PPA v. Town of New Milford et al. (2013)

MEMORANDUM OF DECISION

This case was brought by a father on behalf of his minor children ¹ who were sexually assaulted by a young man named Joshua Hinman who was a lifeguard at a Town of New Milford (“Town”) beach and was an assistant coach for a swim team sponsored by the Town. The defendants, Patricia Murphy, Alan Chapin, Dan Calhoun and Jeanne DiGiacomo (“municipal defendants”) are Town officials who were alleged to have been negligent in the hiring, supervision and training of Joshua Hinman.

On April 20, 2012, the plaintiff, acting through his attorneys at that time, withdrew the case against the Town and the municipal defendants.   On June 14, 2012, the plaintiff moved, though new counsel, to restore the case against the Town and Murphy, Chapin and Calhoun.   On July 25, 2012 the plaintiff moved to restore the case against DiGiacomo.   The plaintiff claims that the withdrawal was made against his wishes and that he never consented to the withdrawal.   Following a lengthy period of discovery, the court held a hearing at which it heard testimony from the plaintiff and his wife as well as two attorneys for the law firm which had filed the withdrawal of action on behalf of the plaintiff father.   The parties filed extensive post-hearing briefs.   For the reasons given, the motion to restore the case will be denied.

I. Legal Standard

“Withdrawals are analogous to final judgments.   The right of a plaintiff to withdraw his action before a hearing on the merits, as allowed by § 52–80, is absolute and unconditional.   Under the law, the effect of a withdrawal, so far as the pendency of the action is concerned, is strictly analogous to that presented after the rendition of a final judgment or the erasure of the case from the docket.”  (Internal quotation marks omitted.)  Sicaras v. Hartford, 44 Conn.App. 771, 775–76 (1997), cert. denied, 241 Conn. 916.   Therefore, a motion to restore a case to the docket within four months is to be judged by the same standards as a motion to open a judgment within four months would be judged.  Id. C.G.S. § 52–212 and Practice Book § 17–4 govern a motion to open a judgment within four months. § 52–212 provides for a two-pronged test.   The plaintiff must prove that 1) a good cause of action existed at the time of the judgment or withdrawal;  and 2) the plaintiff was prevented from prosecuting it because of mistake, accident or other reasonable cause.  Biro v. Hill, 231 Conn. 462, 467 (1994).   The decision on whether to restore a case to the docket is addressed to the discretion of the court.  “Judicial discretion, however, is always a legal discretion, exercised according to the recognized principles of equity ․ Such discretion ․ imports something more than leeway in decision making and should be exercised in conformity with the spirit of the law and should not impede or defeat the ends of substantial justice.”  (Internal quotation marks omitted.)  Burton v. Burton, 258 Conn. 566, 569–70 (2001).

II. Facts

The plaintiff is John Doe, Sr. PPA John Doe, Jr. and Paul Doe. The mother of the children is not a party to this case.   When this suit began, the plaintiff was represented by Attorney Frank Bevilacqua and his law firm, DePanfilis & Vallerie, LLC. The plaintiff had known Attorney Bevilacqua for about 20 years and had been represented by him on other occasions.   He considered Attorney Bevilacqua a trusted friend.   During the course of the litigation, Attorney Bevilacqua had told him on more than one occasion that municipal immunity might be an impediment to recovery against the Town and the municipal defendants.

Sometime prior to February 19, 2012, Attorney Bevilacqua called the plaintiff to tell him that they needed to set up an appointment to discuss dropping the case against the Town and the municipal defendants.   The plaintiff agreed but said that he wanted his wife to attend as well.   On February 19, 2012, the plaintiff and his wife (and for a portion of the meeting one of the minor children) met with Attorney Bevilacqua and Attorney Marc Grenier, the managing partner of the DePanfilis & Vallerie law firm.   The meeting lasted about 90 minutes during which time Attorney Grenier outlined the municipal immunity problems as well as other difficulties of the case and recommended that the case be withdrawn as to the Town and the municipal defendants and continued against Joshua Hinman.   At that meeting the plaintiff explicitly gave his permission for his attorneys to withdraw the suit against the Town and the municipal defendants.   The attorneys agreed to continue the case against Joshua Hinman.   The plaintiff did not ask the attorneys to hold off on withdrawing the case until he could get a second opinion.

Immediately following the meeting, Attorney Grenier dictated a letter to the plaintiff summarizing the discussion at the meeting and confirming that the plaintiff had given his permission to withdraw the case against the Town and the municipal defendants.²  Because of the press of other business, the letter did not go out in the mail until about March 23, 2012.   There had been no communication between the plaintiff and the law firm between the meeting and the date that the letter was sent.   The plaintiff and his wife read the letter as soon as it was received and did not contact the law firm to object to the contents of the letter.   The withdrawal of action against the Town and the municipal defendants was filed on April 20, 2012.

The plaintiff's wife, who is not a party to this case, did not support her husband's decision to withdraw the case.   Sometime before May 21, 2012, she mentioned the case to Attorney Terry Pellegrini while he patronized a diner where she worked.   This led to an appearance being filed by the firm of Moots Pellegrini Arnold & Gronbach and this motion to restore dated June 14, 2012.   The motion is supported by an affidavit from the plaintiff that the withdrawal had been filed without his consent despite the fact that his attorney knew that he wanted to pursue the case against the Town and the municipal defendants.

Although the plaintiff testified at the hearing that he did not give permission to withdraw the case against the Town and the municipal defendants, this testimony is not credible.   The plaintiff gave his permission at the meeting on February 19, 2012 and did not object when he received the confirming letter from Attorney Grenier.   His wife, who is not a party to this case, did not agree with his decision and took it upon herself to make contact with an attorney to see if the withdrawal could be reversed.   It is a fair inference that she convinced the plaintiff to change his mind and to support the motion to restore the case.

III. Discussion

Extended discussion is not required to decide this issue.   The plaintiff gave his permission to withdraw this case and is now attempting to restore the case because he changed his mind after entreaties from his wife.   There was no credible evidence that there was any accident, mistake or reasonable cause which led the plaintiff to give his permission to withdraw the case.   He made this decision after a long meeting at which all legal options were explored with his trusted attorney.   It is clear that he simply had a change of heart after being influenced by his wife.

The plaintiff argues that Connecticut has an expressed policy preference to bring about a trial on the merits whenever possible.  Coppola v. Coppola, 243 Conn. 657, 665 (1998).   While this is true, it is also true that a claim of mistake, accident or reasonable cause to open a judgment of nonsuit must be unrelated to negligence on the part of the moving party.  Jaconski v. AMF, Inc., 208 Conn. 230, 238 (1988).   Here, the plaintiff knowingly authorized his attorneys to withdraw the case.   If his claim is that he gave his authorization through a mistake or accident, it was caused by his own negligence in failing to discuss the case thoroughly with his wife before giving his consent to withdrawal.

The plaintiff also argues, in essence, that a plaintiff should be free to withdraw a case and then restore it at will, without any reason if the withdrawal had been filed without the payment of consideration from the defendant.   The plaintiff argues in his reply brief that:  “Defendants argue plaintiffs agreed to the withdrawal and simply changed their mind.   Although plaintiffs have disputed this characterization, it begs the question, so what if they had?   If, as defendants allege, plaintiffs changed their mind after getting advice from another attorney, the four month limitation period gives them the opportunity to do so.”   Under the facts of this case, the court disagrees that the plaintiff's change of heart constitutes mistake, accident or other reasonable cause.   Nor will the due administration of justice be served by permitting this case to be restored.   The court will not exercise its discretion to restore the case based merely upon a change of heart.   The motion to restore is denied.

BY THE COURT,

John W. Pickard

FOOTNOTES

FN1. The plaintiff was given permission to use pseudonyms for the commencement of this action.   The plaintiff is John Doe, Sr., and the children are John Doe, Jr. and Paul Doe..  FN1. The plaintiff was given permission to use pseudonyms for the commencement of this action.   The plaintiff is John Doe, Sr., and the children are John Doe, Jr. and Paul Doe.

FN2. In his letter Attorney Grenier outlined three major problems which had been discussed at the meeting with the plaintiff and his wife.   First, Joshua Hinman admitted assaulting the plaintiff's children but denied that these assaults took place while working as a lifeguard or swim coach.   In fact the plaintiff originally told the attorneys that the assaults took place in the plaintiff's own home.   Only later did one of the boys remember that one of the assaults occurred on Town property.   Second, Joshua Hinman denies that anyone from the Town knew that he was a youthful offender on probation for having touched a minor.   Third, municipal immunity would bar any recovery against the Town or its employees..  FN2. In his letter Attorney Grenier outlined three major problems which had been discussed at the meeting with the plaintiff and his wife.   First, Joshua Hinman admitted assaulting the plaintiff's children but denied that these assaults took place while working as a lifeguard or swim coach.   In fact the plaintiff originally told the attorneys that the assaults took place in the plaintiff's own home.   Only later did one of the boys remember that one of the assaults occurred on Town property.   Second, Joshua Hinman denies that anyone from the Town knew that he was a youthful offender on probation for having touched a minor.   Third, municipal immunity would bar any recovery against the Town or its employees.

Pickard, John W., J.