Erica Domond et al. v. Miguel Caldera et al. (2013)

MEMORANDUM OF DECISION RE MOTION TO DISMISS (# 102)

The issue presented is whether the court should grant the defendants' motion to dismiss on the ground that the present case cannot be saved by General Statutes § 52–592 because (a) the original action was not commenced within the statute of limitations and (b) the late return of process in the original action and subsequent failure to properly amend the return date was not due to unavoidable accident.

FACTS

Erica Domond initially commenced an action against the defendants, Miguel Caldera and Crossroads, Inc., on August 17, 2011.   That suit was dismissed on November 29, 2011 because the plaintiff selected an improper return date.   Following that decision, the plaintiffs, Erica Domond, individually and through her conservator, Begnon Domond, commenced the present case on December 12, 2012.   In the instant action, the plaintiffs filed a four-count complaint against the defendants, Miguel Caldera and Crossroads, Inc., for negligence against Caldera, negligence against Crossroads, Inc., negligent misrepresentation against both defendants, and spoliation of evidence against Crossroads, Inc., respectively.   The plaintiffs allege the following facts in its complaint.   Erica Domond was a patient and was receiving care and treatment at a facility known as the Amethyst House, Woman and Children's Program of Crossroads in New Haven, Connecticut.   Between July 1, 2009 and July 16, 2009, the defendants undertook the care, treatment, monitoring, diagnosing and supervision of Erica Domond.   While under the defendants' care, Erica Domond fell into a diabetic coma and was found lying on the floor of her room, foaming at the mouth and with a low blood sugar level.   The plaintiffs allege that Erica Domond's injuries were caused by the defendants' failure to exercise reasonable care.

On December 28, 2012, the defendants filed the instant motion to dismiss the plaintiffs' complaint.   On April 15, 2013, the plaintiffs filed an objection to the motion.   Subsequently, the defendants filed a reply on June 20, 2013.   The matter was heard at the short calendar on June 24, 2013.

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.”  (Internal quotation marks omitted.)  Housatonic Railroad Co. v. Commissioner of Revenue Services, 301 Conn. 268, 274, 21 A.3d 759 (2011).  “The grounds which may be asserted in [a motion to dismiss] are:  (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.”  Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985), citing Practice Book § 143, which is now § 10–31.  “When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must consider the allegations of the complaint in their most favorable light ․ In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.”  (Internal quotation marks omitted.)  Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009).

The defendants argue that the court should grant its motion to dismiss the plaintiffs' complaint on the ground that the present case cannot be saved by General Statutes § 52–592 ¹ because (a) the original action was not commenced within the statute of limitations;  (b) the late return of process in the original action and subsequent failure to properly amend the return date was not due to unavoidable accident.   Additionally, the defendants argue that the plaintiffs failed to file a certificate of good faith and a written opinion letter by a similar health care provider with the complaint, as required by General Statutes § 52–190a.²  The plaintiffs contend that the motion to dismiss should be denied on the grounds that (1) a motion to dismiss is the improper motion for an accidental failure of suit challenge and (2) the underlying action was commenced when the service documents were given to the marshal.

“[A] motion to dismiss is not the appropriate procedural means to challenge an action commenced pursuant to the accidental failure of suit statute [General Statutes § 52–592].   The appropriate challenge is by way of a properly pleaded special defense;  see Practice Book § 10–50 ․ [A]lthough a motion to dismiss may not be the proper procedural vehicle for asserting that an action is not saved by ․ § 52–592, our Supreme Court has held that a trial court may properly consider a motion to dismiss in such circumstances when the plaintiff does not object to the use of the motion to dismiss.”  (Citation omitted;  internal quotation marks omitted.)  Worth v. Commissioner of Transportation, 135 Conn.App. 506, 515 n.16, 43 A.3d 199, cert. denied, 135 Conn.App. 506, 43 A.3d 199 (2012).  “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.”   Parent v. Saja, Superior Court, judicial district of New Britain, Docket No. CV 09 6002247 (December 23, 2009, Swienton, J.).

In the present case, the defendants move to dismiss on the ground that the accidental failure of suit statute does not apply and cannot save the underlying action.   The plaintiffs, however, object to the defendants' use of the motion to dismiss and specifically argue that it is not the proper procedural vehicle for challenging the applicability of § 52–592.   Consequently, the court cannot consider the defendants' instant motion to dismiss because it is not the appropriate procedural means to challenge an action commenced pursuant to the accidental failure of suit statute.

Moreover, the defendants' claim that § 52–592 cannot be invoked in the instant suit is, in part, based on a statute of limitations argument.  “The applicability of § 52–592 is concerned not with the jurisdiction of the court, but with the extension of the statute of limitations.”   Schriver v. Medeiros, Superior Court, judicial district of New London, Docket No. CV 11 6011049 (June 19, 2012, Martin, J.), citing Fidelity National Title Ins. Co. v. Romania, Superior Court, judicial district of New Haven, Docket No. CV 10 6012682 (February 25, 2011, Woods, J.).   Generally, a statute of limitations defense “must be specially pleaded and cannot be raised by a [motion to dismiss].”  Ross Realty Corp. v. Surkis, 163 Conn. 388, 391, 311 A.2d 74 (1972);  see also Practice Book § 10–50.   Therefore, the court cannot grant the defendants' motion to dismiss because § 52–592 is concerned with the extension of the statute of limitations.

Accordingly, because the motion to dismiss is the improper procedural vehicle to challenge the accidental failure of suit statute, the court does not need to address the defendants' second argument—whether the underlying action was commenced when the service documents were given to the marshal—at this phase of the proceeding.

CONCLUSION

For the foregoing reasons, the court denies the defendants' motion to dismiss.

BY THE COURT

V. ROCHE, J.

FOOTNOTES

FN1. General Statutes § 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 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 ․ 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, 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 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 ․ 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. At the short calendar argument, the court ordered the defendants' third ground for dismissal, the failure to comply with General Statutes § 52–190a, be reclaimed under a separate motion to dismiss.   Thus, this memorandum addresses only the defendants' first two arguments..  FN2. At the short calendar argument, the court ordered the defendants' third ground for dismissal, the failure to comply with General Statutes § 52–190a, be reclaimed under a separate motion to dismiss.   Thus, this memorandum addresses only the defendants' first two arguments.

Roche, Vincent E., J.