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Doe v. Town of West Hartford

Supreme Court of Connecticut

February 27, 2018

JOHN DOE
v.
TOWN OF WEST HARTFORD ET AL.

          Argued October 11, 2017

          Scott M. Karsten, with whom were Michael R. McPherson, and, on the brief, Laura Pascale Zaino and Patrick D. Allen, for the appellants (named defendant et al.).

          Josephine Smalls Miller, for the appellee (plaintiff).

          Palmer, McDonald, Robinson, D'Auria and Vertefeuille, Js.

          OPINION

          MCDONALD, J.

         This certified appeal requires us to construe General Statutes § 52-593a, [1] a remedial savings statute that operates to render an action timely commenced as long as process is delivered to a marshal prior to the expiration of the applicable statute of limitations and served within thirty days. The defendants, three groups of individuals and entities involved in the 2007 involuntary psychiatric hospitalization of the plaintiff, John Doe, [2] appeal from the judgment of the Appellate Court, which reversed the trial court's rendering of summary judgment in their favor. They claim that the Appellate Court improperly concluded that (1) the requirement in § 52-593a (b) that a marshal shall endorse under oath on the return of service the date on which process was delivered to him or her, is directory, rather than mandatory, and (2) there existed a genuine issue of material fact concerning whether the plaintiff had delivered the process to a marshal within the applicable limitation period. We conclude that § 52-593a (b) does not preclude a plaintiff from proving timely delivery of process to the marshal by means other than the statutorily prescribed method. We further conclude that there existed a genuine issue of material fact as to whether timely delivery was made. Accordingly, we affirm the judgment of the Appellate Court.

         The following facts and procedural history are relevant to this appeal. The plaintiff was hospitalized involuntarily for psychiatric observation in May and June, 2007. Subsequent to his release, he brought this action against multiple individuals and entities, alleging various wrongful conduct in connection with the hospital-ization and the events preceding it. The defendants named in the complaint include (1) a therapist who previously had treated the plaintiff and the therapist's employer (medical defendants), (2) the town of West Hartford, its chief of police and certain members of its police department in their official and individual capacities (town defendants), and (3) Hartford Hospital, the Institute of Living and various psychiatric professionals who were involved in the plaintiff's commitment and treatment (hospital defendants).[3] It is undisputed that the allegedly wrongful acts at issue occurred between May 22 and June 8, 2007, and that, for purposes of this appeal, a three year statute of limitations applied to the plaintiff's claims.

         The plaintiff's former counsel, A. Paul Spinella, finalized a complaint and executed a summons on May 19, 2010. The defendants were served with these documents by State Marshal John R. Griffin on June 9, 2010, a date that was one or more days beyond the expiration of the relevant limitation period, depending on the particular wrongful act alleged.[4] More than three years later, the hospital defendants filed a motion for summary judgment, claiming, inter alia, that the plaintiff's claims against them were time barred. They attached as an exhibit Griffin's return of service indicating that service had occurred on June 9, 2010. The town defendants filed a similar motion as to certain claims, also appending Griffin's return of service. The plaintiff opposed these motions, arguing, inter alia, that the claims at issue were not time barred because the summons and complaint had been delivered to Griffin on May 20, 2010, thereby satisfying the requirements of § 52-593a. See footnote 1 of this opinion. Because Griffin's return of service did not include an endorsement of the date of delivery as required by § 52-593a (b), the plaintiff instead included an affidavit executed by Griffin wherein Griffin attested that the summons and complaint had been delivered to him on May 20, 2010.

         Thereafter, the defendants deposed Griffin, which revealed that he had no independent memory or record of the date on which he had received the summons and complaint from Spinella. Rather, upon request, he simply had executed an affidavit prepared by Spinella, assuming that the delivery date identified therein was correct. Subsequent to the deposition, the hospital defendants and the town defendants filed motions to strike the paragraph of Griffin's affidavit in which he averred that the summons and complaint had been delivered to him on May 20, 2010. Therein, they argued that Griffin's averment was not based on his personal knowledge but, rather, on inadmissible hearsay. The trial court denied the motions to strike, [5] but indicated, nevertheless, that it would disregard Griffin's affidavit when ruling on the summary judgment motions. The court further allowed that the plaintiff could submit an affidavit from Spinella in lieu of Griffin's affidavit, and that the defendants would be permitted sixty days in which to depose Spinella in regard to the facts and circumstances underlying his averments in that affidavit.

         Contemporaneous with the trial court's ruling, Spinella signed an affidavit in which he attested that, at the time he represented the plaintiff in this matter, he had been ‘‘acutely aware of the statute of limitations, '' he had executed the summons with the complaint attached on May 19, 2010, and Griffin had retrieved those documents from Spinella's law office on May 20, 2010. After deposing Spinella, the hospital defendants and the town defendants filed motions to strike his affidavit and supplemental memoranda in support of their earlier motions for summary judgment, providing to the court a transcript of the deposition.[6] They contended that Spinella's affidavit should be stricken because his deposition testimony had revealed that it was based on inadmissible hearsay and speculation, was ‘‘self-serving'' and lacked credibility. The plaintiff filed a response, claiming that Spinella's deposition testimony demonstrated that he had a clear and detailed personal recollection of the relevant events. In a memorandum of decision, the trial court, after reviewing the deposition testimony, concluded that Spinella's statement that the summons and complaint were retrieved by Griffin on May 20, 2010, was based on hearsay rather than personal knowledge and, therefore, would be disregarded for purposes of deciding the summary judgment motions. Specifically, it reasoned, Spinella did not personally deliver the process to Griffin or see Griffin retrieve it; rather, he merely had received oral confirmation from third parties that the process had been picked up. In light of that ruling, the medical defendants sought and received permission to move for summary judgment on the basis that the claims against them, too, were time barred.

         The trial court granted all of the defendants' motions for summary judgment, in three separate memoranda of decision, concluding in each that the claims at issue were time barred. Specifically, it reasoned, the plaintiff had not met his burden of producing admissible evidence sufficient to create a genuine issue of material fact as to whether the summons and complaint had been delivered to Griffin prior to the expiration of the statute of limitations, such that § 52-593a would apply to save the causes of action. The plaintiff's appeal to the Appellate Court followed.

         The trial court, in a subsequent articulation, reiterated that portions of Spinella's deposition testimony constituted hearsay evidence that would be inadmissible at trial and that Spinella had not personally witnessed Griffin retrieving the process. Otherwise, the court reasoned, Spinella had no actual recollection of the events in question occurring on the specific date of May 20, 2010, the day he had identified as the date of delivery in his affidavit. Moreover, according to the court, in light of various surrounding circumstances, the more reasonable inference was that delivery was untimely. In the court's view, Spinella's deposition testimony was ‘‘loose and equivocal'' and, therefore, lacked probative value. ‘‘In sum, '' the court concluded, ‘‘none of the proffered evidence was sufficient to satisfy the plaintiff's burden of demonstrating that the requirements of . . . § 52-593a had been satisfied.''

         The Appellate Court reversed the judgment of the trial court, holding that Spinella's deposition testimony, even without taking into account the portions identified as hearsay, sufficiently had raised a genuine issue of material fact as to whether the summons and complaint were delivered to Griffin on May 20, 2010. Doe v. West Hartford, 168 Conn.App. 354, 375-76, 147 A.3d 1083 (2016). The Appellate Court further rejected the defendants' claim, raised as an alternative ground for affirmance, that Griffin's failure to certify, on the return of service, the date on which the documents were delivered to him was fatal to the plaintiff's appeal because such certification is a mandatory prerequisite to invoking the remedial protection of § 52-593a.[7] Id., 377-79. This certified appeal followed.[8]

         The defendants claim that the Appellate Court improperly reversed the trial court's judgment in their favor because the requirement of § 52-593a (b) that a marshal endorse, on the return of service, the date on which process was delivered to him or her, is a mandatory prerequisite in order to invoke the protection of the statute, and Griffin failed to fulfill that requirement. They claim further, in the alternative, that the admissible evidence before the trial court was insufficient to create a genuine issue of material fact as to whether the summons and complaint were delivered to Griffin prior to the expiration of the statute of limitations. We will address these claims in turn.

         I

         The defendants claim that the trial court's judgment in their favor should be affirmed because Griffin failed to comply with the endorsement requirement of § 52-593a (b). According to the defendants, that requirement is a mandatory prerequisite for the plaintiff to invoke the remedial extension of the statute of limitations afforded by subsection (a) of the statute. We are not persuaded.

         The defendants' claim presents an issue of statutory construction. When we are called upon to construe a statute that is implicated by a summary judgment motion, our review is plenary. See Sokaitis v. Bakaysa, 293 Conn. 17, 22, 975 A.2d 51 (2009). ‘‘In determining the meaning of a statute, we look first to the text of the statute and its relationship to other statutes. General Statutes § 1-2z.[9] If the text of the statute is not plain and unambiguous, we may consider extratextual sources of information such as the statute's legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and [common-law] principles governing the same general subject matter . . . . Our fundamental objective is to ascertain the legislature's intent.'' (Citation omitted; footnote added; internal quotation marks omitted.) Chestnut Point Realty, LLC v. East Windsor, 324 Conn. 528, 533, 153 A.3d 636 (2017).

         When interpreting § 52-593a, we further bear in mind that it ‘‘is a remedial provision that allows the salvage of an [action] that otherwise may be lost due to the passage of time.'' (Internal quotation marks omitted.) Dorry v. Garden, 313 Conn. 516, 533, 98 A.3d 55 (2014). It is established that ‘‘remedial statutes must be afforded a liberal construction in favor of those whom the legislature intended to benefit.'' (Internal quotation marks omitted.) Id.; see also Isaac v. Mount Sinai Hospital, 210 Conn. 721, 733, 557 A.2d 116 (1989) (observing that ‘‘broad and liberal purpose [of a savings statute] is not to be frittered away by any narrow construction'' [internal quotation marks omitted]). In short, a remedial statute ‘‘should be so construed as to advance the remedy rather than to retard it.'' (Internal quotation marks omitted.) Johnson v. Wheeler, 108 Conn. 484, 486, 143 A. 898 (1928). Finally, ‘‘Connecticut law repeatedly has expressed a policy preference to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his or her day in court. . . . [Thus] [o]ur practice does not favor the termination of proceedings without a determination of the merits of the controversy [when] that can be brought about with due regard to necessary rules of procedure.'' (Citations omitted; internal quotation marks omitted.) Fedus v. Planning & Zoning Commission, 278 Conn. 751, 769-70, 900 A.2d 1 (2006).

         Subsection (a) of § 52-593a provides in relevant 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, constable or other proper officer within such time and the process is served, as provided by law, within thirty days of the delivery.'' Pursuant to subsection (b) of § 52-593a, ‘‘[i]n any such case, the officer making service shall endorse under oath on such officer's return the date of delivery of the process to such officer for service in accordance with this section.''

         As this court previously has explained, § 52-593a ‘‘was intended to address the problem that arises when a marshal receives a writ from counsel close to the expiration of the statute of limitations . . . .'' Tayco Corp. v. Planning & Zoning Commission, 294 Conn. 673, 682, 986 A.2d 290 (2010). The statute's purpose is ‘‘to prevent a party from losing the right to a cause of action because of untimely service on the part of the marshal by giving the marshal additional time in which to effect proper service on the party in question.'' (Emphasis in original.) Id. To invoke the protection of the statute, a party ‘‘must deliver the writ to the marshal within the applicable statute of limitations.'' Id. In enacting § 52-593a, ‘‘the legislature recognized the injustice that might result if a [marshal], through inattention, oversight or lack of time, failed to serve papers in time.'' (Internal quotation marks omitted.) Id., 683. ‘‘By allowing the marshal additional time in which to locate and serve a party, § 52-593a provides a method for ensuring correct service of process without infringing on a litigant's ability to timely file even when he or she uses the entire amount of time allotted to bring an action pursuant to the applicable statute of limitations.'' (Emphasis in original.) Id., 685.

         The defendants argue that, to invoke the protections of § 52-593a (a), strict compliance with the certification requirement of § 52-593 (b) is necessary. In the defendants' view, the legislature's use of the word ‘‘shall, '' in delineating this requirement, is unequivocal evidence of its intent that the requirement is mandatory, rather than directory. Moreover, the defendants contend, the Appellate Court's conclusion to the contrary ignored subsection (b) of the statute and rendered it ‘‘meaningless.'' According to the defendants, the ‘‘evidentiary morass with which [the trial court] was confronted four years after the fact'' was exactly the type of situation that the legislature, in enacting subsection (b), must have intended to avoid. The plaintiff responds that, despite the legislature's use of the ...


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