Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Palumbo v. Barbadimos

Appellate Court of Connecticut

February 16, 2016

CAROL PALUMBO
v.
ARIS N. BARBADIMOS ET AL

         Argued October 23, 2015.

          Action to recover damages for, inter alia, assault, and for other relief, brought to the Superior Court in the judicial district of Ansonia-Milford, where the court, Matasavage, J., granted the motion to strike filed by the defendant Premier Medical Group, P.C.; thereafter, the court, Brazzel-Massaro, J., sustained the named defendant's objection to the plaintiff's motion to withdraw her reply to special defenses; subsequently, the plaintiff withdrew the action as to all defendants; thereafter, the court, Markle, J., denied the named defendant's motion to restore the case to the docket, and the named defendant appealed to this court; subsequently, the court, Markle, J., issued an articulation of its decision.

          SYLLABUS

         The plaintiff brought this action against the defendant physician, B, and his medical group, P Co., to recover damages for personal injuries she allegedly sustained as a result of B's assault of her during their employment at P Co. After the trial court struck the claims against P Co., B filed an answer and special defenses. The plaintiff filed a reply to the special defenses, which closed the pleadings. The plaintiff did not claim the action for a jury trial in accordance with the statute (§ 52-215) that sets forth the time periods in which a plaintiff may by right claim an action to the jury trial list. Approximately three months following the last day on which the plaintiff could have unilaterally claimed her action for a jury trial, she filed a motion to withdraw her reply to B's special defenses in order to reopen the pleadings so that she could request a jury trial. The trial court sustained B's objection to the plaintiff's motion. Thereafter, the plaintiff commenced a second action against B, which was identical to her original action, and then filed a voluntary withdrawal of the original action. B filed a motion to restore the original action to the docket, claiming that the plaintiff had abused her right to unilaterally withdraw her action by withdrawing it and commencing an identical second action solely as a tactic to avoid a bench trial, which was the consequence of her having waived her right to a jury trial by failing to claim her action to the jury trial list within the statutory time limits in § 52-215. The trial court denied B's motion, concluding that B had failed to establish that he had a vested right in a bench trial. B thereafter appealed to this court. Held that the trial court abused its discretion in denying B's motion to restore the original action to the docket, as restoration was necessary to protect B's vested right to a bench trial that he had acquired in the course of litigating the action: although the plaintiff had the right to withdraw her action unilaterally at any time before a hearing on the merits, she was not entitled to abuse that right by voluntarily withdrawing her action solely as a procedural tactic to avoid a bench trial and to circumvent an adverse court order, as such tactics offend the orderly and due administration of justice; moreover, by withdrawing the original action and commencing an identical second action against B, the plaintiff placed in jeopardy B's substantial vested right in a bench trial that could not be divested unilaterally by the plaintiff, and put B in peril of having to incur significant additional expenditures of time and money in having to litigate an inevitable jury trial in the second action.

         Justin E. Theriault, with whom, on the brief, was Michael J. Soltis, for the appellant (named defendant).

         John-Henry M. Steele, for the appellee (plaintiff).

         Keller, Prescott and Mullins, Js. PRESCOTT, J. In this opinion the other judges concurred.

          OPINION

Page 697

          [163 Conn.App. 102] PRESCOTT, J.

          The issue raised in the present appeal is whether the defendant was entitled to have a civil action restored to the docket because the plaintiff had withdrawn the action unilaterally and filed a second, identical action to avoid a bench trial that was the consequence of the plaintiff having missed the statutorily prescribed deadline for claiming the action to the jury trial list. The defendant physician, Aris N. Barbadimos, filed this appeal from the trial court's denial of his motion to restore to the docket a tort action brought against him by the plaintiff, Carol Palumbo.[1] The record reveals that after the plaintiff failed to request that her case be placed on the jury trial list within the time [163 Conn.App. 103] frame set forth in General Statutes § 52-215,[2] she filed a second, identical action (second action) against the defendant and subsequently

Page 698

withdrew the action underlying the present appeal (original action).

         The defendant claims that the trial court abused its discretion when it denied his motion to restore the original action to the docket because, by allowing the plaintiff to withdraw the original action and to file a second action solely to avoid the consequences of her failure to comply with § 52-215, the court unfairly prejudiced the defendant, allowed the plaintiff to circumvent a court order, and effectively rendered the statutory time limits in § 52-215 meaningless. Although we are mindful that a plaintiff enjoys a right to withdraw litigation unilaterally prior to a hearing on an issue of fact; see General Statutes § 52-80; Housing Authority v. Hird, 13 Conn.App. 150, 156-57, 535 A.2d 377, cert. denied, 209 Conn. 825, 552 A.2d 433 (1988); we nonetheless conclude that the procedural chicanery engaged in by the plaintiff here cannot be sanctioned because it offends the orderly and due administration of justice. At the time the plaintiff withdrew the original action, she effectively had waived her right to elect a jury trial, and thereby vested in the defendant the right to have [163 Conn.App. 104] the parties' dispute tried to the court. The plaintiff was not entitled to abuse her right of unilateral withdrawal in order to pursue a second, identical action to avoid the consequences of her waiver. Under the circumstances presented here, we conclude that the court improperly denied the defendant's motion to restore the original action to the docket. Accordingly, we reverse the judgment of the trial court and remand the matter with direction to grant the defendant's motion to restore the original action to the docket.

         The record reveals the following relevant facts and procedural history. The plaintiff initiated the original action in December, 2012. The operative, second revised complaint was filed on April 1, 2013, and consisted of one count of assault directed against the defendant and four counts of negligence directed at her employer, Premier Medical Group, P.C. (Premier). See footnote 1 of this opinion. All counts brought against Premier eventually were stricken.[3]

         On June 26, 2013, the defendant filed an answer to the complaint, denying the allegations underlying the remaining count and asserting two special defenses.[4] The plaintiff filed a reply on August 21, 2013, denying all allegations contained in the defendant's special defenses. As of that date, the pleadings were closed. See Doublewal Corp. v. Toffolon, 195 Conn. 384, 387 n.2, [163 Conn.App. 105] 488 A.2d 444 (1985); see also Practice Book § 10-8. Neither party, however, filed a certificate of closed pleadings in accordance with Practice Book § 14-8,[5] nor did the plaintiff claim the

Page 699

matter for a jury trial in accordance with Practice Book § 14-10[6] and General Statutes § 52-215.

         On December 3, 2013, approximately ninety-four days after the expiration of the period in which the case could be claimed to the jury trial list, the plaintiff filed a withdrawal form, on which she indicated that she was withdrawing her August 21, 2013 reply to the special defenses. Two days later, the defendant filed an objection to the withdrawal. In his objection, the defendant first argued that the reply to the special defenses was not a " motion" as that term is defined in our rules of practice, and, therefore, that the reply could not be withdrawn as a " motion" as indicated on the withdrawal form.[7] Second, the defendant argued that a reply to special defenses is a mandatory, responsive pleading, like an answer to a complaint, and, as such, it could not be unilaterally withdrawn. The defendant maintained that the plaintiff was attempting to withdraw the reply in order to " reopen" the pleadings, to which the defendant also objected.

          [163 Conn.App. 106] The plaintiff filed a reply to the objection on December 9, 2013. She argued that the rules of practice did not explicitly prohibit the withdrawal of a reply to special defenses prior to the filing of a certificate of closed pleadings. She contended that, because no certificate had been filed in the present case, she was entitled to withdraw her pleading as of right. The plaintiff provided no explanation as to why she wanted to withdraw her reply to the special defenses. The court, Brazzel-Massaro, J., issued a decision on December 26, 2013, stating that, on the basis of its review of the objection and the reply to the objection, it was sustaining the defendant's objection to the withdrawal.

         On January 6, 2014, the plaintiff commenced the second action against the defendant. The second action consisted of a single count of assault based upon the identical allegations asserted in the original action.[8] On January 21, 2014, the plaintiff filed a voluntary withdrawal of the original action.

         On February 3, 2014, the defendant filed a motion to restore the original action to the docket and a memorandum of law in support of that motion. According to the defendant, restoring the original action to the docket was appropriate here because the plaintiff had withdrawn the action and had filed an identical action in order to

Page 700

circumvent her failure to claim the original action to the jury trial list and effectively to evade the court's decision not to allow her to withdraw her reply to the special defenses, which would have had the effect [163 Conn.App. 107] of opening the pleadings and thus resetting the time in which she could have claimed the matter for a jury trial.

         Attached as an exhibit to the memorandum of law in support of the motion to restore was a copy of an e-mail exchange between counsel for the defendant, Justin M. Theriault, and counsel for the plaintiff, Edmund Q. Collier. The e-mail exchange ends with the following response by Collier to Theriault's inquiry about a proposed deposition date for the defendant: " Justin, I am going to withdraw the case. [The defendant] has been served with a new writ. I did want a jury and your objection was sustained. Thanks. Ned." (Emphasis added.) The court granted the defendant's request for oral argument on the motion to restore, setting a hearing date for March 3, 2014. Prior to the hearing, the plaintiff filed nothing in response to the defendant's motion to restore the case to the docket.

         At the hearing on March 3, 2014, the court first heard from the defendant, who briefly reiterated the arguments made in his motion to restore, drawing the court's attention to the cases cited therein. Neither party sought an evidentiary hearing on the motion. In response to the defendant's argument, the plaintiff indicated that she had not filed any opposition to the motion to restore because her position was fairly straight forward: " It is my case; I can withdraw it." The plaintiff argued that whatever motivation she may have had for withdrawing the original action, that was not something that the court should consider in deciding whether to restore the action to the docket. The plaintiff never raised any objection regarding the e-mail exchange submitted by the defendant, challenging neither its ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.