Henriquez v. Allegre

• Decision Date: 19 February 2002
• Docket Number: (AC 21527)
• Citation: 789 A.2d 1142,68 Conn. App. 238
• Court: Connecticut Court of Appeals
• Parties: MAX HENRIQUEZ v. JOSE F. ALLEGRE

68 Conn. App. 238

789 A.2d 1142

MAX HENRIQUEZ v. JOSE F. ALLEGRE

(AC 21527)

Appellate Court of Connecticut.

Submitted on briefs November 1, 2001.

Officially Released February 19, 2002.

Foti, Flynn and Dupont, Js.

Nicholas W. Francis filed a brief for the appellant (plaintiff).

Nicholas C. Varunes and Anita M. Varunes filed a brief for the appellee (defendant).

Opinion

FLYNN J.

The plaintiff, Max Henriquez, appeals from the judgment of the trial court rendered following the granting of the defendant's motion to dismiss. On appeal, the plaintiff claims that the court improperly concluded that his action, commenced pursuant to General Statutes § 52-592,¹ was untimely. We reverse the judgment of the trial court.

The following facts and procedural history are relevant to our disposition of the appeal. In January, 1997, the plaintiff commenced a timely action against the defendant, Jose F. Allegre, for personal injuries allegedly sustained by the plaintiff in a January 23, 1995 motor vehicle accident.² In June, 1998, the trial court dismissed the plaintiffs action under its dormancy program for failure to prosecute with reasonable diligence.³ According to the court, notice of the dismissal issued on June 19, 1998. In footnote 3 of its memorandum of decision, the court stated that "[t]he file of the court for the initial action, Henriquez v. Allegre, Docket No. 478660, judicial district of Hartford-New Britain at New Britain, indicates that the court issued notice on June 19, 1998."

We note that the record before us does not support the court's finding that notice issued on June 19, 1998. Instead, the record indicates that although judgment was rendered on June 19, 1998, notice was not issued to the defendant until August 25, 1998. Indeed, in the defendant's appellate brief, he states the following: "On or about June 19, 1998, the trial court entered a judgment of dismissal for failure to prosecute with reasonable diligence pursuant to Practice Book § 14-3. The court sent notice of the dismissal by court card dated August 25, 1998, informing counsel that a motion to open must be filed within four months of the date notice was sent pursuant to Practice Book § 17-4." In support of those facts, the defendant provides a copy of the August 25, 1998 notice in the appendix to his appellate brief, which states: "Please be advised that this court entered a judgment of dismissal in the above entitled action on 06/19/98 for failure to prosecute said action with reasonable diligence, ([Practice Book § 14-3). Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a motion to open judgment of dismissal must be filed within four months succeeding the date on which notice was sent ([Practice Book §] 17-4)."

Nowhere in the record is there any indication that the court issued an earlier notice or, assuming that an earlier one was issued, why the court determined that a second issuance of notice was necessary almost two and one-half months after the court had rendered judgment. The defendant claims that his counsel received the notice on August 27, 1998, while the plaintiff claims that his counsel never received the notice. Unfortunately, we are unable to review the case file of the initial action because apparently it was destroyed pursuant to Practice Book § 7-10⁴ sometime after the trial court presumably reviewed it. In light of our holding that the date notice issued does not control in determining whether an action was timely brought pursuant to § 52-592, however, it makes no difference to our analysis whether notice of the dismissal issued on June 19, 1998, or August 25, 1998.

Subsequent to the June 19, 1998 dismissal, the parties continued to communicate regarding the matter, including proceeding with settlement negotiations. On July 14, 1999, the plaintiff filed a certificate of closed pleadings, which the court returned to the plaintiff with a notation that the action had been dismissed. On August 11, 1999, the plaintiff filed a motion to open the dismissal. For reasons not clear on the record, the court neither ruled on the motion nor held a hearing on the matter.

On July 21, 2000, the plaintiff commenced the present action against the defendant pursuant to § 52-592, the accidental failure of suit statute. The defendant filed a motion to dismiss the action on the ground that it was untimely because it was not filed within one year of the dismissal of the first action as required by § 52-592.⁵ On December 12, 2000, the court granted the defendant's motion⁶ and this appeal followed.

The plaintiff claims that the court improperly granted the defendant's motion to dismiss. Specifically, he argues that the court incorrectly concluded that his action under § 52-592 was untimely. We agree with the plaintiff. As a preliminary matter, we set forth the standard of review. "Our standard of review of a trial court's findings of fact and conclusions of law in connection with a motion to dismiss is well settled. A finding of fact will not be disturbed unless it is clearly erroneous.... [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts .... Thus, our review of the trial court's ultimate legal conclusion and resulting [granting] of the motion to dismiss will be de novo....

"A motion to dismiss admits all facts well pleaded and invokes any record that accompanies the motion, including supporting affidavits that contain undisputed facts." (Citations omitted; internal quotation marks omitted.) Coughlin v. Waterbury, 61 Conn. App. 310, 314, 763 A.2d 1058 (2001).

An action brought pursuant to § 52-592 must be commenced "within one year after the determination of the original action...." In the present case, the court determined that this limitation period begins to run "when the notice of dismissal is actually issued by the court." Applying this principle, the court concluded that the plaintiffs action under § 52-592 was untimely because it was commenced on July 21, 2000, more than one year after June 19, 1998, the date the court determined that notice of the dismissal of the original action was issued. The plaintiff claims that the court's conclusion is incorrect because it disregards the issue of when he actually received notice of the dismissal. He argues that his present action was timely because he commenced it within one year of his receiving notice of the dismissal. The plaintiff alleges that he first received notice that the court had dismissed the original action on July 26, 1999, when he received the return certificate of closed pleadings with the notation that the action had been dismissed. However, his counsel states in his August 28, 2000 affidavit that July 29, 1999, was the date of actual notice.

In rendering its decision, the court, relying on Morales v. Medina, Superior Court, judicial district of Hartford, Docket No. 590718 (November 3, 1999), and Russell v. Thomas O'Connor & Co., 42 Conn. App. 345, 347-48, 679 A.2d 420 (1996), rejected the plaintiffs argument that the date on which he actually received notice of the dismissal is relevant in the context of § 52-592.⁷ Although Morales and Russell stand for the proposition that the one year period in which to file a new action under § 52-592 begins when notice is issued that the original action has been terminated, neither case can be read to hold that when a plaintiff receives notice is not relevant in the determination of whether an action under § 52-592 is timely.⁸ Furthermore, we know of no case that addresses the issue of receipt of notice as it relates to § 52-592. Accordingly, this appeal appears to present an issue of first impression, that is, whether the failure of a plaintiff to receive timely notice of the dismissal of his original action extends the time within which the plaintiff may commence an action pursuant to § 52-592. We conclude that it does.

Section 52-592 "by its plain language, is designed to prevent a miscarriage of justice if the plaintiffs fail to get a proper day in court due to the various enumerated procedural problems."⁹Legassey v. Shulansky, 28 Conn. App. 653, 659, 611 A.2d 930 (1992). It was adopted "to avoid hardships arising from an unbending enforcement of limitation statutes.... Its purpose is to aid the diligent suitor." (Citations omitted; internal quotation marks omitted.) Rosario v. Hasak, 50 Conn. App. 632, 637, 718 A.2d 505 (1998). Indeed, our Supreme Court has long held that § 52-592 "is remedial and is to be liberally interpreted." Ross Realty Corp. v. Surkis, 163 Conn. 388, 393, 311 A.2d 74 (1972). "Its broad and liberal purpose is not to be frittered away by any narrow construction. The important consideration is that by invoking judicial aid, a litigant gives timely notice to his adversary of a present purpose to maintain his rights before the courts." (Internal quotation marks omitted.) Isaac v. Mount Sinai Hospital, 210 Conn. 721, 733, 557 A.2d 116 (1989), quoting Gaines v. New York, 215 N.Y. 533, 539, 109 N.E. 594 (1915) (Cardozo, J.).

"It is axiomatic that the right to bring a new action under [§ 52-592] assumes that the party who is to exercise the right be given the opportunity to know that the original action has been terminated." Russell v. Thomas O'Connor & Co., supra, 42 Conn. App. 347-48.¹⁰ Our Supreme Court has stated that "[f]undamental tenets of due process ... require that all persons directly concerned in the result of an adjudication be given reasonable notice and the opportunity to present their claims or defenses." (Internal quotation marks omitted.) Kron v. Thelen, 178 Conn. 189, 193, 423 A.2d 857 (1979). Moreover, "[t]he guarantee of procedural due process requires that persons whose rights are to be affected have a right to notice and an opportunity to be heard at a meaningful time and in a meaningful manner." Langan...