(SC 15584)

Argued September 24, 1997,

Action to recover damages for personal injuries sustained by the named plaintiff as a result of the named defendant's alleged negligence, and for other relief, brought to the Superior Court in the judicial district of Hartford-New Britain at New Britain, where the court, Arena, J., granted the defendants' motion for summary judgment and rendered judgment thereon, from which the plaintiffs appealed to the Appellate Court, O'Connell, Landau and Schaller, Js., which affirmed the trial court's judgment, and the plaintiffs, on the granting of certification, appealed to this court. Reversed; further proceedings.

Opinion

The accidental failure of suit statute, General Statutes § 52-592 (a) affords a plaintiff a one year window of opportunity to "commence a new action . . . for the same cause" if a prior action "has failed . . . to be tried on its merits . . . for any matter of form . . . ." The question in this certified appeal is whether a disciplinary dismissal properly may be characterized as a dismissal as a "matter of form." We conclude that the answer to this question depends upon the nature and the extent of the conduct that led to the disciplinary dismissal.

In their original action, as in the present one, the plaintiffs, Rohan Ruddock and his mother, sought to recover damages for personal injuries sustained by the named plaintiff, allegedly as a result of the defendants' negligence or recklessness. The trial court, Hon. Harry N. Jackaway, judge trial referee, acting pursuant to Practice Book § 251, terminated the plaintiffs' action by a disciplinary dismissal arising out of the failure of the named plaintiff's mother and the plaintiffs' attorney to attend a scheduled pretrial conference.

The plaintiffs filed a motion for reconsideration and recusal. They did not contest the fact of nonattendance at the pretrial conference. Instead, they claimed that: (1) their attorney had been unable to appear in timely fashion because of an unavoidable accident involving his car; and (2) he had tried to communicate his unavoidable delay to court personnel. Denying the plaintiffs' motion, the court exercised the discretion conferred upon it by General Statutes § 52-212 (a) and reaffirmed the judgment of dismissal. The plaintiffs acknowledge that, regardless of whether their absence resulted from mistake, inadvertence or excusable neglect, the judgment of dismissal in the original action was a disciplinary dismissal.

Thereafter, pursuant to § 52-592 (a), the plaintiffs filed a new complaint alleging the same cause of action. In response, the defendants filed a motion for summary judgment, in which they claimed that the plaintiffs' action was time barred because § 52-592 (a) does not permit a new action if the original action was terminated as the result of a disciplinary dismissal. In opposition to the defendants' motion, the plaintiffs not only challenged its legal premise but also filed an affidavit raising again the factual issue of mistake, inadvertence or excusable neglect that they had raised in their motion for reconsideration.

The court, Arena, J., granted the defendants' motion for summary judgment, upholding their claim that, as a matter of law, the dismissal of the plaintiffs' original cause of action for disciplinary reasons precluded their subsequent invocation of § 52-592 (a). The court reasoned that any other ruling would "frustrate the reasoned dismissal by Judge Jackaway, and [would] permit counsel to ignore the orders of the court by virtue of an overextension of [the statute]." In light of this conclusion of law, the court made no reference in its memorandum of decision to the factual issues raised by the plaintiffs' affidavit. Thereafter, in response to the defendants' motion for clarification, the court ruled that it was immaterial whether the original dismissal had been based "on the plaintiff[s]' failure to appear at one or more than one pretrial."

In a per curiam opinion, the Appellate Court affirmed the judgment of the trial court. Ruddock v. Burrowes, 43 Conn. App. 913, 684 A.2d 282 (1996). In the absence of any indication in the record to the contrary, we may presume that the Appellate Court adopted the reasoning of the trial court, Arena, J. Having granted the plaintiffs' petition for certification, we reverse the judgment of the Appellate Court and direct a remand to the trial court for further proceedings.

The procedural posture of this case determines the scope of our review. The court, Arena, J., in ruling on the motion for summary judgment, concluded, as a matter of law, that, because of the disciplinary nature of the dismissal, the plaintiffs had failed to meet their burden of establishing that they were entitled to invoke § 52-592 (a). Unless we affirm this legal conclusion, the unresolved factual issues raised by the plaintiffs' affidavit require us to overturn the summary judgment. "Practice Book § 384 provides that summary 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 § 381." (Citations omitted; internal quotation marks omitted.) Doty v. Mucci, 238 Conn. 800, 805-806, 679 A.2d 945 (1996); Bruttomesso v. Northeastern Connecticut Sexual Assault Crisis Services, Inc., 242 Conn. 1, 5-6, 698 A.2d 795 (1997); Miller v. United Technologies Corp., 233 Conn. 732, 744-45, 660 A.2d 810 (1995); Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 105-106, 639 A.2d 507 (1994).

The arguments of the parties in this court do not fully reflect the law governing summary judgments. Understandably, the defendants reiterate the argument, on which they prevailed in the trial court, that disciplinary dismissals are never "a matter of form" for the purposes of § 52-592 (a). They do not address the factual issues raised by the plaintiffs' affidavit. The plaintiffs, in turn, argue for a more nuanced consideration of the underlying circumstances of the disciplinary dismissal. Their argument appears to assume, however, that, without any findings of fact, we should accept the accuracy of the representations contained in their affidavits to Judge Jackaway and Judge Arena. Neither argument is persuasive.

Whether § 52-592 (a) categorically excludes disciplinary dismissals from the class of dismissals that properly may be characterized as arising from "any matter of form" is a question that lies at the intersection of two principles firmly established in our law. On the one hand, in a long line of cases, we have held that § 52-592 (a) is remedial in nature and, therefore, warrants a broad construction. See, e.g., Lacasse v. Burns, 214 Conn. 464, 470, 572 A.2d 357 (1990); Isaac v. Mount Sinai Hospital, 210 Conn. 721, 728, 557 A.2d 116 (1989); Broderick v. Jackman, 167 Conn. 96, 97, 355 A.2d 234 (1974); Ross Realty Corp. v. Surkis, 163 Conn. 388, 393, 311 A.2d 74 (1972); Baker v. Baningoso, 134 Conn. 382, 387, 58 A.2d 5 (1948); Johnston v. Sikes, 56 Conn. 589, 591-92 (Superior Court 1888). Apparently acceding in our assessment of its intent, the legislature, over the years, repeatedly has broadened eligibility for the relief afforded by the statute. Broderick v. Jackman, supra, 97-99. On the other hand, our 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. Our judicial system cannot be controlled by the litigants and cases cannot be allowed to drift aimlessly through the system." In re Mongillo, 190 Conn. 686, 691, 461 A.2d 1387 (1983); Gionfrido v. Wharf Realty, Inc., 193 Conn. 28, 32-33, 474 A.2d 787 (1984). In the event of noncompliance with a court order, the directives of caseflow management authorize trial courts, in appropriate circumstances, to take action against either the errant attorney or the litigant who freely chose the attorney. Link v. Wabash R. Co., 370 U.S. 626, 633-34, 634 n. 10, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962); Gionfrido v. Wharf Realty, Inc., supra, 33-34; Thode v. Thode, 190 Conn. 694, 698, 462 A.2d 4 (1983); In re Mongillo, supra, 692; Stanley v. Hartford, 140 Conn. 643, 648, 103 A.2d 147 (1954).

This case requires us, for the first time, to find the proper accommodation between these competing principles. In the absence of further legislative guidance, we conclude that disciplinary dismissals are not excluded categorically from the relief afforded by § 52-592 (a).

We already have observed that, in appropriate cases, "a dismissal entered pursuant to [Practice Book] § 251 would not bar a subsequent action brought under the authority of § 52-592." Lacasse v. Burns, supra, 214 Conn. 471; Gionfrido v. Wharf Realty, Inc., supra, 193 Conn. 34 n. 6. Disciplinary dismissals do not, in all cases, demonstrate the occurrence of misconduct so egregious as to bar recourse to § 52-592. Cf. Skibeck v. Avon, 24 Conn. App. 239, 242-43, 587 A.2d 166, cert. denied, 219 Conn. 912, 593 A.2d 138 (1991). Whether 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. See General Statutes § 52-212.

The burden of bringing a new action sufficiently vindicates the demands of caseflow management. "`[I]t cannot be said that a disciplinary dismissal that does not preclude a litigant from commencing another action on the same claim is wholly ineffective as a sanction, since additional legal fees and expenses must be incurred in doing so and the new suit must normally await the disposition of earlier cases.'" Lacasse v. Burns, supra, 214 Conn. 474, quoting Milgrim v. Deluca, 195 Conn. 191, 195, 487 A.2d 522 (1985).

Our conclusion in this case is consistent with previous cases arising under § 52-592 (a). We have not often decided that a plaintiff, after a dismissal under an applicable rule of practice, should be denied access to the statute because the prior judgment was not a "matter of form." When we have done so, our decision has focused on conduct other than mistake, inadvertence or excusable neglect. For example, we have held that § 52-592 (a) affords no relief in cases in which a plaintiff's prior action was dismissed because the plaintiff withdrew it voluntarily; see Parrott v. Meacham, 161 Conn. 573, 575, 290 A.2d 335 (1971); Baker v. Baningoso, supra, 134 Conn. 387; or consented to its dismissal. Such consent may be inferred from a plaintiff's failure to file a memorandum in opposition to a defendant's motion to strike; Hughes v. Bemer, 206 Conn. 491, 495, 538 A.2d 703 (1988); or from a plaintiff's inordinate delay in appointing an administrator or executor. Walworth v. Hartford Hospital, 23 Conn. App. 404, 408-409, 580 A.2d 545 (1990). The rationale of those cases does not compel denial of relief under § 52-592 (a) to the plaintiffs in the present case if they can prove the circumstances of the dismissal of their case to be as alleged.

With whom, KATZ, J., joins.

The majority for the first time holds that a disciplinary dismissal as a result of the conduct of a lawyer is not necessarily a "matter of form" that would permit a plaintiff to commence a new action as a matter of right pursuant to General Statutes § 52-592. Rather, according to the majority, it would depend upon the extent of the egregiousness of the lawyer's conduct. In other words, as I understand the majority, if the lawyer's conduct that resulted in the dismissal is not very bad — such as a "mistake, inadvertence or excusable neglect" — then, it is a "matter of form" and relief is available under § 52-592; but, on the other hand, if it is egregious, then the client is penalized by having his or her cause of action dismissed even though the action was brought for compensation for serious injuries as a result of negligent conduct by the defendant. The bottom line of the majority opinion is that a client may be punished for the transgressions of his or her lawyer.

In reaching this draconian result, the majority fails to consider the realities of the practice of law. Trial lawyers, in seeking to do justice for their clients, must accommodate the schedules of numerous trial courts, not only on the state level, but also on the federal level. The overwhelming number of our trial judges, who have practiced law themselves, appreciate this and, are able to accommodate the conflicting schedules. But, in doing so, the trial judges are still able to maintain firm control of their dockets in order to move the business of the court.

Nevertheless, I fully understand that there are some lawyers who attempt to take advantage of the system. In those instances, the law should not deny the client justice because of the misconduct of a lawyer. Clients should not be expected to micromanage their lawyer's handling of the case. Although the plaintiffs selected their lawyer, as the majority points out, it is the judicial branch that licensed that lawyer and enabled him to practice law. Moreover, attorney "misconduct is amenable to direct punitive sanctions [such as Practice Book § 986(3) and (4)] that can prevent attorneys from systemically engaging in misconduct that would disrupt the trial process. There is no need to take steps that will inflict the punishment on the [client]," who, like the plaintiffs in this case, did not participate in the lawyer's misconduct. Taylor v. Illinois, 484 U.S. 400, 435, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988) (Brennan, J., dissenting).

Notwithstanding this public policy concern I have with respect to the new rule embraced by the majority, this decision is contrary to this court's precedent, it violates our rules of statutory construction, including the liberal interpretation that must be afforded to remedial statutes, it takes this court on an excursion that will produce inconsistent and uncertain rulings that will, I am sure, result in grave injustices, and it violates basic principles of fairness.

This court has always considered that disciplinary dismissals due to a lawyer's misconduct constitute a failure "for any matter of form" within the meaning of § 52-592 (a). See Pintavalle v. Valkanos, 216 Conn. 412, 581 A.2d 1050 (1990); Lacasse v. Burns, 214 Conn. 464, 572 A.2d 357 (1990); Gionfrido v. Wharf Realty, Inc., 193 Conn. 28, 474 A.2d 787 (1984). In 1984, this court took it upon itself to indicate to the plaintiff, who lost his appeal from the trial court's denial of his motion to open a judgment of dismissal under § 251, that he was "not without remedy and, inter alia, may commence a new action pursuant to General Statutes § 52-592 . . . ." Gionfrido v. Wharf Realty, Inc., supra, 34 n. 6. The court then noted that a judgment of "dismissal for failure to prosecute is failure of a `matter of form.'" Id., citing McMahon v. Colaci, 36 Conn. Sup. 269, 271, 418 A.2d 98 (1980). In Lacasse, this court affirmed the trial court's ruling, which was based largely on Gionfrido, "that a dismissal entered pursuant to § 251 would not bar a subsequent action brought under the authority of § 52-592." Lacasse v. Burns, supra, 471. In Pintavalle, this court cited Lacasse to explain why the plaintiff was able to file a third action against the defendant after his second action had been dismissed pursuant to § 251 for failure to prosecute with reasonable diligence. Pintavalle v. Valkanos, supra, 414 n. 3.

Indeed, it was made crystal clear what was meant by an action being defeated "for any matter of form" in the 1888 case of Johnston v. Sikes, 56 Conn. 591 (Superior Court 1888). In Sikes, the court concluded that the addition of the phrase "any matter of form" to the accidental failure of suit statute (then designated as General Statutes [1888 Rev.] § 1386) "was to make the statute exceedingly broad and sweeping in its scope"; id., 591-92; and that the phrase "was used in contra-distinction to matter of substance, as embracing the real merits of the controversy between the parties." Id., 592. Furthermore, we can assume that the legislature has acceded to our broad definition of a "matter of form." In the more than 100 years since the court decided Sikes, the legislature never took action to contradict this court's interpretation of the accidental failure of suit statute. See State v. Spears, 234 Conn. 78, 90, 662 A.2d 80, cert. denied, 516 U.S. 1009, 116 S.Ct. 565, 133 L.Ed.2d 490 (1995) ("[w]e presume that the legislature has knowledge of this longstanding construction which this court has given to the objective and purpose of legislation in this field" [internal quotation marks omitted]). Rather, as the majority concedes, during the ensuing years since the adoption of the statutory predecessors of § 52-592 (a) in 1862; see Public Acts 1862, c. 14; the legislature repeatedly visited the statute and broadened the eligibility for relief. See Broderick v. Jackman, 167 Conn. 96, 97-99, 355 A.2d 234 (1974).

Moreover, § 52-592 (a), "is remedial and is to be liberally interpreted." Ross Realty Corp. v. Surkis, 163 Conn. 388, 393, 311 A.2d 74 (1972); Baker v. Baningoso, 134 Conn. 382, 387, 58 A.2d 5 (1948); Johnston v. Sikes, supra, 56 Conn. 596. Further, "[i]t is the 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. The design of the rules of practice is both to facilitate business and to advance justice . . . ." Snow v. Calise, 174 Conn. 567, 574, 392 A.2d 440 (1978). Consequently, § 52-592 (a) should be "so construed as to advance the remedy rather than to retard it." (Internal quotation marks omitted.) Johnson v. Wheeler, 108 Conn. 484, 486, 143 A.2d 898 (1928). Indeed, as pointed out by Justice Shea in his concurring opinion in Andrew Ansaldi Co. v. Planning Zoning Commission, 207 Conn. 67, 540 A.2d 59 (1988), the "accidental failure of suit statute, permitting a new action to be commenced after the original action has been defeated `for any matter of form'"; id., 76; was designed to ameliorate the harshness of the common law in order for parties to have their cases resolved, not on the basis of the neglect of the lawyer, but rather on the merits. Id., 75-76. Justice Shea explained: "Centuries ago the common law courts of England similarly insisted upon rigid adherence to the prescribed forms of action, resulting in the defeat of many suits for technical faults rather than upon their merits. Some of that ancient jurisprudence migrated to this country with the settlers and has affected the development of procedural law in this state. Beginning in the middle of the nineteenth century, however, our legislature enacted numerous procedural reforms applicable to ordinary civil actions that are designed to ameliorate the consequences of many deviations from the prescribed norm, which result largely from the fallibility of the legal profession, in order generally to provide errant parties with an opportunity for cases to be resolved on their merits rather than dismissed for some technical flaw." Id.

The majority's novel interpretation of § 52-592 will also cause confusion. The degree of egregiousness that will bar a litigant from bringing a new action under § 52-592 will vary from case to case. Furthermore, the extent of that egregiousness will be determined, not by the trial judge who dismissed the original action, but, rather, by another court when ruling on the applicability of § 52-592. Such inconsistent and uncertain rulings will, I am sure, result in grave injustices.

Finally, it is apparent that the plaintiffs have been misled by this court. Rightfully assuming that disciplinary dismissals are a "matter of form" under § 52-592, the plaintiffs took no appeal from the dismissal of the original action. The majority of this court now changes the rule in midstream subjecting the plaintiffs to the possibility of never having their case heard on the merits. That violates basic principles of fairness.

In light of precedent, long-standing rules of statutory construction, public policy concerns, and principles of fairness, the plaintiffs should be allowed to pursue their action in accordance with § 52-592.

Accordingly, I dissent.

Officially released January 27, 1998