Withdrawl and Reinstatement of State Court Actions

• Pages: 389
• Publication year: 2021

Connecticut Bar Journal Volume 71.

71 CBJ 389. Withdrawl and Reinstatement of State Court Actions

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Withdrawl and Reinstatement of State Court Actions

BY JACK STEIGELFEST (fn*)

The litigation has settled, and a withdrawal has been filed. You tell your client that the matter is finally resolved and close your file on another matter successfully concluded. But was there any effect on related matters by the case resolution and, perhaps more important, is the litigation really gone for good? The answers may depend on the significance of the document that was filed to terminate the case, the withdrawal.

Connecticut state court procedure relies upon the filing of a withdrawal as the manner to achieve "voluntary discontinuance" of an action. (fn1) Withdrawal is codified in Conn. Gen. Stat. Section 52-80, which provides that a plaintiff may withdraw any action "before the commencement of a hearing on the merits thereof," but that any claim, cross complaint or counterclaim may be withdrawn only "by leave of court for cause shown" after "the commencement of a hearing on an issue of fact." In addition to the questions of interpretation that have arisen with respect to this statute, the effects of a withdrawal are not codified, and withdrawal may not have the finality commonly supposed. Existing statutes, practice book rules and judicial decisions can provide some definition to this often overlooked area of Connecticut procedure.

I. THE RIGHT TO WITHDRAW AND ITS LIMITATIONS

Connecticut statutes since 1650 have recognized a plaintiff's right to withdraw an action prior to judgment. (fn2) As a counterbalance, the law has similarly recognized that a time must come in the history of all cases prosecuted to final judgment when the plaintiff loses the power to withdraw. That time has never been definitively determined by this Court; at least no rule has been established which will apply to all cases. (fn3)

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Prior to adoption of what is now Section 52-80 in 1925, an equitable rule had developed to restrain withdrawal before final judgment when such withdrawal would "injuriously affec[t] rights of the defendant acquired by reason of the action." (fn4)

Rather than codify this rule, Section 52-80 draws a different line at the "com

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mencement of a hearing." Court approval to withdraw is required after such a hearing, but not before. The right to withdraw prior to the hearing referenced in the statute had been described as "absolute and unconditional." (fn5)

Given the rules permitting reinstatement of a withdrawn action discussed in Section III, infra, the unconditional right to withdraw an action prior to a hearing is procedural in nature and not a substantive bar to a court's consideration of the circumstances of the withdrawal. It is appropriate to lessen the significance of whether a hearing within the meaning of the statute has commenced, to control only the context in which court consideration may occur, before or after withdrawal, and not whether such consideration may be had. Fair administration of the withdrawal procedure should not depend on this purely technical determination. Moreover, this determination requires interpretation and application of the statute, which has sometimes proved difficult.

That difficulty begins with the language of Section 52-80, which contains an internal ambiguity in identifying the latest point at which a plaintiff may withdraw a claim without permission of the court. The statute inconsistently references the right of a plaintiff to withdraw an action "before the commencement of a hearing on the merits thereof," at one point, and the requirement of the court's permission to withdraw "[a]fter the commencement of a hearing on an issue of fact in any such action," at another. (Emphasis added). These two phrases, although susceptible to divergent construction, can be reconciled by interpreting them in light of the purpose of the statute. Section 52-80 adds a procedural restraint on withdrawal where a case has progressed to the point where the legislature might reasonably have concluded that the interests of others affected by the withdrawal, the defendant and the court, may likely be implicated.

Thus, a hearing "on an issue of fact" that is preliminary in nature and does not affect the decision on the merits, such as a jurisdictional challenge (fn6) or an application for a prejudgment remedy, (fn7) would not implicate such interests and should not prevent a plaintiff from withdrawing an action without leave of the court. At the other end of the continuum are those cases in which the unconditional right to withdraw has been lost because a committee report or other fact finding integral to the court's resolution of the merits has been filed with the court. (fn8) Under this interpretation, most preliminary motions would not involve "hearings" within the meaning of the rule. (fn9)

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In addition to difficulties in identifying the "hearing" contemplated by Section 52-80, there have been disputes about whether any such hearing has commenced within the meaning of the statute. For example, there has been litigation addressing the issue of whether a hearing in a committee context has commenced where the committee, even though requested or appointed, has not begun its work. (fn10) Although the trial of a case is clearly a hearing on the merits, an unresolved issue exists as to whether that "hearing" for purposes of Section 52-80 commences with jury selection or at some later point. (fn11) A rule requiring court approval after the initiation of jury selection would impose a burden on the court to act in many cases that have settled between the parties without any question as to the appropriate termination of the lawsuit. On the other hand, that burden is relatively slight, where the effect on a party prejudiced by unilateral termination may be significant. Recognizing that jury selection is an integral part of a trial, (fn12) the intent of the statute is better served by treating jury selection as the commencement of a hearing under the statute and thus requiring prewithdrawal court approval. (fn13)

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When a hearing has commenced, but the result vacated, as where a motion for mistrial or to set aside is granted or where a judgment after trial is set aside on appeal and the matter remanded, does a plaintiff's unilateral right to withdraw reappear? No law in Connecticut directly addresses this issue, although logic would suggest that, in most circumstances, the interests protected by the statute justify application of the statute as if the prior hearing had not occurred

The procedural nature of the limitation on withdrawal after commencement of a hearing is reinforced by the cases recognizing, after the enactment of Section 52-80, the continued viability of the prestatute equitable rule prohibiting withdrawal only where discontinuance of the action would injuriously affect rights of a defendant acquired by reason of the action. (fn14) Although the statute places the burden on the plaintiff to establish cause for withdrawal after commencement of a hearing, that burden can usually be fulfilled by the simple desire to end the dispute where, in contrast, a defendant rarely acquires rights by reason of a plaintiff's action that justify continuing an action the plaintiff would rather forego. Unusual circumstances, such as an imminent ruling that will resolve a dispute between the parties or the waste or prejudice that accompanies an attempt by a plaintiff to forum shop by withdrawing one action in favor of another, are required to justify restraining a plaintiffs right to withdraw. The existence of expense incurred by a defendant in defending an action is insufficient in and of itself to restrict withdrawal, as that expense would exist even if withdrawal were not permitted and the case continued to a defendant's judgment.

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The strong judicial policy properly favoring the settlement of disputes and the resolution of litigation must be overcome by legitimate prejudice relating to the withdrawal itself

In addition to the restrictions imposed on any withdrawal after a hearing by Section 52-80, (fn15) both the rules of practice and the General Statutes contain limitations on the right to withdraw particular types of actions. Among those actions that may never be withdrawn without prior court approval, regardless of the commencement of a hearing under Section 52-80, are class actions, (fn16)...