Summary
finding that an action "was determined at the denial of [the plaintiff's] motion to open the judgment"
Summary of this case from MOORE v. MARAOpinion
No. (AC 24794).
Pursuant to the accidental failure of suit statute (§ 52-592), if any action commenced within the time limited by law has failed one or more times to be tried on the merits because it was dismissed for want of jurisdiction, the plaintiff may commence a new action for the same cause at any time within one year after the determination of the original action.
The plaintiff sought to recover damages for personal injuries she sustained when she fell from a deck at a residential dwelling owned by the defendants. An original action filed by the plaintiff had been dismissed for failure of her counsel to appear, and following the denials of her motions to open the judgment of dismissal and to reargue the decision denying her motion to open, the plaintiff brought this action pursuant to § 52592. The defendants moved for summary judgment, claiming that the second action was untimely. The trial court granted the defendants' motion and rendered judgment thereon, from which the plaintiff appealed to this court. The plaintiff claimed that the action was timely because it was commenced within one year from the date when the trial court denied her motion to reargue the denial of her motion to open. Held that the trial court properly granted the defendants' motion for summary judgment, the plaintiffs action having been untimely under § 52-592 because it was not commenced within one year from the date when the trial court denied her motion to open; the date of the determination of the original action for purposes of § 52-592 was the date that the trial court denied the plaintiffs motion to open the judgment of dismissal and not when it denied her motion to reargue, which is not the type of motion that gives rise to a new appeal period.
Argued April 21, 2005.
Officially released June 21, 2005.
Action to recover damages for personal injuries as a result of the defendants' alleged negligence, brought to the Superior Court in the judicial district of Danbury, where the court, Upson, J., granted the defendants' motion for summary judgment; thereafter, the court denied the plaintiffs motion to reargue and rendered judgment, from which the plaintiff appealed to this court. Affirmed.
H. Jeffrey Beck, for the appellant (plaintiff).
John C. Pitblado, with whom, on the brief, were Daniel P. Scapellati and Susan O'Donnell, for the appellees (defendants).
Opinion
The question presented in this appeal is whether the one year limitation period provided in General Statutes § 52-592 commences on the denial of a motion to reargue a motion to open a judgment. We conclude that it does not and accordingly affirm the judgment of the trial court.
The court's memorandum of decision reveals the following undisputed facts. In 1998, the plaintiff, Barbara Waldman, filed suit against the defendants, Andrew Jayaraj and Sheila Jayaraj. In her complaint, the plaintiff alleged that she sustained personal injuries after falling from a deck located at a residential dwelling in Brookfield that was owned by the defendants. A pretrial conference was scheduled on February 13, 2001, at which counsel for the plaintiff failed to appear. A judgment of dismissal subsequently was rendered against the plaintiff. In response, the plaintiff filed a motion to open the judgment of dismissal, which the court granted. The court thereafter issued an order scheduling a status conference for April 16, 2001. When counsel for the plaintiff again failed to appear, the court rendered another judgment of dismissal against the plaintiff. On April 23, 2001, the plaintiff filed a motion to open the judgment of dismissal, which the court denied. The plaintiff filed a motion to reargue that decision on June 2, 2001, which was denied. An amended motion to reargue filed one month later met the same fate.
On June 14, 2002, the plaintiff initiated a second action against the defendants pursuant to § 52-592, the accidental failure of suit statute. The plaintiff's complaint replicated her original complaint almost verbatim. On December 16, 2002, the defendants filed a motion for summary judgment, claiming, inter alia, that the new complaint was untimely. By memorandum of decision filed August 29, 2003, the court granted the motion for summary judgment and rendered judgment in favor of the defendants accordingly. From that judgment, the plaintiff now appeals.
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 because . . . a judgment of nonsuit has been rendered . . . 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." (Emphasis added.) This appeal concerns the contours of precisely when a "determination of the original action" transpires. The plaintiff insists that the action in the present case was determined not at the denial of her motion to open the judgment, but rather at the denial of her motion to reargue the motion to open. That argument confounds the express provisions of our rules of practice.
The plaintiff urges us to read § 52-592 in conjunction with Practice Book § 63-1 (c) (1). Practice Book § 63-1 (c) (1) provides in relevant part: "If a motion is filed within the appeal period that, if granted, would render the judgment . . . ineffective . . . a new twenty-day period . . . for filing the appeal shall begin on the day that notice of the ruling is given on the last such outstanding motion. . . .
"Motions that, if granted, would render a judgment . . . ineffective include, but are not limited to, motions that seek: the opening or setting aside of the judgment . . . [and] reargument of the judgment or decision. . . .
"Motions that do not give rise to a new appeal period include those that seek . . . reargument of a motion listed in the previous paragraph. . . ." Id. In Opoku v. Grant, 63 Conn. App. 686, 694, 778 A.2d 981 (2001), we noted that Practice Book § 63-1 (c) (1) "makes absolutely clear [that] a motion to open a judgment does give rise to a new appeal period, but a motion to reargue a motion to open does not." (Emphasis in original.) Thus, contrary to the plaintiffs assertions, her original action was determined at the denial of her motion to open the judgment. Because her June 14, 2002 complaint was filed more than one year after the date of that determination, it was untimely under § 52-592.
In Opoku, we held that a motion to reargue a motion does not toll the four month limitation period set forth in General Statutes $ 52-212(a). Opoku v. Grant, 63 Conn. App. 694.