Luis Zayas v. LLC (2011)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT, No. 125

FACTS

On June 15, 2007, the plaintiff, Luis Zayas, filed a complaint with this court against several parties, including Royal Financial Services, LLC (Royal) and Maurizio Lancia, arising out of the plaintiff's purchase of real estate in December 2005.   The case was transferred to the Hartford Superior Court's complex litigation docket on March 4, 2008.   A judgment of nonsuit was entered in favor of the defendants Royal and Lancia by ¹

“Deemed a saving statute, § 52–592 enables plaintiffs to bring anew causes of action despite the expiration of the applicable statute of limitations ․ In order to fall within the purview of § 52–592, however, the original lawsuit must have failed for one of the reasons enumerated in the statute.”  (Citation omitted;  internal quotation marks omitted.)  Skinner v. Doelger, 99 Conn.App. 540, 553, 915 A.2d 314, cert. denied, 282 Conn. 902, 919 A.2d 1037 (2007).   Section 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 ․ the action has been otherwise avoided or defeated ․ for any matter of form ․ or if a judgment of nonsuit has been rendered ․ the plaintiff ․ may commence a new action ․ for the same cause at any time within one year after the determination of the original action ․” [I]n a long line of cases, [the Supreme Court] ha[s] held that § 52–592(a) is remedial in nature and, therefore, warrants a broad construction.”  Ruddock v. Burrowes, 243 Conn. 569, 575, 706 A.2d 967 (1998).  “To enable a plaintiff to meet the burden of establishing the right to avail himself or herself of the statute, a plaintiff must be afforded an opportunity to make a factual showing that the prior dismissals was a ‘matter of form’ in the sense that the plaintiff's noncompliance with a court order occurred in circumstances such as mistake, inadvertence or excusable neglect.”  Id., 576–77.

In Ruddock v. Burrowes, supra, 243 Conn. 576–77, the 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., 576;  rather, whether the dismissal of a prior proceeding permitted a plaintiff to obtain the benefit of the statute “depends upon the nature and the extent of the conduct that led to the disciplinary dismissal.”  Id., 570.   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.   Id., 576–77.

Here, the plaintiff argues that the prior dismissal in this case was a “matter of form” because his noncompliance with the court order was a mistake, inadvertence or excusable neglect.   He contends that the complexity of the case and the number of law firms representing nine different parties led the plaintiff to fail to object to the defendants' request to revise.   He contends that his mistake was not egregious as he attempted in good faith to amend the complaint six times before the court granted the defendants' motion for nonsuit.

The defendants strongly disagree with the plaintiff's characterization of his “mistake” leading to the judgment of nonsuit.   A thorough procedural history of the prior action in the Hartford Superior Court is necessary for the resolution of the pending motion in this case.   The defendants filed a request to revise in the original action on January 2, 2008.   The request was not objected to by the plaintiff and was therefore made binding.   At a case status conference on April 21, 2008, Judge Langenbach ordered the plaintiff to comply with the request to revise within 20 days.   After the plaintiff failed to do so, the defendants filed a motion for nonsuit on May 28, 2008.   The plaintiff filed a request to amend the complaint on October 14, 2008, to which the defendants objected.   Judge Miller ordered the defendants on November 24, 2008 to file a supplemental objection detailing the manner in which the requested revisions were not properly addressed by the proposed amended complaint.   On January 5, 2009, Judge Miller sustained the defendants' objection to request leave to amend the complaint.   Judge Miller held that the proposed amended complaint did not fully address the issues raised in the defendants' request to revise.   Judge Miller ordered the plaintiff to revise his complaint by January 30, 2009 or a nonsuit would be entered.   On January 30, 2009, the plaintiff filed another request for leave to amend complaint, to which the defendants again objected, arguing that the proposed amended complaint still failed to comply with the court's order and the request to revise.

On February 23, 2009, Judge Miller, in a memorandum of decision, sustained the defendant's objection, holding that the “plaintiff has in most instances failed to revise his complaint in response to the request to revise.”   Judge Miller concluded that the plaintiff failed to comply with the court's January 6, 2009 order and thus entered a judgment of nonsuit in favor of the defendants.   The plaintiff sought re-argument and reconsideration of Judge Miller's decision to grant judgment in favor of the defendants.   In a memorandum of decision dated April 29, 2009, Judge Miller denied the plaintiff's motion.   Judge Miller found that none of the arguments raised by the plaintiff “constitute good cause to vacate the judgment of nonsuit.   Most importantly, the court found that with few exceptions, plaintiff still had not revised his complaint in compliance with a request to revise which has now been outstanding for almost sixteen months.”   The court also dismissed the plaintiff's contention that the defendants were harassing the plaintiff.   Instead, Judge Miller concluded the defendants were “excessively patient with the plaintiff's failure to revise his complaint as required.”   The court clarified that “[t]he plaintiff was nonsuited because he failed to obey a specific directive of the court, which directive was the culmination of an overly long procedural struggle to close the pleadings as between him and these defendants.   There is no reason why the judgment of nonsuit should not stand.”   On May 19, 2009, the plaintiff filed a motion to open the judgment of nonsuit, which was denied on June 24, 2009.   Judge Miller also denied the plaintiff's motion to reconsider the court's denial of his motion to open on July 17, 2009.

“[Section] 52–592(a) does not guarantee that all cases will receive adjudication on their merits.   Construction of the statute should not be so liberal as to render a statute of limitations for bringing a cause of action ‘virtually meaningless.’  ․ Practice Book § 14–3 reflects the judicial branch's interest in having counsel prosecute actions with reasonable diligence.   Judges, faced with case flow management concerns, must enforce the pace of litigation coming before the court, rather than allowing the parties to do so.”  (Citation omitted;  internal quotation marks omitted.)  Gillum v. Yale University, 62 Conn.App. 775, 786, 773 A.2d 986, cert. denied, 256 Conn. 929, 776 A.2d 1146 (2001).  “From a policy perspective ․ although § 52–592 should be broadly construed because of its remedial nature, [o]ur judicial system cannot be controlled by the litigants and cases cannot be allowed to drift aimlessly through the system.   To reduce delay while still maintaining high quality justice, it is essential that we have judicial involvement in maintaining cases ․ Judges must be firm and create the expectation that a case will go forward on the specific day that it is assigned.”  (Internal quotation marks omitted.)  Vestuti v. Miller, 124 Conn.App. 138, 145–46, 3 A.3d 1046 (2010).  “Where ․ the hallmark of counsel's representation is a pattern of repeated delay, occasioning the utilization of judicial resources to enforce proper prosecution of cases brought before the court and necessitating several dismissals, our strong policy favoring a trial on the merits loses its applicability.”  Gillum v. Yale University, supra, 62 Conn.App. 787.

After a careful review of the relevant case law and the extensive procedural history of the original action, the court holds that the prior dismissal was not the result of mistake, inadvertence or excusable neglect.   As noted by Judge Miller in his decision denying the plaintiff's motion to reconsider its judgment of nonsuit, the plaintiff had not complied with a mandated request to revise for almost sixteen months.   The defendants were forced to file several motions and objections in an effort to compel compliance with their request.   In turn, Judge Miller issued several orders seeking to compel the plaintiff to comply with the request.   Judge Miller even expressly warned the plaintiff in his January 5, 2009 order that failure to revise the complaint would result in the entry of a nonsuit.   Yet, sixteen months after the defendants first attempted to compel the plaintiff to revise his complaint, the plaintiff still had not done so, even in the face of multiple motions by the defendants and court orders.   Judge Miller characterized his dismissal for nonsuit as the “fail[ure] to obey a specific directive of the court, which directive was the culmination of an overly long procedural struggle to close the pleadings.”

Accordingly, the court holds that as a matter of law, the plaintiff cannot state a cause of action under § 52–592.

Having concluded that the plaintiff cannot avail himself of the accidental failure of suit statute, the court must next determine whether there are any genuine issues of material fact as to whether the plaintiff's claims are barred by their respective statutes of limitations.   The plaintiff's complaint alleges conduct occurring between September and December 2005.   The present case was commenced by service on the defendants on September 12, 2009, roughly four years after the alleged events took place.

With respect to the plaintiff's tort claims of fraud, intentional misrepresentation, breach of fiduciary duty and civil conspiracy, General Statutes § 52–577 governs.  Section 52–577 provides:  “No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.”   With respect to the plaintiff's CUTPA claim, General Statutes § 42–110g(f) provides that an action for violation of CUTPA “may not be brought more than three years after the occurrence of a violation of this chapter.”   Finally, with respect to the negligent misrepresentation claim, General Statutes § 52–584 provides in relevant part:  “No action to recover damages for injury to the person, or to real or personal property, caused by negligence ․ shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of ․”

It is undisputed that more than three years have passed since the acts in the complaint allegedly occurred.   Thus, there is no genuine issue of material fact that the statutes of limitations bar these claims.   Having established that § 52–592 does not apply in this case and that the applicable statutes of limitations bar each of the plaintiff's claims, the defendants have met their burden, and they are entitled to judgment as a matter of law.

CONCLUSION

Based on the foregoing, the court hereby grants the defendants Royal Financial Services, LLC and Maurizio Lancia's motion for summary judgment.

Martin, J.

FOOTNOTES

FN1. The previous action contained a claim for breach of contract against Royal, which was not included in this pending action..  FN1. The previous action contained a claim for breach of contract against Royal, which was not included in this pending action.

Martin, Robert A., J.