Sylvia Kuehl v. Rosalind Koskoff et al. (2013)

MEMORANDUM OF DECISION re MOTION TO SUBSTITUTE (# 168.00 and # 171.00)

This is a legal malpractice action that undoubtedly is one of the oldest cases pending in the Stamford Judicial District if not the state, particularly if consideration is limited to cases that never have gone to trial.   It has spawned two other matters that went to the Connecticut Supreme Court, Kuehl v. Z–Loda Systems Engineering, Inc., 265 Conn. 525 (2003), and St. Paul Travelers Cos. v. Kuehl, 299 Conn. 800 (2011), each of which cases might have obviated the need for this case to be resolved on the merits if the outcome had been otherwise.

The motion currently before the court is a motion to substitute the legal representative of the estate of the named plaintiff.   Pleading # 168.00 is the original motion to substitute, and pleading # 171.00 is a supplement to that motion;  for purposes of this decision, the two pleadings will be treated as a single motion.   Defendants have objected to the motion to substitute (pleadings # 169.00 and # 174.00).   The court heard argument on the motion and objections on July 8, 2013.   The matter currently is scheduled for trial in mid-September.

The core facts are relatively straightforward.   The matter has been pending since 1999.   On May 16, 2013, a motion to substitute party plaintiff was filed to which was attached a copy of the probate court certificate appointing Clifford Mollo as executor of the estate of Sylvia Kuehl.   The certificate indicates that he was appointed on or about November 1, 2012.   Attached to defendants' initial objection as an exhibit is a document indicating that Ms. Kuehl had died on September 8, 2013—although the notice is somewhat unofficial, plaintiff has not challenged the means of presentation nor the accuracy of the information, which the court treats as the equivalent of an admission (for purposes of this motion).   The motion to substitute, then, was filed a little more than eight months after plaintiff's death and about 61/212 months after the appointment of an executor.   Defendants' objection to the motion is that the motion is untimely under the applicable statute and that there has been no showing of good cause for allowing the motion to be granted outside the statutory time limits.

The controlling statute is General Statutes § 52–599 which provides in relevant part:

(a) A cause or right of action shall not be lost or destroyed by the death of any person, but shall survive in favor of or against the executor or administrator of the deceased person.

(b) A civil action or proceeding shall not abate by reason of the death of any party thereto, but may be continued by or against the executor or administrator of the decedent.   If a party plaintiff dies, his executor or administrator may enter within six months of the plaintiff's death or at any time prior to the action commencing trial and prosecute the action in the same manner as his testator or intestate might have done if he lived.   If a party defendant dies ․

In objecting to the untimeliness of the motion, defendants rely on precedents that allow substitution after expiration of the six-month period only upon a showing of good cause.  (Plaintiff does not appear to dispute the proposition that, if the statutory time limits have been exceeded, good cause is required for substitution.)   Defendants' argument is premised on two assumptions:  that there is a six-month time limit for a motion to substitute and that that limit had expired before plaintiff's filing of the subject motion.

The foundational precedents discussing exceptions to the six-month limit for plaintiffs predated the addition of the language “or at any time prior to the action commencing trial” by way of Public Act 87–237 ¹ such that there was no question as to whether the time limit was six months or whether it had expired.   Plaintiff, on the other hand, while not abandoning the claim, does not seriously press the existence of good cause for allowing the belated motion but instead relies upon the new language, claiming that the motion is timely under the “at any time prior to the action commencing trial” provision.   Neither party has cited any cases that purport to interpret the meaning or application of that new language.

The necessary starting point is recognition of the two-pronged aspect of the required analysis.   If plaintiff satisfies an explicit statutory timeframe for moving to substitute, plaintiff has the statutory right to substitute.   If plaintiff does not satisfy an explicit limitation on the right to substitute a representative, however, then it becomes a matter of discretion for the court as to whether to allow a belated substitution, with good cause as the benchmark for exercise of discretion.

“Moreover, the language of § 52–599 ․ has been construed to mean that the fiduciary may be substituted as a matter of right within the time prescribed by the statute, but the court in its discretion may permit the fiduciary to be substituted after the time described for good cause shown.”   Negro v. Metas, 110 Conn.App. 485, 498 (2008).

At the risk of oversimplification, the court must resolve the critical threshold question:  which prong controls?   The court must decide whether a statutory timeframe for substitution has been satisfied or whether such a timeframe has not been satisfied such that it becomes a discretionary decision for the court with the existence of good cause as the focal point of the inquiry.   More narrowly and as framed by the parties, it is an issue of statutory interpretation, as defendants claim that the six-month period stated in the statute for substitution for plaintiff is determinative, whereas plaintiff contends that the language “or at any time prior to the action commencing trial” allows for substitution as of right based on an alternate timeframe which is claimed to be applicable here.

“The principles that govern statutory construction are well established.   When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature ․ In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply ․ In seeking to determine that meaning ․ § 1–2z directs us first to consider the text of the statute itself and its relationship to other statutes.   If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered ․ The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation.”  Francis v. Fonfara, 303 Conn. 292, 297 (2012) (internal quotation marks, omitted;  ellipses as in cited case).

“It is a basic tenet of statutory construction that the legislature [does] not intend to enact meaningless provisions ․ [I]n construing statutes, we presume that there is a purpose behind every sentence, clause, or phrase used in an act and that no part of a statute is superfluous ․ Because [e]very word and phrase [of a statute] is presumed to have meaning ․ [a statute] must be construed, if possible, such that no clause, sentence or word shall be superfluous, void or insignificant.”  Kasica v. Columbia, 309 Conn. 85, 101 (2013) (internal quotation marks, omitted;  bracketed language and ellipses as in cited case).

Plaintiff's position is relatively straightforward:  The statute allows substitution for plaintiff at any time prior to trial, and the motion was filed prior to trial.   In essence, plaintiff is arguing that the plain meaning of the added language to the statute authorizes substitution without regard to whether the six-month rule has been satisfied.

Defendants disagree.   Defendants put a great deal of emphasis on two relatively recent Appellate Court decisions:  Warner v. Lancia, 46 Conn.App. 150 (1997), and Negro v. Metas, supra.   Neither of those cases attempts to interpret the language relied upon by plaintiff such that neither case is controlling.   To the extent that defendants urge the court to draw inferences from those decisions, the court finds nothing persuasive in either of them relating to the issue at bar.

In Warner, the court was focusing on the portion of the statute dealing with substitution for a defendant.   The 1987 amendment to the statute, as relates to defendants, changed the triggering event for measuring the appropriate timeframe, but did not change the timeframe itself.   Language in the case, then, about no change having been made to the time in which to move to substitute can only be read to apply to the issue before that court i.e. the time for moving to substitute for a defendant.   It would have been dictum at best if the court had attempted to opine on the meaning of a change in a different portion of the statute, language that only was applicable to plaintiffs and therefore irrelevant.  (There is nothing in the decision suggesting that the court made any attempt to interpret the language under consideration here.)

The position of the defendant in Warner had been based on an implicit conflation of the two issues that arise under the statute.   The statute explicitly establishes timeframes for substitution of representatives when a plaintiff or defendant dies.   The judicial gloss placed on the statute recognizes the authority of the court to allow substitution after expiration of the relevant timeframe upon a showing of good cause.   The argument in Warner had been that a change in the trigger for starting the clock on the timeframe for substitution for a defendant somehow superseded or abolished the judicial gloss allowing a belated substitution upon a showing of good cause.   Not surprisingly, the court ruled that a change in the trigger event had no bearing on the propriety of, and conditions for, a belated motion to substitute.

In the other case relied upon by defendants, Negro v. Metas, the court was addressing a situation involving substitution for a plaintiff, so in that sense the case is a bit closer.   Nowhere in the decision is there an explicit discussion of the language relied upon by plaintiff here, and indeed the focus was less on the statute than on procedure—the conduct of the judge in issuing certain orders relating to substitution.   At most, there is an implied assumption that the six-month rule applied although even that assumption is subject to some doubt.   Although not discussed in those terms, the order of the trial court that was central to the case was an order that the motion to substitute be filed and granted by the date scheduled for trial to commence.   This court does not want to read too much into the selection of that date—it could have been motivated by the statutory language, or more simply motivated by the practical need to have the issue fully resolved prior to trial since trial could not commence in the absence of a proper party-plaintiff.   It is noteworthy, however, that in concluding that reversible error had occurred, the Appellate Court did make note of the timing of the motion:

“A motion to substitute Freddo as the party plaintiff, therefore, was filed within six months of her appointment as temporary administratrix and before trial and should have been granted as a matter of right.   The court's finding that the motion to substitute was not timely filed is clearly erroneous.”   110 Conn.App. 100 (emphasis added).

Defendants also rely, in # 174.00, upon the commentary to form 106.8 in Volume 2 of the Connecticut Practice Series, and in particular the discussion of § 52–599 (Exhibit B).  While page 2 of Exhibit B correctly quotes the current version of the statute, the following page effectively ignores it.   At page 4 of the reply memorandum, defendants quote language from that treatise as set forth on page 3 of Exhibit B to # 174.00:  “Note that the party plaintiff's personal representative may enter and prosecute an already commenced suit within six months after death.”   That language is perceived to be an interpretation of the current statute which then is proffered as support for defendants' position.   Unfortunately, there is an alternate interpretation for that language and there is confirmation of that alternate thesis i.e. that the commentary has not been updated since the 1987 revision of the statute.   A few paragraphs later in Exhibit B, in discussing the statute again, the pre–1987 version is quoted—not just paraphrased or interpreted:  “CGSA § 52–599 [provides] that in the case of the death of the plaintiff ‘his executor or administrator may enter within six months thereafter and prosecute the suit’ “ (emphasis added;  internal quotation marks retained).   One would hope that a current treatise addresses current statutory language;  when the underlying statute was revised 26 years ago, one might have assumed that the treatise likewise would have been updated in a timely fashion.²  To the contrary, the court is left with the firm conviction that the treatise's discussion of § 52–599 still is based on the old statute.³

Defendants do not appear to offer any meaningful interpretation of the new statutory language “or at any time prior to the action commencing trial.”   They do not address the presumptive significance of the use of the word “or” as signaling an alternative to the pre-existing six-month rule.⁴  They do not explain what “any time prior to ․ trial” means, nor do they advance any reason to reject the plain meaning of the phrase (see, General Statutes § 1–2z), nor do they proffer an interpretation of that phrase under which plaintiff's motion would be untimely.   Instead, they insist that there has been no change to the meaning or application of the statute, notwithstanding the 1987 amendment.   The closest they come to addressing the function of the added language is their claim that plaintiff's interpretation would effectively circumvent the six-month limit otherwise provided in the statute (cf.Kasica, supra ), but that would be precisely the intended purpose of a statutory alternative.

Defendants' contention that if the “any time prior to ․ trial” language is given the meaning advanced by plaintiff the six-month time limit would be redundant, is not persuasive.   During argument, the court observed that while there may be substantial overlap between the six-month period in the statute and the “any time prior to ․ trial” concept, there were situations in which one but not the other might be applicable.   The six-month rule would apply even if the death were less than six months prior to scheduled trial, or even if trial had already commenced such as a courtside trial that might stretch out over an extended period of time.⁵  Conversely, the “any time prior to ․ trial” standard would apply, even after six months had elapsed, so long as trial had not commenced.   Each alternative has an area of exclusive operation despite the substantial overlap.

Although defendants' laudable (and appreciated) effort to find something in the legislative history explaining this change proved unproductive, the court presumes that the amendment to the statute was motivated, in part if not in whole, by a desire to avoid potentially meritorious claims being thrown out of court due to a failure to meet a somewhat artificial and technical deadline.   In effect, the amendment imposed a “no harm, no foul” perspective on the issue of substitution of plaintiffs, such that as long as substitution were attempted prior to trial, there would be no justification for denying a trial on the merits.

The court agrees with defendants that plaintiff has failed to articulate or establish good cause, to the extent that good cause would be a necessary prerequisite under the six-month rule.   Although the delay in moving to substitute was not extreme, the court must be mindful of the age of the case which in turn should have signaled the need for diligence in getting the case ready for trial, especially after the Supreme Court decision in St. Paul Travelers was issued in 2011.   Aggravating the situation is that there was a dormancy-type calendar call in March 2013,⁶ resulting in the scheduling of a pretrial and a date for commencement of trial, without any apparent mention of the critical fact that plaintiff had died approximately 6 months earlier.   While the court does not want to minimize the executor's need to consider whether to proceed with the action—one of the reasons (if not the primary reason) offered for the delay—no explanation was offered as to why that analysis resulted in a delay of six months or more, nor was there any explanation as to why the motion could not have been filed while such an analysis was underway.

In summary, the court concludes that the motion to substitute was timely under the “any time prior to ․ trial” language added in 1987.   The motion to substitute is hereby granted.

POVODATOR, J.

FOOTNOTES

FN1. The same Public Act implemented a change to the procedure as applicable to substitution of the estate of a defendant, which will be discussed briefly, below..  FN1. The same Public Act implemented a change to the procedure as applicable to substitution of the estate of a defendant, which will be discussed briefly, below.

FN2. Unfortunately, this is a not-infrequent type of problem.   In an analogous manner, Practice Book § 14–7(c) still refers to the board of tax review, even though the nomenclature was statutorily changed in 1995 to board of assessment appeals (P.A. 95–283).  (Practice Book § 68–10 also contains the same anachronistic reference.).  FN2. Unfortunately, this is a not-infrequent type of problem.   In an analogous manner, Practice Book § 14–7(c) still refers to the board of tax review, even though the nomenclature was statutorily changed in 1995 to board of assessment appeals (P.A. 95–283).  (Practice Book § 68–10 also contains the same anachronistic reference.)

FN3. The court has located earlier versions of the treatise.   The second edition is from 1979, predating the statutory amendment.   The entire relevant discussion on page 3 of Exhibit B to # 174.00, starting with the paragraph “Note that the ․” and up to and including the paragraph quoted from Russell v. Hosmer, 8 Conn. 229, 235 (1830) (“It can hardly be contended ․”) is exactly as in the 1979 treatise.   While it is theoretically possible that a conscious decision had been made to retain the earlier language, verbatim, despite the change in statutory language, the court believes that to be highly unlikely given the quotation of a portion of the pre-amendment version of the statute.   In any event, the court does not wish to lose sight of the fact that the treatise is a commentary by experienced practitioners rather than an authoritative interpretation..  FN3. The court has located earlier versions of the treatise.   The second edition is from 1979, predating the statutory amendment.   The entire relevant discussion on page 3 of Exhibit B to # 174.00, starting with the paragraph “Note that the ․” and up to and including the paragraph quoted from Russell v. Hosmer, 8 Conn. 229, 235 (1830) (“It can hardly be contended ․”) is exactly as in the 1979 treatise.   While it is theoretically possible that a conscious decision had been made to retain the earlier language, verbatim, despite the change in statutory language, the court believes that to be highly unlikely given the quotation of a portion of the pre-amendment version of the statute.   In any event, the court does not wish to lose sight of the fact that the treatise is a commentary by experienced practitioners rather than an authoritative interpretation.

FN4. If the “at any time prior to ․ trial” language were intended to be a further limitation on the six-month rule rather than an alternative, presumably the General Assembly would have used the word “and” rather than the word “or” as the appropriate conjunction..  FN4. If the “at any time prior to ․ trial” language were intended to be a further limitation on the six-month rule rather than an alternative, presumably the General Assembly would have used the word “and” rather than the word “or” as the appropriate conjunction.

FN5. In Coughlin v. Anderson, 270 Conn. 487, 490 n.2 (2004), § 52–599 was utilized when an appellee died during the appeal process.   The court recognizes that Coughlin involved substitution of a defendant, but the point is that the statute can play a role even after a trial has begun..  FN5. In Coughlin v. Anderson, 270 Conn. 487, 490 n.2 (2004), § 52–599 was utilized when an appellee died during the appeal process.   The court recognizes that Coughlin involved substitution of a defendant, but the point is that the statute can play a role even after a trial has begun.

FN6. The court-issued notice is attached to # 174.00 as Exhibit C..  FN6. The court-issued notice is attached to # 174.00 as Exhibit C.

Povodator, Kenneth B., J.