Steven Wolfe v. Pierce Kearney et al. (2011)

MEMORANDUM OF DECISION

This suit was commenced in January 2008.   The plaintiff, Steven R. Wolfe (“Wolfe”), a home-owner, sets forth twelve counts against the defendant, Pierce Kearney (“Kearney”), a contractor.   The first eight counts set forth causes of action for negligence in the construction of additions to the plaintiff's house in 2001-2003.   The ninth count is based upon negligently caused bodily injury, and the tenth count is based upon negligently caused emotional distress.   The eleventh and twelfth counts set forth fraudulent conveyance claims.   Before the court is a motion for summary judgment (# 125) which has been filed by Kearney on the basis that this suit was commenced beyond the applicable negligence statute of limitations, C.G.S. § 52-584.   Wolfe agrees that § 52-584 would normally bar this action, but opposes the motion for summary judgment on the ground that the suit falls within the scope of the accidental failure of suit statute, C.G.S. § 52-592. § 52-592 provides that a plaintiff may “commence a new action ․ for the same cause” if a prior action “has failed ․ to be tried on its merits ․ for any matter of form ․ within one year.”

The factual history is long and winding.   It dates back to a previous suit (Suit I) brought in 2004 by Kearney against Wolfe for libel, slander and intentional infliction of emotional distress.   The defendant filed a counterclaim which sets forth essentially the same claims as are raised in the current suit (Suit II).   In March 2005 Kearney withdrew his complaint;  the counterclaims continued.   Suit I then meandered along for two years without much urgency.   Eventually, a trial date was selected for September 18, 2007 despite the fact that the pleadings were not closed.   On June 1, 2007 Suit I was dismissed as part of a dormancy program for failure to have the pleadings closed.   The court granted a motion to open the dismissal.   Following a pretrial conference on August 27, 2007 the court issued an order confirming the trial date of September 18, 2007 and precluding the use of any experts not already disclosed.   At the trial management conference on September 14, 2007, Wolfe's attorney informed the court that his health would not permit him to handle the trial of this case.   The court reluctantly granted a continuance of the trial until November 14, 2007 to permit Wolfe to obtain new counsel.   On October 19, 2007 Wolfe filed a pro se appearance and a motion to continue the trial on the ground that he had been unable to find an attorney to represent him and that he was scheduled for replacement of a pacemaker/defibrillator “during the week of the 19th of November 2007.”   The motion to continue was denied by the court.

On November 14, 2007, the defendant appeared with counsel to commence trial but the plaintiff did not appear.   The court dismissed Wolfe counterclaims for failure to appear for trial.   Suit II was commenced by Wolfe through counsel approximately six weeks later.

In opposition to the motion for summary judgment, Wolfe argues that the dismissal of Suit I for his failure to appear for trial is a “matter of form” which should entitle him to make use of § 52-592.   Specifically, he relies upon the fact that he was pro se at the time and was undergoing pacemaker replacement during the week that trial was scheduled.   Wolfe's affidavit of January 4, 2011 certifies that he was in Toronto, Canada receiving treatment for heart disease from November 16, 2007 through November 30, 2007.   He went through pre-operative procedures from November 16, 2007 through November 22, 2007 and surgery for replacement of his pacemaker/defibrillator (ICD) on November 23, 2007.   He was observed after surgery for seven days until November 30, 2007.   The ICD was depleted and at risk of malfunction.   Wolfe states that had there been a ICD malfunction he would have been at serious risk of death.   Attached to the affidavit is a letter from Wolfe's cardiologist which confirms his allegations.

Wolfe has cited the court to several decisions in which resort to § 52-592 was permitted after an initial suit was dismissed because of health problems of a party or an attorney.   See, Tellar v. Abbott Laboratories, 114 Conn.App. (2009);  Sanchez v. Hartford Hospital, Superior Court, judicial district of Hartford, Docket No. 98579565 (July 3, 2001);  Field Company Builders v. Evans, Superior Court, judicial district of New Haven, Docket No. 064017867 (August 22, 2007);  Salvas v. Halperin, Superior Court, judicial district of Windham, Docket No. 030071552 (May 5, 2005);  Chan v. Carter, Superior Court, judicial district of New London, Docket No. 4000389 (May 17, 2005).   In general, these cases hold that dismissal of the first action was based upon a matter of form.   This determination was made by the court's finding as a matter of fact that the dismissal of the first action was the result of mistake, inadvertence or excusable neglect, rather than egregious conduct or gross negligence on the part of the plaintiff or his attorney.  Plante v. Charlotte Hungerford Hospital, 300 Conn. 33 (2011).

Here, the court feels it has no choice but to find that Kearney has failed to show that there is no material issue of fact and that the dismissal of Suit I was not a matter of form.   The plaintiff, who was then unrepresented, was being treated for a serious medical condition during the time that the trial was scheduled.   That treatment has been substantiated by documentation from Wolfe's doctor which was not provided to the court when Wolfe moved to continue the trial on October 19, 2007.   For this reason, the motion for summary judgment must be denied.

BY THE COURT

John W. Pickard

Pickard, John W., J.