Opinion
No. CV 03-0285666
August 30, 2004
MEMORANDUM OF DECISION ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (#109)
The defendants have moved for summary judgment on the grounds that this action is barred by the statute of limitations. The only question the court must address is whether the plaintiff's failure to comply with discovery obligations that resulted in non-suit of a prior proceeding between the parties was so egregious as to prevent plaintiff from being the beneficiary of the accidental failure of suit statute. General Statutes § 52-584. For the reasons stated below, the motion for summary judgment is denied.
FACTS
This action arises out of a motor vehicle accident that occurred on or about May 6, 2000, as a result of which the plaintiff, Antonio Marino, seeks money damages for personal injuries. The plaintiff originally filed an action against the defendants, Kathleen McAneany and Timothy McAneany, on May 21, 2002. See Marino v. McAneany, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 02-02808605 ( Marino I or prior action). The plaintiff alleged that Kathleen McAneany's negligent operation of a motor vehicle owned by Timothy McAneany caused the vehicle to collide with the plaintiff's motor vehicle, injuring the plaintiff.
In Marino I, the named plaintiffs were Antonio Marino and Angelo Marino. The original complaint contained two counts. Count one represented Antonio Marino's negligence cause of action and count two represented Angelo Marino's negligence cause of action. On June 24, 2002, however, count two as to Angelo Marino was withdrawn. Accordingly, any reference herein to the plaintiff is solely to Antonio Marino.
Marino I was commenced by service on May 16, 2002. On August 5, 2002, the defendants filed a motion for order of compliance, pursuant to Practice Book § 13-14, seeking an order that plaintiff make full and fair compliance with certain interrogatories and requests for production no later than two weeks after the court ruled on the motion. The court, Gilardi, J., granted the motion on August 21, 2002. On September 24, 2002, the defendants filed another motion for order of compliance, this time seeking a judgment of nonsuit against the plaintiff for failure to comply with the court's order of August 21, 2002. On October 9, 2002, the court, Wiese, J., granted the defendants' motion and entered a judgment of nonsuit against the plaintiff. On August 6, 2003, the plaintiff filed a request for leave to amend the complaint with an amended complaint, dated July 23, 2003, appended thereto. On July 31, 2003, the defendants filed an objection to the plaintiff's request for leave to amend the complaint on the ground that a judgment of nonsuit had already entered against the plaintiff.
The plaintiff filed the instant one-count complaint against the defendants on October 2, 2003. The plaintiff alleges substantially the same cause of action as he did in the prior action. He further alleges that he has brought the present action pursuant to General Statutes § 52-592, the accidental failure of suit statute, because a "previous action was dismissed on a nonsuit motion and the case was never tried on the merits." (Plaintiff's complaint, dated September 16, 2003, p. 1, ¶ 1.) On December 8, 2003, the defendants filed an answer and two special defenses. In the first special defense, the defendants allege that the plaintiff's claim is barred by General Statutes § 52-584. In the second special defense, the defendants allege that, at the time of the incident alleged in the complaint, the plaintiff was careless and negligent.
On February 11, 2004, the defendants filed a motion for summary judgment on the grounds that the plaintiff's action is barred by § 52-584, the statute of limitations for negligence actions, and that § 52-592 is inapplicable. In support of the motion for summary judgment, the defendants have submitted the following: (1) a memorandum of law; (2) a copy of a notice of compliance, dated July 8, 2002, and purportedly filed by the plaintiff during the pendency of the prior action (exhibit A); and (3) another copy of a notice of compliance, dated October 14, 2002, and also purportedly filed by the plaintiff during the pendency of the prior action (exhibit B). On March 15, 2004, the plaintiff filed a memorandum of law in opposition, attached to which is the sworn affidavit of attorney Balzano. On March 22, 2004, the defendants filed a reply memorandum of law, attached to which is the sworn affidavit of attorney Jeffrey Lahr, who was the defendants' attorney of record in Marino I and in the current action. On June 1, 2004, attorney Balzano filed another affidavit, dated May 26, 2004, as per the order of this court.
A review of the court file in Marino I reveals that the two notices of compliance submitted by the defendants in support of the motion for summary judgment as exhibits A and B were not in fact filed by the plaintiff with the court. The copies of the notices that the defendants have submitted, however, are signed by the plaintiff's attorney, Alphonse Balzano, who was the attorney of record in Marino I and the current action. The plaintiff has not objected to the admissibility of the notices. The court therefore has taken the notices into consideration in deciding the pending motion for summary judgment.
DISCUSSION
"Practice Book § 17-49 provides that 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. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Webster Bank v. Oakley, 265 Conn. 539, 545, 830 A.2d 139 (2003), cert. denied, 124 S.Ct. 1603, 158 L.Ed.2d 244 (2004). "The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to judgment as a matter of law . . ." (Citation omitted; internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 209, 757 A.2d 1059 (2000). "As the party moving for summary judgment, the [movant] is required to support its motion with supporting documentation, including affidavits." Heyman Associates No. 1 v. Insurance Co. of Pennsylvania, 231 Conn. 756, 796, 653 A.2d 122 (1995). "[T]he party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Internal quotation marks omitted.) Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 252, 819 A.2d 773 (2003).
"Summary judgment in favor of the defendant is properly granted if the defendant in its motion raises at least one legally sufficient defense that would bar the plaintiff's claim and involves no triable issue of fact." (Internal quotation marks omitted.) Serrano v. Burns, 248 Conn. 419, 424, 727 A.2d 1276 (1999). "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).
In the present case, the defendants argue in support of the motion for summary judgment that the plaintiff's action is being brought outside of the two-year time limitation imposed by § 52-584, the statute of limitations for negligence actions. The present action, they conclude, is barred and they are entitled to summary judgment as a matter of law. The defendants further argue that § 52-592 is not available to the plaintiff because the plaintiff's conduct during the course of the prior action "was not as a result of mistake, inadvertence, mistake or excusable neglect but rather constituted a series of cumulative transgressions egregious in nature." (Defendants' memorandum of law in support of motion for summary judgment, p. 9.) The defendants argue that the plaintiff ignored two motions for order of compliance filed by the defendants in the prior action and that a supplemental compliance filed by the plaintiff failed to address certain deficiencies noted by the defendants. The defendants further argue that the plaintiff could have filed a motion to open or a motion to set aside the judgment of nonsuit.
The pages in the defendants' memorandum of law in support are not numbered.
The plaintiff argues in opposition that his conduct in the prior action did "not rise to the level of egregious misconduct and he is, therefore, not barred from the protections of § 52-592(a) . . ." (Plaintiff's memorandum of law in opposition to motion for summary judgment, p. 1.) The plaintiff asserts that a judgment of nonsuit was ordered in the prior action "because the [p]laintiff failed to respond to the [d]efendants' requests for discovery due to counsel's office having temporarily misplaced the file. Counsel's office attempted to locate the file and, upon locating it, promptly filed answers to the [d]efendants' discovery requests" (plaintiff's memorandum, p. 3), although, as the affidavit of May 26, 2004, acknowledges, those answers inadvertently omitted one document defendants had sought. The plaintiff argues that he "has made a sufficient factual showing that the dismissal was due to mistake, inadvertence or excusable neglect." (Plaintiff's memorandum, p. 3.) The plaintiff concludes that "[t]he second action was timely commenced under § 52-592(a) and said statute serves to save the [p]laintiff's action under the totality of the circumstances presented here." (Plaintiff's memorandum, p. 5.)
The pages in the plaintiff's memorandum of law in opposition are not numbered.
The defendants assert in their reply memorandum of law that the plaintiff did not inform the defendants that the plaintiff's attorney misplaced the file during the pendency of the prior action. In his affidavit attached to the defendants' reply memorandum of law, attorney Lahr attests that, prior to receiving the plaintiff's memorandum of law in opposition to the motion for summary judgment, he was never advised that the plaintiff's attorney misplaced the file.
The applicable statute of limitations for negligence actions, § 52-584, provides in relevant part: "No action to recover damages for injury to the person . . . caused by negligence . . . shall be brought but within two years from the date when the injury is first sustained or discovered . . ." When an action is brought after this time has elapsed, "[u]nless some exception tolls the statute . . . the action is barred by the two-year provision of § 52-584." Little v. Bauer, Superior Court, judicial district of Hartford, Docket No. CV 00-0801591 (February 25, 2002, Beach, J.). In the present case, the plaintiff alleges that he was injured on or about May 6, 2000. The defendants were served with process on September 26, 2003, clearly beyond the two-year time limitation of § 52-584. Accordingly, unless the plaintiff can avail himself of § 52-592, his claim against the defendants will be barred by the statute of limitations.
Section 52-592 provides in relevant part:
(a) 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 . . . 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.
It is not in dispute that pursuant to § 52-592(a), the plaintiff brought the present action within one year of the entry of the judgment of nonsuit in the prior action.
"Deemed a `saving statute,' § 52-592 enables plaintiffs to bring anew causes of actions 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).
The seminal case addressing the issue of the applicability of § 52-592(a) to disciplinary dismissals is Ruddock v. Burrowes, 243 Conn. 569, 706 A.2d 967 (1998). In Ruddock the court stated that
[d]isciplinary dismissals do not, in all cases, demonstrate the occurrence of misconduct so egregious as to bar recourse to § 52-592 . . . Whether the statute applies cannot be decided in a factual vacuum. To enable a plaintiff to meet the burden of establishing the right to avail himself or herself of the statute, 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 with a court order occurred in circumstances such as mistake, inadvertence or excusable neglect.
(Citation omitted.) Ruddock v. Burrowes, supra, 576-77. "A determination of the applicability of § 52-592 depends on the particular nature of the conduct involved." Stevenson v. Peerless Industries, Inc., supra, 72 Conn.App. 607. "Whether the prior dismissal was a `matter of form' is, in the absence of a genuine issue of material fact, a legal issue for the trial court to determine." St. Val v. Molinar, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 03-0193234 (June 23, 2003, Lewis, J.T.R.), citing Gillum v. Yale University, 62 Conn.App. 775, 785, 773 A.2d 986, cert. denied, 256 Conn. 929, 776 A.2d 1146 (2001).
In Stevenson v. Peerless Industries, Inc., supra, 72 Conn.App. 610, the trial court granted the defendant's motion to dismiss and the Appellate Court reversed, holding that the plaintiff was entitled to avail himself of the accidental failure of suit statute. In that case, the plaintiff filed the original action in 1998. Stevenson v. Peerless Industries, Inc., supra, 603. After the plaintiff failed to comply with certain discovery requests and respond to a request to revise, the defendant Peerless moved for a judgment of nonsuit, which the court granted on July 8, 1999. Id. The plaintiff did not respond to the motion for nonsuit and did not attempt to open the judgment. Id. The plaintiff brought a second action on the same claims on July 6, 2000, invoking § 52-592(a). Id., 604. Peerless filed a motion to dismiss the complaint, arguing that the plaintiff's failure to prosecute the case diligently was not due to mere mistake, inadvertence or excusable neglect. Id. In opposition to the motion to dismiss, the plaintiff argued that he had failed to respond to discovery requests because of miscommunication with one of his attorneys, who practiced in Pennsylvania, and because the attorney's secretary mistakenly failed to prepare a motion to open. Id., 604-05.
The court concluded that
[t]he plaintiff's actions in this case constitute the type of excusable neglect to which our Supreme Court referred in Ruddock and did not rise to the level of egregious conduct. This is not a situation beset by years of unnecessary litigation and `cumulative transgressions.' . . . Rather, as the plaintiff explained, after filing his action in 1998, he failed to respond timely to the request to revise and to discovery demands, due, in part, to miscommunication with counsel in Pennsylvania.
(Citation omitted.) Id., 607-08. The Stevenson court then distinguished the facts in that case from cases in which the Appellate Court affirmed challenges to a court's decision that a plaintiff could not invoke § 52-592(a). Id., 608-09; see, e.g., Skibeck v. Avon, 24 Conn.App. 239, 587 A.2d 166, cert. denied, 219 Conn. 912, 593 A.2d 138 (1991); Gillum v. Yale University, supra, 62 Conn.App. 783; Pepitone v. Serman, 69 Conn.App. 614, 794 A.2d 1136 (2002).
In Skibeck v. Avon, supra, 24 Conn.App. 243, the Appellate Court affirmed the lower court's rendering of summary judgment in an action that had been filed pursuant to § 52-592(a) as a result of the three dismissals of the case and the plaintiff's egregious conduct during the course of the litigation, which lasted over ten years.
In Gillum v. Yale University, supra, 62 Conn.App. 787, the Appellate Court affirmed the lower court's rendering of summary judgment in an action that had been filed pursuant to § 52-592(a). The lower court had rendered three judgments of dismissal over the course of six years. Gillum v. Yale University, supra, 777-78. In affirming the summary judgment, the Appellate Court agreed that the case was "beset by lackadaisical behavior by the plaintiffs at every turn . . . Even after the third dismissal, the plaintiffs' counsel failed to communicate promptly to the court an explanation for his conduct . . . That pattern of conduct, evidenced by the court file, far surpasses mistake, inadvertence or excusable neglect." (Internal quotation marks omitted.) Id., 183-84.
In Pepitone v. Serman, supra, 69 Conn.App. 620, the Appellate Court affirmed the lower court's rendering of summary judgment in an action that had been filed pursuant to § 52-592(a). The plaintiff in Pepitone brought the original action in 1996 arising from events that occurred in 1993. Pepitone v. Serman, supra, 615. The lower court had issued notices to the plaintiff that failure to close the pleadings would result in dismissal. Id., 616. The lower court twice rendered a judgment of dismissal on the ground of dormancy, once in 1997 and again in 1999 for failure to close the pleadings. Id., 620. At the time of the second dismissal, the plaintiff had failed to respond to the defendant's special defenses and counterclaim and had not proffered any explanation for his conduct. Id.
Here, Marino I was commenced by service on May 16, 2002. Based on the exhibits attached to the parties' memoranda of law, a review of the court file from Marino I, and attorney Balzano's affidavit dated May 26, 2004, it is not altogether clear with which interrogatories and requests for production the plaintiff complied and the extent of the compliance. It is clear, however, that on July 8, 2002, plaintiff mailed to defendants' counsel a notice of compliance in that matter despite not having fully complied with its disclosure obligations. Defendants thereafter, on August 5, 2002, filed a motion for order of compliance, a motion granted by the court, Gilardi J., on August 21, 2002. On October 9, 2002, the court, Wiese, J., granted the defendants' second motion for order of compliance and entered a judgment of nonsuit against the plaintiff.
An affidavit of plaintiff's counsel dated March 10, 2004, and attached to the plaintiff's memorandum of law in opposition to the motion for summary judgment swears that counsel had misplaced the plaintiff's file in this matter and was unable to comply with the court's order of August 21, 2002. According to this affidavit, plaintiff's counsel did submit a supplemental notice of compliance to defendants on October 11, 2002, two days after the judgment of nonsuit. According to a second affidavit of plaintiff's counsel dated May 26, 2004, "[t]he plaintiff responded to all interrogatories and production requests with [t]he sole exception of Production Request #3 (employment authorization) which was in the plaintiff's file but was inadvertently not sent. Said authorization has now been provided to the defendant in compliance with Production request #3 of the defendant's request for production." (Affidavit of Alphonse Balzano, dated May 26, 2004, ¶¶ 4-5.) Defendants do not dispute these assertions, and the court accepts them as true.
The conduct of plaintiff's attorney does not rise to the level of such egregious conduct as to bar plaintiff from availing himself of the provisions of § 52-592. Because plaintiff's counsel misplaced the plaintiff's file during the prior action, counsel was unable to comply with the court's order of compliance. After locating the file, plaintiff's counsel complied with the previous discovery requests except for inadvertently omitting one requested document which the plaintiffs have now disclosed. Although the alleged accident giving rise to the plaintiff's claim occurred in May 2000, this case has not been plagued by years of "unnecessary litigation" and "cumulative transgressions" by the plaintiff. See Stevenson v. Peerless Industries, Inc., supra, 72 Conn.App. 607. There is no evidence of an "egregious pattern of behavior that was never meant to be saved by the provisions of § 52-592." Gillum v. Yale University, supra, 62 Conn.App. 784. The court concludes that the actions of the plaintiff's attorney in this case are not those contemplated by the Supreme Court in Ruddock v. Burrowes, supra, 243 Conn. 576 n. 12.
"A trial court, for example, might find an attorney's misconduct to be egregious if the attorney represented that his nonappearance was caused by difficulties with his car without disclosing that he had ready access to alternative transportation. A trial court might make a similar finding if, in one case, the attorney repeatedly, and without credible excuse, delayed scheduled court proceedings. Nonappearances that interfere with proper judicial management of cases, and cause serious inconvenience to the court and to opposing parties, are categorically different from a mere failure to respond to a notice of dormancy . . . or a single failure to appear, in a timely fashion, after a luncheon recess." (Citation omitted.) Ruddock v. Burrowes, supra, 243 Conn. 576 n. 12.
The defendants rely on Ingriselli v. Frisina, Superior Court, judicial district of New Britain, Docket No. CV 01 0507793 (March 15, 2002, Wiese, J.) ( 31 Conn. L. Rptr. 578), and Eberhardt v. Conway, Superior Court, judicial district of New Haven, Docket No. 0445618 (September 18, 2001, Blue, J.) ( 30 Conn. L. Rptr. 389), in support of their argument that the plaintiff's conduct in the prior action constituted "a series of cumulative transgressions"; Gillum v. Yale University, supra, 62 Conn.App. 783; that bar recourse to § 52-592(a). Neither of those cases compels a conclusion that the saving benefits of § 52-584 should be unavailable to the plaintiff.
In Ingriselli v. Frisina, supra, 31 Conn. L. Rptr. 581, the court, Wiese, J., granted the defendants' motion for summary judgment as to the plaintiff's complaint, which was filed pursuant to § 52-592(a). In the original action, the plaintiffs filed a notice of compliance with discovery requests on August 19, 1997. Ingriselli v. Frisina, supra, 578. The defendants filed a motion for order of compliance on September 19, 1997, because the plaintiffs' compliance substantially failed to satisfy the discovery requests. Id. The order was granted unless the plaintiffs complied. Id. The plaintiffs did not comply and a judgment of nonsuit was entered on December 1, 1997. Id. The court also denied the plaintiffs' motion to set aside the nonsuit. Id. The plaintiffs then filed a complaint dated July 20, 1999, and amended the complaint on July 2, 2001. Id. The court, granting the defendants' motion for summary judgment, stated that "[t]he plaintiffs have not submitted affidavits or supporting documentation to establish that the plaintiffs' noncompliance with court orders occurred in circumstances such as mistake, inadvertence or excusable neglect." Id., 580.
In Eberhardt v. Conway, supra, 30 Conn. L. Rptr. 390, the court, Blue, J., granted the defendant's motion for summary judgment as to the plaintiff's complaint, which was filed pursuant to § 52-592(a). In the original action, the plaintiff Eberhardt filed a notice of compliance with discovery requests by the defendant Conway on June 11, 1996. Eberhardt v. Conway, supra, 389. Compliance was not, however, complete. Id. The plaintiff then ignored the September 8, 1998, order of the court, Licari, J., that compliance occur by November 16, 1998. Id. On January 12, 1999, the defendant filed a motion for nonsuit and the court, Jones, J., denied the motion with the understanding that the plaintiff's counsel would comply within thirty days. Id. Compliance remained incomplete and the court, Silbert, J, granted the defendant's second motion for nonsuit on November 10, 1999. Id. On October 24, 2000, the plaintiff commenced the second case by service of process. Id. The court, granting the defendant's motion for summary judgment, stated that "Eberhardt's central transgression in Eberhardt I was not her failure to comply with requested discovery . . . The problem in Eberhardt I is that Eberhardt continually misled the trial court and then proceeded to disobey the orders of the court without bothering to inform the court of any circumstances requiring a modification of those orders." Id., 390.
Ingriselli and Eberhardt are distinguishable from the present case. In Ingriselli, the plaintiffs failed to present "any evidence to the court establishing the difficulties they had in obtaining discovery." Ingriselli v. Frisina, supra, 31 Conn. L. Rptr. 580. In the present case, the plaintiff has submitted the affidavits of his attorney, Balzano, who attested that the file had been misplaced and could not be located despite diligent efforts to find the file. As a result, the plaintiff was unable to comply with the court's order of compliance of August 21, 2002. Furthermore, the court in Eberhardt stated that the plaintiff's "central transgression" was that her counsel continually misled the trial court, failed to obey court orders and was disinclined to inform the court of any difficulties that might require modification of those orders. See Eberhardt v. Conway, supra, 30 Conn. L. Rptr. 390. Here, there is no evidence that the plaintiff engaged in conduct similar to that of the plaintiff in Eberhardt. Although "more prudent, conscientious steps should have been taken [by the plaintiff during the pendency of the prior action], the conduct, or lack thereof does not rise to a level so egregious as to render the savings statute unavailable." St. Val v. Molinar, supra, Superior Court, Docket No. CV 03-0193234. The conduct of plaintiff's attorney in the first action was instead more in the nature of mistake, inadvertence or excusable neglect rather than egregious conduct that would bar his client's action. The plaintiff has met his burden under § 52-592 of making a factual showing that his failure to comply with discovery requests was caused by excusable mistake. As a result, that statute's savings clause is applicable, and the plaintiff's action is not barred by the statute of limitations contained in § 52-584.
CONCLUSION
For the foregoing reasons, the defendants' motion for summary judgment is DENIED.
BY THE COURT
STEPHEN F. FRAZZINI
JUDGE