DocketNumber: No. 355899
Citation Numbers: 1996 Conn. Super. Ct. 3526
Judges: FRACASSE, JUDGE.
Filed Date: 4/1/1996
Status: Non-Precedential
Modified Date: 7/5/2016
On December 6, 1993, the plaintiff, Richard Lewis, filed an action (Lewis II) against the defendants, Connecticut Motor Club, Inc., David Pringle and Club Leasing Services, Inc.
The parties were involved in a prior action (Lewis I) in which a judgment of nonsuit was entered on October 21, 1991. In the present action, the plaintiff seeks to file a new action under the accidental failure of suit statute, General Statutes §
In Lewis I, the court, entered a nonsuit on October 21, 1991, CT Page 3527 pursuant to Practice Book §§ 363 and 231 because the plaintiff failed to comply with the defendants' discovery request. The plaintiff claimed he never received the court-issued notice of nonsuit and did not have actual notice thereof until February 5, 1993.
On March 4, 1993, the plaintiff filed a motion to open the judgment of nonsuit pursuant to Practice Book § 3261 Defendants opposed the motion and the court held an evidentiary hearing. On September 27, 1993, the court, denied the plaintiff's motion. The plaintiff appealed and the Appellate Court affirmed the decision of the court. Lewis v. Connecticut Motor Club, Inc., et al.,
The present action, Lewis II, was filed while the appeal was pending.
On December 6, 1993, the plaintiff filed the present action pursuant to the accidental failure of suit statute, General Statutes §
On February 22, 1994, the plaintiff filed a revised complaint.
On March 15, 1994, the defendants filed an answer to the revised complaint. The answer included three special defenses: (1) contributory negligence, (2) statute of limitations (General Statutes §
On March 17, 1994, the plaintiff filed a reply to the defendants' special defenses denying the allegations.
On September 25, 1995, the plaintiff filed a motion for summary judgment and a supporting memorandum. The motion was marked "off" at oral argument at the short calendar hearing on March 11, 1996. On October 3, 1995, the defendants filed a cross motion for summary judgment and an objection to the plaintiff's motion for summary judgment.
On January 2, 1996, the plaintiff filed a memorandum in opposition to the defendants' cross motion for summary judgment. The plaintiff argues that his action is not time barred. CT Page 3528
On January 30, 1996, the defendants filed a reply memorandum arguing that the plaintiff is attempting to re-litigate the issue of "actual notice" of the nonsuit in Lewis I. The defendants claim that the issue of "actual notice" is barred by the principle of res judicata because the issue was decided in Lewis I at the evidentiary hearing on the plaintiff's motion to open the judgment of nonsuit.2
"The standard of review of a trial court's decision to grant a motion for summary judgment is well established. Summary 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." Home Ins. Co. v. Aetna Life Casualty Co.,
In that motion for summary judgment on the plaintiff's complaint, the defendants argue that the relief sought under General Statutes §§
There is no need for the court to consider whether the plaintiff's action is time barred by General Statutes §
General Statutes §
The defendants claim that the plaintiff's request for a new trial is an attempt to re-litigate the issue of "actual notice" of the nonsuit in Lewis I. The defendants argue that the "actual notice" issue is barred by res judicata because the issue was decided by the court at the evidentiary hearing on the plaintiff's motion to open the nonsuit.
The court did not make a factual determination as to when the plaintiff received "actual notice" of the judgment of nonsuit; the court determined that the court lacked subject matter jurisdiction to grant the motion to open judgment: "Well, I don't agree with Mr. Parnoff [the plaintiff's attorney] that this court [Lewis I] has any jurisdiction given the time frame set forth to reopen the judgment so the motion is denied" Exhibit F, Defendant's Reply Memorandum to Plaintiff's Memorandum in Opposition to Defendants' Cross Motion for Summary Judgment and Defendant's Objection to New Trial, page 55.
The plaintiff's attorney has provided an affidavit indicating that he did not receive "actual notice" of the nonsuit until February 5, 1993. General Statutes §
Accordingly, the defendants' motion for summary judgment is denied.
Ronald J. Fracasse, Judge