Opinion
CV186079127S
08-13-2018
Lauren DIAZ v. Philip BROOKS et al.
UNPUBLISHED OPINION
Wilson, J.
STATEMENT OF CASE AND PROCEDURAL HISTORY
The plaintiff, Lauren Diaz commenced this negligence action, by service of writ, summons and complaint against the defendants, Philip Brooks and Marissa Brooks on March 19, 2018. The return date is April 17, 2018, and the complaint was returned to court on March 26, 2018. The plaintiff alleges that while the defendant Philip Brooks was operating a motor vehicle he negligently struck the plaintiff’s vehicle and as a result the plaintiff sustained injuries. The plaintiff further alleges that the defendant Philip Brooks was operating the vehicle as the agent, servant and/or employee of the defendant, Marissa Brooks, and/or as a "family car" pursuant to General Statutes § 52-182. The complaint is two counts. Count one alleges negligence against Philip Brooks and count two alleges vicarious liability against Marissa Brooks pursuant to General Statutes § 52-182.
The plaintiff has filed a motion to strike the defendant’s claim for a jury trial on the ground that the jury claim is untimely in violation of General Statutes § 52-215. The motion appeared on the court’s July 30, 2018 short calendar as take papers.
For the reasons set forth herein, the motion to strike is granted.
DISCUSSION
The plaintiff’s motion to strike challenges the timeliness of the defendants’ claim for a jury trial. On May 24, 2018, the defendants filed their answer and special defenses to the plaintiff’s complaint. On May 29, 2018, the plaintiff filed her reply to the defendants’ answer and special defenses. The plaintiff thereafter, on June 11, 2018, filed a Certificate of Closed Pleadings and claimed the matter for a court trial. On June 22, 2018, the defendants filed their claim for a jury trial. The plaintiff claims that the defendants’ claim for a jury trial is fourteen days beyond the time permitted by General Statutes § 52-215.
Section 51-239b provides that "[i]n civil actions a jury shall be deemed waived unless requested by either party in accordance with the provisions of section 52-215." Section 52-215 gives parties two opportunities to request a jury trial: (1) "upon the written request of either party made to the clerk within thirty days after the return day," and (2) "within ten days after [an] issue of fact is joined."
General Statutes § 52-215 provides: "In the Superior Court a docket shall be kept of all cases. In such docket immediately following the names of the parties and their attorneys in all jury cases shall be entered the word ‘jury.’ The following-named classes of cases shall be entered in the docket as jury cases upon the written request of either party made to the clerk within thirty days after the return day: Appeals from probate involving the validity of a will or paper purporting to be such, appeals from the actions of commissioners on insolvent estates, and, except as hereinafter provided, civil actions involving such an issue of fact as, prior to January 1, 1880, would not present a question properly cognizable in equity, except that there shall be no right to trial by jury in civil actions in which the amount, legal interest or property in demand does not exceed two hundred fifty dollars or in a summary process case. When, in any of the above-named cases an issue of fact is joined, the case may, within ten days after such issue of fact is joined, be entered in the docket as a jury case upon the request of either party made to the clerk; and any such case may at any time be entered in the docket as a jury case by the clerk, upon written consent of all parties or by order of court. All issues of fact in any such case shall be tried by the jury, provided the issues agreed by the parties to be tried by the court may be so tried. All cases not entered in the docket as jury cases under the foregoing provisions, including actions in which an account is demanded and judgment rendered that the defendant shall account, writs of habeas corpus and ne exeat, complaints for dissolution of marriage and all other special statutory proceedings which, prior to January 1, 1880, were not triable by jury, shall be entered on the docket as court cases, and shall, with all issues of law and issues of fact, other than those hereinbefore specified, which may be joined in actions entered on the docket as jury cases, be disposed of as court cases." Practice Book § 14-10 further requires that all jury claims be made in writing and filed within the time allowed by 52-215.
"There is no appellate or statutory authority providing guidance or setting forth standards for trial courts to utilize in deciding whether to exercise discretion under § 52-215. Fletcher v. Mead School for Human Development, Inc., Superior Court, judicial district of Stamford-Norwalk, Complex Litigation Docket, Docket No. X05-CV-96-0152138-S (January 8, 2001, Tierney, J.) (28 Conn.L.Rptr. 667, 670) (‘[Section] 52-215 contains no standards for the court to apply in making the determination whether any matter should be placed on the jury docket. There is no appellate court decision that sets forth standards.’). Superior Court decisions addressing whether a trial court should exercise such discretion generally consider (1) the length of the time elapsed between the close of pleadings and the filing of the jury claim, (2) whether any extenuating circumstances existed justifying the delay in filing the jury claim, and (3) whether either party would be prejudiced by the exercise of discretion. See, e.g., Saracino v. Hartford Financial Services Group, Inc., Superior Court, judicial district of Hartford, Docket No. CV-05-4010041-S (April 4, 2006, Tanzer, J.) (41 Conn.L.Rptr. 152, 153); Fletcher v. Mead School for Human Development, Inc., supra, 670-71." Helfant v. Yale New Haven Hospital, Superior Court, judicial district of New Haven, Docket No. CV-08-5018960S (December 30, 2013, Nazarro, J.).
First, with respect to the length of time elapsed between the close of pleadings and the filing of a jury claim, "trial courts are generally inclined to exercise discretion and deny motions to strike a jury claim when the filing of the claim was tardy by a few days or weeks. See, e.g., Fletcher v. Mead School for Human Development, Inc., supra, 28 Conn.L.Rptr. at 667 (court exercised discretion to place case on jury docket where jury claim was filed fourteen days late); Dietz v. Yale-New Haven Hospital, Inc., Superior Court, judicial district of New Haven, Docket No. CV94-368317-S (June 22, 1998, Silbert, J.) (22 Conn.L.Rptr. 358) (motion to strike case from jury docket denied where jury claim was filed four days late); Bolton v. Freihoffer, Superior Court, judicial district of Waterbury, Docket No. CV-94-120992-S (February 4, 1998, Shortall, J.) (21 Conn.L.Rptr. 369, 369) (motion to strike case from jury docket denied where jury claim was filed eighteen days late because ‘[w]here cases are properly triable by a jury they should be so tried even though there has been a marginally untimely claim’); but see Anastasia v. Mitsock, supra, 42 Conn.L.Rptr. at 453 (motion to strike case from jury docket granted where jury claim was seven days late). Where the jury claim was filed months or years late, however, trial courts regularly grant motions to remove the case from the jury docket. See, e.g., Barcello v. WCL Management, LLC, supra, Superior Court, Docket No. CV- 06-5000632-S (motion to strike case from jury docket granted where jury claim was filed approximately six months late); Long v. Hartford Neighborhood Centers, Inc., Superior Court, judicial district of New London at Norwich, Complex Litigation Docket, Docket No. X04-CV-98-0122679-S (May 22, 2002, McLachlan, J.) (32 Conn.L.Rptr. 128) (motion to strike case from jury docket granted where jury claim was filed over nineteen months late); Tonkonow v. First Union National Bank, Superior Court, judicial district of New Haven, Docket No. CV-00-0273890-S (June 27, 2001, Booth, J.) (motion to strike case from jury docket granted where jury claim was filed over three months late); Wilton Bank v. Cappies, Inc., Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-96-0149948-S (March 26, 1997, Karazin, J.) (motion to strike case from jury docket granted where jury claim was filed over eight months late)." (Footnotes omitted.) Helfant v. Yale New Haven Hospital, supra, Docket No. CV-08-5018960S.
With respect to the second consideration, "trial courts are more likely to exercise discretion and allow a late-filed jury claim to remain on the jury docket when compelling extenuating circumstances existed justifying the delayed filing. For example, in Manfred v. Sheffield Laboratories, Superior Court, judicial district of New London, Docket No. 569270 (November 10, 2005, Devine, J.), the court exercised its discretion based on the unique circumstances of the case. In that case, a self-represented plaintiff indicated her intent to proceed to a jury trial at a status conference and the court instructed her to file a claim for a jury trial. Id. ‘The plaintiff ... went to the clerk to file the jury claim on [the same day as the status conference], but did not have sufficient funds. She was not told that [a] credit card would be accepted by the clerk. All of the parties were aware of the plaintiff’s intention to file a jury claim [on that date].’ Id. Based on these circumstances, the court denied the defendants’ motion to strike the plaintiff’s jury claim. Id.
"Similarly, in Skelly v. Mohawk Mountain Ski Area, Superior Court, judicial district of Fairfield, Docket No. CV-01-0380056-S (June 18, 2002, Gallagher, J.), the court decided that an unusual set of circumstances justified a late-filed claim for a jury trial. The defendant in Skelly had previously received a certificate of closed pleadings from the plaintiff, in which it appeared that the plaintiff had already claimed the case for a jury trial. Id. Later, however, the defendant received a second certificate of closed pleadings, in which the plaintiff claimed the case for a court trial. Id. After receiving the second certificate of closed pleadings, the defendant filed its jury claim within a few days. Id. The defendant’s claim for a jury trial was filed after the statutory ten-day period prescribed in § 52-215. Id. The court found that ‘it appears that the defendant was justified in concluding that it did not need to file a jury claim because the plaintiff had already done so’ and, therefore, permitted the case to proceed to a jury trial. Id.
"In Nelligan v. Norwich Roman Catholic Diocese, Superior Court, judicial district of Tolland, Complex Litigation Docket, Docket No. X07-CV-02-0084287-S (October 20, 2005, Sferrazza, J.) (40 Conn.L.Rptr. 294, 294-95), the plaintiff failed to recognize that the pleadings had closed due to an ‘unusual procedural event.’ ‘Typically, issues are joined by a responsive pleading.’ Id., 295. In Nelligan, however, ‘the pleadings were closed instead by the court’s granting of a motion to strike the defendants’ special defense.’ Id. While the court noted that ‘the plaintiff ought to have perceived that the pleadings were closed by the court’s action’ and filed a jury claim within ten days of the decision on the motion to strike, the court allowed the case to proceed to a jury trial ‘[u]nder these unusual circumstances.’ " Id.
"The third and final consideration involves whether either party would be prejudiced by the court’s exercise of discretion to allow a jury trial despite a late filed claim. For example, in Fletcher v. Mead School for Human Development, Inc., supra, 28 Conn.L.Rptr. at 671, the court allowed a case to remain docketed for a jury trial where the claim for a jury trial was filed fourteen days late ... In doing so, the court noted that it ‘cannot find that the defendant is prejudiced by the exercise of this discretion.’ Id. Similarly, in the aforementioned Nelligan v. Norwich Roman Catholic Diocese, supra, 40 Conn.L.Rptr. at 295, the court found support for its decision to allow a jury trial despite a tardy filing in the fact that ‘the defendants [could not] point to any prejudice to them except that they would prefer the economy of a shorter trial.’ The prejudice consideration, however, is often not determinative, especially when the filing is very late. For example, in Long v. Hartford Neighborhood Centers, Inc., supra, 32 Conn.L.Rptr. at 128, the court noted that ‘[t]he defendants ... [could not] articulate any particular prejudice other than the fact that they would prefer to have the case tried by the court ...’ Nonetheless, the court concluded that the jury claim, which was filed over nineteen months late, was substantially tardy and granted the motion to strike the case from the jury list. Id., 129." (Emphasis added.) Id.
In the present case, the defendant’s claim for a jury trial was filed fourteen days late. As the court previously discussed, "[i]t is well settled that a claim for a jury trial must be filed no later than ten days after the pleadings have been closed." Masto v. Board of Education, 200 Conn. 482, 488, 511 A.2d 344 (1986).
"To ascertain whether the defendant’s claim for a jury trial [is] timely, [the court] must determine when the ten-day period began to run, that is, [w]hen ... an issue of fact [was] joined. ‘General Statutes § 52-215. We have said in this context that [t]he word "when" has been construed to mean "whenever." Noren v. Wood, [supra, 98, 43 A. 649].’ Amercoat v. Transamerica Ins. Co., supra, 165 Conn. at 732, 345 A.2d 30. We also have recognized that the issue of fact ‘must be formed by the pleadings in writing. See Avon Mfg. Co. v. Andrews, 30 Conn. 476, 488 [1862].’ Amercoat Corporation v. Transamerica Ins. Co., supra . Accordingly, [the court] examine[s] both the pleadings of the parties and the time frame within which they had been filed. Home Oil Co., Inc. v. Tood, 195 Conn. 333, 339-40, 487 A.2d 1095 (1985). Moreover, "[w]here responsive pleading is required ... the issue is joined when the responsive pleading is filed." Id., 343.
Here, the defendants filed their answer and special defenses to the plaintiff’s complaint on May 24, 2018. The plaintiff filed her reply on May 29, 2018, at which point all issues were joined. On June 11, 2018, the plaintiff filed a Certificate of Closed Pleadings and claimed the matter as a court trial. The defendants did not file their claim for jury until June 22, 2018.
The last pleading between the plaintiff and the defendants was the plaintiff’s reply to the defendant’s answer and special defenses to the plaintiff’s complaint, filed on May 29, 2018. Thus, as against the plaintiff the defendants could not properly claim a jury trial after June 8, 2018. The defendants filed their claim on June 22, 2018. This jury claim was filed fourteen days late. The defendants’ delay of fourteen days clearly fails to comport with the ten-day time frame set forth in § 52-215.
In determining whether to exercise discretion and allow this case to proceed to a jury trial or whether to grant the plaintiff’s motion to strike the jury claim, the court utilizes the three considerations outlined above. The defendants have failed to file an objection to the plaintiff’s motion to strike. Thus, notwithstanding the delay is only fourteen days, the defendants have not provided the court with any reason for their delay in filing their claim for a jury trial. Second, the defendants have not presented any extenuating circumstances that would justify the delayed filing. Third, the court considers whether either party would be prejudiced by the court’s exercise of discretion. The court acknowledges that the plaintiff has not demonstrated any prejudice in having a jury trial despite the tardy jury claim. However, because the defendants have failed to provide the court with any explanation for the delay, the first two considerations strongly indicate that discretion should not be exercised, and therefore, the court finds on balance, the considerations weigh in favor of granting the motion to strike the jury claim.
In Anastasis v. Mitsock, supra, 42 Conn.L.Rptr. 454, Judge Lager granted the defendant’s motion to strike the plaintiff’s jury claim which was filed only seven days late. Judge Lager aptly points out: "It has ... been the clear law in Connecticut since 1899 that a failure to claim a civil action to the jury within thirty days of the return date or within ten days after an issue of fact has been joined amounts to a voluntary and intentional relinquishment of the right to the jury trial provided by Art. I, § 21 of the Connecticut Constitution." Noren v. Wood, 72 Conn. 96, 98, 43 A. 649 (1879). Moreover, the legislature has adopted the court’s view by explicitly stating that a party’s failure to make a timely jury docket claim pursuant to statute amounts to a waiver of the jury trial. General Statutes § 51-239b.
"The constitutionality of the legislature’s ability to limit the time in which a case may be claimed to the jury docket has not been in doubt since 1903. McKay v. Fair Haven and Westville R.R. Co., 75 Conn. 608, 611, 54 A. 923 (1903). In that case, the court found that the statute neither deprived ‘parties of their right to a jury trial’ nor imposed ‘any arbitrary or unreasonable requirements upon one who desires such a trial.’ All that is required of a party seeking a jury trial is that the proscriptions of the statute be followed. Indeed, the court noted that the statutory language is ‘singularly clear and certain ... Words could scarcely be chosen which would express with greater precision the requirements to be observed by a litigant to claim his place as a matter of right upon the jury docket.’ Id., at 610-11.
"Connecticut law is clear not only that a party has ‘no absolute right to a jury trial,’ but also that the party who does not wish a jury trial and properly claims a case as a non-jury matter has a right to the court trial, in the absence of a court order to the contrary,’ Bristol v. Pritchard, 81 Conn. 451, 453, 71 A. 558 (1908)." Anastasia v. Mitsock, supra, 42 Conn.L.Rptr. 454-55.
Fair enforcement of the provisions of General Statutes § 52-215 is required for the benefit of all parties to a lawsuit. Accordingly, for the reasons stated above, the motion to strike this case from the jury docket is granted.
CONCLUSION
For the foregoing reasons, the plaintiff’s motion to strike this case from the jury docket is granted.