Bello v. Fair Haven Elderly Associates, L.P. (2009)

MEMORANDUM OF DECISION RE DEFENDANTS' MOTION TO REARGUE (# 115)

The court denied the defendants' motion for summary judgment on October 29, 2009.   The defendants have filed a motion to reargue the court's decision on the ground that the “findings of fact are contradicted by the record and thus, the Connecticut Supreme Court authority set forth in the Memorandum of Decision is inapplicable to the present matter.”   They argue that the court incorrectly “found” that the plaintiff caused service to be made on the defendants in the prior action, citing the court's summary of the plaintiff's argument regarding the prior action as evidence thereof, and because the defendants “proved” they were “never served” in the prior action, Rocco v. Garrison, 268 Conn. 541, 848 A.2d 352 (2004), is inapposite.

First, it must be noted that the court did not make the alleged findings of fact regarding the service of process in the prior action.   A fair reading of the sentences from the memorandum of decision that the defendants quote in their motion demonstrates that the statements regarding the attempted service in the prior action were part of the summary of the aspects of that action which were relevant to the issues before the court.   It is disingenuous of the defendants to state that the quoted “findings of fact are contradicted by the record” when, in the same paragraph of the memorandum, the court noted:  “In support of their motion to dismiss, the defendants presented the sworn affidavit of Jeffrey Goldstein, the president of ARCO Management Corp ․ a New York corporation, who attested that neither the secretary of state of Connecticut nor Aaron Cohen was ARCO's agent for service;  that at all times relevant hereto, ARCO was the managing agent for Fair Haven;  and that neither party was served in that action.”

In the memorandum of decision, the court also noted that the prior action was dismissed by agreement:  “On October 27, 2008, the court, Thomson, J., granted the motion, noting that it was doing so ‘by agreement.’  “ The defendants now argue that the “plaintiff has no evidence demonstrating that service of process was sent to the defendants is further supported by ․ a letter from plaintiff's counsel to defense counsel responding to the defendants' ․ [motion to dismiss the prior action] ․ stating ‘I am not in a position to contest your claim re:  service of process with either ARCO Management [or] Fair Haven Elderly Associates Limited Partnership.’  “ The next sentence of that letter states:  “Therefore the motion to dismiss may be granted by [a]greement and I will proceed accordingly.”   By agreeing to the motion to dismiss the prior action, the plaintiff acknowledged that the court lacked personal jurisdiction over the defendants in the prior action as a result of insufficient or improper service.   She elected to “proceed accordingly” by bringing a new suit, commenced by proper service of process, pursuant to the accidental failure of suit statute.

This is precisely the situation the statute exists to remedy.  General Statutes § 52-592(a) provides in relevant part:  “If any action, commenced within the time limited by law has failed one or more times to be tried on its merits because of insufficient service ․ or because the action has been dismissed for want of jurisdiction ․ or any other 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 ․” The prior action was dismissed by agreement on October 27, 2008;  the present action was commenced March 12, 2009, well within one year of the determination of the original action.  “Deemed a saving statute, § 52-592 enables plaintiffs to bring a new causes of action despite the expiration of the applicable statute of limitations ․ [L]ooming behind § 52-592 is the overarching policy of the law to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court.”  (Internal quotation marks omitted.)  Viejas Band of Kumeyaay Indians v. Lorinsky, 116 Conn.App. 144, 157, 976 A.2d 723 (2009).   The original law suit failed because the action was dismissed by agreement for want of jurisdiction.   It is the height of intellectual dishonesty for the defendants to enter into a dismissal by agreement and then, when service is effectuated in the present action, to employ tortured readings of the law to claim that the accidental failure of suit statute does not apply.¹

The defendants argue that the court should have applied the law of Davis v. Family Dollar Store, 78 Conn.App. 235, 236, 240-41, 826 A.2d 262 (2003), appeal dismissed, 271 Conn. 655, 859 A.2d 25 (2004) (timely delivery of process of prior action to sheriff, who did not make service on anyone at all and returned writ, summons and complaint to plaintiff over six months later was not sufficient to commence action for purpose of § 52-592) and not Rocco v. Garrison, supra, 268 Conn. 551 (improper or insufficient service can commence action for purposes of the accidental failure of suit statute).   As noted in the memorandum of decision, the distinction between Rocco and Davis turns on whether the defendants had actual notice of the prior action before the statute of limitations expired, to wit:  “[T]he plaintiffs' original action was ‘commenced,’ for purposes of the savings statute, when the defendant received actual notice of the action within the time period prescribed by the statute of limitations.   Thus, in our view, although the original action was not commenced in a timely manner under the applicable statute of limitations due to insufficient service of process, it nevertheless was commenced for purposes of the savings statute.”  (Emphasis added.)  Rocco v. Garrison, supra, 552-53.

The defendants maintain that “notice of an action is insufficient to establish jurisdiction,” citing Goldstein v. Fischer, 200 Conn. 197, 201, 510 A.2d 184 (1986).   This is, of course, an accurate statement of law, but it does not apply to the present matter.   The issue in the present action is whether the prior action can be deemed to have been commenced, despite ineffective service of process, for the purpose of bringing the present action for the same cause under the accidental failure of suit statute.²  The Supreme Court in Rocco did not reach the issue of what constitutes actual notice sufficient to “commence” the prior action pursuant to the accidental failure of suit statute because, as noted by the defendants, actual notice was undisputed in that case.   The appellate courts have not yet addressed this specific issue.

To escape the conclusion that the accidental failure of suit statute applies, the defendants argue from a flawed premise that the burden is on the plaintiff to prove that the defendants were in fact served in the prior action when the defendants presented some evidence that they were not.   As the party moving for summary judgment, the defendants had the burden to demonstrate that they were entitled to judgment as a matter of law.   Thus, they had the burden to prove that the prior action did not “commence” for the purpose of the accidental failure of suit statute.   Part of the defendants' burden included a showing of how or when they received actual notice of the prior suit.   The defendants adduced no evidence in any of their memoranda as to how or when they received actual notice of the prior action.   They did not meet their burden in their motion for summary judgment and have not presented any new evidence in their motion to reargue that alters this conclusion.

For the forgoing reasons, the defendants' motion to reargue is denied.

Wilson, J.

FOOTNOTES

FN1. See, for example, note 5 of the memorandum of decision, in which the court places in context the quote from Ruddock v. Burrowes, 243 Conn. 569, 577-78, 706 A.2d 967 (1998) relied on by the defendants for one of their arguments..  FN1. See, for example, note 5 of the memorandum of decision, in which the court places in context the quote from Ruddock v. Burrowes, 243 Conn. 569, 577-78, 706 A.2d 967 (1998) relied on by the defendants for one of their arguments.

FN2. “If the [accidental failure of suit] statute requires effective commencement of the original action, and commencement requires valid service of process, as the defendant argues, then any failure of service of process would require us to conclude that no action had been commenced and that the statute does not apply.   This would render superfluous one of the principal purposes of the [accidental failure of suit] statute, namely, to save those actions that have failed due to insufficient service of process ․ To accept the view that improper or insufficient service defeats such an action would undermine the statute's clear and unambiguous meaning and preclude the filing of a second action ․ We therefore conclude that the term ‘commenced’ as used in § 52-592 to describe an initial action that ‘has failed ․ to be tried on the merits because of insufficient service;’ General Statutes § 52-592(a);  cannot be construed to mean good, complete and sufficient service of process, as the defendant contends.”  Rocco v. Garrison, supra, 550-51..  FN2. “If the [accidental failure of suit] statute requires effective commencement of the original action, and commencement requires valid service of process, as the defendant argues, then any failure of service of process would require us to conclude that no action had been commenced and that the statute does not apply.   This would render superfluous one of the principal purposes of the [accidental failure of suit] statute, namely, to save those actions that have failed due to insufficient service of process ․ To accept the view that improper or insufficient service defeats such an action would undermine the statute's clear and unambiguous meaning and preclude the filing of a second action ․ We therefore conclude that the term ‘commenced’ as used in § 52-592 to describe an initial action that ‘has failed ․ to be tried on the merits because of insufficient service;’ General Statutes § 52-592(a);  cannot be construed to mean good, complete and sufficient service of process, as the defendant contends.”  Rocco v. Garrison, supra, 550-51.

Wilson, Robin L., J.