Opinion
DBDCV175012606S
01-30-2019
William McCleese v. Reginald Labbe Recreation Director GCI
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Krumeich, Edward T., J.
MEMORANDUM OF DECISION
Krumeich, J.
Defendant, Reginald Labbe, has moved to strike the jury claim filed by plaintiff, William McCleese, on the ground that it was untimely pursuant to C.G.S. § 52-215 because it was filed more than ten days after issues of fact were joined. For the reasons stated below, the motion to strike the jury claim is denied.
Section 52-215 provides, in pertinent part, as follows: "[w]hen, 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."
Practice Book § 14-10 tracks the time period for filing jury claims set forth in C.G.S. § 52-215: "[a]ll claims of cases for the jury shall be made in writing, served on all other parties and filed with the clerk within the time allowed by General Statutes § 52-215."
In Palumbo v. Barbadimos, 163 Conn.App. 100, 117-18 (2016), the Appellate Court discussed when a right to jury trial is waived:
"General Statutes § 51-239b provides: ‘In civil actions a jury shall be deemed waived unless requested by either party in accordance with the provisions of section 52-215.’ General Statutes § 52-215 ‘provides two periods of time within which an issue proper for trial by jury may be entered in the jury docket. One is within thirty days after the return day. The other is contained in the provision which reads, in part, as follows: When ... 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 ... The word when has been construed to mean whenever ... The issue must be formed by the pleadings in writing.’ ... Thus, ‘[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.’ ... Once the time for claiming a matter to the jury trial list has passed, the case automatically defaults to a trial to the court. If amended pleadings are later filed, this can reopen the ten-day period in which to claim a jury trial, but only if the new pleading introduces a new issue of fact into the case." (Citations omitted.)
In Palumbo, plaintiff unsuccessfully sought to avoid waiver of her jury right by withdrawing her reply to special defenses; the Appellate Court held she waived her jury right by failing to claim the case to the jury docket within ten days of filing the responsive pleading:
"All issues of fact in the original action were joined, at the latest, when the plaintiff filed her response to the defendant’s special defenses on August 21, 2013, thereby closing the pleadings ... ‘[W]here responsive pleading is required ... the issue is joined when the responsive pleading is filed’ ... Accordingly, to avoid missing the second deadline of § 52-215, the plaintiff, at the latest, should have claimed the matter for a jury trial on or before September 2, 2013. The plaintiff failed to do so.
Having failed to comply with either of the time periods set out in § 52-215, the plaintiff waived her right to unilaterally claim her original action to the jury docket. See General Statutes § 51-239b. At that time, the defendant acquired the right to have the parties’ dispute decided by the trial court." 163 Conn.App. at 118 (citations and footnote omitted).
Here, plaintiff has not filed a reply to the special defenses filed on April 12, 2018. Plaintiff filed his jury claim on December 31, 2018, more than six months after the special defenses were alleged. Defendant argues that plaintiff waived his jury right because he waited longer than ten days after issues of fact were joined to claim the case for a jury trial citing Masto v. Board of Education, 200 Conn. 482, 488 (1986), and Helfant v. Yale New Haven Hospital, 2013 WL 7084767 (Conn.Super. 2013) (Nazzaro, J.).
Plaintiff filed a jury fee waiver application on October 15, 2018 and filed the jury claim shortly after a waiver was granted.
The Court has discretion to permit the filing of a late jury claim in the exercise of sound discretion taking into consideration the circumstances of the late filing and other factors. See Diaz v. Brooks, 2018 WL 4199993 *1-5 (Conn.Super. 2018) (Wilson, J.) (and cases collected therein).
In Home Oil Co., Inc. v. Todd, 195 Conn. 333, 343 (1985), the Supreme Court stressed the test for a timely jury claim depends on joinder of issues of fact raised by the pleadings and held that issue was not joined until all responsive pleadings were filed:
"On appeal, the defendant claims only that the trial court erred in striking her claim for a jury trial. She contends that the plaintiff’s pleading in reply to her counterclaim set forth matters in avoidance that required a further pleading by her in order to close the pleadings. The defendant also maintains that the pleadings were not closed until she filed her "Reply to Matters in Avoidance," and, therefore, her claim for a jury was filed within the time limitations of § 52215 because it was asserted prior to the date of her reply. We agree, and find error."
The test for timely filing of a jury claim under C.G.S. § 52-215 is when an issue of fact is joined, which depends on the state of pleadings filed by the parties:
"To ascertain whether the defendant’s claim for a jury trial was timely, we 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.’ ... We also have recognized that the issue of fact ‘must be formed by the pleadings in writing ...’ ... Accordingly, we examine both the pleadings of the parties and the time frame within which they had been filed in the court below." 195 Conn. at 339-40 (citations omitted).
The Home Oil Court concluded that matters in avoidance alleged in the counterclaim required a responsive pleading and issue was not joined until such pleading was filed:
"As already pointed out, these ‘replies in avoidance’ alleged both ‘a defense analogous to contributory negligence’ and a defense of disclaimer under the oil system service contract between the parties. These allegations were in the nature of matter in avoidance in that they introduced other facts inconsistent to those pleaded in the counterclaim in order to avoid it ... Because these allegations pleaded factual matter new to the action in this case, the defendant Todd, as plaintiff on the counterclaim, should have been permitted to reply to them in a responsive pleading." 195 Conn. at 342 (citations omitted).
The time period for filing a jury claim under C.G.S. § 52-215 is measured from the time issues of fact are joined, not the date when the pleadings are closed. Although typically issues of fact are joined when replies to special defenses are filed that deny all or part of the material facts alleged in a special defense under Practice Book § 10-56 and the ten-day period does not start until such reply is filed, see O’Connell, Flaherty & Atmore v. Pollansky, 2005 WL 2496903 *2 (Conn.Super. 2005) (Keller, J.), there are special defenses that do not allege issues of material fact for a jury to decide but questions of law. See Town of Wallingford v. Reliance Ins. Co., 2000 WL 125015 *1, 5-6 (Conn.Super. 2000) (Silbert, J.); Travelers Property and Casualty Ins. Co. v. H.A.R.T., 2000 WL 1768114 *2 (Conn.Super. 2000) (Aurigemma, J.).
In Palumbo the Appellate Court held that the defendant’s vested right to a court trial arose when plaintiff failed to file a timely jury claim although neither party filed a certificate of closed pleadings. 163 Conn.App. at 105, 110.
Here, the special defenses alleged in the answer fall into a category of defenses that raise issues of law for the court, rather than issues of material fact for a jury to decide. The first special defense alleged is that the complaint "fails to state a claim upon which relief can be granted," which is a purported defense that has been stricken in other cases as not stating a special defense, particularly where, as here, no subordinate facts are alleged. See e.g., Zmarzlak v. Sanchez, 2017 WL 3251305 *3 (Conn.Super. 2017) (Krumeich, J.). The second and third special defenses, failure to exhaust administrative remedies and qualified immunity, also raise issues of law rather than fact that would be decided by the court, not a jury.
There are material facts, however, alleged in the answer to which plaintiff would be entitled to reply under Practice Book § 10-57 as a "[m]atter in avoidance of affirmative allegations in an answer." In this action plaintiff alleges he was discriminated against on the basis of his Muslim religion because defendant, an employee of the Department of Corrections, forced him to remove his kuffi head covering for a photograph while permitting other inmates to wear religious symbols and head gear. In the answer defendant did not simply deny the allegations in the complaint but also denied discriminating "against plaintiff or any other inmate" and alleged "[a]ll inmates were prohibited from wearing any head gear without regard to religious faith." Plaintiff is entitled to reply to these allegations in avoidance and have the jury decide the factual issues presented by the pleadings.
This action is brought against defendant in his individual capacity pursuant to 42 U.S.C. § 1983, under which a right to jury trial has been upheld. See e.g., Monterey v. Del Monte Dunes, 526 U.S. 687, 709 (1999). See generally Ham v. Greene, 248 Conn. 508, 519-22 (1999); Schnabel v. Tyler, 32 Conn.App. 704, 705 n.2 (1993); Skinner v. Anglicker, 211 Conn. 370, 377-78 (1989).
Because plaintiff has not yet replied to this affirmative allegation in avoidance of his claim the time for filing a jury claim under C.G.S. § 52-215 has not yet commenced and the premature jury claim remains in the court files preserving his jury right until issue of fact is joined. See Rocque v. Sound Manufacturing, Inc., 2002 WL 1371038 *2 (Conn.Super. 2002) (Hennessey, J.), citing Home Oil Co., 195 Conn. at 343.
The motion to strike the jury trial claim as untimely under C.G.S. § 52-215 is denied.