Giordano v. Giordano

• Citation: 39 Conn.App. 183,664 A.2d 1136
• Decision Date: 05 September 1995
• Docket Number: No. 12570,12570
• Court: Connecticut Court of Appeals
• Parties: Frank GIORDANO et al. v. Frank P. GIORDANO, Sr.

Page 1136

664 A.2d 1136

39 Conn.App. 183

Frank GIORDANO et al. v. Frank P. GIORDANO, Sr.

No. 12570.

Appellate Court of Connecticut.

Argued May 25, 1995.

Decided Sept. 5, 1995.

Sara R. Martin, Branford, for the appellant (defendant).

Maureen M. Murphy, New Haven, with whom, on the brief, was Janet M. Degnan, Wallingford, for the appellees (plaintiffs).

Before DUPONT, C.J., and LAVERY and LANDAU, JJ.

DUPONT, Chief Judge.

The defendant appeals from the judgment of the trial court granting a prejudgment attachment of his real property in the amount of $225,000. The defendant claims that the attachment was improper because (1) the statute of limitations, General Statutes § 52-577d, ¹ which governs civil actions for damages for injury to a minor as a result of sexual abuse, is unconstitutional, (2) General Statutes § 52-278d, as applied to defendants in tort actions, is unconstitutional, (3) the plaintiffs failed to establish damages with reasonable certainty, and (4) § 52-577d abrogates the right to present the equitable defense of laches. ² We affirm the judgment of the trial court.

Certain facts are relevant to this appeal. The plaintiffs, Frank Giordano and Michelle Giordano, who are siblings, filed a complaint in 1993, alleging six counts of sexual molestation and emotional distress against the defendant, Frank P. Giordano, Sr., their grandfather. The alleged sexual abuse began in 1975, when the plaintiffs were five and seven years old, respectively, and allegedly ceased in 1977, when they informed their grandmother, the defendant's wife, that they were being abused. Accompanying the complaint was an application for a prejudgment remedy dated February 16, 1993, requesting that the defendant's real property be attached in the amount of $750,000. Both plaintiffs submitted affidavits in support of the application for a prejudgment remedy, listing the injuries they allegedly sustained as a result of the defendant's conduct. The defendant filed an objection to the application, challenging the constitutionality of both § 52-278d, ³ which provides for a predeprivation hearing in conjunction with an application for a prejudgment remedy, and § 52-577d, Connecticut's statute of limitations for civil actions for damages for injury to a minor as a result of sexual abuse, sexual exploitation and sexual assault. The defendant also argued that in cases of intentional torts, it is unconstitutional to attach real property without requiring the plaintiffs to post a security bond.

Both plaintiffs testified at the predeprivation hearing. In addition, the court heard testimony from the defendant, and the defendant's son, the plaintiffs' father. Both men denied that the abuse took place. One of the plaintiffs' cousins and their stepsister also testified and claimed that the defendant had also sexually abused them when they were children. The defendant's wife was called as a witness but was unable to testify as a result of a stroke suffered three years earlier. The court also heard expert testimony from a clinical psychologist called as a witness by the plaintiffs. The psychologist had not treated the plaintiffs, but testified about the effects of childhood sexual abuse that extend into adulthood.

Both plaintiffs testified in detail about the sexual abuse they allegedly suffered as children when left in the care of the defendant. Michelle Giordano testified that as a result of the alleged sexual abuse, she had no respect for her body, was promiscuous and had suffered from anorexia and bulimia when she was a teenager. She testified, however, that she did not believe that her ability to work had been affected. Frank Giordano testified that he had experienced mental distress, anxiety and sexual difficulties as a result of the defendant's alleged actions. Both plaintiffs testified that they were then in therapy, and that Michelle Giordano had previously been in therapy with her fiance, during which some of the issues relating to her alleged sexual abuse had been discussed. Both plaintiffs expressed a desire to continue therapy, but neither indicated how much longer they believed they would need therapy.

In its memorandum of decision, filed on June 14, 1993, the trial court concluded that a full adversary hearing on the issue of probable cause provides sufficient protection from the erroneous deprivation of property and that, therefore, the further protection of a security bond was not constitutionally required in this case. ⁴ The court also rejected the defendant's arguments that § 52-577d was unconstitutional and that he had been severely prejudiced by the passage of time. The court found that both plaintiffs had established probable cause that, as a result of sexual abuse by the defendant, they had incurred and would continue to incur expenses for therapy, and that they had also suffered mental distress and anxiety for which they had demonstrated probable cause to sustain their claim for money damages. The court also found that the plaintiff Frank Giordano had established probable cause to sustain his claim for money damages for sexual difficulties that he claimed resulted from the alleged abuse. In accordance with those findings, the court ordered an attachment of the defendant's real property in the amount of $225,000. ⁵ Specifically, the court's order provided that the plaintiff Frank Giordano was allowed an attachment of $150,000 and that Michelle Giordano was allowed an attachment of $75,000.

The defendant sought an articulation of the trial court's decision, which request was denied. The defendant did not seek a motion for review of that denial in this court. Other facts will be discussed as they pertain to each particular issue in this case.

I CONSTITUTIONALITY OF GENERAL STATUTES § 52-577d

We first address the defendant's attack on the constitutionality of § 52-577d. The defendant claims that § 52-577d deprives him of his rights to equal protection and due process under both the state and federal constitutions. The defendant has not provided an independent analysis of his claims under the state constitution, and we therefore limit our review to the rights guaranteed by the federal constitution. State v. Barnes, 232 Conn. 740, 744 n. 4, 657 A.2d 611 (1995).

Before we begin our analysis, we note that "[a] party who challenges the constitutionality of a statute bears the heavy burden of proving its unconstitutionality beyond a reasonable doubt and we indulge in every presumption in favor of the statute's constitutionality." (Internal quotation marks omitted.) Federal Deposit Ins. Co. v. Voll, 38 Conn.App. 198, 203, 660 A.2d 358 (1995); State v. Merdinger, 37 Conn.App. 379, 382, 655 A.2d 1167 (1995). In addition to showing that § 52-577d is unconstitutional beyond a reasonable doubt, the defendant must show that " 'its effect or impact on him adversely affects a constitutionally protected right which he has.' " Society for Savings v. Chestnut Estates, Inc., 176 Conn. 563, 569, 409 A.2d 1020 (1979). Finally, "[w]hile the courts may declare a statute to be unconstitutional, our power to do this should 'be exercised with caution, and in no doubtful case.' " Fair Cadillac-Oldsmobile Isuzu Partnership v. Bailey, 229 Conn. 312, 316, 640 A.2d 101 (1994).

A Equal Protection

The defendant claims that § 52-577d violates his right to equal protection. "The Equal Protection Clause of the Fourteenth Amendment commands that no State shall 'deny to any person within its jurisdiction the equal protection of the laws,' which is essentially a direction that all persons similarly situated should be treated alike." Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439, 105 S.Ct. 3249, 3253, 87 L.Ed.2d 313 (1985); see Franklin v. Berger, 211 Conn. 591, 596, 560 A.2d 444 (1989).

Connecticut courts have held, in accordance with the federal frame of analysis, that state action concerning social and economic regulation, with some exceptions, will survive an equal protection challenge if it satisfies a rational basis test. Daly v. DelPonte, 225 Conn. 499, 513, 624 A.2d 876 (1993). The exceptions relate to state action that invidiously discriminates against a suspect class, such as the physically or mentally disabled, members of a race or gender, or state action that affects a fundamental right. When that occurs, the action passes constitutional muster only if it survives strict scrutiny. Id. If the statute does not involve fundamental rights or suspect classifications, the legislation is constitutional if any difference in treatment is rationally related to a legitimate government interest. G.D. Searle & Co. v. Cohn, 455 U.S. 404, 408, 102 S.Ct. 1137, 1141, 71 L.Ed.2d 250 (1982); Daily v. New Britain Machine Co., 200 Conn. 562, 578, 512 A.2d 893 (1986); Laden v. Warden, 169 Conn. 540, 542-43, 363 A.2d 1063 (1975).

The defendant does not argue that a suspect class has been created. He does argue that § 52-577d has created a special class of plaintiffs who claim damages caused by sexual abuse, sexual exploitation, or sexual assault while they were minors, and that this class unjustifiably enjoys a considerably longer statute of limitations than any other class of injured parties. The plaintiffs construe the defendant's argument to be that a class of persons, namely those accused of sexual crimes against a minor, as opposed to a class of persons who are the victims of sexual abuse, are being denied the equal protection of the law because they are subject to civil liability for a longer period of time than are most other civil defendants. Whether the class created consists of plaintiff victims or defendant abusers, we are not persuaded that § 52-577d violates the equal protection clause.

The relevant inquiry in determining whether legislation satisfies the equal protection clause of the fourteenth amendment to the United States constitution is whether the classification and the inherently disparate treatment resulting...