JOHNSON v. ATLANTIC HEALTH SERV., P.C., No. CV 99-0430613 S (Dec. 1, 2005)

HOWARD F. ZOARSKI, JUDGE TRIAL REFEREE.

The plaintiffs, Geoffrey Schiebel Johnson, individually and as parent and next friend of his minor son, Geoffrey Scott Johnson (minor plaintiff), and Joanne Johnson, filed their first complaint in September 17, 1999 (original complaint). The twenty-eight count complaint arose of out injuries allegedly sustained after interactions with the defendant Julian Hartt, a mental health professional and employee of the defendant Atlantic Health Care Services, P.C. (Atlantic). The following facts are alleged in the original complaint. On August 16, 1997, the prior plaintiff had revealed to his parents that he was depressed and had thoughts of suicide. Thereafter, the plaintiff father scheduled an appointment for the minor plaintiff with Hartt. Upon arrival to Hartt's office, the plaintiff father was asked to sign a form stating that he assumed full responsibility for services rendered. He refused to sign the form, Hartt refused to treat the minor plaintiff, and the plaintiffs left. Thereafter, Hartt contacted the department of children and families, made a bad faith report of medical neglect against the plaintiff parents and disclosed confidential medical information relating to the minor plaintiff. The plaintiffs' alleged injuries stem from Hartt's phone call to the department of children and families.

Counts one though six allege that the defendants were negligent in disclosing confidential medical information, filing a false complaint, and causing emotional harm suffered by each of the plaintiffs. Counts seven though twelve allege that the defendants intentionally inflicted emotional distress and counts thirteen though eighteen allege that the defendants negligently inflicted emotional distress on each plaintiff. Counts nineteen through twenty-two allege that both defendants were defamatory toward the plaintiff parents. Counts twenty-three through twenty-eight allege that the defendants engaged in unfair trade practices with each plaintiff. CT Page 15475

In response, the defendants filed a motion to strike the complaint, in its entirety, on March 16, 2000, for failure to include a certificate of good faith. On August 21, 2000, the court, Blue, J., granted the motion to strike the complaint. The defendants filed a motion for judgment upon the stricken complaint on January 26, 2001. On February 13, 2001, the court, Blue, J., "issued a contingent order . . . that judgment on the stricken complaint would be granted `unless an amended complaint [was] filed by [March 1, 2001.]'" Johnson v. Atlantic Health Services, P.C., 83 Conn.App. 268, 271, 849 A.2d 853 (2004). The plaintiffs did not file an amended complaint by the court-imposed deadline of March 1, 2001. "The plaintiffs [claimed] that they mailed a revised complaint to the clerk's office on February 27, 2001. However, the clerk's date stamp on the revised complaint, indicating the date it was filed, read `March 7, 2001,' a date six days after the deadline that was set by Judge Blue. The defendants filed an objection to the amended complaint on two grounds: (1) that it was untimely and (2) that it sought to add new causes of action without the court's permission. The court, Booth, J., sustained the objection on April 30, 2002, noting that Judge Blue's February 13, 2001 order had been `self-executing' and, therefore, judgment had entered in the defendants' favor on March 1, 2001." Id.

On August 29, 2002, the plaintiffs filed a motion to open the judgment of dismissal, which was granted by the court, Radcliffe, J., on September 16, 2002. "In an articulation of his order, Judge Radcliffe found that the plaintiffs' motion to open the judgment was timely filed in accordance with Practice Book § 17-4(a), which provides that the four month period within which such motion may be filed commences from the `date on which notice was sent . . .' The court noted that although the parties had received notice of Judge Blue's February 13, 2001 contingent order, the parties had never received notice that the judgment of dismissal had entered pursuant to the contingent order. Rather, the court opined, the parties were not officially notified of the entry of judgment until Judge Booth's April 30, 2002 memorandum of decision was sent to them, explaining that judgment had entered on March 1, 2001." Id., 272.

The defendants appealed the trial court's decision granting the plaintiffs' motion to open, claiming the motion itself was untimely. On appeal, the defendants argued that the plaintiffs had four months after the case was dismissed to file a motion to CT Page 15476 open pursuant to Practice Book § 17-4. The defendants maintained, the August 29, 2002 motion to open based on the March 1, 2001 dismissal was untimely. The plaintiffs conceded that they had four months to file a motion to open, but asserted that the four-month deadline did not begin to run until the plaintiffs were provided with notice that their case was dismissed. The plaintiffs argued, the August 29, 2002 filing of the motion to open was timely because "notice" to the plaintiffs from the court was not received until April 30, 2002.

The Appellate Court concluded that "it was not until Judge Booth, in his April 30, 2002 memorandum of decision, settled the disputed issue of whether the plaintiffs had complied with Judge Blue's order that the plaintiffs were given notice that judgment had entered against them. Notice is necessary to make a determination of the date that commences the four-month period within which a party may file a motion to open a judgment. Noncompliance with a contingent order, by itself, cannot serve as notice of the resultant judgment." Id., 275-76. In affirming the order of the trial court granting the motion to open the judgment of dismissal, the Appellate Court stated: "We conclude that because the first notice sent indicating that judgment had entered on March 1, 2001, was the opinion of Judge Booth, of which the clerk sent notice to the parties on April 30, 2002, the court correctly determined that the four months within which the plaintiffs had to open the judgment had not yet run when the plaintiffs filed their motion to open the judgment on August 29, 2002." Id., 278-79.

Presently before this court are the defendants' motion for judgment as to the counts in the original complaint and the defendants' objection to the March 7, 2001 revised complaint. In order to consider the defendants' motion and objection, this court must first determine the operative complaint.

As discussed earlier, the plaintiffs' original complaint was stricken, in its entirety, by order dated August 21, 2000. The plaintiffs did not file a substitute pleading, pursuant to Practice Book § 10-44, within fifteen days of the granting of the motion to strike, nor did the plaintiffs comply with the order of Judge Blue allowing them to file an amended complaint by March 1, 2001. The plaintiffs' revised complaint was not filed until six days after the court-imposed deadline and after the judgment of dismissal entered on March 1, 2001. At no time prior to the entry of judgment on March 1, 2001, or CT Page 15477 subsequent to the decision of the Appellate Court affirming the opening of that judgment of dismissal, did the plaintiffs seek to amend their complaint pursuant to Practice Book § 10-60.

Accordingly, the only complaint properly before this court is the original complaint. The revised complaint filed March 7, 2001 is not now, nor was it ever, properly before the court. As such, the original complaint is the operative complaint and is reviewed while considering the matters presently before this court.

The defendants filed a motion for judgment on all counts of the original twenty-eight count complaint except counts seven, ten, nineteen, twenty-one, twenty-six and twenty-seven. In support of their motion, the defendants argue that 1) the plaintiffs' complaint was stricken in its entirety and 2) the plaintiffs' March 7, 2001 revised complaint deleted the counts from the original complaint. The plaintiffs argue that the motion for judgment should be denied because "defendants . . . have not cited any case, statute or other authority that shows that judgment may enter" and because the plaintiffs have "filed a Revised Complaint, eliminating the counts on which the defendants now seek judgment."

Contrary to the plaintiffs' claim, the defendants have cited authority, Practice Book § 10-44, on which judgment may enter. See footnote 1. As the plaintiffs did not file a substitute pleading in accordance with either Practice Book § 10-44 or the court-imposed deadline of March 1, 2001, this court may enter judgment against the plaintiffs on the stricken counts of the original complaint. Accordingly, the defendants' motion for judgment on counts one through six, eight, nine, eleven through eighteen, twenty, and twenty-two though twenty-four is granted.

The defendants filed an objection to the plaintiffs' revised complaint as to counts six, eight, nine, and ten claiming: 1) the plaintiffs have failed to comply with Practice Book § 10-60 (a); and 2) the counts are time barred by the statute of limitations and do not relate back to the original complaint.

In opposition to the defendants' objection, the plaintiffs argue that 1) the revised complaint was filed in accordance with Practice Book § 10-60 because the court granted the plaintiffs permission to file the late complaint; 2) objecting to time barred pleadings is an inappropriate method of attack; and 3) the counts in question relate back to the original complaint. CT Page 15478

As discussed earlier, the operative complaint is the original complaint. The court need not consider the differences between the original complaint and the March 7, 2001 revised complaint and whether new causes of action asserted in the revised complaint are time barred because the revised complaint is not properly before this court.