Opinion
UWYCV166030436S
12-15-2016
Luis Corredor v. Joao Goncalves et al
Filed December 20, 2016
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #105
Barbara Brazzel-Massaro, J.
I. INTRODUCTION
This plaintiff filed a complaint on March 29, 2016 naming as defendant Joao Goncalves and Maria Goncalves. The defendants have filed an answer and special defenses claiming in the second special defense that the complaint is time barred pursuant to Connecticut General Statutes § 52-584. On June 20, 2016, the defendants filed a motion for summary judgment with supporting memorandum. On July 21, 2016, the plaintiff submitted a memorandum in opposition to the motion with supporting documents. The defendants filed a reply on August 2, 2016. Argument was heard at the short calendar on August 22, 2016.
The plaintiff filed the following documents in support of the opposition: 1) a letter, dated February 25, 2014, in which the plaintiff notifies the defendants of the plaintiff's alleged injury; 2) a letter, dated January 14, 2016, from Antonio Nunes, an attorney, to State Marshal Roland Mailloux; 3) a letter, including a copy of the summons and complaint, dated January 28, 2016, from Nunes to the defendants' insurance company, American Modern Home Insurance Company; and 4) the signed and sworn affidavit of Mailloux.
II. FACTUAL BACKGROUND
The plaintiff Luis Corredor rents property owned by the defendants Joao Goncalves and Maria Goncalves. The plaintiff alleges that on February 20, 2014, he rented the property and that the ceiling collapsed and struck him, causing various injuries. The plaintiff alleges that the defendants were negligent and failed to exercise reasonable care when the plaintiff showed Joao Goncalves water damage on the ceiling. The plaintiff alleges that the defendants failed to make the necessary repairs which resulted in the ceiling collapse. The plaintiff alleges that the defendants are legally responsible and obligated to pay damages for the injuries he incurred.
On June 13, 2016, the defendants filed an answer to the plaintiff's complaint. In the defendants' response they assert two special defenses. The second special defense alleges that the action brought by the plaintiff is time barred pursuant to General Statutes § 52-584. The plaintiff filed a general denial of the special defenses.
III. DISCUSSION
" Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." (Internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534, 51 A.3d 367 (2012). Summary judgment may be granted where the claim is barred by the statute of limitation . . . Summary judgment is appropriate on statute of limitations grounds when the material facts concerning the statute of limitations [are] not in dispute." (Citation omitted; internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 313, 77 A.3d 726 (2013). " [I]n the context of a motion for summary judgment based on a statute of limitations special defense, a defendant typically meets its initial burden of showing the absence of a genuine issue of material fact by demonstrating that the action had commenced outside of the statutory limitation period . . . When the plaintiff asserts that the limitations period has been tolled by an equitable exception to the statute of limitations, the burden normally shifts to the plaintiff to establish a disputed issue of material fact in avoidance of the statute." (Citation omitted; internal quotation marks omitted.) Cefaratti v. Aranow, 321 Conn. 637, 645-46, 138 A.3d 837 (2016).
The defendants argue that it is undisputed that the plaintiff commenced this action outside the applicable statute of limitations period, and that the defendants are therefore entitled to judgment as a matter of law. The plaintiff counters that there is a genuine issue of material fact as to whether General Statutes § 52-592, entitled " Accidental failure of suit, " applies to this action, and as to whether the action was commenced within the statute of limitations period, and that, therefore, the motion for summary judgment must be denied. The defendants counter that the plaintiff cannot now avail himself of this provision as the plaintiff did not raise § 52-592 in his complaint or his reply to the defendants' special defenses as required by Practice Book § 10-57, and even if the plaintiff could avail himself of the provisions of § 52-592, a prior action was not commenced within the time limited by law, and subsequently § 52-592 does not apply.
Practice Book § 10-57 provides in relevant part: " Matter in avoidance of affirmative allegations in an answer . . . shall be specially pleaded in the reply." " [M]atters in avoidance of the Statute of Limitation need not be pleaded in the complaint but only in response to such a defense properly raised." (Internal quotation marks omitted.) Beckenstein Enterprises-Prestige Park, LLC v. Keller, 115 Conn.App. 680, 690, 974 A.2d 764 (2009). " [Section] 52-592 is considered to be a matter to be pleaded in avoidance of a statute of limitations special defense." Id., 690-91.
In the present case, the plaintiff has not asserted the applicability of § 52-592 in his reply to the defendants' statute of limitation defense, the plaintiff has pleaded only a general denial. The defendants are correct that the plaintiff did not specifically plead § 52-592 in the plaintiff's reply as required by the rules of practice. Therefore, the plaintiff cannot now raise this matter in opposition to the defendants' motion for summary judgment.
General Statute § 52-584 provides in relevant part: " No action to recover damages for injury to the person . . . caused by the negligence, or by reckless or wanton misconduct . . . shall be brought but within two years from the date when the injury is first sustained . . ." General Statutes § 52-592 provides in relevant part: " If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because of insufficient service or return of the writ due to unavoidable accident or the default or neglect of the officer to whom it was commenced . . . the plaintiff . . . may commence a new action . . . for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment.' (Emphasis added.) " Without the existence of a prior action, the plaintiff cannot invoke the protection of § 52-592." Davis v. Family Dollar Store, 78 Conn.App. 235, 240, 826 A.2d 262 (2003), appeal dismissed, 271 Conn. 655, 859 A.2d 25 (2004). " The language of § 52-592 requires a plaintiff to have commenced an original action before the statute can be applied to save a subsequent action." (Emphasis in original.) Id., 239-40. " [T]he term commenced, as used in § 52-592 to describe an initial action that has failed . . . to be tried on its merits because of insufficient service . . . cannot be construed to mean good, complete and sufficient service of process . . ." (Internal quotation marks omitted.) Rocco v. Garrison, 268 Conn. 541, 551, 848 A.2d 352 (2004). Nevertheless, the Supreme Court has stated, " an action is commenced when the writ, summons, and complaint have been served upon the defendant." Id., 553.
In support of their argument, the defendants argue that, " it is beyond dispute that the plaintiff's injury, as alleged in his complaint, occurred on February 20, 2014. It is beyond dispute that the plaintiff commenced this action on March 24, 2016. Because the plaintiff commenced this action more than two years after the date of his injury, this action is time-barred by § 52-584." As previously stated, in support of his argument that the accidental failure of suit statute applies here, the plaintiff has submitted three letters and the signed and sworn affidavit of Mailloux.
In the plaintiff's letter dated February 25, 2014, the plaintiff notified the defendants of the plaintiff's alleged injury that occurred on February 20, 2014. In the letter dated January 14, 2016, the plaintiff's attorney requested Mailloux to serve the defendants with the enclosed writ, summons and complaint. In the letter dated January 28, 2016, the plaintiff's attorney included a " courtesy copy" of the writ, summons and complaint to the defendants' insurance company, American Modern Home Insurance Company. Mailloux states in his affidavit that neither he nor his office received the summons and complaint in January 2016. Accordingly, the undisputed evidence establishes that the defendants were not actually served with process in this case before March 24, 2016.
The plaintiff suggests that the court should not penalize the plaintiff for the United States Postal Service's mistake in failing to deliver the papers to the marshal because Practice Book § 10-13 provides in part that " [s]ervice by mail is compete upon mailing." The plaintiff's reliance on that rule of practice is misplaced. Practice Book 10-12 and 10-13 govern service of pleadings and other papers on parties who have appeared in a civil action. Those sections do not govern the initial commencement of an action, nor do they make any reference to the mailing of process to a state marshal.
The case of Davis v. Family Dollar Store, supra, 78 Conn.App. 235, has facts similar to the present case and is therefore instructive. In Davis, the plaintiff, who was allegedly injured when she slipped and fell on the defendant's premises on August 9, 1997, delivered a writ of summons and complaint to a sheriff on August 6, 1999, however, the sheriff never made service and the writ of summons and complaint were returned to the plaintiff on February 21, 2000. Id., 236. Although the action was served pursuant to § 52-592 after the applicable statute of limitations period had expired, the plaintiff argues that § 52-592 saves her action. Id., 238. The Appellate Court concluded " [b]ecause the writ of summons and complaint were never served on the defendant, the original action did not commence and, therefore, § 52-592 does not authorize another action to be filed to extend any statute of limitation." Id., 241.
In the present action, the defendants assert that the alleged injury occurred on February 20, 2014, and the marshal's return indicates that service of process occurred on March 24, 2016. By demonstrating that there is no genuine of material fact that the plaintiff commenced this action beyond the statute of limitation period, the defendants shifted the burden to the plaintiff to establish a disputed issue of material fact in avoidance of the statute. The plaintiff does not dispute the dates of the alleged injury or service of process but instead argues that General Statute § 52-592 applies and saves this action. Before § 52-592 can apply, the plaintiff must establish the commencement of a prior action. The plaintiff has not presented evidence of a prior action. As in Davis v. Family Dollar Store, supra, 78 Conn.App. 235, the marshal did not serve the papers the first time the plaintiff attempted to commence suit. Therefore, Section 52-592 does not authorize another action to be filed or to extend any statute of limitations. The present action was commenced when the state marshal served the defendants the writ, summons, and complaint on March 24, 2016. As the plaintiff did not commence the action prior to February 20, 2016, the statutory period expired. Therefore, the parties' evidence does not reveal a genuine issue of material fact as to whether the plaintiff commenced the action within the statute of limitations period.
IV. CONCLUSION
For the foregoing reason, the defendants' motion for summary judgment based upon the second special defense is granted.