Opinion
No. CV07-4024212S
September 13, 2007
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT NO. 109
On January 25, 2007, the pro se plaintiff, Tyrone Grant, commenced this action against he defendants, W. Martyn Philpot, Jr. and Carl Gulliver, in which the asserts claims for legal malpractice, violations of the Connecticut Unfair Trade Practices Act (CUTPA) pursuant to General Statutes § 42-110a et seq., common-law fraud, and concealment of a cause of action pursuant to General Statutes § 52-595. The plaintiff's claims are all apparently premised upon defendant Philpot's conduct in representing the plaintiff in a personal injury action that resulted in a default judgment in his favor in 1995 and a settlement agreement in 1996.
General Statutes § 42-110b(a) provides: "No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce."
General Statutes § 52-595 provides: "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."
On February 23, 2007, Philpot filed a motion to dismiss on the ground that the court lacks subject matter jurisdiction based on the doctrine of collateral estoppel and the applicable statutes of limitation. The plaintiff had brought an action against defendant Philpot in 2003 asserting the same claims, which action was dismissed on the ground that all of the claims asserted therein were barred by the applicable statutes of limitation. See Grant v. Philpot, Jr., Superior Court, judicial district of New Haven, Docket No. CV 03 0475403 (October 20, 2003, Skolnick, J.). Defendant Philpot argued that the present action should also be dismissed pursuant to the applicable limitation periods and the doctrine of collateral estoppel. On April 19, 2007, the court, Lopez, J., denied the motion to dismiss because the arguments raised therein are more properly raised in a motion for summary judgment. Grant v. Philpot, Jr., Superior Court, judicial district of New Haven, Docket No. CV 07 4024212 (April 19, 2007, Lopez, J.).
Presently before this court is the motion for summary judgment filed by defendant Philpot on May 16, 2007, along with a memorandum of law and documentary evidence. In his brief and during oral argument, the defendant asserts substantially the same arguments that he asserted in his motion to dismiss. On May 24, 2007, defendant Gulliver filed a motion (#110) to which the plaintiff has not objected, stating that he "joins co-defendant, W. Martyn Philpot, Jr., in his Motion for Summary Judgment . . ." The plaintiff filed his memorandum in opposition to the Motion for Summary Judgment on May 29, 2007. Therefore, absent objection, and in order to preserve judicial economy, this court considers the Motion for Summary Judgment on behalf of both defendants.
Although uncertified copies of documentary evidence, such as the documents submitted by the defendant, are generally inadmissable; see New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005); the plaintiff has not raised that objection. Therefore, the court, in its discretion, considers this evidence in deciding the motion. See Barlow v. Palmer, 96 Conn.App. 88, 91-92, 898 A.2d 835 (2006).
"[L]egal discretion [is] to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice . . . The design of the rules of practice is both to facilitate business and to advance justice . . . Rules are a means to justice, and not an end in themselves . . ." (Citations omitted; internal quotation marks omitted.) Millbrook Owners Assn., Inc. v. Hamilton Standard, 257 Conn. 1, 16, 776 A.2d 1115 (2001). In the interests of judicial economy and avoidance of piecemeal disposition, the court, in its discretion, grants Gulliver permission to join in Philpot's motion; they are henceforth referred to, collectively, as "defendants."
"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.) Grey v. Stamford Health System, Inc., 282 Conn. 745, 750, 924 A.2d 831 (2007).
In their motions for summary judgment the defendants argue that since the court, Skolnick, J., has already determined that the plaintiff's claims are barred by the applicable statutes of limitation, this action is barred. The plaintiff objects. Although he filed a brief and made oral arguments, the specific grounds for his objection are difficult to ascertain. Considering his filings and presentations in the light most favorable to him, the court will deem the plaintiff to be arguing that the defendants are not entitled to summary judgment because: the statutes of limitations should be tolled because he was temporarily incapacitated by a mental disability; and his fraudulent concealment claim should proceed because Attorney Philpot concealed his prior relationship to the New Haven Corporation Counsel's Office from him and concealed his cause of action arising out of the bankruptcy settlement.
The court has reviewed Judge Skolnick's decision in Grant v. Philpot, Jr., supra, Superior Court, Docket No. CV 03 0475403, and agrees with his reasoning and his conclusions. Further, upon a thorough review of the facts alleged in the instant matter, it is apparent that the plaintiff's allegations are premised on conduct that occurred in the course of the defendant's representation of him in connection with his personal injury claim for injuries sustained in a 1992. In 1992 Arnold Ness, an employee of Fountain's Garage, viciously assaulted the plaintiff with a baseball bat. There is no dispute that the plaintiff suffered serious, permanent and severe injury as a result of the assault. Attorney Philpot filed an action against Ness and Fountain's Garage, on behalf of the plaintiff, which resulted in a default judgment in the amount of $950,000.00 entered by the court, Muvley, J., on March 28, 1995. Subsequent to the judgment, Fountain's Garage sought bankruptcy protection. Through negotiations with the Bankruptcy Trustee, the plaintiff agreed to compromise his unsecured claim of $950,000.00, to the amount of $80,000.00. The Bankruptcy Court approved the reorganization plan of Fountain's Garage on November 20, 1996, which included the plaintiff's compromised claim of $80,000.00. Following the approval of the plan, the plaintiff then began to receive monthly installment payments in the amount of $822.40 from Fountain's Garage, which payments ceased on March 8, 2004.
Attorney Philpot's representation of the plaintiff ended in 1999. On February 22, 1999, Attorney Philpot filed a motion to withdraw from Grant v. City of New Haven, et al, CV 96 382068, which motion was granted. Prior to the withdrawal of Attorney Philpot from the case, the plaintiff had filed a grievance against him.
After Attorney Philpot ceased to represent him, the plaintiff filed several other actions, including but not limited to Grant v. H.R. Scott, et al, 02CV02082 (JGM), Grant v. New Haven Corporation Counsel Office, 99 CV1700 (RNC) (dismissed 9/6/01), Grant v. MH Chodos Ins. Agency, 01CV935 (AWT), (dismissed 7/1/02), Grant v. Dabrawski, 01CV935, Grant v. Fountain's Garage, 02CV597 (AWT) (dismissed 6/13/02, appeal dismissed 10/23/02), Grant v. Dabrawski, 02CV1270 (DJS). In one of those cases, Grant v. H.E. Scott, the Federal Magistrate noted that the "district court to whom this case is assigned may consider dismissing the case under 28 USC § 1915(e)(2)(B)(i) as frivolous," referencing the various lawsuits the plaintiff had filed which had been dismissed.
I.
As previously mentioned, the plaintiff commenced this action on January 25, 2007. As such, the plaintiff's present claims are time barred. The plaintiff's CUTPA claims are barred by the three-year limitations period contained in General Statutes § 42-110g(h). His common-law fraud and legal malpractice claims are barred by the three-year limitations period contained in General Statutes § 52-577.
General statutes § 42-110g(f) provides: "An action under this section may not be brought more than three years after the occurrence of a violation of this chapter."
General Statutes § 52-577 provides: "No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of."
The plaintiff seems to suggest that the limitations period should be equitably tolled by the plaintiff's alleged incapacity. In Kirwan v. State, 168 Conn. 498, 503, 363 A.2d 56 (1975), the court recognized in dicta that to toll a limitations period the plaintiff must plead and later prove that he was or should have been adjudicated incompetent.
"Absent an allegation, which must later be proved, that the insane person was or should have been adjudicated incompetent . . . the complaint raises no issue as to the suspension of the operation of the Statute of Limitations." Kirwan, supra at 503.
In the present case, the plaintiff appears to allege that his memory and ability to think effectively was impaired, perhaps by a medication administered to him some time in 1996. But, the plaintiff has not submitted any evidence establishing the influence or effect of the medication. See Ortiz v. Bridgeport Hospital, Superior Court, judicial district of New London, Docket No. CV 547104 (September 27, 2000, Corradino, J.) (28 Conn. L. Rptr. 419). Nor has the plaintiff established or alleged the nature or duration of his incapacitated state, making it impossible to determine the validity of his claim or to calculate the length of time that a limitation would be tolled. Accordingly, his allegations are insufficient, even under Kirwan, to support his claim that the statutes of limitation should be tolled.
Although in dicta the Kirwan court seems to creates a mechanism to toll a statute of imitations if a litigant can establish legal incompetency, in Connecticut, there are no reported cases in which a specific statute of limitations is tolled due to mental incapacity or disability. Given the presumption in competency, under Connecticut law, the burden would be upon the plaintiff to establish the necessary facts of legal incompetency at the pertinent times. See, McLaurin v. Smoron, 62 Conn.App. 367, 771 A.2d, 201 (2001) ("In criminal proceedings, the law presumes that a defendant is competent and places the burden to show otherwise on the party alleging incompetence. See, General Statutes section 54-56d. The courts have followed this presumption of competence in the civil arena. Kirwan v. State, 168 Conn. 498, 503, 363 A.2d 56 (1975) . . . Twichell v. Guite, 53 Conn.App. 42, 48, 51, 728 A.2d 1121 (1999).")
"It is clear that the plaintiff's insanity does not toll the Statute of Limitations, any more than a person's ignorance that a cause of action exists saves him from the operation of limitations." Kirwan, supra at 501-02. Notwithstanding the emotional appeal of the argument that mental infirmity should be a basis to toll statutes of limitation, such is not the law in Connecticut.
The Supreme Court has noted that rigid adherence to the statutes of limitations will, necessarily, lead to harsh results at times. ? . . . [W]e have previously noted the hardship that failure to observe the statute of limitations may impose. See Kirwan v. State, 168 Conn. 498, 501, 363 A.2d 56 (1975); Kennedy v. Johns-Manville Sales Corp. [ 135 Conn., 176, 180, 62 A.2d 771 (1948)]. In the final analysis, the policy of statutes of limitation includes promoting `repose by giving security and stability to human affairs' Much v. Sturm, Ruger Co., 502 F.Sup. 743, 745 (D. Mont. 1980). We have also stated that `it is not the function of this court to pass upon the merits of legislation.' Kerwan v. State, supra. This latter comment is especially pertinent in light of the fact that the legislature has specifically delineated a number of instances where the statute of limitation will be tolled. See Gen. Statutes 52-592 though 52-595." Beckenstein v. Potter Carrier, Inc., 191 Conn. 150, 159-60, 464 A.2d 18 (1983).
II.
Regarding the plaintiff's concealment of a cause of action claim, this cause of action cannot succeed because it, too, is barred by the statutes of limitations and for reasons articulated by Judge Skolnick in Grant v. Philpot, Jr., supra, Superior Court, Docket No. CV 03 0475403.
"An analysis of the facts inescapably leads to the conclusion that the plaintiff cannot meet and has not met his burden of proving fraudulent concealment. The fact that the judgment debtor availed itself of bankruptcy relief was well known to the plaintiff as far back as 1996 and beyond the control of his attorney. Furthermore it is apparent that the plaintiff through his counsel agreed to the reduction in his recoverable damages pursuant to the debtor's plan of reorganization, as evidenced by his assenting to and receipt of monthly payments over a six-year period." Id.
Regarding the plaintiff's claim that defendant Philpot concealed his prior professional relationship with the New Haven Corporation Counsel's Office, whether or not this fact alone would support a fraudulent concealment claim, the plaintiff was apprised of this fact in a letter from the Corporation Counsel's Office, dated September 20, 1999. Therefore, any tolling of other applicable statute(s) of limitation would only be until September 20, 1999.
IV CONCLUSION
The defendant's arguments that the plaintiff cannot legally proceed with this action are meritorious. Many of the issues raised in this lawsuit have been previously litigated and dismissed favorably to the defendants. As far as the court can ascertain all of the claims raised by the plaintiff, whether previously litigated or not, are barred by the applicable statutes of limitation. For these and the foregoing reasons, the defendants' motion for summary judgment is granted.