).   The return of service indicates that the defendant was served with process on March 15, 2012.

FN3. There is no dispute between the parties that the defendant had actual knowledge of the plaintiff's claim against him..  FN3. There is no dispute between the parties that the defendant had actual knowledge of the plaintiff's claim against him.

Pickard, John W., J.