Background
Priscilla Council sued defendants Skylar and Jeffrey Hein for injuries from a motor vehicle accident occurring on August 10, 2020. She filed her initial complaint on August 22, 2022, but her counsel failed to appear at a March 6, 2023 discovery hearing. The trial court entered a judgment of nonsuit for failure to comply with a discovery order. More than ten months later, on January 31, 2024, Council filed a second complaint under Connecticut’s accidental failure of suit statute (§ 52-592(a)), which permits re-litigation of nonsuited cases when the nonsuit resulted from mistake, inadvertence, or excusable neglect.
The defendants moved to dismiss the second action, arguing that Council failed to meet the statutory requirements. At the hearing on the motion to dismiss, when asked by the judge to explain what mistake or inadvertence led to her counsel’s absence at the prior hearing, Council’s counsel could offer only a bare assertion that it was “unintentional” without any factual support. The trial court granted the defendants’ motion to dismiss.
The Court’s Holding
The Connecticut Appellate Court held that the trial court erred in using a motion to dismiss as the procedural vehicle to challenge the applicability of § 52-592(a). Connecticut precedent establishes that the proper procedure is for defendants to plead the statute as a special defense and then move for summary judgment, not to file a motion to dismiss. The court recognized that Council correctly objected to this improper procedure both in her opposition memorandum and at the hearing.
However, the appellate court concluded the procedural error was harmless. The court found that Council failed to offer even “remote factual support” for her § 52-592(a) claim. Her complaint did not allege mistake, inadvertence, or excusable neglect; her opposition brief provided no factual support; and at the hearing, despite the judge’s repeated prompts, she offered only conclusory assertions without evidence. The court noted that Council had multiple opportunities to provide factual support—in the complaint, in her opposition, at the hearing, and through discovery—but failed to use any of them.
Accordingly, the court reversed the judgment of dismissal but remanded the case with direction to render judgment in favor of the defendants on the proper procedural grounds, rather than a dismissal. This procedural correction ensures the defendants’ victory is based on the correct legal mechanism (a special defense) rather than lack of subject matter jurisdiction.
Key Takeaways
- A motion to dismiss is improper to challenge the applicability of the accidental failure of suit statute; defendants must instead plead it as a special defense and move for summary judgment.
- A procedural error may constitute harmless error if the plaintiff cannot demonstrate that proper procedure would likely yield a different result, particularly when the plaintiff has failed to allege or support the required elements.
- Plaintiffs invoking § 52-592(a) must affirmatively allege and provide factual support for how their prior nonsuit resulted from mistake, inadvertence, or excusable neglect—bare allegations are insufficient.
- When a trial court provides opportunities for a party to present evidence (such as at a hearing on a motion to dismiss), failure to seize those opportunities supports a finding of harmless error.
Why It Matters
This decision clarifies important procedural requirements for litigating under Connecticut’s accidental failure of suit statute. While the court vindicated Council’s objection to the improper use of a motion to dismiss—reinforcing that proper procedure matters—it simultaneously demonstrated that procedural defects do not warrant reversal when the underlying claim lacks merit. This balances the importance of correct procedure with judicial efficiency and prevents parties from using procedural objections as a substitute for substantive factual support.
For practitioners, the decision underscores that § 52-592(a) claims require careful pleading and proof. Plaintiffs cannot rely on vague allegations or late-developed explanations; they must affirmatively set forth the factual basis for why their prior case was nonsuited due to excusable neglect or inadvertence. The opinion also confirms that harmless error analysis applies to civil procedure violations, so even correct objections to procedural errors may fail if the plaintiff cannot show the error affected the outcome.