Opinion
CV156008474S
10-28-2016
Diego Palmires et al. v. Lawrence Dressler
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
John F. Cronan, Judge.
The accidental failure of suit statute, § 52-592(a) provides in relevant part: " If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits . . . for any matter of form . . . or 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 or after the reversal of the judgment." This statute is commonly known as the savings statute; see Tellar v. Abbott Laboratories, Inc., 114 Conn.App. 244, 250, 969 A.2d 210 (2009); because it has long been held to be " remedial in nature . . . warrant[ing] a broad construction." Ruddock v. Burrowes, 243 Conn. 569, 575, 706 A.2d 967 (1998). The " essential purpose is to ensure 'the plaintiff the right to a trial of his claim, '" Tellar v. Abbot Laboratories, Inc., supra, 114 Conn.App. 250, because of " the strong policy favoring adjudication of cases on their merits . . ." Santorso v. Bristol Hospital, 308 Conn. 338, 355, 63 A.3d 940 (2013).
" Intertwined with any analysis of the applicability of § 52-592 is a fundamental policy consideration in this state. Connecticut law repeatedly has expressed a policy preference to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his or her day in court . . . Our 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 . . . For that reason, [a] trial court should make every effort to adjudicate the substantive controversy before it, and, where practicable, should decide a procedural issue so as not to preclude hearing the merits of an appeal . . . General Statutes § 52-592 was enacted, in large measure, to shield the client from the fallibility of counsel." (Citations omitted; internal quotation marks omitted.) Tellar v. Abbott Laboratories, Inc., supra, 114 Conn.App. 254-55.
The statute is not without limitations, however, and should not be construed so broadly as to " hamper a trial court's ability to manage its docket . . ." Gillum v. Yale Univ., 62 Conn.App. 775, 782, 773 A.2d 986 (2001), or " render a statute of limitations for bringing a cause of action 'virtually meaningless.'" Id., 786. " Caseflow management is based upon the premise that it is the responsibility of the court to establish standards for the processing of cases and also, when necessary, to enforce compliance with such standards. Our judicial system cannot be controlled by the litigants and cases cannot be allowed to drift aimlessly through the system." Ruddock v. Burrowes, supra, 243 Conn. 575.
" [D]isciplinary dismissals are not excluded categorically from the relief afforded by § 52-592(a) . . . rather, whether the dismissal of a prior proceeding permitted a plaintiff recourse to the statute depends upon the nature and the extent of the conduct that led to the disciplinary dismissal." (Citation omitted; internal quotation marks omitted.) Tellar v. Abbott Laboratories, Inc., supra, 114 Conn.App. 251. " [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 . . . Indeed, even in the disciplinary context, only egregious conduct will bar recourse to § 52-592." (Citations omitted; emphasis in original; internal quotation marks omitted) Plante v. Charlotte Hungerford Hospital, 300 Conn. 33, 50-51, 12 A.3d 885 (2011). " [I]t is appropriate to consider each case along a continuum; at one extreme are dismissals for mistake or inadvertence, at the other extreme are dismissals for serious misconduct or a series of cumulative transgressions." Gilium v. Yale University, supra, 62 Conn.App. 783.
Applying this precedent and standard, the court in Gilium v. Yale University found that § 52-592 was inapplicable because of a " pattern of repeated delay, " Id., 787, that included three dismissals, continuously running deadlines to their limits, and allowing months to elapse before seeking to reopen the case after the third dismissal. Id., 783-84. " Where, as here, the hallmark of counsel's representation is a pattern of repeated delay, occasioning the utilization of judicial resources to enforce proper prosecution of cases brought before the court and necessitating several dismissals, our strong policy favoring a trial on the merits loses its applicability." Id., 787. The same conclusion was reached by the court in Skibeck v. Avon, 24 Conn.App. 239, 587 A.2d 166, cert. denied, 219 Conn. 912, 593 A.2d 138 (1998), based on one decade of litigation and the trial court's dismissal of the original action three times for failure to appear and failure to prosecute. Id., 243; see also Skinner v. Doelger, 99 Conn.App. 540, 915 A.2d 314 (involving failure to prosecute action over period of years and failure to appear at trial), cert. denied, 282 Conn. 902, 919 A.2d 1037 (2007); Pepitone v. Serman, 69 Conn.App. 614, 619-20, 794 A.2d 1136 (2002) (involving failure to close pleadings over period of years).
In stark contrast to these cases involving years of delays and noncompliance are cases involving singular failures that occurred over short timespans. For example, courts have found plaintiffs entitled to relief under § 52-592 in cases where the conduct involved singular failures to comply with discovery requests. See e.g., Tellar v. Abbott Laboratories, Inc., supra, 114 Conn.App. 252 n.7 (failure to comply with discovery request over course of four months); Stevenson v. Peerless Industries, Inc., 72 Conn.App. 601, 610, 806 A.2d 567 (2002) (failure to respond to discovery requested occurred in time span of six months); see also Marcarelli v. New Haven, Superior Court, judicial district of New Haven, Docket No. CV-11-6018749 (July 2, 2013, Nazzaro, J.) (singular failure to file status conference agreement form within eight days following appearance of attorney fell " within ambit of mistake, inadvertence or excusable neglect"). In Stevenson v. Peerless Industries, Inc., supra, 72 Conn.App. 601, the court noted: " In contrast to the years of delay . . . in [certain cases not saved by § 52-592], the plaintiff's action that led to the judgment of dismissal, namely the failure to respond to a discovery request, occurred in the time span of six months . . . Moreover, the plaintiff has provided a credible excuse for his failure to respond . . . We further note that the plaintiff asserts that he is prepared to comply with all requests." (Citation omitted.) Id., 609-10.
Accordingly, a singular failure to respond to a discovery request because of filing and mailing mistakes made by a paralegal do fall within the ambit of mistake, inadvertence, or excusable neglect. The Motion for Summary Judgment is DENIED.