Seldom Used Holiday Rule Will Not Save Your Lawsuit Filing Deadline

Ahhhhhhh!!Our court system is based upon a series of deadlines.  There are deadlines for everything from starting a lawsuit (statute of limitations) to returning the lawsuit papers to court (6 or 12 days before the return date) to filing an appearance (2 days after the return date).  There are deadlines for every aspect of a case and litigation attorneys live by deadlines.  However, the fact is, some deadlines are more meaningful than others.  Unfortunately, it takes attorneys years of practice to figure out the different treatment by judges for different deadlines.  More importantly, there are some deadlines that hurt your case if missed, and others that kill your case.  The statute of limitations will kill your case if missed.

But, what happens if you need to serve your lawsuit on a defendant but it is a legal holiday?  Or, what if the deadline to pay a promissory note falls on Christmas and you fail to pay?  Or, what if the day you are supposed to file something in court, the court is closed?

There are all kinds of rules and grace periods that apply in various cases.  In law school, students learn about the mailbox rule which means the papers are delivered on the date they are put in the mail, not the date received.  Some states will count business days and not weekend or holidays at all.  Other states will provide different methods of counting days for legal papers and build in grace periods.  And, to add to the confusion, federal courts and state courts have different time deadlines on legal filings.

Recently, the Connecticut Appellate Court issued a ruling in case dealing with the “Holiday Rule.”  The Holiday Rule is a common law rule (it is not in any statutes) dating back to at least 1816 in Connecticut.  Its stands for the proposition that if the final day of a deadline falls on a legal holiday, the real deadline is the next day.  In Connecticut, the Holiday Rule has been used to extend the deadline one day for promissory notes and service of papers on a municipality.

In Kim v. Stephen EMT, the Appellate Court refused to permit the Holiday Rule to apply to the statute of limitations.  In Kim, the statute of limitations for bringing the relevant cause of action fell on Memorial Day.  The plaintiff failed to serve the lawsuit papers on that date, but instead served the papers the next day.  The defendant raised the statute of limitations for negligence cases as a defense at the trial court level.  The trial court granted summary judgment to the defendant.  On appeal, the plaintiff raised the Holiday Rule as a defense.

Although the Appellate Court noted some instances where the rule could apply, the court declined to extend the rule to the statute of limitations. The court noted that courts are closed on Memorial Day, but that should not necessarily matter for state marshals.  State marshals can and do serve serve subpoenas and lawsuit papers on holidays.  This fact appeared to influence the judges in declining to extend the Holiday Rule for the statute of limitations. The court was not persuaded that it was impossible to act because of the holiday.  The takeaway here is that while many deadlines in litigation can be extended or missed without serious consequences, the same cannot be said for the statute of limitations.

 

Time Does Not Run Against The King Or The State of Connecticut

Imagine you are a subcontractor hired to work on a project for the State of Connecticut in 1994.  You did not deal with the State at all in your contractual dealings.  You were hired by a general contractor to do a small part of a large building project.  Next, you priced your work, completed it, and got paid.

KING GEORGE(2)

Now, fast forward 12 years.  Without any notice to you (some defendants claimed they had no notice of issues) of any problems for 12 years, the State of Connecticut knocks on your door with a lawsuit seeking over 15 million dollars from more than 20 defendants, including your company.

When you receive this lawsuit, you might immediately conclude that the lawsuit is time barred by the statute of limitations for breach of contract and negligence.  You might even ask your attorney, and your attorney probably would agree that the statute of limitations for your work has long expired. Nothing to worry about, right?  WRONG.

Here is the case:  Lombardo Case Nullum Tempus Lives!State of Connecticut v. Lombardo Brothers Mason Contractors, et al.  In this case, the Supreme Court of Connecticut upheld the ancient doctrine of nullum tempus occurrit regi, or "no time runs against the king."  The king is the State of Connecticut.  The court noted that nullum tempus is "a common-law rule that exempts the state from the operation" of time based statutes, such as statutes of limitation and repose. In short, the 12 year passage of time does not matter because the state is like the king.        

The state filed its lawsuit against more than 20 contractors in 2008 for over 15 million dollars in alleged damages caused by faulty construction and water leakage at the University of Connecticut law library.   The work was completed in 1996.  The state immediately began to notice problems with water leakage.  This was not a hidden defect case.  The State knew right away, and did not bring a lawsuit for damages for 12 years.  The state sought recovery for breach of contract, negligence, and product liability.  

None of this mattered as the Supreme Court found that nullum tempus has been alive and well in Connecticut since at least 1879 and traceable all the way back to English common law.  The court deemed it "well established and clear-cut."  Maybe so, but clarity to the court does not make it any less shocking to contractors and their attorneys.  The court also noted that if someone wants the common law of Connecticut changed, that is the job of the legislature.  

Nothing like a 15 million dollar lawsuit to remind you that our law is largely based on English common law….