Roger Parent v. Wendy M. Saja (2009)

MEMORANDUM OF DECISION RE MOTION TO DISMISS, # 101

I

PROCEDURAL HISTORY

On October 13, 2009, the plaintiff, Roger Parent, filed this action against the defendant, Wendy M. Saja, for injuries he suffered on April 5, 2007, when he slipped and fell on stairs located at 58-60 Booth Street, New Britain, Connecticut, which property was owned by the defendant.   On November 10, 2009, the defendant filed a motion to dismiss the complaint, on the ground that “the plaintiff has misguidedly brought the present action pursuant to [General Statutes] § 52-592,” the accidental failure of suit statute.¹  A prior action had been brought by the plaintiff, which action was dismissed on September 15, 2009, when the court granted the defendant's motion to dismiss due to “insufficient service upon the defendant and/or want of jurisdiction.”   (Tanzer, J.)

In response to the present motion to dismiss, the plaintiff filed a timely objection.   He contends that a motion to dismiss is not the proper procedural vehicle to determine the applicability of the accidental failure of suit statute.   He further argues that all aspects and requirements of General Statutes § 52-592 have been met, because the dismissal of the original action was not a decision on the merits.   Thus, the case had been commenced, and, therefore, does qualify for refiling under the accidental failure of suit statute.

II

DISCUSSION

“A motion to dismiss ․ properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court ․ A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”  (Internal quotation marks omitted.)  Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007).

The defendant raises in her motion to dismiss that this matter must be dismissed because it was improperly instituted pursuant to § 52-592, the accidental failure of suit statute.  Section 52-592(a) provides in relevant part:  “If any action commenced within the time limited by law, has failed one or more times to be tried on its merits ․ for any matter of form ․ the plaintiff ․ may commence a new action ․ for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment.”  “[A]s a general matter, a motion to dismiss is not the proper procedural instrument for challenging the applicability of § 52-592(a), the proper challenge being by way of a properly pleaded special defense;  see Practice Book § 10-50 ․” Labow v. Labow, 85 Conn.App. 746, 750, 858 A.2d 882 (2004), cert. denied, 273 Conn. 906, 868 A.2d 747 (2005).  “To enable a plaintiff to meet the burden of establishing the right to avail himself ․ of [§ 52-592], a plaintiff must be afforded an opportunity to make a factual showing that the prior dismissal was a matter of form ․” (Internal quotation marks omitted.)  Stevenson v. Peerless Industries, Inc., 72 Conn.App. 601, 607, 806 A.2d 567 (2002).   A motion to dismiss, however, only allows the court to rule on the facts alleged in the complaint, and therefore, “a court properly may consider a motion to dismiss in such circumstances where the plaintiff does not object to the use of a motion to dismiss.”  (Internal quotation marks omitted.)  Labow v. Labow, supra, 85 Conn.App. 750.

If the motion to dismiss is not challenged, it is considered an accepted procedural vehicle to attack the savings statute.   See, Capers v. Lee, 239 Conn. 265, 269-70 n.9, 684 A.2d 696 (1996) (“because the plaintiff never questioned whether a motion to dismiss was the proper procedural vehicle, the trial court properly decided the motion on the record alone”);  Henriquez v. Allegre, 68 Conn.App. 238, 241 n.6, 789 A.2d 1142 (2002) (“a trial court may properly consider a motion to dismiss [a § 52-592 claim] in such circumstances when the plaintiff does not object to the use of the motion to dismiss”).

In the present case, the plaintiff filed a timely opposition, raising an objection to the use of a motion to dismiss as the inappropriate vehicle, as well as reiterating the objection at oral argument on the motion.   Although courts have consistently indicated that when there is no objection raised, a motion to dismiss may be used to challenge an action brought pursuant to § 52-592, Practice Book § 10-31 states that a motion to dismiss “shall be used to assert (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, and (5) insufficiency of service of process.”   Further, “[a motion to dismiss] may only be granted where it clearly appears on the face of the entire record that the court is without jurisdiction.”  Baskin's Appeal from Probate, 194 Conn. 635, 639 n.4, 484 A.2d 934 (1984).  “A motion to dismiss properly attacks the jurisdiction of the court ․ In contrast, a motion to strike is the proper means of attacking a pleading that on its face is legally insufficient.”   Id., 640.

“Section 52-592 does not confer jurisdiction on the trial court.   Rather, the purpose of that the statute is to extend the statute of limitations for a period of one year after the determination of an original action.”  (Internal quotations marks omitted.)  Capers v. Lee, 239 Conn. 265, 283, 684 A.2d 696 (1996) (McDonald, J. dissenting.)  “The failure of the plaintiff to satisfy § 52-592, therefore, does not render the trial court without jurisdiction, but merely supports a conclusion that the plaintiff failed to state a legally sufficient cause of action.”  Id.

Where there is an objection to a motion to dismiss, it may not be used for a challenge of § 52-592 as the statute does not confer jurisdiction, but rather extends the statute of limitations in the circumstances provided in the statute.   In order to determine whether the new cause of action is saved by this statute, the court must examine the facts under which the initial action was dismissed.   See, Stevenson v. Peerless Industries, Inc., supra, 72 Conn.App. 601.   Since a motion to dismiss only permits an examination of facts alleged in the complaint, a plaintiff who objects to the use of the motion to dismiss to challenge the propriety of the use of the savings provision of § 52-592 must prevail, because he is entitled to make a factual showing that the prior dismissal was one of form, and therefore, the plaintiff would be entitled to invoke the statute.²

III

CONCLUSION

The motion to dismiss is denied.³

Swienton, J.

FOOTNOTES

FN1. General Statutes § 52-592(a) provides:  “If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because of insufficient service or return of the writ due to unavoidable accident or the default or neglect of the officer to whom it was committed, or because the action has been dismissed for want of jurisdiction, or the action has been otherwise avoided or defeated by the death of a party or for any matter of form;  or if, in any such action after a verdict for the plaintiff, the judgment has been set aside, or if a judgment of nonsuit has been rendered or a judgment for the plaintiff reversed, the plaintiff, or, if the plaintiff is dead and the action by law survives, his executor or administrator, may commence a new action ․ for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment.”.  FN1. General Statutes § 52-592(a) provides:  “If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because of insufficient service or return of the writ due to unavoidable accident or the default or neglect of the officer to whom it was committed, or because the action has been dismissed for want of jurisdiction, or the action has been otherwise avoided or defeated by the death of a party or for any matter of form;  or if, in any such action after a verdict for the plaintiff, the judgment has been set aside, or if a judgment of nonsuit has been rendered or a judgment for the plaintiff reversed, the plaintiff, or, if the plaintiff is dead and the action by law survives, his executor or administrator, may commence a new action ․ for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment.”

FN2. See, however, Votre v. County Obstetrics & Gynecology Group, P.C., 113 Conn.App. 569, 582, 966 A.2d 813, cert. denied, 292 Conn. 911 (2009), where the court explained that “motions to dismiss are not limited to jurisdictional challenges” because the legislature expressly provided for that remedy.   In Votre, the plaintiff failed to comply with the requirements of General Statutes § 52-190a(a).  “The legislature has provided that such a failure does render [the plaintiff's] complaint subject to dismissal pursuant to § 52-190a(c).  Dismissal pursuant to this section is a statutory remedy for any defendant who is subject to a legal action in which the statutorily required written opinion in not annexed to the complaint or initial pleading.”  Id., 583-84..  FN2. See, however, Votre v. County Obstetrics & Gynecology Group, P.C., 113 Conn.App. 569, 582, 966 A.2d 813, cert. denied, 292 Conn. 911 (2009), where the court explained that “motions to dismiss are not limited to jurisdictional challenges” because the legislature expressly provided for that remedy.   In Votre, the plaintiff failed to comply with the requirements of General Statutes § 52-190a(a).  “The legislature has provided that such a failure does render [the plaintiff's] complaint subject to dismissal pursuant to § 52-190a(c).  Dismissal pursuant to this section is a statutory remedy for any defendant who is subject to a legal action in which the statutorily required written opinion in not annexed to the complaint or initial pleading.”  Id., 583-84.

FN3. Because the court has denied the motion finding it is not the proper procedural vehicle, the court does not address the other arguments in the defendant's motion and memorandum..  FN3. Because the court has denied the motion finding it is not the proper procedural vehicle, the court does not address the other arguments in the defendant's motion and memorandum.

Swienton, Cynthia K., J.