Opinion
LLICV145007542S
05-18-2016
Michael E. Lalli et al. v. Carolyne E. McEnery
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (#112)
HON. JOHN D. MOORE, J.
INTRODUCTION
The defendant, Carolyne McEnery, moved for summary judgment on December 4, 2015, arguing that the plaintiffs, Michael and Cindy Lalli, failed to commence this action within the two-year statute of limitations. The plaintiffs objected, making four arguments: (1) the motion for summary judgment was filed without the court's permission after the case was put on the trial list, in derogation of Practice Book § 17-44; (2) the defendant did not support his motion for summary judgment with appropriate documentation; (3) the three-year statute of limitations, General Statutes § 52-577, and not the two-year statute of limitations, General Statutes § 52-584, governs; and (4), even if § 52-584 governs, the plaintiffs filed this case in timely fashion by serving on the defendant an application for a prejudgment remedy accompanied by an unsigned writ of summons and complaint within two years of the accident. For the reasons set forth below, the court agrees with the defendant and grants summary judgment in her favor.
FACTUAL AND PROCEDURAL BACKGROUND
The plaintiffs alleged that they sustained injuries in a car accident with the defendant on January 22, 2013. On December 23, 2014, the plaintiffs filed an application for a prejudgment remedy, together with related filings, including, inter alia, a notice of application for prejudgment remedy, a proposed unsigned writ, summons, and complaint, a pre-service order for hearing and notice, and a summons for hearing on the prejudgment remedy application. The court granted the order for hearing and notice and set the hearing date on the prejudgment remedy application for January 26, 2015. The plaintiffs served the relevant prejudgment remedy application documents on the defendant on January 15, 2015. The hearing for the plaintiffs' prejudgment remedy application did not, however, go forward on January 26, 2015.
Michael Lalli alleges that he was driving his vehicle when the defendant caused her vehicle to collide with his vehicle, claiming statutory recklessness, pursuant to General Statutes § 14-295, and negligence. Cindy Lalli, the wife of Michael Lalli; is claiming loss of consortium.
The signed writ of summons and complaint, dated March 20, 2015, and with a return date of May 12, 2015, were served on the defendant on April 19, 2015. The defendant filed an answer and special defenses on August 25, 2015, and claimed the case to the jury that same day. The defendant filed the present motion on December 4, 2015. On December 17, 2015, the court, Pickard, J, accepted the scheduling order filed in this case and assigned this case to the jury trial list, with trial scheduled to begin on December 6, 2016.
In her first special defense the defendant alleges that the plaintiffs' action is barred by the statute of limitations, pursuant to General Statutes § 52-584. In her second special defense, the defendant alleges that the plaintiffs' injuries were caused by Michael Lalli's own negligence.
The defendant's argument for summary judgment is straightforward. It reads as follows. The plaintiffs alleged injuries from a car accident that occurred on January 22, 2013. The two-year statute of limitations, § 52-584 applies. The plaintiffs' application for a prejudgment remedy, even though it was served on the defendant within two years of the alleged accident, does not commence a legal action. Service on the defendant of the signed writ of summons and complaint, which comprises the commencement of a legal action, did not take place until April 19, 2015, more than two years after the alleged accident.
The plaintiffs disagree. The plaintiffs first posit that the defendant's motion for summary judgment was untimely under Practice Book § 17-44, because it was filed after the case was placed on the trial list and without the court's permission. The plaintiffs next contend that the defendant did not provide evidence to support this motion adequate enough for the court to consider under Practice Book § 17-45. The plaintiffs proceed to argue that the three-year tort statute of limitations applies and that they brought this action in timely fashion under that statute. The plaintiffs finally argue that even if the two-year statute of limitations applies, they began this action by filing their application for prejudgment remedy.
For the reasons discussed below, the court disagrees with the plaintiffs. The court finds that there is no genuine issue of material fact that this action was filed in an untimely fashion under the applicable statute of limitation, § 52-584. Therefore, the court grants the defendant's motion for summary judgment.
LEGAL DISCUSSION AND ANALYSIS
" Summary judgment shall be rendered forthwith if the pleadings, affidavits and other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to a 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." (Citation omitted; internal quotation marks omitted.) Vendrella v. Astriab Family Ltd. Partnership, 311 Conn. 301, 313, 87 A.3d 546 (2014). " 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 for summary judgment 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 . . . 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." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319-20, 77 A.3d 726 (2013). Conversely, " [a]lthough the moving party has the burden of presenting evidence that shows the absence of any genuine issue of material fact, the opposing party must substantiate its adverse claim with evidence disclosing the existence of such an issue." Haesche v. Kissner, 229 Conn. 213, 217, 640 A.2d 89 (1994). Therefore, " [t]o oppose a motion for summary judgment successfully, the nonmovant must recite specific facts . . . which contradict those stated in the movant's affidavit and documents." (Internal quotation marks omitted.) Hammer v. Lumberman's Mut. Casualty Co., 214 Conn. 573, 579, 573 A.2d 699 (1990).
The following undisputed facts are relevant to the court's consideration of the present motion. The court has gleaned these facts from the court file.
The plaintiffs allege injury from a car accident on January 22, 2013. While the plaintiffs served the defendant with an unsigned writ of summons and complaint, as well as notice of a hearing for an application for a prejudgment remedy on January 15, 2015, the plaintiffs did not serve their signed writ of summons and complaint on the defendant until April 19, 2015. Service of the signed writ of summons and complaint took place more than two years after the accident. The scheduling order in this case was accepted by the court, Pickard, J., on December 17, 2015. On the same day, Judge Pickard assigned this case to the jury trial list.
The plaintiff has not presented any specific facts that contradict those set forth in the preceding paragraph, taken from the court file. Instead, the plaintiffs rely on legal arguments in an effort to defeat summary judgment. The court shall consider these arguments seriatim.
The plaintiffs, however, contend that the defendant's August 25, 2015 jury claim is tantamount to the case being assigned for trial. The court will discuss that argument in the next subsection.
Timing of the Filing of the Motion for Summary Judgment
As mentioned above, the plaintiffs argue that the motion for summary judgment was filed late, under Practice Book § 17-44. This section states, in pertinent part, that " [i]n any action . . . any party may move for summary judgment as to any claim . . . as a matter of right at any time if no scheduling order exists and the case has not been assigned for trial . . . If no scheduling order exists but the case has been assigned for trial, a party must move for permission of the judicial authority to file a motion for summary judgment." Practice Book § 17-44. Drawing upon this section, the plaintiff contends that, " [o]n August 25, 2015 the case was put on the trial list. No scheduling order had been entered. Defendant did not request permission to file the instant motion after the case was assigned to the jury docket on August 25, 2015." The plaintiffs' argument proceeds on an improper assumption. Under Practice Book § 17-44, being " assigned for trial" means being scheduled for trial by the court, see Danzig v. PDPA, Inc., 125 Conn.App. 242, 249, 9 A.3d 382 (2010), and not being claimed for the jury by a party. As mentioned above, the defendant filed the present motion for summary judgment on December 4, 2015, and the court did not assign a trial date to this case until December 17, 2015. The court also approved the scheduling order on December 17, 2015. As a result, this motion was filed before both the case was assigned for trial and a scheduling order was entered. Therefore, the defendant did not have to seek the court's permission to file the present motion and the plaintiffs' argument to the contrary cannot suffice to defeat summary judgment in this case.
Adequacy of Evidence Submitted in Support of the Present Motion
The plaintiffs claim that the defendant has not submitted adequate evidence for the court to consider summary judgment in the present matter. The plaintiffs cite Practice Book § 17-45 which states, in relevant part, that a " motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits . . . written admissions and the like." The plaintiffs note that mere assertions of fact do not suffice and that the court may not rely on its own observations. The plaintiffs also observe that any supporting affidavits, under Practice Book § 17-46, must be made on personal knowledge and that no supporting affidavit was attached to the present motion. What the plaintiffs fail to note, however, is that the court may rely upon pleadings and other documents returned to court.
The lack of affidavits, in and of itself, is not fatal to the defendant's motion for summary judgment. " [Section] 17-45 does not require affidavits when the relevant facts are available to the court and unchallenged by the nonmoving party . . ." Romprey v. Safeco Ins. Co., supra, 310 Conn. 324 n.12. The Appellate Court reached the same conclusion in affirming the granting of a motion for summary judgment based upon evidence drawn from the same sources in the court file as the defendant draws upon in the present motion. Id. In Davis v. Family Dollar Store, 78 Conn.App. 235, 826 A.2d 262 (2003), appeal dismissed, 271 Conn. 655, 859 A.2d 25 (2004), the trial court considered the date of the accident as alleged by the plaintiff in her complaint, as well as court filings revealing the dates of attempted and successful service and the return date. Id., 236-37. The Appellate Court held that § 17-45 provides that a motion for summary judgment " shall be supported by such documents as may be appropriate, including . . . affidavits, " that such language did not mandate the use of affidavits, and that " the relevant facts were not being challenged and already were available to the court." (Emphasis in original.) Id., 238 n.3.
In the present case, the plaintiffs have not challenged the facts advanced by the defendant in support of her motion for summary judgment, which are the alleged date of the accident; the date of service of the documents related to the application for prejudgment remedy; the contents of these documents, specifically, that the complaint contained therein was unsigned; the date of service of the signed writ of summons and complaint; and the date on which the court assigned a date for jury trial and approved the proposed scheduling order. Therefore, under the holdings of Romprey and Davis, the defendant has submitted adequate evidence for the court to consider the present motion.
The date of the accident is a judicial admission because it is a " [f]actual allegation[ ] contained in pleadings, " namely the complaint, that has not been amended or abandoned. Dreier v. Upjohn Co., 196 Conn. 242, 248, 492 A.2d 164 (1985).
The Applicable Statute of Limitations
The plaintiffs argue that the three-year tort statute of limitations, § 52-577, governs because this is a tort case. However, in the present case, the plaintiffs allege personal injuries arising from recklessness and negligence. The two-year statute of limitations, § 52-584, applies to actions " to recover damages for injury to the person . . . caused by negligence, or by reckless or wanton misconduct." General Statutes § 52-584. It is well-settled that § 52-577 only applies to " actions founded upon a tort which do not fall within those causes of action carved out of § 52-577 and enumerated in § 52-584 or another section." Collens v. New Canaan Water Co., 155 Conn. 477, 491, 234 A.2d 825 (1967). In the present case, § 52-584 specifically applies to personal injury cases founded in negligence and recklessness. Therefore, the court finds that the two-year limitation set forth in § 52-584 applies.
The court notes that the plaintiffs' claim of loss of consortium is derivative of the plaintiffs' claims for recklessness and negligence. Cavallaro v. Hospital of Saint Raphael, 92 Conn.App. 59, 62 n.5, 882 A.2d 1254 (" As a derivative cause of action, loss of consortium is dependent on the legal existence of the predicate action . . . [I]f an adverse judgment bars the injured spouse's cause of action, any claim for loss of consortium necessarily fails as well." [Internal quotation marks omitted.]), cert. denied, 276 Conn. 926, 888 A.2d 93 (2005). Therefore, if the plaintiffs failed to comply with the relevant statute of limitations for their claims of recklessness and negligence, then the loss of consortium claim cannot survive.
Commencement of the Present Action
Although, as discussed immediately above, the plaintiffs argue that the three-year statute of limitations applies, the plaintiffs argue, in the alternative, that, if § 52-584 applies, this statute does not " exempt from its statutory framework commencing an action in the manner done so in this case." The plaintiffs also attempt to distinguish a case upon which the defendant relies, Raynor v. Hickock Realty Corp., 61 Conn.App. 234, 763 A.2d 54 (2000). In doing so, the plaintiffs contend that Raynor involved pleadings that did not properly notify the defendants of the alleged claims against them and that the pleadings in the present case are perfectly clear. The plaintiffs further argue that Raynor was later distinguished by Sargent v. Capital Airlines, Inc., 96 Conn.App. 320, 901 A.2d 55 (2006). According to the plaintiffs, Sargent stands for the proposition that an unsigned summons does not deprive the court of jurisdiction, as such a defect was held to be circumstantial and correctable. The plaintiffs urge the court to adopt Sargent 's holding as controlling for the purposes of the present motion.
Most of the plaintiffs' arguments are entirely irrelevant to the issues raised in this motion, and need not be discussed by the court. The plaintiff's arguments fail to address the issue which is both fundamental to and dispositive of this motion, namely, when does a civil action begin? Although the plaintiffs do not go so far as to claim that serving an unsigned complaint along with notice of a hearing on an application for prejudgment remedy commences a civil action, the plaintiffs have, at least, nodded in the direction of that argument by contending that § 52-584 does not rule out " commencing an action in the manner done so in this case." To decide the present motion, the court must review what the plaintiffs served on the defendant and when these documents were served in the context of Connecticut law as to when a civil action begins.
While it is true to say that Sargent stands for the proposition that the plaintiff's failure to sign a writ of summons does not deprive the court of personal jurisdiction over a defendant-and-that such a defect is circumstantial and correctable, Sargent v. Capital Airlines, Inc., supra, 96 Conn.App. 322-25, that proposition has nothing to do with the court's decision as to whether a writ of summons and complaint were filed in timely fashion under § 52-584.
Connecticut law as to when a civil action commences is clear. " It is well settled that a civil action is brought on the date on which the writ of summons is served on the defendant . . . [A] writ of summons is a statutory prerequisite to the commencement of a civil action . . . [T]he writ of summons shall be signed by a commissioner of the Superior Court or a judge or clerk of the court to which it is returnable." (Citations omitted; internal quotation marks omitted.) Feldmann v. Sebastian, 261 Conn. 721, 729-30, 805 A.2d 713. 261 Conn. 721, 805 A.2d 713 (2002); see also Raynor v. Hickock Realty Corp., supra, 61 Conn.App. 240-42, and General Statutes § 52-45a. Further, the summons " is part of a citation. The citation . . . is a command to a duly authorized officer to summon the [defendant] . . . to appear in court on a specific day to answer the [complaint]." (Internal quotation marks omitted.) Raynor v. Hickock Realty Corp., supra, 241. " The citation, signed by competent authority, is the warrant which bestows upon the officer to whom it is given for service the power and authority to execute its command . . . Without it, the officer would be little more than a delivery man." (Citations omitted.) Village Creek Homeowners Ass'n, Inc. v. Public Utilities Commission, 148 Conn. 336, 339, 170 A.2d 732 (1961). " That civil actions must be commenced with a signed writ of summons or attachment is a matter of significance . . . [T]he subject of signing and issuing process in civil actions is one of consequence. Such signing is one of the processes of law by which a man may be deprived of his liberty and property. It is carefully guarded. It is not to be done indiscriminately . . . The signing of a writ by a person as a commissioner of the Superior Court is not a mere ministerial act . . . The canons of professional ethics require that a lawyer decline to institute an action if he is convinced that it is intended to harass or injure the opposite party or work an oppression or wrong." (Internal quotation marks omitted.) Bernhard-Thomas Building Systems, LLC v. Dunican, 286 Conn. 548, 555, 944 A.2d 329 (2008). " Moreover, " [a] complaint is a pleading . . . A pleading must be signed by at least one attorney of record in his individual name . . . A pleading shall not be filed in court unless it is signed by counsel." (Citations omitted; internal quotation marks omitted.) Raynor v. Hickock Realty Corp., supra .
Conversely, because " prejudgment remedy documents lacked a signed writ of summons and complaint . . . the action was not commenced within the meaning of § 52-45a or the rule enunciated in Hillman v. Greenwich, [217 Conn. 520, 587 A.2d 99 (1991)] . . ." Raynor v. Hickock Realty Corp., supra, 61 Conn.App. 242. This is because a " prejudgment remedy application is something that precedes, and, therefore, is not the equivalent of, the commencement of a civil action." (Internal quotation marks omitted.) Bernhard-Thomas Building Systems, LLC v. Dunican, supra, 286 Conn. 558. The language of General Statutes § 52-278j(a) speaks of commencing a civil action as something distinct from, and that follows the acquisition of, a prejudgment remedy. Id., 559. Since a party needs an unsigned writ of summons and an unsigned complaint to support an application for a prejudgment remedy application, General Statutes § 52-278c, and because both General Statutes § 52-45a and Practice Book § 8-1(a) require a signed writ to commence a civil action, it follows that " an application for a prejudgment remedy does not commence a civil action . . ." Id., 559-60.
The undisputed facts of the present case reveal that the plaintiffs served only an unsigned writ of summons and an unsigned complaint on the defendant within the two-year period following the date of the alleged accident. A signed writ of summons and complaint were not served on the defendant until after the two-year period expired. The applicable statute of limitations, § 52-584, requires a personal injury action sounding in negligence or reckless misconduct to be commenced within two years of the injuries sustained. Service of the unsigned writ of summons and the unsigned complaint with the documents pertaining to the application for a prejudgment remedy did not constitute the commencement of this action. The action was, as a result, commenced outside the two-year window set forth by § 52-584. Therefore, there is no question of material fact that the operation of § 52-584 bars this action.
For all of these reasons, the court grants the defendant's motion for summary judgment.
SO ORDERED.