Smith v. Reynolds
Decision Date | 03 August 1999 |
Citation | 54 Conn. App. 381,735 A.2d 827 |
Court | Connecticut Court of Appeals |
Parties | (Conn.App. 1999) GERALD SMITH v. WANDA REYNOLDS (AC 17955) |
William F. Gallagher, with whom, on the brief, was George R. Temple, for the appellant (plaintiff).
Ralph C. Crozier, for the appellee (defendant).
Lavery, Landau and Schaller, Js.
OPINION
The plaintiff, Gerald Smith, appeals from the trial court's judgment granting the motion filed by the defendant, Wanda Reynolds, to restore the case to the docket after the plaintiff withdrew his cause of action.1 On appeal, the plaintiff claims that the trial court improperly restored the case to the docket because the trial court lacked subject matter jurisdiction. We reverse the judgment of the trial court.
The following facts are relevant to the appeal. The plaintiff commenced the lawsuit, a derivative action,2 on July 9, 1997. The defendant filed a motion for an appraisal of the corporation, which the trial court granted on October 20, 1997. Although the trial court granted the motion for an appraisal, no appraiser was ever appointed. The plaintiff withdrew the lawsuit on October 28, 1997. The defendant moved to restore the action to the docket on October 30, 1997. On November 4, 1997, the trial court granted the motion to restore.3 The trial court denied the plaintiff's motion to reconsider its ruling on the motion to restore. The plaintiff appealed.
(Internal quotation marks omitted.) United Technologies Corp. v. Groppo, 238 Conn. 761, 767, 680 A.2d 1297 (1996). Our review of the plaintiff's claim is, therefore, plenary.
The issue is controlled by General Statutes § 52-80, which provides in relevant part:
(Internal quotation marks omitted.) H. G. Bass Associates, Inc. v. Ethan Allen, Inc., 26 Conn. App. 426, 431, 601 A.2d 1040 (1992). "[A] withdrawal `does not need the permission of the court for cause shown if a hearing on an issue of fact has not commenced.'" Baker v. Cordisco, 37 Conn. App. 515, 521, 657 A.2d 230, cert. denied, 234 Conn. 907, 659 A.2d 1207 (1995).
The parties disagree as to whether the trial court's granting the defendant's motion for an appraisal of the corporation, without the appointment of an appraiser, is a hearing on an issue of fact. We hold that it is not an issue of fact. See Barra v. Ridgefield Card & Gift Gallery, Ltd., 194 Conn. 400, 404, 480 A.2d 552 (1984) ( ); Spears v. Kerars Realty Co., Inc., 171 Conn. 699, 704, 372 A.2d 121 (1976) ( ).
In this case, although the trial court granted the defendant's motion for an appraisal of the value of the corporation, no appraiser was appointed to perform the evaluation. "It is...
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Kendall v. Comm'r of Corr.
...(1984) (hearing on issue of fact commenced where appraiser appointed by court order and had filed his report); Smith v. Reynolds, 54 Conn.App. 381, 383–84, 735 A.2d 827 (1999) (no hearing on issue of fact where motion to appoint appraiser had been granted, but no appraiser had yet been appo......
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Rosado v. Bridgeport Roman Catholic Diocesan Corp.
...the court's authority to open a judgment is challenged. Solomon v. Keiser, supra, 212 Conn. 746-48. Citing Smith v. Reynolds, 54 Conn. App. 381, 382 n.1, 735 A.2d 827 (1999), the Courant ultimately concedes this exception to the rule, thus defeating its own argument. We, accordingly, conclu......
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Kendall v. Comm'r of Corr.
...(1984) (hearing on issue of fact commenced where appraiser appointed by court order and had filed his report); Smith v. Reynolds, 54 Conn. App. 381, 383-84, 735 A.2d 827 (1999) (no hearing on issue of fact where motion to appoint appraiser had been granted, but no appraiser had yet been app......
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TRAVELERS PROPERTY CAS. CO. v. Twine
...that the court, therefore, has no discretion to restore the case to the docket. It cites this court's opinion in Smith v. Reynolds, 54 Conn.App. 381, 383, 735 A.2d 827 (1999), arguing that a trial court never has the discretion to restore a plaintiff's action as long as the plaintiff has wi......