Opinion
No. 126151
May 30, 2003
MEMORANDUM OF DECISION RE MOTION TO DISMISS #103
Facts
The plaintiff, Melva O'Neill, brought this negligence action against the defendants, John Carbonneau, Jr., as administrator of the estate of John Straub, and General Motors Acceptance Corporation, for the injuries she allegedly sustained in a motor vehicle collision that occurred on December 20, 1998. The plaintiff originally brought suit on October 26, 2000. On August 13, 2001, the defendants filed a motion for nonsuit for the plaintiff's failure to respond to discovery requests. This motion was granted on October 23, 2001, thereby terminating the action by a judgment of nonsuit. The plaintiff filed a motion to open the judgment on or about August 22, 2002, which was denied by the court on September 30, 2002. On October 15, 2002, the plaintiff commenced the present action, which alleges all that was alleged in her first action, as well as the allegation that the present action is brought pursuant to General Statutes § 52-592, the accidental failure of suit statute.
The original negligence action was brought against John Straub and General Motors Acceptance Corporation; however, subsequent to that action and prior to the commencement of the new action, John Staub died.
The defendants filed a motion to dismiss on the ground that the plaintiff cannot avail herself of the accidental failure of suit statute because the failure of her original suit was not due to mere mistake, inadvertence or excusable neglect; therefore, the court lacks subject matter jurisdiction. In opposition to the motion to dismiss, the plaintiff contends that a newly hired secretary inadvertently closed the file and removed it from the attorneys active case diary sometime in December 2001. This prevented the plaintiff from not only filing a timely motion to reopen, but also from completing the order for discovery. The plaintiff further argues that this clerical error was discovered when her attorney noticed the case on the dormancy calendar sometime in August 2002. The plaintiff's attorney then promptly completed the discovery request and filed a motion to open judgment for failure to prosecute. The defendants objected to this motion because the matter had been terminated by a judgment of nonsuit. The plaintiff then filed a motion to open the judgment of nonsuit, which was denied because the plaintiff did not move CT Page 6998-b within four months as required by General Statutes § 52-212. The plaintiff now contends that General Statutes § 52-592 applies to the situation at hand, thereby permitting the plaintiff's action to be decided on the merits.
Discussion
"[A]lthough a motion to dismiss may not be the proper procedural vehicle for asserting that an action is not saved by General Statutes § 52-592, our Supreme Court has held that a trial court may properly consider a motion to dismiss in such circumstances when the plaintiff does not object to the use of the motion to dismiss." Henriquez v. Allegre, 68 Conn. App. 238, 241 n. 6, 789 A.2d 1142 (2002), citing Capers v. Lee, 239 Conn. 265, 269-70 n. 9, 684 A.2d 696 (1996). "[A] motion to dismiss may not be the proper procedural vehicle for asserting that an action is not saved by section 52-592. The savings statute is essentially an extension of, and by implication a response to, a statute of limitations defense . . . The presence of a statute of limitations defense does not deprive a court of subject matter jurisdiction, therefore [s]uch a defense ordinarily is raised either by a motion to strike or by a motion for summary judgment . . . However, the Supreme Court has held that a trial court may properly consider a motion to dismiss based on the statute of limitations pursuant to § 52-592 when the plaintiff does not object to the motion to dismiss as the proper procedural vehicle." (Citations omitted; internal quotation marks omitted.) Hall v. Bender, Superior Court, judicial district of Waterbury, Docket No. CV 01 0163428 (June 29, 2001, Rogers, J.) ( 30 Conn.L.Rptr. 176). In the present case, the plaintiff has not objected to the use of a motion to dismiss to determine whether this action is saved by § 52-592 and, therefore, this court will address the merits of the motion.
"A motion to dismiss admits all facts well pleaded and invokes any record that accompanies the motion, including supporting affidavits that contain undisputed facts." (Internal quotation marks omitted.) Stevenson v. Peerless Industries, Inc., 72 Conn. App. 601, 606, 806 A.2d 567 (2002). "[I]n ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Lawrence Brunoli, Inc. v. Branford, 247 Conn. 407, 410-11, 722 A.2d 271 (1999).
General Statutes § 52-592, the accidental failure of suit statute, provides in relevant part: "(a) If any action, commenced within the time CT Page 6998-c 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 or after the reversal of the judgment." "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 . . . Its purpose is to aid the diligent suitor." (Citation omitted; internal quotation marks omitted.) Henriquez v. Allegre, supra, 68 Conn. App. 243-44.
"Disciplinary 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, 243 Conn. 569, 576-77, 706 A.2d 967 (1998).
In Stevenson v. Peerless Industries, Inc., supra, 72 Conn. App. 601, the court held that General Statutes § 52-592 applied. In that case, the plaintiff's original cause of action terminated in the nonsuit because of the plaintiff's failure to respond to discovery requests. Id. 610. The court found § 52-592 to apply to the plaintiff's second action because the plaintiff's conduct in failing to respond to the discovery request did not "rise to the level of egregious conduct . . ." Id. 609. Specifically, the court found the plaintiff's conduct that led to the judgment of dismissal had only a time span of six months, and furthermore, was the result of miscommunication with opposing counsel. Id. 610. The court concluded "this situation invokes the type of `excusable neglect' that our Supreme Court provided for in Ruddock." Id.
In the present case, the plaintiff failed to respond to discovery requests, which lead to a judgment of nonsuit being entered in October 2001. The plaintiff's failure to respond was primarily the result of a newly hired secretary inadvertently closing the file and removing the case from the plaintiff's attorney's calendar. This prevented the completion of discovery request and the prompt filing of a motion to reopen. In August 2002, the plaintiff's attorney discovered the mistake and immediately completed the discovery request and filed a motion to reopen. In light of the holding in Stevenson v. Peerless Industries, Inc., supra, 72 Conn. App. 601, the court finds that the plaintiff has met her burden under § 52-592 in making a factual showing that her CT Page 6998-d failure to reinstate the action was caused by the excusable mistake made by a newly hired secretary, therefore, the defendants' motion to dismiss is denied.
Martin, J.