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Gordon v. Gordon

Superior Court of Connecticut, Judicial District of New Haven, New Haven

August 18, 2015

Alan Gordon
v.
Carol Gordon

Filed Date August 19, 2015

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT

Brian T. Fischer, J.

FACTS

The plaintiff, Alan Gordon, instituted the present action through service of process on the defendant, Carol Gordon, on May 18, 2014. The revised complaint filed on March 12, 2015, alleges three counts of extortion, fraud, and larceny arising out of the parties' divorce on April 18, 2011.

In the extortion count, the plaintiff alleges that the defendant obtained a restraining order against him, then convinced him to break that order by asking him to watch their children while she vacationed in Mexico; he believed the restraining order applied to her, rather than the family residence. The defendant filed a complaint against the plaintiff on March 17, 2011, and an arrest warrant was issued without the plaintiff's knowledge. In order to coerce the plaintiff into signing the separation agreement, the defendant and her attorney, Irving Perlmutter, the defendant in a companion case, told the plaintiff that if he signed the separation agreement, no charges would be brought against him. The plaintiff did so on April 18, 2011, completely against his will. On April 24, 2011, the police arrested the plaintiff for violation of the protective order.

In the fraud count, the plaintiff alleges the defendant abetted her attorney in leading the plaintiff to believe things which were not true. He also alleges that she did so in " taking the steps necessary to have Plaintiff removed from his home" even though she had never called the police before in their twenty-two years of marriage and, despite the plaintiff keeping a " plethora of rifles and hand guns, " had " never mentioned to anyone that she was in any fear of any sort." The plaintiff also alleges that the defendant committed fraud when she filed her financial statement, stating that the family residence was in an irrevocable trust when it was not, that two other residences were worth considerably less than their actual value, and that her " other personal property" had a total value of $4, 700 when the plaintiff paid over $5, 000 for her wedding ring 20 years prior and the house contained a substantial quantity of furniture and shoes.

In the larceny count, the plaintiff alleges that the defendant " refused to return any of the more than forty household items owned by the Plaintiff and purchased many years prior to their marriage."

The defendant moved for summary judgment on March 30, 2015, on the grounds that the statute of limitations for tort actions had expired prior to service of process, that the doctrine of res judicata prevented the plaintiff from relitigating issues which were addressed as part of the divorce case, Gordon v. Gordon, Superior Court, Judicial District of New Haven, Docket No. FA-10-4044068-S (the divorce case), and that the plaintiff was estopped from filing the present action by the order issued in the divorce case enjoining him from making any further filings without the court's permission. In support of this motion, the defendant provided a memorandum in support of the motion and her own affidavit, and requested that the court take judicial notice of the prior history between the parties as stated in Gordon v. Gordon, 148 Conn.App. 59, 84 A.3d 923 (2014), and Gordon v. Gordon, Superior Court, Judicial District of New Haven, Docket No. FA-10-4044068-S. The plaintiff filed a memorandum in opposition, styled a " reply, " on May 18, 2015. The court heard oral argument on May 18, 2015, after which it took the matter on the papers.

DISCUSSION

" Summary judgment shall be rendered forthwith if the pleadings, affidavits and 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." (Citation omitted; internal quotation marks omitted.) Vendrella v. Astriab Family Ltd. Partnership, 311 Conn. 301, 313, 87 A.3d 546 (2014). " Summary judgment should be denied where the affidavits of the moving party do not affirmatively show that there is no genuine issue of fact as to all of the relevant issues of the case . . . [I]f the party moving for summary judgment fails to show that there are no genuine issues of material fact, the nonmoving party may rest on mere allegations or denials contained in his pleadings . . ." (Citations omitted; internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 320-21, 77 A.3d 726 (2013).

" 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, supra, 310 Conn. 304. " [A] defendant typically meets its initial burden of showing the absence of a genuine issue of material fact by demonstrating that the action had commenced outside of the statutory limitation period . . . When the plaintiff asserts that the limitations period has been tolled by an equitable exception to the statute of limitations, the burden normally shifts to the plaintiff to establish a disputed issue of material fact in avoidance of the statute." Romprey v. Safeco Ins. Co. of America, supra, 310 Conn. 321.

" [T]he complaint must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory [on] which it proceeded, and do substantial justice between the parties . . . Our reading of pleadings in a manner that advances substantial justice means that a pleading must be construed reasonably, to contain all that it fairly means, but carries with it the related proposition that it must not be contorted in such a way so as to strain the bounds of rational comprehension." Finkle v. Carroll, 315 Conn. 821, 839 n.16, 110 A.3d 387 (2015).

The defendant argues that the three-year statute of limitations contained in General Statutes § 52-577 applies to all three of the plaintiff's claims. She further states and avers in her affidavit that all of the claims were cognizable on or before April 18, 2011, and she was not served until May 18, 2014. The plaintiff asserts that there is no statute of limitations on a claim of fraud, and that he filed the complaint within the limitations period, but had to wait until his application for a fee waiver was approved so that he could serve the defendant.[1]

The first issue is whether the plaintiff's claims for extortion, larceny, and fraud fall under ยง 52-577. Section 52-577 provides that " [n]o action founded upon a tort shall be brought but within three ...


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