Cortes v. Cotton

• Decision Date: 08 June 1993
• Docket Number: No. 11618,11618
• Citation: 31 Conn.App. 569,626 A.2d 1306
• Court: Connecticut Court of Appeals
• Parties: Marilyn CORTES et al. v. John P. COTTON, Jr.

Page 1306

626 A.2d 1306

31 Conn.App. 569

Marilyn CORTES et al. v. John P. COTTON, Jr.

No. 11618.

Appellate Court of Connecticut.

Argued March 29, 1993.

Decided June 8, 1993.

Leonard C. Reizfeld, New Haven, for appellants (plaintiffs).

Kevin R. Murphy, with whom, on the brief, was Dennis M. Laccavole, Bridgeport, for appellee (defendant).

Before FOTI, LAVERY and LANDAU, JJ.

LANDAU, Judge.

In this action in negligence, the plaintiffs ¹ appeal from the judgment of the trial court (1) granting the defendant's motion for summary judgment, and (2) denying the plaintiffs' application for waiver of fees. ² The principal issue on appeal is whether the plaintiffs produced sufficient evidence of the defendant's absence from the state so as to survive his motion for summary judgment under General Statutes § 52-584. ³

The following facts are relevant to this appeal. The named plaintiff, Marilyn Cortes, sustained personal injuries on December 5, 1989. At that time she was fourteen years old. She claims that the injuries occurred on property owned by the defendant, John P. Cotton, Jr. In January, 1990, the defendant's property was severely damaged by fire, and the defendant moved to the state of New York. The defendant asserted, in a sworn statement dated January 4, 1992, and attached to the plaintiff's objection to the motion for summary judgment, that "I believe I continued to live [in Albany, New York] for approximately six (6) months or possibly longer. After that I moved back to my mother's house at ... New Haven, Conn. and that is where I still at present make my legal residence." On February 14, 1990, ownership of the defendant's property vested in another pursuant to a judgment of foreclosure of December 18, 1989.

On or about December 30, 1992, the plaintiffs learned for the first time that the defendant had returned to Connecticut. They retained counsel and caused a writ, summons and complaint to be served on the defendant on January 13, 1992.

The defendant filed this motion for summary judgment claiming that the action was time barred under General Statutes § 52-584. The plaintiffs objected, asserting that the defendant was "without" the state of Connecticut for approximately six months and that that period should be excluded from the computation of the two year statute of limitations applicable to a cause of action in negligence. The defendant argues that General Statutes § 52-590 ⁴ is not applicable and that during the period of his absence the plaintiffs could have had him served under the provisions of General Statutes §§ 52-59b and 52-57a. ⁵

The trial court found that "[i]t was not impossible to commence a suit against this defendant; he was here in Connecticut since ... 1990.... In addition the defendant's absence of approximately six months was nothing more than 'temporary' and therefore should not be excluded from the period of the statute of limitations." The trial court held that the plaintiff had failed to raise any genuine issue as to any material fact; thus, the defendant was entitled to judgment as a matter of law. We disagree and reverse the judgment of the trial court.

The standards governing our review of a trial court's decision on a motion for summary judgment are clear. Practice Book § 384 provides that summary judgment "shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." See Connecticut Bank & Trust Co. v. Carriage Lane Associates, 219 Conn. 772, 780-81, 595 A.2d 334 (1991); Lees v. Middlesex Ins. Co., 219 Conn. 644, 650, 594 A.2d 952 (1991); Trotta v. Branford, 26 Conn.App. 407, 409, 601 A.2d 1036 (1992). While the burden of showing the nonexistence of any material fact is on the party seeking summary judgment; see D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980); "the party opposing [summary judgment] must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue." (Internal quotation marks omitted.) Bassin v. Stamford, 26 Conn.App. 534, 537, 602 A.2d 1044 (1992). "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317, 477 A.2d 1005 (1984). "The test is whether a party would be entitled to a directed verdict on the same facts." (Internal quotation marks omitted.) Trotta v. Branford, supra, 26 Conn.App. at 410, 601 A.2d 1036.

The defendant asserts that § 52-590 is not applicable because during the period of the defendant's absence the plaintiffs could have served him under the provisions of General Statutes §§ 52-59b and 52-57a. Citing Sage v. Hawley, 16 Conn. 106, 115 (1844), the defendant appropriately posits that the purpose of § 52-590 (and its predecessor General Statutes [1838 Rev.] tit. LX, § 8) is to preserve a right of action during the absence of the defendant when it is impossible to serve him with process. The defendant incorrectly contends that § 52-59b(a)(3) provides for jurisdiction over nonresidents in situations where a tort is allegedly committed in Connecticut. That section provides for jurisdiction over nonresidents in situations where the nonresident "commits a tortious act outside the state causing injury to person ... within the state...." (Emphasis added.) General Statutes § 52-59b(a)(3). Even were we to contemplate § 52-59b(a)(4), which provides for jurisdiction over nonresidents who own, use or possess any real property within the state, the reliance would be misplaced and unsound. "[General Statutes § 52-59b(a)(4) ] expressly applies only to non-residents...." White-Bowman Plumbing & Heating, Inc. v. Biafore, 182 Conn. 14, 16, 437 A.2d 833 (1980). We do not know the residential status of the defendant, that being among the facts in dispute. The defendant's reliance on General Statutes § 52-57a is equally flawed. That statute concerns the manner of service outside of the state on a party domiciled in the state. See Anderson v. Schibi, 33 Conn.Sup. 562, 364 A.2d 853 (1976). The uncontroverted evidence before the trial court in this case is that at no time prior to instituting the action did the plaintiff know where outside of the state the defendant had moved. Therefore, that argument is without merit.

Finally, the defendant contends that General Statutes § 52-68 ⁶ could have been used by the plaintiff to provide notice after service under § 52-59b. In view of the inapplicability of § 52-59b, we need not address this contention. ⁷

We now consider the plaintiffs' claim that they produced sufficient evidence to present the necessary factual predicate to raise a genuine issue as to the absence of the defendant from the state. Although designating the period of time "temporary," the trial court found that the defendant absented himself from the state for a period of six months. In ruling on a motion for summary judgment, the trial court's function is not to decide issues of material fact, but rather to determine whether any such issues exist. Telesco v. Telesco, 187 Conn. 715, 718, 447 A.2d 752 (1982). Our review of the entire record shows that no factual evidence was presented by which the trial court could determine, as a matter of law, that the defendant was either a resident of or domiciled in this state or that his absence from the state was only temporary. The plaintiffs, on the other hand, have produced sufficient evidence to raise genuine issues of material fact. Therefore, the trial court improperly granted the motion for summary judgment.

The judgment is reversed and the case remanded with direction to deny the motion for summary judgment.

In this opinion the other Judges concurred.

1 This action was brought on behalf of the named plaintiff by her mother, the plaintiff Evelyn Cortes, who sought also to recover for expenditures made on behalf of her daughter.

2 Denial of a motion for waiver of fees is not an appealable final judgment. Review of such a denial is properly sought in a motion for review pursuant to Practice Book § 4053. The plaintiff failed to follow that procedural course. Therefore, we will not review this claim.

3 General Statutes § 52-584 provides: "No action to recover damages for injury to the person, or to real or personal property, caused by...