Opinion
HHDCV156058664
10-25-2016
Richard Russell v. Mitchell Property Group, LLC
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Nina F. Elgo, J.
Before this court is a motion for summary judgment filed by the defendant, Mitchell Property Group, Inc. (MPG), who is being sued for the second time by the plaintiff, Richard Russell, who seeks damages for injuries which he alleges he sustained on the property of MPG on March 31, 2009. The parties do not dispute that pursuant to General Statutes § 52-584, the statute of limitations period ended on March 31, 2011, a determination made in the prior proceeding. Russell v. Mitchell Properties, Inc., 148 Conn.App. 635, 637 n.4, 87 A.3d 591 cert. denied, 314 Conn. 912, 100 A.3d 404 (2014). In the prior proceeding, the Appellate Court affirmed the Trial Court's granting of summary judgment based on the inapplicability of General Statutes § 52-593, which the plaintiff unsuccessfully sought to invoke to save his action when he cited in the proper party (MPG as opposed to Mitchell Properties, Inc.) only after the statutes of limitations had run.
General Statutes § 52-593 provides in relevant part: " When a plaintiff in any civil action has failed to obtain judgment by reason of failure to name the right person as defendant therein, the plaintiff may bring a new action and the statute of limitations shall not be a bar thereto if service of process in the new action is made within one year after the termination of the original action." In holding that the action was barred by the statute of limitations because § 52-593 was inapplicable to save it, the court observed that " [b]y its clear language, § 52-593 contemplates a scenario in which there are two separate actions: an original action brought against the wrong person, followed by a new action brought against the right person." Russell v. Mitchell Properties, Inc., supra, 148 Conn.App. 639. Because the plaintiff amended his complaint to name the proper defendant, and withdrew as to the improperly named entity for which service could not be made, there was only one action. Therefore, there could be no " termination of the original action" as required under the statute, as that presumes the existence of a prior and distinct terminated action. Id.
The plaintiff has now brought a second action. Recognizing that the statute of limitations had run as of March 31, 2011, the plaintiff invokes two savings statutes, General Statutes § § 52-592 and 52-593, to save his action. The defendant argues both that § 52-592 does not apply because none of the conditions required for its application are present here, and that § 52-593 is not available to the plaintiff under the doctrine of res judicata.
1. General Statutes § 52-593
In arguing that § 52-593 does not save the plaintiff's action, the defendant cites the statutory provision and language from case law, but without analysis as to why its provisions do not apply here. In fact, a plain reading of the statute compels this court's conclusion that the plaintiff's action is saved by its provisions. Specifically, " [w]hen a plaintiff in any civil action has failed to obtain judgment by reason of failure to name the right person as defendant therein, the plaintiff may bring a new action and the statute of limitations shall not be a bar thereto if service of process in the new action is made within one year after the termination of the original action."
There is no dispute that the plaintiff timely attempted to initiate its original lawsuit by having a marshal effect service on Mitchell Properties, Inc., which ultimately was not the proper party to the action. Because the plaintiff served MPG, the proper party defendant, after the statute of limitations had run, summary judgment entered for MPG. As the statute requires for its savings provisions to apply, the plaintiff clearly failed to obtain a judgment because he named the wrong party.
Given the defendant's failure to analyze the provision itself and what this court considers a tacit concession that the savings provisions apply here, the defendant relies instead on the doctrine of res judicata for its claim that the action is barred. The defendant argues that the plaintiff is attempting to relitigate the " exact same claim asserted in the original action against the same party." The plaintiff, on the other hand, has invoked § 52-593, but in his brief appears to concede that res judicata bars the application of § 52-593, and pivots to his argument that the savings provisions of § 52-592 apply instead. In considering the principles of res judicata and claim preclusion, this court finds that the plaintiff has appropriately invoked § 52-593 as the savings statute, even if he seems to have abandoned it in his brief, and that the doctrines of res judicata and collateral estoppel do not preclude its application here.
" The doctrine of res judicata holds that an existing final judgment rendered upon the merits without fraud or collusion, by a court of competent jurisdiction, is conclusive of causes of action and of facts or issues thereby litigated as to the parties and their privies in all other actions in the same or any other judicial tribunal of concurrent jurisdiction . . . If the same cause of action is again sued on, the judgment is a bar with respect to any claims relating to the cause of action which were actually made or which might have been made." (Citations omitted.) Wade's Dairy, Inc. v. Fairfield, 181 Conn. 556, 559-60, 436 A.2d 24 (1980). " Claim preclusion (res judicata) and issue preclusion (collateral estoppel) have been described as related ideas on a continuum . . . More specifically, collateral estoppel, or issue preclusion . . . prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action between the same parties or those in privity with them upon a different claim . . . An issue is actually litigated if it is properly raised in the pleadings or otherwise, submitted for determination, and in fact determined . . . An issue is necessarily determined if, in the absence of a determination of the issue, the judgment could not have been validly rendered." (Citations omitted; emphasis omitted; internal quotation marks omitted.) Efthimiou v. Smith, 268 Conn. 499, 506-07, 846 A.2d 222 (2004).
" Res judicata, or claim preclusion, is [however] distinguishable from collateral estoppel, or issue preclusion. Under the doctrine of res judicata, a final judgment, when rendered on the merits, is an absolute bar to a subsequent action, between the same parties or those in privity with them, upon the same claim . . . In contrast, collateral estoppel precludes a party from relitigating issues and facts actually and necessarily determined in an earlier proceeding between the same parties or those in privity with them upon a different claim . . ." An issue is actually litigated if it is properly raised in the pleadings or otherwise, submitted for determination, and in fact determined . . . If an issue has been determined, but the judgment is not dependent upon the determination of the issue, the parties may relitigate the issue in a subsequent action . . . " To assert successfully the doctrine of issue preclusion, therefore, a party must establish that the issue sought to be foreclosed actually was litigated and determined in the prior action between the parties or their privies, and that the determination was essential to the decision in the prior case." (Citations omitted; emphasis omitted; internal quotation marks omitted.) Rocco v. Garrison, 268 Conn. 541, 554-56, 848 A.2d 352 (2004), citing Dowling v. Finley Associates, Inc., 248 Conn. 364, 373-74, 727 A.2d 1245 (1999).
Applying either principle to this case, it is clear that the plaintiff's action is not barred. As the Rocco court makes clear, res judicata bars the relitigation of actions. " Under the doctrine of res judicata, a final judgment, when rendered on the merits, is an absolute bar to a subsequent action." (Emphasis added.) Rocco v. Garrison, supra, 268 Conn. 555. Res judicata is premised on a final judgment which is " conclusive of causes of action and of facts or issues thereby litigated as to the parties ." (Emphasis added.) Efthimiou v. Smith, supra, 268 Conn. 506. There is no dispute that the underlying causes of action were never litigated on the merits, and instead, judgment was entered for the defendant based on the statute of limitations.
Because these doctrines are judicially created rules of reason that are enforced on public policy grounds; Stratford v. International Assn. of Firefighters, AFL-CIO, Local 998, 248 Conn. 108, 127, 728 A.2d 1063 (1999); we have observed that whether to apply either doctrine in any particular case " should be made based upon a consideration of the doctrine's underlying policies, namely, the interests of the defendant and of the courts in bringing litigation to a close . . . and the competing interest of the plaintiff in the vindication of a just claim . . . These [underlying] purposes are generally identified as being (1) to promote judicial economy by minimizing repetitive litigation; (2) to prevent inconsistent judgments which undermine the integrity of the judicial system; and (3) to provide repose by preventing a person from being harassed by vexatious litigation . . . The judicial doctrines of res judicata and collateral estoppel are based on the public policy that a party should not be able to relitigate a matter which it already has had an opportunity to litigate . . . Stability in judgments grants to parties and others the certainty in the management of their affairs which results when a controversy is finally laid to rest." (Citations omitted; internal quotation marks omitted.) Isaac v. Truck Service, Inc., 253 Conn. 416, 422-23, 752 A.2d 509 (2000).
Our courts " have recognized, however, that the application of either doctrine has dramatic consequences for the party against whom it is applied, and that we should be careful that the effect of the doctrine does not work an injustice . . . Thus, [t]he doctrines of preclusion . . . should be flexible and must give way when their mechanical application would frustrate other social policies based on values equally or more important than the convenience afforded by finality in legal controversies . . . Accordingly, on occasion, we have recognized exceptions to the general policy favoring application of the doctrines of res judicata and collateral estoppel." (Citations omitted; internal quotation marks omitted.) Powell v. Infinity Ins. Co., 282 Conn. 594, 602, 922 A.2d 1073 (2007).
For examples of cases where our courts found exceptions to the general policy favoring application of the doctrines of res judicata and collateral estoppel, see Powell v. Infinity Ins. Co., supra, 602-03.
In this case, the principles underlying § 52-593 operate to save an action that would have otherwise been barred by the statute of limitations but for the plaintiff's failure to name the correct party. In § 52-593, our legislature saw fit to make allowances for the precise error that was made in this case so that an action may proceed on the merits. Given the principles underlying res judicata, which would be in contravention to the purpose of § 52-593, this court concludes that res judicata does not bar the plaintiff's second action.
2. General Statutes § 52-592(a)
The plaintiff further argues that General Statutes § 52-592(a) also operates to save his action, which the defendant disputes. Its provisions state, in relevant part: " 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 court notes that while § 52-592(a) was amended to include provisions by Public Act § 16-127 with respect to claims brought before the Claims Commissioner effective June 9, 2016, those amendments are not relevant here.
In asking that this court reject the applicability of § 52-592(a), the defendant argues that none of the above conditions exist to save the present action. While the court disagrees that none of the above conditions apply, it also finds that § 52-593 is the more appropriate savings statute and declines to consider § 52-592(a). The requirement that the action " be commenced within the time limited by law" requires a finding of " effective notice" upon the defendant and does not contemplate service upon the wrong defendant as does § 52-593. Rocco v. Garrison, supra, 268 Conn. 553.
In conclusion, this court finds that § 52-593, rather than § 52-592, operates to save the plaintiff's action and thereby denies the defendant's motion for summary judgment.