Courtney Trehern v. Roy Vars (2012)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT # 110

FACTS

This action is for damages and costs arising from a motor vehicle collision which allegedly occurred on or about June 17, 2008, in Norwich.   On May 18, 2011, the plaintiff, Courtney Trehern, commenced this action by service of process upon the defendant, Roy Vars. In her complaint, the plaintiff alleges the following relevant facts.   The plaintiff commenced a previous action against the defendant on June 14, 2010 (the initial action).   On or about that date the plaintiff delivered a summons and complaint to marshal Travis Romano and requested that Romano serve the defendant at his usual domicile at 238 Lester Road in Griswold.   The initial action failed to be tried on its merits because of insufficient service of process due to the default and/or neglect of Romano.   The present action is therefore brought pursuant to the accidental failure of suit statute, General Statutes § 52–592.

On July 1, 2011, the defendant filed his answer and special defense.   The defendant alleged in his special defense that the action is time barred because the plaintiff “failed to file her lawsuit within the Statute of Limitations pursuant to either ․ General Statutes § 52–592 and/or ․ General Statutes § 52–584 ․” On August 15, 2011, the plaintiff filed her reply to the defendant's special defense, denying every allegation set forth therein.

On September 8, 2011, the defendant filed a motion for summary judgment and memorandum in support of his motion, accompanied by exhibits.   On October 14, 2011, the plaintiff filed a memorandum in opposition to the defendant's motion with exhibits.   On October 20, 2011, the defendant filed a reply to the plaintiff's opposition memorandum.   The court heard oral argument on this matter at short calendar on October 24, 2011.

DISCUSSION

“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 as to any 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.)  Brooks v. Sweeney, 299 Conn. 196, 210, 9 A.3d 347 (2010).  “A material fact [is] a fact which will make a difference in the result of the case.”  (Internal quotation marks omitted.)  Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).  “[T]he 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 a judgment as a matter of law ․ 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.”  (Internal quotation marks omitted.)  Rockwell v. Quintner, 96 Conn.App. 221, 228, 899 A.2d 738, cert. denied, 280 Conn. 917, 908 A.2d 538 (2006).  “Once met, the burden shifts to the party opposing such a motion [to] provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.”  (Internal quotation marks omitted.)  James v. Valley–Shore Y.M.C.A., Inc., 125 Conn.App. 174, 178, 6 A.3d 1199 (2010), cert. denied, 300 Conn. 916, 13 A.3d 1103 (2011).

The defendant argues that his motion for summary judgment should be granted on the grounds that there is no genuine issue of material fact (1) concerning the running of the original statute of limitations and (2) regarding whether General Statutes § 52–592,¹ the accidental failure of suit statute, can be utilized in order to “save” the original failed lawsuit.   The defendant argues in his supporting memorandum that the original negligence action was never commenced.   Specifically, the defendant argues that although the plaintiff delivered the writ of summons and complaint to Romano, service was never made.   Consequently, § 52–592 cannot apply so as to authorize this second suit following expiration of the statute of limitations.

In her memorandum in opposition, the plaintiff counterargues that the marshal's attempts to serve process commenced the prior action pursuant to § 52–592.   Specifically, the plaintiff argues that the initial action commenced because the plaintiff delivered the writ, summons and complaint to Romano and Romano thereafter went to the defendant's address of record to effect service.   The plaintiff further argues that the failure of the prior action was the result of the fault and/or neglect of Romano.   In his reply memorandum, the defendant argues that the plaintiff misinterprets the law regarding when a prior action commences pursuant to § 52–592 and that it was the obligation of the plaintiff's counsel to ensure that the defendant was properly served with process.

In support of his arguments, the defendant submits the following evidence:  (1) a copy of Romano's sworn affidavit, (2) an uncertified copy of Romano's deposition and (3) an unauthenticated copy of an e-mail.²  Romano states in his affidavit that he “received true and attested copies of the original Writ, Summons and Complaint and the entire process prior to the statute [of limitations] date of June 17, 2010.”

At his deposition, Romano stated, inter alia, the following:  He went to the home at the address provided by the plaintiff for service of process.   He knocked on the door, but no one was there.   He checked the mailbox for a name, but the defendant's name was not on the mailbox.   He returned to the home twice and on each occasion no one was there.   He went to the post office and asked for verification that the defendant was living at that address but could not obtain verification.   The person or persons with whom he spoke at the post office said that “[t]hey don't send mail there to Roy Vars.” Romano then called the office of the plaintiff's counsel, stating that he could not find the defendant at that address and that they would have to look for another address or search the department of motor vehicles records.   He never heard back from the office and never received any verification that the message he left reached the attorney it was supposed to reach.   He did, however, receive a copy of an e-mail within the two weeks prior to his deposition, which was internal to the office of the plaintiff's counsel.

A copy of the e-mail was submitted with the defendant's memorandum in support.   The e-mail appears to be sent from Jeffrey Bartlett to Jason Burdick on June 22, 2010.   Its subject line is, “Travis Romano—DMV guy,” and the body of the message states in relevant part:

“Travis came by to pick up an eviction notice, and he asked me to tell you that ‘you need to do a search on that DMV guy, he no longer lives at that address.’   Hopefully this makes sense to you.”

At his deposition, Romano explained that the e-mail must have pertained to the present case for the following reasons:  (1) Burdick told him the week before the deposition that the e-mail pertains to the present case;  and (2) he did not recall, with respect to any other service in June 2010, attempting service and then requesting that the office of the plaintiff's counsel search the department of motor vehicles records.   Finally, Romano stated that he returned the summons and complaint to the office of the plaintiff's counsel on or before June 22, 2010, and that service was never made on the defendant in this case.

In opposition to the motion, the plaintiff submits the following evidence:  (1) an uncertified copy of a police accident report dated June 17, 2008, (2) an uncertified copy of a department of motor vehicles copy records request dated August 24, 2010, and (3) an uncertified excerpt of the same deposition of Romano as that presented by the defendant.   The relevant portion of the police accident report lists, as owner and operator # 2, Roy Vars, 238 Lester Road, Griswold.   The department of motor vehicles copy records request lists 238 Lester Road, Griswold as Roy Vars' “last known address on license record.”   The excerpt of Romano's deposition describes, as above, the steps Romano took to serve the defendant and the call Romano made to the office of the plaintiff's counsel.

The defendant, in submitting the affidavit of Romano, has met his initial burden of showing the absence of any genuine issue of material fact regarding the running of the original statute of limitations on June 17, 2010, and the plaintiff has offered no evidence to create a genuine issue of material fact as to that issue.   The question is whether the defendant has met his burden as to whether the initial action was commenced within the meaning of § 52–592 within the time limited by law.

Commencement of an Action Under § 52–592

The court will begin by briefly discussing the relevant statute of limitations.   The parties do not dispute that the applicable statute of limitations is General Statutes § 52–584, which provides in relevant part:  “No action to recover damages for injury to the person, or to ․ personal property, caused by negligence ․ shall be brought but within two years from the date when the injury is first sustained ․” “[T]here is no substantive distinction between the terms ‘bringing’ an action and ‘commencing’ an action.”  Rocco v. Garrison, 268 Conn. 541, 549, 848 A.2d 352 (2004).   Generally speaking, “under the law of our state, an action is commenced ․ when [the writ] is served upon the defendant.”  (Internal quotation marks omitted.)  Id.

General Statutes § 52–592 provides that so long as an initial action “commenced” within the statute of limitations period, a new action may be brought within one year of the determination or dismissal of the initial action if the initial action failed to be tried for any of the described reasons.   Section 52–592 provides in relevant part:  “(a) If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because of insufficient service or return of the writ due to unavoidable accident or the default or neglect of the officer to whom it was committed ․ the plaintiff ․ may commence a new action ․ for the same cause at any time within one year after the determination of the original action ․”

Section 52–592 “is remedial and is to be liberally interpreted.”  Ross Realty Corp. v. Surkis, 163 Conn. 388, 393, 311 A.2d 74 (1972).   It is “designed to insure to the diligent suitor the right to a hearing in court till he reaches a judgment on the merits ․ The important consideration is that by invoking judicial aid, a litigant gives timely notice to his adversary of a present purpose to maintain his rights before the courts.”  (Internal quotation marks omitted.)  Isaac v. Mount Sinai Hospital, 210 Conn. 721, 733, 557 A.2d 116 (1989), quoting Gaines v. New York, 215 N.Y. 533, 539, 109 N.E. 594 (1915) (Cardozo, J.).

Our Supreme Court has determined that “the term ‘commenced,’ as used in § 52–592 to describe an initial action that ‘has failed ․ to be tried on its merits because of insufficient service’ ․ cannot be construed to mean good, complete and sufficient service of process ․” (Citation omitted.)  Rocco v. Garrison, supra, 268 Conn. 551.   In Rocco, the plaintiffs filed a complaint with the clerk of the United States District Court for the District of Connecticut and then their counsel followed the procedure established by rule 4(d)(2) of the Federal Rules of Civil Procedure.  Rocco v. Garrison, supra, 544–45.   Under rule 4(d)(2), a defendant who receives notice in the manner prescribed has a duty to waive formal service.  Rocco v. Garrison, supra, 545–46.   In accordance with rule 4(d)(2), the plaintiffs' counsel sent several items to the defendant's home address, “including the summons and complaint, two copies of a notice and request for waiver of formal service and an envelope with sufficient postage for return of the signed waiver.”  Rocco v. Garrison, supra, 546.   The defendant received these items, but did not sign and return the waiver, and the statute of limitations expired before the plaintiffs' counsel could effect formal service.  Id. The District Court granted the defendant's motion for summary judgment because formal service was not made upon the defendant within the statute of limitations.  Id. The plaintiffs subsequently commenced a new action in state court pursuant to § 52–592.  Id. Our Supreme Court held that although the plaintiffs' counsel never made valid formal service within the limitations period, the initial action “was ‘commenced,’ for purposes of [§ 52–592], when the defendant received actual notice of the action within the time period prescribed by the statute of limitations.”  Rocco v. Garrison, supra, 552.

A decision of our Appellate Court, Davis v. Family Dollar Store, 78 Conn.App. 235, 826 A.2d 262 (2003), appeal dismissed, 271 Conn. 655, 859 A.2d 25 (2004), is often read together with Rocco by our trial courts.   See, e.g., Hird v. Iskra, Superior Court;  judicial district of New Britain, Docket No. CV 03 0520308 (December 14, 2004, Berger, J.) (38 Conn. L. Rptr. 410, 411).   Several of these courts have noted that our Supreme Court decided Rocco in the same year that it dismissed the Davis appeal on the grounds that certification was improvidently granted.   See, e.g., Illescas v. Needham, Superior Court, judicial district of Hartford, Docket No. CV 04 4005457 (August 10, 2006, Elgo, J.) (41 Conn. L. Rptr. 806, 807).

In Davis, the Appellate Court held that delivery of process to a sheriff ³ for service does not commence an action for § 52–592 purposes.   Davis v. Family Dollar Store, supra, 78 Conn.App. 240–41.   In Davis, three days before the statute of limitations expired, the plaintiff delivered a writ of summons and complaint to a sheriff for service on the defendant.   Id., 236.   The sheriff never made service, however, and returned the writ of summons and complaint to the plaintiff more than six months later.  Id. The plaintiff then commenced a new action pursuant to § 52–592.  Id. The Appellate Court stated that “the plaintiff did not offer any authority to support the proposition that the delivery of process to a sheriff constituted commencement of an ‘action’ within the meaning of § 52–592.   Without the existence of a prior action, the plaintiff cannot invoke the protection of § 52–592.”  Id., 240.   The court held that the initial action had not commenced because the writ of summons and complaint were never served on the defendant.  (Internal quotation marks omitted.)  Id.

Several decisions of the Superior Court have construed Rocco and Davis as together standing for the proposition that “improper or insufficient service is different from no service at all ․ If the statutory time has lapsed after service was previously made, albeit improperly, an action has commenced for purposes of § 52–592.   In contrast if service was not made by the statutory period, irrespective of whether service of process was timely delivered to a marshal and even attempted, the action has not commenced.”  (Citation omitted.)  Illescas v. Needham, supra, 41 Conn. L. Rptr. 808.   See also Drwiega v. Aferzon, Superior Court, judicial district of New Britain, Docket No. CV 05 4002977 (October 31, 2007, Shapiro, J.);   St. John v. Westfield, LLC, Superior Court, judicial district of New Haven, Docket No. CV 10 6008585 (August 17, 2010, Corradino, J.T.R.) (50 Conn. L. Rptr. 486).

The court in Jimenez v. DeRosa, Superior Court, judicial district of New Haven, Docket No. CV 07 5013800 (November 4, 2009, Alander, J.) (48 Conn. L. Rptr. 839) viewed Rocco and Davis somewhat differently:  “Rocco does not hold that only invalid service of process which actually reaches the defendant qualifies as commencement of the action under the savings statute and Davis does not hold that all unsuccessful attempts to actually serve process on a defendant fail to constitute the commencement [of an action] for purposes of the savings statute.   While an unsuccessful attempt to serve process on a defendant where the defendant receives timely actual notice of the lawsuit constitutes commencement of the action under § 52–592, Rocco v. Garrison, supra, and mere delivery of process to a marshal with no attempt at service does not, Davis v. Family Dollar Store, supra, these situations do not define the universe of commencing an action for purposes of the savings statute.”  (Emphasis in original.)  Jimenez v. DeRosa, supra, 48 Conn. L. Rptr. 841.

The Jimenez court denied the defendant's motion for summary judgment.  Id. At the time of service in Jimenez, the defendant no longer resided at the address at which the marshal left process.  Id. Nonetheless, “the undisputed evidence [established] that the plaintiffs made a diligent, good faith effort to serve process on the defendant by leaving a copy of the summons and complaint at the address provided by the defendant at the scene of the accident and listed as the defendant's address in various government records.”  Id.

In the present case, the defendant has met his initial burden of presenting evidence sufficient to support judgment in his favor.   The defendant relies on Davis in his memorandum, while the plaintiff relies on Jimenez and Rocco.   The present case differs slightly from Davis in that more was done to effectuate service in the present case.   Here, the undisputed evidence demonstrates that Romano made an effort to serve the defendant with process by traveling to the address noted on the summons and by speaking with post office employees regarding the occupant of the home at that address.   In Davis, there was no evidence of any effort to serve the defendant.   Nevertheless, Davis is analogous to the present case because the defendants in both cases were never served with process, even improperly.   By contrast, the present case is distinguishable from Jimenez and Rocco.   In the present case, unlike in Jimenez and Rocco, the undisputed evidence shows that a copy of the summons and complaint were never left at the address provided by the plaintiff's counsel or at any other address and that service, even improper service, was never made in the initial action.   Accordingly, the undisputed evidence demonstrates that the facts of the present case are analogous to those of Davis, in which the defendant was never served at all, and distinguishable from those of Jimenez and Rocco, in which the defendant was served improperly.   The defendant has therefore met his initial burden of demonstrating the absence of a genuine issue of material fact that the initial action was never “commenced” as that term is used in § 52–592.   Because the plaintiff does not dispute the defendant's evidence, she has failed to meet her burden of creating a genuine issue of material fact.   The defendant has also met his burden of demonstrating that he is entitled to judgment as a matter of law because § 52–592 applies only to actions that were “commenced within the time limited by law” and the plaintiff's initial action was never “commenced” within the meaning of that statute.   This action, therefore, is untimely and the defendant is entitled to judgment as a matter of law.   Accordingly, the court hereby grants the defendant's motion for summary judgment.⁴

Martin, J.

FOOTNOTES

FN1. Section 52–592 provides in relevant part:  “(a) If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because of insufficient service or return of the writ due to unavoidable accident or the default or neglect of the officer to whom it was committed ․ the plaintiff ․ may commence a new action ․ for the same cause at any time within one year after the determination of the original action ․”.  FN1. Section 52–592 provides in relevant part:  “(a) If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because of insufficient service or return of the writ due to unavoidable accident or the default or neglect of the officer to whom it was committed ․ the plaintiff ․ may commence a new action ․ for the same cause at any time within one year after the determination of the original action ․”

FN2. “ ‘[O]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment, and the applicable provisions of our rules of practice contemplate that supporting [or opposing] documents ․ be made under oath or be otherwise reliable.’  ․ Rockwell v. [Quintner, supra, 96 Conn.App. 233–34 n.10]. Despite this rule, a court has discretion to consider unauthenticated documentary evidence when no objection has been raised by the opposing party.   Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006).”   Stonington v. Office of Policy & Management, Superior Court, judicial district of New London, Docket No. CV 06 04006164 (July 2, 2009, Martin, J.) (48 Conn. L. Rptr 166, 168).   In the present case, neither party has objected to any of the unauthenticated documentary evidence.   In the exercise of its discretion, the court has considered the exhibits presented..  FN2. “ ‘[O]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment, and the applicable provisions of our rules of practice contemplate that supporting [or opposing] documents ․ be made under oath or be otherwise reliable.’  ․ Rockwell v. [Quintner, supra, 96 Conn.App. 233–34 n.10]. Despite this rule, a court has discretion to consider unauthenticated documentary evidence when no objection has been raised by the opposing party.   Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006).”   Stonington v. Office of Policy & Management, Superior Court, judicial district of New London, Docket No. CV 06 04006164 (July 2, 2009, Martin, J.) (48 Conn. L. Rptr 166, 168).   In the present case, neither party has objected to any of the unauthenticated documentary evidence.   In the exercise of its discretion, the court has considered the exhibits presented.

FN3. “Sheriffs have been replaced by judicial marshals in Connecticut.”   Knutson Mortgage Corp. v. Bern ier, 67 Conn.App. 768, 771 n.4, 789 A.2d 528 (2002)..  FN3. “Sheriffs have been replaced by judicial marshals in Connecticut.”   Knutson Mortgage Corp. v. Bern ier, 67 Conn.App. 768, 771 n.4, 789 A.2d 528 (2002).

FN4. Because the initial action did not commence within the meaning of § 52–592, the court need not address the parties' other arguments regarding the subordinate issue of whether the insufficient service in the initial action was due to the default and/or neglect of Romano..  FN4. Because the initial action did not commence within the meaning of § 52–592, the court need not address the parties' other arguments regarding the subordinate issue of whether the insufficient service in the initial action was due to the default and/or neglect of Romano.

Martin, Robert A., J.