Peterson v. Priority Electric, Inc.

Full title: Alyssa PETERSON v. PRIORITY ELECTRIC, INC. et al.

Court: Superior Court of Connecticut

Date published: Aug 17, 2018

CV175018216S (Conn. Super. Ct. Aug. 17, 2018)

Opinion

CV175018216S

08-17-2018

Alyssa PETERSON v. PRIORITY ELECTRIC, INC. et al.

PETER EMMETT WIESE, JUDGE

UNPUBLISHED OPINION

PETER EMMETT WIESE, JUDGE

I

Procedural History

This action arises from an incident of unauthorized electrical work done on a property. The plaintiff, Alyssa Peterson, is the owner of property located at 87 Harwinton Avenue in Torrington, Connecticut. She alleges that on July 30, 2012, she received a phone call and voicemail from an employee of Connecticut Light & Power (CL & P) regarding the installation of an electricity meter for a new tenant on the second floor of the property. The plaintiff alleges that there was no one in the unit at the time, not new tenant, and that CL & P would not have been able to enter due to the basement being locked. She did not authorize any new work done on the property.

The plaintiff further alleges that over the course of the following months, the plaintiff filed numerous complaints with the Torrington Police and CL & P offices regarding the continued issues of an unauthorized person or people accessing her property. The plaintiff ultimately received an unsigned "power authorization letter" with the name of the defendants Priority Electric, Inc. and Paul Prior.

After numerous additional attempts were made to access her property and further damage to the property, the plaintiff filed a complaint with the Torrington Police Department on April 23, 2013. The plaintiff alleges that the report was not conclusive "due to concealment by the Defendants about any individuals involved and concealment of documentation of who requested the work, who performed the work, proof of payment for the work, and therefore no criminal case could be made against any one person." (Compl. ¶ 29.)

The defendants have filed a motion to dismiss, dated December 4, 2017, on the grounds that the plaintiff’s claims are barred by the applicable statute of limitations. The plaintiff filed an objection to the motion, dated May 29, 2018. The defendants filed a reply, dated June 21, 2018. The matter was heard on the short calendar on June 23, 2018.

II

Discussion

A. Applicable Law- Motion to Dismiss

"[A] motion to dismiss ... properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). "A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) MacDermid, Inc. v. Leonetti, 310 Conn. 616, 626, 79 A.3d 60 (2013). "A court deciding a motion to dismiss must determine not the merits of the claim or even its legal sufficiency, but rather, whether the claim is one that the court has jurisdiction to hear and decide." (Internal quotation marks omitted.) Hinde v. Specialized Education of Connecticut, Inc., 147 Conn.App. 730, 740-41, 84 A.3d 895 (2014).

Ordinarily, a statute of limitations defense "must be specially pleaded and cannot be raised by a [motion to dismiss]." Ross Realty Corp. v. Surkis, 163 Conn. 388, 391, 311 A.2d 74 (1972); see also Practice Book § 10-50. Nevertheless, "[when] ... a specific time limitation is contained within a statute that creates a right of action that did not exist at common law, then the remedy exists only during the prescribed period and not thereafter ... In such cases, the time limitation is not to be treated as an ordinary statute of limitation ... but rather is a limitation on the liability itself, and not of the remedy alone ... [U]nder such circumstances, the time limitation is a substantive and jurisdictional prerequisite, which may be raised [by the court] at any time ... and may not be waived." (Internal quotation marks omitted.) State v. Lombardo Bros. Mason Contractors, Inc., 307 Conn. 412, 444, 54 A.3d 1005 (2012).¹

1 Note that for purposes of determining whether a party brought an action within the applicable statute of limitations, "[i]n Connecticut, an action is commenced when the writ, summons and complaint have been served upon the defendant." Rocco v. Garrison, 268 Conn. 541, 553, 848 A.2d 352 (2004).

B. Analysis

1. CUTPA

General Statutes § 52-110b(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." "It is well settled that in determining whether a practice violates CUTPA [Connecticut courts] have adopted the criteria set out in the cigarette rule by the federal trade commission for determining when a practice is unfair: (1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by the statutes, the common law, or otherwise whether, in other words, it is within at least the penumbra of some common-law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers [competitors or other businessmen] ..." (Internal quotation marks omitted.) Journal Publishing Co. v. Hartford Courant Co., 261 Conn. 673, 695, 804 A.2d 823 (2002). "All three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three ..." (Internal quotation marks omitted.) Id., 695-96.

In the present case, service of process was January 6, 2017. The plaintiff attached to her complaint a letter from CL & P to the plaintiff regarding repairs needed to a meter, a letter from Priority Electric and signed by Paul Prior to CL & P regarding work done on the property, a letter from CL & P to Mr. Alan Bouchard of PURA regarding questions on work done on the property, a handwritten note left with plaintiff, and a Torrington Police Department Incident Report dated April 23, 2013.²

2 "[B]efore a document may be considered by the court [in connection with] a motion for summary judgment, there must be a preliminary showing of [the document’s] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be. The requirement of authentication applies to all types of evidence, including writings ... Conn. Code Evid. § 9-1(a), commentary. Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be." (Internal quotation marks omitted.) Bruno v. Geller, 136 Conn.App. 707, 714-15, 46 A.3d 974, cert. denied, 306 Conn . 905, 52 A.3d 732 (2012). The plaintiff attaches the listed documents to her complaint, dated January 4, 2017, and does not object to their use as unauthenticated documents in her objection to the defendants’ motion to dismiss. The court will review this document with regard to the present motion.

The incident report has a date of October 9, 2013. In it, the reporting officer, Officer Albert, states that he contacted Paul Prior, one of the owners of Priority Electric, on that date and asked for any information regarding the work that was done to the property. Officer Albert reports that a day later, Prior contact him and stated "that he was not able to find any information regarding work done to that address and that it didn’t appear as if any work done had been documented. [Officer Albert] told Prior that [he] has seen a letter, with his name on it, which was sent from Priority Electric to CL & P that stated work had been done to [the property]. Prior did not deny that work had been done to the property because a letter had obviously been sent from his company to CL & P."

Officer Albert also met with the plaintiff on April 23, 2013. The plaintiff stated that she became aware of electrical work that was done on her residence and was able to find out through the Public Utilities Regulatory Authority (PURA) that the defendant Priority Electric, Inc. was hired to work on the electrical panel at the property in August 2012. The plaintiff was given a letter sent from the defendant company to CL & P, which stated that they had done electrical work at the property and authorizing energy to be restored to the second floor apartment of the property.

While the plaintiff argues that she did not have affirming "proof" as to what occurred, she admits that she was aware of the information supplied by the police report in June 2013. (Compl. ¶ 30.) This information caused her to return to PURA and the Connecticut Department of Consumer Protection in June 2013. (Id. )

Connecticut courts have held that General Statutes 42-110g(f) is an "occurrence statute," meaning an action must be brought within three years "after the occurrence of a violation of this chapter." See Flannery v. Singer Asset Finance Co., LLC, 312 Conn. 286, 343, 94 A.3d 553 (2014); Fichera v. Mine Hill Corp., 207 Conn. 204, 212, 514 A.2d 472 (1988). The occurrence of a violation could have occurred on a multitude of dates prior to the filing of this litigation, but by the plaintiff’s own admission, she was aware of the information in the April 23, 2013 police report in June 2013. Even if the plaintiff had learned about the new information on October 9, 2013, the plaintiff’s claims would still fall outside the statute of limitations.

Accordingly, the court finds that the action was filed after three years of the date of discovery of the violation, and the plaintiff’s causes of action are time barred.

2. Fraudulent Concealment

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."

To prove fraudulent concealment, the plaintiff is required to show: "(1) a defendant’s actual awareness, rather than imputed knowledge, of the facts necessary to establish the plaintiffs’ cause of action; (2) that defendant’s intentional concealment of these facts from the plaintiffs; and (3) that defendant’s concealment of the facts for the purpose of obtaining delay on the plaintiffs’ part in filing a complaint on their cause of action." Bartone v. Robert L. Day Co., 232 Conn. 527, 533, 656 A.2d 221 (1995). "Fraud is not to be presumed, but must be strictly proven. The evidence must be clear, precise, and unequivocal." Puro v. Henry, 188 Conn. 301, 309, 449 A.2d 176 (1982).

In the present case, the plaintiff alleges that the defendants fraudulently concealed the information that would allow her to file a criminal action. Under Connecticut law, a "plaintiff’s ignorance of the facts is a necessary element of tolling under [§ 52-595.]" Martinelli v. Bridgeport Roman Catholic Diocesan Corp., 196 F.3d 409, 420 (2d Cir. 1999).³ "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." (Internal quotation marks omitted.) Discover Bank v. Hill, 53 Conn.Supp. 257, 265, 94 A.3d 1287 (2012), aff’d, 150 Conn.App. 164, 93 A.3d 159, cert denied, 312 Conn. 924, 94 A.3d 1203 (2014).

3 Martinelli v. Bridgeport Roman Catholic Diocesan Corp., 196 F.3d 409, 420 (2d Cir. 1999), has been cited favorably by a number of Superior Courts for this proposition. See, e.g., Discover Bank v. Hill, 533 Conn.Supp. 257, 265, 94 A.3d 1287 (2012), aff’d, 150 Conn.App . 164, 93 A.3d 159, cert denied, 312 Conn . 924, 94 A.3d 1203 (2014); Moran v. Hirsch, Superior Court, judicial district of Fairfield, Docket No. CV-08-5019081-S (December 14, 2009, Levin, J.); The Zanker Group, LLC v. Summerville at Litchfield Hills, LLC, Superior Court, judicial district of Waterbury, Complex Litigation Docket, Docket No. X10-CV-04-4010223-S (March 6, 2007, Munro, J.); Ortiz v. Bridgeport Hospital, Superior Court, judicial district of New London, Docket No. CV-547104-S (September 27, 2000, Corradino, J.).

The plaintiff knew of the availability of her cause of action in April 23, 2013 when the Torrington Police Incident Report was made. The plaintiff states in her complaint that "no criminal case could be made against any one person." (Compl. ¶ 29.) Nevertheless, she knew that a potential violation had occurred on that date and that the violation could be the basis of a cause of action.

The plaintiff’s arguments that her cause of action for fraudulent concealment, based on the defendants’ alleged conduct, is unpersuasive. The statute of limitations for the plaintiff’s fraudulent concealment cause of action began to run as of April 23, 2013, when the plaintiff first discovered the potential violation. Accordingly, the court finds that, by that date, the plaintiff knew of her potential cause of action.

III

Conclusion

For the stated reasons, the defendant’s motion to dismiss is granted.

So ordered.