Opinion
No. CV 02-0817421
May 8, 2006
MEMORANDUM OF DECISION
Based on a review of the file and the exhibits attached to the defendant's motion for summary judgment, the court finds the following undisputed facts:
The plaintiff commenced a malpractice action against the defendant returnable June 25, 2002. At the time, the plaintiff was represented by Attorney Ronald L. Lepine who was disbarred from the practice of law on June 22, 2004. On that same date, Attorney Vincent Sabatini, to whom Lepine's files were turned over, filed an appearance in this action. On June 28, 2004, Attorney Sabatini filed a motion to withdraw his appearance after the plaintiff declined his representation. Attorney Sabatini notified the plaintiff that she needed to obtain a new attorney or file an appearance on her own behalf or she would risk a nonsuit. On July 19, 2004, the motion to withdraw was granted. The defendant then filed a motion for nonsuit for failure to appear dated September 3, 2004 and certified the motion to the plaintiff. On December 13, 2004 the court granted the motion for nonsuit "unless plaintiff files an appearance within 30 days." Notice of the court's order is dated December 28, 2004 and indicates it was sent to "all appearing parties." On February 4, 2005, the defendant filed a notice that judgment entered on January 12, 2005, and certified the notice to the plaintiff. On March 3, 2005, present counsel for the plaintiff filed an appearance and a motion to open the judgment of nonsuit. On April 4, 2005, the motion to open was denied.
This action was commenced returnable July 19, 2005. The plaintiff avers in her complaint that the action is brought pursuant to the accidental failure of suit statute General Statutes § 52-592(a) which provides: "If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because of insufficient service or return of the writ due to unavoidable accident or the default or neglect of the officer to whom it was committed, or because the action has been dismissed for want of jurisdiction, or the action has been otherwise avoided or defeated by the death of a party or for any matter of form; or if, in any such action after a verdict for the plaintiff, the judgment has been set aside, or if a judgment of nonsuit has been rendered or a judgment for the plaintiff reversed, the plaintiff, or, if the plaintiff is dead and the action by law survives, his executor or administrator, 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.
The defendant moves for summary judgment on the ground that this action is barred by the applicable statute of limitations and is not saved by General Statutes § 52-592 because the plaintiff's own inexcusable neglect resulted in the failure of the original action.
"Deemed a saving statute, § 52-592 enables plaintiff's to bring anew causes of action despite the expiration of the applicable statute of limitations . . . 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." (Internal quotation marks omitted.) Stevenson v. Peerless Industries, Inc., 72 Conn.App. 601, 607, 806 A.2d 567 (2002). "Section 52-592 by its plain language, is designed to prevent a miscarriage of justice if the plaintiffs fail to get a proper day in court due to the various enumerated procedural problems . . . It was adopted to avoid hardships arising from an unbending enforcement of limitation statutes . . . Its purpose is to aid the diligent suitor." (Citation omitted; internal quotation marks omitted.) Henriquez v. Allegre, 68 Conn.App. 238, 243-44, 789 A.2d 1142 (2002).
In Stevenson v. Peerless Industries, Inc., supra, 72 Conn.App. 601, the plaintiff "claimed that the mistakes that occurred in pursuing his case did not constitute `egregious conduct' and that he therefore was entitled to avail himself of the accidental failure of suit statute." Id., 605. Specifically, the plaintiff contended that he failed to comply with discovery requests due to miscommunication with one of his attorneys and that his counsel's secretary failed to recognize the discovery requests as such and failed to file a motion to open judgment as instructed. Id. The Appellate Court reversed the dismissal by the trial court, finding that the situation involved excusable neglect. Id., 610. Importantly, in reaching its holding, the Appellate Court distinguished the facts of that case from other cases, such as Skibeck v. Avon, 24 Conn.App. 239, 587 A.2d 166, cert. denied, 219 Conn. 912, 593 A.2d 138 (1991) and Gillum v. Yale University, 62 Conn.App. 775, 783, 773 A.2d 986, cert. denied, 256 Conn. 929, 776 A.2d 1146 (2001), which the court found to present "situation[s] beset by years of unnecessary litigation and cumulative transgressions." Internal quotation marks omitted.) Id., 607.
In Skibeck v. Avon, supra, 24 Conn.App. 239, the Appellate Court agreed with the trial court that the conduct of the plaintiff was egregious, and summarized the relevant procedural history as follows: "The genesis of this cause of action is an automobile collision that occurred eleven years ago. Suit was first instituted ten years ago and the first dismissal, although saved by a motion for a new trial was granted nearly eight years ago. The case was again dismissed and saved by a motion to open. The original action was finally dismissed in December 1987. After nearly eight years, the plaintiff had not managed to prosecute her claim and try the case on its merits. The present action was filed six months later." Id., 243.
In Gillum v. Yale University, supra, 62 Conn.App. 775, the Appellate Court again agreed with the trial court that the conduct of the plaintiff was egregious, and summarized the relevant procedural history as follows: "In addition to the fact that the plaintiffs' conduct occasioned three dismissals, which hampered the movement of the case toward a resolution, the plaintiffs further hindered the progress of the case by continually running deadlines to their limits before filing motions to reopen or complying with court orders. Even after the third dismissal, the plaintiffs' counsel failed to communicate promptly to the court an explanation for his conduct. Additionally, the plaintiffs' counsel permitted months to elapse before attempting to reopen the case. That pattern of conduct, evidenced by the court file, far surpasses mistake, inadvertence or excusable neglect." Id., 783-84.
The court is persuaded that the circumstances of this case are distinguishable from those cases in which the saving affect of General Statutes § 52-592 has been denied, those cases which presented "situation[s] beset by years of unnecessary litigation and cumulative transgressions."
This is not a case in which the court entered several dismissals or where after a long delay a party moves to open the judgment in the original action. Although the plaintiff did not file an appearance after she was advised to do so, she avers in her affidavit that upon review of the files returned to her she noted that sections previously held by Attorney Lepine were missing. Focusing on the time frame between when the court ordered that an appearance be filed within 30 days and when counsel for the plaintiff appeared, there was not an unconscionable delay. There is no pattern of conduct here that far surpasses mistake, inadvertence or excusable neglect. Finally, the defendant has not shown prejudice engendered by delay or by allowing the action to proceed. For instance, the court notes that the defendant had already deposed the plaintiff in the original action.
The motion for summary judgment is denied.