Palumbo v. Barbadimos

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CAROL PALUMBO v. ARIS N. BARBADIMOS ET AL.
(AC 36753)
Keller, Prescott and Mullins, Js.
Argued October 23, 2015—officially released February 16, 2016
(Appeal from Superior Court, judicial district of
Ansonia-Milford, Markle, J.)
Justin E. Theriault, with whom, on the brief, was
Michael J. Soltis, for the appellant (named defendant).
John-Henry M. Steele, for the appellee (plaintiff)
Opinion
PRESCOTT, J. The issue raised in the present appeal
is whether the defendant was entitled to have a civil
action restored to the docket because the plaintiff had
withdrawn the action unilaterally and filed a second,
identical action to avoid a bench trial that was the
consequence of the plaintiff having missed the statuto-
rily prescribed deadline for claiming the action to the
jury trial list. The defendant physician, Aris N. Barbad-
imos, filed this appeal from the trial court’s denial of
his motion to restore to the docket a tort action brought
against him by the plaintiff, Carol Palumbo.1 The record
reveals that after the plaintiff failed to request that her
case be placed on the jury trial list within the time
frame set forth in General Statutes § 52-215,2 she filed
a second, identical action (second action) against the
defendant and subsequently withdrew the action under-
lying the present appeal (original action).
The defendant claims that the trial court abused its
discretion when it denied his motion to restore the
original action to the docket because, by allowing the
plaintiff to withdraw the original action and to file a
second action solely to avoid the consequences of her
failure to comply with § 52-215, the court unfairly preju-
diced the defendant, allowed the plaintiff to circumvent
a court order, and effectively rendered the statutory
time limits in § 52-215 meaningless. Although we are
mindful that a plaintiff enjoys a right to withdraw litiga-
tion unilaterally prior to a hearing on an issue of fact; see
General Statutes § 52-80; Housing Authority v. Hird, 13
Conn. App. 150, 156–57, 535 A.2d 377, cert. denied,
209 Conn. 825, 552 A.2d 433 (1988); we nonetheless
conclude that the procedural chicanery engaged in by
the plaintiff here cannot be sanctioned because it
offends the orderly and due administration of justice.
At the time the plaintiff withdrew the original action,
she effectively had waived her right to elect a jury trial,
and thereby vested in the defendant the right to have
the parties’ dispute tried to the court. The plaintiff was
not entitled to abuse her right of unilateral withdrawal
in order to pursue a second, identical action to avoid the
consequences of her waiver. Under the circumstances
presented here, we conclude that the court improperly
denied the defendant’s motion to restore the original
action to the docket. Accordingly, we reverse the judg-
ment of the trial court and remand the matter with
direction to grant the defendant’s motion to restore the
original action to the docket.
The record reveals the following relevant facts and
procedural history. The plaintiff initiated the original
action in December, 2012. The operative, second
revised complaint was filed on April 1, 2013, and con-
sisted of one count of assault directed against the defen-
dant and four counts of negligence directed at her
employer, Premier Medical Group, P.C. (Premier). See
footnote 1 of this opinion. All counts brought against
Premier eventually were stricken.3
On June 26, 2013, the defendant filed an answer to
the complaint, denying the allegations underlying the
remaining count and asserting two special defenses.4
The plaintiff filed a reply on August 21, 2013, denying
all allegations contained in the defendant’s special
defenses. As of that date, the pleadings were closed.
See Doublewal Corp. v. Toffolon, 195 Conn. 384, 387
n.2, 488 A.2d 444 (1985); see also Practice Book § 10-
8. Neither party, however, filed a certificate of closed
pleadings in accordance with Practice Book § 14-8,5 nor
did the plaintiff claim the matter for a jury trial in
accordance with Practice Book § 14-106 and General
Statutes § 52-215.
On December 3, 2013, approximately ninety-four days
after the expiration of the period in which the case
could be claimed to the jury trial list, the plaintiff filed
a withdrawal form, on which she indicated that she was
withdrawing her August 21, 2013 reply to the special
defenses. Two days later, the defendant filed an objec-
tion to the withdrawal. In his objection, the defendant
first argued that the reply to the special defenses was
not a ‘‘motion’’ as that term is defined in our rules of
practice, and, therefore, that the reply could not be
withdrawn as a ‘‘motion’’ as indicated on the withdrawal
form.7 Second, the defendant argued that a reply to
special defenses is a mandatory, responsive pleading,
like an answer to a complaint, and, as such, it could
not be unilaterally withdrawn. The defendant main-
tained that the plaintiff was attempting to withdraw the
reply in order to ‘‘reopen’’ the pleadings, to which the
defendant also objected.
The plaintiff filed a reply to the objection on Decem-
ber 9, 2013. She argued that the rules of practice did not
explicitly prohibit the withdrawal of a reply to special
defenses prior to the filing of a certificate of closed
pleadings. She contended that, because no certificate
had been filed in the present case, she was entitled to
withdraw her pleading as of right. The plaintiff provided
no explanation as to why she wanted to withdraw her
reply to the special defenses. The court, Brazzel-Mas-
saro, J., issued a decision on December 26, 2013, stating
that, on the basis of its review of the objection and the
reply to the objection, it was sustaining the defendant’s
objection to the withdrawal.
On January 6, 2014, the plaintiff commenced the sec-
ond action against the defendant. The second action
consisted of a single count of assault based upon the
identical allegations asserted in the original action.8 On
January 21, 2014, the plaintiff filed a voluntary with-
drawal of the original action.
On February 3, 2014, the defendant filed a motion to
restore the original action to the docket and a memoran-
dum of law in support of that motion. According to the
defendant, restoring the original action to the docket
was appropriate here because the plaintiff had with-
drawn the action and had filed an identical action in
order to circumvent her failure to claim the original
action to the jury trial list and effectively to evade the
court’s decision not to allow her to withdraw her reply
to the special defenses, which would have had the effect
of opening the pleadings and thus resetting the time in
which she could have claimed the matter for a jury trial.
Attached as an exhibit to the memorandum of law
in support of the motion to restore was a copy of an
e-mail exchange between counsel for the defendant,
Justin M. Theriault, and counsel for the plaintiff,
Edmund Q. Collier. The e-mail exchange ends with the
following response by Collier to Theriault’s inquiry
about a proposed deposition date for the defendant:
‘‘Justin, I am going to withdraw the case. [The defen-
dant] has been served with a new writ. I did want a
jury and your objection was sustained. Thanks. Ned.’’
(Emphasis added.) The court granted the defendant’s
request for oral argument on the motion to restore,
setting a hearing date for March 3, 2014. Prior to the
hearing, the plaintiff filed nothing in response to the
defendant’s motion to restore the case to the docket.
At the hearing on March 3, 2014, the court first heard
from the defendant, who briefly reiterated the argu-
ments made in his motion to restore, drawing the court’s
attention to the cases cited therein. Neither party sought
an evidentiary hearing on the motion. In response to
the defendant’s argument, the plaintiff indicated that
she had not filed any opposition to the motion to restore
because her position was fairly straight forward: ‘‘It is
my case; I can withdraw it.’’ The plaintiff argued that
whatever motivation she may have had for withdrawing
the original action, that was not something that the
court should consider in deciding whether to restore
the action to the docket. The plaintiff never raised any
objection regarding the e-mail exchange submitted by
the defendant, challenging neither its authenticity nor
the court’s authority to use it as evidence of the plain-
tiff’s motive for withdrawing the original action.9
Instead, she appeared to argue that her motive was
irrelevant.
The plaintiff was unable to cite to any precedent in
support of her legal position and stated that she had
no response to the cases cited by the defendant. When
asked by the court whether she intended to file a written
opposition to the motion to restore or to submit any
case law, the plaintiff indicated that she was not
inclined to file a written response, but she thought that
she recalled a case that supported her position and
asked to have until the close of business that day to
provide the court with a citation. The court responded
that it would give the plaintiff until March 10, 2014, to
file a written objection to the motion to restore, follow-
ing which it would issue a ruling.
On March 11, 2014, the plaintiff filed a three sentence
objection, stating in relevant part that ‘‘[t]he plaintiff
objects to the defendant’s motion to restore to docket
pursuant to [General Statutes §] 52-80 which the [plain-
tiff] suggests is dispositive.’’10 In response to the plain-
tiff’s objection, the defendant filed a reply in which he
noted that the objection did not cite to any case law
or attempt to address the cases that he had raised, each
of which had acknowledged § 52-80, but held nonethe-
less that courts have the authority to restore cases to
the docket in order to prevent a plaintiff from abusing
the right of withdrawal.
On April 7, 2014, the court issued an order denying
the defendant’s motion to restore the original action to
the docket. This appeal followed. In response to a
motion for articulation filed by the defendant, the court
later issued a memorandum setting forth the factual
and legal basis for its decision. According to the court,
the defendant had failed to establish that he had any
vested right in a bench trial. The court relied, at least
in part, on the fact that even if a plaintiff fails to claim
a case to the jury docket, the trial court nevertheless
retains discretionary authority to place the case on the
jury docket ‘‘at any time.’’ See General Statutes § 52-
215. In sum, the court was not convinced on the basis
of the record before it that the original action should
be restored to the docket, especially in light of the
broad nature of a plaintiff’s right to withdraw an action
pursuant to § 52-80. With the preceding facts and proce-
dural history in mind, we now turn to the issue raised
on appeal.
The defendant claims that the court abused its discre-
tion in denying his motion to restore the original action
to the docket. According to the defendant, if this court
were to affirm the decision of the trial court, it would
‘‘encourage and increase the instances of procedural
gamesmanship of this type moving forward, as plaintiffs
would be given carte blanche to withdraw and immedi-
ately refile actions to avoid statutory requirements.’’
Inherent in the defendant’s argument is the notion that
he had acquired a right to have this matter tried to the
court as a result of the plaintiff’s failure to timely claim
the matter to the jury docket.11 The plaintiff, on the
other hand, argues that the court’s decision to deny the
motion to restore was consistent with our statutes and
case law. She contends that the court correctly con-
cluded that the defendant had failed to establish that
he had a vested right in a bench trial and that the court’s
conclusion is supported by the fact that the court never
rendered any order expressly granting the defendant
the right to a bench trial, nor was the original action
ever docketed as either a bench trial or a jury trial.
Because we conclude, contrary to the trial court and
the plaintiff, that the defendant had a vested right in a
bench trial, and because the procedural maneuvers of
the plaintiff unduly jeopardized that right and the proper
administration of justice, we agree with the defendant
that the court abused its discretion by denying his
motion to restore the original action to the docket.
We begin our analysis by setting forth our standard
of review. This court has stated previously that ‘‘[t]he
question of whether a case should be restored to the
docket is one of judicial discretion’’; (internal quotation
marks omitted) Banziruk v. Banziruk, 154 Conn. App.
605, 611, 109 A.3d 494, 498 (2015); therefore, we review
a court’s denial of a motion to restore a case to the
docket for abuse of that discretion. Id.; Travelers Prop-
erty Casualty Co. of America v. Twine, 120 Conn. App.
823, 826, 993 A.2d 470 (2010). ‘‘Discretion means a legal
discretion, to be exercised in conformity with the spirit
of the law and in a manner to subserve and not to
impede or defeat the ends of substantial justice. . . .
Inherent in the concept of judicial discretion is the
idea of choice and a determination between competing
considerations. . . . A court’s discretion must be
informed by the policies that the relevant statute is
intended to advance.’’ (Citations omitted; internal quo-
tation marks omitted.) State v. Robinson, 32 Conn. App.
448, 460, 630 A.2d 87 (1993), aff’d, 230 Conn. 591, 646
A.2d 118 (1994). ‘‘When reviewing claims under an
abuse of discretion standard, the unquestioned rule is
that great weight is due to the action of the trial court
. . . . Under that standard, we must make every rea-
sonable presumption in favor of upholding the trial
court’s ruling, and only upset it for a manifest abuse
of discretion. . . . [Our] review of such rulings is lim-
ited to the questions of whether the trial court correctly
applied the law and reasonably could have reached
the conclusion that it did.’’ (Citation omitted; internal
quotation marks omitted.) Fort Trumbull Conservancy,
LLC v. New London, 135 Conn. App. 167, 190–91, 43
A.3d 679, cert. denied, 307 Conn. 905, 53 A.3d 220 (2012).
In considering whether the court in the present case
improperly declined to restore the original action to
the docket, we first must consider the scope of a plain-
tiff’s right to withdraw an action unilaterally. ‘‘Under
[the] law, the effect of a withdrawal, so far as the pen-
dency of the action is concerned, is strictly analogous
to that presented after the rendition of a final judgment
or the erasure of the case from the docket. . . . The
court unless [the action] is restored to the docket can-
not proceed with it further . . . .’’ (Citation omitted;
internal quotation marks omitted.) Travelers Property
Casualty Co. of America v. Twine, supra, 120 Conn.
App. 827.
As previously noted, by statute, a ‘‘plaintiff may with-
draw any action so returned to and entered in the docket
of any court, before the commencement of a hearing
on the merits thereof.’’ General Statutes § 52-80. This
court often has used, without further explication, the
phrase ‘‘absolute and unconditional’’ to describe a plain-
tiff’s right under § 52-80 to withdraw an action before
a hearing on the merits has occurred. See Housing
Authority v. Hird, supra, 13 Conn. App. 157; Sicaras
v. Hartford, 44 Conn. App. 771, 775–76, 692 A.2d 1290,
cert. denied, 241 Conn. 916, 696 A.2d 340 (1997). We
construe this broad language, however, as reflecting
only that, prior to a hearing on the merits, the with-
drawal of an action does not require the permission of
the court. See Baker v. Cordisco, 37 Conn. App. 515,
521, 657 A.2d 230 (1995) (rejecting assertion that trial
court acted improperly by allowing withdrawal of third-
party complaint).
The broad language used by this court to describe a
plaintiff’s right to withdraw an action must be read in
conjunction with other cases that make clear that the
right of withdrawal may be trumped in certain circum-
stances by another party’s right to restore the case to
the docket. See Rosado v. Bridgeport Roman Catholic
Diocesan Corp., 276 Conn. 168, 211–25, 884 A.2d 981
(2005) (trial court properly restored to docket with-
drawn cases regarding child sexual abuse by clergy in
order to consider intervening newspapers’ challenge to
protective orders that sealed discovery materials from
public); see also Kendall v. Commissioner of Correc-
tion, 162 Conn. App. 23, 29, A. 3d (2015) (‘‘plain-
tiff is generally empowered, though not without
limitation, to withdraw a complaint before commence-
ment of a hearing on the merits’’ [emphasis added]).12
Any lack of authority of the court to stop the withdrawal
of an action prior to a hearing on the merits in the
first instance, for example, in no way extends to or
diminishes the court’s power to restore a previously
withdrawn action to the docket. See Lusas v. St. Pat-
rick’s Roman Catholic Church Corp., 123 Conn. 166,
170, 193 A. 204 (1937) (court has power to restore volun-
tarily withdrawn case to active docket ‘‘upon a proper
showing’’). This is particularly true if restoration of the
action is necessary to vindicate a right acquired by
another party during the course of the withdrawn litiga-
tion.13 See Travelers Property Casualty Co. of America
v. Twine, supra, 120 Conn. App. 826–28 (rejecting argu-
ment that trial court never has discretion to restore
action if withdrawn by plaintiff before hearing on mer-
its commences).
In Bristol v. Bristol Water Co., 85 Conn. 663, 673, 84
A. 314 (1912), our Supreme Court stated that ‘‘[e]very
action may be withdrawn prior to verdict or final judg-
ment, whenever it can be done without injuriously
affecting rights of the defendant acquired by reason
of the action.’’ (Emphasis added.) Our Superior Courts
have relied on that language as a basis for restoring
cases to the docket in which a plaintiff’s voluntary with-
drawal threatened a right that was acquired by the
defendant in the withdrawn litigation or was done to
undermine an adverse court ruling. See Rocque v. Sound
Mfg., Inc., Superior Court, judicial district of Hartford,
Docket No. CV-99-588424-S (April 9, 2003) (34 Conn. L.
Rptr. 502), citing Kantrowitz v. Clipfel, 21 Conn. Supp.
371, 155 A.2d 59 (1959); Byrd v. Leszcynski, Superior
Court, judicial district of Hartford, Docket No., CV-96-
0564351-S (August 25, 2000) (28 Conn. L. Rptr. 88);
Nationwide Mutual Ins. Co. v. Blesso, Superior Court,
judicial district of New Britain, Docket No. CV-98-
485520 (May 11, 1999) (24 Conn. L. Rptr. 541); see also
Lytwinick v. Lytwinick, 21 Conn. Supp. 497, 500, 157
A.2d 494 (1959) (explaining that ‘‘there is no doubt that
the court should exercise its discretion to restore a
case to the docket for further action upon such a motion
if rights of the defendant acquired by reasons of such
action would be injuriously affected by such with-
drawal’’).
Although this court previously has affirmed a trial
court’s denial of a defendant’s motion to restore a volun-
tarily withdrawn action to the docket, in doing so, it
also recognized the trial court’s inherent authority to
restore such an action to the docket if necessary to
vindicate a right vested in the defendant. See Travelers
Property Casualty Co. of America v. Twine, supra,
120 Conn. App. 827–28.14 No appellate court decision,
however, has directly addressed under what circum-
stances a trial court should exercise its discretion to
return a voluntarily withdrawn action to the docket.
A plaintiff should never be permitted to abuse its
right to voluntarily withdraw an action. Such abuse may
be found if, in executing its right of withdrawal, the
plaintiff unduly prejudices the rights of an opposing
party or the withdrawal interferes with the court’s abil-
ity to control its docket or to enforce its rulings. It is
important that we take this opportunity to clarify that
the broad authority granted to a plaintiff pursuant to
§ 52-80 to unilaterally withdraw an action prior to a
hearing on the merits does not automatically extend
to the plaintiff the additional right to commence an
essentially identical action following that withdrawal if
the primary purpose for doing so is to undermine an
order of the court rendered in the prior litigation or if
the withdrawal and subsequent refiling implicates a
substantial right that vested in another party to the
litigation and that likely will be jeopardized should the
plaintiff proceed with the new action. See id., 828 (hold-
ing court properly denied motion to restore action to
docket because discovery rights implicated could be
addressed in new action). In either instance, if season-
ably requested by the defendant or other third party,15
the court should exercise its discretion to restore the
original action to the docket. These principles are in
accord with the reasoning of several Superior Court
decisions that have restored actions to the docket fol-
lowing a unilateral withdrawal.16
In the present case, once the plaintiff filed her with-
drawal of the original action, the defendant, within thir-
teen days, filed his motion to restore the original action
to the docket. Accordingly, the defendant timely
invoked the court’s discretion to restore the withdrawn
action to the docket. Our analysis thus turns to whether
the record before the court demonstrated that, prior to
the plaintiff’s withdrawal, the defendant had obtained
a right that he was in peril of losing if the original action
was not restored to the docket and the defendant was
forced to defend the second action. We answer that
question in the affirmative.
General Statutes § 51-239b provides: ‘‘In civil actions
a jury shall be deemed waived unless requested by
either party in accordance with the provisions of section
52-215.’’ General Statutes § 52-215 ‘‘provides two peri-
ods of time within which an issue proper for trial by
jury may be entered in the jury docket. One is within
thirty days after the return day. The other is contained
in the provision which reads, in part, as follows: When
. . . an issue of fact is joined, the case may, within ten
days after such issue of fact is joined, be entered in the
docket as a jury case upon the request of either party
made to the clerk . . . . The word when has been con-
strued to mean whenever. . . . The issue must be
formed by the pleadings in writing.’’ (Citations omitted;
internal quotation marks omitted.) Amercoat Corp. v.
Transamerica Ins. Co., 165 Conn. 729, 732, 345 A.2d
30 (1974). Thus, ‘‘[i]t is well settled that a claim for a
jury trial must be filed no later than ten days after
the pleadings have been closed.’’ Masto v. Board of
Education, 200 Conn. 482, 488, 511 A.2d 344 (1986).
Once the time for claiming a matter to the jury trial list
has passed, the case automatically defaults to a trial to
the court. If amended pleadings are later filed, this can
reopen the ten day period in which to claim a jury trial,
but only if the new pleading introduces a new issue
of fact into the case. Id.; Flint v. National Railroad
Passenger Corp., 37 Conn. App. 162, 164–165, 655 A.2d
266 (1995), aff’d, 238 Conn. 282, 679 A.2d 352 (1996).
In the present case, the return date of the original
action was January 22, 2013. The plaintiff could have
requested that the matter be placed on the jury docket
within thirty days of that date. She nevertheless failed
to do so, thus missing the first of the two statutory
deadlines.
All issues of fact in the original action were joined,
at the latest, when the plaintiff filed her response to
the defendant’s special defenses on August 21, 2013,
thereby closing the pleadings. See Masto v. Board of
Education, supra, 200 Conn. 488; see also Home Oil
Co. v. Todd, 195 Conn. 333, 343, 487 A.2d 1095 (1985),
citing 2 E. Stephenson, Connecticut Civil Procedure (2d
Ed. 1971) § 173 (‘‘where responsive pleading is required
. . . the issue is joined when the responsive pleading
is filed’’ [internal quotation marks omitted]). Accord-
ingly, to avoid missing the second deadline of § 52-
215, the plaintiff, at the latest, should have claimed the
matter for a jury trial on or before September 2, 2013.17
The plaintiff failed to do so.
Having failed to comply with either of the time peri-
ods set out in § 52-215, the plaintiff waived her right to
unilaterally claim her original action to the jury docket.
See General Statutes § 51-239b. At that time, the defen-
dant acquired the right to have the parties’ dispute
decided by the trial court. Although that right was sub-
ject to divestment by the trial court should it choose
to exercise its own discretion to order a jury trial, the
decision to do so was outside the control of the plaintiff
and was never requested in this case. It is reasonable
to infer from the defendant’s choice not to exercise his
own right to claim the matter to the jury docket that
he perceived some advantage to proceeding with a
bench trial and that a divestment of that right by the
plaintiff’s actions would prejudice him.
On December 3, 2013, approximately three months
after the deadline for seeking a jury trial had passed,
the plaintiff attempted to withdraw her reply to the
defendant’s special defenses. The defendant objected,
arguing in part that the plaintiff was attempting to
reopen the pleadings, perhaps hoping to restart the
clock for claiming the matter to the jury docket. The
plaintiff filed a reply to the objection in which she
provided no alternative explanation for why she sought
to withdraw her reply to the special defenses. Shortly
after the trial court sustained the defendant’s objection
to the withdrawal, the plaintiff commenced the second
action against the defendant, alleging the same facts
and asserting the same cause of action set out in the
original action, and then withdrew the original action.
Having filed an entirely new action, the time limit for
claiming that action to the jury docket had not expired.
Accordingly, at the time the original action was with-
drawn, the defendant had acquired a right to a bench
trial that could no longer be divested unilaterally by
the plaintiff, and he was in jeopardy of losing that right
if he was forced to litigate the second action.
Having determined that a court has the authority to
return a voluntarily withdrawn action to the docket if
necessary to protect a right acquired by another party
during the course of litigation, and that the defendant
in this case had acquired a right to have the parties’
dispute litigated in a bench trial, a right he was in peril
of losing if the original action was not restored to the
docket, we turn to whether the court abused its discre-
tion by denying the defendant’s motion to restore the
original action to the docket.
The defendant timely moved to restore the original
action to the docket arguing that the withdrawal was
purely tactical in nature and was designed to bypass
the court’s order disallowing the opening of the plead-
ings. He argued that the sole reason for the withdrawal
was to avoid the plaintiff’s failure to claim the original
action to the jury docket in accordance with § 52-215.
That argument was supported by the e-mail response
from the plaintiff’s counsel that was attached to the
defendant’s memorandum of law in support of his
motion, in which counsel appears to confirm that the
reason he filed the second action was because the plain-
tiff wanted a jury trial, which was no longer possible
in the original action, particularly in light of the court’s
having sustained the defendant’s objection to the with-
drawal of the plaintiff’s reply to the special defenses.
In defending against the motion to restore, the plaintiff
never provided the trial court with any alternative rea-
son for withdrawing the first action and filing the sec-
ond action, arguing only that she believed she had the
right to do so pursuant to § 52-80 because there had
not been a hearing on the merits.
The only reasonable view of the record before the
trial court in adjudicating the motion to restore the
original action to the docket was that the plaintiff had
withdrawn it and had filed the second action to avoid
her failure to comply with § 52-215 and to undo her
waiver of her right to have the matter placed on the
jury docket. Although the trial court found that the
‘‘failure to claim the case for a jury trial was the result
of mere negligence,’’ we are unable to ascertain the
legal significance of that finding. As a result of the
plaintiff’s waiver and the court effectively having
refused to allow her to open the pleadings and to set
aside that waiver, the defendant acquired the right to
have the parties’ dispute adjudicated by the court. That
right was placed in jeopardy by the withdrawal of the
original action and the initiation of an identical sec-
ond action.
The defendant’s interest in having the original action
restored to the docket and tried before the court rather
than having to proceed with the inevitable jury trial in
the second action is a substantial one. If the defendant
is forced to defend the second action, he undoubtedly
will incur additional expenses in the form of attorney’s
fees, costs and other expenses necessary to get the
pleadings closed in that action. Moreover, it is undis-
puted that because of the right to individual voir dire
in this state, significant additional expenditures of time
and money would be involved in the selection of a jury.
Having thoroughly reviewed the record presented, it
is clear that the plaintiff sought to exercise her right
of voluntary withdrawal as a procedural tactic to avoid
a bench trial, which the defendant had acquired a right
to as a result of the plaintiff’s waiver. Under those facts,
when requested by the defendant to do so, the court
should have exercised its authority and restored the
original action to the docket. By failing to do so, the
court abused its discretion.
The judgment is reversed and the case is remanded
with direction to grant the defendant’s motion to restore
the original action to the docket and for further proceed-
ings according to law.
In this opinion the other judges concurred.
1
In her operative complaint, the plaintiff alleges that in January, 2011,
while she was employed by the defendant Premier Medical Group, P.C.
(Premier), Barbadimos, who also worked for Premier and supervised the
plaintiff, grabbed her by the arm, pulled her into an examination room,
and sexually assaulted her. Although the complaint also asserted causes of
actions against Premier, those counts later were stricken, and, thus, we
refer to Barbadimos throughout this opinion as the defendant.
2
General Statutes § 52-215 provides in relevant part: ‘‘In the Superior Court
a docket shall be kept of all cases. In such docket immediately following the
names of the parties and their attorneys in all jury cases shall be entered
the word ‘jury’. The following-named classes of cases shall be entered in
the docket as jury cases upon the written request of either party made to
the clerk within thirty days after the return day . . . civil actions involving
such an issue of fact as, prior to January 1, 1880, would not present a
question properly cognizable in equity . . . . When, in any of the above-
named cases an issue of fact is joined, the case may, within ten days after
such issue of fact is joined, be entered in the docket as a jury case upon
the request of either party made to the clerk; and any such case may at any
time be entered in the docket as a jury case by the clerk, upon written
consent of all parties or by order of court. . . . All cases not entered in
the docket as jury cases under the foregoing provisions . . . shall be entered
on the docket as court cases . . . .’’ (Emphasis added.)
3
Premier moved to strike all of the counts brought against it on April 16,
2013, arguing that they were preempted pursuant to the exclusivity provision,
General Statutes § 31-284 (a), of the Workers’ Compensation Act, General
Statutes § 31-275 et seq. The plaintiff did not object to the motion to strike
or file a memorandum of law in opposition. The court granted the motion
to strike, and the plaintiff did not replead or secure a judgment on the
stricken counts to appeal the court’s ruling. See Practice Book § 61-3.
4
The first special defense asserted that the complaint failed to state a
claim upon which relief could be granted, and the second special defense
asserted that the plaintiff’s claim was preempted by the exclusivity provision,
General Statutes § 31-284 (a), of the Workers’ Compensation Act, General
Statutes § 31-275 et seq.
5
Practice Book § 14-8 (a) provides in relevant part: ‘‘When the pleadings
are closed on the issue or issues in the case as to all parties, an accurate
certificate of closed pleadings shall be filed within ten days. Any party may
file the certificate. Upon the filing of the certificate of closed pleadings, the
case shall be scheduled for a trial as soon as the court’s docket permits if
it has not already been scheduled for a trial.’’
6
Practice Book § 14-10 provides: ‘‘All claims of cases for the jury shall
be made in writing, served on all other parties and filed with the clerk within
the time allowed by General Statutes § 52-215. The jury claim fee shall be
paid at the time the jury claim is filed.’’
7
A ‘‘motion,’’ as that term is used in our rules of practice, is defined as
‘‘any application to the court for an order, which application is to be acted
upon by the court or any judge thereof . . . .’’ Practice Book § 11-2. A reply
to special defenses is the last pleading listed in Practice Book § 10-6, and
it requires no action by the court.
8
We note that the defendant filed a motion to dismiss the second action,
citing the prior pending action doctrine. Under the prior pending action
doctrine, the trial court may dismiss an action that raises ‘‘virtually alike’’
issues as ‘‘a prior suit of the same character, between the same parties,
brought to obtain the same end or object . . . .’’ (Internal quotation marks
omitted.) Cumberland Farms, Inc. v. Groton, 247 Conn. 196, 216, 719 A.2d
465 (1998). That motion to dismiss remains pending before the trial court
in the second action.
9
We note that this court previously has indicated that in the absence of
some seasonable objection by the opposing party to exhibits attached to a
motion before the trial court for adjudication, the trial court properly may
consider the attached exhibits in reaching its decision, even if the exhibits
were not formally introduced into evidence by the moving party. See Wilson
v. Hryniewicz, 51 Conn. App. 627, 632–33, 724 A.2d. 531, cert. denied, 248
Conn. 904, 731 A.2d 310 (1999). In the present case, the trial court indicated
that it considered the motions and memorandum of law provided by the
parties in exercising its discretion to deny the motion to restore, which,
absent objection, presumably included the consideration of all attached
exhibits.
10
General Statutes § 52-80 provides: ‘‘If the plaintiff, in any action returned
to court and entered in the docket, does not, on or before the opening of
the court on the second day thereof, appear by himself or attorney to
prosecute such action, he shall be nonsuited, in which case the defendant,
if he appears, shall recover costs from the plaintiff. The plaintiff may
withdraw any action so returned to and entered in the docket of any court,
before the commencement of a hearing on the merits thereof. After the
commencement of a hearing on an issue of fact in any such action, the
plaintiff may withdraw such action, or any other party thereto may withdraw
any cross complaint or counterclaim filed therein by him, only by leave of
court for cause shown.’’ (Emphasis added.)
11
Although the plaintiff claims that the defendant has failed to preserve
or adequately brief his argument that the denial of his motion to restore
divested him of a right to a bench trial, we are unconvinced. It is clear from
the trial court’s articulation that the issue of whether the defendant had a
vested right was contemplated and decided by the court, and both parties
have had a full opportunity to address the matter in their briefs and at oral
argument before this court.
12
In recognizing that there are limitations to the right of withdrawal, we
are not suggesting that if a plaintiff seeks to cease litigation altogether, no
matter the motivation, and withdraws an action prior to a hearing on the
merits, the trial court has the authority to force a plaintiff to continue to
litigate an action that he or she clearly seeks to abandon completely. Here,
however, because the plaintiff filed an identical second action, she has not
demonstrated that she no longer seeks to pursue litigation. It is important
to note, however, that even in cases that have been withdrawn outright,
with no new action filed, circumstances may arise in which the court may
restore an action to the docket, not for the purpose of forcing a plaintiff to
litigate a cause of action that was withdrawn as of right, but to protect
important interests of parties to the litigation. See Rosado v. Bridgeport
Roman Catholic Diocesan Corp., supra, 276 Conn. 211–25.
13
In discussing whether a withdrawn case should be restored to the docket
to vindicate a right acquired by another party to the litigation, courts have
sometimes used the term ‘‘vested right’’ in describing the type of right that,
if affected, would warrant restoring an action. The precise meaning of that
term, however, has never been defined in this context or imparted with any
particular, technical meaning. In our view, a ‘‘vested right’’ in this context
simply refers to a right acquired and presently held by a party to the with-
drawn action that would be injuriously affected as a result of the withdrawal.
We do not purport to decide whether other circumstances might arise that
would trigger the court’s authority to restore a voluntarily withdrawn action
to the docket. For example, even in the absence of a vested right, a party
may be significantly prejudiced by the withdrawal or the withdrawal may
have an adverse effect on the due administration of justice.
14
In Travelers Property Casualty Co. of America v. Twine, supra, 120
Conn. App. 825, the plaintiff had brought an action against the defendant,
a neighbor of its insured, to recover costs incurred as a result of a tree
falling onto the roof of the insured’s home. After the plaintiff failed to
respond to requests for admission, including that the tree in question had
fallen from the insured’s property, the defendant filed a motion for summary
judgment. Id. Before the motion could be heard, the plaintiff withdrew the
action and filed a new action against the defendant. Id. The trial court
denied the defendant’s motion to restore the original action to the docket,
determining that, under § 52-80, the plaintiff was allowed to withdraw the
action as of right, and that the defendant was not deprived of any vested
right in having its summary judgment motion decided because ‘‘whether or
not the tree was located on the defendant’s property could be investigated
through the discovery process in the subsequent action and that any perti-
nent motions relating to that issue could also be addressed in that action.’’
(Emphasis added.) Id., 828. This court concluded without further analysis
that the court had not abused its discretion by denying the motion to restore.
Id. That decision is not controlling in the present case. The defendant in
Travelers Property Casualty Co. of America did not risk losing the right
he asserted on appeal, namely to have a summary judgment motion adjudi-
cated by the court, because he could file a motion for summary judgment
in the second action and could move, on a theory of estoppel, to prevent
the plaintiff from asserting facts in the second action that contradicted
admissions secured in the prior action, thus preserving any right the defen-
dant had acquired in the prior litigation. By contrast, in the present case,
by filing a second action, the plaintiff created a new, statutorily proscribed
period in accordance with § 52-215 in which, as a matter of right, she could
have the second action placed on the jury trial docket. It is unclear that the
court in the second action would have any legal authority to enforce the
plaintiff’s prior waiver of her right to a jury trial.
15
General Statutes § 52-212a, which provides that civil judgments may
only be opened or set aside within four months of the date they were
rendered, ‘‘is applicable not only to the opening of a case that has proceeded
to judgment but also to the restoration of a withdrawn case.’’ Rosado v.
Bridgeport Roman Catholic Diocesan Corp., supra, 276 Conn. 196. Accord-
ingly, a motion to restore a withdrawn case is seasonable only if it is filed
within four months of the withdrawal.
16
In Kantrowitz v. Clipfel, supra, 21 Conn. Supp. 371, a malicious prosecu-
tion action, the plaintiff failed, as in the present case, to file a timely claim
for a jury trial. Several weeks prior to the commencement of the scheduled
court trial, the plaintiff sought to amend her complaint by adding a second
count and to claim that count to the jury docket. Id., 371–72. After permission
to amend the complaint was denied, she withdrew the action entirely and
commenced a new lawsuit alleging the same cause of action. Id., 372. The
defendants filed a motion to restore the first action to the docket, which
the court granted. Id. The trial court reasoned that the defendants had
acquired substantial rights in the original action, including their right to a
speedy trial of the issues framed, and that ‘‘[t]he immediate commencement
of a new suit for the same cause of action raise[d] a serious question of
abuse of the privilege granted to a litigant under [§ 52-80].’’ Id., 373.
In Nationwide Mutual Ins. Co. v. Blesso, supra, 24 Conn. L. Rptr. 542,
the plaintiff unilaterally withdrew its declaratory judgment action after the
trial court denied a motion to sever the trial of that action from that of a
tort action with which it was previously consolidated. The court granted
the defendants’ motion to restore the case to the docket, stating that it was
‘‘impossible to escape the conclusion that the court’s [denial of the motion
to sever was] the major, if not the only, reason for the withdrawal’’ and
that the plaintiff should not be allowed ‘‘to defeat the defendants’ right to
a speedy, unified resolution of the serious issues raised by this action and
the underlying tort action.’’ Id.
In Byrd v. Leszcynski, supra, 28 Conn. L. Rptr. 88, the court granted a
defendant’s motion to restore to the docket an action that the plaintiff had
withdrawn unilaterally and then refiled solely to circumvent the court’s
ruling precluding the plaintiff’s expert witnesses. The trial court found that
the plaintiff’s tactical use of the withdrawal ‘‘constituted an abuse of the
litigant’s privilege, especially when it was used solely to avoid an order of
the court, and it clearly [had] a prejudicial effect on the opposing side. . . .
[T]o hold otherwise would allow a litigant to manipulate and abuse the
orderly and beneficial caseflow process, which enables difficult evidentiary
and procedural issues to be decided prior to trial.’’ (Citations omitted) Id., 89.
17
The fact that neither party timely filed a certificate of closed pleading
in this case had no effect on the running of the time period set forth in § 52-
215 for claiming the matter to the jury docket. According to § 52-215, the
ten day period begins to run when an ‘‘issue of fact is joined.’’ Although the
joining of issues may coincide, at the latest, with the closing of the pleadings,
there is no direct linkage in the statute between the filing of a certificate
of closed pleadings and the claiming of an action to the jury docket.