Opinion
HHDCV196106291S
06-07-2019
Jessica GLASS et al. v. TOWN OF SOUTH WINDSOR
UNPUBLISHED OPINION
OPINION
Jane S. Scholl, J.
The complaint in this matter is brought pursuant to General Statutes § 52-592 and is entitled "Complaint Pursuant to C.G.S. § 52-592." That statute provides, in 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 defendant, the Town of South Windsor, has moved to dismiss for lack of subject matter jurisdiction and for reasons of judicial economy.
In Worth v. Commissioner of Transportation, 135 Conn.App. 506 (2012), the plaintiff claimed that the trial court improperly found that she could not avail herself of the accidental failure of suit statute because she failed to plead facts to establish that the first action was not tried on its merits due to a mistake, inadvertence or excusable neglect. The Appellate Court concluded that the court properly dismissed the action because the first action had not been nonsuited due to mistake, inadvertence or excusable neglect. Here a reading of the complaint reveals that the first action was in fact heard on the merits, in that it was determined that the plaintiffs failed to state a claim on which relief could be granted, and, therefore, the plaintiffs cannot avail themselves of General Statutes § 52-592 and this action should be dismissed.
The complaint here alleges: "1. By way of Complaint filed with this Court on January 31, 2018, bearing a Docket Number HHD-CV-18-6088493-S, the Plaintiffs sued the Town of South Windsor as a result of negligent actions by the Defendant on December 16, 2015. 2. On December 4, 2018, Judge Matthew Budzik granted judgment on behalf of the Defendant based on Practice Book § 10-44, terminating the action due to the Plaintiff’s revised Complaint being insufficient following the granting of a Motion to Strike, which was granted on September 13, 2018, by order of Judge Budzik."
"A motion to strike a cause of action in its entirety challenges the most fundamental aspect of a plaintiffs cause of action ... If no cause of action was stated and the complaint could not be amended to correct this deficiency, judgment necessarily would be rendered for the defendants ... That a judgment rendered pursuant to a motion to strike is a judgment on the merits has been a part of our decisional law for more than a century. Since the decision on the [motion to strike] determined that no right of action existed, the judgment [following a failure to plead over] was as final and complete as a judgment following a trial on the merits ... The fact that the former judgment was upon demurrer, does not militate in the least against its being a decision on the merits, and as binding as a judgment after verdict."(Citations omitted; internal quotation marks omitted.) Santorso v. Bristol Hospital, 127 Conn.App. 606, 616-17 (2011), aff’d, 308 Conn. 338 (2013).
The defendant also argues that since the plaintiff failed to file a memorandum of law in opposition to the motion strike such constitutes consent to the granting of the motion and thus the decision constitutes res judicata. "Res judicata or claim preclusion prevents a litigant from reasserting a claim that has already been decided on the merits ... The doctrine of res judicata provides that a former judgment serves as an absolute bar to a subsequent action involving any claims relating to such cause of action which were actually made or which might have been made ..." (Citations omitted; internal quotation marks omitted.) Tucker v. Pace Investments Associates, 32 Conn.App. 384, 388, cert. denied, 228 Conn. 906 (1993), certiorari denied, 501 U.S. 1198 (1994). "Further, courts must implement res judicata to foster the important public policy of preventing a party from relitigating a matter that he has already had an opportunity to litigate ... Res judicata, as a judicial doctrine ... should be applied as necessary to promote its underlying purposes. These 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 ... (Citations omitted; internal quotation marks omitted.) Id., 389. "[T]he general rule [is] that res judicata must be specially pleaded ... This general rule, however, yields when, as here, the circumstances reveal that a remand would simply set judicial wheels unnecessarily spinning, only to remain at the same end of the road." (Citations omitted; internal quotation marks omitted.) Id., 391-2.
The record in the first case indicates that the September 13th order granting the motion to strike, referenced in the complaint here, was granted: "Absent objection and for the reasons stated in Defendant’s memorandum of law in support of motion to strike dated July 10, 2018." The defendant cites Hughes v. Bemer, 206 Conn. 491, 493-5 (1988) in support of its claim that the failure of the plaintiffs to file a file a memorandum of law in opposition to the motion strike constitutes consent to the granting of the motion There the court stated: "In Hughes v. Bemer, 200 Conn. 400, 510 A.2d 992 (1986), we observed that in connection with the motion to strike, the plaintiffs had failed to submit to the trial court the opposing memorandum of law required by Practice Book § 155. This being the case, the plaintiffs, as the adverse party, were deemed, by operation of the rules, ‘to have consented to the granting of the motion.’ ... The plaintiffs concede that the judgment of the trial court in the first case was on the merits. Since the decision on the ... [motion to strike] determined that no right of action existed, the judgment [following a failure to plead over] was as final and complete as a judgment following a trial on the merits ... Section 52-592 does not authorize the reinitiation of all actions not tried on ... [their] merits, only those that have failed for, among other reasons, any matter of form. An order that enters pursuant to Practice Book § 155 is not a matter of form. The failure to file the required memorandum of law operates as a consent to the granting of the motion to strike. The judgment that may thereafter enter, though not necessarily a determination on the merits, is nevertheless a final judgment whose issues are thereafter res judicata as between the parties. A judgment by consent is in effect an admission by the parties that the decree is a just determination of their rights on the real facts of the case had they been found. It is ordinarily absolutely conclusive between the parties and cannot be appealed from or reviewed on a writ of error ... We conclude, therefore, that the matter here, although concededly not decided on its merits on appeal, has not failed for any matter of form within the meaning of § 52-592. This statute [§ 52-592] was passed to avoid the hardships arising from an unbending enforcement of limitation statutes ... We discern no intent to create an exception to the principles of res judicata that require, at some point, an end to litigation." (Citations omitted; internal quotation marks omitted.) Practice Book § 155, at the time that Hughes v. Bemer, 200 Conn. 400, 402 (1986), was decided, provided, as quoted by the Court, that: "If an adverse party objects to [a motion to strike] he shall, at least five days before the date the motion is to be considered on the short calendar, file and serve in accordance with Sec. 120 a memorandum of law. An adverse party who fails timely to file such a memorandum pursuant to this section shall be deemed by the court to have consented to the granting of the motion." The Practice Book revisions of 1989 eliminated the last sentence of the rule. "Conn. Practice Book § 155, as amended, Conn. Law Journal, July 18, 1989 at 3c, provides, in pertinent part: ‘Each motion to strike must be accompanied by an appropriate memorandum of law citing the legal authorities upon which the motion relies. If an adverse party objects to this motion he shall, at least five days before the date the motion is to be considered in the short calendar, file and serve in accordance with Section 120 a memorandum of law.’ Prior to the amendment to Conn. Practice Book § 155, a party who failed to timely file a memorandum of law in opposition to a motion to strike was deemed to have consented to the granting of the motion ... With the deletion of the foregoing provision from section 155, the failure to timely file an opposing memorandum will not necessarily be fatal and the court may therefore address the merits of the motion. However, despite the amendment to Conn. Practice Book § 155, the filing of a memorandum in opposition to a motion to strike is mandatory and the; failure to file such may still serve as a ground for granting a motion to strike." Olshefski v. Stenner, Judicial District of Hartford-New Britain, at Hartford, Docket No. CV 88 03518995 (Clark, J., Sept. 27, 1990) . "Although Practice Book § 155, now [§ 10-40], previously provided that a party who failed to file ... a memorandum [in opposition to a motion to strike] shall be deemed by the court to have consented to the granting of the motion[, ] ... [t]hat language was subsequently removed from [the] Practice Book ... Despite noting the revision in the Practice Book, the court in Doe [v. Board of Education, 76 Conn.App. 296, 298 n.5 (2003)], did not rule as to whether this failing remains a sufficient basis for granting a motion to strike under the current law ... To date, no appellate authority has addressed this issue either. Nonetheless, a majority of decisions have concluded that the failure to file a timely opposing memorandum will not necessarily be fatal and that the court, in its discretion, may address the merits of the motion to strike ... [S]ome of the decisions in the majority have stressed the absence of an objection from the moving party, while others have waived the [then existing] five-day requirement of § 10-42(b) [now thirty days in § 10-40(a) ]." (Citations omitted; emphasis in original; internal quotation marks omitted.) Wiygul v. Thomas, Superior Court, Judicial District of Stamford-Norwalk, Docket No. FSTCV136016967S, footnote 1 (Taggert, J.T.R., June 3, 2014). It is clear from the court’s decision here on the motion to strike that it considered the merits of the motion and did not rely simply on the plaintiffs’ failure to object as a basis for granting the motion.
The plaintiffs argue that in considering whether a decision on a motion to strike is a decision on the merits turns on the particular facts of a given case. Even assuming that is true, a comparison of the allegations of the Second Revised Complaint in the previous action here with the complaint in this action reveals no substantial difference. The court has previously determined that such allegations fail to state a claim upon which relief can be granted.
For the reasons stated above, the Motion to Dismiss is granted.