Opinion
No. CV 04-4000319
April 22, 2005
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT ( #103)
In this action the Plaintiff, Michael Richey, claims that he owned a commercial truck and was a commercial truck driver for Lydall Transport Ltd. He claims that on March 30, 1999 he was directed by Lydall to deliver a load of cargo from a warehouse facility known as Penn Warehousing Distribution, Inc. The Plaintiff alleges that the cargo to be picked up was owned by the Defendant, Cellmark Pulp Paper, Inc., which was the shipper of the cargo and that at all times Penn acted as the agent of Cellmark. The Plaintiff claims that Penn loaded the cargo in a negligent and careless manner which caused the cargo to shift and the Plaintiff's truck to topple over, injuring the Plaintiff and damaging the truck.
The Defendant, Cellmark Pulp and Paper, Inc., has moved for summary judgment on the grounds that this lawsuit is barred by the statute of limitations. The Defendant claims that the injury alleged here occurred in 1999 and pursuant to General Statutes § 52-584 a lawsuit based on that injury is barred unless commenced within two years.
"`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 . . . `A material fact is a fact that will make a difference in the outcome of the case . . . Once the moving party has presented evidence in support of the motion for summary judgment, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court . . .' (Internal quotation marks omitted.) Christian v. Gouldin, 72 Conn.App. 14, 18-19, 804 A.2d 865 (2002). Furthermore, as a general rule, summary judgment may be rendered where the claim is barred by the statute of limitations. Raynor v. Hickock Realty Corp., 61 Conn.App. 234, 237, 763 A.2d 54 (2000) . . . `the matter of whether a party's claim is barred by the statute of limitations is a question of law,' . . . Lenares v. Miano, 74 Conn.App. 324, 330, 811 A.2d 738 (2002)." Lombard v. Peters, 79 Conn.App. 290, 294 (2003).
In the Plaintiff's Objection to Motion for Summary Judgment dated December 15, 2004 he objects to the motion based on "Connecticut practice book 52-593 where as a non suit was entered July 2003 giving the Plaintiff one year from that date to reserve the Defendant." Apparently the Plaintiff is referring to General Statute § 52-593 which 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 . . ." In this regard the court has taken judicial notice of the file in Michael F. Richey v. Penn Warehouse Distribution Center, Inc., Superior Court, judicial district of Tolland at Rockville, Docket No. CV 01-0075918. There the Plaintiff brought suit alleging essentially the same facts as here and naming as Defendants, "Cellmark" and Penn Warehousing Distribution Inc. "Cellmark" was defaulted for failure to appear on December 16, 2002. The Plaintiff filed a First Amended complaint dated March 3, 2003 which contained one count labeled: "As to Penn Warehousing Distribution, Inc." It did not contain any count directed to "Cellmark" although the First Count referred to "Cellmark" as the owner of Penn's warehouse facility. By motion dated May 16, 2003 the Plaintiff moved to cite in a new party, Cellmark Pulp Paper, Inc., for the reason that "[t]he named Defendant `Cellmark' is not properly named and a judgment against it is of no use to the plaintiff." The motion refers to Cellmark Pulp Paper, Inc. as the "proposed new Defendant." Although an addendum by the Plaintiff to his motion states that the "proposed new party is the same entity as the original defendant" he also notes in that addendum that "[p]ermitting the adding of the proposed new party may greatly delay the trial . . ." The court denied the motion on June 2, 2003. On July 2, 2003 trial of the case began before a jury. On July 3, 2003, after a discussion between the court and counsel regarding how the absence of allegations against Cellmark would be handled, the court ordered that unless an amended complaint was filed by July 7, 2003, the Plaintiff would be nonsuited as to its claims against Cellmark. (See portion of applicable transcript attached.) On July 7, 2003 the court entered a judgment of nonsuit as to "Cellmark" against the Plaintiff for his failure to amend the complaint to state a claim as to "Cellmark." On July 11, 2003 the jury reached a verdict in favor of the Plaintiff against Penn. Although it is unclear to the court whether the Plaintiff believes now or did in the original action that "Cellmark" and Cellmark Pulp Paper, Inc., are the same entity, as the Defendant claims, if they are not the same entity then this is a new action against a new Defendant and is clearly barred by the statute of limitations. If it is not, and this action is simply another suit against the same entity which has changed its name, as the Defendant claims, then the court must analyze the Plaintiff's claim that the action is saved from the bar of the statute of limitations by either General Statutes §§ 52-592 or 52-593.
"Our Supreme Court has recognized that § 52-593 applies only in circumstances in which the plaintiff's original action failed by reason of naming, in fact, the wrong defendant; that is, in cases in which the naming of the wrong defendant was the product of a reasonable and honest mistake of fact as to the identity of the truly responsible individual. See Perzanowski v. New Britain, 183 Conn. 504, 507, 440 A.2d 763 (1981); see also Vessichio v. Hollenbeck, 18 Conn.App. 515, 520, 558 A.2d 686 (1989). To illustrate, § 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, 549-50 (2001). Since the Plaintiff was nonsuited as to "Cellmark" in the first action because of his failure to file an amended complaint to state his claim against "Cellmark" and not "by reason of failure to name the right person as defendant therein," General Statutes § 52-593 is inapplicable.
In his Supplemental Memo. Of Law Objecting to Summary Judgment the Plaintiff also cites the accidental failure of suit statute, General Statute § 52-592, which provides that: "If any action commenced within the time limited by law, has failed one or more times to be tried on its merits . . . if a judgment of nonsuit has been rendered . . . the plaintiff . . . may commence a new action . . . for the same cause at any time within one year after the determination of the original action . . ." The Defendant claims that since the Plaintiff already proceeded to judgment against Penn, which he alleges acted as Defendant's agent, the action has been tried on its merits and Section 52-592 is inapplicable. The Defendant's argument is misplaced. The action was not previously tried on the merits as to Cellmark Pulp Paper, Inc. and, in fact, the Plaintiff was nonsuited as to his action against "Cellmark" thus coming within the language of the statute.
The Defendant argues that the statute still does not apply because the Plaintiff has failed to establish that the nonsuit was entered as a result of "mistake, inadvertence or excusable neglect" as referenced by the Court in Ruddock v. Burrows, 243 Conn. 569, 576-8 (1998). There the Court held: "Whether the statute applies cannot be decided in a factual vacuum. To enable a plaintiff to meet the burden of establishing the right to avail himself or herself of the statute, a plaintiff must be afforded an opportunity to make a factual showing that the prior dismissal was a `matter of form' in the sense that the plaintiff's noncompliance with a court order occurred in circumstances such as mistake, inadvertence or excusable neglect. See General Statutes § 52-212 . . . We have not often decided that a plaintiff, after a dismissal under an applicable rule of practice, should be denied access to the statute because the prior judgment was not a `matter of form.' When we have done so, our decision has focused on conduct other than mistake, inadvertence or excusable neglect. For example, we have held that § 52-592(a) affords no relief in cases in which a plaintiff's prior action was dismissed because the plaintiff withdrew it voluntarily; see Parrot v. Meacham, 161 Conn. 573, 575, 290 A.2d 335 (1971); Baker v. Baningoso, supra, 134 Conn. at 387, 58 A.2d 5; or consented to its dismissal. Such consent may be inferred from a plaintiff's failure to file a memorandum in opposition to a defendant's motion to strike; Hughes v. Bemer, 206 Conn. 491, 495, 538 A.2d 703 (1988); or from a plaintiff's inordinate delay in appointing an administrator or executor. Walworth v. Hartford Hospital, 23 Conn.App. 404, 408-09, CT Page 7309 580 A.2d 545 (1990)." (Footnotes omitted.)
Here the Plaintiff has not provided any evidence regarding why he failed to revise his complaint. In the absence of such a revision there were no allegations by the Plaintiff against "Cellmark" to be determined. It can be concluded that the Plaintiff chose to abandon his claims against "Cellmark." In light of what was alleged in the Plaintiff's Motion to Cite in, the Plaintiff apparently believed that a judgment against "Cellmark" would be ineffectual, and, as a matter of strategy, in light of the court's decision on the Motion to Cite, chose not to replead. The Plaintiff also did not move to reopen the nonsuit within the time allowed but instituted this action instead. The Defendant claims that the nonsuit here was the result of the Plaintiff's own strategic choices and not the result of excusable neglect. The court agrees. The court concludes that the nonsuit was entered not because of excusable neglect by the Plaintiff but as a matter of strategy since he believed he had sued the wrong party, a determination not made by the court but by the Plaintiff himself. In light of that, the Plaintiff cannot avail himself of the provisions of General Statute § 52-592 since the situation here is more akin to a voluntary withdrawal of an action as opposed to a disciplinary nonsuit. "It is well settled that `withdrawal . . . cannot by the most liberal construction constitute accidental failure of suit for matter of form . . .' (Internal quotation marks omitted.) Parrott v. Meacham, 161 Conn. 573, 575, 290 A.2d 335 (1971)." Lind-Larsen v. Fleet National Bank Of Connecticut. 84 Conn.App. 1, 10 (2004). "As Ruddock clarifies, § 52-592(a) does not guarantee that all cases will receive adjudication on their merits. Construction of the statute should not be so liberal as to render a statute of limitations for bringing a cause of action `virtually meaningless.' Skibeck v. Avon, supra, 24 Conn.App. 243." Gillum v. Yale University, 62 Conn.App. 775, 786 (2001).
The Motion for Summary Judgment is granted.
Scholl, J.
Attachment
THE COURT: We're back on Shelby versus Penn Warehousing.
MS. IOANNOU: Angelina Ioannou for the Shelby Insurance.
MR. SHLUGER: Robert Shluger for Mr. Richey, plaintiff.
MR. JAJLIARDO: Timothy Jajliardo for Penn Warehousing.
THE COURT: A couple things. I understand all the jurors aren't here yet.
MS. IOANNOU: Okay.
THE COURT: So we're waiting on one of the jurors, but I've got, I also wanted to say that I did look at the status of Cellmark, you know, review the file in the Richey matter, and it appears that Cellmark was defaulted for failure to appear back in December of 02, then in March of 03 it looks, you know, there was the amended complaint as to Penn Warehousing, although it doesn't include any claim as to Cellmark, but it's true I don't see any withdrawal in the file as to Cellmark. So basically my conclusion is that Cellmark is still a party in the case, but the pleadings need to be fixed to be clear what the allegations are against Cellmark.
I believe there should be filed an amended complaint which would include your amended complaint as to Penn Warehousing without change. I'm not allowing you to amend that, but there should be I assume a second count as to Cellmark, and then that would be, I assume, the subject of further proceedings, not of this trial.
MR. SHLUGER: Could you, Your Honor, set a date for that to be done and the condition if that such is not done by that date that the complaint against that named defendant there be non suited?
THE COURT: All right. That's fine. He's already been defaulted though, so you're right. We'll say nonsuited. We'll give you how much time? One week?
MR. SHLUGER: That's fine.
THE COURT: One week to file an amended complaint, which includes the claims, if any, against Cellmark. If not, a nonsuit will enter as to Cellmark, plaintiff's claim against Cellmark.
MS. IOANNOU: Fine Your Honor. May I inquire exactly as how this is going to be introduced to the jury?
THE COURT: It's not going to be because we're not doing anything with Cellmark. Non-appearing. We're just, assume we're just trying the cases against Penn Warehousing. We're not trying the case against Cellmark.
MR. JAJLIARDO: So you're bifurcating the count?
THE COURT: They were defaulted for failure to appear.
MR. JAJLIARDO: That's right. That's right, Your Honor. There's an issue with damages. With Cellmark still in the case, it creates an issue of damages. Plaintiff can't double recover. So obviously it's going to have an effect as to what we can recover against Penn Warehouse versus against Cellmark, who you just indicated is still a party. So there's going to be further issues with this, so that's why I'm just trying to get a clearer picture.
THE COURT: I don't know why it would be. I think a judgment can be entered against, you know, if that happens, if the jury goes that way, finds for the plaintiff as to Penn Warehousing, can't a judgment then just be entered against, you know, Penn Warehousing and then, you know, decides to, Mr. Shluger decides to amend as to Cellmark and proceed to hearing in damages as to them?
MS. IOANNOU: I think those issues should be discussed in that hearing in damages. I don't think they should be here in this forum in front of this jury because we'd have to pick a whole new jury.
THE COURT: It's not an issue. I was just asked to clarify what I thought the status of — do you intend to plead over as to Cellmark?
MR. SHLUGER: My intention is to not plead, allow it to be nonsuited so there never will be a finding of any dollar amount so Attorney Jajliardo is going to be moot.
THE COURT: Why don't you just withdraw?
MR. SHLUGER: I do not want to withdraw. I need an order from the Court for nonsuit.
THE COURT: All right.
MR. SHLUGER: It's clearly spelled out in my motion to cite in party that was denied, the reasons for that, Your Honor.
THE COURT: All right. So, well, all right. So unless you file an amended complaint, then I'm just in — if you're not intending to file anything, if no amended complaint is filed by tomorrow, I mean by Monday, a nonsuit will enter.
MR. SHLUGER: That's even better.
MR. JAJLIARDO: As to Cellmark.
THE COURT: Right.
MR. JAJLIARDO: So there's two operative complaints, Your Honor.
THE COURT: No, it doesn't sound like there will be since it doesn't look like he's going to plead over. We're still left with the first amended complaint. That's the operative one, the one that I mentioned, March 3rd is the operative one.
MR. JAJLIARDO: No, I understand that, but you indicated that a nonsuit be entered as to Cellmark against the plaintiff or —
THE COURT: Yeah.
MR. JAJLIARDO: Okay. Never mind. I wasn't thinking straight.
THE COURT: I know. It's early, but I think that's right. Right?
MR. JAJLIARDO: That's fine.
THE COURT: So there's no — if no pleading is, no amended complaint is filed regarding the claims against Cellmark by Monday, the nonsuit will enter as to Cellmark as to the plaintiff's claim against Cellmark. All right?
MR. SHLUGER: Yes, Your Honor.
MR. JAJLIARDO: Thank you, Your Honor.
THE COURT: Anything else?
MS. IOANNOU: Just a scheduling matter. I mentioned I
I, Rebecca J. Livingstone, a Certified Shorthand Reporter for the Superior Court, Judicial District of Tolland, do hereby certify that the foregoing 4 pages are a complete and accurate transcription of my notes taken in the matter of Shelby v. Penn Warehouse on July 3, 2003 before the Honorable Jane S. Scholl.
Rebecca J. Livingstone Certified Shorthand Reporter