Opinion
No. NNH CV 08-5021887
December 3, 2010
MOTION FOR SUMMARY JUDGMENT #116
FACTS
This action arises from a seven-count complaint sounding in negligence that the plaintiffs, Aisha Mangan and her minor daughter, Areon K'Ara Mangan, commenced on July 10, 2008 by service of process on the defendants city of New Haven, Dr. Reginald Mayo, Dabe Rufus, Rebecca Smith, Blanca Little, Tanisha McBride and Janisha Little, for an incident that allegedly occurred at school between Areon Mangan and Janisha Little on July 14, 2006. On July 21, 2008, New Haven Corporation Counsel (corporation counsel) entered an appearance and filed a motion for extension of time to plead on behalf of New Haven, Mayo, Rufus, Smith, and Blanca Little. The next pleading filed on September 18, 2008 by corporation counsel was a motion to withdraw its appearance as to Rufus, Smith, and Blanca Little. On September 29, 2008, Bercham, Moses and Devlin, P.C. filed an appearance in lieu of corporation counsel on behalf of New Haven and Mayo.
Each count alleges negligence against the following: New Haven; the board of education; Mayo, the superintendent; Rufus, the principal; Smith, a teacher; McBride, the mother of the minor who allegedly assaulted Areon Mangan and the minor, Janisha Little. McBride is correctly named in the writ of summons, but erroneously referred to as Tanisha Little in the complaint.
Its appearance does not appear in the court file, but the Party/Appearance Information section in Edison notes that Bercham, Moses and Devlin, P.C. filed an appearance on that date. The firm subsequently filed a Request to Revise on October 27, 2008 for them and on November 6, 2008, the plaintiffs filed a six-count revised complaint which deleted the negligence count against the board of education.
The plaintiffs filed a second revised four-count complaint on February 9, 2009 that replaced New Haven with Achievement First Inc. d/b/a Elm City College Prepatory School (Achievement First) for count one and removed counts two and three against Mayo and Rufus respectively. Shortly thereafter, on February 24, 2009, the plaintiffs withdrew their complaint against New Haven and Mayo. The plaintiffs filed a motion for leave to file the second revised complaint on September 8, 2009, and attached the second revised complaint and the state marshal's return of service for Achievement First. In response, on September 14, 2009, the law firm of Jill M. McGoldrick filed a motion for summary judgment on behalf of Achievement First.
The law firm of Jill M. McGoldrick appeared by filing this motion.
After corporation counsel's first motion to withdraw its appearance was denied on March 9, 2009 for failure to comply with the procedures set out in Practice Book § 3-10, it filed a second motion to withdraw its appearance with respect to Rufus, Smith and Blanca Little on September 24, 2009. On October 6, 2009, the law firm of Jill M. McGoldrick filed an appearance in lieu of corporation counsel for Smith and Blanca Little.
From hereon, Smith and Blanca Little will be referred to as "the defendants."
On August 6, 2010, the defendants filed a motion for summary judgment on the ground that the plaintiffs' claims are barred by the two-year statute of limitations for negligence found in General Statutes § 52-584. In support of their motion, the defendants submitted a memorandum of law. The plaintiffs, on August 20, 2010, filed an objection and a supporting memorandum of law. On August 30, 2010, the defendants filed a reply brief. The matter was heard at short calendar on September 27, 2010.
Neither of the parties provided the court with any evidence, but the defendants note that the court may take judicial notice of facts in a court file. Borkowski v. Borkowski, 228 Conn. 729, 746, 638 A.2d 1060 (1994).
DISCUSSION
"Summary judgment is a method of resolving litigation when 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 . . . The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." (Citations omitted.) Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). "A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like . . ." Practice Book § 17-45.
"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008).
"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). Summary judgment is appropriate on statute of limitations grounds when the "material facts concerning the statute of limitations [are] not in dispute . . ." Burns v. Hartford Hospital, 192 Conn. 451, 452, 472 A.2d 1257 (1984).
The defendants argue that the plaintiffs' counts against them are barred by the statute of limitations contained in § 52-584 because they failed to serve the defendants within the two-year time period. The defendants further argue that because they were not employed by the city of New Haven at the time of the alleged incident, the city clerk for New Haven could not have accepted service on their behalf. Moreover, they have never received service, either by hand or at their usual place of abode. In response, the plaintiffs counter that General Statutes § 52-592 and § 52-593, the saving statutes, apply to save their action and that, therefore, the motion for summary judgment should be denied. The defendants in their reply memorandum assert that the saving statutes are inapplicable to the current action; they only save a suit from dismissal in actions subsequent to the original case.
The defendants' argument on the ground of statute of limitations is based on a claim of insufficient service of process, which is an issue of the court's personal jurisdiction over them. "The Superior Court . . . may exercise jurisdiction over a person only if that person has been properly served with process, has consented to the jurisdiction of the court or has waived any objection to the court's exercise of personal jurisdiction." (Internal quotation marks omitted.) Bove v. Bove, 77 Conn.App. 355, 362, 823 A.2d 383 (2003). "Any defendant, wishing to contest the court's jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance . . ." Practice Book § 10-30. Nevertheless, "[a]ny claim of lack of jurisdiction over the person . . . or insufficiency of service of process is waived if not raised by a motion to dismiss . . ." Practice Book § 10-32. "Thus, thirty-one days after the filing of an appearance or failure to adhere to the requisite sequence [in Practice Book § 6], a party is deemed to have submitted to the jurisdiction of the court. Any claim of insufficiency of process is waived if not sooner raised." Pitchell v. Hartford, 247 Conn. 422, 433, 722 A.2d 797 (1999) (holding that the defendant had waived his right to contest insufficiency of service of process after the city's attorneys filed an erroneous, but authorized appearance on his behalf); see Connor v. Statewide Grievance Committee, 260 Conn. 435, 797 A.2d 1081 (2002) (holding that even if service by the plaintiff had been improper, the defendant waived his right to contest personal jurisdiction when he filed an answer and failed to file a motion to dismiss).
Corporation counsel filed an appearance on behalf of the defendants on July 31, 2008. The law firm of Jill M. McGoldrick filed an appearance in lieu of corporation counsel on October 6, 2009. The court record indicates that neither counsel filed a motion to dismiss on the ground of insufficient service of process. Thus, it is submitted that the defendants waived the right to challenge personal jurisdiction under Practice Book § 10-32 because they failed to file a motion to dismiss within thirty days of an appearance.
At oral argument, the defendants' position was lack of service, not improper service. This distinction, however, is immaterial because the defendants waived the right to challenge process by their failure to file a motion to dismiss.
The question now becomes whether the plaintiffs commenced this action within the statute of limitations in § 52-584. Section 52-584 provides in relevant part: "No action to recover damages for injury to [a] person . . . caused by negligence . . . shall be brought but within two years from the date when the injury is first sustained or discovered . . ." "Civil actions shall be commenced by legal process consisting of a writ of summons or attachment, describing the parties, the court to which it is returnable, the return day, the date and place for the filing of an appearance and information required by the Office of the Chief Court Administrator . . ." General Statutes § 52-45a. "In Connecticut, an action is commenced on the date of service of the writ upon the defendant." (Internal quotation marks omitted.) Hillman v. Greenwich, 217 Conn. 520, 527, 587 A.2d 99 (1991). A state marshal's return of service is prima facie evidence that service was made. Tax Collector v. Stettinger, 79 Conn.App. 823, 825, 832 A.2d 75 (2003).
In the present case, the complaint alleges that the injury occurred on July 14, 2006 and the state marshal's return of service states that service was made on July 10, 2008. Thus, the action was commenced within two years of the injury. The evidence demonstrates that, because the defendants waived their right to challenge the court's personal jurisdiction over them, the action was commenced within the statute of limitations.
CONCLUSION
There is no genuine issue of material fact since the defendants waived the right to dispute personal jurisdiction over them and that the action was commenced within the statute of limitations. Thus, the defendants are not entitled to a judgment as a matter of law, and therefore, the motion for summary judgment is denied.