Kathleen Branch v. Barbara Grogan–Barone, Executrix of the Estate of William A. Grogan (2011)

MEMORANDUM OF DECISION RE MOTION TO STRIKE, # 112

In this matter, the plaintiff is appealing a probate order and decree entered by the Court of Probate, District of Berlin.   The defendant filed a motion to dismiss the action claiming that there is no personal jurisdiction as she was not properly or timely served and the entire process of service is defective, that the court lacks subject matter jurisdiction, and that General Statutes § 45a–186 violates the separation of powers provisions of the Connecticut Constitution.   The court denied the motion to dismiss, and issued a memorandum of decision on April 15, 2010.  (Swienton, J.)

On August 24, 2010, the defendant filed her answer, and four special defenses.   The four special defenses are identical to the grounds raised in her motion to dismiss, and raise the issue of personal jurisdiction in the first and third special defense, subject matter jurisdiction in the fourth special defense, and a violation of the separation of powers provisions in the Connecticut Constitution in the third special defense.

The plaintiff moves to strike the four special defenses.   She contends that the four special defenses are almost verbatim the grounds raised as the bases for her motion to dismiss which was previously denied by the court.   Therefore, the special defenses should be stricken under the law of the case doctrine.

I

PROCEDURAL HISTORY

The decedent, William Grogan, was a resident of New Britain, Connecticut, at the time of his death.   An order and decree were entered on September 2, 2008, by the Court of Probate, District of Berlin, accepting the April 18, 2007, amended inventory filed by Barbara Grogan–Branch, the executrix of the estate of William Grogan as well as the July 23, 2007, final accounting of the executrix.   On October 1, 2008, an appeal was taken from the Probate Court's order by the filing of a complaint in this court.   On October 6, 2008, a copy of the complaint was served upon the Court of Probate, District of Berlin, by a state marshal,¹ and on the same date, a copy of the complaint was mailed to the executrix by certified mail, return receipt requested, to her address in Fairfax, Virginia.   On October 30, 2008, the envelope mailed certified, return receipt requested, was returned “unclaimed” to the state marshal.   On November 20, 2008, the probate judge was served with a copy of the complaint as agent for service for the non-resident fiduciary, the executrix, Barbara Grogan–Branch.

II

DISCUSSION

“[A] plaintiff can [move to strike] a special defense ․” Nowak v. Nowak, 175 Conn. 112, 116, 394 A.2d 716 (1978);  see also Connecticut National Bank v. Voog, 233 Conn. 352, 354–55, 659 A.2d 172 (1995).  “In ․ ruling on the ․ motion to strike, the trial court recognized its obligation to take the facts to be those alleged in the special defenses and to construe the defenses in the manner most favorable to sustaining their legal sufficiency.”  Connecticut National Bank v. Douglas, 221 Conn. 530, 536, 606 A.2d 684 (1992).  “[T]he total absence of any factual allegations” specific to the dispute “renders [the special defense] legally insufficient.”   U.S. Bank National Ass'n. as Trustee v. Ascenzia, Superior Court, judicial district of New Haven, Docket No. CV 08 5022527 (July 30, 2009) (48 Conn. L. Rptr. 345, 346).

Practice Book § 10–39(a) provides in relevant part:  “Whenever any party wishes to contest ․ (5) the legal sufficiency of any answer to any complaint ․ or any part of that answer including any special defense contained therein, that party may do so by filing a motion to strike the contested pleading or part thereof.”  “If any facts provable under the express and implied allegations in [a pleading] support a cause of action ․ the [pleading] is not vulnerable to a motion to strike.”  Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991).  “Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically.”   (Internal quotation marks omitted.)   Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 253, 990 A.2d 206 (2010).   “A motion to strike admits all facts well pleaded;  it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings.”   (Emphasis in original;  internal quotation marks omitted.)  Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997).

The law of the case doctrine provides that “[w]here a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance ․ A judge is not bound to follow the decisions of another judge made at an earlier stage of the proceedings, and if the same point is again raised he has the same right to reconsider the question as if he had himself made the original decision ․ [O]ne judge may, in a proper case, vacate, modify, or depart from an interlocutory order or ruling of another judge in the same case, upon a question of law.”  (Internal quotation marks omitted.)   General Electric Capital Corp. v. Rizvi, 113 Conn.App. 673, 681, 971 A.2d 41 (2009).   Such rulings are not to be lightly changed.  McCarthy v. McCarthy, 55 Conn.App. 326, 332, 752 A.2d 1093 (1999), cert. denied, 252 Conn. 923, 752 A.2d 1081 (2000).   The doctrine is a flexible one, but the reasons behind it are compelling.  “A judge should hesitate to change his own rulings in a case and should be even more reluctant to overrule those of another judge.”  (Internal quotation marks omitted.)  Bowman v. Jack's Auto Sales, 54 Conn.App. 289, 293, 734 A.2d 1036 (1999).

“The law of the case is not written in stone but is a flexible principle of many facets adaptable to the exigencies of the different situations in which it may be invoked.”  Breen v. Phelps, 186 Conn. 86, 99, 439 A.2d 1066 (1982).   “New pleadings intended to raise again a question of law which has been already presented on the record and determined adversely to the pleader are not to be favored ... But a determination so made is not necessarily to be treated as an infallible guide to the court in dealing with all matters subsequently arising in the cause.”  (Emphasis added;  internal quotation marks omitted.)  Id.

The defendant filed four special defenses.   The first and third special defenses raise personal jurisdiction issues.   The first special defense is based upon defective service of process upon the probate judge, and the third special defense alleges that the defendant was a non-resident of Connecticut and was not properly served with process.   Both of these special defenses were raised as grounds for the defendant's motion to dismiss.   The defendant is attempting to relitigate the jurisdictional issues, which the court previously decided in its memorandum of decision.

The defendant's fourth special defense raises the issue of subject matter jurisdiction, and contains the same language as set forth as grounds for her motion to dismiss.   The court specifically found that the facts alleged were sufficient to support the plaintiff's claims for relief, and that the court had subject matter jurisdiction over the appeal from the probate court in its memorandum denying the motion to dismiss.

As to the defendant's second special defense alleging that General Statutes § 45a–186 is violative of the separation of powers provision under the Connecticut Constitution, this is the precise issue raised in her previous motion to dismiss.   The defendant is again attempting to relitigate an issue previously decided against her.

III

CONCLUSION

The previous pleading of the defendant's motion to dismiss raised the identical issues as her four special defenses, which the plaintiff is seeking to strike.   The court has previously decided these issues, and is aware of any new or overriding circumstance which would merit overruling its own findings and orders.   The court relies on its analysis set forth in the memorandum of decision dated April 15, 2010, as well as the foregoing, and grants the motion to strike all four special defenses.

Swienton, J.

FOOTNOTES

FN1. Service was made in hand, accepted by the Clerk of the Probate Court, Cecelia Hamm..  FN1. Service was made in hand, accepted by the Clerk of the Probate Court, Cecelia Hamm.

Swienton, Cynthia K., J.