Opinion
No. X 09 CV 08 5024033
August 14, 2009
MEMORANDUM OF DECISION ON MOTION TO DISMISS
This is the second attempt by Attorney Robert E. Wright to prosecute successfully an action against three law firms he claims defamed him, negligently inflicted emotional distress upon him, abused the legal process and engaged in unfair trade practices. The first action ( Wright I) ended in a judgment of nonsuit, entered by the court (Langenbach, J.) upon motion of the defendant Koskoff, Koskoff Bieder (the Koskoff firm), claiming a pattern of non-compliance with discovery requests on the part of Mr. Wright, as well as his failure to comply with a court order compelling him to respond to the Koskoff firm's interrogatories and requests for production. The defendants' motion to dismiss raises the question whether the accidental failure of suit statute, Conn. General Statutes § 52-592(a),1 saves this action ( Wright II)2 from the admitted preclusive effects of the statutes of limitation applicable to its various counts.3
I
Briefly stated, the allegations of the complaint, taken as true for the purpose of this motion, are as follows. The Koskoff firm and two others (firms) were retained by the town of Rocky Hill (town) to bring a lawsuit against certain banking and financial institutions that had participated in a transaction between the Enron Corporation and the Connecticut Resources Recovery Authority (CRRA). Without authorization by the town, the firms drafted a complaint making claims against Mr. Wright, the former president of CRRA, which claims were untrue and defamatory. The complaint was served on the plaintiff and others and released to the media, was the subject of a press conference called by the firms and was posted on the website of one of the firms.
Not only were these actions taken by the firms without the town's authorization, but they were also taken to serve the commercial interests of the firms in obtaining new clients and to damage Mr. Wright. As a result of the firms' actions, Mr. Wright claims to have suffered damages.
Of greater relevance to the issues raised by the pending motion to dismiss is the procedural history of Wright I.4 That action was filed in October 2004. Affidavit of Douglas J. Varga, counsel for the Koskoff firm (Varga affidavit) ¶ 3. On May 15, 2006 an order was entered by the court (Langenbach, J.), scheduling the case for trial on October 10, 2007, setting dates for the completion of various discovery phases and scheduling a status conference for May 14, 2007. Id., ¶ 5. The docket entries for Wright I,4 reveal that there was extensive litigation over discovery issues, including motions filed by the Koskoff firm and another of the defendant firms, Jacobs, Grudberg Dow (the Jacobs firm), to compel Mr. Wright's compliance with their discovery requests, both of which were granted (Langenbach, J.). Id., ¶¶ 8, 10. In addition, the court (Langenbach, J.) granted a motion of the Koskoff firm to determine the sufficiency of Mr. Wright's responses to requests for admission, pursuant to which all of the firm's requests were deemed admitted. Id., ¶ 10. When Mr. Wright, himself, was deposed, he neglected to bring with him documents responsive to certain of the firms' requests for production. Id. Mr. Wright admits to as much and claims that his failure was negligent not intentional. Wright affidavit, ¶¶ 31, 32.
The Koskoff firm's motion to compel compliance with its discovery requests was granted on January 5, 2007, and a compliance date was set for February 5, 2007. Varga affidavit, ¶ 8. When Mr. Wright had not complied by that date, the firm filed a motion for sanctions on February 13, including a request that the action be dismissed. Id., ¶ 6 exhibit C. While Mr. Wright did file a purported compliance on February 12, 2007, there then ensued two months of attempts by the Koskoff firm to secure responses to its interrogatories and production requests that were complete and in the form required by the Practice Book. Id., ¶ 8. Complete and verified responses were not provided by Mr. Wright until May 21, 2007. Wright affidavit, ¶ 44.
On May 14, 2007 the court (Langenbach, J.) held the status conference set for that date a year earlier, when the scheduling order had been entered. Although all defense counsel attended, Mr. Wright (who represented himself throughout Wright I, as he does in Wright II) did not. Varga affidavit, ¶ 12. A week later, on May 21, 2007, Judge Langenbach granted the Koskoff firm's motion for sanctions of February 13, entering a judgment of nonsuit. Id., 14. Mr. Wright had never filed an objection to that motion, nor did he file a motion to open the judgment of nonsuit. Almost a year later, on May 16, 2008, he filed this action.
Although Mr. Wright admits to receiving a letter from the Koskoff firm's counsel in Wright I on April 30, 2007, advising him that counsel intended to claim his motion for sanctions for adjudication, Mr. Wright claims in his affidavit; ¶ 40; that the Koskoff firm never filed a request for adjudication of its motion for sanctions, the standard vehicle for obtaining decision of a motion on the complex litigation docket. At argument on this motion to dismiss, however, counsel for the Koskoff firm produced a request for adjudication of his motion for sanctions, dated May 2, 2007, certified to Mr. Wright, and Mr. Wright did not contest its authenticity.
With his affidavit opposing this motion to dismiss, Mr. Wright filed what he claims to be a true and accurate copy of his draft objection to the motion for sanctions, dated May 21, 2007, but never filed with the court. Wright affidavit, ¶ 48 exhibit 4. He claims to have intended to file it on May 22, 2007, but the court granted the motion on May 21. Id., ¶¶ 49, 50.
The firms claim, in a joint motion to dismiss, that each of Mr. Wright's six causes of action is barred by the applicable statute of limitations, and that he cannot save this action by invoking § 52-592. Mr. Wright objects, arguing that his conduct in Wright I was the result of mistake or excusable negligence, thus satisfying the requirements of the statute.
Mr. Wright also argues that the motion to dismiss is untimely, having been filed more than thirty days after the firms entered their appearances in this action, in contravention of Practice Book § 10-30. It is well established that, in the absence of objection, a motion to dismiss may be used to assert that an action is not saved by § 52-592. See, e.g., Viejas Band of Kumeyaay Indians v. Lorinsky, 116 Conn.App. 144, 155 n. 14. It is equally well established that § 10-30 does not apply to motions to dismiss that do not contest the court's jurisdiction. Durkin v. Intevac, Inc., 258 Conn. 454, 480 (2001). A court that decides to dismiss a case because the accidental failure of suit statute does not save the action has jurisdiction but cannot exercise it because the applicable statute of limitations has run.
II
The court (Langenbach, J.) nonsuited Mr. Wright for the discovery misconduct described in the Koskoff firm's motion for sanctions, and it is clear from the sequence of events that his failure to appear for the court-ordered status conference a week before the nonsuit was a determining factor as well. Thus, this was a disciplinary nonsuit. In Ruddock v. Burrowes, 243 Conn. 569 (1998), the Supreme Court held that, because of the remedial purpose of the statute; Id., 575; "disclipinary [nonsuits] are not excluded categorically from the relief afforded by § 52-592(a)." Id., 576. The plaintiff has the burden, however, of "establishing the right to avail himself . . . of the statute" by "showing that the prior [nonsuit] 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., 577.
Judge Langenbach did not write a memorandum of decision; he simply issued an order granting the motion for sanctions. See exhibit H to Defendants' Memorandum of Law in Support of their Joint Motion to Dismiss.
"Whether the statute applies cannot be decided in a factual vacuum." Id., 576. The plaintiff "must be afforded an opportunity to make a factual showing" that the conduct that led to the termination of his case was nothing more serious than "mistake, inadvertence or excusable neglect." Id., 577. The plaintiff here, Mr. Wright, was afforded that opportunity at the court's hearing on the motion to dismiss. Before the hearing, however, he had indicated on his objection to the motion that "No Testimony [was] Required." At the hearing he offered no testimony from himself or any other witness as to the reasons for his failure to comply with the court's order compelling his responses to the Koskoff firm's discovery requests or his failure to appear for the status conference on May 14, 2007. So, the court is left to consider the affidavits filed by him and the firms in deciding whether he has met his burden.
In his affidavit, filed in support of his objection, Mr. Wright admits that he did not fully comply with the court's order until May 21, 2007; Wright affidavit, ¶ 44; more than three months after it was due, on February 5, 2007. Id., ¶ 20. His only explanation for his failure to comply is that, "Toward the end of March 2007, the parties began an extremely busy period in the litigation." Id., ¶ 28. Further, he cites no reason for his non-appearance at the court-ordered status conference on May 14, 2007 other than "an irreconcilable professional conflict," which he communicated to only one of three defense counsel, and not to the court. Id., ¶ 42. He offers no explanation for failing to comply with the discovery requests of the Jacobs firm, which necessitated another order to comply by the court (Langenbach, J.), or for his filing responses to requests for admissions so inadequate that the court (Langenbach, J.) ordered that they all be considered to have been admitted.
The interrogatories and production requests that were the subject of Judge Langenbach's order of compliance had been served on Mr. Wright on July 19, 2006. Varga affidavit, ¶ 8.
In this court's opinion Mr. Wright has failed entirely to meet his burden of establishing his right to take advantage of § 52-592. And, there is another reason why he may not claim the protection of that statute.
Some of the cases in which the Appellate Court has denied the protection of § 52-592 have involved truly egregious conduct on the part of the litigant. E.g., Skibeck v. Avon, 24 Conn.App. 239 (1991); Gillum v. Yale University, 62 Conn.App. 775 (2001) The standard, however, is not whether the litigant's conduct was "egregious": it is whether it was the product of "mistake, inadvertence or excusable neglect." Ruddock v. Burrowes, supra, 243 Conn. 577.
In Ruddock the Supreme Court identified another class of cases in which it had concluded that a judgment terminating an earlier action was not a "matter of form"; viz., where the plaintiff had withdrawn his action voluntarily or consented to its dismissal, either overtly or by inference from his action or inaction. Id., 577.
Mr. Wright made no objection to the Koskoff firm's motion for sanctions, which included a request that his case be dismissed, either when the motion was first made in February 2007 or when he was advised by counsel for the firm on April 30, 2007 that he intended to claim the motion for decision by Judge Langenbach. By the time the motion came on to be decided Judge Langenbach had struck six of the twelve counts of his complaint, denied his motion for a protective order seeking to limit inquiry by defense counsel at his own deposition and denied his motion to modify the scheduling order; Varga affidavit, ¶ 11; all in addition to the judge's previous entry of two orders of compliance, an order that all of the Koskoff firm's requests for admissions be deemed admitted, and soon after Mr. Wright's unexplained and unexcused absence from the status conference Judge Langenbach had ordered. In addition, the trial date before Judge Langenbach, October 10, 2007, was fast approaching.
Nor did Mr. Wright move to open the nonsuit entered by Judge Langenbach, even though he claims to have prepared, albeit belatedly, an objection to the motion for sanctions which could easily have been turned into a motion to open. See Wright affidavit, ¶¶ 47, 48, and exhibit 4. He was well aware of his opportunity to request that the nonsuit be opened and discussed with defense counsel his choice to have the case restored to the docket via that route or file another action, invoking § 52-592(a). Varga affidavit, ¶¶ 16, 17; Affidavit of Elizabeth M. Cristofaro, counsel for Cramnore, Meaney Fitzgerald, ¶ 8; Affidavit of Michael P. Del Sole, counsel for the Jacobs firm, ¶ 9.
Wright I was pending on the complex litigation docket over which Judge Langenbach presided. Therefore, because cases on that docket remain with the same judge throughout, Mr. Wright knew that any motion to open would be heard and decided by Judge Langenbach, who was, of course, the person in the best position to determine whether Mr. Wright was prevented from prosecuting Wright I "by mistake, accident or other reasonable cause," the standard for opening a judgment of nonsuit. See Conn. General Statutes § 52-212.
Mr. Wright comments in his affidavit on only one of these conversations, stating only that he does not recall "pondering" his options in front of Attorney Del Sole, but affirming that he did discuss the nonsuit in a phone conversation with Attorney Del Sole. Wright affidavit, ¶¶ 54 55.
The reasonable and logical conclusion, indeed, the inescapable conclusion from these facts is that Mr. Wright had made a strategic decision to, in effect, retreat and fight another day, before another judge, on his claims against the firms. Thus, the termination of Wright I was not due to mistake, inadvertence or excusable neglect but was the result of a conscious choice by Mr. Wright. It was akin to a voluntary withdrawal of an action, or a consent to its termination, and it is well established that "withdrawal . . . cannot by the most liberal construction constitute accidental failure of suit for matter of form . . ." (Citation and internal quotation marks omitted.) Lind-Larsen v. Fleet National Bank of Conn., 84 Conn.App. 1, 10 (2004). See Richey v. Cellmark Pulp Paper Co., Superior Court, judicial district of Tolland, Docket No. CV 04-4000319 (Apr. 22, 2005).
This case is unlike Stevenson v. Peerless Industries, Inc., 72 Conn.App. 601 (2002), because the plaintiff there "provided a credible excuse for his failure to respond [to a request to revise the complaint and a discovery request], that is, miscommunication with his Pennsylvania counsel." Id., 610. Stevenson also did not involve the violation of court orders by the plaintiff. Finally, the plaintiff's intention to file a motion to open the judgment of nonsuit in Stevenson was defeated by a secretarial miscue in the office of his Pennsylvania counsel; Id., 605; it was not a conscious decision to bypass that remedy, as in this case. Nor is this case similar to Tellar v. Abbott Laboratories, Inc., supra. There, the plaintiff's failure to comply with a single discovery request was promptly corrected and explained in an affidavit from his attorney, chronicling a series of very serious health problems in the attorney's immediate family that prevented him from giving his full attention to the case. Id., 247.
Finally, as pointed out in Tellar, "Conn. General Statutes § 52-592 was enacted, in large measure, to shield the client from the fallibility of counsel." Tellar v. Abbott Laboratories, Inc., supra, 114 Conn.App. 255. Mr. Wright needs no such shield as he is both client and counsel. So, the purpose of the statute would not be served by allowing him to claim its protection.
III
The conduct complained of in Wright I and Wright II occurred in 2002, seven years ago, and six years before Wright II was commenced. If this action is allowed to proceed, another year or two may well go by before it is over. In such a situation "the search for truth . . . may be impaired by the loss of evidence, whether by death or disappearances of witnesses, fading memories, disappearance of documents or otherwise." (Internal quotation marks omitted.) Neuhaus v. DeCholnoky, 280 Conn. 190, 207 (2006). The defendants will incur expenses over and above those they incurred in defending Wright I during the three years of its existence. They will be further prejudiced by their inability "to plan their affairs with a degree of certainty, free from the disruptive burden of protracted and unknown potential liability." Id., 215. So, this case is unlike Tellar in that the defendants here claim, and the court finds that they would be prejudiced by the continuation of this action. See Tellar v. Abbott Laboratories, Inc., supra, 114 Conn.App. 253.
In his argument that the firms will not be prejudiced by the lapse of time in bringing this contest to an end, Mr. Wright observes that "(t)he defendants are lawyers." Plaintiff's Memorandum of Law in Support of Objection to Dismiss, 20 (Mar. 11, 2009). Surely, even lawyers are entitled to the protections of the statutes of limitations.
"[A] court must be watchful of attempts to avoid the very purpose of statutes of limitation, i.e., ensuring finality in the litigation process." Skinner v. Dodger, 99 Conn.App. 540, 554 (2007). "As Ruddock clarifies, § 52-592(a) does not guarantee that all cases will receive adjudication on their merits. Construction of the statute should not be so liberal as to render a statute of limitations for bringing a cause of action virtually meaningless." (Citation and internal quotation marks eliminated.) Gillum v. Yale University, supra, 62 Conn.App. 786.
IV
For all of the reasons discussed in this memorandum of decision, the defendants' joint motion to dismiss is GRANTED.
1 "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 . . ."
2 The complaints in Wright I and Wright II are identical, to the point of inclusion in the original Wright II complaint of six counts struck from the Wright I complaint. Those counts were removed via the filing of an amended complaint in Wright II.
3 The parties agree that Wright I was commenced within the statutes of limitations governing its various counts, and that those statutes had run before the commencement of this action. Thus, this action is barred unless § 52-592(a) saves it.
4 The history of the prior litigation is taken from affidavits filed in support of the motion to dismiss by counsel for the firms, who were also defense counsel in Wright I. Mr. Wright's affidavit (Wright affidavit), filed in opposition to the motion, for the most part does not quarrel with the factual recitations in those affidavits although, of course, he does challenge the conclusions drawn by defense counsel from the procedural history of Wright I. ". . . (T)he motion to dismiss invokes any record that accompanies the motion, including supporting affidavits that contain undisputed facts." Tellar v. Abbott Laboratories, Inc., 114 Conn.App. 244, 246 (2009).
The docket entries for Wright I were appended to the affidavit of counsel for the Koskoff firm in support of the motion to dismiss.