Kim v. Emt ( 2014 )

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BO KIM v. STEPHEN EMT ET AL.
(AC 35641)
Lavine, Mullins and Borden, Js.
Argued September 10—officially released October 21, 2014
(Appeal from Superior Court, judicial district of
Tolland, Sferrazza, J.)
Gregory P. Klein filed a brief for the appellant
(plaintiff).
Dennis M. McManus, for the appellees (defendants).
Opinion
BORDEN, J. The sole issue in this appeal is whether
the Memorial Day holiday provides a common-law grace
period that extends the statute of limitations for serving
process in a negligence action when the terminal date
of the statute falls on that legal holiday. The plaintiff,
Bo Kim, appeals from the judgment of the trial court
rendering summary judgment in favor of the defen-
dants, Stephen Emt and DCFS Trust. The plaintiff
claims that the trial court improperly determined that
the Memorial Day holiday does not provide a grace
period that extends the statute of limitations, more par-
ticularly, the time in which a would-be plaintiff may
deliver materials to a state marshal for service of pro-
cess on the defendants. We affirm the judgment of the
trial court.
The following undisputed facts are relevant to this
appeal. On May 28, 2010, the plaintiff was injured in a
motor vehicle accident. The plaintiff was a passenger
in a vehicle being driven northbound on Interstate 95
when a motor vehicle, owned by DCFS Trust and driven
by Emt, collided with the rear of the plaintiff’s motor
vehicle. The plaintiff alleged that the accident was
caused by Emt’s negligence. The plaintiff delivered a
summons and complaint for service to a state marshal
on May 29, 2012. The defendants were served with that
summons and complaint the next day. In response to
the complaint, the defendants filed a special defense
alleging that the action was barred by the applicable
statute of limitations, General Statutes § 52-584.1
The defendants filed a motion for summary judgment
on the ground that the plaintiff’s action was barred by
§ 52-584. The court granted the motion and rendered
summary judgment in favor of the defendants. This
appeal followed.
On appeal, the plaintiff claims that the court improp-
erly concluded that the defendants were entitled to
judgment as a matter of law because it had failed to
apply the common-law ‘‘holiday rule.’’ Pursuant to § 52-
584, the two year statute of limitations for commencing
a negligence action against the defendants expired on
May 28, 2012. May 28, 2012, was, however, Memorial
Day, a state and federal holiday that falls on the last
Monday in May. See 5 U.S.C. § 6103 (a); General Statutes
§ 1-4. The plaintiff argues that the holiday rule, as articu-
lated in Lamberti v. Stamford, 131 Conn. 396, 401, 40
A.2d 190 (1944), requires that the statute of limitations
be extended to the next available day whenever the
statute’s terminal date falls upon a state holiday. She
further argues that, pursuant to General Statutes § 52-
593a (a),2 because she delivered the summons and com-
plaint to the state marshal on May 29, 2012, the next
available day, the action was timely within the statute
of limitations. We disagree.
‘‘An appellate court’s review of the trial court’s deci-
sion to grant the defendant’s motion for summary judg-
ment is plenary.’’ (Internal quotation marks omitted.)
Roe #1 v. Boy Scouts of America, Corp., 147 Conn.
App. 622, 639, 84 A.3d 443 (2014). ‘‘The party seeking
summary judgment has the burden of showing the
absence of any genuine issue as to all material facts,
which, under applicable principles of substantive law,
entitle him to a judgment as a matter of law.’’ (Internal
quotation marks omitted.) Id., 640; see also Practice
Book § 17-49. ‘‘A defendant’s motion for summary judg-
ment is properly granted if it raises at least one legally
sufficient defense that would bar the plaintiff’s claim
and involves no triable issue of fact.’’ (Internal quotation
marks omitted.) Norse Systems, Inc. v. Tingley Sys-
tems, Inc., 49 Conn. App. 582, 591–92, 715 A.2d 807(1998).
The plaintiff in the present case does not challenge
the trial court’s determination that there were no genu-
ine issues of material fact. We therefore only address
whether the court properly rendered judgment as a
matter of law. See Practice Book § 17-49. As the issue
in this appeal concerns only a question of law, ‘‘this
court reviews such claims de novo.’’ Norse Systems,
Inc. v. Tingley Systems, Inc., supra, 49 Conn. App. 592.
The parties agree that if the delivery of materials for
service of process to a marshal on May 29, 2012, was
valid, the subsequent service by the marshal on the
defendants the next day would be proper under the
savings provision of § 52-593a (a). See Tayco Corp. v.
Planning & Zoning Commission, 294 Conn. 673, 674,
986 A.2d 290 (2010). The question of whether summary
judgment was properly rendered in the present case
therefore turns on the applicability of the holiday rule
to the statute of limitations when providing materials
for service of process to a state marshal.
The common-law roots of the holiday rule are predi-
cated on the idea that an individual should not be penal-
ized for being late in performing an act when it was
legally impossible to do so on the last available day. See,
e.g., Avery v. Stewart, 2 Conn. 69, 73 (1816) (promissory
note’s payment schedule extended single day when due
date fell on Sunday and performance would be unlaw-
ful). The rule, in its many forms over Connecticut his-
tory, has long been held to apply when there was no
means to perform the necessary action due to impossi-
bility, such as the performance of contracts on a Sun-
day. See Sands v. Lyon, 18 Conn. 18, 18–19, 31 (1846)
(fulfillment of condition on estate extended one day
due to last day of period falling on Sunday).3
Central to the holiday rule’s application is the notion
that compliance with the mandatory language in a stat-
ute may be impossible due to public officers being
unavailable to receive notice during holidays. See Lam-
berti v. Stamford, supra, 131 Conn. 400. In Lamberti,
the holiday rule was applied when the last day to give
notice to a municipal official was on a legal holiday.
Id., 401. The court noted that ‘‘[c]ertainly when the
legislature declares a day to be a holiday, it means at
least to free public officers from the obligation of keep-
ing open their offices or attending to their duties that
day, and it might well be that on such a day the officer
or officers of a municipality to whom, under the statute,
notice must be given would be out of town and far
away.’’ Id., 400. The court reasoned that, if the holiday
rule were not applied, the plaintiff would be deprived
of the complete statutory period to which he would
otherwise be entitled. Id.More recent applications of the holiday rule similarly
have been based on the concept of impossible perfor-
mance through unavailability. In Brennan v. Fairfield,
255 Conn. 693, 701–702, 768 A.2d 433 (2001), the court
held that the holiday rule was applicable to the notice
requirement of General Statutes § 13a-149 when the
municipal office that was to receive notice was closed,
and the alternative would be to deprive individuals of
the full ninety day period provided under the statute
to give notice. In contrast, this court has declined to
apply the holiday rule when it was not shown that
performance was legally impossible. See Hanson v.
Department of Income Maintenance, 10 Conn. App. 14,
17–18, 521 A.2d 208 (1987) (declining to apply holiday
rule when it was not shown that all nearby post offices
accepting registered or certified mail were closed on
Sunday).
In the present case, it is undisputed that Memorial
Day is a legal holiday. The plaintiff, however, has neither
alleged nor shown that she could not legally comply
with the statute of limitations under § 52-584. For exam-
ple, although it was once impossible to provide legal
service on Sundays pursuant to General Statutes (Rev.
to 1975) § 52-71, the trial court correctly noted that any
such prohibition was repealed more than thirty years
ago. See Public Acts 1976, No. 76-415, § 9; see also
footnote 3 of this opinion.
Furthermore, the plaintiff has not claimed there is a
genuine issue of material fact as to her ability to contact
a state marshal on Memorial Day. Instead, the plaintiff
argues that state marshals are subject to the same man-
datory closure on state holidays as the courts and offi-
cers of the Judicial Branch. Under General Statutes § 5-
254 (a), full-time, permanent state employees, such as
judicial officers, are excused from work during state
holidays. See Secretary of OPM v. Employees’ Review
Board, 267 Conn. 255, 263, 837 A.2d 770 (2004). State
marshals are not, however, state employees and are
explicitly forbidden from employment by the state while
they are serving as marshals.4 General Statutes § 6-38b
(i). Rather, state marshals are independent contractors;
General Statutes § 6-38a (a); see also Page v. State Mar-
shal Commission, 108 Conn. App. 668, 673, 950 A.2d
529, cert. denied, 289 Conn. 921, 958 A.2d 152 (2008);
who, therefore, are not subject to mandatory closure
on state holidays. Although, as the trial court noted, ‘‘a
plaintiff might encounter inconvenience and logistical
difficulties in effecting delivery to a [state] marshal on
a holiday, no legal impediment bars such delivery.’’
Our Supreme Court in Nine State Street, LLC v. Plan-
ning & Zoning Commission, 270 Conn. 42, 44–45, 850
A.2d 1032 (2004), extended the time allotted for service
of process in an appeal from the decision of a zoning
board under General Statutes § 8-8 (b) when the termi-
nal date fell on Memorial Day. The present case, how-
ever, is distinguishable from Nine State Street, LLC for
two reasons: first, the service of process under § 8-8
(f) requires filing paperwork with municipal officials
whose offices may be closed on Memorial Day; and,
second, because § 8-8 (p) requires that the procedure
under that section be interpreted liberally to prevent
‘‘surprise or injustice.’’ No such provision exists in con-
junction with § 52-584.
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 52-584 provides in relevant 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
General Statutes § 52-593a (a) provides in relevant part: ‘‘[A] cause or
right of action shall not be lost because of the passage of 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.’’
3
The statutes known as ‘‘Blue Laws’’ and the common law, for much of
Connecticut’s history, forbid most forms of labor on Sundays, including the
creation of contracts. See, e.g., Finn v. Donahue, 35 Conn. 216, 217 (1868);
see also M. Bologna, ‘‘A Critical History of Connecticut Sunday Closing
Legislation Since 1955,’’ 12 Conn. L. Rev. 539, 539 n.3 (1980); Hinman, R.R.,
The Blue Laws of New Haven, Usually Called the Blue Laws of Connecticut
(Case, Tiffany & Co., Eds. 1838) pp. iii–iv, 206. Connecticut’s Sunday ‘‘Blue
Laws’’ regarding labor and contracts find their roots in the 1656 code of
the New Haven Colony, which included regulations on the election of gover-
nors, the consumption of alcohol, the manufacturing of barrels, and the
elimination and hunting of wolves. R. Hinman, supra, pp. iv, 142–43, 161,
191, 221. A modern incarnation of these laws, passed in 1978, was held
unconstitutional and no longer is in force within this state. See Caldor’s,
Inc. v. Bedding Barn, Inc., 177 Conn. 304, 305, 325, 417 A.2d 343 (1979).
Similarly, service of process on a Sunday was invalid pursuant to statute
as part of the ‘‘Blue Laws.’’ General Statutes (Rev. to 1975) § 52-71. Section
52-71 was repealed by the legislature in 1976 and is no longer in force.
Public Acts 1976, No. 76-415, § 9.
4
We note that under our statutory scheme, judicial marshals are consid-
ered separate and distinct from state marshals, and are considered state
employees of the Judicial Branch under General Statutes §§ 6-32d (b) and
6-32f (a). We also note that the employment restriction does not apply to
individuals employed both as state marshals and deputy sheriffs prior to
April 27, 2000, under General Statutes § 6-38b (i).