Peterson v. Priority Electric, Inc.

• Decision Date: 17 August 2018
• Docket Number: CV175018216S
• Court: Connecticut Superior Court
• Parties: Alyssa PETERSON v. PRIORITY ELECTRIC, INC. et al.

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

No. CV175018216S

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

August 17, 2018

UNPUBLISHED OPINION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]

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]

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...