Michael Ottoshavett v. LLC (2012)

MEMORANDUM OF DECISION

I

PROCEDURAL BACKGROUND

The parties in this action are the plaintiff Michael Ottoshavett and the defendants Plumtrees Plaza, LLC, Reliable Excavating Co., Inc. (“Reliable”), Hawley Sweeping, Inc. (“Hawley Sweeping”), and Hawley Management Company, Inc.

The plaintiff commenced this action on July 23, 2010 and asserted negligence claims arising out of a January 23, 2009 slip and fall at 63 Newton Road in Danbury, Connecticut as against defendant Plumtrees Plaza, LLC, Blockbuster, Inc. (“Blockbuster”) and Hawley Management Company, Inc. On September 24, 2010, the defendant Blockbuster filed a notice of bankruptcy which triggered an automatic stay of the action as against that defendant.   On January 21, 2011, the plaintiff filed a withdrawal of claims as against defendant Blockbuster.   On January 27, 2011, the plaintiff filed a motion to cite in two additional defendants Reliable Excavating Co., Inc. and Hawley Sweeping and the motion was granted by the court on February 7, 2011.   On March 1, 2011, service of the summons and amended complaint was made on these defendants.

In his amended complaint served on March 1, 2011, the plaintiff asserted negligence claims against Hawley Sweeping alleging that it was the duty of defendant to exercise care to maintain the premises, including the parking lot and the plaza walkway in a reasonably safe condition for business invitees, including the plaintiff.   Specifically, in Count Four of the Amended Complaint the plaintiff alleged that the defendant Hawley Sweeping:  (a) allowed an accumulation of ice to remain upon the walkway and parking lot in an area where it knew residents and/or the public were likely to walk making it slippery and dangerous for use;  (b) maintained the walkway and parking lot in the aforesaid condition;  (c) failed to remedy said slippery and dangerous condition by sanding, salting and/or removing or causing the ice to be sanded, salted and/or removed;  (d) failed to inspect said walkway and parking lot in order to ascertain that there was a slippery and dangerous condition there and then existing;  (e) failed to give warning to the plaintiff of the slippery and dangerous condition existing on the walkway and parking lot;  (f) it created a defective condition by negligently, designing, repairing and/or maintaining the roof overhang and/or its gutter system in such a manner as to cause water to run off the overhang directly to the walkway where it accumulated and froze;  (g) failed to place warning signs, blockades or barriers around the area where the run-off water was accumulating and freezing;  and (h) failed to fix, repair, divert or otherwise remedy the existing conditions that caused water to run off the roof overhang and accumulate and freeze on the walkway and parking lot.

On September 15, 2011, the defendant Hawley Sweeping moved for summary judgment on Count Four of the Amended Complaint on the grounds that the claims set forth therein were barred by the two-year statute of limitations set forth in General Statutes § 52–584.   On November 18, 2011, the plaintiff filed his objection to the defendant's motion for summary judgment.   On January 3, 2012, this court heard oral argument on the motions.

II

DISCUSSIONA. Summary Judgment

The defendant has moved for summary judgment that the claims asserted by the plaintiff in Count Four of its Amended Complaint as against it are barred by the two-year statute of limitations set forth in General Statutes § 52–584.   The plaintiff does not dispute that he served his amended complaint on defendant Hawley Sweeping on March 1, 2011 more than two years after his January 23, 2009 fall, but claims that the statute of limitations was tolled for one hundred and twenty days due to defendant Blockbuster's filing for bankruptcy on 9/24/11.

“Practice Book § 17–49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.   In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.”  (Internal quotation marks omitted.)  Provencher v. Enfield, 284 Conn. 772, 790–91, 936 A.2d 625 (2007).  “[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way ․ [A] summary disposition ․ should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party ․ [A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed.”  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).

“[T]he genuine issue aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred ․ A material fact has been defined adequately and simply as a fact which will make a difference in the result of a case.”   (Citations omitted;  internal quotation marks omitted.)  Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).  “In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact.   The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to judgment as a matter of law.   The courts hold the movant to a strict standard.   To satisfy his burden, the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ․ As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ․ When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ․ It is not enough, however, for the opposing party merely to assert the existence of a disputed issue.   Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17–45].”  (Internal quotation marks omitted.)  Zielinski v. Kotsoris, 279 Conn. 312, 318–19, 901 A.2d 1207 (2006).  “In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist.”  Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).

B. Automatic Stay of Bankruptcy

The plaintiff contends that summary judgment should be denied as defendant Blockbuster filed for bankruptcy on September 24, 2010 and an automatic stay went into effect which tolled the statute of limitations.   The defendant Hawley Sweeping does not dispute that an automatic stay of these proceedings went into effect as to defendant Blockbuster.   It contends, however, that the statute of limitations was not tolled as to nondebtor defendant Hawley Sweeping.

This court first considers the threshold issue of whether the automatic stay provision of the federal bankruptcy law, 11 U.S.C. § 362 pertains to the defendant Hawley Sweeping.   In this case, the defendant Blockbuster was the debtor in the bankruptcy proceeding and the defendant Hawley Sweeping was a nondebtor in the proceeding.  “Section 362 of the Bankruptcy Code stays any and all postpetition filing.   Any filing constitutes a judicial act directed toward the disposition of the case in violation of the automatic stay ․ The stay of [S]ection 362 is extremely broad in scope and ․ should apply to almost any type of formal or informal action against the debtor or the [debtor's] property ․” Krondes v. O'Boy, 69 Conn.App. 802, 808, 796 A.2d 625 (2002).

However, “[a]s a general rule, the filing of a ․ bankruptcy petition does not enjoin litigation against nondebtors.”  Burritt Interfinancial Bancorporation v. Wood, 33 Conn.App. 401, 404, 635 A.2d 879 (1994).  “It is well established that a case against a bankrupt debtor and a nonbankrupt debtor, although stayed against the bankrupt debtor may nonetheless proceed against the nonbankrupt debtor.”  Id., at 405.   Indeed, “[i]t is fundamental under federal bankruptcy law that the automatic stay operates for the benefit of the debtor and trustee only, and gives other parties interested in property affected by the automatic stay no substantive or procedural rights.”  Metro Bulletins Corp. v. Sobeleski, 30 Conn.App. 493, 498, 620 A.2d 1314, cert. granted on other grounds, 225 Conn. 923, 625 A.2d 823 (1993).

“There is ․ limited authority for extending the stay to a nondebtor in special circumstances ․ A sufficient identity of interest has been recognized as satisfying the special circumstances requirement.”  (Citation omitted.)   Metro Bulletins Corp. v. Soboleski, supra, 30 Conn.App. 496–97.   Therefore, “[t]he automatic stay can apply to non-debtors, but normally does so only when a claim against the non-debtor will have an immediate adverse economic consequence for the debtor's estate.   Examples are a claim to establish an obligation of which the debtor is a guarantor, a claim against the debtor's insurer, and actions where there is such an identity between the debtor and the third-party defendant that the debtor may be said to be the real party defendant.”  (Citations omitted;  internal quotation marks omitted.)   Queenie, Ltd v. Nygard Int'l, 321 F.3d 282, 287 (2d Cir.2003).   However, before the merits of a party's identity in interest argument can be reached the party seeking the extension of the automatic stay must move for an extension of the automatic stay to the nondebtor in the bankruptcy court.  Ingersoll–Rand Financial Corporation v. Miller Mining Co., 817 F.2d 1424, 1427 (9th Cir.1987);  Metro Bulletins Corp. v. Soboleski, supra, 30 Conn.App. 497–98.

In this case, the plaintiff in his opposition to the defendant Hawley Sweeping's motion for summary judgment has offered virtually no evidence in his memorandum that the defendant Hawley Sweeping had an identity of interest with defendant Blockbuster or that a claim against defendant Hawley Sweeping would have an immediate adverse economic consequence for the debtor Blockbuster's estate.   Even if the plaintiff could establish an identity of interest with defendant Blockbuster, it is undisputed that the plaintiff did not file for an extension of the automatic stay to the nondebtor Hawley Sweeping in the bankruptcy court.   Since the plaintiff undisputedly did not apply for an extension of the automatic stay to nondebtor Hawley Sweeping in the bankruptcy court, the automatic stay was not extended to the defendant Hawley Sweeping.

C. Relation Back Doctrine

The plaintiff next contends that even if the automatic stay was not extended to defendant Hawley Sweeping, the amended complaint relates back to the timely filing of the plaintiff's original complaint as the defendant Hawley Sweeping and Hawley Management, Inc. are closely related and defendant Hawley Sweeping had fair notice of the plaintiff's original action.   The defendant Hawley Sweeping filed no reply to the plaintiff's relation back argument.

The relation back doctrine “provides that an amendment relates back when the original complaint has given the party fair notice that a claim is being asserted stemming from a particular transaction or occurrence, thereby serving the objectives of our statute of limitations, namely, to protect parties from having to defend against stale claims.”  Wright v. Teamsters Local 559, 123 Conn.App. 1, 7, 1 A.3d 207 (2010).  “[A] party properly may amplify or expand what has already been alleged in support of a cause of action, provided the identity of the cause of action remains substantially the same.”  Sherman v. Ronco, 294 Conn. 548, 555, 985 A.2d 1042 (2010).

The Connecticut Supreme Court has “previously recognized that our relation back doctrine is akin to rule 15(c) of the Federal Rules of Civil Procedure, which provides in pertinent part ․ [w]henever the claim or defense asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading ․ The policy behind rule 15(c) is that a party, once notified of litigation based upon a particular transaction or occurrence, has been provided with all the notice that statutes of limitations are intended to afford.”  (Citations omitted;  internal quotation marks omitted.)  Sherman v. Ronco, supra, 294 Conn. 555–56.

Therefore, “[w]hile an amendment that corrects a minor defect relates back to the date of the original complaint, one stating a separate cause of action is barred by the statute of limitations.   Further, if an amendment is deemed to be a substitution or entire change of a party, it will not be permitted ․ If the amendment does not affect the identity of the party sought to be described in the complaint, but merely corrects the description of that party, the amendment will be allowed ․ The test applied in order to determine whether an amendment in correcting a misnomer as opposed to substituting a new party or claim requires consideration of the following:  (1) whether the defendant had notice of institution of the action;  (2) whether the defendant knew he was a proper party;  and (3) whether the defendant was prejudiced or mislead in any way.”   Palazzo v. Delrose, 91 Conn.App. 222, 226, 880 A.2d 169, cert. denied, 276 Conn. 912, 886 A.2d 926 (2005).

In the present case, Count Four of the Amended Complaint is a mere restatement of the claims asserted in the original complaint as against Hawley Management Company, Inc. with a differently named defendant Hawley Sweeping.   In the exhibits attached to his memorandum in opposition to motion for summary judgment, the plaintiff has also offered evidence that the defendant Hawley Sweeping has:  (1) the same business address as the defendants Plumtrees Plaza, LLC and Hawley Management Company, Inc.;  (2) the same agent for service of process Gary W. Hawley with the same service of process address;  and (3) the president of cite-in defendant Hawley Sweeping is the vice president of defendant Hawley Management Company, Inc. The plaintiff contends that by virtue of the foregoing, the defendant Hawley Sweeping had notice of the filing of the original complaint and the claims asserted therein and that under the relation back doctrine, the claims asserted as against defendant Hawley Sweeping on March 1, 2011 relate back to the timely filing of the original complaint in 2010.   The defendant Hawley Sweeping has not refuted any of the evidence offered by the plaintiff.

In reviewing the exhibits offered in support of the plaintiff's position, the court concludes that while the defendants Hawley Management Company, Inc. and Hawley Sweeping may have a close relationship, the plaintiff's claim that the defendant Hawley Sweeping had actual notice of this proceeding and whether it knew it was a proper party to this action is based on conjecture and surmise.   The plaintiff has offered no evidence by way of affidavit or deposition testimony as to the fact that the defendant Hawley Sweeping had actual notice of the institution of the action or that it knew it was a proper party to this action.   Similarly, the defendant Hawley Sweeping, the moving party on this motion for summary judgment, has offered no evidence to establish it did not have notice of this action, did not know it was a party in this proceeding or that it was mislead or prejudiced in any way by not being joined as a party in the original complaint.

Accordingly, the court finds that a genuine issue of material fact exists as to whether Hawley Sweeping had notice of the institution of this action and whether Hawley Sweeping knew that it was a proper party to this action.   Accordingly, the defendant Hawley Sweeping's motion for summary judgment as to Count Four of the Amended Complaint is denied.

III

CONCLUSION

Based on the foregoing, the defendant Hawley Sweeping's motion for summary judgment as to Count Four of the Amended Complaint is denied.

BY THE COURT

OZALIS, J.

Ozalis, Sheila A., J.