Opinion
TTDCV186014616S
08-22-2018
Juli A. PORTER v. MILL POND CONDOMINIUM ASSOC., INC.
UNPUBLISHED OPINION
OPINION
Sferrazza, J.
Mill Pond Condominium Association, Inc., moves to dismiss this negligence action, begun by the plaintiff on April 16, 2018, based on the expiration of the two-year statute of limitations prescribed in General Statutes § 52-584. The plaintiff counters that the accidental failure of suit provision, General Statutes § 52-592, rescues this case from the running of the two-year period. The court agrees with the plaintiff and denies the motion to dismiss.
The plaintiff asserts that she sustained injuries when she slipped and fell on March 4, 2015, on property controlled by the movant and/or other defendants. She brought an original action on March 2, 2017, within the two-year limit of § 52-584. However, the court nonsuited the plaintiff on December 5, 2017, as a sanction for failure to respond to a codefendant’s request to revise. The following procedural chronology in the earlier case, denoted CV 17-6012237, bears on the motion before this court.
In the earlier action, the co-defendant filed the request to revise the complaint on June 7, 2017. The plaintiff requested and received from the court an extension of time to respond to August 7, 2017. The plaintiff requested and received a second extension of time to September 7, 2017.
In light of the plaintiff’s failure to respond by September 7, 2017, the co-defendant moved for the sanction of nonsuit on September 22, 2017. About one and one-half months later, Judge Farley ordered the plaintiff to file her response by November 22, 2017, or a nonsuit would enter. Having missed that deadline, on November 27, 2017 the plaintiff requested a third extension of time to respond to November 29, 2017. Again, the court granted until December 4, 2017 for that purpose.
Because the plaintiff made no response by that date, a nonsuit entered the following day, December 5, 2017. It should be mentioned that the movant first sought a request to revise on that date, also. The order of nonsuit did not specify if it applied to all defendants or only the defendant whose request to revise had remained unanswered. The parties have treated the nonsuit order as terminating the original case against all defendants, and the court will do likewise.
Relying on the accidental failure of suit statute, on April 16, 2018, the plaintiff began the present action. On May 31, 2018, the movant filed the motion to dismiss. The movant acknowledges that the present case commenced within the one-year window afforded by § 52-592. However, the movant contends that the plaintiff’s derelictions in the earlier case fails to qualify as merely "a matter of form" as that phrase is used in § 52-592.
It appears that, at one time, courts opined that disciplinary dismissals and nonsuits fell outside the ambit of "a matter of form." A disciplinary dismissal is one imposed for disobeying a specific court order applying to that case in particular, as opposed to dismissal resulting from failure to comport with some generally applicable rule of practice or statute, such as defective service.
In Ruddock v. Burrowes, 243 Conn. 569 (1998), the trial court granted summary judgment in a second action on the basis that, as a matter of law, recourse to § 52-592 was unavailable to revive a claim that had been dismissed as a sanction for failing to appear for a court-ordered pretrial conference. The trial court "reasoned that any other ruling would frustrate the reasoned dismissal ... and would permit counsel to ignore the orders of the court by virtue of an overextension of [§ 52-592]," Id., 572. The Appellate Court affirmed that decision, per curiam, Ruddock v. Burrowes, 43 Conn.App. 913 (1996).
Our Supreme Court reversed and held, for the first time, "that disciplinary dismissals are not excluded categorically from the relief afforded by § 52-592," Ruddock v. Burrowes, supra, 576.
Under § 52-592, a lack of reasonable diligence by counsel is insufficient, alone, to remove a case from the protection against a violation of the statute of limitation provided by § 52-592, Lacasse v. Burns, 214 Conn. 464, 472-73 (1990). Indeed, almost every situation where § 52-592 applies will arise from some dereliction or another. In order for a disciplinary dismissal to bar use of § 52-592 to refile, the noncompliant conduct must be egregious or such as to "render statutes of limitations virtually meaningless," Skibeck v. Avon, 24 Conn.App. 239, 242-43 (1991).
Unlike some cases where multiple failures occurred, the plaintiff in the present case did not engage in the wholesale disregard of the court’s orders. Counsel did seek extensions of time, and other activity in the case proceeded despite the lack of a revised complaint. It should be kept in mind that the movant did not seek the sanction imposed and did not file a request to revise until December 5, 2017, the same day nonsuit entered. The present action began slightly more than three years after the alleged accident, so that the functioning of the two-year statute of limitation is not greatly distorted by allowing this suit to survive by virtue of § 52-592.
For the reasons, the motion to dismiss is denied.