135 Conn. App. 506
Conn. App. Ct.2012Background
- Worth owns property at 315 New Hartford Road in Barkhamsted where she runs a retail business.
- Following 2003 repaving of Route 44, storm water from the highway flooded Worth’s driveway.
- Worth sought permission from the claims commissioner to sue, which was granted in Sept. 2007 after finding limited remedial efforts prior to Jan. 2006.
- Worth filed a first action in March 2006 against the Department, Korta and others; discovery disputes led to a 2008 order to comply and a 2009 nonsuit for failure to comply.
- Worth then sought to open the nonsuit (denied in May 2009) and did not appeal; in Jan. 2010 she brought a new action under General Statutes § 52-592 seeking relief for the 2003 flooding.
- The trial court dismissed the present action on April 27, 2010, on untimely objection and merits grounds, and the appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 52-592(a) permits a new action after a prior dismissal. | Worth seeks relief under accidental failure to sue due to inadvertence/mistake. | Defendants contend prior nonsuit was not due to inadvertence or excusable neglect; § 52-592(a) not available. | Yes; court upheld dismissal, denying § 52-592(a) relief. |
| Whether the trial court properly dismissed without an evidentiary hearing on § 52-592(a) grounds. | Worth should have an evidentiary hearing to prove inadvertence or excusable neglect. | Record shows no inadvertence or excusable neglect; dismissal proper. | Yes; dismissal upheld based on lack of inadvertence/mistake. |
| Whether the court correctly considered procedural defects (Practice Book § 10-31) in the dismissal ruling. | Objection to the motion to dismiss timely or should be considered liberally for pro se litigants. | Procedural defect acknowledged but not dispositive given merits-based grounds. | Procedural defect did not alter the merits ruling; judgment affirmed. |
Key Cases Cited
- Plante v. Charlotte Hungerford Hospital, 300 Conn. 33 (2011) (emphasizes fact-specific § 52-592 inquiry and need for evidentiary showing)
- Conboy v. State, 292 Conn. 642 (2009) (limits on dismissals without hearing; mandates opportunity to prove § 52-592 facts)
- Ruddock v. Burrowes, 243 Conn. 569 (1998) (requires factual hearing for critical issues in § 52-592 analysis)
- Behrns v. Behrns, 124 Conn. App. 794 (2010) (court orders must be followed until modified; no self-help to avoid discovery orders)
- Gurliacci v. Mayer, 218 Conn. 531 (1991) (pleading sufficiency vs. jurisdictional challenges; amendable pleadings favored)
- In re Jose B., 303 Conn. 569 (2012) (clarifies distinction between jurisdiction and pleading sufficiency; supports liberal amendment for pro se)