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Law offices of Frank N. Peluso, P.C. v. Cotrone

Court of Appeals of Connecticut

December 5, 2017

LAW OFFICES OF FRANK N. PELUSO, P.C.
v.
JERRY P. COTRONE

          Argued October 5, 2017

          Haldan E. Connor, Jr., for the appellant (defendant).

          Paul Ciarcia, with whom, on the brief, was Frank N. Peluso, for the appellee (plaintiff).

          OPINION

          SHELDON, J.

         The defendant, Jerry P. Cotrone, appeals from the judgment rendered after a bench trial in favor of the plaintiff, Law Offices of Frank N. Peluso, P.C., awarding damages in the amount of $32, 119.06 on the plaintiff's claim for unpaid legal fees. The defendant claims on appeal that the court erred in restoring the plaintiff's case to the docket, in the absence of a timely filed motion to restore, after the plaintiff filed a withdrawal of its action. We agree with the defendant and, thus, reverse the judgment of the trial court.

         The following procedural history is relevant to the defendant's claim. The plaintiff brought this action against the defendant for legal fees by way of writ, summons and complaint on May 19, 2009. The defendant appeared through counsel on April 6, 2010, and filed an answer and special defenses to the plaintiff's revised complaint and a counterclaim on September 22, 2010. The plaintiff sought, and was granted, an extension of time within which to file a responsive pleading, and on October 14, 2010, filed a request to revise the defendant's special defenses and counterclaim.

         No further action in this case was taken by either party until the plaintiff filed a withdrawal of its action on September 17, 2013. Two days later, on September 19, 2013, the plaintiff filed a second withdrawal form that purported to withdraw its withdrawal of the action. On October 15, 2013, the defendant filed an amended counterclaim.

         On February 26, 2015, the court issued a notice to the parties scheduling ‘‘[a] hearing to address the dormancy status of this case'' for March 27, 2015. On the latter date, the court, Mintz, J., ordered that the plaintiff file an answer to the defendant's counterclaim on or before April 17, 2015, and that the defendant reply, if necessary, by May 1, 2015. The court further scheduled a pretrial for May 6, 2015. In accordance with the court's order, the plaintiff filed an answer and special defenses to the counterclaim on March 27, 2015, to which the defendant filed a reply on May 1, 2015. On March 30, 2015, the plaintiff filed a motion to dismiss the defendant's counterclaim for lack of subject matter jurisdiction. On April 2, 2015, the plaintiff filed a reply to the special defenses filed by the defendant on September 22, 2010. On May 5, 2015, the plaintiff filed a certificate of closed pleadings and claimed the case to the trial list.

         On May 6, 2015, the court, Hon. Edward R. Karazin, Jr., judge trial referee, issued a notice scheduling a hearing on the plaintiff's motion to dismiss the defendant's counterclaim for May 15, 2015.[1] That notice also provided: ‘‘The court will also take up [an] objection to the withdrawal [of the withdrawal of the action] (to be filed on or before [May 13, 2015]) and any objection to the objection to the withdrawal [of the withdrawal of the action] (to be filed no later than 9:30 a.m. on [May 15, 2015]).''

         On May 12, 2015, the defendant filed an objection to the plaintiff's motion to dismiss its counterclaim. On May 13, 2015, the defendant filed an objection to the plaintiff's withdrawal of its withdrawal of its action, in which it argued that the plaintiff's withdrawal of its withdrawal of its action was not a proper pleading to restore its action to the docket. The defendant reasoned that, because a withdrawal is equivalent to a final judgment, a withdrawn case can be restored to the docket upon the filing of a motion to open judgment or a motion to restore to the docket within four months of the withdrawal as required by General Statutes § 52-212a.

         On May 14, 2015, the plaintiff filed its reply to the defendant's objection to the withdrawal of the withdrawal of its action. The plaintiff asked the court therein to ‘‘accept [its] rescinding of its withdrawal of action and [allow its] complaint to proceed as it were.'' In support of that request, the plaintiff argued that ‘‘post-withdrawal pleadings are permissible in the state of Connecticut, '' pointing, by way of example, to motions for attorney's fees that are permitted by Practice Book § 11-21. The plaintiff argued that a court's consideration of a motion filed after a case is withdrawn implicitly constitutes the granting of a motion to restore the case to the docket.

         At the May 15, 2015 hearing, the court issued its order on the withdrawal issue from the bench.[2] The court held: ‘‘Since neither side pursued the case [for approximately three years, from the date that the plaintiff filed a request to revise the defendant's counterclaim and special defenses, to the date on which the plaintiff withdrew its action], a fair interpretation was that neither side was interested in the case. The plaintiff, after a phone call to the defense counsel, left a [voice] message that the plaintiff was withdrawing the case with the expectation that the defendant would do so also. It did not, however, happen.

         ‘‘It's clear to this court that the plaintiff did not intend to withdraw the case without an entire withdrawal of the case. This withdrawal apparently was thereafter addressed by defense counsel and a clear reading of the pleadings in the case show that pleading 121 was the withdrawal of the action and the court thereafter withdrew the action and thereafter in pleading 122 was the withdrawal of the withdrawal.

         ‘‘Pleading 121.02, however, for this court, is important because what it says is and I read from the computer printout because there is no elaboration in the record otherwise available. It says: ‘Replace record to pleading status (keypoint 2) and erase all [higher] keypoint dates.' That's 121.02. That means that that was subsequent to 121 which was the withdrawal of action. And if that means erase all [higher] keypoint dates, that effectively means that the withdrawal of action was erased by the court and that ...


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