Russell v. Mitchell Properties, Inc.

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RICHARD RUSSELL v. MITCHELL PROPERTIES, INC.
(AC 35220)
DiPentima, C. J., and Keller and Dupont, Js.
Argued November 18, 2013—officially released March 11, 2014
(Appeal from Superior Court, judicial district of
Hartford, Miller, J.)
Juri E. Taalman, with whom, on the brief, was David
W. Bush, for the appellant (plaintiff).
Mony B. P. Yin, for the appellee (defendant Mitchell
Property Group, LLC).
Opinion
DiPENTIMA, C. J. The plaintiff, Richard Russell,
appeals from the summary judgment rendered in favor
of the defendant Mitchell Property Group, LLC.1 On
appeal, the plaintiff claims that the trial court improp-
erly concluded that his action was barred by the applica-
ble statute of limitations, General Statutes § 52-584,2
and could not be saved by General Statutes § 52-593.3
We disagree and, accordingly, affirm the judgment of
the trial court.
The record reveals the following relevant facts and
procedural history. On March 24, 2011, the plaintiff
attempted to commence a negligence action against
Mitchell Properties, Inc., arising from injuries allegedly
caused by defective curbing in a parking lot. The plain-
tiff had difficulty locating Mitchell Properties, Inc., and
was unable to make service of process.4 Indeed, Mitchell
Properties, Inc., never appeared. Later, on May 16, 2011,
admitting that he named the wrong corporation, the
plaintiff filed a motion to cite in the defendant, which
the court granted. On June 10, 2011, after the statute
of limitations period had run, the plaintiff served the
defendant with a two count amended complaint. The
defendant appeared, and after filing its answer and spe-
cial defenses, moved for summary judgment claiming
that the plaintiff’s action was barred by the statute of
limitations. The plaintiff filed an objection to the motion
for summary judgment, arguing that § 52-593 applied
to save his action from being barred by the statute
of limitations.
At the hearing on the motion, the plaintiff argued
that the granting of his motion to cite in the defendant,
within which he had made a judicial admission that he
had sued the wrong party, terminated his action against
Mitchell Properties, Inc., for purposes of § 52-593. The
defendant countered that § 52-593 was inapplicable
because the plaintiff’s action against Mitchell Proper-
ties, Inc., had not been terminated. At the end of the
hearing, the defendant argued in the alternative, for the
first time, that the action against Mitchell Properties,
Inc., had never commenced. The court granted the
defendant’s motion for summary judgment, concluding
that § 52-593 was inapplicable because the plaintiff’s
action against Mitchell Properties, Inc., had not been
terminated. This appeal followed.
‘‘Practice Book § [17-49] requires that judgment shall
be rendered forthwith if the pleadings, affidavits and
any other proof submitted show that there is no genuine
issue as to any material fact and that the moving party
is entitled to judgment as a matter of law. A material
fact is a fact that will make a difference in the result
of the case. . . . The facts at issue are those alleged
in the pleadings. . . . The party seeking summary judg-
ment 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. . . . The party opposing
such a motion must provide an evidentiary foundation
to demonstrate the existence of a genuine issue of mate-
rial fact. See Practice Book §§ [17-44 and 17-45]. In
deciding a motion for summary judgment, the trial court
must view the evidence in the light most favorable to
the nonmoving party. . . . The test is whether a party
would be entitled to a directed verdict on the same
facts. . . . Our review of the trial court’s decision to
grant a motion for summary judgment is plenary. . . .
Summary judgment may be granted where the claim is
barred by the statute of limitations.’’ (Citation omitted;
internal quotation marks omitted.) Mollica v. Toohey,
134 Conn. App. 607, 610–11, 39 A.3d 1202 (2012).
On appeal, the parties renew the arguments they
made before the trial court.5 Thus, we consider whether
§ 52-593 was applicable to save the plaintiff’s action
from being barred by the statute of limitations. The
court concluded § 52-593 did not apply because the
plaintiff’s action against Mitchell Properties, Inc., had
not been terminated. The court explained: ‘‘This court
agrees with the majority of trial court decisions on this
issue, and finds that a plaintiff who wishes to bring an
action pursuant to . . . § 52-593 may not do so until
after the suit against the misidentified defendant has
been withdrawn or otherwise terminated.’’ Rather than
follow the court’s tack, we steer an alternate course,
focusing on the more elementary question of whether
the plaintiff had in fact commenced an action against
Mitchell Properties, Inc.6
We begin with the language of § 52-593, which pro-
vides in relevant part: ‘‘When a plaintiff in any civil
action has failed to obtain judgment by reason of failure
to name the right person as defendant therein, the plain-
tiff may bring a new action and the statute of limitations
shall not be a bar thereto if service of process in the
new action is made within one year after the termination
of the original action. . . .’’ By its clear language, § 52-
593 contemplates a scenario in which there are two
separate actions: an original action brought against the
wrong person, followed by a new action brought against
the right person.
‘‘This court has long held that an action is brought
once the writ, summons and complaint have been
served upon a defendant. . . . Hillman v. Greenwich,
217 Conn. 520, 527, 587 A.2d 99 (1991) (an action is
commenced on the date of service of the writ upon the
defendant . . .); Lacasse v. Burns, 214 Conn. 464, 475,
572 A.2d 357 (1990) (an action is not commenced until
process is actually served upon the defendant) . . .
Broderick v. Jackman, 167 Conn. 96, 99, 355 A.2d 234(1974) (an action is commenced not when the writ is
returned but when it is served upon the defendant)
. . . .’’ (Citations omitted; footnotes omitted; internal
quotation marks omitted.) Rana v. Ritacco, 236 Conn.
330, 337–38, 672 A.2d 946 (1996).
In this case, the plaintiff did not serve the writ of
summons and complaint on Mitchell Properties, Inc.
As a result, an ‘‘original action’’ never was brought
against this entity. For this reason, § 52-593 was inappli-
cable. Our interpretation follows from the clear lan-
guage of § 52-593, which requires a ‘‘termination of the
original action.’’ A termination presumes a prior exis-
tence. Here, there was never an action in existence to
terminate. We thus find § 52-593 inapplicable and that
this action against the defendant was barred by the
statute of limitations.7 Accordingly, the court properly
granted the defendant’s motion for summary judgment.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The plaintiff’s original complaint named only a single defendant, Mitchell
Properties, Inc. It, however, was not served process, did not appear before
the trial court, and did not appear before this court. An additional defendant,
Mitchell Property Group, LLC, later was cited in, and the plaintiff amended
his complaint. We refer to Mitchell Property Group, LLC, as the defendant.
2
General Statutes § 52-584 provides in relevant part: ‘‘No action to recover
damages for injury to the person . . . 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 discov-
ered . . . .’’
3
General Statutes § 52-593 provides in relevant part: ‘‘When a plaintiff in
any civil action has failed to obtain judgment by reason of failure to name
the right person as defendant therein, the plaintiff may bring a new action
and the statute of limitations shall not be a bar thereto if service of process
in the new action is made within one year after the termination of the
original action. . . .’’
4
We note that the plaintiff first attempted service on Mitchell Properties,
Inc., seven days before the statute of limitations ran. The parties do not
dispute that under § 52-584, the statute of limitations period ended on March
31, 2011.
5
The plaintiff sets forth a total of eight issues in his statement of the
issues. Seven of these issues are iterations of the same basic claim: Whether
§ 52-593 applies to save the plaintiff’s action? The remaining issue is cast
as a claim invoking another saving statute, General Statutes § 52-292. This
issue has not been briefed adequately, and thus, we will not address it. See,
e.g., Electrical Contractors, Inc. v. Dept. of Education, 303 Conn. 402, 444,
35 A.3d 188 (2012).
Moreover, the plaintiff claims, without citation to legal authority, that by
making ‘‘affirmative allegations’’ in his amended reply to the defendant’s
first special defense concerning the statute of limitations, the defendant
was obligated to respond, and not having done so, the plaintiff’s allegations
must be admitted. We do not address this claim because it was raised for
the first time in the plaintiff’s reply brief. See, e.g., State v. Richardson, 291
Conn. 426, 431, 969 A.2d 166 (2009).
6
‘‘Where the trial court reaches a correct decision but on [alternate]
grounds, this court has repeatedly sustained the trial court’s action if proper
grounds exist to support it. . . . [W]e . . . may affirm the court’s judgment
on a dispositive alternate ground for which there is support in the trial court
record.’’ (Citation omitted; internal quotation marks omitted.) Hoskins v.
Titan Value Equities Group, Inc., 252 Conn. 789, 794, 749 A.2d 1144 (2000).
We do so here.
7
In yet another effort to avoid the statute of limitations, the plaintiff
additionally claims that his untimely amended complaint relates back to the
original, timely filed complaint against Mitchell Properties, Inc. The plaintiff
raises this claim without any mention of relevant authority. We thus do not
address this claim, because we conclude that the plaintiff has failed to brief
adequately the issue. ‘‘We are not obligated to consider issues that are not
adequately briefed. . . . Whe[n] an issue is merely mentioned, but not
briefed beyond a bare assertion of the claim, it is deemed to have been
waived. . . . In addition, mere conclusory assertions regarding a claim,
with no mention of relevant authority and minimal or no citations from the
record, will not suffice.’’ (Internal quotation marks omitted.) Kervick v.
Silver Hill Hospital, 309 Conn. 688, 719, 72 A.3d 1044 (2013).