Erika Torres v. Alexander A. Carrese et al. (2011)

MEMORANDUM OF DECISION

For over two hundred years it has been a rule of law in Connecticut that evidence that a letter was correctly addressed and duly posted raises the presumption that it was received.   The President, Directors, and Company of Hartford Bank v. Hart, 3 Day 491, 492–93 (Conn.1807).   This “mailbox rule” is still the law.   See Irving v. Statewide Grievance Committee, 96 Conn.App. 335, 340, 900 A.2d 77 (2006).   A form of the rule is reflected in the Connecticut Practice Book. Practice Book § 10–14.   The issue before the court is whether the defendant Yarri served the plaintiff with a request to revise her complaint.   The plaintiff did not file an objection to the request to revise.   Under the rules, a request to revise “shall be deemed to have been automatically granted by the judicial authority on the date of filing and shall be complied with by the party to whom it is directed within thirty days of the date of filing the same, unless within thirty days of such filing the party to whom it is directed shall file objection thereto.”  Practice Book § 10–37(a).   The plaintiff claims that she only recently learned of the filing of the request to revise.   She moves for an extension of time to respond to it.   Other claims against Yarri sounding in medical negligence were dismissed by the court last month.

On April 30, 2010, the plaintiff filed an amended complaint.   On August 3, 2010, Yarri filed a request to revise.   The defendant certified service and mailed the pleading to the plaintiff's attorney:  “Jonathan Perkins, Esq., Perkins & Associates, One Bradley Road, Ste 706, Woodbridge, Ct 06525.”   The plaintiff did not object to the request.   The plaintiff claims her lawyer never received the request to revise and that he had filed a change of address in early 2007, changing his address to 30 Lucy Street, Woodbridge, Ct 06525.

In general “[i]t is the responsibility of counsel ․ filing the same to serve on each other party who has appeared one copy of every pleading subsequent to the original complaint ․ When a party is represented by an attorney, the service shall be made upon the attorney unless service upon the party is ordered by the judicial authority.”  Practice Book § 10–12.

“Service upon the attorney ․ may be by delivering a copy or by mailing it to the last known address of the attorney ․ Service by mail is complete upon mailing.”  Practice Book § 10–13 ¹ “Proof of service pursuant to Section 10–12 ․ may be made ․ by a certificate of counsel for the party filing the pleading or paper ․ Proof of service shall include the address at which such service was made.”  Practice Book § 10–14(a).   Whether there has been proper service is a question of fact for the court.  Batory v. Bajor, 22 Conn.App. 4, 9, 575 A.2d 1042, cert. denied, 215 Conn. 812, 576 A.2d 541 (1990).

An evidentiary hearing was held on the issue of whether Yarri properly served the plaintiff's counsel, specifically, whether the request to revise was mailed to the proper address.

This action was made returnable to the judicial district of New Haven.   It later found its way to the judicial district of Waterbury and still later to the judicial district of Fairfield.   When the plaintiff commenced this action the address of her attorney on the summons was One Bradley Road, Ste 706, Woodbridge, Ct 06525.   Her attorney's appearance was entered with this address.  Practice Book § 3–1.   This was the address to which opposing counsel were required to mail pleadings.

The plaintiff claims that her attorney changed his address during the pendency of this action, in or around early 2007.   If he did so, he was required to comply with Practice Book § 2–26, which provides:  “An attorney shall send prompt written notice of a change in mailing and street address to the statewide grievance committee on a registration form approved by the statewide bar counsel and to the clerks of the courts where the attorney has entered an appearance.”   Although there is no Practice Book rule requiring the clerk or the judicial branch to give notice to other counsel of record of such change of address, the court takes judicial notice that it is the practice of the judicial branch to do so.

A trial court, of course, may take judicial notice of the court file in the case before it;  Nichols v. Nichols, 126 Conn. 614, 620 (1940);  and likewise, pursuant to § 2–2(b) of the Code of Evidence, take judicial notice of matters reflected the judges' judicial “Edison” web site.   See Wong v. Astrue, USDC, No. C 08–02432 SBA (N.D.Cal.12–18–2008).   The web site reflects that beginning on January 25, 2007 and ever since, notices have been sent by the judicial branch to the Lucy Street address of the plaintiff's attorney.   On January 19, 2007, in connection with a motion to open a judgment of dismissal, an attorney with the office of the plaintiff's attorney filed an affidavit stating, inter alia, that “during the last two weeks of December [2006], the firm was moving its main office from One Bradley Road, Woodbridge to 30 Lucy Street, Woodbridge.”   The defendants therefore had actual notice of the change of address of the plaintiff's attorney and of its new address.

Moreover, the law firm representing the defendant Carrese has for years certified its pleadings to the plaintiff's attorney at the Lucy Street address.   The law firm that previously represented Yarri certified pleadings to the plaintiff's attorney at the Lucy Street address.   Even the law firm currently representing Yarri has generally certified its pleadings to the plaintiff's attorney at the Lucy Street address.   Unfortunately, the plaintiff's attorney until recently has continued to use pleading paper bearing the Bradley Road address in the margins.

The court finds that the plaintiff's attorney properly filed a change of address pursuant to Practice Book § 2–26 and that the defendant Yarri did not serve the plaintiff with a copy of his request to revise, pursuant to Practice Book § 10–13.   The plaintiff's motion for an extension of time to respond to the request to revise is granted.

BY THE COURT

Bruce L. Levin

Judge of the Superior Court

FOOTNOTES

FN1. Service may also be made by handing the pleading to the attorney.   There is no claim that this was done here.   Service of a pleading may also be made by “delivery to the last known electronic address of the attorney or party, provided that electronic delivery was consented to in writing by the person served.”  Practice Book § 10–13.   There is no claim that the plaintiff consented to electronic delivery..  FN1. Service may also be made by handing the pleading to the attorney.   There is no claim that this was done here.   Service of a pleading may also be made by “delivery to the last known electronic address of the attorney or party, provided that electronic delivery was consented to in writing by the person served.”  Practice Book § 10–13.   There is no claim that the plaintiff consented to electronic delivery.

Levin, Bruce L., J.