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Crabbe v. Suisman, Shapiro, Wool, Brennan, Gray & Greenberg

Superior Court of Connecticut, Judicial District of New London, New London

September 29, 2015

Rosemary Crabbe
v.
Suisman, Shapiro, Wool, Brennan, Gray & Greenberg

MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION FOR REASSIGNMENT (#124)

Emmet L. Cosgrove, J.

This motion presents an issue left undecided by the Appellate Court in Irving v. Firehouse Associates, LLC, 95 Conn.App. 713, 898 A.2d 270 (2006): whether the issuance of a decision by the Superior Court after the expiration of the 120-day period for deciding short calendar motions, set forth in Practice Book § 11-19(a), but before the fourteen-day period for filing a motion for reassignment under § 11-19(b) ends a party's time to seek reassignment. Id., 720-21 and 721 n.3. For reasons set forth below, the court holds that a decision rendered after the 120-date but before a timely motion for reassignment ends a party's time to seek reassignment.

FACTS

By a writ of summons and complaint filed August 12, 2013, the plaintiff, Rosemary Crabbe, commenced this action against Suisman, Shapiro, Wool, Brennan, Gray & Greenberg, P.C. and Jeffrey Hill[1] for legal malpractice in their representation of the plaintiff in her marital dissolution and family litigation matters. On March 25, 2015, the defendants moved for summary judgment on the ground that the claim is time barred by the three-year statute of limitation set forth in General Statutes § 52-577.[2] On April 6, 2015, the plaintiff filed a memorandum in opposition to summary judgment conceding that she brought the action more than three years after the judgment of dissolution, but countering that the continuous representation doctrine tolled the statute of limitations. The defendants filed a reply on April 14, 2015 contending that the plaintiff relied on the wrong legal standard for the continuous representation doctrine. Oral argument on the motion was heard at short calendar on April 20, 2015. On August 26, 2015, the court issued its decision, granting the defendants' summary judgment motion.

At issue here is the date of the court's decision on the summary judgment motion and a motion for reassignment filed by the plaintiff. As stated previously, the court issued its decision on August 26, 2015. The clerk's office mailed the notice of decision on August 26, 2015 and the decision was publicly viewable on the electronic filing system that day. On August 27, 2015, [3] the plaintiff filed a motion for reassignment under Practice Book § 11-19(b), which set forth the date the motion was heard at short calendar, the name of the judge to whom the motion was submitted, that the decision was not timely rendered, and a request for oral argument. On September 9, 2015, the defendant filed an objection to the motion and the plaintiff filed a reply on September 10, 2015.

DISCUSSION

The Appellate Court in Irving held that " the provisions of Practice Book § 11-19 rather than the provisions of General Statutes § 51-183 apply in determining whether the court's decision [regarding a short calendar proceeding] was timely issued." [4] Irving v. Firehouse Associates, LLC, supra, 95 Conn.App. 719. Practice Book § 11-19 provides: " (a) Any judge of the superior court and any judge trial referee to whom a short calendar matter has been submitted for decision, with or without oral argument, shall issue a decision on such matter not later than 120 days from the date of such submission, unless such time limit is waived by the parties. In the event that the judge or referee conducts a hearing on the matter and/or the parties file briefs concerning it, the date of submission for purposes of this section shall be the date the matter is heard or the date the last brief ordered by the court is filed, whichever occurs later. If a decision is not rendered within this period the matter may be claimed in accordance with subsection (b) for assignment to another judge or referee.

" (b) A party seeking to invoke the provisions of this section shall not later than fourteen days after the expiration of the 120-day period file with the clerk a motion for reassignment of the undecided short calendar matter which shall set forth the date of submission of the short calendar matter, the name of the judge or referee to whom it was submitted, that a timely decision on the matter has not been rendered, and whether or not oral argument is requested or testimony is required. The failure of a party to file a timely motion for reassignment shall be deemed a waiver by that party of the 120-day time." (Emphasis added.)

As stated previously, the Appellate Court in Irving left open the question of whether a decision rendered after the 120-date but before a timely motion for reassignment ends a party's time to seek reassignment. Irving v. Firehouse Associates, LLC, supra, 95 Conn.App. 720-21. In Irving, the trial court issued its decision eight days after the 120-date and the defendant argued that it had six days left under Practice Book § 11-19(b) to file a motion for reassignment. Id., 717, 720. The Appellate Court, however, held that the defendant waived any objection because it never filed a motion for reassignment at any time after the decision due date. Id., 720-21. Consequently, the court did not rule on whether a motion submitted after an untimely decision must be granted. Id., 721 n.3.

The Appellate Court in Reyes v. Bridgeport, 134 Conn.App. 422, 430-32, 39 A.3d 771 (2012), held that a properly and timely filed motion reassignment pursuant to § 11-19 must be granted. In Reyes, the plaintiffs filed a motion for reassignment within the fourteen-day period under § 11-19(b) and the defendants objected. Id., 426. The court, Hon. Edward H. Stodolink, judge trial referee, sustained the defendants' objection. The plaintiff filed a motion to reargue, which that court denied. Id. Thereafter, fifty days past the 120-date, the trial court, Levin, J., rendered its decision on the underlying motion. Id. The Appellate Court " read subsection (a) to provide that unless there is a waiver by the parties, a judge is required to issue a decision on a short calendar matter within 120 days, and if the judge fails to do so, that the matter must be reassigned at any party's request subject to that party's compliance with subsection (b). This reading is further supported by the language found in subsection (b)." Id., 431. Additionally, the court reasoned that " [i]f a party wants to invoke the right to have a matter reassigned, he or she must timely file a motion for reassignment. It is only if a party fails to do so, or otherwise waives the 120-day filing deadline, that he or she waives the right to have the matter reassigned." Id., 432 (citing Irving v. Firehouse Associates, LLC, supra, 95 Conn.App. 720-21). The court did not, however, define " timely" or address the question left open by Irving. Finding the plaintiffs' motion to be timely filed under Practice Book § 11-19(b), the court reversed trial court's judgment on the underlying motion and remanded for reassignment of the motion. Id., 432.

In the present case, the motion was heard at short calendar on April 20, 2015. Therefore, the 120-date under Practice Book § 11-19 was August 18, 2015. When that date passed without a decision, the parties had until September 1, 2015, fourteen days later, to move for reassignment. The court issued its decision on August 26, 2015, eight days past the 120-date. While the plaintiff submitted a motion for reassignment, within the fourteen-day period on August 27, 2015, the underlying decision had already been rendered. There is no question that the substance of the plaintiff's motion complied with § 11-19(b) as she provided the information required. The plain language of § 11-19(b), however, requires that the matter be undecided in order for a court to consider a motion for reassignment. As set forth in § 1-8, " [t]he design of these rules being to facilitate business and advance justice, they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice." Requiring that the motion be undecided as the plain language requires does not work a surprise or injustice. The plaintiff would have been on notice that the matter had been decided when she logged in to the electronic filing system to submit her motion for reassignment. " It is not . . . a purpose of [§ 11-19] to permit a party who does not like a decision once it has been rendered to use the 120 day rule as an excuse to set that decision aside." Baeder v. Fourth of July Town Celebration Committee, Inc., Superior Court, judicial district of Hartford, Docket No. CV-04-5000893-S, 2006 Conn. Super. LEXIS 455 (February 3, 2006, Tanzer, J.).

For the foregoing reasons, the plaintiff's motion for ...


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