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Brady v. Bickford

Court of Appeals of Connecticut

February 27, 2018

SHERRI BRADY ET AL.
v.
BONNIE BICKFORD ET AL.

          Argued September 8, 2017

          Michael E. Satti, with whom was Rebecca Malingu-aggio, for the appellants (plaintiffs).

          Michael T. Vitali, for the appellees (defendants).

          Lavine, Elgo and Beach, Js.

          OPINION

          LAVINE, J.

         The claims of emotional distress and defamation at issue in this appeal arise out of a long-running family dispute involving malicious gossip and unsubstantiated allegations of police misconduct that led to two state police internal affairs investigations, two arrests of the same defendant, a protective order, intervention by the Attorney General and the Department of Public Safety, a complaint to the Freedom of Information Commission (commission), and a daughter's refusing further contact with her parents. Following a four day trial to the court, the court concluded that the statements at issue were protected by the litigation privilege and rendered judgment in favor of the defendants. The litigation privilege affords absolute immunity to the speaker and implicates the court's subject matter jurisdiction.[1] We reverse the judgment of the trial court and remand the case with direction to render a judgment of dismissal.

         The plaintiffs, Sherri Brady (Sherri) and James Brady (James), appeal from the judgment of the court rendered in favor of the defendants, Bonnie Bickford and Kenneth Bickford, who are Sherri's parents. On appeal, the plaintiffs claim that the trial court abused its discretion by permitting the defendants to file a motion for summary judgment in contravention of the scheduling order and to assert the litigation privilege to bar the plaintiffs' claims, and improperly concluded that their claims of intentional infliction of emotional distress were barred by the statute of limitations and their claim of intentional infliction of emotional distress was barred under the continuing course of conduct doctrine and by the statute of limitations.

         In its memorandum of decision following trial, which was held in August, 2015, the court, Zemetis, J., made extensive findings of fact pertaining to the plaintiffs' claims. The plaintiffs live in Groton Long Point, are married to one another, and have two children. Sherri is a school teacher; James is a retired state police trooper.[2]The defendants are married to each other and live in Stonington. The parties enjoyed a close relationship until unsubstantiated family gossip led to a state police internal affairs investigation of James in 2000 (2000 investigation). The parties' relationship was further damaged in 2007 when the defendants caused a second state police internal affairs investigation of James to be initiated (2007 investigation). Both investigations found that the allegations of wrongdoing were unsubstantiated.

         The factual history underlying the plaintiffs' appeal begins in the summer of 2000 when the defendants hosted a family gathering. Given that the events unfolded over a period of fifteen years, we set them out in some detail to provide context for the plaintiffs' claims. During the family gathering, one of Sherri's cousins speculated to others that Sherri, who was then pregnant, was the victim of spousal rape. The cousin later repeated her suspicion to a municipal police officer who reported the accusation to the state police, prompting the 2000 investigation. The defendants were interviewed during the 2000 investigation and stated that they too suspected James of spousal abuse. The plaintiffs learned of the 2000 investigation when state police investigators came to their home days after Sherri had given birth. Sherri denied the allegations against James and was distraught. James arrived during the interview and was angered by the allegations. The investigators found that there was no substance to the allegations against James, and the 2000 investigation was closed.

         The court found that the plaintiffs had turned to the defendants for consolation and guidance during the 2000 investigation. The defendants claimed ignorance of the 2000 investigation, despite knowing of it and having offered evidence against James. In 2004, Sherri ‘‘perceived'' troubling behavior on the part of the defendants, particularly Kenneth Bickford's consumption of alcohol, when they were babysitting her children. She tried to craft a solution but eventually determined that it was best to sever the plaintiffs' relationship with Kenneth Bickford. She forbade Kenneth Bickford to come to the plaintiffs' home and formalized her decision in a certified letter to him. The defendants did not accept Sherri's decision. On Halloween, 2005, the defendants drove by the plaintiffs' home, which disturbed Sherri, and she asked James to complain to the Groton Long Point police (police). As a result, the police explained Sherri's certified letter to the defendants and cautioned them to stay away from the plaintiffs' property. Bonnie Bickford, however, went to the plaintiffs' home in December, 2005, which upset Sherri. The plaintiffs reported the incident to the police.

         The court found that the police report regarding the December, 2005 incident stated that James ‘‘requested that Bonnie Bickford be warned to stay off the property. [James] was asked why he did not call when [Bonnie Bickford] was at the property. [James] stated [that Sherri] wished [Bonnie Bickford] not be arrested.'' (Internal quotation marks omitted.) The court found that the police report concerning the December, 2005 incident does not contain a false statement by James, as Bonnie Bickford later alleged.

         Following the December, 2005 incident, Bonnie Bickford went to the police and complained that James mentally and physically abused Sherri. Kenneth Bickford accused James of using his contacts in law enforcement inappropriately. The police investigated the abuse complaints by interviewing Sherri, who denied the accusations of abuse. Although the plaintiffs did not want Bonnie Bickford to be arrested, the police sought a warrant for her arrest and arrested her in April, 2006.

         In March, 2006, the defendants sent Sherri flowers and a birthday card at her place of employment. Sherri purposely had kept her new employment from her parents and felt harassed by their contact. She telephoned the resident state trooper for assistance. Trooper Robert Scavello investigated Sherri's complaint against Bonnie Bickford. As a result of the investigation, Bonnie Bickford was arrested again.

         The court also found that in the fall of 2006, the defendants learned for the first time that the accusations of spousal rape of Sherri's cousin were the basis of the 2000 investigation. The defendants contacted the office of then Attorney General Richard Blumenthal and claimed that James' personal and professional misconduct needed to be investigated. In January, 2007, they met with Jeffrey Meyers, an investigator from Blumenthal's office. They suggested that the 2000 investigation was inadequate or a cover-up. Blumenthal directed the Department of Public Safety (department) to conduct another investigation of James. Although none of the defendants' allegations concerned James' duties as a state trooper, the allegation that he had influenced investigations to secure Bonnie Bickford's arrests suggested that he had abused his position as a state trooper. Following a second internal affairs investigation, the state police issued a report dated December 19, 2007, concluding that the allegations of wrongdoing on the part of James were ‘‘unfounded.''[3]

         In 2009, the defendants attempted to obtain a copy of the 2007 investigation report, claiming that they needed it to prove to the plaintiffs that they had not initiated the 2000 investigation.[4] The defendants accused James of personal and professional criminal misconduct during the 2007 investigation, in their communications with Blumenthal, in letters written by their legal counsel, and in Bonnie Bickford's testimony at the August 19, 2009 commission hearing. The court found that, as with much of their testimony, the defendants' claimed basis for their actions did not hold up under close examination.

         The department declined to give the defendants a copy of the 2007 investigation report because there was no evidence to support the claims of criminal wrongdoing. Counsel for the department explained to the defendants the statutory basis for the department's refusal to release the report. The defendants, however, appealed to the commission from the department's decision not to release the 2007 investigation report. The commission held a public hearing on August 19, 2009, to determine whether the 2007 investigation report was subject to disclosure. At the hearing, Bonnie Bickford testified that she filed a complaint against James on the ground that he had used his position as a state trooper to have her arrested. The commission dismissed the defendants' complaint on February 24, 2010.[5]

         The plaintiffs commenced the present action on January 14, 2011, and filed an amended complaint on August 3, 2011, which sounded in nine counts alleging intentional infliction of emotional distress, negligent infliction of emotional distress, defamation, tortious invasion of privacy, and permanent injunctive relief. The defendants filed an answer in which they denied the material allegations of the amended complaint and alleged generally that the plaintiffs' claims were barred by the statutes of limitations set forth in General Statutes §§ 52-577[6] and 52-584.[7] In response to the plaintiffs' request to revise, on May 23, 2012, the defendants filed revised special defenses alleging in relevant part that ‘‘all tortious acts alleged in counts 1, 3, 4, 5, 6 and 7 to have been committed by the defendants prior to January 14, 2008, are barred by the three year statute of limitations set forth in [§ 52-577] . . . [and] all negligent acts alleged in count 2 to have been committed by the defendants prior to January 14, 2009, are barred by the two year statute of limitations set forth in [§ 52-584].'' On August 10, 2012, the plaintiffs filed a reply to the defendants' special defenses, denying them and alleging that the continuing course of conduct doctrine applied to toll the statutes of limitations. The defendants did not respond to the plaintiffs' reply. The plaintiffs filed a certificate of closed pleadings and claimed the matter for the trial list on December 18, 2012.

         After securing permission from the court to file a motion for summary judgment, the defendants filed the motion on August 20, 2013. Judge Zemetis granted the motion for summary judgment as to counts six through nine of the amended complaint, which alleged invasion of privacy and sought permanent injunctive relief. The court denied the motion for summary judgment as to counts one through five of the amended complaint, which alleged intentional infliction of emotional distress, negligent infliction of emotional distress, and defamation. The case was tried to the court in August, 2015.

         Following the presentation of evidence, the court found that paragraph 5 of count one contains the plaintiffs' allegations of wrongdoing against Bonnie Bickford, which are realleged in subsequent counts. The allegations concern Bonnie Bickford's tortious acts in two time periods: acts that Bonnie Bickford committed between October 31, 2005, and March 15, 2006, subparagraphs (a) to (h) of paragraph 5, and acts committed between January, 2007, and February, 2010, subparagraphs (i) to (m) of paragraph 5. The first set of allegations concerns Bonnie Bickford's interaction with Sherri. The second set concerns her interactions with the attorney general's office, the state police internal affairs division, and the commission regarding criminal acts James allegedly committed and his alleged abuse of his authority and office as a state trooper. The defendants pleaded that some of the allegations were barred by the applicable statute of limitations. In reply, the plaintiffs alleged that the continuing course of conduct doctrine tolled the running of the statutes of limitations because Bonnie Bickford's allegedly tortious conduct continued when she testified before the commission. The defendants did not file a response to the continuing course of conduct reply; that is, they did not allege that Bonnie Bickford's testimony before the commission was protected by the litigation privilege.

         In its memorandum of decision, the court quoted language from our Supreme Court, which noted that the ‘‘purposes of statutes of limitation include finality, repose and avoidance of stale claims and stale evidence.'' (Internal quotation marks omitted.) Flannery v. Singer Asset Finance Co., LLC, 312 Conn. 286, 322, 94 A.3d 553 (2014). It found that the plaintiffs had served the present action on the defendants on January 14, 2011, and that the acts or omissions complained of that had occurred before January 14, 2008, were, absent a tolling of the limitations period, barred as untimely.

         The plaintiffs had argued that the limitations period was tolled by the defendants' continuing course of conduct, some of which occurred within three years of January 14, 2008, such as the March 24, 2009 correspondence from the defendants' lawyer to the department seeking a copy of the 2007 investigation report, the defendants' May 4, 2009 complaint to the commission seeking a copy of the 2007 investigation report, Bonnie Bickford's testimony at the August 19, 2009 commission hearing, and the February 24, 2010 commission decision. The defendants had contended that all of Bonnie Bickford's post-January 14, 2008 conduct was protected by the litigation privilege or absolute immunity. Because her statements were privileged, the defendants argued, no actionable conduct occurred during the limitation of action period to constitute a continuing course of conduct that tolled the statute of limitations. The court agreed with the defendants.

         The court found that Bonnie Bickford's complaints to the attorney general's office and statements made during the 2007 investigation and during the commission hearing, no matter how offensive, were absolutely privileged and could not support a claim of tortious conduct within the three year statute of limitations. Consequently, the court concluded that the older conduct set out in subparagraphs (a) to (h) of paragraph 5 of count one alleged no conduct within the limitation period, and hence, there was no continuing course of conduct and the plaintiffs' relief was barred by the statute of limitations. The court also concluded that absolute immunity and the applicable statute of limitations barred the plaintiffs' claims alleged in counts two through five of the amended complaint, negligent infliction of ...


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