Skinner v. Doelger, 25644.

Citation915 A.2d 314,99 Conn.App. 540
Decision Date13 February 2007
Docket NumberNo. 26764.,No. 25644.,25644.,26764.
PartiesMatthew SKINNER et al. v. Peter J. DOELGER et al. Matthew Skinner et al. v. Michael Morosky.
CourtAppellate Court of Connecticut

William M. Bloss, with whom, on the brief, were Joel H. Lichtenstein, Bridgeport, and Cynthia C. Bott, Milford, for the appellants (plaintiffs).

Lorinda S. Coon, with whom, on the brief, was David A. Haught, Hartford, for the appellee (defendant Michael Morosky).

DiPENTIMA, HARPER and ROGERS, Js.

HARPER, J.

In these consolidated appeals, the plaintiffs, Matthew Skinner1 and his parents, Karen Skinner and Robert Skinner, challenge the denial of their motions to open the judgment dismissing their medical malpractice action against the defendant Michael Morosky.2 The plaintiffs also appeal from the summary judgment rendered by the trial court in favor of Morosky in their subsequent action brought pursuant to General Statutes § 52-592, the accidental failure of suit statute. On appeal, the plaintiffs allege that the court improperly concluded that the facts of this case did not merit opening the judgment of dismissal and that the plaintiffs could not use the accidental failure of suit statute to revive their cause of action. In addition, the plaintiffs contend that the court improperly failed to accord special consideration to Matthew Skinner's status as a minor in deciding not to permit the continuation of his personal injury claim. We affirm the judgments of the trial court.

The facts underlying these appeals center around the plaintiffs' struggle, over the course of four years, to secure an attorney who was both willing and able to prosecute their lawsuit in Connecticut. On May 8, 1998, Matthew Skinner was born with a permanent brachial plexus injury to his left shoulder. Two years later, on May 10, 2000, the plaintiffs initiated a medical malpractice action against Morosky (Skinner I). As amended, the complaint in Skinner I alleged in substance that Morosky's negligent prenatal treatment of Karen Skinner and negligent delivery of her son, Matthew Skinner, caused the child to suffer severe injuries.

The complaint and accompanying documents were filed by attorney Ross Annenberg, a partner in the Massachusetts based law firm of Annenberg & Levine, LLC (Annenberg & Levine).3 Annenberg became involved in the case because another partner at Annenberg & Levine, attorney Kevin M. Levine, had extensive experience handling birth trauma cases but was not licensed to practice law in Connecticut. Annenberg, conversely, was licensed to practice in Connecticut but unqualified to serve as lead counsel in a complex medical malpractice action. Due to the circumstances, Annenberg agreed to be the plaintiffs' counsel of record until Levine received approval to represent the plaintiffs pro hac vice.

The original complaint had a return date of June 13, 2000. By mid-August 2000, all three of the original defendants had filed appearances, and two of them, Doelger and Hartford Hospital, had served the plaintiffs with interrogatories and requests for production. The plaintiffs, however, took no action until several months later, causing the defendants to file three motions for nonsuit and the court to order the plaintiffs "to fully respond to the defendants' interrogatories and request[s] for production no later than January 15, [2001]." Soon thereafter, the plaintiffs responded to the discovery requests of Doelger and Hartford Hospital. Yet, it still took an additional year and one half for the plaintiffs to finalize their complaint.

On May 3, 2002, the court dismissed the case for failure to prosecute with due diligence. Just more than one month later, however, the court granted the plaintiffs' motion to open the judgment of dismissal.

Meanwhile, Annenberg attempted unsuccessfully to have two other attorneys from his law firm replace him as lead counsel on the case. The first, Levine, was denied admission pro hac vice on November 6, 2001. The court denied a motion to reargue the denial of his admission pro hac vice on July 11, 2003.

On August 7, 2003, the court granted permission for the second attorney, Vivian M. Sparacio, to proceed pro hac vice. Although she filed an appearance on behalf of the plaintiffs, Sparacio never became actively involved in the case.

In October, 2002, the parties had a pretrial conference with the court at which trial was scheduled for March 23, 2004. When the morning of March 23, 2004, arrived nearly a year and one half later, however, Sparacio failed to appear for trial, and Annenberg informed the court that he was not ready to proceed. Given the circumstances, the court again dismissed the action.

On May 18, 2004, the Connecticut based law firm of Koskoff, Koskoff & Bieder, P.C., simultaneously filed an appearance on behalf of the plaintiffs and a motion to open the March 23, 2004 judgment of dismissal pursuant to Practice Book § 17-43. The court denied the plaintiffs' motion to open on June 28, 2004, because "Attorney Vivian Sparacio was admitted pro hac vice because of her expertise and relationship with the plaintiff[s]. No explanation was given as to why she did not appear on the date trial was scheduled."

The plaintiffs subsequently filed a motion for reconsideration and reargument and a second motion to open the judgment of dismissal. Both motions were denied in August, 2004. The plaintiffs thereafter filed a timely appeal from the denials of their motions to open the judgment of dismissal and their motion for reconsideration and reargument. No appeal was filed as a result of the dismissal itself.

On March 2, 2005, the plaintiffs commenced a second action against Morosky pursuant to § 52-592, the accidental failure of suit statute (Skinner II).4 Morosky filed a motion for summary judgment, claiming that the plaintiffs' action was barred by the applicable statute of limitations contained in General Statutes § 52-584.5

On July 1, 2005, the court granted Morosky's motion after agreeing that § 52-592 could not be used to toll the statute of limitations under these circumstances. In so holding, the court reasoned that Skinner I's dismissal was not due to a "`matter of form'" as required to trigger § 52-592 but rather "the lack of attention and lack of diligence of [the plaintiffs'] counsel."

The plaintiffs timely appealed from the court's summary judgment in Skinner II. This court ordered that the appeals in both cases be consolidated.

I

The plaintiffs first claim that the court abused its discretion in refusing to open the judgment of dismissal in Skinner I.6

"A motion to open and vacate a judgment . . . is addressed to the [trial] court's discretion, and the action of the trial court will not be disturbed on appeal unless it acted unreasonably and in clear abuse of its discretion. . . . In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of its action. . . . The manner in which [this] discretion is exercised will not be disturbed so long as the court could reasonably conclude as it did." (Citations omitted; internal quotation marks omitted.) Walton v. New Hartford, 223 Conn. 155, 169-70, 612 A.2d 1153 (1992).

The following additional facts are necessary to our resolution of the plaintiffs' claim. On November 6, 2001, the court denied the application for Levine's admission pro hac vice because his affidavit failed to state that there were no disciplinary proceedings currently pending against him, as required by the provisions of Practice Book § 2-16.7 In fact, unbeknownst to the court, there was a petition for discipline pending against Levine at the time in Massachusetts.

On July 9, 2003, Annenberg filed an application for Sparacio's admission pro hac vice. The accompanying affidavit, signed by Sparacio, averred that her appearance was "vital" to the case, that she had a "long standing relationship with the plaintiffs," and possessed "specialized skills and knowledge regarding complex medical malpractice litigation."8 On the basis of these representations, Sparacio was readily granted admission pro hac vice on August 7, 2003. Despite filing an appearance, however, Sparacio never assumed an active role in the case.

On January 5, 2004, Annenberg filed a motion to withdraw his appearance in the case. The court denied the motion on February 18, 2004, because there was no stated reason for the request. On March 12, 2004, with less than two weeks remaining before trial, Annenberg filed an "emergency motion to continue trial," citing failure to complete discovery and unavailability of counsel as his reasons. Specifically, Annenberg represented in his motion that he left Annenberg & Levine in August, 2003, after receiving assurances from Levine that local counsel would be found to replace him on the case. Annenberg further stated that in the three to four months following his departure from Annenberg & Levine, he realized that Levine "was not holding up his end of the bargain." Still, according to Annenberg, he took no action because Levine continued reassuring him that local counsel would be forthcoming.

The "emergency motion to continue trial" also detailed other circumstances that led to the plaintiffs' lack of counsel, including the fact that it was not until December, 2003, that Annenberg informed the plaintiffs of Levine's "inactiveness" in securing local counsel for them in Connecticut. Finally, the motion stated that the plaintiffs had made "a number" of attempts to contact Levine in the months following their receipt of Annenberg's letter in December, 2003; however, they only received the case file from Levine on March 5, 2004.

The gravity of the plaintiffs' situation became fully apparent on March 23, 2004, the morning that trial in Skinner I was scheduled to commence. At the beginning of the hearing, Annenberg explained that he was not prepared for trial because he was ...

To continue reading

Request your trial
28 cases
  • Larmel v. Metro N. Commuter R.R. Co.
    • United States
    • Supreme Court of Connecticut
    • 15 Noviembre 2021
    ...967 ("[w]hether the [accidental failure of suit] statute applies cannot be decided in a factual vacuum"); see also Skinner v. Doelger , 99 Conn. App. 540, 554, 915 A.2d 314 (whether prior action failed as "matter of form" "may be conceptualized as a continuum whereupon a case must be proper......
  • Edwards v. McMillen Capital, LLC
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • 10 Diciembre 2021
    ...dismissal for failure to close the pleadings, are not categorically excluded from the protections of the statute. Skinner v. Doelger , 99 Conn. App. 540, 554, 915 A.2d 314 (2007). Whether the statute should apply in a particular case of disciplinary dismissal entails a fact-specific inquiry......
  • Bridgeport Harbour Place I, LLC v. Ganim
    • United States
    • Appellate Court of Connecticut
    • 30 Agosto 2011
    ...failed for one of the reasons enumerated in the statute.'' (Citation omitted; internal quotation marks omitted.) Skinner v. Doelger, 99 Conn. App. 540, 553, 915 A.2d 314, cert. denied, 282 Conn. 902, 919 A.2d 1037 (2007). At the conclusion of evidence, the Lenoci defendants moved for a dire......
  • Bridgeport Harbour Place I v. Ganim
    • United States
    • Appellate Court of Connecticut
    • 30 Agosto 2011
    ...have failed for one of the reasons enumerated in the statute.” (Citation omitted; internal quotation marks omitted.) Skinner v. Doelger, 99 Conn.App. 540, 553, 915 A.2d 314, cert. denied, 282 Conn. 902, 919 A.2d 1037 (2007). At the conclusion of evidence, the Lenoci defendants moved for a d......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT