Opinion
No. CV08 5020588S
February 20, 2009
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (#107)
The defendant, William Gallagher, requests that this court grant his motion for summary judgment (#107) on the grounds that the action is barred by the applicable statute of limitations. The plaintiff, Enrico Vaccaro, opposes the motion arguing that the applicable statutes of limitation are tolled by the accidental failure of suit statute. For reasons more fully set forth herein, this court grants the defendant's motion.
The plaintiff commenced this action by service of process on May 22, 2008. This action arises out of the defendant's legal representation of the plaintiff in a separate action, Gagne v. Vaccaro, Docket No. CV 95 0372611S, which resulted in a judgment against Vaccaro. In a six-count complaint, the plaintiff alleges negligence, breach of contract, invasion of privacy, conversion, a CUTPA violation and infliction of emotional distress.
On September 18, 2008, the defendant filed a motion for summary judgment on all counts of the complaint on the ground that the "[t]he plaintiff's Complaint was filed long after the expiration of the applicable statutes of limitations." In addition to his motion, the defendant submitted a memorandum in support, accompanied by six exhibits, including a sworn personal affidavit. Included among the six exhibits is a copy of the "case detail" from the previous action between these parties, as posted on the judicial branch's website. Relying heavily on the case detail, the defendant contends that "[a] review of the court file in the original matter reveals that the entire course of the prior litigation was marked by inaction, delays, and unresponsiveness on the part of the plaintiff himself, who appeared in the action, and plaintiff's counsel."
On October 22, 2008, the plaintiff filed an objection to the defendant's motion for summary judgment, accompanied by a sworn affidavit of his counsel, Thomas C. Thornberry. The plaintiff opposes the defendant's motion on the ground that the claim was properly brought "pursuant to the accidental failure of suit statute Connecticut General Statutes Section 52-592 because he brings this action within one year after his original claim was dismissed under the docket management program for failure to close the pleadings, a matter of form."
The May 22, 2008 complaint was not the first complaint commenced by the plaintiff against the defendant that alleged these causes of action. A prior action entitled Vaccaro v. Gallagher, Docket No. CV 02 0472535, was filed on September 17, 2002. That case, however, was dismissed on June 1, 2007 "for failure to prosecute said action with reasonable diligence." specifically, the plaintiff's "original claim was dismissed under the docket management program for failure to close the pleadings." After the dismissal, the plaintiff filed a motion to set aside dismissal, otherwise known as a motion to open, pursuant to Practice Book § 17-42. On May 28, 2008, this motion to open was heard and denied by the court, Lager, J.
In his reply memorandum filed on October 24, 2008, the defendant argues that the accidental failure of suit statute is inapplicable to this case. The defendant claims that the plaintiff has provided no circumstances that would excuse the dismissal. Furthermore, he contends that this court (Lager, J.) has already rejected the excuses put forth by the plaintiff when it denied the plaintiff's motion to set aside the previous dismissal. Thus, according to the defendant, these issues should be precluded pursuant to the legal doctrine of collateral estoppel.
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." Practice Book § 17-49. "[I]n seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, [entitle] him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent." (Internal quotation marks omitted.) Socha v. Bordeau, 277 Conn. 579, 585-86, 893 A.2d 422 (2006).
"A material fact is a fact that will make a difference in the outcome of the case." (Internal quotation marks omitted.) Lombard v. Edward J. Peters, Jr., P.C., 79 Conn.App. 290, 294, 830 A.2d 346 (2003). "Once the moving party has met its burden . . . the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008).
I.
The defendant moves for summary judgment on the ground that the various statutes of limitation applicable to the plaintiff's claims have expired. "Summary judgment may be granted where the claim is barred by the statute of limitations." Doty v. Mucci, 238 Conn. 800, 806, 679 A.2d 945 (1996). Filing an action beyond the date established by the applicable limitations is an appropriate ground upon which to grant a motion for summary judgment when the "material facts concerning the statute of limitations [are] not in dispute . . ." Burns v. Hartford Hospital, 192 Conn. 451, 452, 472 A.2d 1257 (1984).
A.
In the first count of his complaint, the plaintiff alleges legal malpractice. In the third count the plaintiff alleges invasion of privacy. And, in the fifth count, the plaintiff alleges conversion. All of these counts are governed by the same statute of limitations.
"Where the complaint alleges legal malpractice based on negligence, the tort statute of limitations applies." (Internal quotation marks omitted.) Connecticut Education Association, Inc. v. Milliman USA, Inc., 105 Conn.App. 446, 457 n. 7, 938 A.2d 1249 (2008). In addition, the tort statute of limitation applies to the torts of invasion of privacy and conversion as well. Daoust v. McWilliams, 49 Conn.App. 715, 720, 716 A.2d 922 (1998); Certain Underwriters at Lloyd's, London v. Cooperman, 289 Conn. 383, 408 (2008) ("the statute of limitations for claims of conversion . . . is the three year period applicable to torts, set forth in General Statutes § 52-577").
The tort statute of limitations, General Statutes § 52-577, provides: "No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of." Accordingly, counts one, three and five of the plaintiff's complaint are subject to a three-year statute of limitations measured from the date of the complained of conduct.
The Supreme Court has made clear that "[t]he date of the act or omission complained of is the date when the . . . conduct of the defendant occurs." (Internal quotation marks omitted.) Certain Underwriters at Lloyd's, London v. Cooperman, supra, 289 Conn. 408. The uncontested facts are that the defendant has had no involvement, as counsel, for Mr. Vaccaro since December 29, 2001. Therefore, any allegedly negligent acts performed by the defendant occurred before December 29, 2001. Accordingly, the statute of limitations expired on or before December 29, 2004 and the claims in Counts One, Three and Five are time-barred, unless the statute of limitation is tolled for some reason.
B.
The second count of the plaintiff's complaint alleges a breach of contract. General Statutes § 52-576(a) provides in relevant part: "No action for an account, or on any simple or implied contract, or on any contract in writing, shall be brought but within six years after the right of action accrues." "The law concerning when a breach of contract action accrues is well settled. [The Supreme Court] has stated that [i]n an action for breach of contract . . . the cause of action is complete at the time the breach of contract occurs, that is, when the injury has been inflicted." (Internal quotation marks omitted.) Amoco Oil Co. v. Liberty Auto Electric Co., 262 Conn. 142, 153, 810 A.2d 259 (2002). Again, the uncontested evidence establishes that any alleged breach of contract accrued before December 29, 2001 and thus, the statute of limitations expired on or before December 29, 2007. Therefore, the claim in Count Two is time-barred unless the statute of limitation is tolled for some reason.
C.
In the fourth count of the complaint, the plaintiff alleges that the defendant violated CUTPA. The applicable statute of limitations for a CUTPA claim is located in General Statutes § 42-110g(f), which provides: "An action under this section may not be brought more than three years after the occurrence of a violation of this chapter." Pursuant to the uncontested facts, the statute of limitations on the plaintiff's CUTPA claim expired, on or before December 29, 2004. Therefore, the claims in Count Four are time-barred unless the statute of limitation is tolled for some reason.
General Statutes § 42-110b(a) provides: "No person shall engage in unfair methods of compensation and unfair or deceptive acts or practices in the conduct of any trade or commerce."
D.
Lastly, the sixth count of the plaintiff's complaint alleges infliction of emotion distress. The pleading does not specify whether the cause of action is intentional or negligent infliction of emotional distress. If the tort of negligent infliction of emotional distress is alleged, the applicable statute of limitations is found in General Statutes § 52-584, which provides: "No action to recover damages for injury to the person . . . 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 more than three years from the date of the act or omission complained of." Rivera v. Double A Transportation, Inc., 248 Conn. 21, 31, 727 A.2d 204 (1999). In contrast, "[t]he applicable statute of limitations period for a claim of intentional infliction of emotional distress is three years" pursuant to General Statutes § 52-577. DeCorso v. Watchtower Bible Tract Society of New York, Inc., 78 Conn.App. 865, 873, 829 A.2d 38 (2003).
In this case, it does not matter whether the plaintiff alleges negligent or intentional infliction of emotional distress because either claim is barred by the statute of limitation unless the statute is tolled for some reason.
II.
The state marshal served process on the defendant on May 22, 2008. Therefore, unless the statutes of limitation are otherwise tolled, all of the plaintiff's claims are time-barred under the aforementioned statutes of limitation. In his objection to motion for summary judgment, the plaintiff argues that the statutes of limitation are tolled because his claim was brought pursuant to the accidental failure of suit statute. The accidental failure of suit statute, General Statutes § 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, except as provided in subsection (b) of this section, for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment."
In this case, the Superior Court entered a judgment of dismissal on June 1, 2007 for "failure to prosecute said action with reasonable diligence" and the plaintiff instituted this action within one year of the dismissal. So, this court must consider whether the termination of the prior action for failure to prosecute with reasonable diligence is an acceptable ground for tolling the statute of limitation under § 52-592(a) in the instant matter.
It is "helpful to begin [a] discussion with an examination of the case law interpreting § 52-592 and policy principles that must guide [it] in applying the statute. Deemed a saving statute, § 52-592 enables plaintiffs to bring anew causes of action despite the expiration of the applicable statute of limitations . . . In order to fall within the purview of § 52-592, however, the original lawsuit must have failed for one of the reasons enumerated in the statute." (Citation omitted; internal quotation marks omitted.) Skinner v. Doelger, 99 Conn.App. 540, 553, 915 A.2d 314 (2007).
When determining whether the accidental failure of suit statute is available to toll an otherwise expired statute of limitations, it is for the trial court to determine if the earlier disciplinary dismissal was a mere matter of form. Ruddock v. Burrowes, 243 Conn. 569, 576, 706 A.2d 967 (1998). "Disciplinary dismissals do not in all cases, demonstrate the occurrence of misconduct so egregious as to bar recourse to § 52-592." Id.
"Disciplinary dismissals refer to cases dismissed for variety of punitive reasons, such as the failure to attend a scheduled pretrial conference . . . or the failure to close the pleadings in a timely manner." Skinner v. Dodger, supra, 99 Conn.App. 553-54.
"In the context of disciplinary dismissals, our Supreme Court has cautioned that [w]hether [ § 52-592] applies cannot be decided in a factual vacuum . . . Instead, the propriety of applying § 52-592 depends on whether the plaintiff has made 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 . . . The inquiry under § 52-592, therefore, may be conceptualized as a continuum whereupon a case must be properly placed between one extreme of dismissal for mistake and inadvertence, and the other extreme of dismissal for serious misconduct or cumulative transgressions . . .
"Finally, our Supreme Court has set forth several broad policy goals that must be kept in mind when deciding whether a plaintiff should be permitted to avail himself or herself of § 52-592. Although § 52-592 should be broadly construed because of its remedial nature, it should not be construed so broadly as to hamper a trial court's ability to manage its docket by dismissing cases for appropriate transgressions . . . In addition, 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." (Citations omitted; internal quotation marks omitted.) Skinner v. Doelger, supra, 99 Conn.App. 554-55.
In his reply memorandum in support of defendant's motion for summary judgment, the defendant proposes that "[b]ecause the elements necessary to invoke Section 52-592 are the same as they are to grant a motion to set aside dismissal, and because a motion to set aside the dismissal of the original action was made and denied, that denial, which necessarily determined that the dismissal was not due to mistake inadvertence or excusable neglect, precluded the invocation of Section 52-592 based on the rule of issue preclusion."
However, for the following reasons, this court concludes that collateral estoppel does not preclude the plaintiff's invocation of General Statutes § 52-592. When considering a motion to open "the action of the trial court will not be disturbed on appeal unless it acted unreasonable and in clear abuse of its discretion." (Internal quotation marks omitted.) Walton v. New Hartford, 223 Conn. 155, 169, 612 A.2d 1153 (1992). The Supreme Court has noted, however, that motions to open "arise, not under the remedial auspices of § 52-592(a), but under the discretionary auspices of § 52-212." Ruddock v. Burrowes, supra, 243 Conn. 577 n. 14. Furthermore, the Appellate Court has observed that General Statutes "§§ 52-592 and 52-212 have different purposes and, thus, employ different legal standards." Skinner v. Doelger, supra, 99 Conn.App. 559. Collateral estoppel is, therefore, inappropriate in this case and the court must accordingly determine if the submitted evidence raises a genuine issue of material fact regarding whether "the prior dismissal was a `matter of form.'" Ruddock v. Burrowes, supra, 243 Conn. 577.
Upon consideration of the defendant's exhibits, there is evidence of a pattern of excessive delays on the part of the plaintiff, in particular, the period of time between the court's order that the plaintiff revise his complaint on September 21, 2004 and the plaintiff's eventual filing of his amended complaint on January 17, 2006. In addition, the case detail also illustrates a lengthy period of the plaintiff's inactivity between the filing of his amended complaint on January 17, 2006 and the court's judgment of dismissal on June 1, 2007. In light of this evidence, the court finds that the defendant has met his burden and thus the burden is shifted to the plaintiff to raise a genuine issue of material fact as to whether the prior dismissal was a mere matter of form.
In the plaintiff's objection to the defendant's motion, he argues that "[i]n this case plaintiff's claim failed as a matter [of] form without consideration of the claim on the merits through no fault of the plaintiff and a result of the illness and incapacity of the plaintiff's counsel." The only evidence submitted by the plaintiff with his objection is attorney Thornberry's sworn affidavit. In that statement, attorney Thornberry attests: "Any delays or lack of diligence were unavoidable mistakes that resulted from a protracted set of illnesses suffered by undersigned. During the late summer and autumn of 2007, I suffered from pneumonia that totally incapacitated me for a period of time. In March of 2008, I was involved in a personal injury in which I was struck on the head by a heavy metal object that fell and rendered me unconscious." Although these would likely qualify as circumstances constituting inadvertence or excusable neglect, the court notes that these unfortunate events occurred subsequent to the court's dismissal on June 1, 2007. Therefore, as a matter of law, they cannot excuse the plaintiff's prior failure to prosecute his claim.
An earlier affidavit from attorney Thornberry, dated April 17, 2008, was contained in one of the defendant's exhibits. In that document, attorney Thornberry attests: "The plaintiff was prevented from pursuing his claim through excusable error or mistake." A party's conclusory statements, however, "in the affidavit and elsewhere . . . do not constitute evidence sufficient to establish the existence of disputed material facts." Gupta v. New Britain General Hospital, 239 Conn. 574, 583, 687 A.2d 111 (1996). Therefore, the court will not consider this as evidence capable of raising a genuine issue of material fact for the purposes of this motion for summary judgment.
The plaintiff has provided no evidence to support the finding of a circumstance "such as mistake, inadvertence or excusable neglect" between January 17, 2006 and June 1, 2007. Thus, the court finds the defendant's uncontradicted evidence sufficient to establish that the disciplinary dismissal on June 1, 2007 was not a matter of form. Heyman Associates No. I v. Insurance Co. of Pennsylvania, supra, 231 Conn. 795. The accidental failure of suit statute is therefore unavailable to the plaintiff, as a matter of law. Accordingly, the court grants the defendant's motion for summary judgment on the ground that the plaintiff's claims are time-barred by the applicable statutes of limitation.