Roberts v. Caton

• Decision Date: 02 February 1993
• Docket Number: No. 14534,14534
• Citation: 619 A.2d 844,224 Conn. 483
• Court: Connecticut Supreme Court
• Parties: Pamela ROBERTS v. Alex CATON.

Page 844

619 A.2d 844

224 Conn. 483

Pamela ROBERTS v. Alex CATON.

No. 14534.

Supreme Court of Connecticut.

Argued Nov. 4, 1992.

Decided Feb. 2, 1993.

Sandra P. Lax, with whom, on the brief, was John Bryk, Bridgeport, for appellant (defendant).

Ellen Plasil, Danbury, for the appellee (plaintiff).

Before PETERS, C.J., and CALLAHAN, BORDEN, NORCOTT and KATZ, JJ.

NORCOTT, Associate Justice.

The dispositive issue in this appeal is whether an amendment to General Statutes § 52-577d, which extends the statute of limitations for a civil action for damages caused by sexual assault of a minor, may be retroactively applied. The plaintiff, Pamela Roberts, brought a civil action for damages against the defendant, Alex Caton, her grandfather, alleging that the defendant had sexually assaulted her from the time she was five years old until she was approximately eleven years old. The trial court granted the plaintiff's application for prejudgment remedies and ordered attachment and garnishment of the defendant's property in the amount of $350,000. The defendant appealed from the order of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199(c). We affirm the judgment of the trial court.

The pleadings and the plaintiff's testimony at a prejudgment remedy hearing establish the following facts for the purposes of this appeal. ¹ The plaintiff was born on October 15, 1968. Between 1973 and 1979, the defendant coerced the plaintiff to engage repeatedly in various sexual activities with him. As a result, the plaintiff suffered temporary physical injury to her genital area as well as temporary and permanent severe psychological and emotional distress. The psychological injury suffered by the plaintiff has manifested itself in acts of self-mutilation, drug abuse, severe anxiety anorexia, flashbacks and sleep disturbances. Since 1990, the plaintiff has received psychotherapy on a weekly basis and has seen a psychiatrist on a bimonthly basis to receive medication to alleviate anxiety. The plaintiff's therapist testified that the plaintiff's symptoms were caused by the defendant's sexual abuse of her and that the plaintiff would require at least ten years of intensive therapy to achieve an acceptable state of mental health.

After testimony had been presented, the defendant argued that probable cause for the prejudgment remedy ² could not be established because the statute of limitations applicable to the plaintiff's action, General Statutes § 52-577d, had already expired. The plaintiff countered that the applicable statute of limitations at the time the plaintiff's application for prejudgment remedies was filed was § 52-577d as amended by No. 91-240 of the 1991 Public Acts, which extended the time period within which actions arising out of sexual abuse of minors may be brought from two years to seventeen years after the minor attains majority. The plaintiff argued, therefore, that probable cause could not be defeated on that ground. ³ The trial court declined to address the applicability of the amended statute of limitations because it considered the issue to have been raised prematurely. ⁴ The trial court found that probable cause existed to sustain the validity of the claim and entered an order permitting the plaintiff to attach and garnish the defendant's property in the amount of $350,000.

The defendant claims that, because the statute of limitations had already expired, the trial court improperly found that there was probable cause to enter a prejudgment remedy order. The defendant's arguments center on whether § 52-577d as amended by No. 91-240 of the 1991 Public Acts (hereinafter § 52-577d as amended) may be applied retroactively to the plaintiff's claim for damages relating to acts that occurred, at the latest, in 1979. ⁵ To summarize, the defendant argues that § 52-577d as amended cannot be applied retroactively to the plaintiff's claim. The defendant argues, therefore, that because no other statute of limitations would permit the action, the trial court improperly concluded that there was probable cause to attach the defendant's property. We conclude that § 52-577d as amended applies retroactively to the plaintiff's claim and therefore we affirm the order of the trial court.

We begin our analysis by restating the general proposition that statutes of limitation are presumed to apply retroactively. See Moore v. McNamara, 201 Conn. 16, 22, 513 A.2d 660 (1986); Andrulat v. Brook Hollow Associates, 176 Conn. 409, 412-13, 407 A.2d 1017 (1979); Jones Destruction, Inc. v. Upjohn, 161 Conn. 191, 195-96, 286 A.2d 308 (1971). Although substantive legislation is not generally applied retroactively absent a clearly expressed legislative intent, legislation that affects only matters of procedure "is presumed to [be] applicable to all actions, whether pending or not, in the absence of any expressed intention to the contrary." Lavieri v. Ulysses, 149 Conn. 396, 401, 180 A.2d 632 (1962); E.M. Loew's Enterprises, Inc. v. International Alliance, 127 Conn. 415, 418, 17 A.2d 525 (1941). Statutes of limitation are generally considered to be procedural, " 'especially where the statute contains only a limitation as to time with respect to a right of action and does not itself create the right of action....' " (Citation omitted.) Moore v. McNamara, supra, 201 Conn. at 22, 513 A.2d 660; Jones Destruction, Inc. v. Upjohn, supra, 161 Conn. at 195, 286 A.2d 308. Therefore, unless specifically tied to a statutory right of action or unless a contrary legislative intent is expressed, the statute of limitations in effect at the time an action is filed governs the timeliness of the claim. See Andrulat v. Brook Hollow Associates, supra, 176 Conn. at 413, 407 A.2d 1017; Bohun v. Kinasz, 124 Conn. 543, 547, 200 A. 1015 (1938).

The plaintiff attained majority in October, 1986, and she filed this suit in January, 1992. At the time the suit was filed, the governing statute of limitations for a civil action arising out of sexual assault of a minor was § 52-577d as amended, which permits actions to be filed within seventeen years of the minor attaining the age of majority. The statute contains no language that limits the time period in which the limitations period will be effective. Moreover, the legislative history of the statute gives no indication that it was intended to apply prospectively only. Thus, under our ordinary legal presumptions, the plaintiff's action was timely filed. We therefore must now consider whether there is any basis for disregarding this legal presumption.

The defendant argues that § 52-577d as amended cannot be applied retroactively because it creates a substantive change in the law. If a statute gives a right of action that did not exist at common law, the limitations period contained therein is a condition attached to that right; Diamond National Corporation v. Dwelle, 164 Conn. 540, 543, 325 A.2d 259 (1973); and the entire statute is considered substantive rather than procedural. Moore v. McNamara, supra, 201 Conn. at 23, 513 A.2d 660. Also, even statutes that in their terms affect matters of procedure will not be given retroactive construction if they bring about a change in substantive rights. Miano v. Thorne, 218 Conn. 170, 175, 588 A.2d 189 (1991); State v. Lizotte, 200 Conn. 734, 741, 517 A.2d 610 (1986); Sherry H. v. Probate Court, 177 Conn. 93, 101-102, 411 A.2d 931 (1979). Therefore, if § 52-577d as amended gave the plaintiff a right of action or imposed liabilities on the defendant that would not have existed under common law, then the statute created a substantive change in the law and retroactive application would not be warranted. See Moore v. McNamara, supra, 201 Conn. at 23-25, 513 A.2d 660; Sherry H. v. Probate Court, supra.

Substantive rights are those that can be identified as existing between the parties at the time the cause of action accrued. Champagne v. Raybestos-Manhattan, Inc., 212 Conn. 509, 521, 562 A.2d 1100 (1989). "In Connecticut, a cause of action accrues when a plaintiff suffers actionable harm." Id. The defendant contends that § 52-577d as amended imposed new liabilities because it expanded the cause of action for emotional distress, eliminated parental immunity in cases of sexual assault to a minor, and extended the period of limitations by fifteen years. We address each of these arguments in turn.

First, the defendant argues that the language of § 52-577d as amended that provides "no action to recover damages for personal injury to a minor, including emotional distress ... may be brought by such person later than seventeen years from the date such person attains the age of majority" expands the common law right of action by failing to require evidence of physical injury as a result of the emotional distress. At the time § 52-577d was originally enacted, however, the common law did not require physical injury resulting from the emotional distress as a prerequisite to a cause of action for unintentionally or negligently inflicted emotional distress. Morris v. Hartford Courant Co., 200 Conn. 676, 683, 513 A.2d 66 (1986); Montinieri v. Southern New England Telephone Co., 175 Conn. 337, 345, 398 A.2d 1180 (1978); Whelan v. Whelan, 41 Conn.Supp. 519, 522, 588 A.2d 251 (1991); see also W. Prosser & W. Keeton, Torts (5th Ed.1984) § 12, p. 64. Moreover, there is no indication in the legislative history of § 52-577d as amended that the legislature intended to expand in any way the common law cause of action for emotional distress. Therefore, we conclude that this argument of the defendant is without merit.

Second, the defendant argues that because the legislature anticipated that § 52-577d as amended would be used in cases of incest, a statutory exception to the doctrine of parental immunity in tort actions was created. Under this doctrine " 'a parent is not liable civilly to his child for...