Larmel v. Metro North Commuter Railroad Co., 100620 CTCA, AC 42647

Docket Nº:AC 42647
Opinion Judge:LAVINE, J.
Party Name:PHYLLIS LARMEL v. METRO NORTH COMMUTER RAILROAD COMPANY
Attorney:James P. Brennan, for the appellant (plaintiff). Beck S. Fineman, for the appellee (defendant).
Judge Panel:Lavine, Prescott and Eveleigh, Js. In this opinion PRESCOTT, J., joined. EVELEIGH, J., dissenting. I respectfully dissent.
Case Date:October 06, 2020
Court:Appellate Court of Connecticut
 
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PHYLLIS LARMEL

v.

METRO NORTH COMMUTER RAILROAD COMPANY

No. AC 42647

Court of Appeals of Connecticut

October 6, 2020

Argued February 4, 2020

Procedural History

Action to recover damages for personal injuries sustained as a result of the defendant's alleged negligence, and for other relief, brought to the Superior Court in the judicial district of New Haven, where the court, S. Richards, J., granted the defendant's motion to dismiss and rendered judgment thereon, from which the plaintiff appealed to this court. Improper form of judgment;

reversed; judgment directed.

James P. Brennan, for the appellant (plaintiff).

Beck S. Fineman, for the appellee (defendant).

Lavine, Prescott and Eveleigh, Js.

OPINION

LAVINE, J.

The plaintiff, Phyllis Larmel, commenced the present personal injury action (second action) against the defendant, Metro North Commuter Railroad Company (Metro North), pursuant to the accidental failure of suit statute, General Statutes § 52-592 (a). Metro North responded by filing a motion to dismiss the second action on the ground that it was barred by the doctrine of res judicata. The trial court, S. Richards, J., dismissed the second action. On appeal, the plaintiff claims that the court improperly (1) dismissed the second action, (2) held that the doctrine of res judicata applies to an arbitrator's decision rendered pursuant to ‘‘informal compulsory arbitration'' under General Statutes § 52-549u, (3) failed to hold that a judgment rendered pursuant to General Statutes § 52-549z is a matter of form, (4) failed to hold that the second action was viable pursuant to § 52-592 (a), and (5) failed to hold that the plaintiff's failure to file a demand for a trial de novo constituted mistake, inadvertence, or excusable neglect. The defendant claims that the second action is barred by the doctrine of res judicata or, in the alternative, that § 52-592 (a) does not save the second action. We conclude that the accidental failure of suit statute does not save the second action.1 The form of the judgment is improper. We, therefore, reverse the judgment of dismissal and remand the case with direction to render judgment in favor of Metro North.

The following facts and procedural history gave rise to the present appeal.2 On the rainy morning of October 1, 2014, the plaintiff slipped and fell as she entered a Metro North passenger railcar at Union Station in New Haven. On June 15, 2015, the plaintiff commenced a personal injury action against Metro North (first action), alleging that Metro North was negligent and that she sustained injuries when she fell due to the wet and slippery condition of the railcar's floor. On November 2, 2016, the trial court, Abrams, J., accepted the parties' trial management schedule that was signed by counsel for the parties. According to the schedule, the parties were to complete discovery and be prepared for a pretrial conference in April, 2017. Trial was to begin in October, 2017. In March, 2017, the plaintiff filed the first of several motions to modify the scheduling order, including the time within which to disclose an expert witness. She also noticed the deposition of a Metro North agent. Metro North filed motions for protective orders. On September 22, 2017, the plaintiff filed a motion to continue the trial until April, 2018. Judge Abrams denied the motion to continue, but marked the trial ‘‘off'' and sent the parties to court-mandated arbitration pursuant to § 52-549u.3

The arbitration was held on December 1, 2017, and the arbitrator, Attorney David Crotta, issued his decision on February 26, 2018, finding in favor of Metro North. The clerk of the court mailed notice of the arbitrator's decision to counsel for the parties on February 27, 2018, as evidenced by the postmark. The plaintiff did not demand a trial de novo within twenty days pursuant to § 52-549z (d).[4] On March 21, 2018, in the absence of a demand for a trial de novo, Judge Abrams rendered judgment in the first action in favor of Metro North in accordance with the arbitrator's decision. See General Statutes § 52-549z (a). On March 23, 2018, counsel for the plaintiff filed a motion to open the judgment; Metro North opposed the motion to open. Judge Abrams granted the plaintiff's request for oral argument on her motion to open the judgment. Following oral argument in August, 2018, the court denied the motion to open. The plaintiff did not seek an articulation of the court's decision, and she did not appeal from the judgment denying her motion to open.

On October 26, 2018, the plaintiff commenced the second action pursuant to § 52-592 (a), the accidental failure of suit statute.5 In the second action, the plaintiff repeated the allegations of negligence pleaded against Metro North in the first action. She also alleged that she ‘‘had a prior pending case against [Metro North] arising out of the same nucleus of facts as'' the second action. Also, she alleged that an arbitrator issued a decision in favor of Metro North on February 26, 2018, and that the clerk of the court forwarded to the parties a copy of the decision postmarked February 27, 2018. She further alleged that the decision did not arrive at the office of her counsel until March 13, 2018. Counsel was out of the state on vacation during the week of March 12, 2018, and returned to the office on March 19, 2018. Counsel's paralegal, his sole employee save a part-time bookkeeper, was out of the office in February and March, 2018, due to illness and did not return until March 22 or 23, 2018. The plaintiff further alleged that her counsel did not know that judgment in the first action had entered against her until March 21, 2018, when he received notice from the Judicial Branch. The plaintiff further alleged that she failed to file a motion for a trial de novo within the time required by § 52-549z (d) and the trial court rendered judgment on the arbitrator's decision on March 21, 2018. In addition, the plaintiff alleged that she filed a motion to open the judgment on March 23, 2018, which was denied on August 27, 2018. Finally, the plaintiff alleged that her failure to file a timely motion for a trial de novo in the first action was due to mistake, inadvertence, and/or excusable neglect, and that the second action was commenced pursuant to § 52-592 (a).

In response to the second action, on December 13, 2018, Metro North filed a motion to dismiss the action, contending that the trial court lacked ‘‘subject matter jurisdiction under the principles of res judicata, as entry of final judgment on the merits in [the first action] pursuant to . . . § 52-549z, make[s] . . . § 52-592 (a) inapplicable.'' On January 14, 2019, the plaintiff's counsel filed an objection to the motion to dismiss to which he attached a memorandum of law and his affidavit. In his affidavit, the plaintiff's counsel averred the facts alleged in the second action as to why he did not file a timely motion for a trial de novo following receipt of the arbitrator's decision in the first action. Judge Richards dismissed the second action on February 24, 2019. The plaintiff appealed on February 27, 2019.

On March 19, 2019, the plaintiff filed a motion for articulation requesting that Judge Richards articulate the basis and reason for granting Metro North's motion to dismiss. The court issued its articulation on April 5, 2019, stating, in relevant part, that the plaintiff commenced the second action against Metro North pursuant to the accidental failure of suit statute alleging ‘‘that her failure to file a timely trial de novo [motion in the first action] was due to mistake, inadvertence and/or excusable neglect. In response, Metro North filed a motion to dismiss claiming that the trial court in [the second action] lacked subject matter jurisdiction under the doctrine of res judicata, as there was an entry of a final judgment in [the first action]. This court agreed with the arguments and reasoning propounded by Metro North in its motion to dismiss on said ground and granted its motion to dismiss . . . .'' (Emphasis added; internal quotation marks omitted.)

I

On appeal, the plaintiff claims that the court improperly granted Metro North's motion to dismiss because ‘‘the doctrine of res judicata is not applicable to a case dismissed pursuant to . . . § 52-549z.''6 (Emphasis added.) Although the first action was not dismissed, the plaintiff argues that the controlling issue is whether the first action was ‘‘dismissed'' as a matter of form. She contends that a ‘‘dismissal pursuant to . . . § 52-549z is similar to a disciplinary dismissal'' and that the trial court was required to determine whether the first action failed because her conduct in failing to file a demand for a trial de novo occurred under circumstances constituting mistake, inadvertence, or excusable neglect that would allow her to pursue the second action on its merits, or whether her conduct was so egregious that the merits of the case should not be reached. She cites Ruddock v. Burrowes, 243 Conn. 569, 570, 576-77, 706 A.2d 967 (1998), in support of her argument.[7] ‘‘In order to fall within the purview of § 52-592 . . . the original lawsuit must have failed for one of the reasons enumerated in the statute.'' Skinner v. Doelger, 99 Conn.App. 540, 553, 915 A.2d 314, cert. denied, 282 Conn. 902, 919 A.2d 1037 (2007). The plaintiff, therefore, contends that Judge Richards was required to make a factual finding regarding the nature of the plaintiff's conduct in failing to demand a trial de novo.[8]

The present appeal presents a number of procedural irregularities, many of which we need not address. Although we agree with the plaintiff that Metro North improperly filed a motion to dismiss the second action on the...

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