Fidelity National Title Insurance Company v. George Romania (2011)

MEMORANDUM OF DECISION

FACTS

The plaintiff, Fidelity National Title Insurance Company, has filed this second action against the defendant, George Romania, alleging a negligence, breach of contract and indemnification in connection with a title insurance policy that he issued to Capital Mortgage Associates, LLC in 2004.   A prior action had been brought on July 25, 2008 with the same allegations of negligence, breach of contract and indemnification.   On August 31, 2009, the court ordered the plaintiff to comply with discovery requests by October 5, 2009.   Receiving no discovery, the defendant filed a motion for nonsuit on October 8, 2009.   On February 16, 2010, the court granted the unopposed motion and entered a judgment for nonsuit.   Ten days later, on February 26, 2010, new counsel for the plaintiff entered an appearance and filed a motion to reopen the judgment.   The motion was denied on May 3, 2010 as was a motion to reargue, on June 1, 2010.

On July 7, 2010, the plaintiff filed this new action by a three-count complaint against the same defendant, pursuant to General Statutes § 52–592, Connecticut's accidental failure of suit statute.   In its present complaint, the plaintiff utilizes the same facts and legal claims as in the original complaint.   The defendant filed a motion to dismiss on September 16, 2010, with an accompanying memorandum of law, on the ground that the court lacked subject matter jurisdiction because the plaintiff's claims are not saved due to its “dilatory actions and failure to prosecute the prior action which terminated on February 16, 2010 when the Honorable Judge Blue granted [the defendant's]—unopposed—Motion for Judgment of Nonsuit.”   On September 22, 2010, the plaintiff filed an objection to the motion to dismiss with an accompanying memorandum of law.   The defendant filed a reply to the plaintiff's objection on October 21, 2010.   The matter was heard at short calendar on December 20, 2010.

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.)  Caruso v. Bridgeport, 285 Conn. 618, 627, 941 A.2d 266 (2008).  “The 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 and process.   This motion shall always be filed with a supporting memorandum of law, and where appropriate, with supporting affidavits as to facts not apparent on the record.”   Practice Book § 10–31(a).   In deciding a motion to dismiss, “if the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss ․ the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts ‘and need not conclusively presume the validity of the allegations of the complaint’ ․ Rather, those allegations are ‘tempered by the light shed on them by the [supplementary undisputed facts]’ ․ If affidavits and/or other evidence submitted in support of a defendant's motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counter affidavits ․ or other evidence, the trial court may dismiss the action without further proceedings.”  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Conboy v. State, 292 Conn. 642, 651–52, 974 A.2d 669 (2009).

“[T]he question of subject matter jurisdiction, because it addresses the basic competency of the court, can be raised by any of the parties, or by the court sua sponte, at any time ․ Moreover, [t]he parties cannot confer subject matter jurisdiction on the court, either by waiver or by consent.”  (Internal quotation marks omitted.)  New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 511, 518, 970 A.2d 583 (2009).

“[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003).  “[I]t is the burden of the party who seeks the exercise of jurisdiction in his favor ․ clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute ․ It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.”   (Citation omitted;  internal quotation marks omitted.)  Wilcox v. Webster Ins. Co., 294 Conn. 206, 213–14, 982 A.2d 1053 (2009).

The defendant argues that the court lacks subject matter jurisdiction because the plaintiff's action is not saved by the remedial provisions of § 52–592.   The accidental failure of suit statute only protects against actions that were dismissed as a matter of form, not due to dilatory and inexcusable negligence.   The defendant asserts that the plaintiff's failure to comply with discovery requests “during the four months following service before the [d]efendant moved to [c]ompel, the one month period between the [m]otion to [c]ompel and the court imposed deadline for compliance, or the five month time period between filing [the defendant's] [m]otion for [j]udgment of [n]onsuit and the actual adjudication of the motion” as well as the failure to “file any opposition to the [m]otion for [j]udgment” constitute dilatory and inexcusable negligence.

The plaintiff counters that a motion to dismiss is not the appropriate procedural vehicle to challenge an action brought pursuant to § 52–592 and that the motion should be denied on that ground.   Should the court consider the defendant's substantive argument, however, the plaintiff maintains that the failure of the former plaintiff's counsel to respond to discovery requests over a six-month period is not considered dilatory action and, therefore, § 52–592 does apply to this action.

The defendant responds that an objection to the use of a motion to dismiss does not require an automatic denial.   Rather, case law suggests that “once presented with affidavits presenting material facts in opposition to a motion to dismiss arising under 52–592, the court may be required to perform an additional analysis or conduct a hearing and does not hold that an objection to the procedure results in an automatic denial of the motion.”

“[A]s a general matter, a motion to dismiss is not the proper procedural instrument for challenging the applicability of § 52–592(a),¹ the proper challenge being by way of a properly pleaded special defense.”  Labow v. Labow, 85 Conn.App. 746, 750, 858 A.2d 882 (2004), cert. denied, 273 Conn. 906, 868 A.2d 747 (2005).  “[A] court [however] properly may consider a motion to dismiss in such circumstance when the plaintiff does not object to the use of the motion to dismiss.”  (Internal quotation marks omitted.)  Id. Nevertheless, the purpose of a motion to dismiss is to challenge jurisdiction.  “[A] motion [to dismiss] may be granted only 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).   The applicability of § 52–592 is concerned not with the jurisdiction of the court, but with the extension of the statute of limitations.  Ross Realty Corp. v. Surkis, 163 Conn. 388, 311 A.2d 74 (1972);  Parent v. Saja, Superior Court, judicial district of New Britain at New Britain, Docket No. CV 096002247 (December 23, 2009, Sweinton, J.).  “ ‘To enable a plaintiff to meet the burden of establishing the right to avail himself or herself of the statute, a plaintiff must be afforded an opportunity to make a factual showing that the prior dismissal was a matter of form” in the sense that the plaintiff's noncompliance with a court order occurred in circumstances such as mistake, inadvertence or excusable neglect.’   A determination of the applicability of § 52–592 depends on the particular nature of the conduct involved.”  (Internal quotation marks omitted.)   Stevenson v. Peerless Industries, Inc., 72 Conn.App. 601, 607, 806 A.2d 567 (2002).   Thus, “[w]here 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.”  Parent v. Saja, supra, Superior Court, Docket No. CV 09 6002247.  “Since a motion to dismiss only permits an examination of [the record on its face], 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.”  Id.

In the present case, the plaintiff filed a timely opposition to the use of the motion to dismiss as the proper procedural vehicle to challenge the claim brought pursuant to § 52–592.   It raised the objection both in its written documents and at oral argument on the motion.   Since the court must examine the facts under which the initial action was dismissed to determine if the new cause of action is saved by the statute and the plaintiffs have properly objected to the use of the motion to dismiss to do so, the plaintiff prevails.   Therefore, the motion to dismiss should be denied.

Though the motion can be dismissed on procedural grounds, the court, nevertheless, will address the defendant's substantive argument.   The motion can be granted only if “affidavits and/or other evidence submitted in support of a defendant's motion to dismiss conclusively establish [based on supplementary undisputed facts] that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counter affidavits ․ or other evidence ․” Conboy v. State, supra, 292 Conn. 651–52.   In the present case, the defendant submitted an affidavit as well as entries from the previous action's court file to support his argument that the plaintiff's failure to comply with discovery or oppose the motion for judgment of nonsuit constituted dilatory action and inexcusable negligence.   The plaintiff also submitted evidence.   Affidavits by the plaintiff's recoupment counsel, Boyd Ruff, and the counsel of record in this action, Cheryl Heffernan, state that the plaintiff was unaware of the status of the case, or even that a case existed, until it sought new counsel.   Despite attempts to contact former counsel, the plaintiff received no information regarding the case and actively pursued its claims once it became aware of the judgment.   It is undisputed that the plaintiff did not respond to discovery requests after ordered to do so in the first action nor did it oppose the motion for judgment of nonsuit before it was granted.   It is not undisputed, based on the entire record, that the actions of the plaintiff's former attorney constituted inexcusable neglect.   The plaintiff's counter affidavits are sufficient to undermine the conclusion that jurisdiction is lacking.   Thus, granting the defendant's motion to dismiss would be inappropriate.   Therefore, the motion to dismiss should be denied.

CONCLUSION

For the foregoing reasons, the defendant's motion to dismiss is denied.

Woods, J.

FOOTNOTES

FN1. 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 ․ or if a judgment of nonsuit has been rendered ․ the plaintiff ․ may commence a new action ․ for the same cause at any time within one year after the determination of the original action ․”.  FN1. 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 ․ or if a judgment of nonsuit has been rendered ․ the plaintiff ․ may commence a new action ․ for the same cause at any time within one year after the determination of the original action ․”

Woods, Glenn A., J.