author: HARPER, J.

text:
    WARNING LIGHTS AND SCAFFOLD SERVICE, INC. v. O AND G INDUSTRIES, INC.
    (AC 27130)
    Harper, Lavine and West, Js.

      Argued March 22
    officially released July 3, 2007

      Susan L. Miller, with whom, on the brief, was J. Scott Scherban, for the appellant (plaintiff).

      Jeffrey A. Blueweiss, with whom, on the brief, were JohnP. Majewski and Joshua A. Yahwak, for the appel-lee (defendant).
   Opinion

HARPER, J.

This appeal involves an action by the plaintiff, Warning Lights & Scaffold Service, Inc., against the defendant, O & G Industries, Inc., to recover damages for failure to pay the plaintiffs attorney’s fees and costs in an earlier lawsuit. The trial court simultaneously rendered judgment of nonsuit and directed a verdict after concluding that the plaintiff had failed to establish a prima facie case for its breach of contract cause of action and failed to plead or prove its claim of equitable subrogation. On appeal, the plaintiff challenges the propriety of both of those rulings. We affirm the judgment of the trial court.

The following facts are relevant to the plaintiffs appeal. On October 22, 1996, the plaintiff rented a 1979 Ford L9000 truck from the defendant pursuant to a written agreement (rental agreement). Three days later, on October 25, 1996, the truck was involved in a motor vehicle accident in which four people were seriously injured. Following the accident, four personal injury lawsuits were instituted against the parties. All of the lawsuits were consolidated and eventually settled pursuant to an agreement involving a total payment of $4.35 million (underlying litigation).

Thereafter, in 2003, the plaintiff instituted this action against the defendant seeking compensation for its attorney’s fees and costs in the underlying litigation. As amended, the complaint alleged that although the rental agreement obligated the defendant to pay those expenses, the defendant had repeatedly refused to do so. The complaint alleged further that the plaintiff had “incurred legal fees and expenses totaling $161,317.63 in defending itself in the [underlying] litigation.” Accordingly, the plaintiff requested an award of $161,317.63 in damages, plus interest, costs and “any other relief that the court deems just and equitable.”

A jury trial of the present action commenced on November 3, 2005. During its case-in-chief, the plaintiff presented evidence that the plaintiffs insurance carrier, Providence Washington Mutual Insurance Company (insurance company) had retained the law firm of Morrison Mahoney, LLP (law firm) to defend the plaintiff in the underlying litigation. The evidence also established, however, that all of the expenses associated with the law firm’s defense of the plaintiff, including its attorney’s fees, were paid by the insurance company. After the plaintiff closed its case-in-chief, the defendant moved for a directed verdict on the ground that the plaintiff had failed to prove that it personally sustained damages, as required to establish a prima facie case of breach of contract. After hearing argument from both parties, the court agreed with the defendant and concluded further that the plaintiff had not pleaded or proven that it was entitled to recover under a theory of equitable subrogation. As a result, the court granted the motion for a directed verdict and simultaneously rendered judgment of nonsuit against the plaintiff. This appeal followed.

At the outset, we set forth the standard by which we review a trial court’s decision to direct a verdict and to render judgment of nonsuit. “Directed verdicts are not favored. ... A trial court should direct a verdict only when a jury could not reasonably and legally have reached any other conclusion. ... In reviewing the trial court’s decision to direct a verdict in favor of a defendant we must consider the evidence in the light most favorable to the plaintiff.” (Internal quotation marks omitted.) Janusauskas v. Fichman, 264 Conn. 796, 803, 826 A.2d 1066 (2003). With regard to judgments of nonsuit, General Statutes § 52-210 authorizes a court to grant such a motion if the plaintiff has failed to make out a prima facie case. The rendering of a judgment of nonsuit is proper “when the evidence, produced by the plaintiff, if fully believed, would not permit the trier in reason to find the essential issues on the complaint in favor of the plaintiff. . . . [Accordingly, when reviewing a court’s decision to render a judgment of nonsuit] [t]he evidence offered by the plaintiff is to be taken as true and interpreted in the light most favorable to him, and every reasonable inference is to be drawn in his favor.” (Citation omitted; internal quotation marks omitted.) Hinchliffe v. American Motors Corp., 184 Conn. 607, 609-10, 440 A.2d 810 (1981).

I

We begin by addressing briefly the plaintiffs allegation that the court improperly directed a verdict and rendered judgment of nonsuit on the breach of contract claim. Specifically, the plaintiff challenges the court’s conclusion that it offered no evidence to establish that it was damaged as a result of the alleged breach of contract. We agree with the court’s conclusion.

It is well settled that in order to recover for breach of contract, a plaintiff must prove that he or she sustained damages as a direct and proximate result of the defendant’s breach. See McCann Real Equities Series XXII, LLC v. David McDermott Chevrolet, Inc., 93 Conn. App. 486, 503-504, 890 A.2d 140, cert. denied, 277 Conn. 928, 895 A.2d 798 (2006). In this case, the plaintiff alleged in its complaint that it “incurred legal fees and expenses totaling $161,317.63 in defending itself in the [underlying] litigation.” Yet, notwithstanding this allegation, the plaintiff did not present any evidence suggesting that it personally spent that amount, or any other amount, on its defense. Indeed, all of the evidence submitted at trial established that the plaintiffs insurance company paid all of the plaintiffs legal fees and expenses in the underlying litigation. In light of this dearth of evidence establishing that the plaintiff spent any money in its defense, we conclude that the court properly directed a verdict and rendered judgment of nonsuit against the plaintiff on the breach of contract claim.

II

We next address the plaintiffs claim that the court determined improperly that it failed to plead a cause of action for equitable subrogation or, in the alternative, failed to establish a prima facie case of equitable subro-gation.

As our Supreme Court has explained, “[t]he right of [equitable] subrogation is not a matter of contract; it does not arise from any contractual relationship between the parties, but takes place as a matter of equity, with or without an agreement to that effect. . . . The object of [equitable] subrogation is the prevention of injustice. It is designed to promote and to accomplish justice, and is the mode which equity adopts to compel the ultimate payment of a debt by one who, in justice, equity, and good conscience, should pay it. . . . As now applied, the doctrine of equitable subrogation is broad enough to include every instance in which one person, not acting as a mere volunteer or intruder, pays a debt for which another is primarily liable, and which in equity and good conscience should have been discharged by the latter.” (Citations omitted; internal quotation marks omitted.) Westchester Fire Ins. Co. v. Allstate Ins. Co., 236 Conn. 362, 371, 672 A.2d 939 (1996).

With these principles in mind, we first examine the allegations contained in the plaintiffs complaint to determine whether they stated a cause of action for equitable subrogation. In evaluating the sufficiency of the complaint, we are mindful that “[t]he interpretation of pleadings is always a question of law for the court . . . .” (Internal quotation marks omitted.) Geren v. Board of Education, 36 Conn. App. 282, 290, 650 A.2d 616 (1994), cert. denied, 232 Conn. 907, 653 A.2d 194 (1995). Accordingly, our review is plenary, and we must determine whether it was “ ‘legally and logically correct’ id.; for the court to have concluded that the plaintiff failed to state a claim for equitable subrogation.

Because equitable subrogation is, as the name implies, a cause of action sounding in equity, it must be pleaded in accordance with Practice Book § 10-27. Practice Book § 10-27 provides: “A party seeking equitable relief shall specifically demand it as such, unless the nature of the demand itself indicates that the relief sought is equitable relief.” In this case, the complaint, as amended, did not state expressly a claimed entitlement to recovery under the theory of equitable subrogation. The complaint did allege, however, that the defendant breached its contractual duty to defend and indemnify the plaintiff in the underlying litigation, which caused the plaintiff to expend $161,317.63 in its defense. On the basis of that allegation, the plaintiff requested an award of $161,317.63 in damages, in addition to interest, costs and 11 any other relief that the court deems just and equitable.” (Emphasis added.)

We conclude that the plaintiffs complaint sufficiently stated a cause of action for equitable subrogation so as to preclude a directed verdict or nonsuit on that ground. Notably, the plaintiffs prayer for relief requested an award of, inter alia, “any other relief that the court deems just and equitable.” Because the complaint specifically requested that the court apply the principles of equity when fashioning a remedy, the plaintiffs complaint could be considered reasonably to encompass a claim of equitable subrogation. In that regard, this case is analogous to Total Aircraft, LLC v. Nascimento, 93 Conn. App. 576, 889 A.2d 950, cert. denied, 277 Conn. 928, 895 A.2d 800 (2006), in which this court concluded that a failure to plead, separately and specifically, a claim of quantum meruit did not preclude recoveiy under that theory. The plaintiff in that case requested generally from the court an award of “[s]uch other and further relief as may be deemed appropriate by the court.” (Internal quotation marks omitted.) Id., 580. Although the prayer for relief did not specifically demand equitable relief as required by Practice Book § 10-27, this court nonetheless upheld the trial court’s determination to permit recovery in quantum meruit. Total Aircraft, LLC v. Nascimento, supra, 581-82. In doing so, this court noted that “[wjhere the nature of the case and the nature of the plaintiffs demand is such that equitable relief is clearly being sought, a specific demand for equitable relief in not necessary.” (Internal quotation marks omitted.) Id., 582.

Furthermore, “[i]n Connecticut, we long have [rejected] the notion that pleadings should be read in a hypertechnical manner.” (Internal quotation marks omitted.) Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 778, 905 A.2d 623 (2006). Instead, we “construe pleadings broadly and realistically, rather than narrowly and technically. . . . Although essential allegations may not be supplied by conjecture or remote implication . . . the complaint must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded, and do substantial justice between the parties. ... As long as the pleadings provide sufficient notice of the facts claimed and the issues to be tried and do not surprise or prejudice the opposing party, we will not conclude that the complaint is insufficient to allow recovery.” (Citations omitted; internal quotation marks omitted.) Travelers Ins. Co. v. Namerow, 261 Conn. 784, 795, 807 A.2d 467 (2002). Here, the defendant has not claimed, and the record does not reflect, that it was surprised or prejudiced by the plaintiffs failure to allege expressly an entitlement to recovery through equitable subrogation. As such, we conclude that the complaint stated a cognizable claim of equitable subrogation.

We next address whether the court properly determined, in the alternative, that the lack of evidence establishing that the plaintiff personally expended any money in its defense was fatal to its equitable subrogation claim. We conclude that the court’s determination was proper for two reasons. First, in arguing that it is entitled to recover amounts paid by its insurance company on its behalf, the plaintiff appears to misunderstand the nature and purpose of equitable subrogation. A party advancing properly a claim of equitable subrogation is “stepping into the shoes of the party it paid in order to recover the payments that it made . . . .” (Emphasis added; internal quotation marks omitted.) Wasko v. Manella, 269 Conn. 527, 548, 849 A.2d 777 (2004). Accordingly, any equitable subrogation action against the defendant could have been brought only by the insurance company, because “[u]pon . . . payment, the insurer became subrogated to any rights that its insured might have had against the party who had caused the loss.” Id.

Second, in a tort system that is primarily concerned with providing compensation, “[s]ubrogation has the objective of preventing [an] insured from recovering twice for one harm, as would be the case if he or she could recover from both the insurer and from a third person who caused the harm.” 16 L. Ross & T. Segalla, Couch on Insurance (3d Ed. 2005) § 222:8. In accordance with that principle, the plaintiff could have sought compensation for the costs of its defense either from the defendant pursuant to the rental agreement or from its insurance company pursuant to its insurance policy. Having chosen the latter arrangement and having received the benefit of full indemnification by its insurance carrier, the plaintiff cannot now attempt to effectuate a double recovery by pursuing its original breach of contract claim against the defendant. Indeed, permitting the plaintiff to recover on behalf of its insurance company, and thereby to enrich itself unjustly, would be neither equitable nor consistent with the principles of subrogation. See Westchester Fire Ins. Co. v. Allstate Ins. Co., supra, 236 Conn. 371 n.7 (equitable subrogation “derives from the equitable principle against unjust enrichment”).

We conclude, therefore, that the court properly directed a verdict in favor of the defendant and rendered judgment of nonsuit on the plaintiffs causes of action for breach of contract and equitable subrogation.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 52-210 provides: “If, on the trial of any issue of fact in a civil action, the plaintiff has produced his evidence and rested his cause, the defendant may move for judgment as in case of nonsuit, and the court may grant such motion, if in its opinion the plaintiff has failed to make out a prima facie case.”

       Specifically, the relevant portion of the plaintiffs complaint contained 1he following allegations:
      “4. The Rental Agreement provided that: Rentee [the defendant] shall defend, indemnify and hold harmless [the plaintiff] from and against any and all losses, liabilities, damages, injuries, claims, demands, costs and expenses, arising out of the use or possession of the [truck] including, but not limited to any and all fines, penalties, and forfeitures imposed under any [fjederal, [s]tate, [municipal, or other state law, ordinance, rule, regulation or insurance policy provision.
      “5. Pursuant to the foregoing provision of the Rental Agreement and by correspondence to and filing of a cross-claim against [the] defendant in the litigation, [the] plaintiff demanded on numerous occasions that [the] defendant and its insurers assume [the] plaintiffs defense and the costs associated with that defense, and indemnify [the] plaintiff for any judgment obtained against [the] plaintiff, but [the] defendant has at all times refused such demands. . . .
      “7. [The] [pjlaintiff incurred legal fees and expenses totaling $161,317.63 in defending itself in the litigation.
      “8. Pursuant to the terms of the Rental Agreement, [the] defendant is liable to [the] plaintiff in the amount of $161,317.63.”

       Indeed, on the first day of trial, the defendant presented several arguments, with accompanying citations to cases, concerning the propriety and merits of an equitable subrogation claim in this case. It later briefed the issue extensively in its memorandum of law in support of its motion for a directed verdict.

       In apparent recognition of this fact, on the second day of trial the plaintiff attempted to substitute the insurance company as the plaintiff in this action. The court denied both motions for substitution because the case had been pending for two and one-half years, and introducing the insurance company as a party might create a conflict of interest for one of the jury members.


source: Caselaw Access Project

author: CRETELLA, J.

license: Public Domain

text:
    INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA v. DEAN J. WATERFIELD
    (AC 27650)
    Flynn, C. J., and Bishop and Cretella, Js.
    Argued January 11
    officially released July 10, 2007

      DeanJ. Waterfield, pro se, the appellant (defendant).

      Gary M. Case, for the appellee (plaintiff).
   Opinion

CRETELLA, J.

The defendant, Dean J. Waterfield, appeals from the judgment of the trial court, rendered in favor of the plaintiff, the Insurance Company of the State of Pennsylvania, after he was defaulted for failure to plead. On appeal, the defendant claims that the court did not have jurisdiction to render judgment, and, therefore, the denial of his motion to open the judgment was improper. We conclude that the court had jurisdiction and properly denied the defendant’s motion to open, and, therefore, affirm the judgment of the trial court.

The following facts and procedural history are necessary for the resolution of the defendant’s appeal. The plaintiff issued an administrator bond in the amount of $35,000 for the defendant in connection with his appointment as administrator for the estate of his deceased wife, Stephanie Dawn Waterfield. On August 15, 2002, the Probate Court for the district of Sterling removed the defendant as administrator of his wife’s estate and appointed a successor administrator. On September 13, 2002, the successor administrator made a claim on the bond, alleging that the defendant had absconded with funds belonging to the estate. The plaintiff investigated the claim and determined that the defendant had in fact stolen at least $35,000 from the estate. The plaintiff, as surety, paid the estate the full face value of the bond. Thereafter, the plaintiff filed a complaint against the defendant to recover losses it had incurred due to the defendant’s alleged breach.

The original complaint, filed on November 28, 2003, recited a return date of December 16, 2003. On December 22, 2003, the defendant filed a pro se appearance. On February 17, 2004, the plaintiff filed a motion for default for failure to plead, which was granted on March 1, 2004. On May 7, 2004, the plaintiff filed a revised complaint, which the defendant also failed to file an answer to within the time prescribed by the rules of practice.

Consequently, the plaintiff filed a second motion for default for failure to plead on August 16, 2004. On August 18, 2004, the defendant filed an objection to the motion for default. On August 30, 2004, the court granted the plaintiffs motion for default for failure to plead.

On September 14, 2004, the defendant filed a notice of removal to federal court. On May 25,2005, the United States District Court for the District of Connecticut, Arterton, J., issued an order granting the plaintiffs motion for attorney’s fees, finding that the defendant had “improperly engaged in a tactic of stalling and delay.” On June 17, 2005, the case was remanded to the state court. The defendant filed an appeal from the remand order, which was dismissed for failure to prosecute on October 5, 2005.

On July 20, 2005, the plaintiff filed a motion for judgment upon default pursuant to Practice Book § 17-33 (b). Subsequently, on July 25, 2005, the defendant filed an answer. On August 4, 2005, the court granted the plaintiffs motion and rendered judgment in favor of the plaintiff against the defendant in the amount of $62,384.33. The defendant filed no appeal from this judgment.

On December 5, 2005, the defendant filed a motion to open the judgment upon default, pursuant to General Statutes § 52-212, claiming that his answer was timely filed pursuant to General Statutes § 52-121 (a) on the basis of his assertion that the court lacked subject matter jurisdiction. The court denied the defendant’s motion to open the judgment on February 2, 2006, on the ground that the defendant failed to comply with the procedural requirements of General Statutes § 52-212 and Practice Book § 17-43. Specifically, the court ruled that “the motion was not verified by oath of the named defendant or his attorney.” On February 22, 2006, the defendant filed a motion to reargue the motion to open. On April 13, 2006, the court denied the motion to rear-gue, and notice of the denial issued on April 17,2006. On May 8, 2006, the defendant appealed from the judgment without a trial, and the motions to stay, to dismiss, to extend time, to set aside the judgment, to open the judgment and to reargue the motion to open. The plaintiff filed a motion to dismiss the appeal as untimely on May 16, 2006. We dismissed all claims directed to the judgment except the portion of the appeal challenging the denial of the motion to open and the denial of the motion to reargue.

As a preliminary matter, we address the defendant’s claim that the court lacked subject matter jurisdiction. The defendant urges us to apply plenary review to the court’s denial of his motion to open because, he argues, the court did not have jurisdiction. Although we decline to afford plenary review to the denial of the motion to open, we will afford plenary review to the defendant’s claim that the court lacked jurisdiction. See Ajadi v. Commissioner of Correction, 280 Conn. 514, 532, 911 A.2d 712 (2006) (review of subject matter jurisdiction claim is plenary).

The defendant specifically argues that the state court does not have jurisdiction when an appeal of a remand order is pending in federal court. Pursuant to the plain language of 28 U.S.C. §§ 1446 and 1447, however, the

state court had jurisdiction when it rendered judgment because the case had been remanded. The defendant moved for removal of the action from state court to federal court on September 14, 2004. According to 28 U.S.C. § 1446, compliance with the form and procedure of removal under this statute “stays” any further action in the state court which continues “unless and until the case is remanded.” 28 U.S.C. § 1446 (d). Once a motion to remand the case has been granted, which occurred in this case on June 17, 2005, “[t]he state court may thereupon proceed with such case.” 28 U.S.C. § 1447 (c) . Furthermore, the plain language of 28 U.S.C. § 1447 (d) specifically provides that “[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise . . . .” 28 U.S.C. § 1447 (d). Thus, the court had jurisdiction when it granted the plaintiffs motion for judgment upon default and rendered judgment in favor of the plaintiff against the defendant.

Next, we turn to whether the court abused its discretion when it denied the defendant’s motion to open. When, as here, the motion to open is filed more than twenty days after the judgment, “the appeal from the denial of that motion can test only whether the trial court abused its discretion in failing to open the judgment and not the propriety of the merits underlying judgment.” Altberg v. Paul Kovacs Tire Shop, Inc., 31 Conn. App. 634, 640, 626 A.2d 804 (1993). “In reviewing claims that the trial court abused its discretion, great weight is given to the trial court’s decision and every reasonable presumption is given in favor of its correctness. . . . We will reverse the trial court’s ruling only if it could not reasonably conclude as it did.” (Internal quotation marks omitted.) Terracino v. Fairway Asset Management, Inc., 75 Conn. App. 63, 73, 815 A.2d 157, cert. denied, 263 Conn. 920, 822 A.2d 245 (2003).

The defendant argues that the court improperly refused to open the judgment. Specifically, the defendant argues that the court failed to follow General Statutes §§ 52-120 and 52-121 (a) and (c). We are not persuaded.

Section 52-120, which requires a written agreement, is inapplicable because no such agreement exists. The defendant argues that the federal scheduling order was the written agreement. He neither cites, nor does our research reveal, however, any legal support for his argument. Likewise, § 52-121 (c) is not applicable in this case because the court did not impose a penalty on the defendant for failure to plead but, rather, rendered judgment of default for failure to plead pursuant to General Statutes § 52-121 (b). Finally, § 52-121 (a) does not result in an automatic grant of a motion to open, as the defendant claims; rather, the granting of a motion to open is within the court’s discretion. The defendant had ample time to respond to the amended complaint, which was filed on May 7, 2004. Furthermore, the fact that the defendant filed a third motion for an extension of time is irrelevant to the court’s denial of the defendant’s motion to open. In this case, on the basis of the detailed time line, which reveals that the defendant’s dilatory tactics permeate this litigation, the court was well within its discretion to handle the situation as it did. See Gianquitti v. Sheppard, 53 Conn. App. 72, 76, 728 A.2d 1133 (1999) (court has inherent authority to control proceedings before it to ensure no prejudice or inordinate delay).

The court denied the motion to open because it was not verified by the oath of the defendant or his attorney, which is required by General Statutes § 52-212 and Practice Book § 17-43. Connecticut courts have frequently refused to open judgments because of a failure to comply with the statute or rules of practice. We have previously held that, when a defendant fails to comply with the provisions of General Statutes § 52-212 and Practice Book § 17-43, the trial court properly may refuse to grant the defendant’s motion to open the judgment of default. See Rocklen’s Auto Parts & Service, Inc. v. Rakiec, 6 Conn. App. 504, 506 A.2d 168 (1986).

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant, however, filed three motions for extension of time. The first two were filed on March 23 and June 7, 2004, and were not ruled on by file court. The third motion was filed on August 12, 2004, and was denied by the court on August 30, 2004.

       Practice Book § 17-33 (b) provides in relevant part: “Since the effect of a default is to preclude the defendant from making any further defense in the case so far as liability is concerned, the judicial authority, at or after the time it renders the default, notwithstanding Section 17-32 (b), may also render judgment in . . . any contract action where the damages are liquidated, provided the plaintiff has also made a motion for judgment and provided further that any necessary affidavits of debt or accounts or statements verified by oath, in proper form, are submitted to the judicial authority.”

       General Statutes § 52-212 provides in relevant part: “(a) Any judgment rendered or decree passed upon a default ... 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 in respect to costs as the court deems reasonable, upon the complaint or written motion of any party . . . prejudiced thereby, showing reasonable cause, or that a good . . . 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 . . . defendant was prevented by mistake, accident or other reasonable cause from . . . making the defense.
      “(b) The . . . written motion shall be verified by the oath of the complainant or his attorney, shall state in general terms the nature of the . . . defense and shall particularly set forth the reason why the . . . defendant failed to appear.”

       General Statutes § 52-121 (a) provides in relevant part: “Any pleading in any civil action may be filed after the expiration of the time fixed by statute or by any rule of court until the court has heard any motion for judgment by default ... for failure to plead which has been filed in writing with the clerk of the court in which the action is pending.”

       Practice Book § 17-43 (a) provides in relevant part: “Any judgment rendered or decree passed upon a default . . . may be set aside within four months succeeding the date on which notice was sent, and the case reinstated on the docket on such terms in respect to costs as the judicial authority deems reasonable, upon the written motion of any party . . . prejudiced thereby, showing reasonable cause, or that a good . . . defense in whole or in part existed at the time of the rendition of such judgment or the passage of such decree, and that . . . the defendant was prevented by mistake, accident or other reasonable cause from prosecuting or appearing to make the same. Such written motion shall be verified by the oath of the complainant or the complainant’s attorney, shall state in general terms the nature of the . . . defense and shall particularly set forth the reason why the . . . defendant failed to appear. The judicial authority shall order reasonable notice of the pendency of such written motion to be given to the adverse party, and may enjoin that party against enforcing such judgment or decree until the decision upon such written motion.”

       We note that the defendant concedes that if our review is not plenary, then he cannot prevail.

       We note that the appeal was filed from the remand order and the award of attorney’s fees. Federal case law has interpreted 28 U.S.C. § 1447 (d) as barring review of a remand due to lack of subject matter jurisdiction. See Mitskovski v. Buffalo & Fort Erie Public Bridge Authority, 435 F.3d 127, 131 (2d Cir. 2006); Hamilton v. Aetna Life & Casualty Co., 5 F.3d 642, 644 (2d Cir. 1993), cert. denied, 510 U.S. 1130, 114 S. Ct. 1100, 127 L. Ed. 2d 413 (1994). Thus, the only issue on appeal in the United States Court of Appeals for the Second Circuit would be the District Court’s decision to award attorney’s fees due to an improper removal of this case from state court. Furthermore, the defendant’s appeal was dismissed for failure to prosecute on October 5, 2005, by the Second Circuit.

       Section 1446 of title 28 of the United States Code provides, in relevant part, the procedure for removal: “(a) A defendant . . . desiring to remove any civil action . . . from a State court shall file in the district court of the United States for the district and division within which such action is pending a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant ... in such action.
      “(b) The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter. . . .
      “(d) Promptly after the filing of such notice of removal of a civil action the defendant . . . shall give written notice thereof to all adverse parties and shall file a copy of the notice with the clerk of such State court, which shall effect the removal and the State court shall proceed no further unless and until the case is remanded. . . .”

       Section 1447 of title 28 of the United States Code provides, in relevant part, the procedure after removal generally: “(c) A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446 (a) [civil rights cases]. If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded. An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal. A certified copy of the order of remand shall be mailed by the clerk to the clerk of the State court. The State court may thereupon proceed with such case.
      “(d) An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise, except that an order remanding a case to the State court from which it was removed pursuant to section 1443 of this title shall be reviewable by appeal or otherwise. . . .”

       We note that here, the defendant filed the motion to open more than twenty days after the judgment. The court ruled on that motion on February 2, 2006, and the defendant timely filed a motion to reargue the motion to open on February 22, 2006. A motion to reargue a motion to open does not extend the appeal period to challenge the merits of the underlying judgment. The filing of a motion to reargue within the time to appeal the denial of the motion to open does, however, give rise to a new appeal period within which to challenge the ruling on the motion to open. See Tiber Holding Corp. v. Greenberg, 36 Conn. App. 670, 652 A.2d 1063 (1995); see also Practice Book § 63-1 (c) (1). The court ruled on the motion to reargue on April 13, 2006, and the appeal was filed on May 8, 2006. Thus, the appeal is timely as to the motion to open.

       General Statutes § 52-121 (c) provides: “No penalty for failure to plead within the time provided by any rule relating to the filing of any pleading may be imposed upon any party to any action unless the failure is a violation of an order or judgment made by the court after notice and hearing thereon."

         General Statutes § 52-121 (b) provides: “No judgment of nonsuit or default, in any case in which appearance has been entered by the defendant, may be entered by the clerk of any court for failure to plead within the time fixed by statute, or by any rule of any court, until an order for it has been passed by the court after reasonable notice to the opposing counsel and hearing thereon.”


author: SCHALLER, J.

text:
    GABRIANA MILLER ET AL. v. STEPHEN FISHMAN ET AL.
    (AC 26884)
    Schaller, Rogers and West, Js.
    Argued January 5
    officially released July 10, 2007

      Joshua D. Koskoff, with whom was Cynthia, C. Bolt, for the appellants (plaintiffs).

      Stephen V. Manning, with whom were Donna R. Zito, and, on the brief, Michael G. Rigg, for the appellee (defendant Stephen Fishman).
   Opinion

SCHALLER, J.

In this medical malpractice action, the plaintiffs, Gabriana Miller and her parents, Georgiana Miller and Aaron Scott Miller, individually and on behalf of Gabriana Miller, appeal from the decisions of the trial court to render summary judgment in favor of the defendant Stephen Fishman and to deny their request for leave to file a second amended complaint. On appeal, the plaintiffs claim that the summary judgment should be reversed because the court (1) improperly failed to take their proposed amendment into account in ruling on the defendant’s motion for summary judgment and (2) abused its discretion in denying their request to amend their complaint. We reverse the judgment of the trial court and remand the case for further proceedings consistent with this opinion.

The record reveals the following facts and procedural history. On May 27, 1999, the minor plaintiff suffered a permanent brachial plexus injury to her left shoulder during birth. On May 21, 2001, the plaintiff parents commenced this action individually and on behalf of their daughter, broadly alleging negligence and lack of informed consent against the defendant, an obstetrician and gynecologist. Following several requests to revise, the operative pleading, the first amended complaint dated February 5, 2003, was filed by the plaintiffs. In count one of their amended complaint, the plaintiffs alleged that the minor plaintiffs injury was caused by the defendant’s negligence in failing to diagnose and treat properly the plaintiff mother’s gestational diabetes, high blood pressure and the presence of meconium in her amniotic fluid. In count two of their amended complaint, the plaintiffs further alleged that the minor plaintiffs injury was due to the defendant’s failure to obtain the informed consent of the plaintiff mother through disclosure of the risks of a vacuum assisted delivery in a case of gestational diabetes. It is undisputed that the plaintiff mother did not have gestational diabetes, high blood pressure or meconium in her amniotic fluid.

On February 19, 2004, the defendant filed a motion for summary judgment, asserting that there was no evidence that the plaintiff mother had gestational diabetes, high blood pressure or meconium in her amniotic fluid when he first treated her on May 27, 1999, or that the defendant failed to diagnose these conditions. The defendant further asserted that the plaintiffs lacked expert testimony to support their claims that the delivery complications were the result of the defendant’s negligence with respect to these conditions. In their objection to the summary judgment motion, the plaintiffs cited the need for additional discovery and indicated that they subsequently would amend their complaint to set forth fully their allegations of negligence. The court granted a continuance of the defendant’s motion.

On May 27, 2005, the defendant filed a renewed motion for summary judgment, reasserting that the plaintiffs lacked evidence and expert testimony to support the allegations in their operative complaint. On July 13, 2005, following the deposition of the plaintiffs’ expert, Lawrence S. Borow, an obstetrician and gynecologist, the defendant filed a supplemental memorandum of law in support of his summary judgment motion, arguing that Borow’s testimony did not support the allegations of the operative complaint. The plaintiffs’ objection to the defendant’s motion for summary judgment was submitted on July 22, 2005.

On July 14, 2005, after obtaining new counsel, the plaintiffs filed a request for leave to amend their complaint to conform their allegations against the defendant to the facts of their case as had been revealed through discovery. In their proposed second amended complaint, the plaintiffs contended, inter alia, that the defendant negligently failed to estimate the size and weight of the infant adequately and properly, failed to evaluate the quality of the mother’s labor, improperly used a vacuum extractor and failed to manage the complication of shoulder dystocia properly. The proposed amendment further alleged that the defendant failed to obtain the informed consent of the plaintiff mother as to the use of a vacuum extractor. The defendant submitted his objection to the request for leave to file an amended complaint on July 19, 2005.

The court, Miller, J., granted the defendant’s motion for summary judgment on August 8, 2005. The plaintiffs filed a motion for reconsideration and reargument on August 10, 2005, which the court denied. That same day, the court, Langenbach, J., denied the plaintiffs’ request for leave to file an amended complaint. This appeal followed. Additional facts will be set forth as necessary.

I

The plaintiffs claim that the court improperly failed to take their proposed amendment into account in ruling on the defendant’s motion for summary judgment. We conclude that under the facts and circumstances of this case, the court abused its discretion.

In their objection to the defendant’s motion for summary judgment, the plaintiffs argued that the defendant’s motion was addressed to the operative complaint and, therefore, should be denied as moot because a request to amend the complaint had been filed. Despite this argument, the court granted the defendant’s motion for summary judgment without considering the plaintiffs’ proposed amendment. Specifically, the court stated that “[t]he plaintiffs’ attempt ... to amend their complaint has had no impact whatsoever on this court’s consideration of this motion. . . . The defendant is clearly entitled to a decision on his motion based on the pleadings as they now stand, not on the pleading which [the] plaintiffs would like to see become the operative complaint.” (Citations omitted.) The court rendered summary judgment upon concluding that the plaintiffs could not support the theories of liability set forth in their operative complaint because “[a]ll of the allegations of wrongdoing against [the defendant], as set forth in the first two counts of the operative complaint, are founded on the allegations concerning the plaintiff mother’s gestational diabetes and high blood pressure, as well as the alleged presence of meconium in the amniotic fluid.”

It is well settled that whether to allow an amendment to the pleadings rests within the discretion of the trial court. See, e.g., Franc v. Bethel Holding Co., 73 Conn. App. 114, 132, 807 A.2d 519, cert. granted on other grounds, 262 Conn. 923, 812 A.2d 864 (2002) (appeal withdrawn October 21, 2003); see also Practice Book § 10-60. The court’s discretion, however, is not unfettered; it is a legal discretion subject to review. See Cook v. Lawlor, 139 Conn. 68, 71, 90 A.2d 164 (1952). “The trial court’s 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.) Costanzo v. Mulshine, 94 Conn. App. 655, 662, 893 A.2d 905, cert. denied, 279 Conn. 911, 902 A.2d 1070 (2006).

In the present case, the court had before it the plaintiffs’ request to amend and the defendant’s objection thereto at the time that it ruled on the defendant’s motion for summary judgment. In ruling on the motion for summary judgment without considering the pending request to amend, the court declined to exercise its discretion with respect to the plaintiffs’ request to amend. The defendant’s motion for summary judgment rested entirely on the plaintiffs’ inability to support the theories of liability set forth in their operative complaint. Had the plaintiffs been allowed to amend their complaint to conform to the facts of their claims, which had been revealed in the course of discovery, the basis for summary judgment would have fallen away. In this respect, the present case is distinguishable from other cases in which requests to amend were filed in response to motions for summary judgment. For example, in LaFlamme v. Dallessio, 65 Conn. App. 1, 7, 781 A.2d 482 (2001), rev’d on other grounds, 261 Conn. 247, 802 A.2d 63 (2002), this court held that it was a proper exercise of the trial court’s discretion to render summary judgment and thereafter to decline to act on a pending request to amend. In LaFlamme, however, the defendant’s motion for summary judgment did not rest on a failure of the operative complaint that could be remedied through a proper amendment.

Although we recognize the concern that amendments could be used as tactical measures to avoid summary judgment, we conclude that in this case, in light of the potential impact of the request to amend on the motion for summary judgment, the court’s failure to exercise its discretion constituted an abuse of discretion and resulted in an injustice to the plaintiffs. See Costanzo v. Mulshine, supra, 94 Conn. App. 662. “Where . . . the trial court is properly called upon to exercise its discretion, its failure to do so is error.” (Internal quotation marks omitted.) Higgins v. Karp, 243 Conn. 495, 504, 706 A.2d 1 (1998). We emphasize that we are not ruling that trial courts are required, in every instance, to consider requests to amend filed in response to motions for summary judgment. Our decision is confined by the particular facts and circumstances of this case.

Because the decisions with respect to the request to amend and the motion for summary judgment are interrelated, we must next consider whether the court abused its discretion in denying the plaintiffs’ request for leave to amend their complaint.

II

The plaintiffs also claim that the court abused its discretion in refusing to permit an amendment to their operative complaint to conform to allegations that were broadly stated in their original complaint and that had surfaced during litigation. We conclude that under the circumstances of the present case, the court’s denial of the plaintiffs’ request to amend constituted an abuse of discretion.

“In detennining whether there has been an abuse of discretion [in granting or denying an amendment], much depends on the circumstances of each case. ... In the final analysis, the court will allow an amendment unless it will cause an unreasonable delay, mislead the opposing party, take unfair advantage of the opposing party or confuse the issues, or if there has been negligence or laches attaching to the offering party.” (Citations omitted; internal quotation marks omitted.) McNeil v. Riccio, 45 Conn. App. 466, 474, 696 A.2d 1050 (1997). “The essential tests are whether the ruling of the court will work an injustice to either the plaintiff or the defendant and whether the granting of the motion will unduly delay a trial.” (Emphasis added; internal quotation marks omitted.) Franc v. Bethel Holding Co., supra, 73 Conn. App. 132. “In exercising its discretion with reference to a motion for leave to amend, a court should ordinarily be guided by its determination of the question whether the greater injustice will be done to the mover by denying him his day in court on the subject matter of the proposed amendment or to his adversary by granting the motion, with the resultant delay.” Cook v. Lawlor, supra, 139 Conn. 72.

Following the plaintiffs’ motion for articulation of the court’s decision to deny the plaintiffs’ request to amend, the court explained that it had exercised its discretion to deny the plaintiffs’ request to amend for the following reasons: (1) the request was untimely; (2) the delay in filing the request was due to the plaintiffs’ negligence; (3) granting the request would unduly delay trial; (4) the proposed amendment did not relate back to the allegations of the operative complaint and, therefore, the causes of action were time barred; and (5) granting the request would be unfairly prejudicial to the defendant insofar as it would require additional experts, discovery and trial preparation.

We agree with the court that the plaintiffs were negligent in failing to file their request to amend in a timely fashion. Our review of the record reveals that the plaintiffs filed a first amended complaint in 2001 setting forth mistaken facts as to the plaintiff mother’s condition and, thereafter, revised that complaint before filing the 2003 operative complaint containing the same erroneous facts. Furthermore, the plaintiffs had notice of the error well before filing their request to amend in July, 2005. Notably, before the plaintiffs moved to amend, the defendant filed two motions for summary judgment, asserting that there was no evidence that the plaintiff mother had suffered from the conditions stated in the operative complaint. The plaintiffs, nevertheless, insist that the mistakes of the plaintiffs’ former attorneys with respect to the delayed request should not be imputed to the minor plaintiff, who did not choose her attorneys. They further contend that in denying their request to amend, the court improperly failed to fulfill its obligation to protect and safeguard the well-being of minors. We rejected this very argument in Skinner v. Doelger, 99 Conn. App. 540, 561-62, 915 A.2d 314, cert. denied, 282 Conn. 902, 919 A.2d 1037 (2007). Indeed, it is well established that a client may be held accountable for the transgressions of his attorney; see Gionfrido v. Wharf Realty, Inc., 193 Conn. 28, 33, 474 A.2d 787 (1984); and our courts have not created an exception to this rule for minor litigants. See Ruddock v. Burrowes, 243 Conn. 569, 706 A.2d 967 (1998); Skinner v. Doelger, supra, 561-62.

Although we agree with the court that the plaintiffs were negligent in failing to file a timely request to amend, we do not agree that under the circumstances of this case, granting the amendment would have unduly delayed trial or unfairly prejudiced the defendant. The plaintiffs’ request to amend was filed approximately one month prior to the date jury selection was scheduled to begin and did not set forth new theories of liability. Rather, the proposed amendment merely enumerated the specific facts supporting the plaintiffs’ claims that had been revealed through discovery. The circumstances under which our courts have held that requests to amend properly were denied are considerably more egregious than those of the present case. See Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 258, 905 A.2d 1165 (2006); AirKaman, Inc. v. Groppo, 221 Conn. 751, 767, 607 A.2d 410 (1992) (trial court did not abuse discretion by denying request to amend complaint where pleadings had been closed, opposing party had submitted trial brief and claim would require additional discovery), superseded by statute on other grounds as stated in Renaissance Management Co. v. Commissioner of Revenue Services, 48 Conn. Sup. 221, 838 A.2d 260 (2002), aff'd, 267 Conn. 188, 836 A.2d 1180 (2003); Connecticut National Bank v. Douglas, 221 Conn. 530, 548, 606 A.2d 684 (1992) (trial court did not abuse discretion by denying request to amend that was filed approximately two weeks before trial and ‘would have added lengthy new allegations of fact and law’); Beckman v. Jalich Homes, Inc., 190 Conn. 299, 303, 460 A.2d 488 (1983) (trial court did not abuse discretion by denying request to amend that was filed day before trial and would have added new bases of liability); but see Cook v. Lawlor, supra, 139 Conn. 72-73 (trial court abused discretion in disallowing proposed amendment not requested during or on eve of trial that would have provided vital defense if permitted).

Moreover, in the present case, the defendant was put on notice, through discovery, that the allegations against him did not arise from the conditions of gestational diabetes, high blood pressure and meconium in the amniotic fluid as stated in the operative complaint. In April, 2003, the plaintiffs responded to interrogatories by stating that “the plaintiff [mother] [had] not been diagnosed with gestational diabetes.” In his affidavit dated February 10, 2004, the defendant attested that “[a]t no time during [the plaintiff mother’s] pregnancy . . . did [he] diagnose her as having gestational diabetes [or] pregnancy induced hypertension.” He also stated that the plaintiff mother “had no clinical indications of gestational diabetes” or “clinical problems associated with pregnancy induced hypertension [or] the presence of meconium” on the date of delivery. Further, as discovery proceeded, the specific theory underlying the plaintiffs’ claims of negligence and lack of informed consent became apparent through the opinions of their expert witnesses. In an affidavit prepared in April, 2004, the plaintiffs’ expert, Berto Lopez, an obstetrician and gynecologist, concluded that the plaintiff infant’s injury was the result of the defendant’s failure to manage properly the complication of shoulder dystocia and his improper use of the vacuum. Specifically, Lopez stated that “[t]he application of the vacuum extraction in light of a known or suspected shoulder dystocia is below the standard of care of the average qualified obstetrician.” Thereafter, in April, 2005, the plaintiff disclosed that their second expert, Borow, would testify that in his opinion, to a reasonable degree of medical certainty, the plaintiff infant’s injury “was caused by excessive traction to the fetal head and neck . . . without recognizing the shoulder dystocia” and that “a cesarean section, not a vacuum extraction in this high risk for injury case, was indicated.”

The defendant thus had been apprised of the actual bases of the plaintiffs’ claims through the course of the litigation. In fairness, the proposed amendment did not alter the substance of the plaintiffs’ claims, and, therefore, the preparation of a defense would not have required significant additional time and resources, resulting in delay and prejudicing the defendant. See Tornaquindici v. Keggi, 94 Conn. App. 828, 843-44, 894 A.2d 1019 (2006) (trial court properly exercised discretion to allow amendment to complaint upon finding amendment adding specification of damages of which defendant had been apprised through litigation would not result in undue delay or prejudice opposing party); Bourquin v. Melsungen, 40 Conn. App. 302, 309-12, 670 A.2d 1322, (proposed amendment that did not enlarge original specifications of negligence or inject new facts of which defendant unaware would not have delayed trial and should have been permitted), cert. denied, 237 Conn. 909, 675 A.2d 456 (1996).

We further conclude that the proposed amended complaint related back to the original complaint, and, therefore, the plaintiffs’ causes of action were not barred by the applicable statute of limitations. In denying the plaintiffs’ request to amend on the basis of the relation back doctrine, the court improperly relied on the operative complaint, which had been filed beyond the limitations period. The relevant complaint for purposes of the relation back doctrine is the original complaint. Indeed, it is well settled that an amended complaint relates back to and is treated as filed at the time of the original complaint unless it alleges a new cause of action. Jonap v. Silver, 1 Conn. App. 550, 555, 474 A.2d 800 (1984). Thus, an amendment cannot allege a new cause of action that would be barred by the statute of limitations if filed independently. 1 E. Stephenson, Connecticut Civil Procedure (3d Ed. 1997) § 55 e, pp. 185-86. “Our relation back doctrine provides that an amendment relates back when the original complaint has given the party fair notice that a claim is being asserted stemming from a particular transaction or occurrence, thereby serving the objectives of our statute of limitations, namely, to protect parties from having to defend against stale claims . . . .” (Internal quotation marks omitted.) Franc v. Bethel Holding Co., supra, 73 Conn. App. 136.

The defendant nonetheless argues that the proposed amendment must relate back to the operative complaint, if at all, because the original complaint was effectively withdrawn upon the filing of the first amended complaint. We are not persuaded. Although it is well settled that “[t]he voluntary filing of an amended complaint operates as a withdrawal of the prior complaint [so that the prior complaint] can furnish no basis for a judgment, nor can any previous ruling on it be made a subject of appeal”; Connecticut Bank of Commerce v. Giordano, 67 Conn. App. 79, 81, 787 A.2d 9 (2001), cert. denied, 259 Conn. 929, 793 A.2d 253 (2002); whether an amendment relates back to an original complaint for statute of limitations purposes presents a different procedural issue.

With reference to the original complaint, our inquiry as to whether the plaintiffs’ proposed amendment related back centers on whether the proposed amendment sets forth new causes of action. We conclude that it did not. “A cause of action is that single group of facts which is claimed to have brought about an unlawful injury to the plaintiff and which entitles the plaintiff to relief. ... A right of action at law arises from the existence of a primary right in the plaintiff, and an invasion of that right by some delict on the part of the defendant. The facts which establish the existence of that right and that delict constitute the cause of action. ... A change in, or an addition to, a ground of negligence or an act of negligence arising out of the single group of facts which was originally claimed to have brought about the unlawful injury to the plaintiff does not change the cause of action. ... It is proper to amplify or expand what has already been alleged in support of a cause of action, provided the identify of the cause of action remains substantially the same, but where an entirely new and different factual situation is presented, a new and different cause of action is stated.” (Internal quotation marks omitted.) Alswanger v. Smego, 257 Conn. 58, 64-65, 776 A.2d 444 (2001).

With these legal principles in mind, we turn to the specific circumstances of the present case. The causes of action, as generally stated in the plaintiffs’ original complaint, arose from the defendant’s allegedly negligent treatment of the plaintiff mother and failure to obtain her informed consent through disclosure of the material risks of and alternatives to his chosen treatment during the period of August, 1998, through May 27, 1999, the date of delivery. The claims asserted in the original complaint encompassed the defendant’s alleged negligence in managing the delivery of the minor plaintiff and his failure to obtain informed consent as to the use of the vacuum. The amendment did not change the identity of the causes of action; it merely specified the ways in which the defendant was negligent in delivering the minor plaintiff and the manner in which he failed to obtain the informed consent of the plaintiff mother. The amendment further delineated the precise injuries sustained by the minor plaintiff. The amendment properly amplified or expanded the allegations broadly stated in the original complaint and, therefore, related back to the original complaint.

In balancing the factors to be considered in ruling on a motion to amend, we conclude that under the facts and circumstances of this case, the court abused its discretion in denying the plaintiffs’ request to amend. As we previously noted, the court’s discretion should be “exercised in conformity with the spirit of the law and should not impede or defeat the ends of substantial justice.” Costanzo v. Mulshine, supra, 94 Conn. App. 662. Here, as a result of the court’s denial of their request to amend, the plaintiffs were prevented from pursuing their claims on the merits against the defendant in a trial. Because the amendment properly related back to the original complaint and would not have unduly delayed trial or unfairly prejudiced the defendant, the denial of the request to amend resulted in an injustice to the plaintiffs. See Cook v. Lawlor, supra, 139 Conn. 72-73; cf. Franc v. Bethel Holding Co., supra, 73 Conn. App. 132. In light of our conclusion that the court should have allowed the plaintiffs to amend their complaint, it follows that the summary judgment rendered on the ground that the plaintiffs could not support the allegations set forth in their operative complaint must be reversed.

The judgment is reversed and the case is remanded for further proceedings according to law.

In this opinion the other judges concurred.

       Wendy Amblo, a physician, Saint Francis Hospital and Medical Center and Woodland Women’s Health Association originally were named as defendants. The plaintiffs voluntarily withdrew their complaint as to Saint Francis Hospital and Medical Center and Woodland Women’s Health Association. Thereafter, the court rendered summary judgment in favor of Amblo, who is not a party to this appeal. We therefore refer in this opinion to Fishman as the defendant.

       On appeal, the plaintiffs also claim that the court improperly rendered summary judgment in favor of the defendant because there were genuine issues of material fact to be decided by a jury. The plaintiffs assert, in essence, that the court improperly concluded that expert testimony was required to support their claim of lack of informed consent and that the court applied an overly narrow reading of their operative complaint in rendering summary judgment. Because we reverse the judgment on other grounds, we decline to reach these issues.

       On February 20, 2007, pursuant to an order by this court, the trial court ordered a rectification of the record to include the first amended complaint in the trial court file and the docket summary and to reflect a filing date of February 5, 2003, as stipulated to by the parties.

       Both the original complaint and the first amended complaint were filed by Ross A. Annenberg, an attorney with the Massachusetts law firm of Annenberg & Levine, LLC, licensed to practice law in Connecticut. On November 5, 2001, the court granted Annenberg’s motion for the admission of his partner, Kenneth M. Levine, to appear pro hac vice. Levine’s pro hac vice status subsequently was revoked by the court on December 27, 2004. The plaintiffs then retained the Connecticut law firm of Koskoff, Koskoff & Bieder, P.C. An appearance was filed on their behalf by the firm on June 2, 2005.

       Practice Book § 10-60 provides in relevant part: “(a) ... [A] party may amend his or her pleadings ... at any time subsequent to that stated in the preceding section in the following manner . . .
      “(3) By filing a request for leave to file such amendment ....
      “(b) The judicial authority may restrain such amendments so far as may be necessary to compel the parties to join issue in a reasonable time for trial. . . .”

       The statute of limitations for medical malpractice actions is set forth in General Statutes § 52-584, which provides: “No action to recover damages for injury to the person, orto real orpersonal property, caused by negligence, or by reckless or wanton misconduct, or by malpractice of a physician, surgeon, dentist, podiatrist, chiropractor, hospital or sanatorium, shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed.”


author: PER CURIAM.

text:
    EUGENE R. SCHIAVONE v. BANK OF AMERICA, N.A.
    (AC 28119)
    DiPentima, Gruendel and Hennessy, Js.
    Argued March 14
    officially released July 10, 2007

      John M. Eichholz, for the appellant (plaintiff).

      Gerald L. Garlick, with whom was Katherine E. Abel, for the appellee (defendant).
   Opinion

PER CURIAM.

The plaintiff, Eugene R. Schiavone, appeals from the trial court’s judgment in favor of the defendant, Bank of America, N.A. On appeal, the plaintiff claims that the factual findings of the court are clearly erroneous. We disagree and affirm the judgment of the trial court.

The court found the following facts. On August 24, 1988, the plaintiff deposited $50,000 in a six month certificate of deposit with Connecticut National Bank, a predecessor in interest to the defendant. The deposit was reflected in a document entitled “Savings Investment Certificate,” which was eight and one-half inches by three inches in size. The maturity date was February 24, 1989, and the interest rate was 8 percent.

The plaintiff was a longtime resident of Old Saybrook and had resided at the same address for many years. He operated a business, with thirteen locations, which originated loans and then sold them to banks. In 1988, the plaintiff’s income was more than $1 million. In 1989, however, the plaintiff’s income dropped to approximately $360,000.

In addition, the plaintiff’s federal income tax returns for the years 1988 and 1989 showed interest from Connecticut National Bank in amounts that could have included the interest that would have accrued for the certificate at issue. The subsequent income tax returns did not reflect such interest.

The bank adhered to the following practices and procedures, at all times relevant to this case. Statements and notices were mailed to its depositors. Ten days prior to the maturity date of a certificate of deposit, the bank would send a letter to the customer. If the customer did not withdraw the amount in the account, the entire certificate of deposit would be rolled over into a new certificate of the same duration. If the entire amount was withdrawn, the bank would maintain the record of the account for seven years. Furthermore, during the period from 1988 through the present, the bank did not require the presentation of the original certificate of deposit as a prerequisite to withdrawing the deposited funds. In fact, a customer presenting two forms of identification was able to withdraw the funds secured by the certificate without presenting the original certificate.

The plaintiff testified that in 1988, he placed the certificate in a safety deposit box. He further testified that in February, 2000, he found the certificate and took it to the Essex branch of the bank and told the branch manager of the bank that he could not remember whether he had cashed the certificate or not. The branch manager was unable to find a record of the plaintiffs account. The court inferred from the facts in evidence that because the bank maintains records of all accounts for seven years after the accounts are closed, the plaintiffs account with the defendant must have been closed prior to 1993. It was on September 8, 2004, that the plaintiffs attorney contacted Fleet Bank, a predecessor in interest to the defendant, on behalf of the plaintiff, requesting information on the plaintiffs account.

On appeal, the plaintiff claims that several of the court’s factual findings are clearly erroneous. Specifically, the plaintiff argues “[t]he court’s reference to the interest from Connecticut National Bank and reported on the 1988 tax returns . . . and its subsequent conclusion that the plaintiff has failed to sustain his burden of proof that the certificate of deposit has not been paid because of the interest reported on the 1988 tax return is a conclusion based on information or evidence not introduced into the record.” (Citation omitted.) Because we conclude that the facts set out in the memorandum of decision are supported by the evidence, we disagree with the plaintiff.

“[W]e will upset a factual determination of the trial court only if it is clearly erroneous. The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . We cannot retry the facts or pass on the credibility of the witnesses. A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Forastiere v. Higbie, 95 Conn. App. 652, 655-56, 897 A.2d 722, cert. denied, 280 Conn. 902, 907 A.2d 89 (2006). “In making this determination, every reasonable presumption must be given in favor of the trial court’s ruling.” (Internal quotation marks omitted.) Wesley v. Schaller Subaru, Inc., 277 Conn. 526, 544, 893 A.2d 389 (2006).

Upon careful review of the record, we conclude that the court’s finding that the plaintiff failed to meet his burden of proof is supported by facts in the record and reasonable inferences drawn therefrom. The court credited the plaintiffs testimony that he placed the certificate in a safety deposit box. The court found that because the plaintiff had lived at the same address for the period in question and the bank’s policy was to send out statements, it was reasonable to infer that he did receive the notices from Connecticut National Bank concerning the certificate of deposit at issue. The court further reasoned that such statements from the defendant would remind the plaintiff of the existence of his $50,000. The court found it unbelievable that the plaintiff, a businessman who routinely interacts with banks, and whose income had dropped by $700,000 in 1989, would have simply forgotten that he had $50,000 on deposit with the defendant. The court referenced the fact that the plaintiffs federal income tax returns in 1988 and 1989 reflected interest from the bank that could include interest from the certificate of deposit at issue and, further, that the plaintiffs subsequent tax returns did not reflect any such interest. Additionally, the court found that the plaintiffs possession of the original certificate of deposit, in light of the bank’s procedures, was not proof that he had not cashed in that certificate. On the basis of all of those findings, not one or two isolated facts, the court found that the plaintiff did not sustain his burden of proof. We conclude, in light of all the evidence and the pleadings in the record as a whole, that the court’s finding that the plaintiff did not sustain his burden of proof was proper.

The judgment is affirmed.

       We note that the plaintiff also claims that the court improperly allowed the defendant to use the equitable defense of laches in an action at law. Because we conclude that the court properly found that the plaintiff did not sustain his burden of proof, we do not reach the issue of the defendant’s use of the equitable defense of laches.

       “The bank” refers collectively to Connecticut National Bank and its successors in interest. Fleet Bank was a successor in interest to Connecticut National Bank. Bank of America, N.A., was a successor in interest to Fleet Bank.


author: MIHALAKOS, J.

text:
    ANTHONY D. BOONE, ADMINISTRATOR (ESTATE OF KYLE KALIK BOONE), ET AL. v. WILLIAM W. BACKUS HOSPITAL
    (AC 27502)
    Bishop, Lavine and Mihalakos, Js.

      Argued April 16
    officially released July 10, 2007

      Joseph A. Moniz, for the appellants (plaintiffs).

      Jeffrey F. Buebendorf for the appellee (defendant).
   Opinion

MIHALAKOS, J.

The plaintiff Anthony D. Boone, on his own behalf and as administrator of the estate of his son, Kyle Kalik Boone, appeals from the summary judgment rendered in favor of the defendant, William W. Backus Hospital. The plaintiff claims that the court improperly determined that (1) all of his claims were barred by res judicata or collateral estoppel and (2) General Statutes § 52-592, the accidental failure of suit statute, was inapplicable to his case. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the plaintiffs appeal. “On December 22, 1999, at approximately 5:30 p.m., Heidi Hansen brought her four year old son, the plaintiffs decedent (decedent), to the hospital because he was complaining of pain in his right ear and she observed pus oozing from the ear.” Boone v. William W. Backus Hospital, 272 Conn. 551, 553, 864 A.2d 1 (2005) (Boone I). Shortly after receiving medication for this problem, the decedent became violently ill, and a hospital nurse informed Hansen that this reaction to the medication was normal and that it was safe to take the decedent home. Id. The decedent’s condition did not improve, and Hansen returned to the hospital with him several times that night, in an effort to get additional medical assistance, but each time, Hansen was instructed to leave. Id., 553-54. Several hours later, Hansen returned to the hospital with the decedent, who by this point was lethargic and unresponsive to verbal commands. Id., 554. After several unsuccessful attempts by hospital personnel to revive the decedent, he was pronounced dead. Id.

“On June 25, 2001, the plaintiff commenced the [original] action against the . . . defendant. He subsequently filed an amended complaint that alleged, in the first count, that the defendant was negligent in one or more of the following ways: (1) hiring and/or retention of its staff; (2) failing to provide adequate supervision and training of its staff; (3) failing to adequately train, educate or instruct its staff to recognize a severe allergic reaction to medication; (4) failing to warn its staff about the risks and dangers of allergic reactions; (5) failing to provide adequate and proper medical treatment; and (6) failing to respond adequately to the emergency presented on December 22, 1999, when Hansen returned to the hospital twice seeking assistance for the decedent and insisting that she leave despite his worsening condition. In the second count of the complaint, the plaintiff alleged that the defendant was reckless in one or more of the following ways: (1) failing to provide medical treatment; (2) failing to respond adequately to the emergency presented on December 22, 1999, when Hansen returned to the hospital twice seeking assistance for the decedent and insisting that they leave while his condition deteriorated; and (3) failing to consult with a physician before insisting that Hansen and the decedent leave and threatening to call security.

“On August 29,2002, the trial court entered a scheduling order that required the plaintiff to disclose any expert witnesses on or before October 26, 2002. On December 5, 2002, the plaintiff had not yet disclosed any expert witnesses, and, accordingly, the defendant filed a motion to preclude future disclosures to prevent possible prejudice and delay. On March 3,2003, the trial court granted the defendant’s motion and foreclosed the plaintiff from offering expert testimony in support of his claims. The defendant then filed a motion for summary judgment, arguing that the plaintiffs complaint alleged a medical malpractice claim and that, because the plaintiff would be required to present expert testimony to prevail upon such a claim but now was precluded from doing so, no genuine issue of material fact existed. . . .

“On September 26, 2003, the trial court issued a memorandum of decision granting the defendant’s motion for summary judgment. The trial court concluded that the plaintiffs claims sounded in medical malpractice because (1) the defendant was sued in its capacity as a provider of emergency medical services, (2) the alleged negligence was of a specialized medical nature arising out of the medical professional relationship, and (3) the alleged negligence was substantially related to medical diagnoses or treatment and involved the exercise of medical judgment. The trial court recognized that, to prevail in a medical malpractice claim, the plaintiff must prove, ordinarily through expert testimony: ‘(1) the requisite standard of care, (2) a deviation from the standard of care and (3) a causal connection between the deviation and the claimed injury.’ The court held that, while expert testimony might not be necessary to establish the defendant’s negligence under these circumstances, such testimony would be necessary to establish causation because the average layperson . . . could not determine, ‘without the aid of expert testimony that if the child had been accepted back in the emergency room earlier and treated that the tragedy which resulted would not have occurred.’ Accordingly, the trial court rendered summary judgment in favor of the defendant.” Id., 554-58. The plaintiff then filed an appeal.

The plaintiff argued on appeal that the court improperly determined that his claims were medical malpractice claims. He also argued that expert testimony was not required to prove the proximate cause of death of the decedent, and, alternatively, if his claims sounded in medical malpractice, expert testimony was not required to prove proximate causation “because the defendant’s actions constituted such gross want of care or skill as to give rise to an almost conclusive inference of negligence and fall under the doctrine of res ipsa loquitur.” Id., 558. Our Supreme Court concluded that (1) the plaintiffs claims against the defendant alleged medical malpractice, rather than ordinary negligence, and therefore required expert testimony, (2) the defendant’s conduct was not so egregious as to constitute gross negligence, and the plaintiff, therefore, was required to present expert testimony, and (3) because the plaintiff did not disclose an expert witness, the trial court properly rendered summary judgment in favor of the defendant. Id;, 562-66, 575.

Following Boone I, the plaintiff filed a three count revised complaint against the defendant, on July 22, 2005. Counts one and two concerned the defendant’s alleged negligence and recklessness, similar to the claims raised in the complaint filed by the plaintiff in 2001. Count three of the complaint alleged a breach of contract with regard to the defendant’s rendering of medical services to the decedent. The defendant again filed a motion for summary judgment, on the basis of the doctrines of res judicata and collateral estoppel, which was granted by the court. The plaintiff then filed the current appeal. Additional facts will be set forth as necessary.

We begin by setting forth the applicable standard of review. “The standard of review of a trial court’s decision to grant a motion for summary judgment is well established and is set forth in Practice Book . . . § 17-49. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The test is whether a party would be entitled to a directed verdict on the same facts. ... A motion for summary judgment is properly granted if it raises at least one legally sufficient defense that would bar the plaintiffs claim and involves no triable issue of fact.” (Citations omitted; internal quotation marks omitted.) Daoust v. McWilliams, 49 Conn. App. 715, 719, 716 A.2d 922 (1998). As this appeal involves questions regarding the applicability of res judicata and collateral estoppel, it presents questions of law, which we review de novo. See id., 719-20.

I

The plaintiffs first claim is that the court’s rendering of summary judgment in favor of the defendant does not implicate res judicata or collateral estoppel because a summary judgment ruling is not always a judgment on the merits. Specifically, the plaintiff argues that because the court’s judgment was a consequence of a “procedural failure,” which stemmed from the plaintiffs failure to disclose an expert in a timely fashion, the merits of the plaintiffs cause of action were never reached, and, therefore, the doctrine of res judicata is inapplicable to counts one and two of the plaintiffs complaint. We are not persuaded.

“Although the doctrines of collateral estoppel and res judicata are conceptually related, in practice their application may yield distinct results. Unlike collateral estoppel, under which preclusion occurs only if a claim actually has been litigated, [u]nder the doctrine of res judicata, or claim preclusion, a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action on the same claim ... [or any claim based on the same operative facts that] might have been made.” (Internal quotation marks omitted.) Daoust v. McWilliams, supra, 49 Conn. App. 723-24.

This court has recognized that “a judgment obtained through the grant of summary judgment against a plaintiff constitutes a judgment on the merits for purposes of res judicata.” Id., 726-27. In its memorandum of decision, the court relied on this principle when it concluded that the summary judgment rendered by the trial court in Boone I had res judicata effect on counts one and two of the plaintiffs complaint. The plaintiff argues, in essence, for an exception to the doctrine of res judi-cata. There is no case law, however, to support the plaintiffs proposition that rendering judgment by summary judgment should not be considered a judgment on the merits when it results from the plaintiffs failure to comply with a court’s order to disclose an expert. For the foregoing reasons, we affirm the court’s judgment that barred the first and second counts of the plaintiffs complaint under the doctrine of res judicata.

As for the third count of the plaintiffs complaint, concerning the defendant’s alleged breach of contract in providing medical services to the decedent, the plaintiff concedes that if the doctrine of res judicata applied to counts one and two, the doctrine would apply to count three as well because “[count three] ar[ose] out of the same set of facts and circumstances as the claims in the original action.”

“Even though a single group of facts may give rise to rights for several different kinds of relief, it is still a single cause of action.” (Internal quotation marks omitted.) Daoust v. McWilliams, supra, 49 Conn. App. 722. As previously noted, the doctrine of res judicata is a bar to any subsequent action on the same claim or any claim that might have been made. Id., 723-24. Accordingly, res judicata bars count three of the complaint. In sum, we affirm the court’s judgment with regard to all three counts of the complaint.

II

The plaintiffs second claim is that § 52-592, the accidental failure of suit statute, is applicable to this case. Specifically, the plaintiff argues in his brief that the failure to disclose an expert within the time provided by the court’s scheduling order constituted a mistake within the ambit of § 52-592 (a).

“Although § 52-592 should be broadly construed because of its remedial nature, it should not be construed so broadly as to hamper a trial court’s ability to manage its docket by dismissing cases for appropriate transgressions. . . . Nevertheless, looming behind § 52-592 is the overarching policy of the law to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court.” (Citations omitted; internal quotation marks omitted.) Skinner v. Doelger, 99 Conn. App. 540, 554-55, 915 A.2d 314, cert. denied, 282 Conn. 902, 919 A.2d 1037 (2007).

The plaintiff seeks to categorize the summary judgment ruling in his case as a procedural or disciplinary dismissal, and he relies on Ruddock v. Burrowes, 243 Conn. 569, 706 A.2d 967 (1998), in support of his argument that the provisions of § 52-592 (a) entitle him to relief. In Ruddock, our Supreme Court concluded that whether the statute applied depends on the facts and circumstances surrounding the “disciplinary dismissal” of a plaintiffs case. Id., 570. “Disciplinary dismissals refer to cases dismissed for a variety of punitive reasons, such as the failure to attend a scheduled pretrial conference ... or the failure to close the pleadings in a timely manner.” (Citation omitted.) Skinner v. Doelger, supra, 99 Conn. App. 553-54. The Ruddock court also concluded that “a plaintiff must be afforded an opportunity to make a factual showing that the prior dismissal was a matter of form in the sense that the plaintiffs noncompliance with a court order occurred in circumstances such as mistake, inadvertence or excusable neglect.” (Internal quotation marks omitted.) Ruddock v. Burrowes, supra, 577. The Ruddock court recognized, however, that “§ 52-592 (a) affords no relief in cases in which a plaintiffs prior action was dismissed because the plaintiff . . . consented to its dismissal. Such consent may be inferred from a plaintiff’s failure to file a memorandum in opposition to a defendant’s motion to strike . . . .” (Citations omitted.) Id., 577-78.

In the present case, although a motion to strike was not filed, the defendant filed a motion to preclude expert witnesses on December 5, 2002. The record indicates that the plaintiff did not file an objection to the defendant’s motion to preclude. The plaintiff also did not appear at short calendar to argue against the motion to preclude, and, during the pretrial conference on this matter, counsel for the plaintiff argued that expert testimony was not required to prevail at trial. Until our Supreme Court’s decision in Boone I, the plaintiff continually asserted that expert testimony was not required in this case. The plaintiff, however, now claims that his earlier inaction with regard to the court’s scheduling order and the defendant’s subsequent motion to preclude were mistakes as a matter of form because they were “ ‘due to various enumerated procedural problems.’ ”

We fail to see how the plaintiff’s conduct here amounts to a mistake as a matter of form under § 52-592 (a). Although the plaintiff argues that he did not have sufficient time to name an expert, the plaintiff did not file any motions with the court to that effect, nor did he make such claims at short calendar or at the pretrial conference. The plaintiff had ample time to respond to the court’s scheduling order. From August, 2002, when the court entered the scheduling order, until March, 2003, when the court granted the defendant’s motion to preclude, the plaintiff had approximately six months to provide the court with a credible explanation for his failure, or inability, to disclose an expert in a timely manner. Rather than pursuing this course of action, the plaintiff instead did not appear at short calendar and argued at the pretrial conference and then again on appeal in Boone I that expert testimony was not required. This trial strategy having failed, the plaintiff now seeks to argue that his earlier inaction entitles him to relief under § 52-592 (a). Due to the fact that the plaintiffs claims already had been decided on the merits, through the court’s rendering of summary judgment, and because the plaintiffs conduct does not fall under any of the reasons designated in the accidental failure of suit statute, we conclude that the statute is inapplicable to this case.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 52-592 (a) provides 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 any matter of form, . . . or if a judgment of nonsuit has been rendered . . . the plaintiff, or, if the plaintiff is dead and the action by law survives, his executor or administrator, may commence a new action . . . for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment.” (Emphasis added.)

       Although we have concluded that the doctrine of res judicata bars all three counts of the complaint, and our resolution of the first claim, therefore, is dispositive of the appeal, we feel compelled to address the plaintiffs second claim because it concerns the rendering of judgment by summary judgment by the trial court and because his argument is a novel approach that does not appear to have been addressed directly by this court or our Supreme Court.

       The plaintiffs counsel made a similar argument during oral argument before this court.