Opinion
HHDCV085021433S.
12-20-2012
Nicholas RUTIGLIANO v. Singer Asset Finance Company, LLC.
UNPUBLISHED OPINION
CARL J. SCHUMAN, Judge, Superior Court.
This case presents the question of whether and when a defendant can raise the statute of limitations on a motion to strike a complaint filed under the accidental failure of suit statute. For the reasons that follow, the court denies the motion to strike in this case.
I
This case has a most unhappy history, alleging misconduct that occurred as far back as 2000. The plaintiff, Nicholas Rutigliano, alleges that he won $10 million in the New York state lottery in 1991. In early 2000, the plaintiff entered into an agreement to sell his right to receive annual lottery installment payments to the defendant, Singer Asset Finance Company, LLC. The plaintiff did so after receiving tax advice from an attorney referred to him by the defendant. The plaintiff discovered that the tax advice was apparently incorrect when he received a notice of deficiency of $668, 920 from the Internal Revenue Service in 2003.
Three years later, the plaintiff filed a two-count suit against the defendant. Count one alleged aiding and abetting a breach of fiduciary duty, while count two alleged violations of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a.
On December 17, 2007, the court, Miller, J., entered a nonsuit against the plaintiff for failure to respond to discovery requests. Judge Miller denied a motion to set aside the nonsuit on July 7, 2008.
Later that month the plaintiff brought the present suit, including the same two counts. The plaintiff also alleged that he brought suit under General Statutes § 52-592, the accidental failure of suit statute. In October 2008, the defendant moved to dismiss on the basis that the nonsuit and the subsequent ruling on the motion to set aside by Judge Miller did not fit within that statute. For reasons that are unclear, the motion took over two years to decide. On January 6, 2012, the court, Robaina, J., denied the motion on the ground that a motion to dismiss is not the proper vehicle to challenge whether a case fits within the accidental failure of suit statute. The court stated that it will " decline the defendant's request to treat its motion to dismiss as a motion for summary judgment."
Section 52-592(a) 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."
Defense counsel stated at oral argument that the delay was not the fault of the court. The parties filed supplemental memoranda concerning the motion to dismiss in September and October 2011.
The defendant next filed a request to revise, which the court discusses below. The defendant now raises the statute of limitations defense on a motion to strike. While there is no dispute that, if the accidental failure of suit does not apply, the suit is untimely, the plaintiff challenges the defendant's use of a motion to strike to raise the accidental failure of suit issue. The court concludes that the motion is proper but unmeritorious on the first count and improper on the second count. The net result is that both parties have now unduly delayed the resolution of this case.
II
A motion to strike tests whether the allegations of a complaint state a claim upon which relief can be granted. See Novametrix Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 210, 214-15, 618 A.2d 25 (1992). The court must construe the allegations in a light most favorable to the plaintiff. See Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).
Ordinarily, a party should raise the statute of limitations as a special defense or on summary judgment, rather than by a motion to strike. See Girard v. Weiss, 43 Conn.App. 397, 415-16, 682 A.2d 1078, cert. denied, 239 Conn. 946, 686 A.2d 121 (1996); Forbes v. Ballaro, 31 Conn.App. 235, 239-40, 624 A.2d 389 (1993). The obvious reason is to afford the plaintiff the opportunity to present evidence in avoidance of the statute. Girard v. Weiss, supra, at 416. There are, however, two exceptions to this rule. Thus, a motion to strike can raise the defense of statute of limitations: " [i]f all of the facts pertinent to the statute of limitations are pleaded in the complaint and the parties agree that they are true, or if a statute creating the cause of action on which the plaintiff relies fixes the time within which the cause of action must be asserted ..." Id., at 415.
III
A
The initial question here is whether, under the first exception allowing for the use of a motion to strike to raise the statute of limitations, " all of the facts pertinent to the statute of limitations are pleaded in the complaint and the parties agree that they are true ..." Id. Paragraph twenty-eight of the first count of the complaint originally alleged only that the plaintiff brought the action " under the provisions of Connecticut General Statutes § 52-592, in connection with a non-suit that was granted in Rutigliano v. Singer Asset Finance Company, LLC, CV 06-5002061 S, on December 17, 2007." The defendant then filed a request to revise this paragraph that asked the plaintiff " to set forth facts to support his conclusory allegations ... [in order] to set the Complaint up for a motion to strike ..." (Pleading # 117.) After some additional procedural wrangling by the parties, the court, Wagner, J.T.R., ordered that the plaintiff " amend his complaint to include accidental failure of suit with full [facts] set forth." (# 119.87.) Paragraph 28 of the first count now reads as follows: " The entry of said nonsuit [on December 17, 2007] was the product of mistake, inadvertence and/or excusable neglect in that counsel for the plaintiff, while in the midst of a prolonged and complicated jury trial, mistook the defendant's motion for non-suit relating to discovery for a separate motion for non-suit that had been filed by the defendant pertaining to a request to revise the plaintiff's pleading in avoidance of the defendant's special defense, where the court had ruled favorably to the plaintiff in a companion case involving the same pleading issue. At the time said non-suit entered, the plaintiff had provided very substantial discovery production to the defendant and plaintiff's counsel had been cooperating with defense counsel on discovery issues. There was no intention by the plaintiff to avoid his discovery obligations ." Because the plaintiff has thus had a full opportunity to plead facts pertinent to the statute of limitations in the first count of his complaint and, on a motion to strike, the court must assume that these facts are true; see Faulkner v. United Technologies Corp., supra, 240 Conn. at 580, count one is in a posture in which the court can decide the limitations issue on a motion to strike.
The defendant nonetheless urges the court, in deciding this motion to strike, to consider the following exhibits: the plaintiff's April 17, 2008 motion to set aside the judgment of nonsuit in the original case; the June 27, 2008 reply to defendant's objection to the motion to set aside; the transcript of argument on July 7, 2008 before Judge Miller on that motion; Judge Miller's July 7, 2008 ruling on the motion; and a January 2007 ruling on objections to interrogatories. While there is some Superior Court authority for going outside the complaint on a motion to strike to consider pleadings that are the subjects of judicial notice; see Murphy v. Chase Mortgage Co., Superior Court, judicial district of New Haven, Docket No. CV01 0450257 S, (Sept. 16, 2002, Arnold, J.); the defendant in this case essentially seeks to convert his motion to strike into one for summary judgment without allowing the plaintiff the opportunity to respond under the same rules. This the court will not allow. Therefore, the court interprets the fact that the defendant raised the statute of limitations on a motion to strike as its agreement to the usual rule that the facts alleged by the plaintiff in the complaint are true for the purposes of the motion.
Viewing the allegations of paragraph twenty-eight in a light most favorable to the plaintiff, the allegations are sufficient to come within the scope of § 52-592. Section 52-592 is a remedial statute that should receive a liberal interpretation. See Plante v. Charlotte Hungerford Hospital, 300 Conn. 33, 49, 12 A.3d 885 (2011). Essentially the plaintiff's burden is to show that his noncompliance with a court order occurred in circumstances such as " mistake, inadvertence, or excusable neglect." (Internal quotation marks omitted.) Id., at 50. Disciplinary dismissals are " not excluded categorically from the relief afforded by [the statute]." (Internal quotation marks omitted.) Id. In this case, the plaintiff alleges that his attorney, while on trial in another case, mistook the defendant's motion for nonsuit for another, less controversial motion. Construing these allegations most favorably to the plaintiff, the allegations could constitute excusable neglect. Accordingly, the court denies the motion to strike count one on statute of limitations grounds.
B
The court now turns to the second count. The defendant's request to revise did not extend to this count. Thus, the plaintiff did not revise his original allegation, now found in paragraph thirty-two of count two, that the plaintiff brings this action " under the provisions of Connecticut General Statutes § 52-592, in connection with a non-suit that was granted in Rutigliano v. Singer Asset Finance Company, LLC, CV 06-5002061 S, on December 17, 2007." Therefore, as to the second count, this matter is not one in which " all of the facts pertinent to the statute of limitations are pleaded in the complaint and the parties agree that they are true ..." Girard v. Weiss, supra, 43 Conn.App. at 415.
Even if the plaintiff had included all the facts pertinent to the § 52-592 defense in count two, it is likely that the plaintiff would have made the same allegations as in paragraph twenty-eight of count one, which the court has found sufficient to overcome a motion to strike.
The defendant nonetheless suggests, in a footnote bereft of any authority, that this case fits under the second exception allowing use of a motion to strike when " a statute creating the cause of action on which the plaintiff relies fixes the time within which the cause of action must be asserted ..." Id. In fact, no appellate court has resolved the question of whether General Statutes § 52-592 creates such a cause of action. As far as can be determined, the only statute that the appellate courts have found to satisfy the second exception is our wrongful death statute, General Statutes § 52-555. See Greco v. United Technologies Corp., 277 Conn. 337, 344 n. 12, 890 A.2d 169 (2006). Although the wrongful death statute does not define a standard of liability, it does enumerate the damages that a plaintiff can obtain.
Section 52-555(a) provides: " In any action surviving to or brought by an executor or administrator for injuries resulting in death, whether instantaneous or otherwise, such executor or administrator may recover from the party legally at fault for such injuries just damages together with the cost of reasonably necessary medical, hospital and nursing services, and including funeral expenses, provided no action shall be brought to recover such damages and disbursements but within two years from the date of death, and except that no such action may be brought more than five years from the date of the act or omission complained of."
In contrast, § 52-592 does not contain any substantive standards. As one judge has put it: " [t]he statute ... does not create a right of action. Instead, it extends the statute of limitations for causes of action which have not been tried on the merits due to various mishaps." Fitzpatrick v. Hall-Brooke Found, Inc., Superior Court, judicial district of Fairfield, Docket No. CV94-316876S (February 5, 1996, Thim, J.). Thus, the court will not interpret § 52-592 to create a cause of action for purposes of the second exception to the rule against raising the statute of limitations on a motion to strike.
IV
The court denies the motion to strike.
It is so ordered.