Argued
December 10, 2018
Procedural
History
Action
to recover damages for, inter alia, quantum meruit, and for
other relief, brought to the Superior Court in the judicial
district of Danbury, where the court, Shaban, J.,
granted the plaintiff's motion to cite in the City of
Bridgeport as a defendant; thereafter, the court,
Truglia, J., granted the defendants' motion to
dismiss and rendered judgment thereon; subsequently, the
court granted the defendants' motion to correct and
issued a corrected memorandum of decision, and the plaintiff
appealed to this court.
Josephine S. Miller, self-represented, the appellant
(plaintiff).
John
P. Bohannon, deputy city attorney, for the appellees
(defendants).
Elgo,
Bright and Moll, Js.
OPINION
PER
CURIAM.
The
plaintiff, Josephine Miller, appeals from the judgment
rendered by the trial court following its granting of the
motion to dismiss filed by the defendants, the Board of
Education of the City of Bridgeport (board), Mark Anastasi,
and the City of Bridgeport (city).[1] On appeal, the plaintiff
claims that the trial court erred in dismissing the action as
untimely because it was saved by the accidental failure of
suit statute, General Statutes § 52-592 (a),
[2]
and, therefore, should have been allowed to proceed. We
disagree and, accordingly, affirm the judgment of the trial
court.
The
following facts and procedural history are relevant to this
appeal. On June 23, 2010, the plaintiff, representing
herself, commenced an action in the Superior Court seeking
payment from the board for legal services she allegedly
provided in 2010 to Andrew Cimmino, a defendant in an action
brought in federal court; see Lyddy v. Cimmino,
United States District Court, Docket No. 3:06CV01420 (CFD)
(D. Conn.); whom the plaintiff alleged was entitled to a
defense and indemnification by the board pursuant to General
Statutes § 7-101a (a).[3] See Miller v. Board of
Education, Superior Court, judicial district of
Fairfield, Docket No. CV-10-6011406-S (2010 action). The
claims raised by the plaintiff in the 2010 action sounded in
quantum meruit and unjust enrichment. On July 10, 2012, the
court dismissed the 2010 action on the basis of the
plaintiff's failure to appear at trial. On July 24, 2012,
the plaintiff filed a timely motion for reconsideration of
the judgment of dismissal. On November 19, 2012, the trial
court denied the plaintiff's motion for reconsideration.
On December 10, 2012, the plaintiff appealed from the
judgment of dismissal to this court, which affirmed the
judgment on October 1, 2013. See Miller v. Board of
Education, 146 Conn.App. 901, 75 A.3d 98 (2013) (per
curiam).
Meanwhile,
on August 6, 2012, while the plaintiff's motion for
reconsideration in the 2010 action was pending, the
plaintiff, representing herself, commenced another action in
the Superior Court. See Miller v. Board of
Education, Superior Court, judicial district of Danbury,
Docket No. CV-12-6010257-S (2012 action). In the 2012 action,
the plaintiff asserted race discrimination claims against the
board and Anastasi, the city attorney, in his official and
individual capacities, pursuant to 42 U.S.C. § 1981. The
plaintiff did not raise, however, a claim of quantum meruit
or unjust enrichment in the 2012 action and did not purport
to file the 2012 action pursuant to § 52-592. On August
31, 2012, the board filed a notice of removal of the 2012
action to the United States District Court for the District
of Connecticut. On July 30, 2014, the federal District Court
ordered, among other things, that the 2012 action be
dismissed with prejudice as a sanction pursuant to rule 11 of
the Federal Rules of Civil Procedure for the plaintiff's
knowingly making false allegations in the complaint. See
Miller v. Board of Education, United States District
Court, Docket No. 3:12CV01287 (JAM) (D. Conn. July 30, 2014).
On September 27, 2014, the plaintiff filed a notice of appeal
to the United States Court of Appeals for the Second Circuit.
On December 10, 2014, the Second Circuit issued a mandate
dismissing the plaintiff's appeal, effective October 29,
2014.
On May
6, 2015, the plaintiff commenced the present action against
the board and Anastasi in his official and individual
capacities, asserting claims sounding in quantum meruit and
unjust enrichment. On August 17, 2015, after obtaining the
court's permission, the plaintiff filed an amended
complaint, which added the city as a defendant. On November
16, 2015, the defendants filed an answer and special
defenses. On November 18, 2016, the defendants filed a motion
to dismiss asserting, inter alia, that the present action was
commenced beyond the one year savings provision of §
52-592 (a). On April 7, 2017, the trial court granted the
defendants' motion to dismiss, concluding that (1) the
plaintiff could not avail herself of § 52-592 (a)
because the dismissal of the 2010 action resulted from the
plaintiff's lack of diligence and her failure to appear
at trial, and not one of the grounds set forth in the statute
to render it a qualifying failed action; and (2) even if the
plaintiff could avail herself of § 52-592 (a), the
plaintiff had failed to commence the present action within
one year after the determination of the 2010 action, which
was the original action for purposes of § 52-592
(a).[4]
This appeal followed.
‘‘We
first set forth our standard of review governing motions to
dismiss. Our standard of review of a trial court's
findings of fact and conclusions of law in connection with a
motion to dismiss is well settled. A finding of fact will not
be disturbed unless it is clearly erroneous. . . . [W]here
the legal conclusions of the court are challenged, we must
determine whether they are legally and logically correct and
whether they find support in the facts . . . . Thus, our
review of the trial court's ultimate legal conclusion and
resulting [granting] of the motion to dismiss will be de
novo. . . . A motion to dismiss admits all facts well pleaded
and invokes any record that accompanies the motion, including
supporting affidavits that contain undisputed
facts.'' (Footnote omitted; internal quotation marks
omitted.) Stevenson v. Peerless Industries, Inc., 72
Conn.App. 601, 606, 806 A.2d 567 (2002).[5]
On
appeal, the plaintiff claims that the trial court erroneously
dismissed the present action as untimely. Specifically, she
argues: (1) the court improperly concluded that § 52-592
(a) was not available to her based on its finding that the
2010 action was dismissed as a result of her lack of
diligence and her failure to appear at trial; and (2) the
court improperly concluded that, even if § 52-592 (a)
were available to her, she failed to commence the present
action within the one year savings period.[6] We conclude that,
even if we assume, arguendo, that the plaintiff could avail
herself of § 52-592 (a), she failed to commence the
present action within the one year savings
period.[7]
Section
52-592 (a) provides in relevant part: ‘‘If any
action, commenced within the time limited by law, has failed
one or more times to betried on its merits because of
insufficient service or return of the writ due to unavoidable
accident or the default or neglect of the officer to whom it
was committed, or because the action has been dismissed for
want of jurisdiction, or the action has been otherwise
avoided or defeated . . . for any matter of form; or if, in
any such action after a verdict for the plaintiff, the
judgment has been set aside, or if a judgment of nonsuit has
been rendered or a judgment for the plaintiff reversed, the
plaintiff . . . may commence a new action . . . for the same
cause at any time within one year after the determination
of the original action or after the reversal of the
judgment.'' (Emphasis added.) ‘‘[U]nder
the provisions of § 52-592 (a) ‘original
action' means the first action filed within the time
allowed by the applicable statute of limitations.''
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