Opinion
No. CV02 039 45 56
February 27, 2006
MEMORANDUM OF DECISION
Mary and Vera Walenczyk, the plaintiffs, allege that Ronald Roy, the defendant, negligently caused a motor vehicle accident on April 3, 1998 in which the plaintiffs suffered injuries. The plaintiffs filed the present action on July 17, 2002 pursuant to General Statutes § 52-592(a), Connecticut's accidental failure of suit statute, after the court rendered a judgment of nonsuit in a prior action based on the same accident.
"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." General Statutes § 52-592(a).
The plaintiffs commenced the first action against the defendant on February 16, 2000 within the two-year statutory limit for bringing personal injury claims. On August 22, 2000 the defendant served the plaintiffs with standard discovery requests. The court granted an extension of time, but the plaintiffs did not respond to the discovery requests within the extended period. On December 8, 2000, the defendant filed a motion for nonsuit which the court denied on February 5, 2001. The discovery requests, however, remained unanswered, and the court ordered the plaintiffs to comply by March 5, 2001. The plaintiffs did not comply with the court order, and the defendant filed a second motion for nonsuit on March 13, 2001. The court granted the motion and rendered a judgment of nonsuit on April 20, 2001, and mailed notice of the nonsuit to the plaintiffs' counsel, Ambrose Cohane, on April 25, 2001. The mailing of said notice by the clerk's office on April 25, 2001 is not disputed by the parties.
See General Statutes § 52-584.
The plaintiffs commenced the present action on July 17, 2002 more than two years after the accident and nearly one year and three months after the court mailed notice of the nonsuit in the first case to Ambrose Cohane. On July 18, 2003, the defendants filed a motion for summary judgment arguing that there were no genuine issues of material fact and that they were entitled to judgment as a matter of law because the plaintiffs' commenced their second action beyond the one-year period set forth in § CT Page 3711 52-592. In denying the defendant's motion for summary judgment, the court, Karazin, J., adopted the law and reasoning in the case of Boland v. Perez, Superior Court, judicial district of Fairfield, Docket No. CV 02 394427 (September 5, 2003, Levin, J.) in which the court denied a similar motion for summary judgment because the plaintiff in that case had established the existence of a material issue of fact regarding when the plaintiff's counsel, also Ambrose Cohane, had received notice of a nonsuit.
The present action was scheduled for a trial to be held on September 14, 2005. On August 17, 2005, the parties made a joint request to bifurcate the trial by trying separately the defendant's third special defense that the plaintiffs' claim is barred by the statutes of limitation. The court, through the presiding judge, Hiller, J., granted the request, and the trial proceeded on September 14, 2005 limited to the defendant's third special defense. At trial, the defendants produced evidence that the court had mailed a notice of nonsuit to Ambrose Cohane on April 25, 2001, and the plaintiffs presented the testimony of Attorney Peter Ambrose, Attorney Christopher Vaugh and Ms. Judith Elmendorf of the Law offices of Ambrose Cohane.
When a court renders a judgment of nonsuit, the plaintiff has two options to try to revive the action. The plaintiff can move to open the nonsuit pursuant to General Statutes § 52-212 or file a new action pursuant to § 52-592. Section 52-592(a) allows the plaintiff to "commence a new action . . . within one year after the determination of the original action or after the reversal of the judgment." Section 52-212(a) allows the plaintiff to file a motion to open the nonsuit within four months after the nonsuit is rendered.
"Any judgment rendered or decree passed upon a default or nonsuit in the Superior Court may be set aside, within four months following the date on which it was rendered or passed, and the case reinstated on the docket, on such terms in respect to costs as the court deems reasonable, upon the complaint or written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of the judgment or the passage of the decree, and that the plaintiff or defendant was prevented by mistake, accident or other reasonable cause from prosecuting the action or making the defense." General Statutes § 52-212(a).
There has been some disagreement within the Superior Court regarding the date of commencement of the one-year limitation in § 52-592 when a plaintiff first moves to open pursuant to § 52-212. See Ingriselli v. Frisina, Superior Court, judicial district of New Britain, Docket No. CV 01 0507793 (March 15, 2002, Wiese, J.) ( 31 Conn. L. Rptr. 578, 579-80). The disagreement centers on the proper application of the term "determination" as used in § 52-592(a). On one side, the cases stand for the proposition that the original action is determined when the nonsuit is entered even though the defendant subsequently moves to open the nonsuit. Id. On the other side, the courts conclude that when the defendant files a timely motion to open a nonsuit, the action is determined upon the resolution of that motion. Id. These courts would allow the defendant to file a new action within one year of the denial of a motion to open. Id. The defendant in the present case elected not to file a motion to re-open the nonsuit once discovered but immediately filed a new action pursuant to § 52-592.
None of the Connecticut Superior Court or Appellate cases hold that the one-year limitation begins to run after the expiration of the § 52-212 four-month period when the plaintiff has not filed a motion to open. Therefore, the proper application of § 52-592 to the present case allows the plaintiff only one year to file a new action because no motion to open was filed. The specific issue in the present case is when that one-year period commenced.
"[I]t is the policy of the law to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court . . . Further, [o]ur practice does not favor the termination of proceedings without a determination of the merits of the controversy where that can be brought about with due regard to necessary rules of procedure." (Citation omitted; internal quotations marks omitted.) Johnson v. Atlantic Health Services, P.C., 83 Conn.App. 268, 278, 849 A.2d 853 (2004).
In Henriquez v. Allegre, 68 Conn.App. 238, 789 A.2d 1142 (2002) our Appellate Court stated, "Section 52-592 by its plain language, is designed to prevent a miscarriage of justice if the plaintiffs fail to get a proper day in court due to the various enumerated procedural problems . . . It was adopted to avoid hardships arising from an unbending enforcement of limitation statutes . . . Its purpose is to aid the diligent suitor . . . Indeed, our Supreme Court has long held that § 52-592 is remedial and is to be liberally interpreted . . ." Its broad and liberal purpose is not to be frittered away by any narrow construction. The important consideration is that by invoking judicial aid, a litigant gives timely notice to his adversary of a present purpose to maintain his rights before the courts It is axiomatic that the right to bring a new action under [§ 52-592] assumes that the party who is to exercise the right be given the opportunity to know that the original action has been terminated . . . Our Supreme Court has stated that [f]undamental tenets of due process . . . require that all persons directly concerned in the result of an adjudication be given reasonable notice and the opportunity to present their claims and defenses . . . Moreover, [t]he guarantee of procedural due process requires that persons whose rights are to be affected have a right to notice and an opportunity to be heard at a meaningful time and in a meaningful manner." (Citations omitted; internal quotation marks omitted.) Id., 243-45.
The Appellate Court concluded that "the failure of a plaintiff to receive timely notice of the dismissal of his original action extends the time within which the plaintiff may commence an action pursuant to § 52-592." Id., 243. Furthermore, the court held that "the plaintiff . . . must commence his action under § 52-592 within one year after the date the court determines that he received notice of the dismissal." (Emphasis added.) Id., 247.
"Whether a party has been given notice is a question of fact . . ." (Citation omitted.) Batory v. Bajor, 22 Conn.App. 4, 9, 575 A.2d 1042, cert. denied, 215 Conn. 812, 576 A.2d 541 (1990). In resolving issues of fact regarding notice given by a court, a notation in the court file indicating that the court sent notice of a particular judgment to a party raises a presumption that the party received the notice. Habura v. Kochanowicz, 40 Conn.App. 590, 594, 672 A.2d 512 (1996). The presumption, however, is rebuttable. Henriquez v. Allegre, supra, 68 Conn.App. 247.
At the bifurcated trial in the present case, the defendant produced evidence that the court mailed a notice of the judgment of nonsuit to Ambrose Cohane on April 25, 2001. Such evidence raises the presumption that Ambrose Cohane received notice. The plaintiffs presented the testimony of three witnesses in an attempt to rebut the presumption. The ultimate issue presented in this case is whether the testimony of these three witnesses is sufficient both to overcome the presumption and to support a factual finding that the notice sent by the court was not received.
In Connecticut, the courts have not articulated the type of evidence which necessarily overcomes this presumption once it is invoked. The Connecticut Supreme Court, however, has recognized that "our sister states require varying levels of evidence to rebut the presumption of receipt generated by the mailbox rule." Echavarria v. National Grange Mutual Ins. Co., 275 Conn. 408, 418 n. 11, 880 A.2d 882 (2005). Some jurisdictions, although they are rare, hold that an uncontradicted denial by the addressee rebuts the presumption. 29 Am.Jur.2d, Evidence § 266 (1994). Most jurisdictions, however, hold that "denial of the receipt of a letter raises an issue of fact to be determined by the [trier of fact]." Id. At least one Connecticut Superior Court case stands for the proposition that "[a] mere denial of receipt is insufficient to rebut the presumption that mail was received." Volikas v. K-Mart, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV 01 0076466 (January 12, 2004, Robinson, J.).
In the present case, however, the plaintiffs produced more than a mere denial that the notice of nonsuit was received. The plaintiffs offered the testimony of three witnesses from the law firm of Ambrose Cohane.
Judith Elmendorf, a part-time legal secretary at Ambrose Cohane since March 2001, testified that during the summer of 2002 she decided to audit the case files for which Lila Ryder, the firm's full-time legal secretary, had primary responsibility. Although Elmendorf did not know how the office was run prior to March 2001, she testified that when she arrived at Ambrose Cohane there was a foot high stack of papers on Ryder's desk that needed to be filed. Because Ryder was in the hospital, Elmendorf decided to audit all of the files. As part of this audit, she examined the plaintiffs' file and searched the Connecticut Judicial Branch website to determine the status of the case. The internet search revealed that a judgment of nonsuit had been rendered on April 20, 2001. When Elmendorf examined the file, she did not find a notice of nonsuit and discovered that several other documents including two motions for nonsuit and numerous short calendar reclaim slips filed by the defendants were also missing from the file. She could not explain why any of these document were missing.
Christopher Vaugh, a personal injury attorney at Ambrose Cohane, testified that he was the primary attorney handling the plaintiffs' case and that he relied on Ryder to bring important items to his attention. Ryder maintained a diary system for short calendar motions and other court calendar items, and she would inform Vaugh if any motions were on the short calendar. While Ryder was in the hospital, Elmendorf informed Vaugh that a nonsuit had been rendered in Walenczyk v. Roy. This came as a surprise to Vaugh because he could not recall seeing a motion for nonsuit granted by the court. Vaugh testified that he was not aware of any motions or markings in this case for a nonsuit at short calendar and that he did not find any reclaim slips regarding a motion for nonsuit in the firm's file for Walenczyk v. Roy. Vaugh acknowledged that he received discovery requests and filed a motion for an extension of time within which to respond to those requests but did not file a notice of compliance with the court. Vaugh further testified that he did not know whether or not the firm received the notice of nonsuit.
Peter Ambrose, a principal of the firm of Ambrose Cohane in April 2001, testified that he never saw the notice of nonsuit issued by the court until he gave his deposition regarding the present case on January 7, 2004. He testified further that he first learned of the judgment of nonsuit rendered in the prior case from Elmendorf and not through any written notice from the court. After Elmendorf discovered the judgment of nonsuit, a complete search was conducted and the notice of nonsuit could not be found in the file for Walenczyk v. Roy or in any other file. On cross-examination, Ambrose acknowledged that incoming mail was not date stamped and that no procedure existed for creating a log of incoming mail. Ambrose further acknowledged that any notices from the court received in the office would go first to the secretary at the front desk. Any mail given to Ryder would be distributed by her, but sometimes Ryder would take work home if she became backed-up. When Ryder left Ambrose Cohane, the firm made an inventory of her files and discovered that a number of documents were missing from the Walenczyk file including two motions for nonsuit, several short calendar reclaim slips, and the notice of nonsuit. Ambrose testified that he had no idea how this happened.
"The facts which furnish the foundation of the presumption in question are entitled to count as evidence, and all fair inferences therefrom may be drawn; but the rule of law which gives to them an additional artificial effect may not be regarded as either contributing evidence or possessing probative quality." (Citations omitted; internal quotation marks omitted.) O'Dea v. Amodeo, 118 Conn. 58, 61-62, 170 A.2d 486 (1934). The presumption that arises from the mailbox rule rests upon the common experience and inherent probability that a letter properly mailed will be received.
Therefore, the standard of proof to be applied in the present case turns on whether the circumstances affecting the receipt of notice by Ambrose Cohane are peculiarly within the plaintiffs' knowledge and power to bring evidence before the court. Again, the factual issue is whether Ambrose Cohane received the notice from the clerk's office. Since the circumstances involved in that issue are peculiarly within their knowledge, they must go beyond substantial countervailing evidence. They must prove that they did not receive notice. As observed supra, that is a question of fact for the court.
Based upon the evidence and reasonable inferences drawn therefrom, the court finds that Ambrose Cohane did not receive the notice of the judgment of nonsuit mailed by the clerk's office on April 25, 2001.
Accordingly, the court finds that the plaintiff's claim is not barred by the statue of limitations, and further finds that Ambrose and Cohane first received actual notice of nonsuit in June 2002 when Elmendorf discovered the nonsuit by searching the judicial website. The plaintiff's complaint filed on July 17th, 2002 is timely filed within the one-year limit prescribed by C.G.S.A. 52-592.