Rosario v. Hasak

• Decision Date: 06 October 1998
• Docket Number: No. 17114,17114
• Citation: 718 A.2d 505,50 Conn.App. 632
• Court: Connecticut Court of Appeals
• Parties: Humberto ROSARIO v. James M. HASAK.

Page 505

718 A.2d 505

50 Conn.App. 632

Humberto ROSARIO v. James M. HASAK.

No. 17114.

Appellate Court of Connecticut.

Argued Feb. 18, 1998.

Decided Oct. 6, 1998.

Greg C. Mogel, with whom, on the brief, was A. Manuel Nieves, Hartford, for appellant (plaintiff).

William P. O'Brien, Hartford, for appellee (defendant).

Before LANDAU, FRANCIS X. HENNESSY and DUPONT, JJ.

LANDAU, Judge.

This is an appeal from the judgment of the trial court rendered following the granting of the defendant's motion for summary judgment. The plaintiff claims that the trial court improperly granted the defendant's motion for summary judgment after it refused to afford him protection pursuant to General Statutes § 52-592, the accidental failure of suit statute. ¹ We affirm the judgment of the trial court.

The foundation on which the plaintiff's argument stands is that the original action was defeated for a "matter of form" and necessitates the application of § 52-592. The defendant asserts that the plaintiff's lack of diligence has been blatant and egregious and well beyond the reach of § 52-592 and, further, that the public policy inherent in the statute of limitations supports the decision of the trial court. The defendant maintains that he is entitled to summary judgment as a matter of law because there remains no genuine issue of material fact that the plaintiff's action is barred by the applicable statute of limitations.

The procedural quagmire on which the appeal rests must be set forth. The parties were involved in a motor vehicle collision on July 3, 1990. On July 3, 1992, the plaintiff served a complaint, bearing a return date of August 4, 1992, on the defendant. ² The writ, summons and complaint were returned untimely to court on November 4, 1992, ³ without the appropriate fee and were returned to the plaintiff. ⁴

The plaintiff commenced a second action, identical in substance to the first, in January, 1993. The plaintiff returned the writ, summons and complaint on the day of the return date. As a result, the trial court dismissed the action pursuant to the defendant's motion because the return was, once again, untimely.

By complaint dated July 22, 1993, the plaintiff commenced a third action, identical in substance to the first and second actions, in which he alleged, inter alia, that his action was saved by § 52-592, the accidental failure of suit statute. On November 30, 1994, the trial court granted the defendant's motion for summary judgment, ruling that the action was not saved by § 52-592 and was barred by the applicable statute of limitations. The trial court stated that the plaintiff voluntarily chose to institute a new and untimely action, rather than to refile the original complaint. As a result, the new action could not be justified under § 52-592, because the original action was never "determined" within the meaning of § 52-592.

In January, 1995, the plaintiff refiled the original complaint with the court. In March, 1995, the defendant moved to dismiss the original complaint for insufficiency of process in that the complaint was not timely returned to the court. The motion was granted on April 3, 1995. ⁵ The trial court concluded that the plaintiff had failed to comply with the provisions of General Statutes § 52-46a. ⁶

In July, 1995, the plaintiff commenced a fourth action, identical in substance to the first three actions, alleging, again as argued in the third action, the theory of accidental failure of suit. The defendant filed a motion for summary judgment, which the trial court granted on April 3, 1997. The court stated that "[a]lthough § 52-592 is a remedial statute and must be construed liberally, it should not be construed so liberally as to render the statute of limitations meaningless.... Section 52-592 has as its purpose to aid the diligent suitor.... The additional grace period beyond the statute of limitations afforded by § 52-592 in which to commence an action begins to run on the date that a reasonably diligent suitor should have determined that the original action has failed.... [R]eturning the original complaint to court two and one-half years after it was served can hardly be termed diligent." (Citations omitted.) This appeal followed. ⁷

The plaintiff argues that § 52-592 applies if: "(1) an action is commenced within the applicable statute of limitations; (2) such action is dismissed for any of the listed reasons, including lack of jurisdiction or any matter of form; and (3) the plaintiff commences [a] new action on the same cause of action within one year." (Emphasis in original.) He asserts that the present action complied with those requirements because he commenced the original action on July 3, 1992, within the applicable statute of limitations, the trial court dismissed the original action on April 3, 1995, for untimely return of process, which is a "matter of form" pursuant to § 52-592, and he commenced a new action on July 23, 1995, which is within one year from the court's dismissal of the original action.

"The standards governing our review of a trial court's decision on a motion for summary judgment are clear. Practice Book § 384 [now § 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Connecticut Bank & Trust Co. v. Carriage Lane Associates, 219 Conn. 772, 780-81, 595 A.2d 334 (1991); Lees v. Middlesex Ins. Co., 219 Conn. 644, 650, 594 A.2d 952 (1991); Trotta v. Branford, 26 Conn.App. 407, 409, 601 A.2d 1036 (1992). While the burden of showing the nonexistence of any material fact is on the party seeking summary judgment; see D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980); the party opposing [summary judgment] must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue.... Bassin v. Stamford, 26 Conn.App. 534, 537, 602 A.2d 1044 (1992). In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317, 477 A.2d 1005 (1984)." (Internal quotation marks omitted.) Cortes v. Cotton, 31 Conn.App. 569, 572-73, 626 A.2d 1306 (1993).

"Equally well settled is that the trial court does not sit as the trier of fact when ruling on a motion for summary judgment.... [T]he trial court's function is not to decide issues of material fact, but rather to determine whether any such issues exist.... Fleet Bank, N.A. v. Galluzzo, 33 Conn.App. 662, 666, 637 A.2d 803, cert. denied, 229 Conn. 910, 642 A.2d 1206 (1994)." (Internal quotation marks omitted.) Field v. Kearns, 43 Conn.App. 265, 270, 682 A.2d 148, cert. denied, 239 Conn. 942, 684 A.2d 711 (1996).

The accidental failure of suit statute, § 52-592, " 'is remedial in its character. It was passed to avoid hardships arising from an unbending enforcement of limitation statutes.' Isaac v. Mount Sinai Hospital, [210 Conn. 721, 728, 557 A.2d 116 (1989) ]." Capers v. Lee, 239 Conn. 265, 271, 684 A.2d 696 (1996). Its purpose is to aid the diligent suitor. Isaac v. Mount Sinai Hospital, supra, at 733, 557 A.2d 116. However, "[i]n cases where [the Supreme Court has] either stated or intimated that the 'any matter of form' portion of § 52-592 would not be applicable to a subsequent action brought by a plaintiff, [the Supreme Court has] concluded that the failure of the case to be tried on its merits had not resulted from accident or even simple negligence. See Hughes v. Bemer, [206 Conn. 491, 495, 538 A.2d 703 (1988) ] (failure to file a required memorandum of law operates as a consent to judgment on the merits resulting from granting a motion to strike); Pavlinko v. Yale-New Haven Hospital, 192 Conn. 138, 144, 470 A.2d 246 (1984) (dismissal pursuant to Practice Book § 231 [now § 13-14] for deliberate refusal to answer questions at a deposition); Parrott v. Meachum [Meacham], 161 Conn. 573, 575, 290 A.2d 335 (1971) (voluntary withdrawal of prior suit); Baker v. Baningoso, 134 Conn. 382, 387, 58 A.2d 5 (1948) (voluntary withdrawal of prior suit)." Lacasse v. Burns, 214 Conn. 464, 473, 572 A.2d 357 (1990); see also Skibeck v. Avon, 24 Conn.App. 239, 242-43, 587 A.2d 166, cert. denied, 219 Conn. 912, 593 A.2d 138 (1991).

Although the plaintiff's argument has a "superficial textual appeal"; United Illuminating Co. v. New Haven, 240 Conn. 422, 455, 692 A.2d 742 (1997); it is unpersuasive in application because it leads to a difficult and bizarre result. The lack of merit to the plaintiff's claim that the original action against the defendant would continue to exist in perpetuity until disposed by the court is apparent from the argument itself. Under the plaintiff's interpretation, one could serve a writ, summons and complaint, fail to return the papers to court for thirty-five years and, if not otherwise disposed of by the court, proceed with the case at that time. The unreasonableness of such a result is a reason for rejecting that application. See, e.g., Butler v. Hartford Technical Institute, Inc., 243 Conn. 454, 461-62, 704 A.2d 222 (1997).

The result of following the plaintiff's logic would be a virtual nullification of the statute of limitations because a plaintiff would have the ability unilaterally to extend the statute of limitations indefinitely simply by failing to return a timely served complaint to the court. "To allow [such an] action to continue at this time would defeat the basic purpose of the public policy that is inherent in statutes of limitation, i.e., to promote finality in the litigation process. Marangio v. Shop Rite Supermarkets, Inc., 11 Conn.App. 156, 160, 525 A.2d 1389, cert. denied, 204 Conn. 809, 528 A.2d 1155 (1987). 'Although § 52-592 is a...