JOHN DOE v. TOWN OF WEST HARTFORD ET AL.
(AC 37672)
Appellate Court of Connecticut
Argued May 10—officially released September 20, 2016
Beach, Mullins and Mihalakos, Js.
(Appeal from Superior Court, judicial district of Hartford, Complex Litigation Docket, Sheridan, J. [motions for summary judgment]; Dubay, J. [motion to disqualify].)
All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connectiсut Appellate Reports, the latest print version is to be considered authoritative.
The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut.
(AC 37672)
Beach, Mullins and Mihalakos, Js.
(Appeal from Superior Court, judicial district of Hartford, Complex Litigation Docket, Sheridan, J. [motions for summary judgment]; Dubay, J. [motion to disqualify].)
Kenneth J. Krayeske, with whom was Brendan Mahoney, for the appellant (plaintiff).
Patrick D. Allen, with whom, on the brief, was Scott M. Karsten, for the appellees (named defendant et al.).
Laura Pascale Zaino, with whom, on the brief, were Richard C. Tynan, Evan M. O‘Hara, and Logan A. Forsey, for the appellees (defendant Dale J. Wallington et al.).
Michael R. McPherson, fоr the appellees (defendant Hartford Hospital et al.).
MULLINS, J. The plaintiff, John Doe,1 appeals from the summary judgment rendered by the trial court, Sheridan, J., after determining that the plaintiff‘s causes of action were time barred and were not saved by
On appeal, the plaintiff claims that the court improperly rendered summary judgment despite the existence of issues of material fact regarding whеther process was delivered to the marshal prior to the expiration of the various statutes of limitations for his causes of action, and that the court improperly denied the plaintiff‘s motion for disqualification of Judge Sheridan on the ground of judicial bias.4 We agree that the court improperly rendered summary judgment, and, accordingly, we reverse in part and affirm in part the judgment of the trial court.5
Many of the underlying facts and the complicated procedural history of this case are not relevant to the issues on appeal. Accordingly, we omit them and set forth only the facts and history necessary for our consideration of the issues presented. The plaintiff alleged various wrongful conduct on the part of the defendants that he claims occurred between May 22, 2007, and June 8, 2007. He commenced this action by summons and complaint, executed on May 19, 2010. According to the marshal‘s return, which was signed by State Marshal John R. Griffin, the defendants all were served on June 9, 2010. Beginning on September 23, 2013, more than three years after this action was commencеd, the town defendants, the medical defendants, and the hospital defendants each filed a motion for summary judgment claiming, inter alia, that the plaintiff‘s causes of action were time barred.6 In response, the plaintiff contended that Griffin had picked up process on May 20, 2010, at the office of Attorney A. Paul Spinella, his attorney at the time he commenced this action, thereby saving the late service pursuant to
Thereafter, the plaintiff filed a motion to reargue and reconsider, claiming, in part, that he had newly discovered evidence in the form of e-mails that would further help to establish that Spinella‘s office gave process to Griffin on May 20, 2010. The court denied the plaintiff‘s motion.
The plaintiff also filed a motion to recuse and disqualify Judge Sheridan on the basis of alleged judicial bias, which was heard by Judge Dubay. Following the hearing, Judge Dubay denied that motion. The plaintiff subsequently filed a motion requesting that Judge Dubay articulate the basis for his denial of the motion to disqualify, which he granted. This appeal followed.7 Additional facts will be set forth as necessary.
I
The plaintiff first claims that the trial court improperly rendered summary judgment despite the existence of issues of material fact regarding whether process was delivered to Griffin, the marshal, prior to the expiration of the statutes of limitations. He also claims that the court improperly struck Spinella‘s affidavit. The plaintiff argues that the defendants never established that the process was not picked up by Griffin prior to the expiration of the statutes of limitations. He further argues that the court improperly weighed the evidence, made credibility determinations, and shifted the burden of proof to him, despite there being no evidence from the movants as to when process was received by Griffin, and then held him to а higher burden of proof than was appropriate for purposes of opposing summary judgment motions. The plaintiff additionally argues that the only burden he had when opposing summary judgment was to demonstrate an issue of material fact as to whether Griffin received process prior to May 22, 2010; he contends that he certainly met that burden but that the court, improperly, required him to prove that process had been delivered, and it failed to view the evidence in the light most favorable to the nonmoving party. We agree that there exists a genuine issue of material fact regarding the date that process was delivered to the marshal.
The following additional facts inform our review. In September and October, 2013, the town defendants and the hospital defendants each filed a motion for summary judgment on grounds that included the expiration of the applicable statute of limitations, both citing
In response to these motions for summary judgment,
On March 11, 2014, the plaintiff filed an opposition to the defendants’ motions to strike the Griffin affidavit, and he also included an affidavit from Spinella. In an order dated April 21, 2014, the court granted the motions to strike Griffin‘s affidavit, but, upon the request of the plaintiff, permitted him to submit the affidavit of Spinella.11 The court also gave the defendants sixty days to depose Spinella regarding the facts and circumstances set forth in his affidаvit.
On July 9, 2014, the hospital defendants filed a motion, entitled “Motion to Strike Affidavit of A. Paul Spinella and Supplemental Memorandum in Support of Motion for Summary Judgment.” They sought to strike Spinella‘s affidavit on the grounds that the affidavit was not based on personal knowledge and that it contained hearsay. Among the documents submitted in support of the motion to strike was Spinella‘s certified deposition.
On July 17, 2014, the town defendants filed a similar supplemental motion for summary judgment and motion to strike, which specifically incorporated the July 9, 2014 motion of the hospital defendants. They also contended that Griffin‘s failure to endorse on his return of service the date he received process in this case was fatal.12 See footnote 2 of this opinion. The plaintiff filed an opposition to these motions, attaching Spinella‘s affidavit and portions of his deposition. The hospital defendants and the town defendants each filed a reply. On September 12, 2014, the court rendered a decision striking in part Spinella‘s affidavit on the ground that it was not based on personal knowledge because Spinella did not witness, firsthand, the marshal pick up the process.
On September 25, 2014, the medical defendants filed a motion for permission to file a supplemental motion for summary judgment, alleging that, in light of the court‘s recent rulings on the other defendants’ motions to strike, the plaintiff‘s causes of action against them also were barred by
The plaintiff claims that the court improperly struck Spinella‘s affidavit and that it improperly rendered summary judgment despite the existence of issues of material fact regarding whether process was delivered to Griffin prior to the expiration of the statutes of limitations. We agree that thе court improperly rendered judgment on the basis that there was no genuine issue of material fact as to whether Spinella delivered process to Griffin prior to the expiration of the applicable three year statutes of limitations.
“The principles that govern our review of a trial court‘s ruling on a motion for summary judgment are well established. Practice Book § 17-49 provides that 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. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. . . .
“In ruling on a motion for summary judgment, the court‘s function is not to decide issues of material fact but rather to determine whether any such issues exist. . . . The courts hold the movant to a strict standard. To satisfy his burdеn the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact. . . . Once the moving party has met its burden [of production] . . . the opposing party must present evidence that demonstrates the existence of some disputed factual issue. . . . [I]t [is] incumbent [on] the party opposing summary judgment to establish a factual predicate from which it can be determined, as a matter of law, that a genuine issue of material fact exists. . . .
“On appeal, the reviewing court must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court. . . . [R]eview of the trial court‘s decision to grant [a party‘s] motion for summary judgment is plenary.” (Citations omitted; internal quotation marks omitted.) Episcopal Church in the Diocese of Connecticut v. Gauss, 302 Conn. 408, 421–22, 28 A.3d 302 (2011), cert. denied, 567 U.S. 924, 132 S. Ct. 2733, 183 L. Ed. 2d 653 (2012).
Here, the plaintiff argues that this case is not barred by any statute of limitations because process was given to Griffin timely pursuant to
“Section 52-593a . . . extends the period of time for the serving officer to make the delivery. Process must still be received by the serving officer on time. In other words, the plaintiff must get the process to the serving officer within the period allowed by the statute. . . . All that § 52-593a requires . . . is that the process be personally delivered [to the marshal]. It does not require that the delivery be made by the plaintiff, his attorney, or any particular individuаl. The person making the delivery has no statutory role to perform respecting the delivery. He is neither required nor permitted to endorse his doings on the return. In addition, the statute does not detail the manner of making delivery. The word deliver includes a handing over for the purpose of taking even though both acts do not occur simultaneously. . . . The fact that the extension statute becomes operative only where the process has been delivered before the running of the statute of limitations, and the fact that the serving officer is required to attest to the date of delivery suggest that the purpose of the statute is to ensure that the process is received on time by the officer.” (Footnotes omitted; internal quotation marks omitted.) Id., 73–74. “A plaintiff relying upon a ‘saving statute’ must demonstrate compliance with its provisions. . . . [If] the plaintiff fail[s] to establish a genuine issue of material fact as to his compliance with the provisions of § 52-593a, the court properly render[s] summary judgment . . . .” (Citation omitted.) Id., 74.
In this case, all parties agree that the defendants were
During his deposition, which was before the court when it ruled on the various motions for summary judgment, Spinella was question by Attorney Michael R. McPherson, counsel for the hospital defendants, and testified in relevant part as follows:
“Q. Now, I‘ve marked what looks to be your affidavit as defendants’ exhibit three. . . . Now, is that your affidavit and your signature?
“A. Looks like it.
“Q. Now, it says in the affidavit that you used Marshal Griffin exclusively for service of process in 2010, is that correct?
“A. To the best of my memory, yes.
“Q. Now, in May of 2010, who had the responsibility at your firm to ensure that the marshal received the process for service?
“A. Bonnie St. Onge, to the best of my memory.
“Q. Now, who is Bonnie St. Onge?
“A. My office manager at that time. . . .
“Q. Does Bonnie St. Onge work for your firm still?
“A. No. . . . She‘s deceased. . . .
“Q. Now, back in May of 2010, can you describe the typical process at your firm as to how, once a complaint was drafted and a summons filled out, those papers were delivered to the marshal . . . .
“A. Well, it depended on the urgency of it. If it was really urgent, he would be called and asked to personally come and get it so we wouldn‘t have to wait on the mail.
“Q. And who would make the call typically in May of 2010 to the marshal to come pick it up?
“A. Bonnie.
“Q. Now, was it ever your practice to personally hand the process to the marshal when he came to your office, or did you leave that to Bonnie?
“A. We‘d leave it on the end of the counter. But he would come in and talk to the staff; he wouldn‘t just grab it. And it would be handed over to him.
“Q. When you say you‘d leave it on the end of the cоunter, was that counter like a receptionist‘s desk?
“A. Yes. When you come in my office, there‘s a long counter, and it‘s like a wall with a shelf on it. And at the end of that, that would be for pickup.
“Q. Now, did someone sit at that desk or counter area in your office back in May of 2010?
“A. Yes. There were two—Bonnie‘s office was right there. And I also had a secretary that sat there.
“Q. And what was the name of your secretary who sat right there in May of 2010?
“A. It would have been Bonnie Kiniry.
“Q. Now, I‘m trying to picture this in my mind. I‘ve never been to your office, so I apologize. There is a counter that is right when you walk into your office?
“A. Uh-huh.
“Q. And did Bonnie Kiniry sit right behind that counter?
“A. She [sat] near to it. And Bonnie St. Onge [had] an open door that open[ed] right up on the counter.
“Q. Did you typically keep a written record of when the marshal picked up the process in your cases in 2010?
“A. No.
***
“Q. Now, on defendants’ exhibit three, which is your affidavit, paragraph 6 reads: ‘The summons and complaint in the matter was personally retrieved from my office by Marshal Griffin on May 20, 2010.’ Do you have an independent specific recollection of Marshal Griffin taking delivery of the process in this case?
“A. Well, if yоu‘re asking me if I, personally, handed it over to him, I did not. But you have to understand the circumstances that surrounded this. I had an enormously demanding client, and there was a lot of concern about the statute of limitations, and there were some revisions that had been made in the complaint at the last minute. And so we were, you know, very anxious to get it in his hands. And, for that reason, we—I didn‘t contact him personally. I believe that it was Bonnie St. Onge that I asked to do that. It was put on the end of the counter. And I asked to be told, to confirm that he had picked this up, and there was a confirmation made. And I remember going down there, and the complaint
was never there. So it was further confirmation that it had been picked up. You know, this was special circumstances with this complaint because of the statute and a client, like I said, that was very demanding. So that‘s why it sticks out in my mind.
“Q. Okay. I just want to break that down a little bit. So you did not hand the process to Marshal Griffin for delivery in this case?
“A. No.
“Q. You did not contact Marshal Griffin personally about picking up process?
“A. I believe that I did talk to him on the phone beforehand.
“Q. Okay.
“A. Because, not only did it have to be picked up, but it was going to be a difficult service. And, in point of fact, after it was picked up, I talked to him again—I talked to him personally. I don‘t know how many times, about the service itself, you know, confirmed that he had picked it up beforehand, but also to talk about the service because there was an issue about getting personal service here. And so that, you know, was another cause for communication with him.
“Q. So just if I could back up a little bit, did you witness Marshall Griffin pick up the process from your office?
“A. Personally?
“Q. Yes.
“A. No.
“Q. Do you have any written or electronic record indicating that Marshal Griffin took delivery of the process on a date certain?
“A. No, but I had an oral confirmation from my staff.
“Q. And when you say you had oral confirmation from your office staff, who told you that the marshal had picked up the process?
“A. I believe it was Bonnie St. Onge.
“Q. So the basis for your statement that Marshal Griffin picked up the process on May 20, 2010, is what Bonnie St. Onge told you that he did.
“A. Yes. To the best of my memory, it was somebody from my staff. To the best of my memory, it was Bonnie St. Onge. What I remember is just getting the confirmation because it was a concern, and then not seeing the complaint at the end of the counter when I did go down there.
“Q. What is your understanding of when the statute of limitations was going to expire in this case?
“A. I don‘t know. Sometime shortly after the marshal picked up the writ.
“Q. But you don‘t know the exact date?
“A. I‘d have to review something. It was, you know, a day or so afterwards, shortly afterwards.
“Q. . . . Do you recall how close the statute of limitations was about to expire in [other] particular cases?
“A. No, but it wasn‘t the only issue here about the statute expiring. Like I said, I had an enormously demanding client, which had revved up this whole issue. That, and having to revise the complaint at the last minute, those are all extraordinary circumstances that, you know, I can‘t remember ever dealing with to this extent in any other case that I‘ve had.
“Q. And when you say you had an enormously demanding client, what do you mean?
“A. Well, I‘d rather not get into that . . . .
“Q. So, it‘s your testimony Attorney Spinella that roughly four years later, when you signed this affidavit, you have a specific recollection of what occurred on May 20, 2010?
“A. Because of the client and the case, yes. Everything about the case is pretty clear to me.
“Q. You remember May 20, 2010, precisely?
“A. Well, it isn‘t so much the date that I know, [it is] that it was directly before the statute was going to expire. And you know, that‘s why it sticks out in my mind.
“Q. But you attested that Marshal Griffin took delivery of the process on a specific day.
“A. Right.
“Q. And I‘m asking you, you didn‘t hand it to him, you didn‘t contact him personally, you didn‘t witness him take it. You were told by your staff member that he had picked it up. And I‘d like to know the basis for your affidavit or your statement that it was specifically May 20, 2010.
“A. Yes, I believe that it was the day before the statute was going to expire.
“Q. And you have no record of Marshal Griffin, no written documentary evidence of when Marshal Griffin came?
“A. No. Had I known I was going to be deposed in this case, I would have kept a written record.
“Q. So other than the oral confirmation that you received from Bonnie St. Onge, the basis of that statement is you coming down and seeing the process gone
from the countertop?
“A. That and having it orally confirmed with the marshal after he picked it up that he had indeed picked it up on the date that I said.
“Q. So your testimony is that marshal—you spoke to Marshal Griffin after he picked it up, and he told you that he hаd picked it up on May 20?
“A. Yes. I got it before the statute expired. And we went on to talk about how he was going to get service.
“Q. Now, you know that Marshal Griffin has been deposed in this case?
“A. I‘ve been told that, yes.
“Q. Marshal Griffin never testified—I took his deposition in February, and Marshal Griffin never testified to any conversation that he had with you in which he confirmed May 20. In fact, I‘ll represent to you [that] he said the first time he ever heard or saw that date is when he came to your office to sign his affidavit that your office prepared . . . . And it‘s your testimony that Marshal Griffin spoke to you on the phone in 2010 and confirmed that he took delivery of it on May 20, 2010.
“A. Yes. Did he tell you about all the trouble he had with the service and how that, all by itself, was an occasion for us to talk more than once? And why is it so hard to believe—and you yourself know that there was an issue about the service and what was represented at the hospital. Why is it so hard to believe that he talked to me about that, and, in the course of that, there was a confirmation that he did indeed pick up the complaint as I just said? I mean, it‘s only natural to talk about that. In addition to that—
“Q. Attorney Spinella, I‘m not asking you whether it‘s difficult to believe that you would speak to Marshal Griffin at all. I‘m asking you that—Marshall Griffin—no, he did not tell me about the difficulties he had with service.
“A. There you go. . . .
“Q. So putting aside the conversations that you had with Marshal Griffin about the difficulties of service, I‘m talking specifically the day on which he took delivery. Why would the day on which he took delivery be a subject of conversation with you during those time frames? How would that have any relationship to the difficulty of serving someone in hand or abode or with their office manager?
“A. Because it was the day before the statute expired. It comes in a package. Here‘s a gentleman that‘s concerned about doing a proper service. First issue is to confirm that he got this before the statute expired, which he confirmed. Then we went on to the next natural topic of conversation—the difficulty posed by your
In deciding a motion for summary judgment, “[i]ssue-finding, rather than issue-determination, is the key to the procеdure. . . . [T]he trial court does not sit as the trier of fact when ruling on a motion for summary judgment. . . . [Its] function is not to decide issues of material fact, but rather to determine whether any such issues exist.” (Internal quotation marks omitted.) Byrne v. Burke, 112 Conn. App. 262, 268, 962 A.2d 825, cert. denied, 290 Conn. 923, 966 A.2d 235 (2009).
In the present case, even if we assume without deciding that the court properly struck Spinella‘s affidavit, the court had before it his deposition testimony, which sufficiently raises a genuine issue of material fact as to whether Griffin received process on May 20, 2010. Spinella testified that when there was an urgency in the time for delivery of process to the marshal, he or someone in his office would telephone the marshal and ask him to pick up the process at their office. He also testified that in 2010, he exclusively used Griffin for service of process. He stated that the practice of the office was to leave the process at the end of the counter, where it readily could be given to the marshal when he arrived to pick it up. Spinella also testified that on May 20, 2010, process was left for Griffin, and that, later, the complaint was no longer on the counter, thereby confirming for him that it had been picked up. We conclude that this in and of itself was enough to create a reasonable inference, if believed, that Griffin picked up process at Spinella‘s office on May 20, 2010. Spinella also stated that his staff gave him oral confirmation that Griffin had picked up the process.15
But, in addition to this testimony, Spinella also testified that his memory surrounding these events was very clear because they were so close to the running of the statutes of limitations for the plaintiff‘s causes of action that he was paying close attention to the dates and to making sure that process was delivered to Griffin timely. Spinella testified that, the day after Griffin picked up the process, he telephoned Griffin to go over some possible problems that might be encountered with service in this case, and that Griffin confirmed, during that phone conversation, that he had picked up the process the day before, on May 20, 2010. See footnote 15 of this opinion. This testimony, if believed, establishes that proсess was delivered to Griffin on May 20, 2010, before the running of the statute of limitations.
A review of the evidence submitted either in support of or in opposition to the defendants’ motions for summary judgment demonstrates the existence of a genuine issue of material fact as to whether process was delivered to Griffin on May 20, 2010, thereby saving the plaintiff‘s causes of action through the application of
II
The town defendants raise in their brief as an alternate ground for affirmance a claim that “under the circumstances of this case, the plaintiff‘s failure to comply with
The proper interpretation of
In Dickerson v. Pincus, 154 Conn. App. 146, 153–55, 105 A.3d 338 (2014), we discussed whether
“The essence of the thing to be accomplished in
Specifically as to subsection (b) of
Because this court already has concluded that
III
The plaintiff next claims that trial court improperly denied his motion to disqualify Judge Sheridan. He argues that he had two grounds on which he sought to disqualify the judge. First, he claims that Judge Sheridan‘s statements before the Judiciary Committee17 during his confirmation hearing to become a judge of the Superior Court demonstrated a bias in favor of police officers. Second, he claims that when Judge Sheridan was the town attorney for the town of Manchester for approximately five months during 2010, Attorney Scott M. Karsten, who is one of the attorneys on the defendants’ side in the present case, represented Manchester in a case involving, inter alia, Manchester police offi-
“A trial court‘s ruling on a motion for disqualification is reviewed for abuse of discretion. . . . In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court‘s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done. . . .
“Pursuant to our rules of practice; see Practice Book § 1-22; a judge should disqualify himself from acting in a matter if it is required by rule 2.11 of the Code of Judiсial Conduct, which provides in relevant part that [a] judge shall disqualify himself . . . in any proceeding in which the judge‘s impartiality might reasonably be questioned . . . . In applying this rule, [t]he reasonableness standard is an objective one. Thus, the question is not only whether the particular judge is, in fact, impartial but whether a reasonable person would question the judge‘s impartiality on the basis of all the circumstances. . . . Moreover, it is well established that [e]ven in the absence of actual bias, a judge must disqualify himself in any proceeding in which his impartiality might reasonably be questioned, because the appearance and the existence of impartiality are both essential elements of a fair exercise of judicial authority. . . . Nevertheless, because the law presumes that duly elected or appointed judges, consistent with their oaths of office, will perform their duties impartially . . . and that they are able to put aside personal impressions regarding a party . . . the burden rests with the party urging disqualification to show that it is warranted.” (Citations omitted; internal quotation marks omitted.) Stefanoni v. Darien Little League, Inc., 160 Conn. App. 457, 464–65, 124 A.3d 999 (2015).
After a hearing before the court, Dubay, J., on the plaintiff‘s motion to disqualify Judge Sheridan, Judge Dubay specifically ruled: “The motion is denied for the following reasons, inter alia:
“1. The ‘pull quote’ of Judge Sheridan‘s testimony
“2. Further, the basis of Judge Sheridan‘s order granting summary judgment did not in any way involve the testimony of police officers.
“3. The second ground advanced by the plaintiff in support of his motion, that, at some time in the past, there was a four or five month cocounsel relationship between Judge Sheridan and Attorney Karsten [that] mandates recusal, has no basis in fact. Counsel for the plaintiff conceded at argument that there is no evidence to support his claims in that regard, and, rather, he ‘assumed’ the allegations in his certificate of good faith dated October 28, 2014.”
After reviewing the record, including the plaintiff‘s motion and its attachments, as well as the transcript of the heаring before Judge Dubay, we agree with Judge Dubay that the quoted language relied on by the plaintiff of Judge Sheridan‘s testimony before the Judiciary Committee is not an accurate representation of Judge Sheridan‘s full answer regarding the truthfulness of police officers when they are testifying under oath. See footnote 17 of this opinion. We conclude, therefore, that the plaintiff failed to show that Judge Sheridan‘s testimony demonstrated bias in favor of police.
Additionally, we agree with Judge Dubay that the plaintiff‘s attorney conceded during the hearing on the plaintiff‘s motion that he merely had “assumed” the allegations in his certificate of good faith that there had been an attorney-client or a master-servant relationship between Attorney Karsten and Judge Sheridan for an approximate five month period during 2010.19 Indeed, there simply is no evidence to support this assumption. Accordingly, we conclude that the court properly denied the plaintiff‘s motion to disqualify Judge Sheridan.
The judgment is affirmed as to the plaintiff‘s motion for disqualification; the summary judgment is reversed and the case is remanded for further proceedings according to law.
In this opinion the other judges concurred.
Notes
“(b) In any such case, the officer making service shall endorse under oath on such officer‘s return the date of delivery of the process to such officer for service in accordance with this section.”
The hospital defendants contended that a two year statute of limitations, pursuant to
“(b) In any civil action brought under this section in which the plaintiff prevails, the court shall award treble damages and may, in its discretion, award equitable relief and a reasonable attorney‘s fee.
“(c) No action shall be brought under this section but within three years from the date of the act complained of.”
“1. My name is Paul Spinella and I am over the age of eighteen. I know and understand the importance of an oath. I made the following statements under oath.
“2. I represented the [p]laintiff in this matter at the time the lawsuit was initially filed.
“3. I was acutely aware of the statute of limitations in this matter.
“4. On May 19, 2010, I executed the summons with attached complaint, initiating this lawsuit.
“5. My law office used the services of [S]tate Marshal John Griffin exclusively for all service of processes. Our practice was for him [to] come to pick up all documents for service at my office.
“6. The summons and complaint in this matter was personally retrieved from my office by Marshal Griffin on May 20, 2010.”
“Rep. [Minnie] Gonzalez: Okay. . . . When you have a case, and, let‘s say the police officers that are involved—policе officers are involved and they were to testify. Do you believe—do you always believe that police officers, and prosecutors also, they all tell the truth to the judge? Do you really believe that?
“David M. Sheridan: I don‘t believe police officers perjure themselves. I just—if it happens, I would imagine it‘s exceedingly rare, but I think police officers, I believe, you know, [I have been] examining witnesses in the courts of this state for twenty-five years, and witnesses can get up there and testify, and they truly believe they‘re telling the truth. They truly believe they‘re being honest under oath, but what they‘re saying is not true, the absolute truth, and I believe police officers are subject to all of the frailties of human beings that we—regular lay witnesses testify incorrectly . . . . We ask that routinely to jurors when we panel jurors. You know, a police officer is going to testify in this case, would you be more inclined to believe the testimony of a police officer and, you know, I could probably count [on] one hand the times that people have said they would believe a police officеr no matter what. . . . So I think most people have that concept of, you know, there‘s not reason to necessarily believe a police officer. His testimony has to still stack up and still add up. It has to still make sense.” Conn. Joint Standing Committee Hearings, Judiciary, Pt. 15, 2010 Sess., pp. 4769-70.
“(a) A judge shall disqualify himself or herself in any proceeding in which the judge‘s impartiality might reasonably be questioned including, but not limited to, the following circumstances:
“(1) The judge has a personal bias or prejudice concerning a party or a party‘s lawyer, or personal knowledge of facts that are in dispute in the proceeding.
“(2) The judge knows that the judge, the judge‘s spouse or domestic partner, or a person within the third degree of relationship to either of them, or the spouse or domestic partner of such a person is:
“(A) a party to the proceeding, or an officer, director, general partner, managing member, or trustee of a party;
“(B) acting as a lawyer in the proceeding;
“(C) a person who has more than a de minimis interest that could be substantially affected by the proceeding; or
“(D) likely to be a material witness in the proceeding.
“(3) The judge knows that he or she, individually or as a fiduciary, or the judge‘s spouse, domestic partner, parent, or child, or any other member of the judge‘s family residing in the judge‘s household, has an economic interest in the subject matter in controversy or in a party to the proceeding.
“(4) The judge has made a public statement, other than in a court proceeding, judicial decision, or opinion that commits or appears to commit the judge to reach a particular result or rule in a particular way in the proceeding or controversy.
“(5) The judge:
“(A) served as a lawyer in the matter in controversy or was associated with a lawyer who participated substantially as a lawyer in the matter during such association;
“(B) served in governmental employment and in such capacity participated personally and substantially as a lawyer or public official concerning the proceeding or has publicly expressed in such capacity an opinion concerning the merits of the particular matter in controversy; or
“(C) was a material witness concerning the matter.
“(b) A judge shall keep informed about the judge‘s personal and fiduciary economic interests and make a reasonable effort to keep informed about the personal economic interests of the judge‘s spouse or domestic partner and minor children residing in the judge‘s household.
“(c) A judge subject to disqualification under this Rule, other than for bias or prejudice under subsection (a) (1), may ask the parties and their lawyers to consider, outside the presence of the judge and court personnel, whether to waive disqualification, provided that the judge shall disclose on the record the basis of such disqualification. If, following the disclosure, the parties and lawyers agree, either in writing or on the record before another judge, that the judge should not be disqualified, the judge may participate in the proceeding.
“(d) Notwithstanding the foregoing, a judge may contribute to a client security fund maintained under the auspices of the court, and such contribution will not require that the judge disqualify himself or herself from service on such a client security fund committee or from participation in a lawyer disciplinary proceeding or in any matter concerning restitution or subrogation relating to such a client security fund.
“(e) A judge is not automatically disqualified from sitting on a proceeding merely because a lawyer or party to the proceeding has filed a lawsuit against the judge or filed a complaint against the judge with the judicial review council. When the judge becomes aware that such a lawsuit or complaint has been filed against him or her, the judge shall, on the record, disclose that fact to the lawyers and parties to the proceeding before such judge and shall thereafter proceed in accordance with Practice Book Section 1-22 (b).
“(f) The fact that the judge was represented or defended by the attorney general in a lawsuit that arises out of the judge‘s judicial duties shall not be the sole basis for recusal by the judge in lawsuits where the attorney general appears.”
Attorney Karsten‘s affidavit provided in relevant part:
“5. . . . I was counsel for several defendant Manchester police officers and the [t]own of Manchester in certain litigation [by a plaintiff known as Morales] . . . . I represented these defendants through the conclusion of the action in June, 2012.
“6. I was selected and retained for this representation exclusivеly by CIRMA . . . which was and is the municipal insurance company for many cities and towns in Connecticut, including Manchester.
“7. Throughout the period of my involvement in the Morales case, I and my law firm submitted all invoices for legal services rendered directly to CIRMA, which duly approved and paid them. . . .
“10. Based on my thirty plus years of experience in representing municipal entities in cases such as Morales, it is entirely customary for insurance defense counsel to exclusively handle the litigation of which they are retained, with minimal or no involvement of a town attorney absent a conflict of some unusual development.
“11. During the five months of [then Attorney] Sheridan‘s service as Manchester Town Attorney, I believe I had no interactions with him whatsoever—not in person, on the phone, via e-mail, or other correspondence—regarding the Morales case or any other matter.
“12. At no time did Town Attorney Sheridan ever direct, review, approve, or, in any way, supervise my work on behalf of the Manchester defendants in the Morales case . . . .
“14. There is no factual basis whatsoever for the claims to the contrary set forth in [the] [p]laintiff‘s [m]otion.”