Ross Realty Corp. v. Surkis

• Decision Date: 12 July 1972
• Citation: 163 Conn. 388,311 A.2d 74
• Parties: ROSS REALTY CORPORATION v. Bernard SURKIS et al.
• Court: Connecticut Supreme Court

Page 74

311 A.2d 74

163 Conn. 388

ROSS REALTY CORPORATION v. Bernard SURKIS et al.

Supreme Court of Connecticut.

July 12, 1972.

Frank A. Francis, Hartford, for appellant (plaintiff).

Lewis Rabinovitz, Hartford, for appellees (defendants).

Before HOUSE, C.J., and RYAN, SHAPIRO, LOISELLE and MacDONALD, JJ. RYAN, Associate Justice.

This is an action in two counts which was commenced on or about October 15, 1971. In the first count it was alleged that the plaintiff corporation entered into an oral agreement with the defendant Bernard Surkis (hereinafter called Bernard) wherein the plaintiff and the defendant Bernard were to purchase a building for resale in the redevelopment area of the town of East Hartford; that they agreed that they would erect the building on land to be purchased by them; that in reliance on the agreement the plaintiff purchased the building for $2500 and the parties agreed that it would be stored on the land of the defendant Bernard; that it was further agreed that the building would be sold with the land of the defendant Bernard and that after consummation of the sale the reasonable value of the land of Bernard and the expenditures of the plaintiff would be deducted and the balance remaining would be divided between the plaintiff and the defendant Bernard; that on or about May 1, 1968, the defendant Bernard took possession of the building, made extensive alterations without the knowledge or consent of the plaintiff, has made no attempt to sell the building or land or to reimburse the plaintiff and has converted the building to his own use. The second count alleges a fraudulent conveyance of the land and building by the defendant Bernard Surkis to the defendant Deborah M. Surkis.

The defendants filed a plea in abatement alleging that the identical cause of action was brought on July 5, 1968, between the same parties; that on May 19, 1970, judgment for failure to prosecute was rendered against the plaintiff in that case; and that since the present action was commenced more than one year after the date of that judgment it does not come within the saving provisions of § 52-592 of the General Statutes, and is thereby barred by the Statute of Limitations. ¹

The plaintiff demurred to the plea in abatement on the following grounds: (1) The plea in abatement raises the issue of res judicata which must be specially pleaded; (2) a judgment for failure to prosecute is not a judgment on the merits; (3) the present action is not a proceeding under § 52-592 and makes no reference to mistake or accidental failure of suit but is a new action; (4) the present complaint is different from the one in the earlier case.

The trial court overruled the demurrer and sustained the plea in abatement on the ground that the original case is identical with the new action and, since the plaintiff did not commence the present action within one year from May 19, 1970, the court was without jurisdiction. From the judgment of the trial court the plaintiff has appealed to this court.

The plea in abatement was not predicated on the pendency of a prior action between the same parties, for the same cause, because it recites a rendering of judgment dismissing the earlier case for failure to prosecute. Even if such a claim were made it could not be sustained because the prior action would not be 'pending' after the rendering of final judgment, although not on the merits. Fetzer v. Miscoe Spring Water Co., 141 Conn. 364, 365, 106 A.2d 149. The basic claim of the defendants is that the action was commenced more than a year after the rendering of judgment in the original case, and, for that reason, does not come within the saving provisions of § 52-592 and is thereby barred by the Statute of Limitations.

The defendants were attempting to interpose the defense of the Statute of Limitations. Such a defense must be specially pleaded and cannot be raised by a plea in abatement. Practice Book § 120; Fetzer v. Miscoe Spring Water Co., supra, 365, 106 A.2d 149. The plaintiff could have demurred to the plea in abatement on this ground but did not do so, and the trial court correctly refrained from sustaining the demurrer on a ground which was not specified. Covino v. Pfeffer, 160 Conn. 212, 213, 276 A.2d 895; Cyr v. Brookfield, 153 Conn. 261, 263, 216 A.2d 198. The plea in abatement assumed that the present action was an attempted proceeding under § 52-592 and the demurrer countered this with the claim that it was not such a proceeding and therefore was not barred by the failure to comply with the one-year saving provisions of the statute.

While it has been suggested that it might be desirable for the plaintiff to plead sufficient facts necessary to bring the matter within the purview of § 52-592, either by anticipation in the complaint or in the reply to a defense of the Statute of Limitations in order that the defendant might, if he chose, plead to them, this court has...