LLC v. John R. Bryk (2013)

Memorandum OF DECISION REGARDING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT # 103

The defendant's motion for summary judgment is granted because the statute of limitations has run and the savings statute, General Statutes § 52–592(a), is inapplicable.

FACTS

This action arises out of claims of legal malpractice and breaches of fiduciary duty allegedly committed by the defendant, John R. Bryk, during his representation of the plaintiffs:  Yankee Owner, LLC, Lynda Plourde, Roger Plourde, Alex Pittu and Jennifer Pittu.   Originally, the plaintiffs brought this action on May 9, 2008, but a judgment of nonsuit was issued for noncompliance with discovery on March 22, 2010.¹  On September 25, 2012, the plaintiffs brought the present action pursuant to the accidental failure of suit statute, General Statutes § 52–592(a).

On December 13, 2012, the defendant moved for summary judgment arguing that the accidental failure of suit statute does not apply in this case and thus the action is time barred.   On April 1, 2013, the plaintiffs filed their objection along with a memorandum of law and an affidavit in support.   On April 5, 2013, the defendant filed a reply.   The court heard oral argument on April 8, 2013.

DISCUSSION

“Summary judgment is a method of resolving litigation when 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 ․ The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried.”  (Citations omitted.)  Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).

“Summary judgment may be granted where the claim is barred by the statute of limitations.”  Doty v. Mucci, 238 Conn. 800, 806, 679 A.2d 945 (1996).   Summary judgment is appropriate on statute of limitation grounds when the “material facts concerning the statute of limitations [are] not in dispute ․” Burns v. Hartford Hospital, 192 Conn. 451, 452, 472 A.2d 1257 (1984).

A legal malpractice action sounds in tort and is therefore governed by General Statutes § 52–577, which provides:  “No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.”   Nevertheless, the accidental failure of suit statute, § 52–592(a), states 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 dismissed for want of jurisdiction ․ the plaintiff ․ may commence a new action ․ for the same cause at any time within one year after the determination of the original action ․ The plaintiffs concede that the current action was filed more than a year after the judgment of nonsuit in the underlying action.   Nevertheless, they argue that they did not understand that the nonsuit occurred because of the confusing nature of the orders, in addition to various personal issues and administrative office errors.   Consequently, the plaintiffs contend that the court should interpret “determination of the original action” under the savings statute to mean the time when the plaintiffs' attorney understands that the suit was determined and not when the actual decision is issued by the court.   In response, the defendant argues that these excuses are insufficient justifications to extend the time under which the action should have been filed under the savings statute.   Additionally, the defendant argues that any exception to the one-year requirement under our case law is limited to circumstances where the plaintiff introduces evidence that he or she failed to receive timely notice of the dismissal of the original action.

“[T]he applicable time period to commence an action under § 52–592 [must] be construed in a manner that is consistent with constitutional due process ․ [Therefore,] a plaintiff who fails to receive timely notice of the dismissal of his original action is not barred from pursuing his action pursuant to § 52–592.   Of course, the plaintiff still must commence his action under § 52–592 within one year after the date the court determines that he received notice of the dismissal ․ While it is true ․ that the court's issuance of notice of the dismissal raises a presumption that the plaintiff received the notice, this presumption is rebuttable.”  (Citation omitted;  emphasis added;  internal quotation marks omitted.)  Henriquez v. Allegre, 68 Conn.App. 238, 246–47, 789 A.2d 1142 (2002);  see also Harapyo v. Jimenez, Superior Court, judicial district of New Haven, Docket No. CV 05 4006746 (April 17, 2007, Lager, J.) (“Under circumstances when it may not be clear to counsel that a judgment has entered, due process as well as notions of fairness require that [General Statutes § 52–212, a similar limitations period,] be deemed to have commenced to run on the date of actual notice of the judgment of dismissal”).

In the underlying action, Yankee Owner, LLC v. Bryk, Superior Court, judicial district of Waterbury, Docket No. CV 08 6000976, the court issued its judgments of nonsuit on March 22, 2010 (# # 134.10, 135.10, 136.10, 137.10., Sheedy, J.) and June 7, 2010 (# 140.10, Sheedy, J.).   In direct response, the plaintiffs filed their first motion to open nonsuit on June 22, 2010.   This in and of itself demonstrates that the plaintiffs were aware that a judgment of nonsuit had entered.   Subsequently, a series of motions were filed, which may or may not have caused confusion.   Nevertheless, on August 9, 2010, the court sustained the defendant's objection to the plaintiffs' motion to set aside the nonsuit. (# 145.10, Sheedy, J.) Whatever confusion may have previously occurred, none is alleged to stem from the August 9, 2010 ruling.   After the August 9, 2010 ruling, nothing occurred until the plaintiffs' new motion to open dated January 3, 2012, which was denied by the court on March 5, 2012. (# 146.10, Sheedy, J.) The plaintiffs then brought the present action on September 25, 2012, pursuant to the accidental failure of suit statute, § 52–592(a).   The only relevant argument offered to justify the admittedly late present action is the failure of the plaintiffs' attorney to properly calendar the matter in his personal calendar.  (See Pl.'s Memo. 5.) No evidence rebutting the presumption of notice has been presented, and the court will not overlook any self-inflicted mistakes of counsel.   Consequently, the present suit is untimely under the one-year savings period of the accidental failure of suit statute.

CONCLUSION

For the foregoing reasons, the defendant's motion for summary judgment is granted.

Zemetis, J.

FOOTNOTES

FN1. Yankee Owner, LLC v. Bryk, Superior Court, judicial district of Waterbury, Docket No. CV 08 6000976 (March 22, 2010, Sheedy, J.) (# # 134.10, 135.10, 136.10, 137.10.)   This judgment of nonsuit was issued against all of the plaintiffs except Jennifer Pittu.   Nevertheless, on June 7, 2010, she was nonsuited as well. (# 140.10.).  FN1. Yankee Owner, LLC v. Bryk, Superior Court, judicial district of Waterbury, Docket No. CV 08 6000976 (March 22, 2010, Sheedy, J.) (# # 134.10, 135.10, 136.10, 137.10.)   This judgment of nonsuit was issued against all of the plaintiffs except Jennifer Pittu.   Nevertheless, on June 7, 2010, she was nonsuited as well. (# 140.10.)

Zemetis, Terence A., J.