Watts v. Chittenden

• Decision Date: 30 June 2009
• Docket Number: No. 29626.,29626.
• Citation: 115 Conn.App. 404,972 A.2d 770
• Court: Connecticut Court of Appeals
• Parties: John D. WATTS v. Heather CHITTENDEN.

972 A.2d 770

115 Conn.App. 404

John D. WATTS v. Heather CHITTENDEN.

No. 29626.

Appellate Court of Connecticut.

Argued January 22, 2009.

Decided June 30, 2009.

Michael S. Hillis, New Haven, for the appellant (defendant).

James F. Sullivan, Hartford, for the appellee (plaintiff).

LAVINE, ROBINSON and LAVERY, Js.

ROBINSON, J.

The defendant, Heather Chittenden, appeals from the judgment of the trial court in favor of the plaintiff, John D. Watts, on his claim of intentional infliction of emotional distress. On appeal, the defendant claims that the court improperly (1) found that she failed to prove a statute of limitations defense, (2) found that she failed to prove her privilege defense and (3) awarded lost wages to the plaintiff. We agree with the defendant's first claim and reverse the judgment of the trial court.

The following facts, as found by the court, and procedural history are relevant to our resolution of the defendant's appeal. The plaintiff and the defendant are former husband and wife. They were married in July, 1993; however, the defendant filed a dissolution of marriage action in the Superior Court in March, 1999. During the course of the marriage, the parties had two daughters, born in 1995 and 1996. Following the dissolution, the defendant was granted joint custody and visitation rights. Several days before the dissolution action was filed, the defendant transferred her children to a new pediatrician. Specifically, the children saw Janet Murphy, a nurse practitioner, whom the defendant, also a nurse practitioner, had met while a student in a class taught by Murphy on the subject of sexual molestation of children.

At approximately 10:30 p.m. on June 3, 1999, the defendant called the department of children and families (department) to report that her eldest daughter had been abused sexually by the plaintiff. These allegations were then relayed by the department to the state police. The same report was also made by the defendant to Dawn Torres, a pediatrician. Thereafter, on June 10, 1999, the defendant met with Detective Anthony Buglione and Detective James McGlynn of the state police and reiterated her report that her daughter had been abused sexually by the plaintiff. She gave a five page written statement to the police providing details of her claims. Following this report, the state police contacted the plaintiff and requested pubic hair samples to be used in connection with the criminal investigation. On July 1, 1999, the investigation concluded in the absence of any evidence to suggest that the plaintiff was abusing his daughter.

On July 21, 1999, McGlynn received another report from the department, which was based on new allegations made by the defendant regarding the plaintiff's abuse of their eldest daughter. On August 19, 1999, the defendant told McGlynn that the plaintiff continued to abuse their daughter, and, as a result, the investigation was reopened. During the course of the investigation, the daughter was evaluated by the Yale Child Sexual Abuse Clinic at Yale-New Haven Hospital (clinic). The clinic reported that the daughter indicated repeatedly during interviews that the plaintiff had not abused her. She did relate, however, that the defendant had been touching her vaginal area and saying, "this is what daddy does." The investigation stemming from this complaint was closed on January 11, 2000.

Shortly thereafter, on January 19, 2000, the department received a report from Livia Orsis-Abdo, a physician in Southport, who stated that she had been told by the parties' youngest daughter that the plaintiff had abused her sexually. As a result, the investigation against the plaintiff was reopened once again. The police eventually concluded that there was no evidence to support the allegations against the plaintiff but that there was substantial evidence that the defendant had sexually abused her two daughters while telling them that it "was what daddy [did]."

As a result of the investigation, the defendant was arrested and charged in a substitute information with two counts of risk of injury to a child in violation of General Statutes (Rev. to 1999) § 53-21(1) and (2), false reporting of an incident in violation of General Statutes (Rev. to 1999) § 53a-180 (a)(3)(A), false statement in the second degree in violation of General Statutes § 53a-157b, attempt to commit malicious prosecution in violation of General Statutes §§ 53a-49 (a)(2) and 53-39, and sexual assault in the fourth degree in violation of General Statutes (Rev. to 1999) § 53a-73a (a)(1). On April 11, 2002, the defendant pleaded guilty, as a part of a plea agreement, to falsely reporting an incident and attempt to commit malicious prosecution. In the statement of facts read into the record by the prosecutor, the defendant acknowledged that the allegations of sexual abuse asserted against the plaintiff were false and that the defendant made the false reports in an effort to have the plaintiff arrested. On May 30, 2002, the defendant was sentenced to a term of one year incarceration, execution suspended and three years probation on each count.

Following her guilty plea on April 11, 2002, the defendant made repeated accusations to family therapists regarding the plaintiff's continuing sexual abuse of his daughters. Specifically, in 2004, she told Nina Rossamondo, a family therapist, that the plaintiff had abused sexually one or more of his children. In May, 2006, she also told Peter Kossef, a family therapist, that the plaintiff had molested the eldest daughter at least once.

On August 29, 2005, the plaintiff filed a one count complaint sounding in intentional infliction of emotional distress. The defendant filed an answer on October 20, 2005, in which she asserted as a special defense that the action was time barred under the statute of limitations. The plaintiff filed a reply, denying this special defense on May 22, 2006. On June 11, 2007, the plaintiff sought, and was granted, request for leave to amend his complaint to conform the pleadings to the proof by asserting the specific manner in which the defendant's tortious conduct continued to 2006. Subsequently, the defendant amended her special defenses on September 20, 2007, to assert that the statements she made were privileged and that the claims were barred by the statute of limitations. The plaintiff filed a general denial to the defendant's amended special defenses on October 31, 2007.

A trial before the court was conducted on May 1 and 2, June 11 and September 20, 2007. The court found in favor of the plaintiff on January 25, 2008, and the defendant then filed the present appeal on February 13, 2008. Additional facts will be set forth as necessary.

I

The defendant first argues that the court improperly concluded that the plaintiff's claim was not time barred. Specifically, she maintains that the plaintiff did not submit any evidence of actionable conduct within the period of time prescribed to bring a claim for intentional infliction of emotional distress. Additionally, the defendant argues that the continuing course of conduct doctrine does not serve to toll the applicable statute of limitations because it was not pleaded properly in avoidance and does not have a place in the factual context of this case.

We begin our analysis by setting forth the relevant standard of review and legal principles. "The question of whether a party's claim is barred by the statute of limitations is a question of law, which this court reviews de novo." Giulietti v. Giulietti, 65 Conn.App. 813, 833, 784 A.2d 905, cert. denied, 258 Conn. 946, 947, 788 A.2d 95, 96, 97 (2001). Here, the plaintiff's claim is governed by the tort statute of limitations set forth in General Statutes § 52-577. "Section 52-577 is a statute of repose in that it sets a fixed limit after which the tortfeasor will not be held liable and in some cases will serve to bar an action before it accrues.... General Statutes § 52-577 provides: No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of. This court has determined that [§ ] 52-577 is an occurrence statute, meaning that the time period within which a plaintiff must commence an action begins to run at the moment the act or omission complained of occurs.... Moreover, our Supreme Court has stated that [i]n construing our general tort statute of limitations, General Statutes § 52-577, which allows an action to be brought within three years from the date of the act or omission complained of ... the history of th[e] legislative choice of language precludes any construction thereof delaying the start of the limitation period until the cause of action has accrued or the injury has occurred.... The three year limitation period of § 52-577, therefore, begins with the date of the act or omission complained of, not the date when the plaintiff first discovers an injury." (Citation omitted; internal quotation marks omitted.) LaBow v. Rubin, 95 Conn.App. 454, 468-69, 897 A.2d 136, cert. denied, 280 Conn. 933, 909 A.2d 960 (2006).

It should be noted from the outset that the court's conclusion that the plaintiff's claim was not barred by the statute of limitations was premised on two intertwined bases. First, the court determined that that statute of limitations was tolled by virtue of the defendant's continuing course of conduct and did not begin to run until the defendant admitted that her accusations were false on April 11, 2002; therefore, the plaintiff had until April 11, 2005, to assert his claim. Before this time expired, the court concluded that the occurrence of a second event served to toll the statute of limitations once again. Specifically, the court determined that the statute was tolled by virtue of the defendant's bankruptcy petition, which was filed on April 8, 2005. On appeal, the defendant does not offer any argument related to this second tolling event; rather, the focus of...