Henriquez v. Allegre2/19/2002
The plaintiff, Max Henriquez, appeals from the judgment of the trial court rendered following the granting of the defendant's motion to dismiss. On appeal, the plaintiff claims that the court improperly concluded that his action, commenced pursuant to General Statutes § 52-592, was untimely. We reverse the judgment of the trial court.
The following facts and procedural history are relevant to our disposition of the appeal. In January, 1997, the plaintiff commenced a timely action against the defendant, Jose Allegre, for personal injuries allegedly sustained by the plaintiff in a January 23, 1995 motor vehicle accident. In June, 1998, the trial court dismissed the plaintiff's action under its dormancy program for failure to prosecute with reasonable diligence. According to the court, notice of the dismissal issued on June 19, 1998. In footnote 3 of its memorandum of decision, the court stated that '' he file of the court for the initial action, Henriquez v. Allegre, Docket No. 478660, judicial district of Hartford-New Britain at New Britain indicates that the court issued notice on June 19, 1998.''
We note that the record before us does not support the court's finding that notice issued on June 19, 1998. Instead, the record indicates that although judgment was rendered on June 19, 1998, notice was not issued to the defendant until August 25, 1998. Indeed, in the defendant's appellate brief, he states the following: ''On or about June 19, 1998, the trial court entered a judgment of dismissal for failure to prosecute with reasonable diligence pursuant to Practice Book § 14-3. The court sent notice of the dismissal by court card dated August 25, 1998, informing counsel that a motion to open must be filed within four months of the date notice was sent pursuant to Practice Book § 17-4.'' In support of those facts, the defendant provides a copy of the August 25, 1998 notice in the appendix to his appellate brief, which states: ''Please be advised that this court entered a judgment of dismissal in the above entitled action on 06/19/98 for failure to prosecute said action with reasonable diligence, ([Practice Book §] 14-3). Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a motion to open judgment of dismissal must be filed within four months succeeding the date on which notice was sent ([Practice Book §] 17-4).''
Nowhere in the record is there any indication that the court issued an earlier notice or, assuming that an earlier one was issued, why the court determined that a second issuance of notice was necessary almost two and one-half months after the court had rendered judgment. The defendant claims that his counsel received the notice on August 27, 1998, while the plaintiff claims that his counsel never received the notice. Unfortunately, we are unable to review the case file of the initial action because apparently it was destroyed pursuant to Practice Book § 7-10 sometime after the trial court presumably reviewed it. In light of our holding that the date notice issued does not control in determining whether an action was timely brought pursuant to § 52 592, however, it makes no difference to our analysis whether notice of the dismissal issued on June 19, 1998, or August 25, 1998.
Subsequent to the June 19, 1998 dismissal, the parties continued to communicate regarding the matter, including proceeding with settlement negotiations. On July 14, 1999, the plaintiff filed a certificate of closed pleadings, which the court returned to the plaintiff with a notation that the action had been dismissed. On August 11, 1999, the plaintiff filed a motion to open the dismissal. For reasons not clear on the record, th
Page 1 2 3 4 Connecticut Employee Leasing Services
Employee Leasing Services
|