Opinion
No. CV085017497S
May 28, 2009
MEMORANDUM OF DECISION RE MOTION TO DISMISS #103
I Procedural History
On January 29, 2008, the plaintiff, PMG Land Associates, filed the present three-count complaint against the defendants, Harbour Landing Condominium Association and the association's board of directors: David Potter, Vincent DeLauro and Margareth Butterworth for statutory and common-law vexatious litigation and tortious interference with its business expectancies. Therein, the plaintiff alleges that the defendants prosecuted a prior claim against it for a prescriptive easement and a violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-100b et seq., without probable cause and with malicious intent to vex, harass and annoy the plaintiff. The plaintiff further alleges that all of the defendants' actions in the prior claim were for the purpose of tortiously interfering with its business expectancies, causing the plaintiff significant damages.
On February 20, 2008, the defendants filed a motion to dismiss the present complaint, the third complaint filed by the plaintiff against them, on the ground that the complaint cannot be saved under § 52-592 because it was not timely filed within one year from the dismissal of the prior case on January 2, 2007, and that the previous action was dismissed as a disciplinary dismissal for nonsuit on the ground that the plaintiff failed to revise pleadings.
In response, the plaintiff argues that the motion to dismiss is not the proper procedural vehicle to determine the applicability of the accidental failure of suit statute; that count three, a claim for tortious interference with its business expectancy, is not time-barred by § 52-577 because the conduct of two of the defendants was ongoing through 2005 and 2006; and, that it is within the court's discretion and consistent with the expressed policy of our Supreme Court to adjudicate a case on the merits whenever possible. In addition, the plaintiff's counsel has submitted an affidavit in support of her actions in which she testified that she suffers from severe medical conditions, which caused her failure to comply with scheduling orders and deadlines, all of which resulted in the nonsuit. Further, the plaintiff's counsel maintains that her conduct was not so egregious as to render the savings statute unavailable and that new counsel has been retained and is prepared to adjudicate this case on its merits.
On September 22, 2008, the defendants filed a reply memorandum arguing that the plaintiff's memorandum of law in opposition to their motion was not timely filed and that the plaintiff's objection to using a motion to dismiss should have been brought to the court's attention before seven months had lapsed. The defendants also argue that the plaintiff's claim of tortious interference is barred by the three-year statute of limitations time period in § 52-577 since the plaintiff could have discharged the notice of lis pendens as of May 28, 2004, and lastly, based on the plaintiff's acknowledgment that the first and second counts as to the Harbour Landing Condominium Association, Maradeth Butterworth and Vincent DeLauro was not timely commenced as to those parties, the defendants request the court to dismiss these parties as to those counts.
II ( 1) Is a motion to dismiss the proper vehicle to decide the application of General Statutes § 52-592, the accidental failure of suit statute?
In their reply memorandum, the defendants challenge the plaintiff's memorandum in opposition to their motion to dismiss, based on the plaintiff raising for the first time that the motion to dismiss is not the proper procedure to decide the application of the savings statute § 52-592(a) and that "plaintiff's counsel never indicated that she would not agree to the matter being heard by way of a motion to dismiss."
The accidental failure of suit statute, § 52-592(a) 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 . . . 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." "[A]s a general matter, a motion to dismiss is not the proper procedural instrument for challenging the applicability of § 52-592(a), the proper challenge being by way of a properly pleaded special defense; see Practice Book § 10-50 . . ." Labow v. Labow, 85 Conn.App. 746, 750, 858 A.2d 882 (2004), cert. denied, 273 Conn. 906, 868 A.2d 747 (2005). "To enable a plaintiff to meet the burden of establishing the right to avail himself . . . of [§ 52-592], a plaintiff must be afforded an opportunity to make a factual showing that the prior dismissal was a matter of form . . ." (Internal quotation marks omitted.) Stevenson v. Peerless Industries, Inc., 72 Conn.App. 601, 607, 806 A.2d 567 (2002). A motion to dismiss, however, only allows the court to rule on the facts alleged in the complaint, and, therefore, "a court properly may consider a motion to dismiss in such circumstances where the plaintiff does not object to the use of a motion to dismiss." (Internal quotation marks omitted.) Labow v. Labow, supra, 750.
If the motion to dismiss is not challenged, it is considered an accepted procedural vehicle to attack the savings statute. "[B]ecause the plaintiff never questioned whether a motion to dismiss was the proper procedural vehicle, the trial court properly decided the motion on the record alone." Capers v. Lee, 239 Conn. 265, 269-70 n. 9, 684 A.2d 696 (1996); Henriquez v. Allegre, 68 Conn.App. 238, 241 n. 6, 789 A.2d 1142 (2002) ("a trial court may properly consider a motion to dismiss [a § 52-592 claim] in such circumstances when the plaintiff does not object to the use of the motion to dismiss").
In the present case, the plaintiff filed an opposition to the motion to dismiss seven months following the defendants' motion. During two court appearances, the plaintiff never articulated any objection to the use of a motion to dismiss as the inappropriate procedural vehicle. Moreover, the plaintiff filed its objection, not five days prior to argument, but less than three days, in contravention of Practice Book § 10-31(b).
"A determination of the applicability of § 52-592 depends on the particular nature of the conduct involved." Stevenson v. Peerless Industries, Inc., supra, 72 Conn.App. 607. "Section 52-592 by its plain language, is designed to prevent a miscarriage of justice if the plaintiffs fail to get a proper day in court due to the various enumerated procedural problems . . . Its purpose is to aid the diligent suitor." (Citation omitted; internal quotation marks omitted.) Henriquez v. Allegre, supra, 68 Conn.App. 243-44.
The Supreme Court set forth broad policy goals to guide the courts when deciding whether § 52-592 should be available and applicable. In Ruddock v. Burrowes, 243 Conn. 569, 575, 706 A.2d 967 (1998), the court stated, "[o]n the one hand . . . a long line of cases . . . have held that § 52-592(a) is remedial in nature and, therefore, warrants a broad construction . . . On the other hand . . . decisions also have underscored the importance of trial court caseflow management of crowded dockets. Caseflow management is based upon the premise that it is the responsibility of the court to establish standards for the processing of cases and also, when necessary, to enforce compliance with such standards. [The] judicial system cannot be controlled by the litigants and cases cannot be allowed to drift aimlessly through the system." (Citations omitted; internal quotation marks omitted.) Id., 575.
"The Supreme Court stated that although it is required to construe the statute broadly, given its remedial nature, it should not construe it so broadly as to hamper a trial court's ability to manage its docket by dismissing cases for appropriate transgressions. [ Ruddock v. Burrowes, supra, 243 Conn. 575.] The court concluded that it is appropriate to weigh the egregiousness of the conduct that caused the disciplinary dismissal when determining whether to apply the statute to a particular action. The court noted `[w]hether the statute applies cannot be decided in a factual vacuum. To enable a plaintiff to meet the burden of establishing the right to avail himself or herself of the statute, a plaintiff must be afforded an opportunity 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 mistake, inadvertence or excusable neglect.' Id., 576-77. The court provided additional guidance by explaining that failing to appear at scheduled hearings might constitute egregious conduct if a party exhibits a pattern of behavior that interferes with proper judicial management of cases." Gillum v. Yale University, 62 Conn.App. 775, 782-83, 773 A.2d 986, cert. denied, 256 Conn. 929, 776 A.2d 1146 (2001).
"[A] court must be watchful of attempts to avoid the very purpose of statutes of limitation, i.e., ensuring finality in the litigation process . . . Nevertheless, looming behind § 52-592 is the overarching policy of the law to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court." (Citation omitted; internal quotation marks omitted.) Skinner v. Doelger, 99 Conn.App. 540, 554-55, 915 A.2d 314; cert. denied, 282 Conn. 902, 919 A.2d 1037 (2007). Yet, "despite its remedial nature, § 52-592(a) should not be read so broadly or interpreted so expansively that the plain language of the statute . . . should be ignored." (Internal quotation marks omitted.) Gillum v. Yale University, supra, 62 Conn.App. 786.
( 3) What weight should be given to procedural form issues over substantive issues? CT Page 8869
As discussed above, when determining the substantive weight of a claim brought pursuant to § 52-592, the focus of the court's analysis rests specifically on the type of conduct that occurred, the egregiousness of the conduct, any explanation for the conduct, and prejudice upon the nonmovant. This inquiry is very fact sensitive. "[I]t is appropriate to consider each case along a continuum; at one extreme are dismissals for mistake or inadvertence, at the other extreme are dismissals for serious misconduct or a series of cumulative transgressions." Gillum v. Yale University, supra, 62 Conn.App. 783.In Stevenson v. Peerless Industries, Inc., supra, 72 Conn.App. 601, the plaintiff's original case was dismissed due to counsel's failure to respond in a timely manner to the defendant's discovery request. The plaintiff brought a § 52-592 claim, arguing that the delay was caused by a misunderstanding of deadlines by out-of-state attorneys, who were handling other issues for the plaintiff in Pennsylvania. The delay was six months in duration, was the first delay of the case, and the plaintiff "provided a credible excuse for his failure to respond, that is, miscommunication with his Pennsylvania counsel. It [did] not appear that the plaintiff failed to respond . . . for dilatory reasons or as a delay tactic, particularly when viewed in light of the fact that this case [was] not . . . plagued by years of unnecessary litigation. [The court] further note[d] that the plaintiff assert[ed] that he [was] prepared to comply with all requests." Id., 610. The court allowed the claim to proceed because "this situation invoke[d] the type of excusable neglect that our Supreme Court [had] provided for in Ruddock." (Internal quotation marks omitted.) Id.
In Salvas v. Halperin, Superior Court, judicial district of Windham at Putnam, Docket No. CV 03 0071552 (May 5, 2005, Riley, J.), the court stated that "[t]he conduct of the plaintiff's counsel in this matter was not sufficiently egregious to bar recourse to the savings statute. The evidence submitted would not support a finding of serious misconduct or a series of cumulative transgressions by plaintiff's counsel. The only evidence submitted concern[ed] the failure of the plaintiff's counsel to comply with discovery on one occasion. Counsel . . . submitted an affidavit outlining his busy schedule in the months leading up to the judgment of nonsuit and stat[ed] that the plaintiff was totally disabled and home confined, making compliance with discovery difficult."
In Gostanian v. Wolmer, Superior Court, judicial district of Tolland, Docket No. CV 02 0077719 (June 21, 2006, Peck, J.) (41 Conn. L. Rptr. 543), the initial case was dismissed for nonsuit due to a failure to meet a thirty-day deadline to produce a signed medical document. The plaintiff refiled and entered evidence showing that he had later complied with the order to produce the document. Id. "In light of the remedial nature of § 52-592, this court [found] that the plaintiff's conduct did not rise to the level of egregiousness articulated by our appellate courts, and, as such, constitute[d] excusable neglect." Id., 545.
Lastly, in Ruggiero v. Zeppieri, Supreme Court, judicial district of New London, Docket No. CV 99 0549098 (May 3, 2000, Corradino, J.) (27 Conn. L. Rptr. 162, 163), the court acknowledged that "[u]navoidable circumstances ranging from car trouble to illness to family emergencies can . . . always occur, [but] when such circumstances are promptly brought to the attention of the court, punitive sanctions should not be employed, regardless of the fact that the case in question may have been previously dismissed." (Emphasis added, internal quotation marks omitted.)
Findings of Egregious Conduct.
The Appellate Court, in Skinner v. Doelger, supra, 99 Conn.App. 558, reasserted that § 52-592 is "inapplicable in cases involving conduct that resulted in years of delay in reaching trial, the filing of numerous motions and considerable delay or inconvenience to the court or to opposing parties." (Internal quotation marks omitted.) Id., 558. Likewise, in Rosario v. Hasak, 50 Conn.App. 632, 718 A.2d. 505 (1998), the plaintiff was injured in a car accident in 1990. The court reasoned that "the plaintiff's failure to return the original complaint to court until two and one-half years after it was served could hardly be considered diligent. The genesis of this cause of action [was] an automobile accident that occurred some eight years ago. Instead of taking any action with regard to the original complaint, the plaintiff filed two further actions, identical in substance to the first. Two and one-half years later, the plaintiff returned the original complaint, which was dismissed. The plaintiff commenced the fourth and final action five years after the automobile accident occurred and three years after he commenced the original action. Such egregious and blatant conduct was never intended to be condoned and sanctioned by the matter of form provision of § 52-592 and [the court] will not invoke that provision under the circumstances of this case." (Internal quotation marks omitted.) Id., 639.
In Skibeck v. Avon, 24 Conn.App. 239, 587 A.2d 166, cert. denied, 219 Conn. 912, 593 A.2d 138 (1991), the plaintiff, on behalf of the estate of her late husband, initially filed an action in 1980 regarding a car accident that took place in 1979. Id., 240. The case was litigated for eleven years and dismissed three times, once for failure to appear and twice for failure to prosecute. Id., 240-41. The present case was the fourth attempt to try the case. The court concluded that "[t]o allow this action to continue at this time would defeat the basic purpose of the public policy that is inherent in statutes of limitation, i.e., to promote finality in the litigation process." Id., 243. Thus, the court affirmed the judgment of the trial court and the case was dismissed.
A review of the case history by the Appellate Court in Pepitone v. Serman, 69 Conn.App. 614, 773 A.2d 986 (2001), showed that "[t]he underlying events of this case occurred in 1993. Nine years later, the plaintiff still ha[d] not managed to prosecute his action. The court dismissed his case for dormancy in February 1997, and again dismissed it for failure to close the pleadings in November 1999. In fact, the court twice issued notice to the plaintiff that failure to close the pleadings would result in a dismissal. Moreover, at the time that the court dismissed the case in 1999, the plaintiff still had not filed a reply to the defendants' special defenses or answered their counterclaim. The plaintiff failed to file a motion to open that dismissal and further ha[d] not proffered any explanations for his conduct." Id., 619-20. The court held that "[g]iven the history of the case, we cannot conclude that the plaintiff's actions that led to the dismissal of his case constituted a mere accident or simple negligence . . . [and] . . . determined that the plaintiff . . . could not avail himself of § 52-592." (Citations omitted.) Id., 620. The case was dismissed.
In Coriano v. Menhennett, Superior Court, judicial district of Fairfield, Docket No CV 05 4007629 (February 17, 2006, Rodriguez, J.), the court granted the motion for summary judgment because to do otherwise would render "virtually meaningless" the statute of limitations for bringing a negligence action. The court explained that "[t]he plaintiff's attorney had four years to gather the necessary medical records to comply with the defendant's discovery requests, and the affidavit [did] not adequately explain the attorney's noncompliance with the court's orders. The plaintiff also did not show up at argument on the defendant's motion for summary judgment and did not provide any other evidence to explain that her noncompliance with the court's orders was due to `mistake, inadvertence or excusable' neglect . . . Furthermore, over the four-year period, the plaintiff's attorney continually failed to fully comply with the defendant's discovery requests and the court's orders, and filed motions to reopen just before the filing deadlines approached." (Citations omitted.) Id. The court noted in the end that "[p]atterns of conduct . . . such as repeated dismissals for failure to prosecute and continually running deadlines to their limits before filing motions to reopen or complying with court orders . . . far surpasses mistake, inadvertence or excusable neglect." (Internal quotation marks omitted.) Id.
Conclusion
Based upon the foregoing the motion to dismiss is granted.