Edward Peruta v. Cheryl Valadez (2014)

MEMORANDUM OF DECISION

The complaint in this case alleges that the defendant falsely reported to the Rocky Hill Police Department (police) that the plaintiff stole a truck which she knew the plaintiff had a right to remove from certain premises in that town.   As a result of the defendant's complaint, the plaintiff was arrested on November 2, 2007 and was required to appear in court on November 16, 2007, at which time the charge against him was dismissed.

This action was commenced on December 22, 2010, when the defendant was served with a complaint stating that her knowingly false complaint to the police (1) constituted malicious prosecution of the plaintiff and (2) intentionally inflicted emotional distress upon him.   Because both of the counts of the complaint allege tortious conduct on the plaintiff's part, General Statutes § 52–577 establishes the applicable statute of limitations and provides as follows:  “No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.”

It is evident from a comparison of the date of the alleged torts, November 2, 2007, and the date this action was commenced, December 22, 2010, that the action is barred by the statute of limitations.   The defendant has properly pleaded as a special defense that the plaintiff's claims are untimely because the statute of limitations had run before they were brought.

In the interim between the alleged tortious conduct and the commencement of this action, however, the plaintiff brought a timely action in federal court against not only this defendant but also against the town of Rocky Hill (town), the two police officers who had arrested him and an attorney who had previously represented the defendant (attorney).   He claims that, because this action was brought within one year after the final determination of that federal action, General Statutes § 52–592, the accidental failure of suit statute, saves this action from the effect of the three-year statute of limitations.   Section 52–592 provides:

(a)If any action, commenced within the time limited by law, has failed ․ to be tried on its merits ․ the plaintiff ․ may commence a new action ․ for the same cause within one year after the determination of the original action ․

(d) The provisions of this section shall apply to any action brought to the United States circuit or district court for the District of Connecticut which has been dismissed without trial upon its merits or because of lack of jurisdiction in such court.   If such action is within the jurisdiction of any state court, the time for bringing the action to the state court shall commence from the date of dismissal in the United States court, or, if an appeal or writ of error has been taken from the dismissal, from the final determination of the appeal or writ of error.

Specifically, the plaintiff claims that, although his federal action was dismissed on August 7, 2009 after the grant of summary judgment motions by the town, the police officers and the attorney, the operative date from which his one-year grace period should begin to run is April 29, 2010, when his appeal of the District Court's dismissal was finally determined by the U.S. Court of Appeals for the Second Circuit.   The date of commencement of this action, December 22, 2010, is well within the year allowed to the plaintiff if the date of dismissal in the Circuit Court is used as the starting point.

There is no question but that the causes of action set out in the plaintiff's complaint here are identical to those set out against this defendant in the federal action.   Furthermore, the plain language of § 52–592(d) sets the date of dismissal of his appeal as the start date for the running of the one year the plaintiff had to bring this state court action.   This is so even though the federal court's jurisdiction over this defendant was pendent to the federal claims against the other defendants, which had been disposed of via their summary judgment motions.   Had the plaintiff successfully prosecuted his appeal from the district court's dismissal of his claims, it is likely that the remand would have revived the pendent claims against this defendant.

Since the “original action,” the federal action, was “commenced within the time limited by law” and was “dismissed without trial upon its merits,” § 52–592(d) permits the plaintiff to bring the “same cause” within one year after the “final determination of the appeal” to the circuit court.

Accordingly, the court holds that the plaintiff's complaint in this matter is not barred by the statute of limitations.

The civil caseflow coordinator will notify the defendant and counsel for the plaintiff of the date assigned for the trial of this case.

Joseph M. Shortall

Judge Trial Referee

Shortall, Joseph M., J.T.R.