Frank Bertino v. Garden Catering et al. (2013)

MEMORANDUM OF DECISION re MOTIONS TO DISMISS (# 113.00 and # 115.00)

This is an action, commenced by the self-represented plaintiff, Frank Bertino, against several defendants.   The complaint asserts a variety of instances in which the defendants allegedly failed to recognize and address the physical and/or mental condition and needs of plaintiff's late father.

Currently before the court are two motions to dismiss, filed by defendants Garden Catering and the Town of Greenwich Department of Social Services (hereafter, “Town”).   Both defendants allege that plaintiff lacks standing to pursue this cause of action, as he is not a duly authorized representative of the estate of his father, which is a jurisdictional requirement—standing to pursue the claim on behalf of the estate.

The motion filed by Garden Catering asserts that plaintiff's father died and that plaintiff has not been appointed by the Probate Court to act on behalf of the estate, citing only the complaint as a source of information.   The motion filed by the Town is more comprehensive, referring to a prior decision by the court (Adams, J.T.R.) dismissing the claims against two other defendants (# 104.86).   The town also attached a copy of the transcript of the proceedings before Judge Adams as an exhibit (# 116.00).¹

Plaintiff appeared in court on July 8, 2013 to argue against the granting of the motions.   He did not file any documents.   He did not request additional time to submit a written objection nor did he ask the court to delay ruling on the motions to allow him more time to obtain the assistance of counsel.

Plaintiff's standing to assert a claim on behalf of his father's estate goes to the court's subject matter jurisdiction, and subject matter jurisdiction cannot be conferred based on waiver, consent or other conduct of the parties.   In re Carissa K., 55 Conn.App. 768, 773–74 (1999).   Any question as to whether plaintiff's father is deceased—not specifically alleged in the complaint—is resolved by the attachment to pleading # 104.00 of a copy of the death certificate.   Implied if not express admissions by the plaintiff during argument before Judge Adams to the effect that he had not been appointed by the probate court as executor or administrator—which transcript is attached to the Town's submission (# 116.00)—eliminates any doubt as to plaintiff's status.²  The court also can take note of Judge Adams' decision (entry # 104.86) which at a minimum constitutes law of the case if not collateral estoppel.   Section 52–599(a) makes it clear that an action on behalf of a decedent can only be brought and pursued by the executor or administrator.³

The court believes this case is controlled by Isaac v. Mount Sinai Hospital, 3 Conn.App. 598, cert.den., 196 Conn. 807 (1985), wherein the court addressed a situation similar to the one at hand—an action commenced on behalf of a deceased parent by a child who had not formally been appointed to act as a legal representative of the estate.   In Isaac, despite the fact that that omission had been cured during the pendency of the litigation, i.e. three years after the lawsuit had been commenced, plaintiff obtained a proper appointment from the probate court—which also was before the motion to dismiss had been filed—the trial court ruled that it lacked subject matter jurisdiction and that the jurisdictional flaw could not be cured by subsequent events.   In essence, trial court ruled that the action was effectively a nullity as a result of plaintiff's lack of standing as of the commencement of the litigation, and the Appellate Court affirmed that decision.

Absent any claim (or proof) that plaintiff had been appointed representative of the estate, prior to commencement of the action, plaintiff lacks standing to have commenced and to pursue this action.   While the court appreciates the sincerity of plaintiff in seeking redress for his father and seeking to avoid similar treatment of others, the court is bound to follow the rules with respect to jurisdiction as a necessary prerequisite for judicial relief.   The court has no choice but to dismiss the action as pertains to moving defendants Garden Catering and Town of Greenwich.

Defendants' motions to dismiss, # 113.00 and # 115.00, are granted.

POVODATOR, J.

FOOTNOTES

FN1. Defendant Town also asserts that its Department of Social Services is not a legally recognized entity that can be sued, claiming that as an additional/alternate basis on which the matter should be dismissed.   In Andover Limited Partnership I v. Board of Tax Review, 232 Conn. 392, 400–01 (1995), the court treated such a misidentification as a circumstantial error, citing § 52–123 for the proposition that “[n]o writ ․ shall be ․ set aside ․ for any kind of circumstantial errors, mistakes or defects, if the person and the cause may be rightly understood and intended by the court.”   With that precedent in mind, the court declines to reach the merits of this alternate contention.  (That precedent also is the reason for the court's use of the term “Town” to identify the municipal defendant.).  FN1. Defendant Town also asserts that its Department of Social Services is not a legally recognized entity that can be sued, claiming that as an additional/alternate basis on which the matter should be dismissed.   In Andover Limited Partnership I v. Board of Tax Review, 232 Conn. 392, 400–01 (1995), the court treated such a misidentification as a circumstantial error, citing § 52–123 for the proposition that “[n]o writ ․ shall be ․ set aside ․ for any kind of circumstantial errors, mistakes or defects, if the person and the cause may be rightly understood and intended by the court.”   With that precedent in mind, the court declines to reach the merits of this alternate contention.  (That precedent also is the reason for the court's use of the term “Town” to identify the municipal defendant.)

FN2. For example, at pp. 17–18 of the transcript, counsel states that plaintiff had not been appointed executor or administrator and a few lines later, the court asks plaintiff if he understands what is being said by counsel.   Plaintiff acknowledges understanding the arguments of counsel and does not, at any time, challenge the claim that he had not been appointed executor or administrator..  FN2. For example, at pp. 17–18 of the transcript, counsel states that plaintiff had not been appointed executor or administrator and a few lines later, the court asks plaintiff if he understands what is being said by counsel.   Plaintiff acknowledges understanding the arguments of counsel and does not, at any time, challenge the claim that he had not been appointed executor or administrator.

FN3. The court does not interpret the initial complaint nor the revised complaint (# 111.00) as stating a wrongful death claim brought under authority of § 52–555.   An action under that statute also would require plaintiff to be acting in the capacity of duly-appointed executor or administrator such that the result would be the same..  FN3. The court does not interpret the initial complaint nor the revised complaint (# 111.00) as stating a wrongful death claim brought under authority of § 52–555.   An action under that statute also would require plaintiff to be acting in the capacity of duly-appointed executor or administrator such that the result would be the same.

Povodator, Kenneth B., J.