Opinion
No. CV02 0279744-S
May 26, 2005
MEMORANDUM OF DECISION RE: MOTION TO VACATE WITHDRAWAL OF COMPLAINT AGAINST THIRD-PARTY DEFENDANT #137 FACTS
On February 11, 2002, the plaintiff, Jennifer Herring, commenced this premises liability action against the defendant, David M. Kowalski (Kowalski), with a one-count complaint sounding in negligence. The complaint alleges that on January 31, 2000, the plaintiff sustained injuries when she slipped and fell on an accumulation of ice and snow. On March 27, 2002, Kowalski moved to implead John Biafore Son (Biafore) as a third-party defendant; the court granted Kowalski's motion on April 18, 2002. Thereafter, Kowalski served a two-count complaint on Biafore for breach of contract and negligence for failing to sand and remove ice and snow from the premises. On May 30, 2002, the plaintiff filed an amended complaint in which she added a second count of negligence directed toward Biafore. Thereafter, Biafore filed a motion for summary judgment on count two arguing that the plaintiff's claim of negligence was barred by the applicable statute of limitations, General Statutes § 52-584, because it was not brought within two years from the date of the plaintiff's injury. On March 14, 2003, the plaintiff withdrew count two of her amended complaint against Biafore.
By motion filed on June 30, 2004, the plaintiff now moves the court to vacate that withdrawal and restore count two of the amended complaint.
DISCUSSION
In her motion to vacate the withdrawal, the plaintiff contends that she withdrew count two of her amended complaint relying directly on a case cited by Biafore in support of its motion for summary judgment for the proposition that her claim was barred by the statute of limitations, Vincent v. Litchfield Farms, 21 Conn.App. 524, 57 A.2d 834, cert. denied, 215 Conn. 815, CT Page 9218 516 A.2d 546 (1990). On March 18, 2003, four days after the plaintiff withdrew her claim, the Appellate Court published its decision in a case which the plaintiff asserts reversed the holding in Vincent as it pertains to the statute of limitations defense of third-party defendants, Tarnowsky v. Socci, 75 Conn.App. 560, 816 A.2d 728 (2003), aff'd, 271 Conn. 284 (2004) (holding that the two-year statute of limitations set forth in § 52-584 does not begin to run until the plaintiff knows, or reasonably should have known, the identity of the tortfeasor. The plaintiff argues that under Tarnowsky, count two of her amended complaint would not have been barred by the statute of limitations and that, therefore, she should be permitted to vacate her withdrawal, restore count two and proceed with her action against Biafore. Whether that is so need not be decided because it is not germane to the motion now before the court.
In Vincent v. Litchfield Farms, supra, 21 Conn.App. 524, involved a premises liability action in which the plaintiff filed an amended complaint naming the third-party defendants, who had been impleaded by the defendant, as codefendants in the original action. After the trial court granted the third-party defendants' motion for summary judgment against the plaintiff on statute of limitation grounds, the plaintiff appealed, arguing that her direct claim against the third-party defendants related back to the date of the defendant's third-party complaint, thereby shielding her from the granting of summary judgment. The Appellate Court held that because the plaintiff did not amend her complaint to include claims against the third-party defendants until after the applicable statute of limitations had run, her claim was time-barred. Vincent stands for the proposition that the filing of a third-party complaint does not toll the statute of limitations.
Tarnowsky v. Socci, 75 Conn.App. 560, 816 A.2d 728 (2003), aff'd, 271 Conn. 284 (2004), addressed the question of when the statute of limitations begins to run for an injured claimant who is injured, but only later discovers the identity of the tortfeasor who caused the injury.
Biafore argues that the plaintiff's claim of negligence would be barred even under Tarnowsky, because the plaintiff indicated in her deposition that she was aware of Biafore's obligation to remove ice and snow and nevertheless failed to bring suit within the two-year statute of limitations period. In response to these arguments, the plaintiff argues that even if she knew that a maintenance company was responsible for removing snow and ice, she did not know the identity of the company and that, therefore, the statute of limitations should be tolled under Tarnowsky.
"Under [the] law, the effect of a withdrawal, so far as the pendency of the action is concerned, is strictly analogous to that presented after the rendition of a final judgment or the erasure of the case from the docket." Sicaras v. Hartford, 44 Conn.App. 771, 776, 692 A.2d 1290, cert. denied, 241 Conn. 916, 696 A.2d 340 (1997)). "[T]he motion to restore a case to the docket is the vehicle to open a withdrawal, while the motion to open is the vehicle to open judgments." (Internal quotation marks omitted.) Id. Because withdrawals are analogous to final judgments, "there is a finite time period during which a withdrawn case can be restored to the docket, just as there is a finite time period during which final judgments can be opened." Id.
"It is well recognized that our courts have inherent power to open, correct and modify judgments, but that authority is restricted by statute and the rules of practice." Richards v. Richards, 78 Conn.App. 734, 739, 829 A.2d 60, cert. denied, 266 Conn. 922, 835 A.2d 473 (2003). A motion to open a judgment is governed by General Statutes § 52-212a and Practice Book § 17-4. Section 52-212a operates as a limitation on a trial court's authority to grant relief from a judgment; see Kim v. Magnotta, 249 Conn. 94, 101-04, 733 A.2d 809 (1999); providing in relevant part that "[u]nless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a civil judgment or decree rendered in the Superior Court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed." Where "the motion [to open] is untimely and the time limitation has not been waived, the trial court is without jurisdiction to entertain the motion." Batory v. Bajor, 22 Conn.App. 4, 9, 575 A.2d 1042, cert. denied, 215 Conn. 812, 576 A.2d 541 (1990).
The defendant argues that the court lacks jurisdiction or authority to open the judgment due to the passing of the statutory four month time limitation. The plaintiff appears to misconstrue the defendant's argument and in response, argues that Biafore has waived any challenge to personal jurisdiction and consented to the jurisdiction of the court by objecting to the motion to vacate the withdrawal. "[I]t is confusing to describe the four month limitation period in § 52-212a as implicating a court's personal jurisdiction over the parties to a motion to open a judgment, because, under our case law, lack of personal jurisdiction generally means something else." Kim v. Magnotta, supra, 249 Conn. 101. "The better construction of the statute is to characterize it as a limitation on the trial court's general authority to grant relief from a judgment, not as a limitation on its personal jurisdiction over the parties." Id., 102-03. "Thus construed, § 52-212a operates as a constraint, not on the trial court's jurisdictional authority, but on its substantive authority to adjudicate the merits of the case before it." Id., 104.
"A judgment rendered may be opened after the four month limitation if it is shown that the judgment was obtained by fraud, in the absence of actual consent, or because of mutual mistake." Richards v. Richards, supra, 78 Conn.App. 739. "The kind of mistake that would justify the opening of a stipulated judgment under § 52-212a must be mutual; a unilateral mistake will not be sufficient to open the judgment." Magowan v. Magowan, 73 Conn.App. 733, 741, 812 A.2d 30 (2002), cert. denied, 262 Conn. 934, 815 A.2d 134 (2003). "A mutual mistake is one that is common to both parties and effects a result that neither intended." (Internal quotation marks omitted.) Id. "[U]nilateral mistake may be a basis for an opening of a judgment if the moving party proves by clear and convincing evidence that she . . . was mistaken as a result of inequitable or fraudulent conduct of the other party . . ." Hubbell v. Hubbell, Superior Court, judicial district of New Haven, Docket No. FA 02 0465583 (February 24, 2005, Munro, J.).
The plaintiff withdrew her claim against Biafore on March 14, 2003. The plaintiff did not file the notion to vacate the withdrawal until June 30, 2004, well over four months after the date of the withdrawal. There is no suggestion that the withdrawal was obtained by fraud or in the absence of actual consent or as a result of inequitable conduct by the defendant. Rather, the plaintiff argues that her withdrawal should be restored to the docket notwithstanding the expiration of the statutory four months because it was the result of mutual mistake in that both parties believed Vincent v. Litchfield Farms to be settled law. The plaintiff's argument fails for two reasons. First, there is no claim that the withdrawal was the result of a mutual decision or act on the part of both parties. It appears rather, that the plaintiff independently and voluntarily withdrew her claim of negligence against Biafore pursuant to General Statutes § 52-80 which provides in relevant part that "[a] plaintiff may withdraw any action . . . before the commencement of a hearing on the merits thereof." Second, when the plaintiff withdrew her claim on March 14, 2003, the Tarnowsky decision had not yet been issued and therefore, the parties were not operating under a mistaken understanding of the law. Thus, there can be no mistake — mutual or unilateral.
The court notes that the Appellate Court's decision in Tarnowsky v. Socci, 75 Conn.App. 560, 816 A.2d 728, upon which the plaintiff relies was published on March 18, 2003, four days after her withdrawal, leaving the plaintiff ample time to move to vacate her withdrawal within the statutory four-month period. In a similar vein, the argument that the plaintiff failed to file the motion to vacate the withdrawal because she was awaiting the Supreme Court's decision in Tarnowsky fails because the plaintiff filed her motion to vacate on June 30, 2004, prior to the publication on September 28, 2004 of the Supreme Court's decision upholding Tarnowsky. See Tarnowsky v. Socci, 271 Conn. 284, 297, 856 A.2d 408 (2004).
Because the plaintiff did not file the motion to vacate the withdrawal until approximately fifteen months after she withdrew her claim, well beyond the four month limitation for reopening judgments, the court denies the plaintiff's motion to vacate the withdrawal and restore count two of her amended complaint to the docket.
BY THE COURT
Tanzer, J.