Silano v. Wheeler

Virginia Silano v. Daniel Wheeler et al

No. CV156049466S

Superior Court of Connecticut, Judicial District of Fairfield, Bridgeport

September 19, 2017

UNPUBLISHED OPINION

MEMORANDUM OF DECISION RE MOTIONS FOR SUMMARY JUDGMENT NOS. 122, 194, 177, 201, AND 192

Barbara N. Bellis, Judge.

FACTS

The plaintiff, Virginia Silano, commenced this action on March 6 2015, against the defendants: Daniel Wheeler a police officer with the Trumbull Police Department, Thomas Chetlen, George Cooney, and William Verespy. The ten-count revised complaint (#173) was filed on February 3, 2016. The plaintiff's allegations stem from two incidents, each of which allegedly resulted in the plaintiff's arrest. In the operative complaint, the plaintiff alleges the following facts.

The first incident occurred on January 10, 2011. On that date the plaintiff called the police after noticing Chetlen standing outside her front door and acting aggressively. Wheeler and another officer came to the plaintiff's home. The plaintiff told the officers that she and Chetlen had been involved in prior confrontations. The next day, January 11 2011, Wheeler informed Chetlen that the plaintiff had threatened to shoot Chetlen should the plaintiff see Chetlen near her home; Chetlen then provided a false statement to Wheeler in which Chetlen claimed that the plaintiff had threatened him directly. On January 26, 2011, Wheeler completed an arrest warrant affidavit charging the plaintiff with threatening and breach of peace arising from the January 10 incident. Wheeler's affidavit, however, contained material omissions and misstatements. The plaintiff was arrested pursuant to this warrant on February 10, 2011.

The second incident occurred on February 8, 2011. On that date, the police responded to a call from Cooney, the president of the Pinewood Lake Association (the association), concerning an incident near the association's clubhouse. While the plaintiff was parked near the association's clubhouse in the course of retrieving her cat, Chetlen approached the plaintiff's vehicle and then ran back into the clubhouse. After Cooney called the police, Chetlen falsely stated that the plaintiff was leaning outside her vehicle with a gun pointed at him. Verespy also provided a statement, saying that he saw someone in a black SUV with something in his or her hand. Moreover, Cooney falsely stated that when he arrived at the clubhouse he found Chetlen and Verespy hiding in a closet and that there was no surveillance footage of the incident concerning the plaintiff. Wheeler arrested the plaintiff without a warrant later that night.

Counts one through six are against Wheeler only. Counts one, two, and three concern the January 10 incident and state a claim for false arrest, negligence, and malicious prosecution, respectively. Counts four, five, and six arise from the February 8 incident and state the same causes of action against Wheeler, in the same order. Counts seven, eight, and nine state claims of malicious prosecution against Verespy, Chetlen, and Cooney, respectively. Count ten alleges civil conspiracy to maliciously prosecute the plaintiff against all the defendants, arising from the February 8 incident.

In the present case, each of the defendants has moved for summary judgment. On August 5, 2015, Wheeler filed a motion for summary judgment (#122). The motion is accompanied by a memorandum of law (#123) and exhibits (#124 and 125). On February 16, 2016, the plaintiff filed a memorandum of law in opposition with attached exhibits (#181, 182, and 183) as well as separately filed exhibits (#146, 147, and 151).^[1] On October 21, 2016, Verespy filed a motion for summary judgment (#194) accompanied by a memorandum of law in support (#195). The plaintiff filed a memorandum of law in opposition (#262 and 263) on April 25, 2017. On May 11, 2017, Verespy filed a supplemental memorandum of law (#272). On February 11, 2016, Chetlen filed a motion for summary judgment (#177). On November 16, 2016, Chetlen filed another motion for summary judgment (#201), with an accompanying memorandum of law (#202). The plaintiff filed a memorandum of law in opposition (#260) on April 17, 2017. Finally, on September 19, 2016, Cooney filed a motion for summary judgment with an attached memorandum of law (#192). On April 17, 2017, the plaintiff filed a memorandum of law in opposition (#261). As the defendants' motions for summary judgment concern overlapping issues and raise similar arguments, the motions are considered together.

DISCUSSION

" Summary judgment is a method of resolving litigation when 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 . . . The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried . . . However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury . . . the moving party for summary judgment is held to a strict standard . . . of demonstrating his entitlement to summary judgment." (Citation omitted; footnote omitted; internal quotation marks omitted.) Grenier v. Commissioner of Transportation 306 Conn. 523, 534-35, 51 A.3d 367 (2012). " Summary judgment in favor of the defendant is properly granted if the defendant in its motion raises at least one legally sufficient defense that would bar the plaintiff's claim and involves no triable issue of fact." (Internal quotation marks omitted.) Serrano v. Burns, 248 Conn. 419, 424, 727 A.2d 1276 (1999).

In their motions and supporting memoranda, the defendants set forth various grounds in support of summary judgment. To recount every argument raised by the defendants and each counter-argument raised by the plaintiff is unnecessary, as each defendant need only present one legally sufficient ground for judgment as a matter of law. Accordingly, the court addresses the issues raised as necessary, considering each claim in turn.

Negligence, Against Wheeler

Wheeler argues that counts two and five, the negligence counts against him, are barred by the statute of limitations set forth in General Statutes § 52-584 because the present case was commenced more than two years from the dates of the plaintiff's arrests. Further, he contends that the savings statute does not operate to spare count five because an action initiated by the plaintiff in 2013^[2] was not dismissed due to an unavoidable mistake. In support, Wheeler offers the return of service from the present case as well as the order issued by the court, Rush, J., dismissing the 2013 action. The plaintiff argues that the savings statute applies to the present case because the 2013 action was dismissed due to the fact that the marshal's service of process was defective, rendering her subsequent attempts to correct the marshal's error superfluous.

" Summary judgment may be granted where the claim is barred by the statute of limitations . . . Summary judgment is appropriate on statute of limitations grounds when the material facts concerning the statute of limitations [are] not in dispute . . ." (Citation omitted; internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 313, 77 A.3d 726 (2013).

General Statutes § 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 . . . 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 . . ."

In the present case, count two of the plaintiff's revised complaint states a claim for negligence against Wheeler arising from her arrest on February 10, 2011. Pursuant to the applicable statute of limitations, the plaintiff had two years to bring this claim. The present case was commenced on March 6, 2015, more than two years later. Count two is therefore untimely and Wheeler is entitled to judgment as a matter of law.

Unlike count two, the disposition of count five depends upon whether the savings statute applies to the present case, because the plaintiff raised a claim for negligence concerning Wheeler's conduct pursuant to the February 8 incident in her 2013 action. General Statutes § 52-592, often referred to as the " savings statute, " extends the statute of limitations by one year for certain actions; it " is designed to prevent a miscarriage of justice if the [plaintiff fails] to get a proper day in court due to the various enumerated procedural problems . . . It was adopted to avoid hardships arising from an unbending enforcement of limitation statutes." (Internal quotation marks omitted.) Davis v. Family Dollar Store, 78 Conn.App. 235, 240, 826 A.2d 262 (2003), appeal dismissed, 271 Conn. 655, 859 A.2d 25 (2004). General Statutes § 52-592 provides in relevant part: " If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because of insufficient service or return of the writ due to unavoidable accident or the default or neglect of the officer to whom it was committed . . . the plaintiff . . . may commence a new action . . . for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment."

The order issued by the court, Rush, J., dismissing the 2013 action states that the plaintiff " attempted to amend the original complaint so as to remedy certain deficiencies in the original service, including the return date, simply by mailing the documents. [General Statutes] § 52-72(a) requires service by certain methods which do not include...