Doe v. Town of W. Hartford

• Decision Date: 20 September 2016
• Docket Number: AC 37672
• Citation: 168 Conn.App. 354,147 A.3d 1083
• Parties: John Doe v. Town of West Hartford et al.
• Court: Connecticut Court of Appeals

168 Conn.App. 354

147 A.3d 1083

John Doe

v.Town of West Hartford et al.

AC 37672

Appellate Court of Connecticut.

Argued May 10, 2016

Officially released September 20, 2016

Kenneth J. Krayeske, with whom was Brendan Mahoney, for the appellant (plaintiff).

Patrick D. Allen, with whom, on the brief, was Scott M. Karsten, for the appellees (named defendant et al.).

Laura Pascale Zaino, with whom, on the brief, were Richard C. Tynan, Evan M. O'Hara, and Logan A. Forsey, for the appellees (defendant Dale J. Wallington et al.).

Michael R. McPherson, for the appellees (defendant Hartford Hospital et al.).

Beach, Mullinsand Mihalakos, Js.

MULLINS, J.

The plaintiff, John Doe,¹ appeals from the summary judgment rendered by the trial court, Sheridan, J. , after determining that the plaintiff's causes of action were time barred and were not saved by General Statutes § 52–593a.² The plaintiff also appeals from the decision of the court, Dubay, J. , denying his motion to disqualify Judge Sheridan. The defendants are: the town of West Hartford and certain members of its police department in their official and individual capacities, namely, James Strillacci, Chief of Police, Detective Donald Melanson, Officer Gino Giansanti, Officer Kimberly Sullivan, Officer Sean Walmsley, Sergeant John Silano, and Detective Michael Camilleri (collectively, town defendants); Dale J. Wallington, M.D., and Resilience Health Care, LLC (collectively, medical defendants); and Hartford Hospital, the Institute of Living, Radhika Mehendru, M.D., Carl Washburn, M.D., and Theodore Mucha, M.D. (collectively, hospital defendants).³

On appeal, the plaintiff claims that the court improperly rendered summary judgment despite the existence of issues of material fact regarding whether process was delivered to the marshal prior to the expiration of the various statutes of limitations for his causes of action, and that the court improperly denied the plaintiff's motion for disqualification of Judge Sheridan on the ground of judicial bias.⁴ We agree that the court improperly rendered summary judgment, and, accordingly, we reverse in part and affirm in part the judgment of the trial court.⁵

Many of the underlying facts and the complicated procedural history of this case are not relevant to the issues on appeal. Accordingly, we omit them and set forth only the facts and history necessary for our consideration of the issues presented. The plaintiff alleged various wrongful conduct on the part of the defendants that he claims occurred between May 22, 2007, and June 8, 2007. He commenced this action by summons and complaint, executed on May 19, 2010. According to the marshal's return, which was signed by State Marshal John R. Griffin, the defendants all were served on June 9, 2010. Beginning on September 23, 2013, more than three years after this action was commenced, the town defendants, the medical defendants, and the hospital defendants each filed a motion for summary judgment claiming, inter alia, that the plaintiff's causes of action were time barred.⁶ In response, the plaintiff contended that Griffin had picked up process on May 20, 2010, at the office of Attorney A. Paul Spinella, his attorney at the time he commenced this action, thereby saving the late service pursuant to § 52–593a. See footnote 2 of this opinion. In three separate memoranda, the court, Sheridan, J. , granted the defendants' motions for summary judgment on the issue of the statutes of limitations, concluding that there was no genuine issue of material fact as to whether Griffin had received process prior to the running of the statutes of limitations, and that the defendants were entitled to judgment as a matter of law.

Thereafter, the plaintiff filed a motion to reargue and reconsider, claiming, in part, that he had newly discovered evidence in the form of e-mails that would further help to establish that Spinella's office gave process to Griffin on May 20, 2010. The court denied the plaintiff's motion.

The plaintiff also filed a motion to recuse and disqualify Judge Sheridan on the basis of alleged judicial bias, which was heard by Judge Dubay. Following the hearing, Judge Dubay denied that motion. The plaintiff subsequently filed a motion requesting that Judge Dubay articulate the basis for his denial of the motion to disqualify, which he granted. This appeal followed.⁷ Additional facts will be set forth as necessary.

I

The plaintiff first claims that the trial court improperly rendered summary judgment despite the existence of issues of material fact regarding whether process was delivered to Griffin, the marshal, prior to the expiration of the statutes of limitations. He also claims that the court improperly struck Spinella's affidavit. The plaintiff argues that the defendants never established that the process was not picked up by Griffin prior to the expiration of the statutes of limitations. He further argues that the court improperly weighed the evidence, made credibility determinations, and shifted the burden of proof to him, despite there being no evidence from the movants as to when process was received by Griffin, and then held him to a higher burden of proof than was appropriate for purposes of opposing summary judgment motions. The plaintiff additionally argues that the only burden he had when opposing summary judgment was to demonstrate an issue of material fact as to whether Griffin received process prior to May 22, 2010; he contends that he certainly met that burden but that the court, improperly, required him to prove that process had been delivered, and it failed to view the evidence in the light most favorable to the nonmoving party. We agree that there exists a genuine issue of material fact regarding the date that process was delivered to the marshal.

The following additional facts inform our review. In September and October, 2013, the town defendants and the hospital defendants each filed a motion for summary judgment on grounds that included the expiration of the applicable statute of limitations, both citing General Statutes § 52–577.⁸ The hospital defendants also cited General Statutes § 52–584,⁹ and the town defendants also cited General Statutes § 52–571c (c).¹⁰

In response to these motions for summary judgment, the plaintiff submitted memoranda in opposition in which he claimed, inter alia, that his causes of action were saved through the application of § 52–593a, and he included the affidavit of Griffin, who attested in relevant part that "process to be served [in this] case was delivered to [him] on May 20, 2010." In response, in February, 2014, the town defendants and the hospital defendants filed motions to strike Griffin's affidavit on the ground that it was not based on personal knowledge. In particular, they claimed that Griffin had testified during his deposition that he had no recollection of the specific date upon which he had received process in this case and that he had signed the affidavit because Spinella's office asked him to sign it. The town defendants and the hospital defendants attached copies of Griffin's deposition to their motions to strike.

On March 11, 2014, the plaintiff filed an opposition to the defendants' motions to strike the Griffin affidavit, and he also included an affidavit from Spinella. In an order dated April 21, 2014, the court granted the motions to strike Griffin's affidavit, but, upon the request of the plaintiff, permitted him to submit the affidavit of Spinella.¹¹ The court also gave the defendants sixty days to depose Spinella regarding the facts and circumstances set forth in his affidavit.

On July 9, 2014, the hospital defendants filed a motion, entitled "Motion to Strike Affidavit of A. Paul Spinella and Supplemental Memorandum in Support of Motion for Summary Judgment." They sought to strike Spinella's affidavit on the grounds that the affidavit was not based on personal knowledge and that it contained hearsay. Among the documents submitted in support of the motion to strike was Spinella's certified deposition.

On July 17, 2014, the town defendants filed a similar supplemental motion for summary judgment and motion to strike, which specifically incorporated the July 9, 2014 motion of the hospital defendants. They also contended that Griffin's failure to endorse on his return of service the date he received process in this case was fatal.¹² See footnote 2 of this opinion. The plaintiff filed an opposition to these motions, attaching Spinella's affidavit and portions of his deposition. The hospital defendants and the town defendants each filed a reply. On September 12, 2014, the court rendered a decision striking in part Spinella's affidavit on the ground that it was not based on personal knowledge because Spinella did not witness, firsthand, the marshal pick up the process.

On September 25, 2014, the medical defendants filed a motion for permission to file a supplemental motion for summary judgment, alleging that, in light of the court's recent rulings on the other defendants' motions to strike, the plaintiff's causes of action against them also were barred by § 52–577.¹³ On September 30, 2014, the court granted permission to the medical defendants.

Eight days later, on October 8, 2014, the court, in three separate memoranda of decision, rendered summary judgment on behalf of all defendants. Specifically, the court rendered summary judgment on the ground that the plaintiff had failed to establish that process had been delivered to Griffin prior to the running of the applicable statutes of limitations in this case.¹⁴

The plaintiff claims that the court improperly struck Spinella's affidavit and that it improperly rendered summary judgment despite the existence of issues of material fact regarding whether process was delivered to Griffin prior to the expiration of the statutes of limitations. We agree that the court improperly rendered judgment on the basis that there was no genuine issue of material fact as to whether Spinella...