Opinion
No. CV02-0347687 S
November 22, 2004
MEMORANDUM OF DECISION
The matter comes before the court by way of the defendant's Motion for Summary Judgment (#122) dated August 24, 2004, as to Counts One, Three, and Four of the Second Revised Complaint, claiming the action must fail because it is beyond the applicable statutes of limitations. Count Two had been previously stricken by order of the court dated August 29, 2003. The plaintiff asserts that the case falls within the ambit of General Statutes § 52-592(a), otherwise known as the "accidental failure of suit" statute. Both parties filed memoranda of law in support of their respective positions. The court heard argument from both and took the papers on November 8, 2004.
Briefly stated, the facts show the following: A lawsuit was initiated by the plaintiff against the defendant by complaint dated July 29, 1999 and returnable to this court on September 21, 1999 (D.N. CV99-0336710S); defendant filed a Request to Revise dated December 22, 1999; as of February 2002, that issue had not been resolved; the matter appeared on the list of cases in the Docket Management Program for May 3, 2002; the court notice clearly indicated that a Request for Exemption had to be filed no later than March 22, 2002, and that requests filed thereafter would be denied; that the plaintiff filed a Request for Exemption dated May 1, 2002; the matter was dismissed by the court on May 3, 2002, for failure to prosecute with due diligence, and judgment entered pursuant to Practice Book § 14-3; on June 11, 2002, the plaintiff moved to open the judgment of dismissal, and on July 1, 2002, the court denied the motion, subject, however, to the plaintiff filing a revised complaint and another motion to open within thirty days, at which time the court indicated that it would grant the motion; plaintiff failed to comply; plaintiff filed a revised motion to open dated July 15, 2002, and once again, by a written notation dated August 6, 2002, the court entered a specific order requiring a revision of the complaint under the same conditions as before; again the plaintiff failed to comply; the plaintiff filed a second revised motion to open dated August 19, 2002; the motion was denied by the court on October 22, 2002; the plaintiff initiated the present action by writ returnable December 17, 2002.
The questions presented to the court are as follows.
(1) Under all the facts and circumstances of this case, was the disciplinary dismissal of the case, pursuant to Practice Book § 14-3, a "matter of form" so as to fall within the ambit of General Statutes § 52-592(a); and
(2) Is the suit barred by the applicable statutes of limitation?
DISCUSSION
"[S]ummary judgment shall be rendered forthwith if the 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 . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. Practice Book [§ 17-49]." (Citations omitted.) Appleton v. Board of Education, 254 Conn. 205, 209 (2000).
General Statutes § 52-592(a) provides in relevant part that, "[i]f any action, commenced within the time limited by law, has failed one or more times to be tried on its merits . . . or the action has been otherwise avoided or defeated by the death of a party or for any matter of form . . . 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." There is no argument that the original action was commenced within the time limited by law; that the original action was administratively dismissed; and that a new action was commenced within one year of the administrative dismissal of the original action.
Historically, the courts have viewed the accidental failure of suit statute as being remedial in nature and, therefore, to be liberally construed. However, at the same time, the courts have held that caseflow management is also an important court function. In Ruddock v. Burrowes, 243 Conn. 569 (1998), the Connecticut Supreme Court had the opportunity to address these competing principles, in a case where the trial court had administratively dismissed the matter due to the failure of counsel to attend a scheduled pretrial conference. The action of the trial court was upheld by the Appellate Court. In reversing and remanding the case, the Supreme Court directed the Appellate Court to, in turn, remand the matter to the trial court, "for further factual findings to determine the circumstances of the plaintiff's claimed justification for nonappearance at the pretrial conference." In other words, the court was looking for a "proper accommodation" or balance based upon all the facts and circumstances the case.
In reaching this conclusion, citing Lacasse v. Burns, 214 Conn. 464, 473-74 (1990), the Supreme Court recognized the fact that all acts resulting in a disciplinary or administrative dismissal do not rise to the level of, "misconduct so egregious as to bar recourse to § 52-592." However, if he wishes to avail himself of the benefit of the statute, the burden is upon the plaintiff to make a, "factual showing that the prior dismissal was a `matter of form' in the sense that the plaintiff's noncompliance with a court order occurred in circumstances such as a mistake, inadvertence or excusable neglect." Ruddock, supra at 576-77.
In considering the evidence in this case, reviewing the file, and listening to the argument of counsel, at best, the court could well conclude that the parties had some misunderstanding over the filing of a revised complaint in response to the defendant's request to revise. However, the plaintiff had more than three years to clear the matter up and close the pleadings; instead, he waited in vain for a communication or reclaim that he believed, erroneously as it turns out, would be forthcoming from defendant's counsel. In fact, at the time of the dismissal in May 2002, the case was more than three years old. In addition, plaintiff's counsel, by his own admission, failed to file a timely Request for Exemption once he received notice that the case had appeared on the dormancy list. If that were not enough, in spite of the fact that the objection was untimely, the court nevertheless afforded counsel for the plaintiff the opportunity to open the judgment of dismissal not once but on two separate occasions, on the condition that he comply with a specific court order to file a revised complaint in accordance with the previous request to revise. He failed to do so not once but both times. In fact, after that case was dismissed for the third time, he chose instead to file a new action.
The court finds that, "the plaintiff's diligence did not fall within the reasonable portion of the spectrum of diligence contemplated by [Practice Book § 14-3]." Skibeck v. Avon, 24 Conn.App. 239, 242 (1991). Therefore, he has clearly failed to meet his burden under the balancing test set forth by the Connecticut Supreme Court in Ruddock. Accordingly, under all the facts and circumstances, the court finds that the dismissal of the plaintiff's original case was not a "matter of form" within the meaning of General Statutes § 52-592(a). This court finds support for its decision in two recent Appellate Court cases, namely: Gillum v. Yale University, 62 Conn.App. 775 (2001), and Pepitone v. Serman, 69 Conn.App. 614 (2002). The court specifically distinguishes the present case from Stevenson v. Peerless Industries, Inc., 72 Conn.App. 601 (2002), on the facts.
The acts complained of by the plaintiff occurred on or about October 26, 1998, and sound in both tort (Counts One and Three) and negligence (Count Four). The controlling statute of limitations for tort is General Statutes § 52-577, which states that: "No action founded upon tort shall be brought but within three years from the date of the act or omission complained of." The controlling statute of limitations for negligence is General Statutes § 52-584, which states in pertinent part that, "[n]o action to recover damages for injury to the person, or to the real or personal property, caused by negligence, or by reckless or wanton misconduct . . . shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of . . ." The present action was commenced with service of process on November 12, 2002, well beyond the applicable statutory limitations, absent the protection of General Statutes § 52-592(a). Accordingly, the defendant's motion for summary judgment should be granted. Pintavalle v. Valkanos, 216 Conn. 412, 419 (1990); Davis v. Family Dollar Store, CT Page 17673 78 Conn.App. 235, 241 (2003).
ORDER
For the foregoing reasons, the Motion for Summary Judgment (# 122) dated August 24, 2004 is HEREBY GRANTED, and judgment shall enter in favor of the defendant herein on Counts One, Three, and Four of the Complaint.
THE COURT
SHAY, J.