Tellar v. Abbott Laboratories, Inc.

• Decision Date: 05 May 2009
• Docket Number: No. 29504.,29504.
• Citation: 114 Conn.App. 244,969 A.2d 210
• Court: Connecticut Court of Appeals
• Parties: Robert J. TELLAR v. ABBOTT LABORATORIES, INC.

969 A.2d 210

114 Conn.App. 244

Robert J. TELLAR v. ABBOTT LABORATORIES, INC.

No. 29504.

Appellate Court of Connecticut.

Argued March 12, 2009.

Decided May 5, 2009.

Charles D. Houlihan, Jr., Simsbury, for the appellant (plaintiff).

Shel D. Myers, Hartford, for the appellee (defendant).

FLYNN, C.J., and GRUENDEL and HARPER, Js.

GRUENDEL, J.

This appeal concerns the accidental failure of suit statute, General Statutes § 52-592. The plaintiff, Robert J. Tellar, appeals from the judgment of the trial court dismissing his age and gender discrimination action against the defendant, Abbott Laboratories, Inc. He claims that the court improperly determined that § 52-592 did not apply under the particular facts at hand.¹ We reverse the judgment of the trial court.

The procedural posture of this case governs our recitation of the facts underlying the appeal. "When a ... court decides a ... question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light.... In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Bellman v. West Hartford, 96 Conn.App. 387, 393, 900 A.2d 82 (2006). Further, in addition to admitting all facts well pleaded, the motion to dismiss "invokes any record that accompanies the motion, including supporting affidavits that contain undisputed facts." (Internal quotation marks omitted.) Henriquez v. Allegre, 68 Conn.App. 238, 242, 789 A.2d 1142 (2002).

Given that standard, the court was required to find, for purposes of deciding the motion to dismiss, that the plaintiff worked for the defendant for thirty-two years. In the spring of 2005, he was constructively discharged from his employment as a result of intolerable working conditions that stemmed from age and gender discrimination on the defendant's part. The plaintiff filed timely complaints with the commission on human rights and opportunities (state commission) and the federal Equal Employment Opportunity Commission (federal commission). With their consent, the plaintiff commenced a civil action against the defendant in March, 2006 (first action).² On May 31, 2006, the defendant served on the plaintiff its "First Set of Interrogatories and Requests for Production of Documents" that consisted of sixty-six interrogatories replete with multiple subparts and nineteen documentary requests. On August 14, 2006, the court granted the defendant's motion to compel discovery. When the plaintiff failed to respond in any manner, the court, Hon. Richard M. Rittenband, judge trial referee, rendered a judgment of dismissal against him on September 29, 2006.

The plaintiff thereafter timely moved to open that judgment pursuant to General Statutes § 52-212. Accompanying that motion was the plaintiff's fifty-one page response to the defendant's discovery request and a sworn affidavit from his counsel. In his motion, the plaintiff averred that "good cause exists to open the judgment because [the plaintiff] has complied with his discovery obligations as soon as possible given the earlier schedule conflicts and the recent unavailability of his attorney." The plaintiff explained that during the summer of 2006, his counsel, Charles D. Houlihan, Jr., was largely unavailable due to family health issues. Specifically, Houlihan, a sole practitioner, was consumed by the care for his dying father-in-law, with whom Houlihan lived and who ultimately died in November of that year. In addition, Houlihan's wife, who also served as his legal secretary, underwent a surgical procedure that required hospitalization. As a result, "the routine of counsel's office was substantially disrupted for several weeks because of these events and counsel was unable to attend to the completion of the responses to the discovery requests." The plaintiff also emphasized that the case was dismissed only months after its commencement. Despite those representations and the plaintiff's subsequent compliance with the discovery request, the court, Bryant, J., denied the plaintiff's motion to open on February 26, 2007.³

The plaintiff instituted the present action pursuant to § 52-592 on May 18, 2007. His two count complaint alleged discrimination on the basis of his age and gender. The complaint also alleged that the plaintiff "timely filed this complaint with the [state commission] and the federal [commission] and has been authorized to commence a civil action by each agency." The defendant's first responsive pleading was its August 3, 2007 motion to dismiss. In that motion, the defendant alleged that the court lacked subject matter jurisdiction because the complaint was not filed within ninety days of the receipt of the notice of the right to sue issued by the federal commission or the release of jurisdiction issued by the state commission and, hence, was time barred. In neither its motion to dismiss nor its memorandum of law in support thereof did the defendant address § 52-592 or its applicability to the present action, a point raised by the plaintiff in his opposition to the motion. The plaintiff's opposition also asked the court to take judicial notice of the documents filed in the first action and repeated his allegations concerning Houlihan's family medical issues. The defendant thereafter filed a reply to the plaintiff's opposition in which it argued that because the plaintiff had not demonstrated mistake, inadvertence or excusable neglect, he could not seek recourse under § 52-592.⁴ The court heard argument on the motion to dismiss on November 5, 2007.

In its November 13, 2007 memorandum of decision, the court, McWeeny, J., concluded that the plaintiff had not demonstrated excusable neglect and thus granted the motion to dismiss. The plaintiff filed a motion for reconsideration, in which he argued that the defendant "made no effort to show prejudice by reason of the delay caused by the attention to family medical needs" and requested that he "not lose his substantive rights by reason of the medical emergencies faced by his counsel." The court denied that motion, and this appeal followed.

On appeal, the plaintiff contends that the court improperly concluded, under the facts of this case, that § 52-592 did not apply. Specifically, he argues that because the conduct precipitating the disciplinary dismissal of the first action was not egregious, he should be entitled to the relief afforded by that remedial statute. The defendant counters that the plaintiff has not demonstrated mistake, inadvertence or excusable neglect. We agree with the plaintiff.

We begin by noting the well established standard of review on a challenge to a ruling on a motion to dismiss. "When the facts relevant to an issue are not in dispute, this court's task is limited to a determination of whether, on the basis of those facts, the trial court's conclusions of law are legally and logically correct." (Internal quotation marks omitted.) Rios v. CCMC Corp., 106 Conn.App. 810, 815, 943 A.2d 544 (2008). Because there is no dispute regarding the basic material facts, this case presents an issue of law and our review is plenary. See id. Similarly, the question of whether the court properly applied § 52-592 presents an issue of law over which our review is plenary. See Gonzalez v. Surgeon, 284 Conn. 554, 572, 937 A.2d 13 (2007) (whether statute properly interpreted and applied is question of law subject to plenary review).

General Statutes § 52-592 commonly is known as the saving statute. See, e.g., Peabody N.E., Inc. v. Dept. of Transportation, 250 Conn. 105, 116, 735 A.2d 782 (1999); McKeever v. Fiore, 78 Conn.App. 783, 795, 829 A.2d 846 (2003). It provides in relevant part that "[i]f 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."⁵ General Statutes 52-592(a). Our Supreme Court has long held that § 52-592 "is remedial and is to be liberally interpreted." Ross Realty Corp. v. Surkis, 163 Conn. 388, 393, 311 A.2d 74 (1972); see also Ruddock v. Burrowes, 243 Conn. 569, 575, 706 A.2d 967 (1998); Isaac v. Mount Sinai Hospital, 210 Conn. 721, 728, 557 A.2d 116 (1989). Its essential purpose is to ensure "the plaintiff the right to a trial of his claim."⁶ Contadini v. DeVito, 71 Conn.App. 697, 702, 803 A.2d 423, cert. denied, 262 Conn. 918, 812 A.2d 862 (2002). That "broad and liberal purpose is not to be frittered away by any narrow construction. The important consideration is that by invoking judicial aid, a litigant gives timely notice to his adversary of a present purpose to maintain his rights before the courts." (Internal quotation marks omitted.) Isaac v. Mount Sinai Hospital, supra, at 733, 557 A.2d 116, quoting Gaines v. New York, 215 N.Y. 533, 539, 109 N.E. 594 (1915) (Cardozo, J.).

In Ruddock v. Burrowes, supra, 243 Conn. at 569, 706 A.2d 967, our Supreme Court considered whether a disciplinary dismissal may be characterized as a dismissal "for any matter of form" for purposes of obtaining relief pursuant to § 52-592. The court concluded that "disciplinary dismissals are not excluded categorically from the relief afforded by § 52-592(a)"; id., at 576, 706 A.2d 967; rather, whether the dismissal of a prior proceeding permitted a plaintiff recourse to the statute "depends upon the nature and the extent of the conduct that led to the disciplinary dismissal." Id., at 570, 706 A.2d 967. Accordingly, the court instructed that the egregiousness of the conduct precipitating the dismissal must be examined in determining whether § 52-592 applies in a given instance. It stated: "Disciplinary dismissals do not,...