Janet Messina v. Tawgativ, Inc. et al. (2011)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT # 124

On December 14, 2007, the plaintiff commenced her initial action against Tawgativ, Inc. (“Tawgativ”) and James D. Young Co. Tawgativ then filed an apportionment complaint against Cherry Hill Construction Co. (“the apportionment defendant”), the relevant defendant in this order, and the plaintiff filed a direct action complaint against the apportionment defendant.   The plaintiff's action was nonsuited as to Tawgativ for failure to comply with discovery requests, and her subsequent motion to reopen judgment of nonsuit was denied.   She then commenced the present action against Tawgativ on March 2, 2009, which she asserts was properly brought pursuant to General Statutes § 52–592.   The plaintiff, however, withdrew her first action as to the apportionment defendant on May 18, 2009.   Tawgativ filed an apportionment complaint against the apportionment defendant on August 4, 2009, and the plaintiff subsequently filed a direct action complaint against the apportionment defendant on October 5, 2009.

The apportionment defendant moves for summary judgment on the ground that, inter alia, the plaintiff's present action against the apportionment defendant was filed after the applicable statute of limitations expired.  “No action to recover damages for injury 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.”   General Statutes § 52–584.   The plaintiff appears to have testified that the latest date that she realized her property was missing was March 1, 2006.   The return date on her original complaint, however, is March 2, 2009, which is beyond the applicable statute of limitations.

The defendant further argues that the plaintiff cannot avail herself of the “saving statute,” § 52–592.   That statute 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 ․ 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 or after the reversal of the judgment.”  “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 ․ Although § 52–592 should be broadly construed because of its remedial nature, it should not be construed so broadly as to hamper a trial court's ability to manage its docket by dismissing cases for appropriate transgressions.”  (Internal quotation marks omitted.)   Viejas Band of Kumeyaay Indians v. Lorinsky, 116 Conn.App. 144, 157, 976 A.2d 723 (2009).

The Supreme Court has emphasized, however, that a plaintiff who voluntarily withdraws her action cannot avail herself of § 52–592.  “[Section] 52–592(a) affords no relief in cases in which a plaintiff's prior action was dismissed because the plaintiff withdrew it voluntarily.”  Ruddock v. Burrowes, 243 Conn. 569, 577, 706 A.2d 967 (1998);  see Parrott v. Meacham, 161 Conn. 573, 290 A.2d 335 (1971) (plaintiff could not bring suit pursuant to § 52–592 after withdrawing initial action, because “withdrawal ․ cannot by the most liberal construction constitute accidental failure of suit for matter of form”);  Connecticut Light & Power Co. v. Tilcon Connecticut, Inc., Superior Court, judicial district of Hartford, Docket No. CV 08 5021372 (January 7, 2009, Langenbach, J.T.R.) (plaintiff that withdrew initial lawsuit pursuant to agreement between plaintiff and defendant could not avail itself of § 52–592).   Here, the plaintiff voluntarily withdrew her first action as to Cherry Hill on May 18, 2009.   As a result, the relief provided by § 52–592 is unavailable to the plaintiff.

The plaintiff does not raise the issue of whether her complaint was properly brought under General Statutes § 52–102b(d).  That statute provides:  “Notwithstanding any applicable statute of limitation or repose, the plaintiff may, within sixty days of the return date of the apportionment complaint served pursuant to subsection (a) of this section, assert any claim against the apportionment defendant arising out of the transaction or occurrence that is the subject matter of the original complaint.”   The plaintiff filed her direct action complaint against the apportionment complaint within sixty days of the apportionment complaint pursuant to § 52–102b(d).  Her complaint fails under § 52–102b(d) also, however, because the defendant's apportionment complaint on which the plaintiff's complaint is based is itself untimely filed.   See General Statutes § 52–102b(a) (an apportionment defendant's apportionment complaint “shall be served within one hundred twenty days of the return date specified in the plaintiff's original complaint”).   The return date in the plaintiff's original complaint is March 31, 2009.   The defendant, however, served the apportionment defendant's agent for service of process on July 31, 2009, which is beyond the one hundred twenty day limit required by § 52–102b(a).   See LeClair v. Bankboston, N.A., Superior Court, judicial district of New Britain, Docket No. CV 99 0497186 (January 24, 2001, Kocay, J.) (plaintiff's “counterclaim” fails where apportionment complaint on which it is based is untimely filed under § 52–102b(a), despite fact that plaintiff timely filed claim within 60 days of apportionment complaint pursuant to § 52–102b(d)).

Accordingly, the court grants the defendant's motion for summary judgment.

BY THE COURT

Richard E. Burke, Judge

Burke, Richard E., J.