author: KATZ, J. BERDON, J., with whom MCDONALD, J., joins,

text:
    PEABODY N.E., INC., ET AL. v. DEPARTMENT OF TRANSPORTATION
    (SC 16072)
    Berdon, Norcott, Katz, Palmer and McDonald, Js.

      Argued April 22
    officially released August 10, 1999

      Donald R. Cassling, pro hac vice, with whom were Lawrence H. Dickson and James J. Myers, pro hac vice, for the appellants (plaintiffs).

      Lawrence Russ, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (defendant).
   Opinion

KATZ, J.

General Statutes § 52-592 (a), which is part of our state’s “saving statute,” allows a plaintiff to bring an action that otherwise would be barred by an applicable statute of limitations, within one year after the determination of a prior action or after the reversal of a judgment, if the “original action” has failed to be tried on the merits for any of several reasons enumerated in the statute, and if the original action was for the same cause as the later action. Although the parties to this appeal raise several issues, the dispositive issue is whether the plaintiff, who has brought two separate actions within the applicable statute of limitations period, may bring a third action, under § 52-592 (a), when: (1) the third action is brought after the applicable statute of limitations period has expired; (2) the third action is brought within one year of the determination of the last action filed within the applicable limitations period; and (3) the third action is not brought within one year of the determination of the first action filed within the applicable limitations period. We conclude that such an action is, as a matter of law, time barred.

I

THE BACKGROUND FACTS AND PROCEDURAL HISTORY

The following facts, which reasonably could have been found by the trial court, and the following procedural history, are relevant to this appeal. On November 30,1983, the plaintiffs, Peabody, N.E., Inc., and Peabody International Corporation (collectively, Peabody), entered into a contract with the defendant, the department of transportation (state), for the reconstruction of Route 8 and the Commodore Hull Bridge over the Housatonic River from Shelton to Derby (project). In turn, on February 8,1984, Peabody, as general contractor, entered into a subcontract with Standard Structural Steel Company (Standard), primarily for the project’s structural steel work, in the amount of $8,765,000. The project was originally scheduled to be completed by January 21, 1987, or 1104 days after the project’s commencement. During the project, however, as a result of various factors which, according to the trial court, were caused by the state — for instance, changes in the bridge’s design — Standard’s contractual obligations were severely altered. Consequently, the length of the contract extended to 2562 days and Standard’s subcontract price increased to $11,968,612.05. A certificate of acceptance of the project was finally issued on September 23, 1991.

Prior to the completion of the project, on or about August 31, 1990, Standard submitted to Peabody a two volume written claim, with an accompanying six page summary, for additional compensation for extra work and expenses caused by the design changes. The total amount of this claim was $15,104,244.71. Peabody notified the state of Standard’s claim and forwarded two copies of Standard’s two volume claim to the state’s director of construction for the bureau of highways.

Negotiations took place between the state and Peabody, and between Peabody and Standard, to determine the cause and legitimacy of Standard’s extra costs. Eventually, on June 20, 1991, the state and Peabody reached a partial settlement which provided, inter alia, that the state would pay to Peabody $886,424, which Peabody would, in turn, pay to Standard.

On July, 2, 1991, Standard filed an action against Peabody in the United States District Court for the District of Connecticut (federal action). See Standard Structural Steel Co. v. Peabody N.E., Inc., Docket No. 2-91-CV-586. On July 29, 1991, Peabody filed an answer and third party complaint. By way of the third party complaint, Peabody sought to implead the state as a third party defendant, essentially denying liability to Standard and alleging that, “[t]o the extent that [Peabody is] found responsible to Standard for all or part of the claims set forth in the [complaint],” the state is liable to Peabody.

The state moved for a dismissal of Peabody’s third party action on the ground that the federal district court lacked jurisdiction over the action because the action was barred by the eleventh amendment to the United States constitution. On June 12,1992, the District Court granted the motion to dismiss, concluding that the court lacked jurisdiction over the action because, although General Statutes (Rev. to 1991) § 4-61 (a) constitutes an abrogation of eleventh amendment immunity for purposes of suit in state court, it does not do so for purposes of suit in federal court.

Standard, which had become insolvent during the pendency of its federal action, was placed into bankruptcy and, eventually, the Federal Deposit Insurance Corporation (FDIC) became its successor in interest as to any claims pertaining to the project. On May 20,1993, the FDIC filed an action against Peabody in. state court, based upon essentially the same allegations that Standard had asserted in its federal action. See Federal Deposit Ins. Corp. v. Peabody N.E., Inc., Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV93-525754-S (January 22, 1996).

On June 2, 1993, Peabody filed an answer and third party complaint, impleading the state into the state action and marking the commencement of Peabody’s state action (first state action). Peabody’s third party complaint is virtually identical to its analogous complaint in the federal action, with the addition of a paragraph providing: “To the extent [Standard/FDIC] incurred the damages and expenses as alleged, such damages and expenses were caused by acts and/or omissions of the State of Connecticut and not by any acts and/or omissions of Peabody.” Again, Peabody alleged that the state is liable to Peabody “ [t] o the extent that [Peabody is] found responsible to Standard . . . .”

On January 13, 1995, the state filed a motion to dismiss on the grounds that: (1) Peabody had not given to the state sufficient notice of a claim of the kind or in the manner required under § 4-61; and (2) Peabody’s complaint did not allege facts sufficient to make out a disputed claim under Peabody’s contract with the state because the claims asserted by Peabody were actually those of Standard. On January 22, 1996, the trial court denied the state’s motion, holding, inter alia, that the court did have jurisdiction over the action under § 4-61.

The state appealed from the trial court’s judgment to this court upon the granting of certification by the Chief Justice pursuant to General Statutes § 52-265a, as to the following issue: “Whether sovereign immunity bars, and deprives the court of subject matter jurisdiction over, a general contractor’s construction claim under ... § 4-61, when that claim’s purpose is to pass through to the State the general contractor’s potential liability to a subcontractor, even though: (a) the general contractor has denied any liability to the subcontractor, (b) no such liability has been proven, and (c) the subcontractor has no contractual privity with the State?”

We answered this certified question in Federal Deposit Ins. Corp. v. Peabody, N.E., Inc., 239 Conn. 93, 103, 680 A.2d 1321 (1996), in which we held that the allegations contained in Peabody’s third party complaint were, on their face, insufficient to allege a waiver of the state’s sovereign immunity, because they failed to allege that Peabody itself had a disputed claim under its contract with the state as required by § 4-61. We concluded that “a contractor cannot implead the state in an action against the contractor by a subcontractor unless the contractor admits liability to the subcontractor and incorporates the subcontractor’s claim into its own, so that the contractor then has a disputed claim under its own direct contract with the state.” Id., 105. Accordingly, we reversed the judgment of the trial court and remanded the case with direction to grant the state’s motion to dismiss the third party complaint and to render judgment thereon. Id. On November 11, 1996, on remand, the trial court dismissed Peabody’s first state action.

In July, 1996, Peabody agreed to settle Standard’s claim, paying $3.1 million to FDIC. Subsequently, on August 12, 1997, Peabody filed an action against the state in state court (present action). See Peabody, N.E., Inc. v. Dept. of Transportation, Superior Court, judicial district of Hartford-New Britain at New Britain, Docket No. CV 970482290S (May 1, 1998) (22 Conn. L. Rptr. 90). Although this action was brought almost three years after the expiration of the three year statute of limitations provided under § 4-61, Peabody brought this action pursuant to § 52-592 (a). According to Peabody, because the first state action was finally dismissed on November 11, 1996, Peabody may bring the present action because it filed its complaint on July 30, 1997, which was within one year of the dismissal.

On September 12, 1997, the state once again filed a motion to dismiss, arguing that, inter alia, “far more than one year [had] passed since ‘the original action’ . . . filed by Peabody based on those claims [federal action] was dismissed by the United States District Court for lack of jurisdiction . . . ,”

On May 1,1998, the trial court issued a memorandum of decision dismissing Peabody’s claim on the ground that Peabody had “failed to comply with the notice provision of § 4-61 (a).” The court stated that “[n]one of the . . . documents submitted by Peabody demonstrate that it provided written notice of its intention to file the present action, and the factual bases for same, to the agency head of the [state].” Because this failure deprived it of subject matter jurisdiction, the trial court did not address the other grounds for dismissal relied upon by the state, including the state’s argument that § 52-592 (a) does not operate to save the present action. Peabody appealed from the trial court’s judgment and, pursuant to Practice Book § 65-1 and General Statutes § 51-199 (c), we transferred the appeal to this court.

On appeal, Peabody claims that: (1) the trial court’s interpretation of § 4-61 was, for various reasons, improper; (2) under the proper interpretation of § 4-61, the trial court improperly dismissed Peabody’s action on the ground that Peabody had failed to provide adequate notice both of its intent to file the present action based on Standard’s claims and the factual bases for such claims; and (3) the trial court improperly concluded that a motion to dismiss is an appropriate vehicle by which to determine the sufficiency of the allegations regarding notice contained in Peabody’s complaint.

The state claims that the dismissal of Peabody’s action should be affirmed because: (1) the action was not brought within the applicable limitations period provided in § 4-61, which ended on September 22,1994, three year's after the issuance of the certificate of acceptance of the project; (2) Peabody’s pleadings do not allege the facts necessary to a finding that Peabody had complied with the notice provisions of § 4-61; and (3) the facts, documents and related arguments upon which Peabody relies to demonstrate its notice and the state’s alleged waiver of such notice were not properly submitted to the trial court and are not properly before this court. Additionally, the state argues that, for various reasons, Peabody cannot bring this action pursuant to § 52-592 (a), because, inter alia, the present action was not brought within one year of the federal action, which is, for purposes of the saving statute, the “original action.”

We agree with the state that the present action cannot be brought under § 52-592 (a) and is, therefore, untimely. Accordingly, we affirm the judgment of the trial court on that ground.

II

THE SAVING STATUTE

Although the parties raise several issues on appeal, the issue of whether the present action is time barred is dispositive of this appeal. Our conclusion that Peabody cannot rely on § 52-592 (a) therefore obviates the need for consideration of the remaining issues.

Essentially, the state advances two arguments supporting its assertion that the present action may not be brought under § 52-592 (a). First, it claims that the action set forth in Peabody’s complaint is not “for the same cause” as the action set forth in either of Peabody’s complaints in the first two actions, one of which must be considered the “original action” for purposes of the statute. Alternatively, the state asserts that, even if the present action were for the same cause as the first state action, the present action must then also be for the same cause as the federal action, as the complaints in those two prior actions are nearly identical. The state claims that the federal action, which was the first to be brought, is therefore, for purposes of § 52-592 (a), the “original action.” According to the state, because that action was dismissed for lack of jurisdiction more than five years prior to the filing of the complaint in the present action, Peabody may not rely upon § 52-592 (a). We agree with the state’s second argument.

Section 52-592, our saving statute, provides in pertinent part: “If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because of insufficient service or return of the writ due to unavoidable accident or the default or neglect of the officer to whom it was committed, or because the action has been dismissed for want of jurisdiction, or the action has been otherwise avoided or defeated by the death of a party or for any matter of form . . . the plaintiff . . . 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.) General Statutes § 52-592 (a).

Although a more comprehensive recitation of the procedural history of this case appears at the outset of this opinion, because that history has such a significant bearing on this issue, we provide a brief summary. Peabody’s federal action was commenced on July 29,1991, and dismissed for lack of jurisdiction on June 12, 1992. Peabody brought the first state action on June 2, 1993, well within the three year limitations period of § 4-61. The trial court denied the state’s motion to dismiss, from which judgment the state appealed to this court. In Federal Deposit Ins. Corp. v. Peabody, N.E., Inc., supra, 239 Conn. 105, we reversed the judgment of the trial court and remanded the case with direction to grant the state’s motion to dismiss, which the trial court did on November 11, 1996. Finally, Peabody brought the present action on August 12, 1997, more than five years after the dismissal of the federal action, and nearly three years after the expiration of the applicable statute of limitations period, but less than one year after the dismissal of the first state action, which was brought within the statute of limitations period. For Peabody to be able to maintain this action, therefore, we must conclude that, for purposes of § 52-592 (a), the “original action” was the first state action rather than the federal action.

To resolve this issue we must determine: (1) whether the federal action and the first state action are “for the same cause,” as required by § 52-592 (a); and (2) if they are, which action, the federal action or the first state action, is the “original action” under § 52-592 (a).

A

We assume, without deciding, that the present action is, as Peabody claims, “for the same cause” as the first state action, as required by § 52-592 (a). We must determine, therefore, whether the federal action is for the same cause as the first state action. If it is not, our analysis of this issue ends because the present action would satisfy the requirements of § 52-592 (a) because it was brought within one year of the dismissal of the first state action, which would be the original action under the statute, as it would be the first action brought within the applicable statute of limitations period “for the same cause” as the present action. If we conclude, however, that the federal action is for the same cause as the present action, we must then determine which of the two first actions — the federal action or the first state action — must be considered the original action for purposes of § 52-592 (a). A comparison of Peabody’s complaints in the first two actions compels us to conclude that they are both for the same cause.

The complaint filed in the federal action and that filed in the first state action are virtually identical. The only substantive difference between the two complaints is the following paragraph, which was included in the state complaint but which had not appeared in the federal complaint: “4. To the extent [Standard] incurred the damages and expenses as alleged, such damages and expenses were caused by acts and/or omissions of the [state] and not by any acts and/or omissions of Peabody.” In both complaints, Peabody relies upon the same facts, makes the same allegations, and seeks the same relief. In fact, Peabody does not dispute that the two actions are for the same cause, electing instead to argue that this court should adopt a new definition of “original action” for purposes of § 52-592 (a). See part IIB of this opinion. In light of the foregoing, therefore, we conclude that both the federal action and the first state action are for the same cause.

B

We must now determine which action is the original action for purposes of § 52-592 (a). In Pintavalle v. Valkanos, 216 Conn. 412, 581 A.2d 1050 (1990), this court considered, in depth, the meaning of “original action” as that phrase is used in § 52-592 (a). In that case, the plaintiffs first action was dismissed due to improper service of process. The plaintiff then brought a second action beyond the applicable statute of limitations period, relying on § 52-592 (a). This second action was dismissed for failure to prosecute. Id., 414. Thereafter, the plaintiff brought a third action, again under § 52-592 (a), claiming that, because this third action was commenced within one year of the dismissal of the prior action that had been brought under § 52-592 (a), the statute “saved” the third action. Id., 415.

The trial court in Pintavalle granted the defendant’s motion for summary judgment, concluding that the third action, which had not been brought within the applicable two year statute of limitations period, was time barred. Id. Additionally, the trial court held that the third action was not saved by § 52-592 (a) because it had not been brought within one year of the dismissal of the first action. Id.

This court noted that the dispositive issue in Pintavalle was the meaning of the term “original action” in § 52-592 (a). Id. The defendant argued that the first action filed by the plaintiff within the applicable statute of limitations period must be considered the original action. Id. This interpretation would have prohibited the plaintiff from relying on § 52-592 (a), because the third action was not filed within one year of the dismissal of the first action. The plaintiff, by contrast, argued that “original action” refers to either the next preceding action, or the first action over which the court has jurisdiction. Id. Either interpretation would have saved the third action.

Despite the plaintiffs arguments to the contrary, in Pintavalle, we agreed with the defendant’s reading of the phrase “original action.” First, we noted that the Appellate Court had addressed the same issue in Marangio v. Shop Rite Supermarkets, Inc., 11 Conn. App. 156, 525 A.2d 1389, cert. denied, 204 Conn. 809, 528 A.2d 1155 (1987) and, “[r]elying upon canons of statutory construction and upon the interplay between the words ‘new action’ and ‘original action’ in § 52-592 (a), the court concluded that ‘original action’ means the first action brought by the plaintiff within the period of the applicable statute of limitations. Id., 159-60. The Appellate Court noted that ‘[t]he statute does not say “may continue the action by bringing suit within one year,” or use any words other than those which contemplate an end to the original action and the commencement of a new action within one year of the end of the original action.’ ” (Emphasis in original.) Pintavalle v. Valkanos, supra, 216 Conn. 416. We were persuaded by the reasoning of the Appellate Court and concluded that § 52-592 (a) did not save the plaintiffs third action in Pintavalle. Id.

In addition to the logic of the Marangio opinion, we placed great reliance on the plain language of the statute, noting that, according to Webster’s Third New International Dictionary, “ ‘[original’ is defined as ‘of or relating to a rise or a beginning: existing from the start . . . .” Pintavalle v. Valkanos, supra, 216 Conn. 417. Therefore, the plain language of the statute supported the construction advanced by the defendant in Pintavalle. Consequently, we held that, “under the provisions of § 52-592 (a) ‘original action’ means the first action filed within the time allowed by the applicable statute of limitations.” Id., 419. We noted that “[t]his interpretation is consistent with the plain meaning of the statute and protects the policy concerns underlying statutes of limitation.” Id.

Returning to the present appeal, we note that the dispositive factor in this case, as it was in Pintavalle, is the interpretation of “original action” as it is used in § 52-592 (a). Therefore, we rely on our oft-stated principles of statutory construction. “Statutory construction is a question of law and therefore our review is plenary. . . . [O]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. . . . General Motors Corp. v. Dohmann, 247 Conn. 274, 286, 722 A.2d 1205 (1998); Ferrigno v. Cromwell Development Associates, 244 Conn. 189, 195, 708 A.2d 1371 (1998).” (Internal quotation marks omitted.) Fimiani v. Star Gallo Distributors, Inc., 248 Conn. 635, 642, 729 A.2d 212 (1999).

The roots of § 52-592 (a) reach as far back as 1862. Public Acts 1862, c. XIV, however, included the phrase “original suit” rather than “original action.” In subsequent years, the saving statute was amended several times. In 1902, in addition to other changes not relevant to this issue, the legislature replaced the phrase “original suit” with “original action.” See General Statutes (1902 Rev.) § 1127. Because we are unable to research the legislative history of statutes of such age, however, the legislature’s intent regarding the meaning to be ascribed to “original action,” as well as the circumstances surrounding the statute’s enactment or amendment, remains unknown. We are left, therefore, with essentially the same tools that were available to us when we decided Pintavalle: the plain language of the statute and the general policy it is meant to serve.

“As with any issue of statutory interpretation, our initial guide is the language of the statute itself.” (Internal quotation marks omitted.) Federal Deposit Ins. Corp. v. Peabody, N.E., Inc., supra, 239 Conn. 102; Herbert S. Newman & Partners, P.C. v. CFC Construction Ltd. Partnership, 236 Conn. 750, 756, 674 A.2d 1313 (1996); see also Fimiani v. Star Gallo Distributors Inc., supra, 248 Conn. 642. Neither the plain language of the statute pertaining to the phrase “original action,” nor the common sense reading that we gave that phrase in Pintavalle, have changed since we decided that case less than nine years ago. As we have noted numerous times, and as we reiterated in Pintavalle: “ ‘The words of a statute are to be given their commonly approved meaning unless a contrary intent is clearly expressed.’ Kilpatrick v. Board of Education, 206 Conn. 25, 28, 535 A.2d 1311 (1988).” Pintavalle v. Valkanos, supra, 216 Conn. 416. We perceive no contrary intent in the statute.

We also have stated that, “[i]n the absence of ambiguity, statutory language should be given its plain and ordinary meaning. Jones v. Civil Service Commission, 175 Conn. 504, 509, 400 A.2d 721 (1978).” Pintavalle v. Valkanos, supra, 216 Conn. 416-17. We do not read any ambiguity in the statute. We see no reason to read “original” to mean anything other than “of or relating to a rise or a beginning: existing from the start”; Webster’s Third New International Dictionary; which is the dictionary definition we relied on in Pintavalle, and which comports with the plain and ordinary meaning of the word as it is used in common parlance. Consequently, we reaffirm our holding in Pintavalle that, “[i]n the context of § 52-592 (a), ‘original action’ is used to refer to the first action filed by the plaintiff within the period of the applicable statute of limitations.” (Emphasis in original.) Pintavalle v. Valkanos, supra, 417.

Peabody argues that the second tool of statutory construction available to us — that is, the policy underlying the statute — militates in favor of its interpretation of “original action.” Peabody places great reliance on the remedial nature of § 52-592 (a), stating that “the case law is clear that [§] 52-592 is a remedial statute to be given a liberal interpretation, so that litigants’ rights to a trial on the merits are not defeated by strict construction of procedural rules.” For support, Peabody quotes from this court’s decision in Isaac v. Mount Sinai Hospital, 210 Conn. 721, 733, 557 A.2d 116 (1989), in which we stated: “The [saving] statute is designed to insure to the diligent suitor the right to a hearing in court till he reaches a judgment on the merits. Its broad and liberal purpose is not to be frittered away by any narrow construction. . . . We, likewise, decline to ‘fritter away’ the strong remedial purpose of our saving statute, § 52-592.” (Citation omitted; internal quotation marks omitted.)

Initially, we note that Isaac was decided more than one and one-half years before this court decided Pintavalle. Therefore, the language in Isaac and the remedial nature of the saving statute was fully within the contemplation of this court when we rendered our decision in Pintavalle. We see no more reason today to ignore the plain language of the statute and to defer to the remedial nature of the statute than we did then.

Peabody seeks to distinguish Pintavalle from the present case by relying on the different procedural postures of the appeals in the two cases. Peabody notes that, in both cases, the first action was filed within the applicable statute of limitations period. In Pintavalle, however, the plaintiff brought the second action pursuant to § 52-592 (a), and, after the action’s dismissal, brought a third action, relying again on the saving statute.

By contrast, Peabody adverts to the fact that, in the present case, the second action to be brought chronologically — that is, the first state action — was brought within the three year limitations period of § 4-61 and, therefore, Peabody relied only once on § 52-592. In essence, according to Peabody, every plaintiff should be able to rely one time on the saving statute, as long as the action is commenced within one year of the determination of an action properly filed within the applicable statute of limitations period, and as long as the action meets all of the other requirements of the statute. This argument is one that this court has not previously had the opportunity to address. We do so now, considering it against the holding of Pintavalle, as well as against the puipose of the saving statute.

Although Peabody acknowledges that it is not binding on this court, Peabody cites a Superior Court decision with a similar procedural history in the trial courts as the present case, in which the trial court “construe [d] ‘original action’ to include the most recent lawsuit filed by the plaintiff within the statute of limitations period.” Ayala v. Zachary, Superior Court, judicial district of Waterbury, Docket No. 094633 (May 25, 1990) (1 Conn. L. Rptr. 671, 672). The trial court in Ayala stated that “[t]his construction recognizes the remedial nature of the accidental failure of suit statute by extending the limitation period while at the same time addressing the concerns . . . about indefinite extensions of the applicable statute of limitations.” Id.

First, we note that this case is controlled by Pintavalle and not by a decision of the Superior Court. Second, we disagree that the policy considerations underlying § 52-592 militate in favor of recognizing Peabody’s interpretation of the statute. We recognize, as we have for more than one century, that § 52-592 (a) “is remedial in nature and, therefore, warrants a broad construction.” Ruddock v. Burrowes, 243 Conn. 569, 575, 706 A.2d 967 (1998); see also, e.g., Lacasse v. Burns, 214 Conn. 464, 470, 572 A.2d 357 (1990); Isaac v. Mount Sinai Hospital, supra, 210 Conn. 728; Broderick v. Jackman, 167 Conn. 96, 98, 355 A.2d 234 (1974); Ross Realty Corp. v. Surkis, 163 Conn. 388, 393, 311 A.2d 74 (1972); Baker v. Baningoso, 134 Conn. 382, 387, 58 A.2d 5 (1948); Johnston v. Sikes, 56 Conn. 589, 591-92 (Superior Court 1888). We do not believe, however, that a statute should be read so broadly or interpreted so expansively that the plain language of the statute, or this court’s relatively recent construction of that language, should be ignored. As we stated previously herein, the language is not ambiguous. In the absence of an express legislative intent to read the language in a way different from the common, ordinary usage of the language, we decline to depart from that ordinary usage or from this court’s recent precedent, especially in light of the absence of legislative activity in response to that precedent. See footnote 14 of this opinion.

We disagree with Peabody, therefore, that every plaintiff should be able to rely on the saving statute. Section 52-592 (a) was not meant simply to add an additional year to the end of the applicable statute of limitations period. Rather, it was designed to allow plaintiffs to cure certain defects in their actions if they seek to do so within a reasonable period of time. If they file their complaints very early in the statute of limitations period, the period generally will provide them time to discover the types of defects that would satisfy the requirements of § 52-592 (a). Such plaintiffs would not have to rely on that statute, however, as there likely would be enough time remaining under the statute of limitations to cure the defect. If, however, the original action is brought near the end of the statute of limitations period, the period within which an action for the same cause may be brought extends to one year after the determination of the original action. We conclude that § 52-592 (a) is not available to every plaintiff whose action fails for any of the reasons enumerated in the statute, but, rather, is available to those plaintiffs who bring their original actions within the last year of the applicable statute of limitations periods. We note, however, that, even in such cases, the period within which to file a complaint would not necessarily extend the statute of limitations period by one year but would, instead, extend the filing period only to one year from the date of the failure of the original action.

We acknowledge the strong policy favoring the adjudication of cases on their merits rather than the disposal of them on the grounds enumerated in § 52-592 (a). See, e.g., Coppola v. Coppola, 243 Conn. 657, 665, 707 A.2d 281 (1998) (“[o]ur practice does not favor the termination of proceedings without a determination of the merits of the controversy where that can be brought about with due regard to necessary rules of procedure” [internal quotation marks omitted]); Snow v. Calise, 174 Conn. 567, 574, 392 A.2d 440 (1978) (“[i]t is the 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”). We note, however, that this policy is not without limits. If it were, there would be no statutes of limitations. Even the saving statute does not guarantee that all plaintiffs have the opportunity to have their cases decided on the merits. It merely allows them a limited opportunity to correct certain defects in their actions within a certain period of time. If an action, brought pursuant to § 52-592 (a), fails, even for the statutorily enumerated reasons, and if more than one year has passed since the determination of the original action, the plaintiff will not be able to maintain an action, even though the case was not decided on its merits. Therefore, although there is a preference that cases be adjudicated on their merits, the legislature has provided only a limited mechanism by which plaintiffs may “save” deficient actions. One of those requirements is that the action be brought within one year of the determination of the original action, that is, the first action filed within the applicable statute of hmitations period.

C

Finally, we turn to the facts of the appeal before us. As we concluded previously herein, the federal action, which was brought first, and the first state action, which followed, were virtually identical and, therefore, if either can be considered “for the same cause” as the present action, both must be. Therefore, according to our interpretation of the phrase “original action” in § 52-592 (a), the federal action, which was “the first action filed by the plaintiff within the period of the applicable statute of limitations”; Pintavalle v. Valkanos, supra, 216 Conn. 417; is the original action for purposes of that statute. Because the present action was filed more than five years after the dismissal of the original action, we conclude that it fails to satisfy the requirements of § 52-592 (a). Moreover, we reiterate that this action was commenced nearly three years after the expiration of the statute of hmitations provided in § 4-61. Consequently, the present action is, as a matter of law, time barred.

The judgment is affirmed.

In this opinion NORCOTT and PALMER, Js., concurred.

BERDON, J., with whom MCDONALD, J., joins,

dissenting. The majority today permits an injustice to stand uncorrected. It does so by ignoring the plain meaning of General Statutes § 52-592 (a), the remedial purpose of the statute, and the mandate of liberal construction that governs our interpretation.

Section 52-592 (a) provides in pertinent part: “If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits [for any of various enumerated reasons], the plaintiff . . . may commence a new action . . . for the same cause at any time within one year after the determination of the original action . . . .”

In the present case, the plaintiff asserted a third party complaint against the defendant on two separate occasions; each of these complaints was timely. After both of these complaints had been dismissed (and after the statute of limitations had expired), the plaintiff asserted this direct action against the defendant. By the time the plaintiff asserted the direct action, more than one year had passed since the earlier third party complaint was dismissed, but less than one year had passed since the later third party complaint was dismissed. In my view, the plaintiff was entitled to commence the direct action, which it asserted “within one year after the determination of’ an action “commenced within the time limited by law” (i.e., the later third party complaint).

This result comports with the plain meaning of § 52-592 (a), which permits a plaintiff to “commence a new action . . . for the same cause” within one year of the dismissal of “any action, commenced within the time limited by law . . . ,” (Emphasis added.) As a matter of rudimentary syntax and common sense, it makes no difference whether the plaintiff has asserted prior, unsuccessful actions. Significantly, the statute does not say that the new action must be commenced within one year of the dismissal of the first action that the plaintiff commenced within the time limited by law. If the legislature had wished to create such a regime, it knew very well how to do so.

To shift focus somewhat, § 52-592 (a) also permits a plaintiff to “commence a new action . . . for the same cause” within one year of the dismissal of “any action, commenced within the time limited by law, [that] has failed one or more times to be tried on its merits.” (Emphasis added.) In order to make coherent sense of the entire statute, the terms “for the same cause” and “any action” must “include the most recent lawsuit filed by the plaintiff within the statute of limitations period.” Ayala v. Zachary, Superior Court, judicial district of Waterbury, Docket No. 094633 (May 25, 1990) (1 Conn. L. Rptr. 671, 672). This interpretation is necessary in order to give meaning to the statutory phrase “one or more times.” Moreover, “[t]his construction recognizes the remedial nature of [§ 52-592 (a)] by extending the limitation period while at the same time addressing the concerns . . . about indefinite extensions of the applicable statute of limitations.” Id.

My reading of the statute also comports with the fundamental principle that statutes of limitation exist, in part, “to promote justice by preventing surprises through the revival of claims that have been allowed to slumber . . . .” (Internal quotation marks omitted.) Bowen v. City of New York, 476 U.S. 467, 481 n.13, 106 S. Ct. 2022, 90 L. Ed. 2d 462 (1986). In the present case, the plaintiff gave the defendant timely notice that it intended to pursue its claim. Significantly, the defendant has not claimed that it has been prejudiced, that it was the victim of deception, or even that it had any reason to believe that the plaintiff would not pursue its claim.

If there were any doubts concerning any of my conclusions about the meaning of § 52-592 (a), the rule that we must liberally construe remedial statutes would be sufficient to dispel them. Predictably, the majority has ignored this mandate. Moreover, the majority does no more than pay lip service to what it describes as “the strong policy favoring the adjudication of cases on their merits rather than the disposal of them on the grounds enumerated in § 52-592 (a).”

The majority declines to read § 52-592 (a) in a manner that makes sense of the statutory language or acknowledges either the mandate of liberal construction or the strong public policy favoring adjudication of cases on the merits. Instead, my colleagues in the majority have placed heavy reliance upon Pintavalle v. Valkanos, 216 Conn. 412, 581 A.2d 1050 (1990). The majority has put its eggs in the wrong basket.

To begin with, the facts of Pintavalle are materially different from the facts of the present case. In Pintavalle, the plaintiff asserted only one action within the statute of limitations. That action was dismissed. Id., 414. Several months after the statute of limitations had expired, the plaintiff commenced a second action. This latter action was dismissed as well. Id. More than one year after the plaintiffs only timely action had been dismissed (but less than one year after the plaintiffs untimely second action had been dismissed), the plaintiff asserted a third action. Id., 414-15. The plaintiff claimed that this third action fell within the scope of § 52-592 (a) because “the legislature intended to permit plaintiffs to bring a potentially unlimited number of suits as long as each action is brought within one year of the failure of the prior action.” Id., 416.

The court in Pintavalle properly recognized that the plaintiff’s argument “defeat[s] the basic purpose of statutes of limitation, namely, promoting finality in the litigation process.” Id., 417. This conclusion has absolutely nothing at all to do with the present case. Because the plaintiff in this case asserted the action upon which it relies before the statute of limitations had expired, the direct action is saved by operation of § 52-592 (a). In sharp contrast to the position advocated by the plaintiff in Pintavalle, my interpretation of § 52-592 (a) contains a built-in time limit: the protection afforded by the statute expires one year after the determination of the latest action “commenced within the time limited by law.” This is a far cry from the “potentially limitless extension” that the Pintavalle court rejected. Pintavalle v. Valkanos, supra, 216 Conn. 417.

The majority emphasizes the following line from Pintavalle: “under the provisions of § 52-592 (a), ‘original action’ means the first action filed within the time allowed by the applicable statute of limitations.” Id., 419. The majority has taken this line out of context. In the very next sentence, the Pintavalle court emphasized that “[t]his interpretation is consistent with the plain meaning of the statute and protects the policy concerns underlying statutes of limitation.” (Emphasis added.) Id. As I have explained, the policy concerns underlying this interpretation of § 52-592 (a) are limited to the kind of “potentially limitless extension” sought by the plaintiff in Pintavalle. Id., 417. For this reason, we must recognize a similar limitation upon the meaning that the Pintavalle court ascribed to the statute.

Moreover, the line that the majority has extracted from Pintavalle has nothing to do with the facts of that case, in which the plaintiff asserted only one action within the statute of limitations. Accordingly, everything that the court said about “the first action filed within the time allowed by the applicable statute of limitations” is pure dicta, wholly irrelevant to the resolution of the controversy between the parties. (Emphasis added.) Id., 419.

Significantly, my interpretation of § 52-592 (a) is consistent with the holding of Pintavalle. The plaintiff in that case commenced his third action more than one year after the trial court had dismissed the only action that the plaintiff had asserted within the statute of limitations. Accordingly, the Pintavalle court’s conclusion that the plaintiff could not take refuge in the shelter of § 52-592 (a) comports with my analysis of the plain meaning of the statute.

Finally, the dicta in Pintavalle upon which the majority hangs its hat finds no support in the language of § 52-592 (a). The statute refers to two different actions: (1) “any action, commenced within the time limited by law” (the original action) and (2) a “new action . . . for the same cause [commenced] at any time within one year after the determination of the original action . . . .” It is apparent that the legislature used the term “original action” in order to refer back to “any action commenced within the time limited by law” — which could be the first timely action that the plaintiff asserted or the twenty-first. (Emphasis added.) There is nothing in the text of the statute to support the Pintavalle court’s dicta that the “original action” must be the plaintiff’s first timely action. If the legislators had meant what the dicta in Pintavalle says they meant, then they would have drafted a radically different statute. If there were any doubt that we should reject the dicta in Pintavalle, the mandate of liberal construction would be sufficient to dispel it.

In my view, the majority has disregarded the text of § 52-592, the purpose of statutes of limitation in general and of § 52-592 (a) in particular, and the mandate of liberal construction. Worst of all, the majority’s mindless formalism does violence to the strong public policy that — as the majority concedes — animates § 52-592 (a).

Accordingly, I dissent.

       General Statutes § 52-592 provides in relevant part: “(a) If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because of insufficient service or return of the writ due to unavoidable accident or the default or neglect of the officer to whom it was committed, or because the action has been dismissed for want of jurisdiction, or the action has been otherwise avoided or defeated by the death of a party or for any matter of form; or if, in any such action after a verdict for the plaintiff, the judgment has been set aside, or if a judgment of nonsuit has been rendered or a judgment for the plaintiff reversed, the plaintiff, or, if the plaintiff is dead and the action by law survives, his executor or administrator, may commence a new action, except as provided in subsection (b) of this section, for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment.
      “(b) When any action has been brought against an executor or administrator or continued against an executor or administrator after the death of the defendant and has failed for any of the causes listed in subsection (a) of this section, the plaintiff, or his executor or administrator in case a cause of action survives, may commence a new action within six months after the determination of the original action.
      “(c) If an appeal is had from any such judgment to the Supreme Court or Appellate Court, the time the case is pending upon appeal shall be excluded in computing the time as above limited.
      “(d) The provisions of this section shall apply to any defendant who files a cross complaint in any action, and to any action between the same parties or the legal representatives of either of them for the same cause of action or subject of action brought to any court in this state, either before dismissal of the original action and its affirmance or within one year after the dismissal and affirmance, and to airy action brought to the United States circuit or district court for the district of Connecticut which has been dismissed without trial upon its merits or because of lack of jurisdiction in such court. If such action is within Hie jurisdiction of any state court, the time for-bringing the action to the state court shall commence from the date of dismissal in the United States court, or, if an appeal or writ of error has been taken from the dismissal, from the final determination of the appeal or writ of error. . . .”
      Section 52-592 was amended by Public Acts 1998, No. 98-20, §§ 1 and 2, which added subsection (e). The remainder of the statute remained unchanged. In the interest of clarity, references herein are to the current revision.

       The eleventh amendment to the United States constitution provides: ‘'The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”

       General Statutes (Rev. to 1991) § 4-61 (a) provides: “Any person, firm or corporation which has entered into a contract with the state, acting through any of its departments, commissions or other agencies, for the design, construction, construction management, repair or alteration of any highway, bridge, building or other public works of the state or any political subdivision of the state may, in the event of any disputed claims under such contract, bring an action against the state to the superior court for the judicial district of Hartford-New Britain for the purpose of having such claims determined, provided notice of the general nature of such claims shall have been given in writing to the department administering the contract not later than two years after the acceptance of the work by the agency head evidenced by a certificate of acceptance issued to the contractor. No action shall be brought under this subsection later than three years from the date of such acceptance of the work by the agency head as so evidenced. Acceptance of an amount offered as final payment shall not preclude any person, firm or corporation from bringing a claim under this section. Such action shall be tried to the court without a jury. All legal defenses except governmental immunity shall be reserved to the state. Any action brought under this section shall be privileged in respect to assignment for trial upon motion of either party.”

       Specifically, the trial court, considering both the state’s motion to dismiss and Peabody’s motion to amend its complaint, concluded first, that Peabody could indeed amend its complaint and, second, that the state’s notice argument did not rise to the level of a subject matter jurisdictional defect

       Section 52-265a authorizes the Chief Justice of this court to certify an appeal from an order or decision of the Superior Court, filed within two weeks of the order or decision, and to call a special session of this court for an immediate hearing upon the appeal, if he or she determines that the issue involves “a substantial public interest. . . and that delay [in determining the issue] may work a substantial injustice . . . .” General Statutes § 52-265a (c).

       General Statutes (Rev. to 1991) § 4-61 (a) provides a statute of limitations for actions brought pursuant to that section that ends “three years from t he date of such acceptance of the work by the agency head as so evidenced. ” See footnote 3 of this opinion for the complete text of § 4-61 (a). Because the certificate of acceptance was issued on September 23, 1991, the applicable statutory limitations period ended on September 22, 1994.

       The state’s other reasons for seeking dismissal, as set forth in its motion, are as follows:
      “(1) The Current Action was not filed within the statutory limitations period for construction claim actions against the State under ... § 4-61 (a).
      “(2) The Current Action is not one which may be brought under . . . § 52-592, popularly known as ‘the saving statute’ or ‘the accidental failure of suit statute,’ because
      “(a) the action set forth in [Peabody’s] Complaint ... is not ‘for the same cause’ (§ 52-592) as the action previously brought by Peabody against the State in [Superior Court] relating, for the most part, to certain claims of Peabody’s subcontractor, The Standard Structural Steel Company ....
      “(c) Peabody’s prior Superior Court action against the State based on those claims did not fail due to a matter of form, or to simple negligence or accident, but rather because an essential element for a claim under § 4-61 was not alleged in Peabody’s complaint, and did not then exist; therefore, the primary defect in those actions was not a kind which the saving statute was intended to remedy; and
      “(d) Peabody’s Current Complaint does not allege facts sufficient to show that either its Federal Action or its prior Superior Court action was filed within the applicable limitations period of § 4-61.
      “(3) In addition, even the Current Complaint does not satisfy the requirements of § 4-61, which, since it is a statute in derogation of sovereign immunity, must be strictly construed and applied. . . . [Peabody] has failed to allege facts sufficient to show either (i) what the applicable limitations period was, or (ii) that the required notice was given within that applicable period. Furthermore, an essential element of Peabody’s claim (i.e., its assumption of some liability for Standard’s claims) did not even exist until long after the limitations period for the giving of such notice had expired.”

       Specifically, Peabody claims that the trial court’s interpretation was improper in that it: (1) is contradicted by the plain language of the statute; (2) is contradicted by certain admissions allegedly made by the department; (3) is contradicted by the parties’ course of conduct under their contract for the project; and (4) would render § 4-61 unconstitutional.

       Accordingly, we need not address the state’s first argument.

       We note that an action brought in the United States District Court for the District of Connecticut may be an original action for purposes of § 52-592. That section provides in relevant part: “The provisions of this section shall apply to . . . any action brought to the United States circuit or district court for the district of Connecticut which has been dismissed without trial upon its merits or because of lack of jurisdiction in such court. If such action is within the jurisdiction of any state court, the time for bringing the action to the state court shall commence from the date of dismissal in the United States court . . . .” General Statutes § 52-592 (d).

       In both actions, Peabody sought: (1) dismissal of Standard’s complaint against it; (2) a determination that the state be held liable to Peabody to the extent that Peabody was held liable to Standard; (3) costs and expenses; and (4) other relief as may be just and equitable.

       Public Acts 1862, c. XIV, provides in relevant part: “That if, in any action duly commenced within the time limited by law, and which may now be pending or hereafter brought, the writ fails of a sufficient service or return, by any unavoidable accident, or by any default or neglect of the officer to whom it is committed, or if the writ is abated, or the action otherwise avoided or defeated, by the death of any party thereto, or for any matter of form, or if, after a verdict for the plaintiff, the judgment is arrested, or if a judgment for the plaintiff is reversed on a motion in error, or writ of error, or where the plaintiff shall have mistaken his form of action and the suit shall fail for that cause, the plaintiff may commence a new action for the same cause at any time within one year after the abatement, or other determination of the original suit, or after the reversal of the judgment . . . .” (Emphasis added.)

       We believe that to hold otherwise would require us essentially to overrule Pintavalle, which neither party has expressly asked us to do. Implicit in Peabody’s argument, however, is such a request.

       Our position is bolstered by the lack of legislative activity in response to Pintavalle. As we recently stated in Bocchino v. Nationwide Mutual Fire Ins. Co., 246 Conn. 378, 386-87, 716 A.2d 883 (1998): “When we construe a statute, we act not as plenary lawgivers but as surrogates for another policy maker, the legislature. In our role as surrogates, our only responsibility is to determine what the legislature, within constitutional limits, intended to do. Sometimes, when we have made such a determination, the legislature instructs us that we have misconstrued its intentions. We are bound by the instructions so provided. . . . More often, however, the legislature takes no further action to clarify its intentions. Time and again we have characterized the failure of the legislature to take corrective action as manifesting the legislature’s acquiescence in our construction of a statute. ... In light of our role as surrogates for the legislature, proper respect for the separation of powers has led us to exercise prudence with respect to the overruling of cases that involve the construction of a statute. Once an appropriate interval to permit legislative reconsideration has passed without corrective legislative action, the inference of legislative acquiescence places a significant jurisprudential limitation on our own authority to reconsider the merits of our earlier decision.” (Citations omitted; internal quotation marks omitted.)
      We stated our holding in Pintavalle very clearly. In the approximately eight and one-half intervening years, “an appropriate interval to permit legislative reconsideration”; id., 387; the legislature has taken no action demonstrating that our interpretation of § 52-592 (a) was incorrect. We, therefore, take such inaction as legislative acquiescence in our construction of § 52-592 (a).

       The state also relied on Rogozinski v. American Food Service Equipment Corp., 34 Conn. App. 732, 737-38, 643 A.2d 300, cert. denied, 231 Conn. 910, 648 A.2d 156 (1994), and Marangio v. Shop Rite Supermarkets, Inc., supra, 11 Conn. App. 160-61, for support for the proposition we announced in Pintavalle — that is, that the original action is the first action to be filed within the applicable statute of limitations period. Peabody attempts to distinguish these two cases on the same ground that it attempts to distinguish Pintavalle.

       It could be argued that our decision will encourage plaintiffs to file as late as possible within the statute of limitations period, which could be considered contrary to the public policy favoring the swift resolution of disputes. We note, however, that such a strategy would be a risky one, as those plaintiffs would have only one opportunity to cure any potential defects of the type that would allow reliance on the saving statute. A plaintiff who files early in the statute of limitations period, by contrast, may be able to file multiple times before the limitation period expires. See Pintavalle v. Vallamos, supra, 216 Conn. 417 n.4 (this interpretation is consistent with “one or more times” language and remedial purpose of statute).

       Section 52-592 was amended by Public Acts 1998, No. 98-20, §§ 1 and 2, which added subsection (e). That amendment is not relevant to the present case. In the interest of clarity, references herein are to the current revision.

       It is undisputed that the dismissal of each of the plaintiffs third party complaints fell within the scope of § 52-592 (a).

       Provided, of course, that the dismissal falls within the scope of § 52-592 (a).

       “In interpreting a statute, common sense must be used .... Norwich Land Co. v. Public Utilities Commission, 170 Conn. 1, 4, 363 A.2d 1386 (1975). Buckley v. Warden, 181 Conn. 286, 290, 435 A.2d 348 (1980); accord Cannata v. Dept. of Environmental Protection, 239 Conn. 124, 141, 680 A.2d 1329 (1996); Trumbull v. State, 206 Conn. 65, 80, 537 A.2d 431 (1988) ([c]ommon sense ... is a highly significant guide to statutory interpretation). The law favors rational and sensible statutory construction. . . . The unreasonableness of the result obtained by the acceptance of one possible alternative interpretation of an act is a reason for rejecting that interpretation in favor of another which would provide a result that is reasonable. . . . When two constructions are possible, courts will adopt the one which makes the [statute] effective and workable, and not one which leads to difficult and possibly bizarre results. . . . Maciejewski v. West Hartford, 194 Conn. 139, 151-52, 480 A.2d 519 (1984). We consider the statute as a whole with a view toward. . . obtaining] a sensible and rational overall interpretation. Fruin v. Colonnade One at Old Greenwich Ltd. Partnership, 237 Conn. 123, 130, 676 A.2d 369 (1996). We have long followed the guideline that [t]he intent of the lawmakers is the soul of the statute, and the search for this intent we have held to be the guiding star of the court. . . . When one construction leads to public mischief which another construction will avoid, the latter is to be favored unless the terms of the statute absolutely forbid [it]. . . . Bridgeman v. Derby, 104 Conn. 1, 8, 132 A. 25 (1926). . . . State v. Anonymous, 237 Conn. 501, 514-15, 680 A.2d 956 (1996); accord State Board of Labor Relations v. Freedom of Information Commission, 244 Conn. 487, 495, 709 A.2d 1129 (1998) (Statutes are to be construed in a manner that will not thwart [their] intended purpose or lead to absurd results.
      . . . The law favors a rational statutory construction and we presume that the legislature intended a sensible result. . . . Board of Education v. State Board of Education, 243 Conn. 772, 782, 709 A.2d 510 (1998) ([i]f a statute can be construed in several ways, we will adopt the construction that is most reasonable).” (Internal quotation marks omitted.) Sweetman v. State Elections Enforcement Commission, 249 Conn. 296, 306-308, 732 A.2d 144 (1999).

       See footnote 3 of this dissent.

       As Justice Katz and I observed just last year, “§ 52-592 (a) is remedial and is to be liberally interpreted. Ross Realty Corp. v. Surkis, 163 Conn. 388, 393, 311 A.2d 74 (1972); Baker v. Baningoso, 134 Conn. 382, 387, 58 A.2d 5 (1948); Johnston v. Sikes, [56 Conn. 589, 596 (Superior Court 1888)].” (Internal quotation marks omitted.) Ruddock v. Burrowes, 243 Conn. 569, 582, 706 A.2d 967 (1998) (Berdon, J., with whom Katz, J., joined, dissenting); see also Pintavalle v. Valkanos, 216 Conn. 412, 417, 581 A.2d 1050 (1990) (“§ 52-592 is a remedial statute and must be construed liberally”).

       This untimely second action was saved by operation of § 52-592 (a).

       That is, the later third party complaint.

       According to Black’s Law Dictionary (6th Ed. 1991), dicta “go beyond the facts before court and therefore are individual views of author of opinion and not binding in subsequent cases as legal precedent.” Because dicta are “made without argument or full consideration of the point, [they] are not the professed deliberate determinations of the [author].” Id.

       The statute would have been neither accurate nor coherent if the legislature had used the term “any action” in place of the term “original action.”

       In fact, nothing in the text of § 52-592 (a) suggests that the term “original action” has any independent, substantive meaning whatsoever. Instead, the context makes it perfectly clear that “original action” is simply a cross reference to “any action commenced within the time limited by law . . . .” General Statutes § 52-592 (a).

       Section 52-592 (a) cannot be harmonized with the dicta in Pintavalle without making each of the following fundamental changes to 1he text of the statute: (1) omit the term “any action”; (2) omit the reference to an action that has failed “one or more times”; (3) omit the use of “original action” as a synonym for “any action”; (4) insert a reference to the first action that the plaintiff asserts within the statute of limitations; and (5) change the use of “original action” so that it is a synonym for the first timely action that the plaintiff asserts.


source: Caselaw Access Project

author: CALLAHAN, C. J.

license: Public Domain

text:
    MARIE G. BOLAN v. AVALON FARMS PROPERTY OWNERS ASSOCIATION, INC.
    (SC 16066)
    Callahan, C. •!., and Borden, Berdon, Norcott, Katz, Palmer and McDonald, Js.

      Argued May 25
    officially released August 10, 1999

      John W. Pickard, for the appellant (plaintiff).

      Zbigniew S. Rozbicki, for the appellee (defendant).
   Opinion

CALLAHAN, C. J.

The dispositive issue in this appeal is whether Connecticut should continue to adhere to the unity of title doctrine. See Curtin v. Franchetti, 156 Conn. 387, 389, 242 A.2d 725 (1968). We conclude that it should not. Accordingly, we reverse the judgment of the trial court, which was compelled by its justified reliance on the doctrine as stated in Curtin.

The following facts and procedural history are undisputed. The plaintiff, Marie G. Bolán, is the owner of approximately 161 acres of undeveloped real estate located in Litchfield. The plaintiffs land does not abut any public highway and is completely landlocked. The defendant, Avalon Farms Property Owners Association, Inc., is the owner of land that is situated immediately south of, and adjacent to, the plaintiffs land.

From 1936 to 1939, Isabel Curtis was the owner of a large tract of land that included the properties that now belong to the plaintiff and the defendant. In 1939, Isabel Curtis divided her tract into two separate parcels. The boundary line between the two was the centerline of Old Mount Tom Road, a road that in 1927 had been discontinued for public use by the town of Litchfield. Isabel Curtis retained ownership of the tract north of the boundary line, and transferred the tract south of the line to her son, Charles Curtis. At that time, both tracts abutted public highways.

The plaintiffs land is part of the tract of land that was retained by Isabel Curtis in 1939. In 1940, Isabel Curtis transferred the tract to Marion Heiser. Between 1940 and 1955, Heiser divided the property into parcels and sold every parcel that abutted a public highway, leaving herself with six adjacent parcels that had no access to a public highway and were completely landlocked. In 1958, Heiser transferred five of those six landlocked parcels to her son, Charles Phinny. Phinny acquired the sixth of Heiser’s landlocked parcels from Heiser’s estate in 1970. Upon Phinny’s death in 1985, his estate transferred two of the six landlocked parcels to the plaintiffs husband, Thomas A. Bolán. Less than one month later, Thomas A. Bolán transferred both parcels, which abut the defendant’s land, to the plaintiff.

The defendant’s land is part of the tract that Isabel Curtis transferred to Charles Curtis in 1939. Upon acquiring the property, Charles Curtis gave it the name “Avalon Farms.” Thereafter, the property was transferred several times before Pasquale DiNardo, Trustee, (DiNardo) acquired it on January 5, 1978. DiNardo acquired the property with the intention of developing it, and, on January 24,1978, he filed a set of subdivision maps for the Avalon Farms Subdivision (subdivision) with the town clerk of Litchfield. The subdivision maps, which showed the entire subdivision, included areas that were designated as “open space conservation” and “open space.”

In 1979, DiNardo transferred a portion of the subdivision to Gold Key Builders, Inc. (Gold Key). The property transferred to Gold Key included all roadways, several building lots, and the areas shown as “open space conservation” and “open space” on the subdivision maps. In 1988, after further development of the subdivision, DiNardo and Gold Key executed deeds transferring to the defendant their respective interests in the “open space conservation” and “open space” areas of the subdivision.

The deeds by which the defendant acquired its property from DiNardo and Gold Key describe the lands conveyed as those “designated and shown as ‘OPEN SPACE CONSERVATION’ and ‘OPEN SPACE’ areas on a certain set of subdivision maps (including cover and sheets 1 through 13, inclusive), entitled ‘Avalon Farms, Route 202, Litchfield, Connecticut August 1977, Prepared by Empire Associates, Inc., Plainville, Connecticut,’ which subdivision maps are on file in the offices of the Morris and Litchfield Town Clerk [s] and to which subdivision maps reference is herein made for a more particular description of the same.” The set of subdivision maps referred to in the defendant’s deeds are those that DiNardo filed with the town clerk of Litchfield in 1978. Sheet 13 of those subdivision maps, which is explicitly referred to in the defendant’s deeds, describes the boundary between the plaintiffs property and the defendant’s property as the “CENTERLINE OF [THE] OLD ROAD.” Sheet 13 also sets forth the following legend in the portion of the defendant’s property parallel and immediately adjacent to that boundary: “THIS AREA RESERVED FOR OPEN SPACE & ACCESS AREA FOR LANDLOCKED ABUTTERS.” At the time that the subdivision maps were filed, Phinny was the owner of the landlocked property that now is owned by the plaintiff.

In 1994, the plaintiff brought the present action against the defendant, seeking a determination that: (1) the deeds by which the defendant had acquired its property granted Phinny an easement appurtenant over the defendant’s property for purposes of access to a public highway; and (2) the plaintiff, as Phinny’s successor in interest, is the owner of that easement. Specifically, the plaintiff claimed that the defendant’s deeds and the subdivision maps referred to therein manifested an intention by DiNardo and Gold Key to create an easement over the designated access area in favor of Phinny, a landlocked abutter. The trial court concluded that DiNardo and Gold Key had intended to grant Phinny an easement appurtenant over the defendant’s land. Appropriately relying on this court’s opinion in Curtin v. Franchetti, supra, 156 Conn. 389, however, the court concluded that the unity of title doctrine precluded it from giving effect to such intent. Accordingly, the trial court rendered judgment for the defendant.

The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 65-1, and General Statutes § 51-199 (c). We now abandon the unity of title doctrine, and reverse the trial court’s judgment.

On appeal, the plaintiff claims, inter alia, that: (1) the deeds by which the defendant acquired its land manifest an intention to create an access easement over the defendant’s property in favor of property owned by landlocked abutters; and (2) because the unity of title doctrine operates to frustrate that intent, the doctrine should be abrogated. We agree with both of these claims.

“The principles governing the construction of instruments of conveyance are well established. In construing a deed, a court must consider the language and terms of the instrument as a whole. . . . Our basic rule of construction is that recognition will be given to the expressed intention of the parties to a deed or other conveyance, and that it shall, if possible, be so construed as to effectuate the intent of the parties. ... In arriving at the intent expressed ... in the language used, however, it is always admissible to consider the situation of the parties and the circumstances connected with the transaction, and every part of the writing should be considered with the help of that evidence. . . . The construction of a deed in order to ascertain the intent expressed in the deed presents a question of law and requires consideration of all its relevant provisions in light of the surrounding circumstances.” (Emphasis added; internal quotation marks omitted.) Lakeview Associates v. Woodlake Master Condominium Assn., Inc., 239 Conn. 769, 780, 687 A.2d 1270 (1997).

The deeds by which the defendant acquired its property provide that the lands conveyed to the defendant were those “designated and shown as ‘OPEN SPACE CONSERVATION’ and ‘OPEN SPACE’ areas on a certain set of subdivision maps (including cover and sheets 1 through 13, inclusive) ... to which subdivision maps reference is herein made for a more particular description of the same.” Thus, the deeds explicitly provide that the defendant’s rights in the “open space conservation” and “open space” land would be subject to all restrictions more particularly set forth in the subdivision maps. The effect of the reference to the subdivision maps was to incorporate those maps into the deed. General Statutes § 7-31. “This reference to the map in the deed, ‘[f]or a more particular description,’ incorporates [the map] into the deed as fully and effectually as if copied therein.” Bankers Trust Co. v. Zoning Board of Appeals, 165 Conn. 624, 631, 345 A.2d 544 (1974). “[T]he identifying or explanatory features contained in maps referred to in a deed become part of the deed, and so are entitled to consideration in interpreting the deed as though they were expressly recited therein.” (Emphasis added.) Whittaker v. Zoning Board of Appeals, 179 Conn. 650, 659 n.8, 427 A.2d 1346 (1980). Thus, the effect of incorporation of the subdivision maps into the deeds was to include in the deeds any easement memorialized on those maps. Id.

Sheet 13 of the subdivision maps contains a legend that provides that the area immediately south of, and adjacent to, what is now the plaintiffs landlocked property is “RESERVED FOR . . . ACCESS AREA FOR LANDLOCKED ABUTTERS.” The term “reserved” is a term of art generally associated with the creation of an easement; see Knowlton v. New York, N.H. & H. R. Co., 72 Conn. 188, 192-93, 44 A. 8 (1899);Barnes v. Burt, 38 Conn. 541, 542 (1871); 25 Am. Jur. 2d, Easements and Licenses §§ 19, 82 (1996); and the term “easement of access” is used to refer to an abutting landowner’s “ ‘right of ingress, egress, and regress ....’” Kachele v. Bridgeport Hydraulic Co., 109 Conn. 151, 153, 145 A. 756 (1929). Thus, the language of the legend on sheet 13 indicates an intention to create an access easement. Finally, the term “landlocked abutters” in that legend identifies the land to be benefited by the access easement, namely, the landlocked property that now is owned by the plaintiff. See Branch v. Occhionero, 239 Conn. 199, 204, 681 A.2d 306 (1996) (creation of easement requires identification of property to be benefited). As previously noted, the determination of the intent expressed in a deed presents a question of law. Lakeview Associates v. Woodlake Master Condominium Assn., Inc., supra, 239 Conn. 780. We conclude, therefore, that, as a matter of law, the deeds and the incorporated subdivision maps by which the defendant acquired its property manifest an intention by DiNardo and Gold Key to create an access easement over that property in favor of the owner of the landlocked property that now belongs to the plaintiff.

The trial court concluded, however, that the unity of title doctrine precluded it from recognizing such an easement. The unity of title doctrine provides that “[n]o right of way appurtenant can be created without a dominant as well as a servient estate. . . . The dominant estate enjoys the benefit of the way, and the servient estate bears the burden. The way can become legally attached to the dominant estate only if the same person has unity of title to both the way and the dominant estate.” (Citation omitted.) Curtin v. Franchetti, supra, 156 Conn. 389. The doctrine is based on the common-law notion that, because a stranger to the deed has no interest in the property conveyed, he has no interest to be excepted from the grant, and none from which a reservation could be carved. Aszmus v. Nelson, 743 P.2d 377, 380 (Alaska 1987); Willard v. First Church of Christ, Scientist, 7 Cal. 3d 473, 475, 498 P.2d 987, 102 Cal. Rptr. 739 (1972); annot., 88 A.L.R.2d 1199, 1202 (1963).

The unity of title doctrine was adopted by this court in Curtin v. Franchetti, supra, 156 Conn. 387. In Curtin, the plaintiff claimed that she owned a right of way over the defendant’s property. Both parties traced their chains of title to a common grantor. The trial court determined that the grantor had reserved a right of way over the defendant’s property for the benefit of the plaintiffs property, and rendered judgment for the plaintiff. On appeal, we noted that “[t]he way can become legally attached to the dominant estate only if the same person has unity of title to both the way and the dominant estate.” Id., 389. Concluding that the plaintiff had failed to establish that the common grantor had owned her property at the time he had reserved an easement over the defendant’s property, we reversed the judgment of the trial court. Id., 391; see Stankiewicz v. Miami Beach Assn., Inc., 191 Conn. 165, 170, 464 A.2d 26 (1983) (approving doctrine). Thus, Curtin requires that an easement be created by a person who has title to both the easement area and the property to be served by the easement. Curtin v. Franchetti, supra, 389. When the defendant in the present case acquired its property, DiNardo and Gold Key were the owners of the area of the property intended to serve as an easement; they were not, however, the owners of the land that the easement was intended to serve, i.e., the plaintiffs property. Consequently, continued adherence to the unity of title doctrine that we adopted in Curtin would preclude us from recognizing that easement. “While we [have] recognized that several commentators view the unity of title doctrine as an obsolete vestige of feudalism that frustrates the intention of the grantor; H. Harris, ‘Reservations in Favor of Strangers to the Title,’ 6 Okla. L. Rev. 127 (1953); 2 American Law of Property (Casner Ed. 1952) § 8.29; 5 Restatement, Property § 472, comment [a]; we [have] decided to defer reconsideration of the subject until we are confronted with a case in which the grantor’s intention to create an interest that would violate the rule is ‘reasonably clear.’ Ozyck v. D’Atri, [206 Conn. 473, 479, 538 A.2d 697 (1988)].” Carbone v. Vigliotti, 222 Conn. 216, 223-24, 610 A.2d 565 (1992); Branch v. Occhionero, supra, 239 Conn. 202 n.4; see Abington Ltd. Partnership v. Heublein, 246 Conn. 815, 829, 717 A.2d 1232 (1998). This is such a case. We can discern no reason to adhere to the unity of title doctrine and ignore the expressed intention of the parties to the defendant’s deeds. We conclude, therefore, that the unity of title doctrine should be abandoned and that the intent of the deed creating an easement should be effectuated even if no unity of title exists between the servient estate and the dominant estate the easement is intended to serve. To the extent that Curtin approves the unity of title doctrine, it is hereby overruled.

Our conclusion, moreover, finds support in the recently approved provisions of the Restatement (Third) of Property, Servitudes, and in the decisions of many other states. Restatement (Third), Property, Servitudes, Tentative Draft No. 1 (1989, officially adopted 1998) § 2.2 (conveyance creates servitude if intended to do so; intent may be express or implied); id., § 2.6 (servitude may be created in favor of persons not parties to transaction); id., § 2.6 comment (e) (single document may convey easement and burdened estate); see Aszmus v. Nelson, supra, 743 P.2d 377 (rejecting unity of title doctrine); Willard v. First Church of Christ, Scientist, supra, 7 Cal. 3d 473 (same); Katkish v. Pearce, 490A.2d626 (D.C. App. 1985) (same); Nelson v. Parker, 687 N.E.2d 187 (Ind. 1997) (same); Townsend v. Cable, 378 S.W.2d 806 (Ky. 1964) (same); Borough of Wildwood Crest v. Smith, 210 N.J. Super. 127, 509 A.2d 252 (1986), cert. denied, 107 N.J. 51, 526 A.2d 139 (1986) (same); Malloy v. Boettcher, 334 N.W.2d 8 (N.D. 1983) (same); Garza v. Grayson, 255 Or. 413, 467 P.2d 960 (1970) (same); Simpson v. Kistler Investment Co., 713 P.2d 751 (Wyo. 1986) (same); see also Uhes v. Blake, 892 P.2d 439 (Colo. App. 1995) (effectuating intent of grantor); Medhus v. Dutter, 184 Mont. 437, 603 P.2d 669 (1979) (same); Zurn Industries v. Lawyers Title Ins. Corp., 33 Ohio App. 3d 59, 514 N.E.2d 447 (1986) (same); Mott v. Stanlake, 63 Mich. App. 440, 234 N.W.2d 667 (1975) (same).

The deeds by which the defendant acquired its land from DiNardo and Gold Key created an easement over that land in favor of the owner of what is now the plaintiffs landlocked abutting parcel. Because of that legal conclusion, and because of the abandonment of the unity of title doctrine that was the underpinning of the trial court’s judgment, the new trial that is necessitated should be limited to the extent and nature of the plaintiffs easement, which obviously the trial court did not determine.

The judgment is reversed, and the case is remanded for a new trial limited to a determination of the extent and nature of the plaintiffs easement.

In this opinion the other justices concurred.

       The deed by which Isabel Curtis transferred the tract south of the dividing line to Charles Curtis did not grant Isabel Curtis any easement appurtenant over that tract.

       The deed by which Isabel Curtis transferred the tract north of the dividing line to Heiser also makes no mention of any easement over the property that then was owned by Charles Curtis.

       The subdivision maps, which had been prepared for DiNardo’s predecessor in title, previously had been approved by the Litchfield planning and zoning commission on November 21, 1977.

       DiNardo was the president of Gold Key.

       The defendant acquired its property by quitclaim deed from DiNardo on January 6, 1988, and by warranty deed from Gold Key on January 6, 1988. The provisions of those deeds that are relevant to this appeal are identical.

       On appeal, the defendant claims that the plaintiffs complaint lacks sufficient specificity. Because this claim was not raised at trial, we do not consider it. “The appeal process should not be utilized to seek to correct pleading deficiencies the party complaining clearly could have remedied under our rules in the trial court.” (Internal quotation marks omitted.) Tedesco v. Stamford, 215 Conn. 450, 458, 576 A.2d 1273 (1990).

       General Statutes § 7-31 provides in relevant part: “When any person having an interest in land has caused it to be surveyed and plotted or laid out into lots and projected highways, and a map made, which map shall bear the seal of the surveyor and a certification that it is substantially correct to the degree of accuracy shown thereon, and when such projected highways have been approved by the municipal authorities empowered to approve the layout of highways, the map may be received and placed on file in the office of the clerk of the town in which such land is situated and shall thereupon be deemed apart of the deeds referring thereto . . . (Emphasis added.)

       We appreciate the defendant’s observation that a purchaser of tire dominant estate — the estate benefited by the easement — may have problems discovering such easements by way of a title search. We nevertheless favor abandonment of the rule. We note, moreover, that a purchaser of the servient estate — the estate burdened by the easement — will have sufficient notice of such easements because the language of its deed and the surrounding circumstances will manifest such an intent.

       The Restatement (Third) of Property, Servitudes, was adopted in its entirety, subject only to editorial modifications, by the American Law Institute at its annual meeting on May 12, 1998. See 66 U.S.L.W. 2724-26 (May 26, 1998).

       Restatement (Third), Property, Servitudes, Tentative Draft No. 1 (1989, officially adopted 1998) § 2.2 provides: “A contract or conveyance creates a servitude if it is intended to do so, and if it is otherwise effective to create a servitude. The intent to create a servitude may be express or implied. No particular verbal formula is required.”
      See Restatement (Third), Property, Servitudes, Tentative Draft No. 1 (1989, officially adopted 1998) § 2.6, comment (b), which provides: “The underlying rationale of the rules stated in this section is that the intent of the parties to create servitude benefits in others should be given effect The old rules . . . requiring separate conveyances for the creation of a servitude and simultaneous transfer of the burdened estate, were designed to serve purposes that are now obscure. They have little modern utility and trap the poorly represented. They frustrate intent and, to the extent they retain any force, should be discarded.”

       Restatement (Third), Property, Servitudes, Tentative Draft No. 1 (1989, officially adopted 1998) § 2.6 provides: “(a) The beneficiaries of a servitude are the persons or the holders of the estates intended to be benefited by the parties to the transaction.
      “(b) The benefit of a servitude may be held personally, in gross, or as an appurtenance to an estate or other interest in land.
      “(c) The benefit of a servitude may be created in favor of persons who are not parties to the transaction, and in favor of the holders of estates, or other interests in land, that are not owned by parties to the transaction.”

       Restatement (Third), Property, Servitudes, Tentative Draft No. 1 (1989, officially adopted 1998) § 2.6, comment (e) provides in relevant part: “A servitude benefiting a third party may be created in a document that simultaneously conveys the burdened estate to another.”

       See generally 4 R. Powell, Real Property (1997) § 34.04 (recognizing that intent of grantor should be given effect); S. French, “Servitudes Reform and the New Restatement of Property: Creation Doctrines and Structural Simplification,” 73 Cornell L. Rev. 928, 937 (1988) (endorsing creation of easement in third party); R. Cunningham, The Law of Property (2d Ed. 1993) § 8.3, pp. 444-45, § 10.11, p. 719 (recognizing trend discrediting unity of title doctrine); 23 Am. Jur. 2d, Deeds § 84 (1983) (acknowledging that growing number of courts abandoning common-law rule).