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Doe v. Town of West Hartford

Court of Appeals of Connecticut

September 20, 2016

JOHN DOE
v.
TOWN OF WEST HARTFORD ET AL.

          Argued May 10, 2016

         Appeal from Superior Court, judicial district of Hartford, Complex Litigation Docket, Sheridan, J. [motions for summary judgment]; Dubay, J. [motion to disqualify].

          Kenneth J. Krayeske, with whom was Brendan Mahoney, for the appellant (plaintiff).

          Patrick D. Allen, with whom, on the brief, was Scott M. Karsten, for the appellees (named defendant et al.).

          Laura Pascale Zaino, with whom, on the brief, were Richard C. Tynan, Evan M. O'Hara, and Logan A. Forsey, for the appellees (defendant Dale J. Wallington et al.).

          Michael R. McPherson, for the appellees (defendant Hartford Hospital et al.).

          Beach, Mullins and Mihalakos, Js.

          OPINION

          MULLINS, J.

         The plaintiff, John Doe, [1] appeals from the summary judgment rendered by the trial court, Sheridan, J., after determining that the plaintiff's causes of action were time barred and were not saved by General Statutes § 52-593a.[2] The plaintiff also appeals from the decision of the court, Dubay, J., denying his motion to disqualify Judge Sheridan. The defendants are: the town of West Hartford and certain members of its police department in their official and individual capacities, namely, James Strillacci, Chief of Police, Detective Donald Melanson, Officer Gino Giansanti, Officer Kimberly Sullivan, Officer Sean Walmsley, Sergeant John Silano, and Detective Michael Camilleri (collectively, town defendants); Dale J. Wallington, M.D., and Resilience Health Care, LLC (collectively, medical defendants); and Hartford Hospital, the Institute of Living, Radhika Mehendru, M.D., Carl Washburn, M.D., and Theodore Mucha, M.D. (collectively, hospital defendants).[3]

         On appeal, the plaintiff claims that the court improperly rendered summary judgment despite the existence of issues of material fact regarding whether process was delivered to the marshal prior to the expiration of the various statutes of limitations for his causes of action, and that the court improperly denied the plaintiff's motion for disqualification of Judge Sheridan on the ground of judicial bias.[4] We agree that the court improperly rendered summary judgment, and, accordingly, we reverse in part and affirm in part the judgment of the trial court.[5]

         Many of the underlying facts and the complicated procedural history of this case are not relevant to the issues on appeal. Accordingly, we omit them and set forth only the facts and history necessary for our consideration of the issues presented. The plaintiff alleged various wrongful conduct on the part of the defendants that he claims occurred between May 22, 2007, and June 8, 2007. He commenced this action by summons and complaint, executed on May 19, 2010. According to the marshal's return, which was signed by State Marshal John R. Griffin, the defendants all were served on June 9, 2010. Beginning on September 23, 2013, more than three years after this action was commenced, the town defendants, the medical defendants, and the hospital defendants each filed a motion for summary judgment claiming, inter alia, that the plaintiff's causes of action were time barred.[6] In response, the plaintiff contended that Griffin had picked up process on May 20, 2010, at the office of Attorney A. Paul Spinella, his attorney at the time he commenced this action, thereby saving the late service pursuant to § 52-593a. See footnote 2 of this opinion. In three separate memoranda, the court, Sheridan, J., granted the defendants' motions for summary judgment on the issue of the statutes of limitations, concluding that there was no genuine issue of material fact as to whether Griffin had received process prior to the running of the statutes of limitations, and that the defendants were entitled to judgment as a matter of law.

         Thereafter, the plaintiff filed a motion to reargue and reconsider, claiming, in part, that he had newly discovered evidence in the form of e-mails that would further help to establish that Spinella's office gave process to Griffin on May 20, 2010. The court denied the plaintiff's motion.

         The plaintiff also filed a motion to recuse and disqualify Judge Sheridan on the basis of alleged judicial bias, which was heard by Judge Dubay. Following the hearing, Judge Dubay denied that motion. The plaintiff subsequently filed a motion requesting that Judge Dubay articulate the basis for his denial of the motion to disqualify, which he granted. This appeal followed.[7] Additional facts will be set forth as necessary.

         I

         The plaintiff first claims that the trial court improperly rendered summary judgment despite the existence of issues of material fact regarding whether process was delivered to Griffin, the marshal, prior to the expiration of the statutes of limitations. He also claims that the court improperly struck Spinella's affidavit. The plaintiff argues that the defendants never established that the process was not picked up by Griffin prior to the expiration of the statutes of limitations. He further argues that the court improperly weighed the evidence, made credibility determinations, and shifted the burden of proof to him, despite there being no evidence from the movants as to when process was received by Griffin, and then held him to a higher burden of proof than was appropriate for purposes of opposing summary judgment motions. The plaintiff additionally argues that the only burden he had when opposing summary judgment was to demonstrate an issue of material fact as to whether Griffin received process prior to May 22, 2010; he contends that he certainly met that burden but that the court, improperly, required him to prove that process had been delivered, and it failed to view the evidence in the light most favorable to the nonmoving party. We agree that there exists a genuine issue of material fact regarding the date that process was delivered to the marshal.

         The following additional facts inform our review. In September and October, 2013, the town defendants and the hospital defendants each filed a motion for summary judgment on grounds that included the expiration of the applicable statute of limitations, both citing General Statutes § 52-577.[8] The hospital defendants also cited General Statutes § 52-584, [9] and the town defendants also cited General Statutes § 52-571c (c).[10]

         In response to these motions for summary judgment, the plaintiff submitted memoranda in opposition in which he claimed, inter alia, that his causes of action were saved through the application of § 52-593a, and he included the affidavit of Griffin, who attested in relevant part that ‘‘process to be served [in this] case was delivered to [him] on May 20, 2010.'' In response, in February, 2014, the town defendants and the hospital defendants filed motions to strike Griffin's affidavit on the ground that it was not based on personal knowledge. In particular, they claimed that Griffin had testified during his deposition that he had no recollection of the specific date upon which he had received process in this case and that he had signed the affidavit because Spinella's office asked him to sign it. The town defendants and the hospital defendants attached copies of Griffin's deposition to their motions to strike.

         On March 11, 2014, the plaintiff filed an opposition to the defendants' motions to strike the Griffin affidavit, and he also included an affidavit from Spinella. In an order dated April 21, 2014, the court granted the motions to strike Griffin's affidavit, but, upon the request of the plaintiff, permitted him to submit the affidavit of Spinella.[11] The court also gave the defendants sixty days to depose Spinella regarding the facts and circumstances set forth in his affidavit.

         On July 9, 2014, the hospital defendants filed a motion, entitled ‘‘Motion to Strike Affidavit of A. Paul Spinella and Supplemental Memorandum in Support of Motion for Summary Judgment.'' They sought to strike Spinella's affidavit on the grounds that the affidavit was not based on personal knowledge and that it contained hearsay. Among the documents submitted in support of the motion to strike was Spinella's certified deposition.

         On July 17, 2014, the town defendants filed a similar supplemental motion for summary judgment and motion to strike, which specifically incorporated the July 9, 2014 motion of the hospital defendants. They also contended that Griffin's failure to endorse on his return of service the date he received process in this case was fatal.[12] See footnote 2 of this opinion. The plaintiff filed an opposition to these motions, attaching Spinella's affidavit and portions of his deposition. The hospital defendants and the town defendants each filed a reply. On September 12, 2014, the court rendered a decision striking in part Spinella's affidavit on the ground that it was not based on personal knowledge because Spinella did not witness, firsthand, the marshal pick up the process.

         On September 25, 2014, the medical defendants filed a motion for permission to file a supplemental motion for summary judgment, alleging that, in light of the court's recent rulings on the other defendants' motions to strike, the plaintiff's causes of action against them also were barred by § 52-577.[13] On September 30, 2014, the court granted permission to the medical defendants.

         Eight days later, onOctober8, 2014, the court, in three separate memoranda of decision, rendered summary judgment on behalf of all defendants. Specifically, the court rendered summary judgment on the ground that the plaintiff had failed to establish that process had been delivered to Griffin prior to the running of the applicable statutes of limitations in this case.[14]

         The plaintiff claims that the court improperly struck Spinella's affidavit and that it improperly rendered summary judgment despite the existence of issues of material fact regarding whether process was delivered to Griffin prior to the expiration of the statutes of limitations. We agree that the court improperly rendered judgment on the basis that there was no genuine issue of material fact as to whether Spinella delivered process to Griffin prior to the expiration of the applicable three year statutes of limitations.

         ‘‘The principles that govern our review of a trial court's ruling on a motion for summary judgment are well established. Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. . . .

         ‘‘In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact . . . but rather to determine whether any such issues exist. . . . The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact. . . . Once the moving party has met its burden [of production] . . . the opposing party must present evidence that demonstrates the existence of some disputed factual issue. . . . [I]t [is] incumbent [on] the party opposing summary judgment to establish a factual predicate from which it can be determined, as a matter of law, that a genuine issue of material fact exists. . . .

         ‘‘On appeal, the reviewing court must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court. . . . [R]eview of the trial court's decision to grant [a party's] motion for summary judgment is plenary.'' (Citations omitted; internal quotation marks omitted.) Episcopal Church in the Diocese of Connecticut v. Gauss, 302 Conn. 408, 421-22, 28 A.3d 302 (2011), cert. denied, U.S., 132 S.Ct. 2733, 183 L.Ed.2d 653 (2012).

         ‘‘Summary judgment is appropriate on statute of limitations grounds when the material facts concerning the statute of limitations [are] not in dispute . . . .'' (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 313, 77 A.3d 726 (2013). ‘‘The question of whether a party's claim is barred by the statute of limitations is a question of law, which this court reviews de novo.'' (Internal quotation marks omitted.) Targonski v. Clebowicz, 142 Conn.App. 97, 106, 63 A.3d 1001 (2013). ‘‘A plaintiff relying upon a saving statute [to defeat a statute of limitations defense] must demonstrate compliance with its provisions.'' (Internal quotation marks omitted.) Gianetti v. Connecticut Newspapers Publishing Co., 136 Conn.App. 67, 74, 44 A.3d 191, cert. denied, 307 Conn. 923, 55 A.3d 567 (2012).

         Here, the plaintiff argues that this case is not barred by any statute of limitations because process was given to Griffin timely pursuant to § 52-593a and that the documents available to the court when considering the defendants' motions for summary judgment established, at the very least, a genuine issue of material fact on this topic, which is all he was required to establish.

         ‘‘Section 52-593a . . . extends the period of time for the serving officer to make the delivery. Process must still be received by the serving officer on time. In other words, the plaintiff must get the process to the serving officer within the period allowed by the statute. . . . All that § 52-593a requires . . . is that the process be personally delivered [to the marshal]. It does not require that the delivery be made by the plaintiff, his attorney, or any particular individual. The person making the delivery has no statutory role to perform respecting the delivery. He is neither required nor permitted to endorse his doings on the return. In addition, the statute does not detail the manner of making delivery. The word deliver includes a handing over for the purpose of taking even though both acts do not occur simultaneously. . . . The fact that the extension statute becomes operative only where the process has been delivered before the running of the statute of limitations, and the fact that the serving officer is required to attest to the date of delivery suggest that the purpose of the statute is to ensure that the process is received on time by the officer.'' (Footnotes omitted; internal quotation marks omitted.) Id., 73-74. ‘‘A plaintiff relying upon a ‘saving statute' must demonstrate compliance with its provisions. . . . [If] the plaintiff fail[s] to establish a genuine issue of material fact as to his compliance with the provisions of § 52-593a, the court properly render[s] summary judgment . . . .'' (Citation omitted.) Id., 74.

         In this case, all parties agree that the defendants were served on June 9, 2010, and that this date was, at a minimum, one day beyond the applicable statutes of limitations. The question we are called upon to answer in this instance is whether the court properly ruled that the evidence submitted in support of, or in opposition to, the motions for summary judgment failed to demonstrate that there existed a genuine issue of material fact as to whether Griffin received process on May 20, 2010. We conclude that, even without the consideration of Griffin's or Spinella's affidavit, there existed evidence in the form of Spinella's deposition testimony to demonstrate the existence of a genuine issue of material fact as to the date process was delivered to Griffin. Accordingly, we conclude that the court improperly rendered summary judgment on the ground that the plaintiff had failed to demonstrate the existence of such a genuine issue.

         During his deposition, which was before the court when it ruled on the various motions for summary judgment, Spinella was question by Attorney Michael R. McPherson, counsel for the hospital defendants, and testified in relevant part as follows:

‘‘Q. Now, I've marked what looks to be your affidavit as defendants' exhibit three. . . . Now, is that your affidavit and your signature?
‘‘A. Looks like it.
‘‘Q. Now, it says in the affidavit that you used Marshal Griffin exclusively for service of process in 2010, is that correct?
‘‘A. To the best of my memory, yes.
‘‘Q. Now, in May of 2010, who had the responsibility at your firm to ensure that the marshal received the process for service?
‘‘A. Bonnie St. Onge, to the best of my memory.
‘‘Q. Now, who is Bonnie St. Onge?
‘‘A. My office manager at that time. . . .
‘‘Q. Does Bonnie St. Onge work for your firm still?
‘‘A. No. . . . She's deceased. . . .
‘‘Q. Now, back in May of 2010, can you describe the typical process at your firm as to how, once a complaint was drafted and a summons filled out, those papers were delivered to the marshal . . . .
‘‘A. Well, it depended on the urgency of it. If it was really urgent, he would be called and asked to personally come and get it so we wouldn't have to wait on the mail.
‘‘Q. And who would make the call typically in May of 2010 to the marshal to come pick it up?
‘‘A. Bonnie.
‘‘Q. Now, was it ever your practice to personally hand the process to the marshal when he came to your office, or did you leave that to Bonnie?
‘‘A. We'd leave it on the end of the counter. But he would come in and talk to the staff; he wouldn't just grab it. And it would be handed over to him.
‘‘Q. When you say you'd leave it on the counter, was that counter like a receptionist's desk?
‘‘A. Yes. When you come in my office, there's a long counter, and it's like a wall with a shelf on it. And at the end of that, that would be for pickup.
‘‘Q. Now, did someone sit at that desk or counter area in your office back in May of 2010?
‘‘A. Yes. There were two-Bonnie's office was right there. And I also had a secretary that sat there.
‘‘Q. And what was the name of your secretary who sat right there in May of 2010?
‘‘A. It would have been Bonnie Kiniry.
‘‘Q. Now, I'm trying to picture this in my mind. I've never been to your office, so I apologize. There is a counter that is right when you walk into your office?
‘‘A. Uh-huh.
‘‘Q. And did Bonnie Kiniry sit right behind that counter?
‘‘A. She [sat] near to it. And Bonnie St. Onge [had] an open door that open[ed] ...

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