Rogozinski v. American Food Service Equipment Corp.

• Decision Date: 14 September 1994
• Docket Number: No. 12396,12396
• Court: Connecticut Court of Appeals
• Parties: Richard ROGOZINSKI v. AMERICAN FOOD SERVICE EQUIPMENT CORPORATION et al.

Page 300

643 A.2d 300

34 Conn.App. 732

Richard ROGOZINSKI v. AMERICAN FOOD SERVICE EQUIPMENT CORPORATION et al.

No. 12396.

Appellate Court of Connecticut.

Argued April 5, 1994.

Decided June 21, 1994.

Certification Denied Sept. 14, 1994.

William C. Turney, New Haven, with whom, on the brief, was Herbert Watstein, Bristol, for appellant (plaintiff).

James E. Kernan, Waterbury, for appellee (defendant Henry M. Osowiecki and Sons, Inc.).

Robert H. Hall, Newtown, for appellee (defendant Connecticut Light and Power Co).

Joseph A. LaBella, Hartford, for appellee (defendant Regional Reporting Services of New England, Inc.).

Randolph E. Richardson II, with whom was Elizabeth A. Bozzuto, Waterbury, for appellees (defendant American Food Service Equipment Corp. et al.).

Before LAVERY, LANDAU and FREDERICK A. FREEDMAN, JJ.

FREDERICK A. FREEDMAN, Judge.

The plaintiff, Richard Rogozinski, appeals from the trial court's judgment rendered following the granting of the defendants' ¹ motions for summary judgment. On appeal, the plaintiff claims the trial court improperly (1) held that the plaintiff's action was barred by the statute of limitations, and (2) set aside the default for failure to plead against the defendant Connecticut Light and Power Company (CL & P). ² We affirm the judgment of the trial court.

The trial court found the following facts. In 1982, the plaintiff hired the defendant Henry M. Osowiecki and Sons, Inc. (Osowiecki) and other contractors to renovate, construct and install a kitchen, designed by the defendant American Food Service Equipment Corporation (American Food) in the plaintiff's restaurant. Soon after the restaurant opened, it was severely damaged by a fire in the kitchen. The plaintiff's insurer, Transit Casualty Insurance Company (Transit), paid the plaintiff pursuant to his insurance policy. The plaintiff and Transit initially filed a suit against Osowiecki, American Food, Willis A. Holmes, Jr., Marcel Dionne Regional Reporting Services of New England, Inc., and CL & P.

In this initial action, the plaintiff and Transit alleged that the fire had been caused by the placement of an oven too close to an insufficiently fireproofed wall. This action was dismissed on August 3, 1987, because the plaintiff failed to comply with a request to revise the complaint. On March 23, 1988, the plaintiff and Transit refiled the action, pursuant to General Statutes § 52-592, ³ the accidental failure of suit statute. This second action was dismissed on June 14, 1988, for late return of process.

On July 14, 1988, the action was again refiled. This time, however, the plaintiff and Transit alleged breach of contract as well as the negligence alleged in the previous actions. This third action was dismissed on December 8, 1989, for failure to prosecute with due diligence pursuant to Practice Book § 251. The plaintiff, this time without Transit, again refiled the breach of contract action on October 26, 1990 (fourth action). ⁴

The complaint in the plaintiff's fourth action alleged that the defendants had breached their contracts in that they breached implied warranties and failed to perform their work in a skillful and workmanlike manner. On December 31, 1991, Osowiecki filed a motion for summary judgment. The trial court, Meadow, J., in a written memorandum of decision, granted the motion for summary judgment. The other defendants filed subsequent motions for summary judgment which were granted without an opinion by the trial court, Parker, J. On April 23, 1993, the plaintiff filed a motion for articulation of the trial court's granting of the defendants' motions for summary judgment. ⁵ The trial court denied the motion for articulation. The plaintiff appeals from the judgment granting all the motions for summary judgment.

I

The plaintiff first claims that the trial court improperly held that his action was barred by the statute of limitations. Specifically, the plaintiff claims that the trial court improperly held that the term "original action" in General Statutes § 52-592(a) refers to the first action brought by the plaintiff, sounding in negligence, and not the subsequent action sounding in contract. We do not agree.

Before we begin our analysis, it is helpful to point out what is presently at issue before us. The question is not whether the plaintiff, after timely filing a negligence action that is dismissed without resolution on the merits, may later timely file an action based on the same factual scenario but sounding in contract. The question is whether a plaintiff may take advantage of the accidental failure of suit statute, General Statutes § 52-592(a), where the factual basis of the initial action is the same as a subsequent action, but the initial action sounds in tort and the subsequent action sounds in contract.

Section 52-592(a) provides: "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." (Emphasis added.)

The plaintiff argues that the plain meaning of the language of § 52-592(a) provides that if any action, commenced within the statute of limitations, has been defeated for any matter of form, then he may bring a new action for that same cause under the statute. He further argues that because he filed the contract action for the first time, on July 14, 1988, within the six year statute of limitations, ⁶ and then commenced the action presently before us within one year of the dismissal of the contract action for a matter of form, the contract action is saved by the statute. At first glance, this argument is appealing. On closer inspection, however, the argument is not persuasive.

In order to take advantage of § 52-592(a), the plaintiff must satisfy all the requirements therein. Here, the contract action (the third action) was commenced within the time limited by law, ⁷ and it has not been tried on its merits due to its dismissal for a matter of form. ⁸ The question that remains is whether the fourth action was filed within one year after the determination of the "original action." Resolution of this matter, therefore, turns on the meaning of the term "original action" for the purpose of § 52-592(a).

In Pintavalle v. Valkanos, 216 Conn. 412, 416, 581 A.2d 1050 (1990), our Supreme Court, citing Marangio v. Shop Rite Supermarkets, Inc., 11 Conn.App. 156, 525 A.2d 1389, cert. denied, 204 Conn. 809, 528 A.2d 1155 (1987), held that the term "original action" in § 52-592(a) refers to the first action brought within the applicable statute of limitations. ⁹ Section 52-592(a), therefore, may be used only in the situation where a plaintiff files a subsequent action within one year of the dismissal, for the reasons provided in the statute, of the first action. We, therefore, must determine which action, the negligence action or the contract action, was the first action for the purpose of § 52-592(a).

It is well settled that "[a] cause of action is that single group of facts which is claimed to have brought about an unlawful injury to the plaintiff and which entitles the plaintiff to relief. Bridgeport Hydraulic Co. v. Pearson, 139 Conn. 186, 197, 91 A.2d 778 [1952]; Veits v. Hartford, 134 Conn. 428, 434, 58 A.2d 389 [1948]. 'A right of action at law arises from the existence of a primary right in the plaintiff, and an invasion of that right by some delict on the part of the defendant. The facts which establish the existence of that right and that delict constitute the cause of action.' Pavelka v. St. Albert Society, 82 Conn. 146, 147, 72 A. 725 [1909]." Gallo v. G. Fox & Co., 148 Conn. 327, 330, 170 A.2d 724 (1961). "Even though a single group of facts may give rise to rights for several different kinds of relief, it is still a single cause of action. [Bridgeport Hydraulic Co. v. Pearson, supra, 139 Conn. at 197, 91 A.2d 778]." Duhaime v. American Reserve Life Ins. Co., 200 Conn. 360, 365, 511 A.2d 333 (1986).

Here, the group of facts from which the contract action arises is identical to the group of facts from which the negligence action arises. Both actions, therefore, are the same "cause of action." Because there is only one "cause of action," the first action must be the original negligence action dismissed on August 3, 1987. In order for § 52-592(a) to apply, a subsequent action must have been filed within one year of August 3, 1987. The action filed October 26, 1990, was filed well after the expiration of the one year period, and therefore, cannot by saved by § 52-592(a).

The trial court properly found that the plaintiff's action was barred by the statute of limitations.

II

The plaintiff next claims that the trial court improperly set aside the default for failure to plead against CL & P. We do not agree.

On April 3, 1992, the plaintiff filed a motion for default for failure to plead against CL & P. The trial court granted this motion on April 13, 1992. On October 5, 1992, the plaintiff filed a claim for the civil trial list for a hearing in damages. On October 8, 1992, CL & P filed a motion to set aside the default pursuant to Practice Book § 363A. The trial court granted this motion on November 9, 1992.

Practice Book § 363A provides in part: "If a party who has been defaulted under this section files an answer before a judgment after default has been rendered by the court, the clerk shall set aside the default. If a claim for a hearing in damages or a motion for judgment has been filed the default may be set aside only by the court." Here, a claim for a hearing in damages was filed on October 5, 1992, and therefore, the default may have been set aside only by the court.

The plaintiff argues that because § 363A does not provide any guidelines for the trial court to follow when determining whether to...