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Lucy Albano v. Town of New Canaan et al.
Memorandum of Decision on Defendant's Motion to Open Judgment and Return Case to the Trial List (No. 152) and on Plaintiff's Objection to Motion to Open (No. 154); and on Plaintiff's Claim for Trial de Novo (No. 153); and on Plaintiff's Objection to Claim for Trial de Novo (No. 155)
Factual/Procedural Background
This is an action against the Town of New Canaan and another party 1 for damages for personal injuries sustained by the plaintiff in a trip and fall on the public sidewalk. The action is brought pursuant to Conn. Gen. Stat § 13a–149. The defendant Town has consistently denied liability. The case was assigned to the Superior Court arbitration program pursuant to Practice Book § 23–60 et seq. before Attorney Robert Keyes. The arbitrator heard evidence on May 10, 2013 and filed his decision on May 13, 2013 (No. 150) finding for the plaintiff and awarding $46,517 in damages. The copy of the decision in the official court file bears the handwritten clerk's legend: “5/13/13 Decision deposited in the U.S. Postal on 5/13/13. All Counsel notified. Megan McCaffrey, CFC.” On June 3, 2013, twenty-one days after the date of that legend,2 the court entered judgment for the plaintiff in accordance with the decision of the arbitrator. On the following day, June 4, 2013, the defendant filed its Request for a Trial De Novo pursuant to Practice Book § 23–66 (No. 153) and simultaneously filed the instant Motion to Open Judgment and Return Case to the Trial List 3 (No. 152), claiming that counsel for the Town had at no time received a copy of the arbitrator's decision through the mail, and first learned that a decision had been rendered on June 4, 2013 when he checked the Judicial Web site to check the status of the case and “therefore did not have an opportunity to timely file a claim for Trial De Novo” which defendant claims to be a “good and compelling reason” under Conn. Gen.Stat. § 52–212a and Practice Book § 17–4 4 to reopen the judgment of June 3, 2013 and return the case to the trial list.
Defendant's motion appeared on the non-arguable short calendar of June 18, 2013. The court granted defendant's Request for Argument (No. 157) on June 24, 2013, with the comment that “[e]ither party may present evidence as to the factual issues raised ․” An evidentiary hearing was held before the undersigned on July 10, 2013. The witnesses who testified were Atty. Mark Perkins, of Maher & Murtha, LLC representing the defendant, Atty Stephanie Laska of Harris, Harris, & Schmidt representing the plaintiff, and Stamford Superior Court Civil Caseflow Coordinator Megin McCaffrey.
Findings of Fact
The court finds that the following relevant facts 5 have been proved by a preponderance of the evidence:
1. The arbitrator's decision was filed with the clerk's office by the arbitrator on May 13, 2013.
2. On May 13, 2013 Civil Caseflow Coordinator (CFC) Megin McCaffrey entered on the arbitrator's decision in her handwriting and signed the legend:” “5/13/13 Decision deposited in the U.S. Postal on 5/13/13. All Counsel notified.” She then processed the decision, with legend, at file position No. 150 at 2:53 pm on May 13.
3. On May 13, 2013, prior to 5 p.m., CFC McCaffrey made sufficient photocopies of the arbitrator's decision bearing her legend for each counsel of record and prepared an envelope to each counsel of record addressed to conform to their appearances as filed with the court to represent parties to this case. A copy of the opinion was inserted in each envelope, and the envelopes were placed, without postage affixed, in the outgoing mail box on her desk.
4. In accordance with the usual procedures of the clerk's office the outgoing mail would be collected from her outgoing mail box at or about 5 p.m. by a person from the mail room. Proper postage would be put on each piece of outgoing mail in the mail room, and mail room personnel would then bring all such outgoing mail to a facility of the U.S. Postal Service for mailing.
5. No postmark was obtained by the mail room or by the clerk's office in connection with the foregoing process. CFC McCaffrey testified that there was no way for her to get a postmark unless the mail were to be returned for some reason by the Postal Service, and that “the postmark is my certification.”
6. Attorney Laska, counsel for the plaintiff, received the plaintiff's copy of the arbitrator's decision as mailed by CFC McCaffrey on or shortly after May 14, 2013 at the offices of Harris, Harris, & Schmidt.
7. At no time at least up until the evidentiary hearing on July 10, 2013 did Atty. Mark Perkins or any other attorney, or secretary or other person at the firm of Maher & Murtha, LLC receive a copy of the arbitrator's decision through the United States Mail. This finding is based on the testimony of Attorney Mark Perkins after a thorough search of his files, the firm's offices and interviews of all other attorneys at the firm, the firm's secretaries (who open all incoming mail) and all other firm personnel. The court attaches a very high degree of credibility to Atty. Perkins' testimony, and further finds that his first knowledge that the arbitrator's decision had been filed occurred on June 4, 2013, one day after returning from vacation, when he checked the Judicial Website to check the status of the case. The court rejects plaintiff's claim that Atty. Perkins did receive a copy of the arbitrator's decision through the mail based his quotation of the clerk's legend in the motion to open judgment as compared to margin cutoffs on various copies of the decision and counsel's non-expert testimony that second and subsequent photocopies of a document result in cumulative reductions in text. Whatever weight that evidence may have is substantially outweighed by the credible testimony of Atty. Perkins.
8. There is no claim by either counsel that there had been any change in mailing address at any time after their appearances were filed in this case.
Discussion
A. Power to Open Judgment
Plaintiff argues that the court is without power to open this judgment because: “Practice Book § 23–66 and Conn. Gen.Stat. § 52–549z do not allow for the filing of a motion to open in this context. Counsel [for the defendant, in moving to open the judgment for the plaintiff] is relying on Practice Book § 17–4 and Conn. Gen Stat. § 52–212a [see fn.4, supra ] which are not applicable in the current circumstances. In the context of an arbitration, Practice Book § 23–65 permits a motion to open only when a party fails to appear at an arbitration. Once a party appears and participates in the arbitration, Practice Book § 23–66 applies, under which there is a strict twenty day time frame for filing a claim for a trial de novo after the deposit of the arbitrator's decision in the mail.” (Plaintiff's Response to Defendant's Reply to Plaintiff's Objection to Motion to Open (No. 159) at third page). It is true that § 52–212a is inapplicable because that provision is limited to opening “any judgment rendered or decree passed upon a default or nonsuit in the Superior Court,” which is not the situation here. But Practice Book § 17–4 has no such limitation and gives the court the power to set aside or open on a timely motion “any civil judgment or decree rendered in the superior court.” The fact that Practice Book § 23–66 does not provide for a motion to open judgment entered against a party who appeared and participated at the arbitration does not mean that the court lacks that power.
The authority to open and vacate a judgment is within the inherent power of the trial courts ․ A motion to open and vacate a judgment should be granted when the court, acting reasonably, finds good cause to do so ․ Once the trial court has refused to open a judgment, the action of the court will not be disturbed on appeal unless it has acted unreasonably and in clear abuse of its discretion ․ In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the court's ruling. (Internal quotation marks and citations omitted.) Yaremich v. Lam, 71 Conn.App. 650, 653 (2002).
A trial court has broad discretion to open judgments, subject to the four-month limit set forth in Practice Book § 17–4 [formerly section 326] for “a good and compelling reason”. Hirtle v. Hirtle, 217 Conn. 394, 398 (1991).
Exercising that inherent discretionary power of the Superior Court, then, this court will entertain the defendant's Motion to Open Judgment and Return to the Trial List and make a determination whether or not the defendant has established good cause to reopen the judgment of June 3, 2013.
B. Plaintiff's Request for a Trial de Novo
The defendant filed a motion for trial de novo on June 4, 2013. (No. 153.) June 4 was the twenty-first day after the clerk's office (Civil Caseflow Coordinator) mailed a copy of the arbitrator's decision to all counsel of record on May 13. The court has found that counsel for the defendant Town of New Canaan did not receive and has not at any time received the copy of that decision mailed to their office in Bridgeport on May 13, 2013 by first class mail of the United States Postal Service. To the extent that the rebuttable presumption of receipt of the “mailbox rule” 6 may apply, that presumption has been rebutted. The court has also found that counsel for the defendant had no actual knowledge of the arbitrator's May 13, 2013 decision until June 4, 2013 when Atty. Perkins learned of it after returning from a lengthy vacation by checking the e-filing service of the Superior Court. On that same day, he filed his motion for trial de novo, nominally one day after the twenty-day deadline from the May 13 date of mailing.
This is not a case such as Yaremich v. Lam, supra, where the attorney seeking to file a request for trial de novo more than twenty days from the date of mailing of the arbitrator's decision by the clerk, claiming lack of receipt and lack of knowledge, was complicit in the failure to receive due to failure to properly report a change of address to the clerk's office as required by the rules of practice. Attorney Perkins and his law firm, Maher & Martha, LLC have not been derelict or delinquent in any obligation imposed upon them by our rules of practice. Contrary to plaintiff's assertion, counsel had no obligation to continually check, or check at all, the e-services website to see if the arbitrator had filed a decision. The established mechanism for counsel to know that an arbitrator's decision has been filed is the clerk's duty of mailing out the decision under Practice Book § 23–66(c).
Plaintiff urges a strict construction of § 23–66, emphasizing that the practice book does not require receipt of the mailing or knowledge that an arbitrator's decision has been filed, for the commencement of the twenty-day period to file for a trial de novo. And the courts have strictly construed § 23–66 in that regard. For example, in Foskey v. Campbell, Superior Court, Judicial District of Fairfield at Bridgeport, Docket No. FBT CV09–5024371S (December 4, 2009, David J. Tobin, J.), 2010 Ct.Sup. 242, 48 Conn. L. Rptr. 874, the demand for trial de novo had been filed ten days before the clerk had mailed out the arbitrator's decision. Even though there was no claim of prejudice caused by the early filing of the demand for trial de novo, the court, citing Conn. Gen Stat. § 1–2z,7 held that the demand for trial de novo was “premature, and therefore untimely.” Id., 2010 Ct.Sup.at 245.
The problem with defendant's argument is that both Conn Gen Stat. § 52–549z and Practice Book § 23–66 have been amended to specify a mandatory and exclusive method of documenting the date the clerk mails out the copies of the arbitrator's decision. Both the statute and the rule define that documenting to be “as evidenced by the postmark.” In this case there was no evidence of any postmark to document the May 13, 2013 mailing of the arbitrator's decision, and the Civil Caseflow Coordinator testified that “the postmark is my certification.” In a striking turnaround from her previous insistence on strict construction, when it comes to the postmark issue the plaintiff at oral argument on July 10, 2013 went completely the other way, and asked the court to construe the postmark requirement as meaning that the clerk's certification of mailing on the copy of the arbitrator's decision establishes “the active and operable date” of commencement of the twenty-day period. That, the court cannot and will not do. Judge Tobin in Foskey held that the twenty-day language of Conn. Gen Stat. § 52–549(d) and Practice Book § 23–66 is unambiguous and beyond interpretation. This court concurs. The postmark requirement is not an anachronism from the pre-electronic era. The statute was amended to insert that documentation requirement by Public Act 2001, No. 01–203, effective October 1, 2001. The Practice Book rule was amended effective January 1, 2003 to conform to the statutory requirement. A “postmark” is a very specific form of documentation. There is no ambiguity. There is no room for construction. See Allied Irish Banks, P.L.C. v. Young Men's Christian Association of Greenwich, Superior Court, Judicial District of Stamford/Norwalk at Stamford, Docket No. FST CV13–4024541S (March 25, 2013, Jennings, J.) [55 Conn. L. Rptr. 800].
Nor does the postmark requirement yield an absurd or unworkable result. It may be inconvenient and involve some expense but the court takes judicial notice that a postmark can be obtained by sending the item certified mail, or by obtaining a “certificate of mailing” for priority mail or first class mailing for a fee of $1.20.
In a similar case, Judge Sheldon in Carone v. Windsor Insurance Company, Superior Court, Judicial District of Hartford at Hartford, Docket No. X02–0813637S (November 20, 2003, Sheldon, J.), 2003 Ct.Sup. 12635, found that a demand for trial de novo filed before the start of the twenty-day period (because the clerk had not mailed out the arbitrator's decision at all) was of no effect, saying:
Here, because the arbitrator's decision was never deposited in the United States mail, the appeal period has never even started to run, much less expired. Accordingly the plaintiff's objection [to the request for trial de novo] has no factual or legal basis and must therefore be OVERRULED.
The court concludes from the facts before it that even though the plaintiff's objection must be overruled, that Claim [for trial de novo] must be REJECTED as a basis for setting aside the arbitrator's decision because it was prematurely filed, thus has no legal effect.
Id., 12638
Judge Sheldon, in order to “break the logjam” ordered the clerk to send copies of the arbitrator's decision to all parties in the case “forthwith” by depositing such copies in the United States Mail, and allowed the defendant twenty days after the date of such mailing, as evidenced by the postmark, to file its demand for a trial de novo.
The same rationale and corrective action applies to this case.
C. Orders
Accordingly, the court orders as follows:
1. The plaintiff's Objection to Claim for Trial de Novo (No. 155) is overruled.
2. The defendant's Claim for Trial de Novo (No. 153) is rejected as premature.
3. The Defendant's Motion to Open Judgment No. (152) is granted in that lack of a postmark prevented the commencement of its twenty-day period to request a Trial de Novo. The failure of the twenty-day period to commence is a good and compelling reason to open the judgment which is premised on the termination of that twenty-day period which has not yet even started to run. The case, however, shall not be returned to the trial list unless and until a valid and timely Request for Trial de Novo is filed by the defendant.
4. Plaintiff's Objection to Motion to Open (No. 154) is overruled.
5. The Clerk is ordered forthwith to send copies of the Decision of Arbitrator (No. 150) with legend of mailing, by United States Mail, to all parties. In addition, in order to obtain an official United States Postal Service postmark, the Clerk shall simultaneously mail one additional copy of that decision, with legend (which shall include the Clerk's office as a mail recipient) to the Clerk's Office at its usual mailing address in Stamford. The postage for mailing the additional copy to the Clerk's office will not be affixed by postage meter, but shall be affixed by postal stamps in the proper amount. Upon receipt of that additional copy back at the Clerk's office the Clerk shall scan the envelope (with postmark) and its contents as a pleading in this case, available to all parties. The date of that postmark shall be the commencement of the twenty-day period to request a Trial de Novo.
Alfred J. Jennings, Jr.
Judge Trial Referee
FOOTNOTES
FN1. Since the Town of New Canaan is the only defendant involved with these motions/objections, it shall be referred to as the “defendant.”. FN1. Since the Town of New Canaan is the only defendant involved with these motions/objections, it shall be referred to as the “defendant.”
FN2. Practice Book § 23–66 provides: “(a) a decision of the arbitrator shall become a judgment of the court if no claim for a trial de novo is filed in accordance with subsection (c) ․ (c) A claim for trial de novo must be filed with the court clerk within twenty days after the deposit of the arbitrator's decision in the United States mail, as evidenced by the postmark.” Conn. Gen.Stat. § 52–549z is to the same effect: “(a) A decision of the arbitrator shall become a judgment of the court if no claim for a trial de novo is filed in accordance with subsection (c) ․ (c) A claim for a trial de novo must be filed with the court clerk within twenty days after the deposit of the arbitrator's decision in the United States mail as evidenced by the postmark ․”. FN2. Practice Book § 23–66 provides: “(a) a decision of the arbitrator shall become a judgment of the court if no claim for a trial de novo is filed in accordance with subsection (c) ․ (c) A claim for trial de novo must be filed with the court clerk within twenty days after the deposit of the arbitrator's decision in the United States mail, as evidenced by the postmark.” Conn. Gen.Stat. § 52–549z is to the same effect: “(a) A decision of the arbitrator shall become a judgment of the court if no claim for a trial de novo is filed in accordance with subsection (c) ․ (c) A claim for a trial de novo must be filed with the court clerk within twenty days after the deposit of the arbitrator's decision in the United States mail as evidenced by the postmark ․”
FN3. Prior to arbitration the case had been assigned for jury trial on or about November 19, 2013.. FN3. Prior to arbitration the case had been assigned for jury trial on or about November 19, 2013.
FN4. Conn. Gen Stat. § 52–212(a) provides, “Any judgment rendered or decree passed upon a default or nonsuit in the Superior Court may be set aside, within four months following the date on which it was rendered or passed, and the case reinstated on the docket, on such terms with respect to costs as the court deems reasonable, upon the complaint or written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense, in whole or in part existed at the time of the rendition of the judgment or the passage of the decree, and that the plaintiff or defendant was prevented by mistake, accident or other reasonable cause from prosecuting the action or making the defense.” Practice Book § 17–4(a) provides: “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, any civil judgment or decree rendered in the superior court may not be reopened or set aside unless a motion to open or set aside is filed within four months succeeding the date on which notice was sent. The parties may waive the provisions of this subsection or otherwise submit to the jurisdiction of the court.”. FN4. Conn. Gen Stat. § 52–212(a) provides, “Any judgment rendered or decree passed upon a default or nonsuit in the Superior Court may be set aside, within four months following the date on which it was rendered or passed, and the case reinstated on the docket, on such terms with respect to costs as the court deems reasonable, upon the complaint or written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense, in whole or in part existed at the time of the rendition of the judgment or the passage of the decree, and that the plaintiff or defendant was prevented by mistake, accident or other reasonable cause from prosecuting the action or making the defense.” Practice Book § 17–4(a) provides: “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, any civil judgment or decree rendered in the superior court may not be reopened or set aside unless a motion to open or set aside is filed within four months succeeding the date on which notice was sent. The parties may waive the provisions of this subsection or otherwise submit to the jurisdiction of the court.”
FN5. The court has totally disregarded as irrelevant the copy of defendant's arbitration package as submitted to the arbitrator, attached as Exhibit A to defendant's Reply to Plaintiff's Objection to Motion to Open dated July 9, 2013 (No. 158).. FN5. The court has totally disregarded as irrelevant the copy of defendant's arbitration package as submitted to the arbitrator, attached as Exhibit A to defendant's Reply to Plaintiff's Objection to Motion to Open dated July 9, 2013 (No. 158).
FN6. The “mailbox rule,” a general principle of contract law, “provides that a properly stamped and addressed letter that is placed in a mailbox or turned over to the United States Postal Service raises a rebuttable presumption that it will be received.” Echevaria v. National Grange Insurance Co., 275 Conn. 408, 418 (2005).. FN6. The “mailbox rule,” a general principle of contract law, “provides that a properly stamped and addressed letter that is placed in a mailbox or turned over to the United States Postal Service raises a rebuttable presumption that it will be received.” Echevaria v. National Grange Insurance Co., 275 Conn. 408, 418 (2005).
FN7. Conn. Gen.Stat. § 1–2z provides: “The meaning of a statute shall, in the first instance, be ascertained from 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, extra textual evidence of the meaning of the statute shall not be considered.”. FN7. Conn. Gen.Stat. § 1–2z provides: “The meaning of a statute shall, in the first instance, be ascertained from 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, extra textual evidence of the meaning of the statute shall not be considered.”
Jennings, Alfred J., J.T.R.
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Docket No: CV116011386S
Decided: November 07, 2013
Court: Superior Court of Connecticut.
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