Opinion
No. CV 06 6000557 S
February 15, 2008
MEMORANDUM OF DECISION RE MOTION TO DISMISS
The defendant has filed a motion to dismiss the plaintiff's complaint dated October 31, 2006, bearing a return date of December 5, 2006. The grounds for the motion to dismiss are that the plaintiff's action is not properly brought pursuant to General Statutes § 52-593 and is, thus, barred by the applicable statute of limitations as contained in General Statutes § 52-584.
General Statutes § 52-584 reads as follows:
No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct, or by malpractice of a physician, surgeon, dentist, podiatrist, chiropractor, hospital or sanatorium, shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed.
The plaintiff initially brought an action against the defendant X-Bankers Money Mortgages, Inc. on or about February 24, 2004, in an action titled Sylvia Valentin v. X-Bankers Money Mortgages, Inc., et al., bearing Docket No. CV 040409410. In her six-count complaint, the plaintiff alleged that she slipped and fell on property known as 983 Main Street, Bridgeport, Connecticut. She alleged that X-Bankers Money Mortgages, Inc., owned and/or controlled said property. Her original complaint also name five additional individual defendants and identical allegations were made against each of these individual defendants, as well.
In this original action the plaintiff was deposed and testified that her fall occurred at a different X-Bankers store located at the corner of East Main Street and Barnum Avenue in Bridgeport, Connecticut. As a result of this deposition testimony, all defendants in that action moved for summary judgment. In total, three motions for summary judgment were filed. The defendant X-Bankers Money Mortgages, Inc., filed its motion for summary judgment by way of a motion dated July 14, 2005, and that motion was granted by the court (Gilardi, J.) on August 28, 2005. Notice of the court's decision granting the motion for summary judgment filed by X-Bankers Money Mortgages, Inc. was issued to the parties on August 29, 2005. The remaining individual defendants to this original action also filed for summary judgment and summary judgment was granted in their behalf, as well. The final motion for summary judgment filed by other defendants to the original action was granted by the court (Gilardi, J.) on November 21, 2005.
It appears from the record available to this court that the motion for summary judgment was granted by the court (Gilardi, J.) by agreement of the parties. No written memorandum of decision was filed by the court. A review of the memorandum of law filed by the defendant reveals that the argument set forth for the granting of summary judgment was that the plaintiff had testified at her deposition that her fall and alleged injuries had occurred at a different location than the location set forth in the plaintiff's original complaint. This court cannot find any reference to any argument that the plaintiff's action had been filed against a "wrong defendant."
Thereafter, by way of service on the defendant on November 5, 2006, the plaintiff initiated the present action titled Sylvia Valentin v. X-Bankers Check Cashing a/k/a X-Bankers, Inc. In this new action, consisting of seven counts, the plaintiff alleges she slipped and fell on property known as 428 Barnum Avenue, part of a corner building located at 881-907 East Main Street, Bridgeport, Connecticut. She alleges that X-Bankers Check Cashing a/k/a X-Bankers, Inc., owned and/or controlled these premises. The present complaint also names six individual defendants and, again, makes identical allegations against each of these individual defendants. The plaintiff alleges that the present action is brought pursuant to General Statutes § 52-593 regarding actions commenced against the wrong defendant. Section 52-593 reads as follows:
The individually named defendants in the plaintiff's second action are different persons from the individually named defendants in the plaintiff's original action.
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. If service of process in the original action has been made upon an agent of the defendant named in the new action, or if the defendant in the new action is a corporation and service in the original action has been made upon an officer or agent of the corporation, notice of any claim for damage shall be sufficient if given in the original action, pursuant to statutory provisions, to any officer or agent of the defendant in the new action.
In support of the motion to dismiss, the defendant, X-Bankers Check Cashing a/k/a X-Bankers, Inc. makes several arguments as to why General Statutes § 52-593 does not apply to save the plaintiff's new action. First, the defendant argues that the plaintiff did not fail to obtain a judgment in the original action due to naming the wrong defendant. Rather, the original action failed because the plaintiff named the wrong location of her alleged injuries. Thus, the plaintiff cannot avail herself of the provisions in § 52-593. Second, even if the court finds that the plaintiff failed to obtain a judgment in the original action due to naming the wrong defendant, the plaintiff failed to commence the present action within the one-year time period limitation set forth in § 52-593. Third, the plaintiff's present action constitutes a new cause of action involving a fall at a different location and thus does not relate back to the original action. Therefore, the complaint is barred by § 52-584. Fourth and lastly, plaintiff has, in fact, sued the same corporate entity that was named in her original action and therefore, General Statutes § 52-593 does not apply.
In challenging the defendant's motion to dismiss, the plaintiff argues that the "X-Bankers" defendants in the original and present actions are separate and distinct corporate entities. The plaintiff contends that she made a "factual mistake," rather than a "legal mistake" regarding two similarly named defendants and two parcels of property. The plaintiff also argues that the present action was brought within the one year time period set forth in General Statutes § 52-593, because while the court (Gilardi, J.) granted summary judgment in favor of the "X-Banker" defendant in the original action on August 28, 2005, summary judgment in favor of the last of the additional multiple defendants to the multi-count lawsuit was not granted until on or about November 21, 2005. Therefore, the plaintiff concludes that her action against all defendants constituted her entire complaint and her "action" and the granting of summary judgment in favor of one defendant, "X-Bankers," on August 28, 2005, was not the event that triggered the commencement of the one year time period in Section 52-593. The plaintiff argues that the termination of the plaintiff's initial action did not occur until summary judgment had been rendered in favor of all remaining defendants on November 21, 2005. Therefore, the plaintiff argues that the present action dated October 31, 2006, bearing a return date of December 5, 2006, which was served on X-Bankers, Inc. on November 5, 2006, is timely pursuant to Section 52-593.
Standard of Law
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Cox v. Aiken, 278 Conn. 204, 210-11, 897 A.2d 71 (2006). "The grounds which may be asserted in [a motion to dismiss] are: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) improper venue; (4) insufficiency of process; and (5) insufficiency of service of process." Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985), citing Practice Book § 10-31.
"A statute of limitations defense "must be specially pleaded and cannot be raised by a [motion to dismiss]." Ross Realty Corp. v. Surkis, 163 Conn. 388, 391, 311 A.2d 74 (1972); see also Practice Book § 10-50. "Where . . . a specific time limitation is contained within a statute that creates a right of action that did not exist at common law, then the remedy exists only during the prescribed period and not thereafter . . . In such cases, the time limitation is not to be treated as an ordinary statute of limitation, but rather is a limitation on the liability itself, and not of the remedy alone . . . [U]nder such circumstances, the time limitation is a substantive and jurisdictional prerequisite, which may be raised [by the court] at any time, even by the court sua sponte, and may not be waived." (Internal quotation marks omitted.) Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757, 766-67, 628 A.2d 1303 (1993).
Discussion
The plaintiff argues that the defendants named in the original action and in the present action are separate and distinct corporate entities and that General Statutes § 52-593 is applicable, as the plaintiff named the wrong corporate entity in her first action. The defendant argues that the plaintiff did not fail to obtain a judgment in the original action as a result of a failure to name the correct the defendant X-Bankers Money Mortgages, Inc. in the original action, and therefore, § 52-593 is not applicable. A review of the record reveals that summary judgment in the original action was granted by the court because the plaintiff alleged an incorrect location of the plaintiff's alleged injuries. There was no finding by the court that summary judgment was also granted because the plaintiff named the wrong corporate entity as a defendant.
Additionally, a review of records from the Connecticut Secretary of State's Office, which have been submitted by the defendant, reveals that the original defendant X-Bankers Money Mortgages, Inc. and the present defendant X-Bankers, Inc. are the same corporate entity. These records show that a domestic stock certificate was filed with the Secretary of State on March 25, 1987. The original name of the entity was TRY-R Financial Group, Inc. That group changed its name to X-bankers, Inc., on August 18, 1989. An additional amendment was made changing the name to X Bankers Money Mortgages, Inc. on October 11, 1990. Subsequently, one more certificate of amendment was filed changing the name to X Bankers, Inc. on October 17, 2005. The defendant X Bankers, Inc., as identified in the present action, is the same defendant identified as X Bankers Money Mortgages, Inc. in the original 2004 action. Thus, the wrong defendant was not sued in the original action, and again, § 52-593 is therefore, not applicable.
Courts have been sensitive to the remedial nature of savings statutes such as § 52-593 but have refused to construe them in a manner that would undermine the purpose of the statute of limitations. Isidro v. State, 62 Conn.App. 545, 551, 771 A.2d 257 (2001) (considering § 52-593). "Our Supreme Court has recognized that § 52-593 applies only in circumstances in which the plaintiff's original action failed by reason of naming, in fact, the wrong defendant; that is, in cases in which the naming of the wrong defendant was the product of a reasonable and honest mistake of fact as to the identity of the truly responsible individual." Kronberg v. Peacock, 67 Conn.App. 668, 672-73, 789 A.2d 510 (2002); see also Perzanowski v. New Britain, 183 Conn. 504, 507, 440 A.3d 763 (1981); Vessichio v. Hollenbeck, 18 Conn.App. 515, 520, 558 A.2d 686 (1989). A plaintiff is eligible for the relief that § 52-593 provides if the original action was brought within the limitation period of § 52-584 against a person whom the plaintiff honestly, but mistakenly, believed as a matter of fact was the responsible party based on a reasonable investigation." Tamburrino v. Allard, Superior Court, judicial district of Ansonia-Milford at Derby No. CV-03-0083429 S (Nov. 12, 2004, Lager, J.), 38 Conn. L. Rptr. 222.
While it is true that between 1997 and 2005, the defendant amended its certificate with the Secretary of State several times, resulting in various names for the corporate entity, the plaintiff has made no showing of any investigation or diligent attempts to ascertain the correct corporate name, prior to commencing the original suit. If the plaintiff had done so, the records in the Secretary of State's office would have confirmed that the plaintiff had, in fact, commenced her original action against the proper corporate defendant and that corporate defendant is the same corporate defendant that is named in the instant action. The fatal defect in the plaintiff's original action was not the naming of the wrong corporate defendant, but rather, the identification of the wrong location where the plaintiff allegedly incurred her injuries.
The savings provision of § 52-593 applies only if the plaintiff has "failed to obtain judgment" in the original action on the basis of her failure to name the right person as defendant. Cogan v. Manhattan Auto Financial, 276 Conn. 1, 8, 882 A.2d 597 (2005). The court concludes that the plaintiff's present action constitutes a new cause of action against the same defendant and is barred by General Statutes § 52-584. "Under Connecticut law, a `right person,' as that term is used in General Statutes § 52-593, is one who, as a matter of fact, is a proper defendant for the legal theory alleged." (Citations omitted.) Id.
Even if the court determined that General Statute § 52-593 applied, the plaintiff's present action was commenced more than one year after the granting of summary judgment in favor of the defendant in the original action, which had the effect of terminating the original action, as against that defendant. The court (Gilardi, J.) granted summary judgment on August 28, 2005. Notice of the court's decision was issued on August 29, 2005. This sending of notice commenced the one year period set forth in § 52-593. Russell v. Thomas O'Connor Co., 42 Conn.App. 345, 347, 679 A.2d 420 (1996). The present action was commenced on by way of a complaint dated October 31, 2006, which was served on the defendant on November 5, 2006, more than one year later. While General Statutes § 52-593 is a remedial statute and should be interpreted broadly, it should not be interpreted so liberally as to render the statute of limitations "virtually meaningless." Billerback v. Cerminara, 72 Conn.App. 302, 309, 805 A.2d 757 (2002).
The plaintiff requests that the court consider the granting of the final motion for summary judgment filed by other defendants on November 21, 2005, in the original action as the termination of the plaintiff's original action against the X-Banker defendant. However, the plaintiff is unable to provide this court with any legal authority for that position. Despite the fact that the original "action" contained multiple defendants, the granting of summary judgment in favor of defendant X-Bankers Money Mortgages, Inc., had the effect of terminating the plaintiff's original action against that defendant. To determine otherwise would invite a scenario where it might take years to resolve claims against all individual defendants in a multi-defendant action. In the interim period, the defendant who had the benefit of favorable judgment against a plaintiff early in the proceedings would be left in a "legal limbo" status awaiting the outcome of the litigation between a plaintiff and remaining defendants. This would defeat the purpose of statutes of limitation.
"Public policy generally supports the limitation of a cause of action in order to grant some degree of certainty to litigants." Bellemare v. Wachovia Mortgage Corp., 284 Conn. 193, 199, 931 A.2d 916 (2007). "The purpose of [a] of limitation . . . is . . . to (1) prevent the unexpected enforcement of stale and fraudulent claims by allowing persons after the lapse of a reasonable time, to plan their affairs with a reasonable degree of certainty, free from the disruptive burden of protracted and unknown potential liability, and (2) to aid in the search for truth that may be impaired by the loss of evidence, whether by death or disappearance of witnesses, fading memories, disappearance of documents or otherwise." (Internal quotation marks omitted.) (Internal citations omitted.) Id.
Accordingly, for the reasons set forth herein, the defendant's motion to dismiss is granted.
THE COURT