Doe v. Town of W. Hartford, SC 19828

• Court: Supreme Court of Connecticut
• Writing for the Court: McDONALD, J.
• Citation: 328 Conn. 172,177 A.3d 1128
• Parties: John DOE v. TOWN OF WEST HARTFORD, et al.
• Decision Date: 27 February 2018
• Docket Number: SC 19828

328 Conn. 172
177 A.3d 1128

John DOE
v.
TOWN OF WEST HARTFORD, et al.

SC 19828

Supreme Court of Connecticut.

Argued October 11, 2017
Officially released February 27, 2018

177 A.3d 1131

Scott M. Karsten, with whom were Michael R. McPherson, and, on the brief, Laura Pascale Zaino and Patrick D. Allen, for the appellants (named defendant et al.).

Josephine Smalls Miller, for the appellee (plaintiff).

Palmer, McDonald, Robinson, D'Auria and Vertefeuille, Js.

McDONALD, J.

328 Conn. 175

This certified appeal requires us to construe General Statutes § 52–593a,¹ a

177 A.3d 1132

remedial savings statute that operates to render an action timely commenced as long as process is delivered to a marshal prior to the expiration of the applicable statute of limitations and served within thirty days. The defendants, three groups of individuals and entities involved in the 2007 involuntary psychiatric hospitalization of the plaintiff, John Doe,² appeal from the judgment of the Appellate Court, which reversed the trial court's rendering of summary judgment in their favor. They claim that the Appellate Court improperly concluded that (1) the requirement in § 52–593a(b) that a marshal shall endorse under oath on the return of service the date on which process was delivered to him or her, is directory, rather than mandatory, and (2) there existed a genuine issue of material fact concerning whether the plaintiff had delivered the process to a marshal within the applicable limitation period. We conclude that § 52–593a(b)

328 Conn. 176

does not preclude a plaintiff from proving timely delivery of process to the marshal by means other than the statutorily prescribed method. We further conclude that there existed a genuine issue of material fact as to whether timely delivery was made. Accordingly, we affirm the judgment of the Appellate Court.

The following facts and procedural history are relevant to this appeal. The plaintiff was hospitalized involuntarily for psychiatric observation in May and June, 2007. Subsequent to his release, he brought this action against multiple individuals and entities, alleging various wrongful conduct in connection with the hospitalization and the events preceding it. The defendants named in the complaint include (1) a therapist who previously had treated the plaintiff and the therapist's employer (medical defendants), (2) the town of West Hartford, its chief of police and certain members of its police department in their official and individual capacities (town defendants), and (3) Hartford Hospital, the Institute of Living and various psychiatric professionals who were involved in the plaintiff's commitment and treatment (hospital defendants).³ It is undisputed that the allegedly wrongful acts at issue occurred between May 22 and June 8, 2007, and that, for purposes of this appeal, a three year statute of limitations applied to the plaintiff's claims.

The plaintiff's former counsel, A. Paul Spinella, finalized a complaint and executed a summons on May 19, 2010. The defendants were served with these documents by State Marshal John R. Griffin on June 9, 2010, a date that was one or more days beyond the expiration

328 Conn. 177

of the relevant limitation period, depending on the particular wrongful act alleged.⁴ More than

177 A.3d 1133

three years later, the hospital defendants filed a motion for summary judgment, claiming, inter alia, that the plaintiff's claims against them were time barred. They attached as an exhibit Griffin's return of service indicating that service had occurred on June 9, 2010. The town defendants filed a similar motion as to certain claims, also appending Griffin's return of service. The plaintiff opposed these motions, arguing, inter alia, that the claims at issue were not time barred because the summons and complaint had been delivered to Griffin on May 20, 2010, thereby satisfying the requirements of § 52–593a. See footnote 1 of this opinion. Because Griffin's return of service did not include an endorsement of the date of delivery as required by § 52–593a(b), the plaintiff instead included an affidavit executed by Griffin wherein Griffin attested that the summons and complaint had been delivered to him on May 20, 2010.

Thereafter, the defendants deposed Griffin, which revealed that he had no independent memory or record of the date on which he had received the summons and complaint from Spinella. Rather, upon request, he simply had executed an affidavit prepared by Spinella, assuming that the delivery date identified therein was correct. Subsequent to the deposition, the hospital defendants and the town defendants filed motions to strike the paragraph of Griffin's affidavit in which he averred that the summons and complaint had been delivered to him on May 20, 2010. Therein, they argued that Griffin's averment was not based on his personal knowledge but, rather, on inadmissible hearsay. The

328 Conn. 178

trial court denied the motions to strike,⁵ but indicated, nevertheless, that it would disregard Griffin's affidavit when ruling on the summary judgment motions. The court further allowed that the plaintiff could submit an affidavit from Spinella in lieu of Griffin's affidavit, and that the defendants would be permitted sixty days in which to depose Spinella in regard to the facts and circumstances underlying his averments in that affidavit.

Contemporaneous with the trial court's ruling, Spinella signed an affidavit in which he attested that, at the time he represented the plaintiff in this matter, he had been "acutely aware of the statute of limitations," he had executed the summons with the complaint attached on May 19, 2010, and Griffin had retrieved those documents from Spinella's law office on May 20, 2010. After deposing Spinella, the hospital defendants and the town defendants filed motions to strike his affidavit and supplemental memoranda in support of their earlier motions for summary judgment, providing to the court a transcript of the deposition.⁶ They contended that Spinella's affidavit should be stricken because his deposition testimony had revealed that it was based on inadmissible hearsay and speculation, was "self-serving" and lacked credibility. The plaintiff filed a response, claiming that Spinella's deposition testimony demonstrated that he had a clear and detailed personal recollection of the relevant

177 A.3d 1134

events. In a memorandum of decision, the trial court, after reviewing the

328 Conn. 179

deposition testimony, concluded that Spinella's statement that the summons and complaint were retrieved by Griffin on May 20, 2010, was based on hearsay rather than personal knowledge and, therefore, would be disregarded for purposes of deciding the summary judgment motions. Specifically, it reasoned, Spinella did not personally deliver the process to Griffin or see Griffin retrieve it; rather, he merely had received oral confirmation from third parties that the process had been picked up. In light of that ruling, the medical defendants sought and received permission to move for summary judgment on the basis that the claims against them, too, were time barred.

The trial court granted all of the defendants' motions for summary judgment, in three separate memoranda of decision, concluding in each that the claims at issue were time barred. Specifically, it reasoned, the plaintiff had not met his burden of producing admissible evidence sufficient to create a genuine issue of material fact as to whether the summons and complaint had been delivered to Griffin prior to the expiration of the statute of limitations, such that § 52–593a would apply to save the causes of action. The plaintiff's appeal to the Appellate Court followed.

The trial court, in a subsequent articulation, reiterated that portions of Spinella's deposition testimony constituted hearsay evidence that would be inadmissible at trial and that Spinella had not personally witnessed Griffin retrieving the process. Otherwise, the court reasoned, Spinella had no actual recollection of the events in question occurring on the specific date of May 20, 2010, the day he had identified as the date of delivery in his affidavit. Moreover, according to the court, in light of various surrounding circumstances, the more reasonable inference was that delivery was untimely. In the court's view, Spinella's deposition testimony was "loose and equivocal" and, therefore, lacked

328 Conn. 180

probative value. "In sum," the court concluded, "none of the proffered evidence was sufficient to satisfy the plaintiff's burden of demonstrating that the requirements of ... § 52–593a had been satisfied."

The Appellate Court reversed the judgment of the trial court, holding that Spinella's deposition testimony, even without taking into account the portions identified as...