Pepitone v. Serman
| Decision Date | 07 May 2002 |
| Docket Number | (AC 21963) |
| Citation | 794 A.2d 1136,69 Conn. App. 614 |
| Court | Connecticut Court of Appeals |
| Parties | JAMES A. PEPITONE v. JEROLD W. SERMAN ET AL. |
Mihalakos, Dranginis and Flynn, Js.
Paul Bialobrzeski filed a brief for the appellant (plaintiff).
David M. Spinner filed a brief for the appellees (defendants).
The plaintiff, James A. Pepitone, appeals from the judgment of the trial court rendered after it granted the motion for summary judgment in favor of the defendants, Jerold W. Serman and Jerold W. Serman, Inc.1 On appeal, the plaintiff claims that the court improperly concluded that he could not bring his action under the accidental failure of suit statute, General Statutes § 52-592,2 and, therefore, that his action is time barred by the applicable statute of limitations. We affirm the judgment of the trial court.
The following facts and procedural history are relevant to our resolution of the plaintiffs appeal. On June 28, 1993, the plaintiff and the defendants entered into a contract wherein the plaintiff was to provide consulting services to the defendants for a period of forty-five days following the defendants' purchase of a particular property in Madison. In exchange for the plaintiff's consulting services, the defendants were to pay him a total of $47,500 by the final day of the forty-five day period.
The defendants closed on the subject property on September 30, 1993. On July 22, 1996, the plaintiff filed an action against the defendants, claiming breach of contract and nonperformance based on the defendants' alleged failure to pay the $47,500 due under the contract. The plaintiff also filed an application for a prejudgment remedy in July, 1996. A prejudgment remedy hearing was held on October 15, 1996. At the hearing, the individual defendant testified that he had paid the $47,500 to a third party pursuant to an order of garnishment. More significantly, the plaintiff revealed that he had a pending bankruptcy action. On the basis of the plaintiffs pending bankruptcy action, the court denied the plaintiffs application without prejudice and stayed the proceedings until the plaintiff filed an affidavit demonstrating whether the parties' consultant agreement was an asset of the bankruptcy estate.
The plaintiff failed to provide any information to the court regarding whether his claim against the defendants was an asset of the bankruptcy estate.3 As a result, the court issued a dormancy notice to the parties in December, 1996, and dismissed the case for dormancy on February 14, 1997. The plaintiff filed a motion to open the case on February 24, 1997, which the court granted. There was no activity on the case until October 20, 1998, when the plaintiff filed a motion to restore the case to the docket, which the court granted on January 13, 1999.
Thereafter, there was no activity with regard to the case. Accordingly, the court issued notice on August 10, 1999, that if the plaintiff failed to close the pleadings by October 31, 1999, it would dismiss the case. In its notice, the court also reminded the plaintiff that he had not yet replied to the defendants' special defenses or answered the defendants' counterclaim, which had been filed in October, 1996. After the plaintiff failed to close the pleadings, on November, 19, 1999, the court dismissed the plaintiffs case pursuant to Practice Book § 14-3.4 The plaintiff did not file a motion to open the dismissal. The plaintiff commenced the present action on November 15, 2000. In counts one and two of the complaint, the plaintiff again alleged breach of contract based on the defendant's failure to pay the $47,500.5 In the third and fourth counts, the plaintiff incorporated counts one and two, respectively, and alleged that he had brought his action pursuant to the accidental failure of suit statute, § 52-592. The defendants then filed a motion for summary judgment on the grounds that counts one and two were time barred by the statute of limitations, as set forth in General Statutes § 52-576,6 and, further, that under the circumstances of this case, the plaintiff could not avail himself of § 52-592.
The court granted the defendants' motion for summary judgment on the ground that there is no genuine issue of material fact that counts one and two are time barred by the applicable statute of limitations.7 Moreover, the court concluded that the plaintiff was not entitled to avail himself of § 52-592 because the dismissal of his case "was not a matter of form in the sense that it resulted from mistake, inadvertence or excusable neglect." This appeal followed.8
The plaintiff claims that the court applied improper legal standards in granting summary judgment in favor of the defendants. In essence, however, the plaintiff contends that the court improperly concluded that he was not entitled to avail himself of § 52-592.9
(Citations omitted; internal quotation marks omitted.) Kronberg v. Peacock, 67 Conn. App. 668, 671-72, 789 A.2d 510, cert. denied, 260 Conn. 902, 793 A.2d 1089 (2002).
As previously stated, § 52-592, the accidental failure of suit statute, provides in relevant part: "(a) If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits ... for any matter of form ... the plaintiff ... may commence a new action ... for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment." Deemed a "saving statute," § 52-592 enables plaintiffs to bring anew causes of action despite the expiration of the applicable statute of limitations. Gillum v. Yale University, 62 Conn. App. 775, 781, 773 A.2d 986, cert. denied, 256 Conn. 929, 776 A.2d 1146 (2001). Although § 52-592 should be broadly construed because of its remedial nature, it should not be construed "so broadly as to hamper a trial court's ability to manage its docket by dismissing cases for appropriate transgressions." Id., 782.
Our Supreme Court in Ruddock v. Burrowes, 243 Conn. 569, 576-77, 706 A.2d 967 (1998), instructed that ...
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Edwards v. McMillen Capital, LLC
...a history of dismissals for failure to prosecute over nine-year period, constituted egregious conduct); Pepitone v. Serman , 69 Conn. App. 614, 619-20, 794 A.2d 1136 (2002) (savings statute did not apply where plaintiff had failed twice before to adequately prosecute action leading to dismi......
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Tellar v. Abbott Laboratories, Inc.
...action over period of years and failure to appear at trial), cert. denied, 282 Conn. 902, 919 A.2d 1037 (2007); Pepitone v. Serman, 69 Conn.App. 614, 619-20, 794 A.2d 1136 (2002) (involving failure to close pleadings over period of The present case is readily distinguishable from that line ......
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Edwards v. McMillen Capital, LLC
...delay including history of dismissals for failure to prosecute over nine-year period constituted egregious conduct); Pepitone v. Serman, 69 Conn. App. 614, 619-20 (2002) (savings statute did not apply where plaintiff had failed twice before to adequately prosecute action leading to dismissa......
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Charlotte Hungerford Hosp. v. Creed
...blatant conduct precluded access to the accidental failure of suit statute. Id. at 639, 718 A.2d 505; see also Pepitone v. Serman, 69 Conn.App. 614, 620, 794 A.2d 1136 (2002) (plaintiff could not avail himself of § 52–592 when his actions that led to dismissal of his case did not constitute......