Opinion
HHDCV176074112S
03-14-2018
Jean GRIFFITHS v. Elizabeth FONTANEZ
UNPUBLISHED OPINION
OPINION
CESAR A. NOBLE, J.
This matter comes before the court because of an inaccurate police report which misspelled the defendant’s last name; led to the dismissal of an initial complaint by the plaintiff, Jean Griffiths; the refiling of a second action and, finally, the present motion for summary judgment based on the statute of limitations. The parties agree that the present action is barred by the statute of limitations if not saved by the accidental failure of suit, or the wrongful defendant statute, or both. The court holds the action is saved by the operation of both statutes and denies the motion for summary judgment.
General Statutes § 52-592. Sub-section (a) of the statute provides in relevant part: " If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because the action has been dismissed for want of jurisdiction ... the plaintiff ... may commence a new action ... for the same cause at any time within one year after the determination of the original action."
General Statutes § 52-593. Pertinently, the statute provides: " 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."
FACTS
The plaintiff, Jean Griffiths (Griffiths), alleges in the present complaint that on May 17, 2013, she suffered injuries when a vehicle she was operating was struck by another vehicle (accident) negligently driven by the defendant, Elizabeth Fontanez (Fontanez). The police report identified the other driver as Elizabeth Fantance. On May 18, 2015, the plaintiff filed with the court a complaint against Elizabeth Fantance claiming damages for injuries occasioned by the accident. The marshal’s return indicated he attempted service at the address on file with the Commissioner of Motor Vehicles, apparently, 26 South Whitney Street, Hartford, Connecticut, but was told by the current tenants that the defendant had moved. The marshal, proceeding pursuant to General Statutes § 52-63, left a copy of the writ of summons and complaint at the office of the commissioner and simultaneously sent by certified mail a copy to the last address on file with the commissioner. The letter, which had a 26 South Whitney Street address, was returned unclaimed. After process was returned to the court in May of 2015, the record reflects no activity until the following May of 2016, when an appearance was filed on behalf of Elizabeth " Fantance." The day after an appearance was filed on behalf of " Fantance," Griffiths filed with the court an " Amended Complaint As Served" which listed Fontanez as the defendant. Concurrently, Griffiths filed a return of service which indicated that process was left at 167 Barker Street, Apt. A3, Hartford, Connecticut. This address had been identified as Fontanez’ usual place of abode by her mother, Jenny Fontanez, who also resided there. Thereafter, another appearance was filed by different counsel for " Fontanez." This counsel filed a motion to dismiss on behalf of Fontanez due to lack of personal jurisdiction over Fontanez because she was never properly served. Fontanez supported the motion with her affidavit in which she averred that she never received the process in either 2015, or 2016.
The unauthenticated police report was offered as part of Griffiths’ opposition to summary judgment without objection from Fontanez. Our rules permit consideration only of those facts admissible in evidence. Practice Book § 17-46. Our Appellate Court has, however, consonant with a liberal interpretation of the rules, sanctioned the use of uncertified documents as a basis for an evidentiary foundation raised in opposition to summary judgment. Barlow v. Palmer, 96 Conn.App. 88, 91-2, 898 A.2d 835 (2006). See also Martinez v. Premier Maintenance, Inc., Superior Court, judicial district of Waterbury, Docket No. CV-14-6021982-S (February 15, 2017, Brazzel-Massaro, J.). " [A] court has discretion to consider unauthenticated documentary evidence when no objection has been raised by the opposing party." In the present case the court exercises its discretion to consider the police report.
The police report listed Fontanez’ address as 26 South Marshall Street, Hartford, Connecticut. Apparently, the correct address, the one listed with the Department of Motor Vehicles, was 26 South Whitney Street, Hartford, Connecticut. This was the address at which the marshal attempted service.
Section 52-63 provides that the Commissioner of Motor Vehicles is deemed to be the attorney for any operator or owner of a motor vehicle and may accept service on behalf of the operator or owner even though the whereabouts of the person sought to be served is unknown. Service pursuant to this statute also requires a marshal to mail the process by certified or registered mail to the last address on file at the department of motor vehicles.
The court, Scholl, J., granted the motion to dismiss, noting that Griffiths improperly attempted to amend the complaint and process by unilaterally serving a summons and complaint on the proper defendant in the context of an existing case without permission of the court. As a consequence, the court held it lacked jurisdiction over Fontanez.
Thereafter, Griffiths filed the present action (Griffiths II ) against Elizabeth Fontanez by complaint dated December 5, 2016. Griffiths II expressly provides that it was filed pursuant to § § 52-592 and 52-593. On July 27, 2017, the defendant filed a motion for summary judgment arguing that the defendant never received effective notice of the original action prior to the expiration of the relevant statute of limitations, General Statutes § 52-584, and as a result, the original action was never commenced. Therefore, the defendant argues, the plaintiff fails to meet the requirements of § 52-592 or § 52-593 which all require an original action. The motion was supported by copies of the various complaints and returns of service as well as Fontanez’ original affidavit. Subsequently, the plaintiff filed an objection to the defendant’s motion for summary judgment, dated October 10, 2017, to which the police report was attached. The matter was heard at short calendar on November 13, 2017.
Section 52-584 provides generally for a two-year limitations period from the date of injury for actions in negligence.
STANDARD
" Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Bozelko v. Papastavros, 323 Conn. 275, 282, 147 A.3d 1023 (2016). " [T]he ‘genuine issue’ aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred ... A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Citation omitted; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).
" [T]he party moving for summary judgment ... is required to support its motion with supporting documentation, including affidavits." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 324 n.12, 77 A.3d 726 (2013). Additionally, " [t]he existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence ... If the affidavits and the other supporting documents are inadequate, then the court is justified in granting the summary judgment, assuming that the movant has met his burden of proof." (Internal quotation marks omitted.) Rivera v. CR Summer Hill, Ltd. Partnership, 170 Conn.App. 70, 74, 154 A.3d 55 (2017). " Summary judgment may be granted where the claim is barred by the statute of limitations." Doty v. Mucci, 238 Conn. 800, 806, 679 A.2d 945 (1996).
ANALYSIS
Section 52-593 provides that " [w]hen 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." (Internal quotation mark omitted.) Cogan v. Chase Manhattan Auto Financial Corp., 276 Conn. 1, 8, 882 A.2d 597 (2005). " The general remedial purpose of [§ 52-593] is to relieve a plaintiff of the statute of limitations consequences where the plaintiff made a factual mistake in selecting her original defendant for the legal theory of the action, so long as the plaintiff brings the second action against the ‘right person’ within the one-year period. Because the statute is remedial in nature, it should be construed broadly to accomplish its remedial purpose. [A]ny ambiguities should be resolved in a manner that furthers, rather than thwarts, the [statute’s] remedial purposes." (Citations omitted, internal quotation marks omitted.) DiPietro v. Farmington Sports Arena, LLC, 123 Conn.App. 583, 594, 2 A.3d 963 (2010), reversed on other grounds, 306 Conn. 107, 49 A.3d 951 (2012). " Under Connecticut law, a right person, as that term is used in § 52-593, is one who, as a matter of fact, is a proper defendant for the legal theory alleged." Iello v. Weiner, 129 Conn.App. 359, 363, 20 A.3d 81 (2011). " § 52-593 would apply in a situation in which a plaintiff erroneously sues A under the mistaken belief that A negligently operated or owned a vehicle, when in fact B operated or owned the vehicle." Isidro v. State, 62 Conn.App. 545, 771 A.2d 257 (2001).
Similarly, our Supreme Court has long held that " § 52-592 is remedial and is to be liberally interpreted. Its essential purpose is to ensure the plaintiff the right to a trial of his claim." (Citations omitted; internal quotation marks omitted.) Tellar v. Abbott Laboratories, Inc., 114 Conn.App. 244, 250, 969 A.2d 210 (2009).
The defendant argues that the plaintiff fails to meet the requirements of § 52-592 and § 52-593 because an original action was never brought against anyone. This is so, asserts Fontanez, because Fantance does or did not exist. The court is not persuaded.
The affidavit of Fontanez, the same one used in the motion to dismiss the first action, asserts only that she has never been known as Fantance and " was not served with" either the 2015 or 2016 lawsuits. It does not represent that at the time the first service was made the address on file for her with the Commissioner of Motor Vehicles was not 26 South Whitney St., Hartford, Conn. There is thus a question of fact as to whether the first complaint was served on the correct address but with the last name misspelled.
Moreover, an action is saved by § 52-592 when the initial action was filed against a non-existent defendant. In Contadini v. Devito, 71 Conn.App. 697, 803 A.2d 423, cert. denied 262 Conn. 918, 812 A.2d 862 (2002) the plaintiff filed with the court an action asserting premises liability which named the defendant’s decedent, the owner of the premises, as a defendant. The decedent was alive at the time of the fall but was dead at the time of the abode service of the original writ of summons and complaint. The plaintiff became aware of her death when the defendant’s motion to dismiss the original action on the basis of her death was filed. After the granting of the motion to dismiss, the plaintiff filed a second action under § 52-592 against the defendant, now the executor of the decedent’s estate. The trial court thereafter granted summary judgment holding that § 52-584 barred the plaintiff’s action and that the plaintiff could not avail himself of the accidental failure of suit statute because the original action never existed due to the decedent’s death. The Appellate Court reversed relying on Isaac v. Mount Sinai Hospital, 210 Conn. 721, 557 A.2d 116 (1989).
In Isaac the Supreme Court considered " whether the accidental failure of suit statute authorizes the plaintiff to bring a new action for wrongful death where the original action was dismissed because at the time it was commenced the plaintiff was in fact not the administratrix of the decedent’s estate." Isaac v. Mount Sinai Hosp., supra, 210 Conn. 725. The court answered the question in the affirmative noting that the first action was in fact an " action" within the meaning of § 52-592 which permits the filing of a new action after the dismissal for want of jurisdiction of an initial " action" commenced within the applicable statute of limitations. The court rejected the defendant’s argument that the first suit never legally existed because the initial suit could only have been brought by an administrator of the estate. Its decision was governed by the proposition that " [i]n a general sense the word ‘action’ means the lawful demand of one’s rights in a court of justice; and in this sense it may be said to include any proceeding in such a court for the purpose of obtaining such redress as the law provides" ; Id., 730; . Id., 730-31. Because the first suit had the characteristics of an " action," § 52-592 operated to shield the second action from the operation of the statute of limitations.
Similarly, the Contadini court held that " the original action, which hadn’t named the representative of the deceased defendant, was as much an ‘action’ for the purposes of § 52-592 as was naming a representative of a deceased plaintiff prior to the appointment of such a representative in Isaac. " Contadini v. Devito, supra, 71 Conn.App. 701-02. In the present case, Griffith’s initial action was a lawful demand of one’s rights in a court of justice. To the extent that both Isaac and Contadini addressed, in dicta, the issue of the identity of interest between the parties named in the original actions and the subsequent parties, § 52-593- under which the plaintiff also seeks relief from the statute of limitations- operates in conjunction with § 52-592 to save the present action. This is so because not only is no such identity contemplated by § 52-593, it presupposes a lack of identity resulting from the failure to name " the right person" in the initial action.
For the foregoing reason the motion for summary judgment is therefore denied.