Opinion
No. CV99 036 83 98 S
August 14, 2000
MEMORANDUM OF DECISION RE: MOTION TO DISMISS (DOCKET ENTRY NO. 104) CT Page 10524
In 1993, the plaintiff Sheldon B. Bufferd, commenced an action against the defendants, Byron Paul Yost and Yost Associates, P.C., asserting claims for professional malpractice and negligent misrepresentation. On July 1, 1996, the court, Levin, J., rendered a judgment of nonsuit. On November 7, 1996, the plaintiff filed a motion to open the judgment of nonsuit. That motion was denied by the court, Gormley, J., on February 6, 1997. Thereafter, on February 21, 1997, the plaintiff appealed the denial of the motion to open to the Appellate Court. On November 10, 1998, the Appellate Court affirmed the denial of the motion to open.
In Bufferd v. Yost, 51 Conn. App. 1, 4, 719 A.2d 487 (1998), the Appellate Court affirmed the denial of the motion to open the judgment of nonsuit. The court held that "[p]ursuant to General Statutes § 52-212, a motion to set aside a judgment of nonsuit must be filed within four months of the date judgment was rendered. The trial court lacks jurisdiction to entertain a motion to open the judgment filed outside that four month period. . . . The motion in this case was untimely; therefore, the trial court lacked jurisdiction to consider it." (Citation omitted.) Bufferd v. Yost, supra, 51 Conn. App. 2-3.
On November 17, 1999, pursuant to General Statutes § 52-592, the accidental failure of suit statute, the plaintiff filed a three-count complaint against the defendants asserting claims for professional malpractice, negligent misrepresentation and breach of contract. On January 21, 2000, the defendants filed a motion to dismiss the plaintiff's complaint for lack of subject matter jurisdiction. The defendants have submitted a memorandum of law in support of the motion, and the plaintiff has submitted a memorandum of law in opposition thereto.
General Statutes § 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."
"It is well established that [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). "It is axiomatic that once the issue of subject matter jurisdiction is raised, it must be immediately acted upon by the court." (Internal quotation marks omitted.)Federal Deposit Ins. Corp. v. Peabody. N.E., Inc., 239 Conn. 93, 99, 680 A.2d 1321 (1996)
The defendants move to dismiss the plaintiff's complaint on the ground that § 52-592 is unavailing because this action was not commenced within one year of the determination of the original action. Specifically, the defendants argue that because the plaintiff did not appeal the judgment of nonsuit, the original action was determined, for purposes of § 52-592, on July 1, 1996, when the judgment of nonsuit was rendered. The defendants argue that because the plaintiff commenced this action on November 6, 1999, more than three years after the original action was determined, § 52-592 is inapplicable and the court lacks subject matter jurisdiction. The defendants further argue that the plaintiff may not avail himself of § 52-592 because the original action did not fail for any of the enumerated statutory reasons.
In opposition to the motion, the plaintiff argues that the court has jurisdiction because he commenced this action within one year from the date that the original action was determined under § 52-592 (a). Because the judgment of nonsuit was not final until twenty days after the motion to open was denied, the plaintiff argues that the original action was determined on February 27, 1997. The plaintiff also argues that because he was not entitled to appeal the judgment of nonsuit without filing a motion to open, the period of time when the appeal of the denial of the motion to open was pending should be excluded pursuant § 52-592 (c). Furthermore, the plaintiff contends that his original action was dismissed for one of the reasons enumerated in § 52-592 (a)
General Statutes § 52-592 (c) provides: "If an appeal is had from any such judgment to the Supreme Court or Appellate Court, the time the case is pending upon appeal shall be excluded in computing the time as above limited."
"General Statutes § 52-592 (a), which is part of our state's `saving statute,' allows a plaintiff to bring an action that otherwise would be barred by an applicable statute of limitations, within one year after the determination of a prior action or after the reversal of a judgment, if the `original action' has failed to be tried on the merits for any of several reasons enumerated in the statute, and if the original action was for the same cause as the later action." Peabody N.E., Inc. v. Dept. of Transportation, 250 Conn. 105, 106-07, 735 A.2d 782 (1999). "[Section] 52-592, is remedial in its character. It was passed to avoid hardships arising from an unbending enforcement of limitation statutes. . . . Its purpose is to aid the diligent suitor." (Citations omitted; internal quotation marks omitted.) Rosario v. Hasak, 50 Conn. App. 632, 637, 718 A.2d 505 (1998) "[U]nder the provisions of § 52-592 (a) `original action' means the first action filed within the time allowed by the applicable statute of limitations." Pintavalle v. Valkanos, 216 Conn. 412, 419, 581 A.2d 1050 (1990).
"If an action, brought pursuant to § 52-592 (a), fails, even for the statutorily enumerated reasons, and if more than one year has passed since the determination of the original action, the plaintiff will not be able to maintain an action, even though the case was not decided on its merits. Therefore, although there is a preference that cases be adjudicated on their merits, the legislature has provided only a limited mechanism by which plaintiffs may `save' deficient actions. One of those requirements is that the action be brought within one year of the determination of the original action, that is, the first action filed within the applicable statute of limitations period." Peabody N.E., Inc. v. Dept. of Transportation, supra, 250 Conn. 128.
In the present case, after the judgment of nonsuit was rendered on July 1, 1996, the plaintiff was entitled to either appeal the judgment of nonsuit within twenty days or file a motion to open within four months. See General Statutes §§ 52-211 and 52-212. Here, because the plaintiff filed the motion to open after the twenty-day appeal period for the nonsuit, the appeal was limited to a determination of whether the trial court had jurisdiction to consider the motion and/or whether it abused its discretion in failing to open the judgment. Thus, the court could not consider the propriety of the underlying judgment of nonsuit. See Batory v. Bajor, 22 Conn. App. 4, 8-9, 575 A.2d 1042, cert. denied, 215 Conn. 812, 575 A.2d 1042 (1990) ("A ruling on a timely filed motion to open is within the trial court's discretion, and appellate review is limited to whether the court has acted unreasonably or in abuse of its discretion. . . . Where, however, the motion is untimely and the time limitation has not been waived, the trial court is without jurisdiction to entertain the motion.")
General Statutes § 52-211 provides: "If a nonsuit has been so granted in the Superior Court, the plaintiff may either (a) during the same term or session of the court and before its next return day, file a written motion to set aside such judgment; and, if such motion is denied, may appeal from such denial; and to enable him to do so the court shall state the whole evidence so produced as aforesaid that it may become a part of the record or (b) appeal pursuant to section 51-197a directly from the judgment of nonsuit. If such judgment is set aside, either on motion or appeal, the cause shall be proceeded with as though no nonsuit had been granted."
General Statutes § 52-212 provides: "Any judgment rendered or decree passed upon a default or nonsuit in the Superior Court may be set aside, within four months following the date on which it was rendered or passed, and the case reinstated on the docket, on such terms in respect to costs as the court deems reasonable, upon the complaint or written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of the judgment or the passage of the decree, and that the plaintiff or defendant was prevented by mistake, accident or other reasonable cause from prosecuting the action or making the defense."
Here, the Appellate Court determined that the trial court lacked jurisdiction to consider the motion to open. See Bufferd v. Yost, supra, 51 Conn. App. 3. Moreover, the plaintiff did not appeal the judgment of nonsuit pursuant to § 52-211. Based on these circumstances, the court concludes that the toll provision in § 52-592 (c) does not apply to the present case. Therefore, the plaintiff is not entitled to maintain the present action pursuant to § 52-592 because more than one year has passed since the original action was determined on July 1, 1996. SeeBiro v. Sidley Austin, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. 149415 (October 1, 1996, Tobin, J.) ( 17 Conn.L.Rptr. 629) (failure to meet requirements of § 52-592 could be considered a jurisdictional bar because 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)
The court expresses no opinion as to whether it would be appropriate to give the plaintiff the benefit of the toll provided by § 52-592 (c) had the plaintiff brought the motion to open in a timely manner. Suffice it to say that where a plaintiff does not appeal a nonsuit, and files an untimely motion to open, the toll provided by that section does not apply because neither the Superior Court nor the Appellate Court have jurisdiction to consider the merits of the motion to open. See General Motors Acceptance Corp. v. Pumphrey, 13 Conn. App. 223, 229, 535 A.2d 396 (1988) ("No principle is more universal than that the judgment of a court without jurisdiction is a nullity. . . . Such a judgment, whenever and wherever declared upon as a source of right, may always be challenged.") Moreover, it appears from the language of the statute that the toll provided in subsection (c) might not apply to appeals from a motion to open a judgment, but rather only to appeals from the judgment itself. However, a resolution of that issue is not necessary for the court's determination here because the plaintiff filed an untimely motion to open and did not appeal the judgment of nonsuit.
Accordingly, the defendants' motion to dismiss is hereby granted.
SKOLNICK, J.