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Troland v. MEG Property Services, LLC

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

January 30, 2017

KELLY TROLAND, Plaintiff,
v.
MEG PROPERTY SERVICES, LLC, AND BERT L. DAVIS, Defendants

          MEMORANDUM OF DECISION ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (#113)

          Cole-Chu, J.

         The plaintiff, Kelly Troland, who is representing herself, brought this action in small claims court, whence it was removed to this court on January 17, 2014, by the defendants, MEG Property Services, LLC (MEG), and Bert L. Davis (Davis). The plaintiff filed a revised complaint on August 22, 2014 (#107, the complaint), for negligence arising from the loss of the plaintiff's personal property, including jewelry, a jewelry armoire and one cat, during or after her eviction from apartment #8 at 17 Greenway Road in New London (the premises). The defendants filed an answer and two special defenses to the revised complaint, and a counterclaim (collectively #108), on September 22, 2014. On May 24, 2016, the defendants filed a motion for summary judgment (#113) to which the plaintiff on July 25, 2016 filed an objection (#122; Pl.'s Aff. pp. 11-12). The motion was argued on October 17, 2016.

         On a motion for summary judgment in this court, the movant has the burden of submitting evidence to demonstrate the absence of all genuine issues of material fact and that it is entitled to judgment as a matter of law. Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 320, 77 A.3d 726 (2013). To meet its burden, the moving party 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." (Internal quotation marks omitted.) Id.

         There are three grounds of the defendants' motion which the court will address in reverse order. First, defendant MEG claims entitlement to summary judgment because none of the allegations of the complaint are against MEG. That is true. Indeed, except in its caption, MEG is not mentioned in the complaint. Although as a form of public service and as a matter of policy, courts show reasonable flexibility in the enforcement of the rules of practice against self-represented parties; Orcutt v. Commissioner of Correction, 284 Conn. 724, 740 n.26, 937A.2d 656 (2007); self-represented parties are bound to comply with the rules of court and substantive law. Kaddah v. Commissioner of Correction, 299 Conn. 129, 140, 7 A.3d 911 (2010). MEG is not the plaintiff's landlord: the complaint alleges that her landlord was Mark Grillo, who is not a named defendant, and that the theft of her jewelry was caused by the negligence of Grillo and Davis. If in this situation the court did not find MEG entitled to judgment, it would be difficult to imagine when summary judgment could be granted.

         The defendants' next ground is that, as a matter of law, the plaintiff cannot establish negligence as to Davis. " Issues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner." (Internal quotation marks omitted.) Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984), quoting Spencer v. Good Earth Restaurant Corp., 164 Conn. 194, 199, 399 A.2d 403 (1972). Summary judgment is " ill-adapted to negligence cases, where .... the ultimate issue.... involves a mixed question of fact and law, and requires the trier of fact to determine whether the standard of care was met in a specific situation." (Internal quotation marks omitted.) Spencer v. Good Earth Restaurant Corp., supra, 164 Conn. 198. The conclusion of negligence requires findings of fact. Id. So it is in this case.

         Davis argues that the plaintiff's allegations arise from an eviction in which a marshal was in control and that he, Davis, cannot be held responsible for the intentional acts of third parties. Even to consider that argument requires assumptions of fact because the plaintiff herself does not claim to know exactly what happened to her jewelry. The court cannot find as a matter of law that the plaintiff s jewelry was even stolen and, therefore, that the plaintiff cannot as a matter of law prevail against Davis on the basis of a third party's intentional, intervening acts. The plaintiff admits in her complaint that she " helped to gather [her] belongings that [October 6, 2011] afternoon [for] a few hours.... " The plaintiff essentially admits that that day was the first of two days in which the eviction took place, that she knew she was no longer in possession of the premises, and that a marshal would be moving her property out the next day. Under such circumstances, a tenant might reasonably remove valuables while she still had ready access to them. Why she left them is among the subordinate questions of fact in determining where in the premises she left them and whether her " jewelry....was nowhere to be found." The next day, October 7, whether and by whom the plaintiff was told she " could go into the bedroom and hallway closet first to personally retrieve [her] fine jewelry" or " could return to personally pack [her] jewelry and to retrieve [her] cat" - and whether Davis prevented her from going in the bedroom to get the jewelry and said, " if [she] returned to the premises to attempt to gather [her] belongings....[she] would be arrested", which Davis denies under oath, are questions for the trier of fact. That a case may be weak is not the standard for finding a defendant entitled to judgment as a matter of law. See Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (merits aside, where court cannot say beyond doubt that pro se plaintiff cannot prove right to relief, he is entitled to opportunity to prove his case).

         Finally, Davis claims entitlement to judgment because this action is barred by the applicable two-year statute of limitations in General Statutes § 52-584. [1] Davis properly assumes that the plaintiff discovered the alleged theft on November 2, 2011, the day she reported it to the police and claims that the date he was served with the small claims court process in this case, November 27, 2013, is more than two years after that discovery. The marshal's return does show service on Davis on November 27, 2013, and, of course, that is more than two years after November 2, 2011. However, General Statutes § 52-593a (a) provides in pertinent part that " [a] cause or right of action shall not be lost because of the passage of the time limited by law within which the action may be brought, if the process to be served is personally delivered to a state marshal.... within such time and the process is served, as provided by law, within thirty days of the delivery" . [2] See Dorry v. Garden, 313 Conn. 516, 533, 98 A.3d 55, 65 (2014) (§ 52-593a is a

         remedial statute which saves an action that otherwise would be lost due to passage of time). The sworn small claims complaint was apparently signed in October of 2013. (The day in October cannot be read with confidence.) See defendants' brief (#114), Ex. C. That is before the second anniversary of the plaintiff's claimed discovery of the alleged theft, November 2, 2011 - a date assumed by the defendants, and therefore by the court, for present purposes. The marshal's return does not state, as § 52-593a (b) directs, the date the plaintiff delivered the process to him for service. Because it is possible that the plaintiff placed process in this case in the hands of the marshal for service before the statute of limitation ran, defendant Davis has failed to bear his burden of proof of entitlement to judgment on this ground as a matter of law. The court cannot base summary judgment on conjecture. See Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 558, 791 A.2d 489 (2002).

         For the foregoing reasons, MEG has borne its burden of proof of entitlement to judgment and Davis has not. Summary judgment is therefore granted as to MEG and denied as to Davis.

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Notes:

[1]Section 52-584 provides, in pertinent part: " No action to recover damages for injury to the person, or to real or personal property, caused by negligence....shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered ......"

[2]Section 52-593a, entitled " Action not lost where process served after expiration of limitation period", provides in pertinent part: " (a) ...... a cause or right of action shall not be lost because of the passage of the time limited by law within which the action may be brought, if the process to be served is personally delivered to a state marshal....within such time and the process is served, as provided by law, within thirty days of the delivery, (b) In any such case, the officer making service shall endorse under oath on such ...


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