Opinion
No. 348962
August 28, 2003
MEMORANDUM OF DECISION
This is an action for damage to the plaintiff's property allegedly caused by blasting operations conducted by defendant, Ravizza Brothers, Inc. (Ravizza Brothers), on property owned by the defendant, Gary Sippin. The plaintiff, John De Lucia, alleges that the blasting operations occurred between December 1, 1993 and approximately March 31, 1994. The plaintiff commenced this action in November 1997. The first count of the complaint sounds in negligence. The second count sounds in absolute liability for the conduct of an ultrahazardous activity. The defendants have moved for summary judgment on several grounds, principally that this action is barred by the statute of limitations.
This is the second action brought by the plaintiff against the defendants for the causes of action alleged. The first action, De Lucia v. Ravizza Brothers, Inc., Superior Court, judicial district of Fairfield at Bridgeport, Docket No CV 95 0328788, was brought in December 1995, and was made returnable on December 19, 1995. An examination of the file in that case, of which the court takes judicial notice; Hryniewicz v. Wilson, 51 Conn. App. 440, 444, 722 A.2d 288 (1999); reflects that on January 5, 1996, Sippin filed an answer to the complaint. Ravizza Brothers did not file an answer but, rather, on January 31, 1996, filed a request to revise the complaint. The plaintiff did not file an objection to the request or a revised complaint. Accordingly, on March 8, 1996, Ravizza Brothers moved for a judgment of nonsuit based on the plaintiff's failure to file a revised pleading in response to its request to revise. The court (Maiocco, J.) granted the motion for nonsuit on April 15, 1996. The parties agree, however, that notice of this order was not sent by the clerk until May 2, 1996. On September 5, 1996, the plaintiff filed a motion to open the judgment of nonsuit. Attached to the motion was an affidavit in which the plaintiff attested that he did not receive the court's notice until May 6, 1996. On November 8, 1996, Ravizza Brothers objected to the motion to open on the ground that the plaintiff did not file it within four months of either the date nonsuit entered or the date the court issued notice thereof. On November 25, 1996, the court (Melville, J.) sustained the objection. The plaintiff then filed a motion to reargue which Judge Melville granted on August 21, 1997. On December 8, 1997, however, Judge Melville again denied the motion to open the judgment "for failure to prosecute."
Ravizza also filed a separate motion for judgment of nonsuit based on the plaintiff's failure to answer discovery requests. On April 15, 1996, Judge Maiocco marked this motion "off" as "moot in light of default judgment per motion #106." Motion #106 was Ravizza's motion for judgment of nonsuit for failure to file a revised pleading in response to the request to revise.
As observed supra, this action is in two counts, negligence and absolute liability. With certain exceptions not relevant here, there is a "two-year statute of limitations for negligence actions under [General Statutes] § 52-584"; Nichols v. Lighthouse Restaurant, Inc., 246 Conn. 156, 162, 716 A.2d 71 (1998); and a three-year statute of limitations for absolute liability imposed for damage caused by blasting operations. Antinozzi v. D.V. Frione Co., 137 Conn. 577, 579, 79 A.2d 598 (1951); General Statutes § 52-577. There is no dispute that both such limitation periods have long expired. Therefore, this action is barred by the applicable statutes of limitation and is time barred unless it is maintainable under General Statutes § 52-592.
General Statutes § 52-592 (a) provides that under certain circumstances, including if "the action has been . . . avoided or defeated . . . for any matter of form," a plaintiff "may commence a new action . . . for the same cause at any time within one year after the determination of the original action . . ." "Section 52-292 by its plain language, is designed to prevent a miscarriage of justice if . . . plaintiffs fail to get a proper day in court due to various enumerated procedural problems." Henriquez v. Allegre, 68 Conn. App. 238, 243-44, 789 A.2d 1142 (2002).
Generally, "the one-year period in which to file a new action under § 52-592 begins when notice is issued that the original action has been terminated." Id., 243. Based on Morelli v. Manpower, Inc., 226 Conn. 831, 628 A.2d 1311 (1993), "a number of other Superior Court Judges have concluded that a matter is `determined' when the motion to reopen is denied. See Leonard v. Lucas, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 356286 (December 24, 1998, Skolnick, J.); Duhig v. Bengston, Superior Court, judicial district of Meriden, Docket No 255822 (March 11, 1997, DiPentima, J.) ( 19 Conn.L.Rptr. 17); Polesak v. Medical Laboratory Service, Superior Court, judicial district of Bridgeport, Docket No. 339545 (July 17, 1997, Skolnick, J.) (20 Conn.L.Rptr. 97)." Ingriselli v. Frisina, Superior Court, judicial district of New Britain, Docket No. CV 01 0507793 (March 15, 2002, Weise, J.) ( 31 Conn.L.Rptr. 578, 580).
The motion to open, however, must have been timely filed, otherwise the court lacks the general authority to grant the relief which the motion seeks. Kim v. Magnotta, 249 Conn. 94, 102-03, 733 A.2d 809 (1999). Any other rule would make the one-year provision in § 52-592 illusory.
The plaintiff's motion to open the judgment was finally denied on December 8, 1996. The plaintiff claims that he delivered the summons and complaint in this action to a state marshall for service prior to November 25, 1997, thereby commencing this action within one year of Judge Melville's order. See General Statutes § 52-593a; Lacasse v. Burns, 214 Conn. 464, 475-76, 572 A.2d 357 (1990).
The dispositive issue here is whether the plaintiff's motion to set aside the nonsuit was timely filed. This depends on when the nonsuit was rendered. General Statutes § 52-212 provides that "any judgment rendered or decree passed upon a . . . nonsuit in Superior Court may be set aside, within four months following the date on which it was rendered or passed . . ." A nonsuit is a judgment. Burgess v. Vanguard Ins. Co., 192 Conn. 124, 125 n. 1, 470 A.2d 244 (1984). "Our law is clear on this issue. A judgment does not exist as a legal entity until pronounced, expressed, or made known, in some appropriate way. Goldreyer v. Cronan, 76 Conn. 113, 117, 55 A. 594 . . . A judgment is in fact rendered in a cause tried to the court when the trial judge officially announces his decision orally in open court, or, out of court, signifies orally or in a writing filed with the clerk in his official capacity the decision pronounced by him." (Citations omitted; footnote omitted; internal quotation marks omitted.) Second Injury Fund v. Lupachino, 45 Conn. App. 324, 336-37, 695 A.2d 1072 (1997).
Practice Book § 17-43(a) provides in pertinent part: "Any judgment rendered . . . upon a . . . nonsuit may be set aside within four months succeeding the date on which notice was sent, and the case reinstated on the docket . . . upon the written motion of any party . . ." (Emphasis added.) This is the date when it is presumed that the statutory; General Statutes § 51-53; procedural; Practice Book § 7-5; and due process requirements have been satisfied; Kron v. Thelen, 178 Conn. 189, 193-94, 423 A.2d 857 (1979); and when the clerk promptly notifies counsel. Brown v. New Haven Taxicab Co., 93 Conn. 251, 258, 105 A. 706 (1919); Second Injury Fund v. Lupachino, supra, 45 Conn. App. 336-38; Russell v. Thomas O'Connor Co., 42 Conn. App. 345, 347, 679 A.2d 420 (1996); cf. Kudlacz v. Lindberg Heat Treating Co., 250 Conn. 581, 738 A.2d 135 (1999).
Notwithstanding the language of Practice Book § 17-43(a), the Appellate Court has stated that "[i]t is axiomatic that the right to move to open and vacate a judgment assumes that the party who is to exercise the right be given the opportunity to know that there is a judgment to open." (Internal quotation marks omitted.) Federal Deposit Ins. Corp. v. Caldrello, 68 Conn. App. 68, 71, 789 A.2d 1005, cert. denied, 260 Conn. 903, 793 A.2d 1088, cert. denied, 123 S.Ct. 111, 154 L.Ed.2d 35 (2002). Thus, in its "decisions regarding the commencement of the statutory four-month period for opening judgments [the Appellate Court has] held that the receipt of the notice, rather than its sending, triggers the four-month period in question." Henriquez v. Allegre, supra, 68 Conn. App. 245. See Handy v. Minwax Co., 46 Conn. App. 54, 56-59, 698 A.2d 339, cert. denied, 243 Conn. 921, 701 A.2d 342 (1997); Habura v. Kochanowicz, 40 Conn. App. 590, 592-93, 672 A.2d 512 (1996); and Morelli v. Manpower, Inc., 34 Conn. App. 419, 423, 642 A.2d 9 (1994). Therefore, if a party shows that it did not receive notice of a judgment, "the time within which [the party] may move to set aside the judgment is extended by the delay in notification." (Internal quotation marks omitted.) Federal Deposit Ins. Corp. v. Caldrello, supra, 68 Conn. App. 71.
Although the lapse of time between the date of judgment and the date of notice thereof was more extended in these cases than it is in the present case, the Appellate Court has not stated that the rule restated in Henriquez applies only when the delay is extraordinary.
Here, the parties agree that Judge Maiocco's April 15, 1996 decision granting Ravizza Brothers' motion for judgment of nonsuit was filed with the clerk on May 2, 1996. As observed supra, the plaintiff filed an affidavit in the underlying action in which he attested that he did not receive notice of that judgment until May 6, 1996. The plaintiff therefore had four months from May 6 within which to move to open the judgment. "The word `month' shall mean `calendar month.' General Statutes § 1-1 (i). Four calendar months refers `to a period of time and not to specific months as named in the calendar.' Krajniak v. Wilson, 157 Conn. 126, 130, 249 A.2d 249 (1968). A period of time of one calendar month, if the first day of that period is the first day of the calendar month, would terminate at the end of the last day of that calendar month rather than at the end of the first day of the next succeeding calendar month. Correspondingly, if the first day of the period is other than the first day of the month, such as April 29 . . . the period of one month would terminate at the end of May 28 rather than at the end of May 29. The same rule applies where the period, as here, consists of several months. Id." Infante v. Porath, 29 Conn. App. 465, 468, 615 A.2d 1073 (1992). Since it is settled that the day of the act from which a future time is to be ascertained is to be excluded from the computation; id.; the four-month period in this case began to run on May 7, 1996 and expired on September 6, 1996. Since the plaintiff filed his motion to open on September 5, 1996, that motion was timely filed. Since the motion was timely filed its denial on December 8, 1997 commenced the one-year time period for the filing of the present action. Since this action was filed in November 1997, it is not untimely under § 52-592.
The court next addresses the grounds for summary judgment that the defendants raised at oral argument that were beyond those contained in their motions and briefs. The court finds all grounds without merit and, with one exception, unnecessary to address in detail.
The one ground that merits discussion is the defendants' claim that the plaintiff cannot rely on § 52-592 because the first action was not dismissed for a "matter of form" as that term is used in the statute. See Ruddock v. Burrowes, 243 Conn. 569, 576-77, 706 A.2d 967 (1998). In Ruddock, the court concluded that "disciplinary dismissals are not excluded categorically from the relief afforded by § 52-592 (a)." Id., 576. Instead, "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 occurred in circumstances such as mistake, inadvertence or excusable neglect." Id., 577. In contrast, the court pointed out, the statute is not available to a plaintiff whose prior action was dismissed for egregious misconduct. Id. 576.
"A determination of the applicability of § 52-592 depends on the particular nature of the conduct involved." (Internal quotation marks omitted.) Stevenson v. Peerless Industries, Inc., 72 Conn. App. 601, 607, 806 A.2d 567 (2002). In the mere four months in which the first action was pending before Judge Maiocco granted Ravizza Brothers' motion for nonsuit, the plaintiff did not engage in an "egregious pattern of behavior that was never meant to be saved by provisions of § 52-592." Gillum v. Yale University, 62 Conn. App. 775, 784, 773 A.2d 986, cert. denied, 256 Conn. 929, 796 A.2d 1146 (2001); see also Skibeck v. Avon, 24 Conn. App. 239, 242-43, cert. denied, 219 Conn. 912, 593 A.2d 138 (1991). While the plaintiff did not thereafter remedy its default, this court does not find a pattern of egregious misconduct. Therefore, the plaintiff may rely on § 52-592 to avoid the bar of the statutes of limitation.
Finally, a procedural anomaly remains in this controversy which is worthy of comment. It appears that both the clerk and the parties have treated the first action as if the plaintiff had been nonsuited as to both parties on the motion of Ravizza Brothers. This is manifestly incorrect.
The construction of a judgment is a question of law for the court. Mazziotti v. Allstate Insurance Co., 240 Conn. 799, 806, 695 A.2d 1010 (1997). "A plaintiff may be nonsuited as to one of several divisible causes of action without affecting his right to proceed as to the others. Warlick v. Reynolds Co., 151 N.C. 606, 613, 66 S.E. 657 (1910); 27 C.J.S., Dismissal Nonsuit § 52 [now § 47]." Burgess v. Vanguard Ins. Co., 192 Conn. 124, 125 n. 1, 470 A.2d 244 (1984). A judgment is to be construed "in connection with its context and the judgment as a whole, and the circumstances surrounding the making of the judgment — the condition of the cause in which it was rendered. 1 Freeman, Judgments (5th Ed.), p. 133." (Internal quotation marks omitted.) Christiano v. Christiano, 131 Conn. 589, 592-93, 41 A.2d 779 (1945).
The plaintiff was nonsuited on Ravizza Brothers' motion only, for failing to comply with Ravizza Brothers' request to revise a complaint which Sippin had answered. Given this context and these circumstances it is wholly unreasonable to read Judge Maiocco's order as nonsuiting the plaintiff as to both defendants, and the court does not do so.
On June 27, 1997, however, the court dismissed the first action pursuant to Practice Book § 251 [now § 14-3] for failure to prosecute with reasonable diligence. Within four months of that order, the plaintiff moved to open that judgment. Although the plaintiff did not pursue that motion, he did commence the present action within one year of the dormancy dismissal and, therefore as to the defendant Sippin, as well as the defendant Ravizza Brothers, the present action is proper and timely. See Lacasse v. Burns, supra, 214 Conn. 464.
Both defendants' motions for summary judgment are denied.
BY THE COURT
Bruce L. Levin Judge of the Superior Court