Law Offices of Frank N. Peluso, P.C. v. Cotrone , 178 Conn. App. 415 ( 2017 )

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LAW OFFICES OF FRANK N. PELUSO, P.C.
v. JERRY P. COTRONE
(AC 39304)
Lavine, Sheldon and Prescott, Js.
Syllabus
The plaintiff brought this action against the defendant, a former client, for
unpaid legal fees. After the defendant filed a counterclaim, the plaintiff
filed a request to revise the defendant’s special defenses and counter-
claim, and no further action was taken in the case by either party until
the plaintiff filed a withdrawal of its action approximately three years
later. Two days after the plaintiff withdrew its action, the plaintiff filed
a withdrawal of the withdrawal of its action. Subsequently, the defendant
filed an objection to the plaintiff’s withdrawal of the withdrawal of its
action, claiming that a withdrawal of a withdrawal was not a proper
pleading to restore the plaintiff’s action to the docket. Following a
hearing, the trial court overruled the defendant’s objection, and the
matter was thereafter tried to the court, which found in favor of the
plaintiff on the complaint and the counterclaim, and awarded the plaintiff
damages. On the defendant’s appeal to this court, held that the trial
court abused its discretion in restoring the plaintiff’s action to the docket
after the plaintiff filed a withdrawal of its action, in the absence of a
timely filed motion to restore: pursuant to statute (§ 52-212a), the plain-
tiff had four months from the date of the filing of the withdrawal of its
action to file a motion to restore the case, which the plaintiff failed to
do, and there was no basis in the record for the trial court to treat an
electronic notation on the docket list as an erasure of the plaintiff’s
withdrawal of action and the restoration of its action to the docket, nor
did the record show that the court ever took any action on the plaintiff’s
withdrawal of the withdrawal of its action or that it informed either
party that the matter had been restored; moreover, the plaintiff’s claim
that the trial court exercised direct authority over the case when it
considered the plaintiff’s motions for nonsuit and to dismiss was unavail-
ing, as the plaintiff failed to file any pleading in furtherance of its action
following its purported restoration of the case until two years later, and
even then, the plaintiff did not file any motion that required any action
by the court that could have been construed as implicitly restoring the
case to the docket.
Argued October 5—officially released December 5, 2017
Procedural History
Action to recover damages for, inter alia, breach of
contract, brought to the Superior Court in the judicial
district of Stamford-Norwalk, where the defendant filed
a counterclaim; thereafter, the plaintiff withdrew its
action; subsequently, the plaintiff filed a withdrawal of
its withdrawal of action; thereafter, the court, Hon.
Edward R. Karazin, Jr., judge trial referee, denied the
plaintiff’s motion to dismiss the defendant’s counter-
claim; subsequently, the court, Hon. Edward R. Kara-
zin, Jr., judge trial referee, overruled the defendant’s
objection to the plaintiff’s withdrawal of its withdrawal
of action; thereafter, the matter was tried to the court,
Heller, J.; judgment for the plaintiff on the complaint
and on the counterclaim, from which the defendant
appealed to this court; subsequently, the court, Heller,
J., denied the plaintiff’s motion for termination of stay
of execution. Reversed; judgment directed.
Haldan E. Connor, Jr., for the appellant (defendant).
Paul Ciarcia, with whom, on the brief, was Frank
N. Peluso, for the appellee (plaintiff).
Opinion
SHELDON, J. The defendant, Jerry P. Cotrone,
appeals from the judgment rendered after a bench trial
in favor of the plaintiff, Law Offices of Frank N. Peluso,
P.C., awarding damages in the amount of $32,119.06 on
the plaintiff’s claim for unpaid legal fees. The defendant
claims on appeal that the court erred in restoring the
plaintiff’s case to the docket, in the absence of a timely
filed motion to restore, after the plaintiff filed a with-
drawal of its action. We agree with the defendant and,
thus, reverse the judgment of the trial court.
The following procedural history is relevant to the
defendant’s claim. The plaintiff brought this action
against the defendant for legal fees by way of writ,
summons and complaint on May 19, 2009. The defen-
dant appeared through counsel on April 6, 2010, and
filed an answer and special defenses to the plaintiff’s
revised complaint and a counterclaim on September
22, 2010. The plaintiff sought, and was granted, an exten-
sion of time within which to file a responsive pleading,
and on October 14, 2010, filed a request to revise the
defendant’s special defenses and counterclaim.
No further action in this case was taken by either
party until the plaintiff filed a withdrawal of its action
on September 17, 2013. Two days later, on September
19, 2013, the plaintiff filed a second withdrawal form
that purported to withdraw its withdrawal of the action.
On October 15, 2013, the defendant filed an amended
counterclaim.
On February 26, 2015, the court issued a notice to the
parties scheduling ‘‘[a] hearing to address the dormancy
status of this case’’ for March 27, 2015. On the latter
date, the court, Mintz, J., ordered that the plaintiff file
an answer to the defendant’s counterclaim on or before
April 17, 2015, and that the defendant reply, if necessary,
by May 1, 2015. The court further scheduled a pretrial
for May 6, 2015. In accordance with the court’s order,
the plaintiff filed an answer and special defenses to the
counterclaim on March 27, 2015, to which the defendant
filed a reply on May 1, 2015. On March 30, 2015, the
plaintiff filed a motion to dismiss the defendant’s coun-
terclaim for lack of subject matter jurisdiction. On April
2, 2015, the plaintiff filed a reply to the special defenses
filed by the defendant on September 22, 2010. On May
5, 2015, the plaintiff filed a certificate of closed plead-
ings and claimed the case to the trial list.
On May 6, 2015, the court, Hon. Edward R. Karazin,
Jr., judge trial referee, issued a notice scheduling a
hearing on the plaintiff’s motion to dismiss the defen-
dant’s counterclaim for May 15, 2015.1 That notice also
provided: ‘‘The court will also take up [an] objection
to the withdrawal [of the withdrawal of the action] (to
be filed on or before [May 13, 2015]) and any objection
to the objection to the withdrawal [of the withdrawal
of the action] (to be filed no later than 9:30 a.m. on
[May 15, 2015]).’’
On May 12, 2015, the defendant filed an objection to
the plaintiff’s motion to dismiss its counterclaim. On
May 13, 2015, the defendant filed an objection to the
plaintiff’s withdrawal of its withdrawal of its action, in
which it argued that the plaintiff’s withdrawal of its
withdrawal of its action was not a proper pleading to
restore its action to the docket. The defendant reasoned
that, because a withdrawal is equivalent to a final judg-
ment, a withdrawn case can be restored to the docket
upon the filing of a motion to open judgment or a motion
to restore to the docket within four months of the with-
drawal as required by General Statutes § 52-212a.
On May 14, 2015, the plaintiff filed its reply to the
defendant’s objection to the withdrawal of the with-
drawal of its action. The plaintiff asked the court therein
to ‘‘accept [its] rescinding of its withdrawal of action
and [allow its] complaint to proceed as it were.’’ In
support of that request, the plaintiff argued that ‘‘post-
withdrawal pleadings are permissible in the state of
Connecticut,’’ pointing, by way of example, to motions
for attorney’s fees that are permitted by Practice Book
§ 11-21. The plaintiff argued that a court’s consideration
of a motion filed after a case is withdrawn implicitly
constitutes the granting of a motion to restore the case
to the docket.
At the May 15, 2015 hearing, the court issued its order
on the withdrawal issue from the bench.2 The court held:
‘‘Since neither side pursued the case [for approximately
three years, from the date that the plaintiff filed a
request to revise the defendant’s counterclaim and spe-
cial defenses, to the date on which the plaintiff with-
drew its action], a fair interpretation was that neither
side was interested in the case. The plaintiff, after a
phone call to the defense counsel, left a [voice] message
that the plaintiff was withdrawing the case with the
expectation that the defendant would do so also. It did
not, however, happen.
‘‘It’s clear to this court that the plaintiff did not intend
to withdraw the case without an entire withdrawal of
the case. This withdrawal apparently was thereafter
addressed by defense counsel and a clear reading of
the pleadings in the case show that pleading 121 was
the withdrawal of the action and the court thereafter
withdrew the action and thereafter in pleading 122 was
the withdrawal of the withdrawal.
‘‘Pleading 121.02, however, for this court, is important
because what it says is and I read from the computer
printout because there is no elaboration in the record
otherwise available. It says: ‘Replace record to pleading
status (keypoint 2) and erase all [higher] keypoint
dates.’ That’s 121.02. That means that that was subse-
quent to 121 which was the withdrawal of action. And
if that means erase all [higher] keypoint dates, that
effectively means that the withdrawal of action was
erased by the court and that the question of the with-
drawal of the withdrawal is less significant because
it does appear that, in fact, the case was restored to
the docket.
‘‘The philosophy of the court concerning pleadings
has become substantially liberal. In the old days of the
practice, you served within [twelve] days of the return
day the writ, summons and complaint and returned it
to the court within six days. Failure to comply and you
lost. The case was dismissed.
‘‘Now, we allow amendment of these dates and they
. . . no longer fail. Trials are our way of deciding issues.
This case is best tried with all the issues before the
trier of fact, the complaint and the counterclaim and
all other issues.
‘‘The court has reviewed Rosado v. Bridgeport
[Roman Catholic Diocesan Corp., 276 Conn. 168, 884
A.2d 981 (2005)], and the case there seems to substanti-
ate the position that case activity restored the case
implicitly to the docket.
‘‘There were documents in a withdrawn and settled
case . . . that were referred to by the court thereafter
and certainly, in this case, there has been activity in
the case by both sides and as the court pointed out,
there was reference to the underlying case in subse-
quent pleadings and the pleadings were addressed
accordingly but not to say why are you raising that
because the case has already been withdrawn.
‘‘Accordingly the court finds the pleadings—finds
that the pleading in this action—the complaint pleading
in this action is pending. The court finds substance over
form as to the withdrawal. The court finds the defendant
is not prejudiced by the complaint still pending and the
court finds the plaintiff would be prejudiced by not
allowing the complaint to be pending.’’ The court thus
overruled the defendant’s objection to the plaintiff’s
withdrawal of the withdrawal of its action.
This action, including the plaintiff’s claims and the
defendant’s special defenses thereto and the defen-
dant’s counterclaim, was tried to the court, Heller, J.,
on December 8, 2015. By way of a written memorandum
of decision filed May 25, 2016, the court found in favor
of the plaintiff on its claims and the defendant’s counter-
claim and awarded damages in the amount of
$32,119.06. This appeal followed.
On appeal, the defendant claims that the court erred
in restoring the plaintiff’s action to the docket, in the
absence of a timely filed motion to restore, after the
plaintiff filed a withdrawal of its action. We agree.3
‘‘The question of whether a case should be restored
to the docket is one of judicial discretion.’’ (Internal
quotation marks omitted.) Travelers Property Casualty
Co. of America v. Twine, 120 Conn. App. 823, 826, 993
A.2d 470 (2010). ‘‘To the extent that the trial court
has made findings of fact [underlying that discretionary
ruling], our review is limited to deciding whether such
findings were clearly erroneous. When, however, the
trial court draws conclusions of law, our review is ple-
nary and we must decide whether its conclusions are
legally and logically correct and find support in the
facts that appear in the record.’’ (Internal quotation
marks omitted.) Ravetto v. Triton Thalassic Technolo-
gies, Inc., 285 Conn. 716, 735, 941 A.2d 309 (2008).
‘‘Withdrawals are analogous to final judgments. . . .
Under [the] law, the effect of a withdrawal, so far as
the pendency of the action is concerned, is strictly anal-
ogous to that presented after the rendition of a final
judgment or the erasure of the case from the docket.’’
(Internal quotation marks omitted.) Sicaras v. Hart-
ford, 44 Conn. App. 771, 775–76, 692 A.2d 1290, cert.
denied, 241 Conn. 916, 696 A.2d 340 (1997). ‘‘[T]he
motion to restore a case to the docket is the vehicle to
open a withdrawal, while the motion to open is the
vehicle to open judgments.’’ (Internal quotation marks
omitted.) Rosado v. Bridgeport Roman Catholic Dioce-
san Corp., supra, 276 Conn. 196. Section 52-212a, which
provides that civil judgments may only be opened or
set aside within four months of the date they were
rendered, ‘‘is applicable not only to the opening of a
case that has proceeded to judgment but also to the
restoration of a withdrawn case.’’ Id. Accordingly, ‘‘a
motion to restore a withdrawn case is seasonable only
if it is filed within four months of the withdrawal.’’
Palumbo v. Barbadimos, 163 Conn. App. 100, 116 n.15,
134 A.3d 696 (2016).
Here, the defendant claims that the court improperly
restored the plaintiff’s action to the docket despite the
plaintiff’s failure to file a motion to restore within four
months of the date that the plaintiff withdrew its action.
It is undisputed that the plaintiff did not file such a
motion. The plaintiff nevertheless claims that its case
was properly restored to the docket because ‘‘[t]he
court in effect granted [its] withdrawal of the with-
drawal, construing it as a motion to restore, on Septem-
ber 19, 2013.’’ In support of this argument, the plaintiff
relies upon the trial court’s interpretation of a notation
on the ‘‘computer printout’’ of the case that provided,
‘‘erase all higher keypoint dates.’’ On the basis of that
notation, the trial court determined that the plaintiff’s
withdrawal of its action had been erased and that the
plaintiff’s action had been restored to the docket when
the plaintiff filed the withdrawal of its withdrawal of
its action. The court’s determination that the notation
on the computer printout constituted an erasure of the
plaintiff’s withdrawal of its action and the restoration
of its action to the docket finds no support in the record.
The record also does not reveal that the court took any
action whatsoever on the plaintiff’s withdrawal of the
withdrawal of its action, or that the court ever informed
either party that the matter had been restored.4
The defendant also claims that the court erred in
finding that there had been ‘‘activity in the case by both
sides’’ following the filing of the plaintiff’s withdrawal
of the withdrawal of its action, and that, based upon
our Supreme Court’s ruling in Rosado v. Bridgeport
Roman Catholic Diocesan Corp., supra, 276 Conn. 168,
that activity had implicitly restored the plaintiff’s case
to the docket. In Rosado, our Supreme Court upheld
the granting of a third party’s motion to intervene, filed
by The New York Times, in cases that had been settled
and withdrawn approximately one year prior to the
filing of the motion to intervene. Id., 172–73. Our
Supreme Court reasoned that, ‘‘if the trial court had
been required to grant a motion to restore the case to
the docket before [acting on the motion], we can only
regard [the court’s] actions as the functional equivalent
of the granting of such a motion. . . . [T]he [trial] court
exercised direct authority over the [withdrawn] cases,
which had the same effect as restoring those cases to
the docket.’’ (Citation omitted; internal quotation marks
omitted.) Id., 198. ‘‘In other words, the [trial] court con-
sidered the . . . motion [to intervene] on its merits,
just as it would have done had the [third party] filed, and
the court granted, a motion to restore the [withdrawn]
cases to the docket.’’ (Internal quotation marks omit-
ted.) Id., 199. Our Supreme Court concluded that ‘‘the
actions of the trial court reasonably cannot be treated
as anything other than the restoration of the withdrawn
cases to the docket.’’ Id., 200–201.
The court’s reliance on Rosado in this case is mis-
placed. The plaintiff argues that, after it filed the with-
drawal of the withdrawal of its action, the court
‘‘exercised direct authority over the [case]’’; Rosado v.
Bridgeport Roman Catholic Diocesan Corp., supra, 276
Conn. 198; when it considered its motion for nonsuit
and motion to dismiss. Those pleadings, however, were
not filed in furtherance of the plaintiff’s action but,
rather, were filed in defense of the defendant’s counter-
claim. The plaintiff failed to file any pleading in further-
ance of its action from the time it filed the withdrawal
of the withdrawal of its action on September 19, 2013,
until two years later, in March, 2015, when the case
appeared on the dormancy calendar. Even then, the
plaintiff did not file any motion that required the court’s
action, and the court thus did not take any action, that
reasonably could have been construed as implicitly
restoring the plaintiff’s action to the docket. In the
absence of any such action, or a timely filed motion to
restore, we conclude that the court abused its discretion
in restoring the plaintiff’s case to the docket.
The judgment on the plaintiff’s complaint is reversed
and the case is remanded with direction to sustain the
defendant’s objection to the plaintiff’s withdrawal of
the withdrawal of its action.
In this opinion the other judges concurred.
1
The court’s May 6, 2015 notice presumably was prompted by the pretrial
held on that date.
2
The court also denied the plaintiff’s motion to dismiss the defendant’s
counterclaim. That ruling has not been challenged on appeal.
3
It is well settled that a trial court has ‘‘jurisdiction . . . to restore to
the active docket a case which has been voluntarily withdrawn, just as it
can open a judgment or restore to the docket a case which has been erased.’’
Lusas v. St. Patrick’s Roman Catholic Church Corp., 123 Conn. 166, 170,
193 A. 204 (1937).
4
The hearing on this issue was not evidentiary and consisted only of
argument by counsel. Although not evidence, we note the explanation of
the notation on the computer printout that was offered by counsel for the
defendant. Counsel argued that when the plaintiff filed the withdrawal of
its action, the court closed the entire case, including the defendant’s counter-
claim. Counsel indicated that he went to the clerk’s office to explain that the
withdrawal pertained only to the plaintiff’s action and not to the defendant’s
counterclaim, and that the entire case should therefore not have been closed.
According to counsel, the clerk agreed and entered the notation on the
printout, reinstating the counterclaim to the docket. We stress that we do
not credit arguments made by counsel as evidence, but merely mention this
argument as an example of an alternative explanation that could be ascribed
to that electronic notation and the lack of any evidentiary support as to its
actual meaning in the record.