Lisandra Bonilla v. LLC (2013)

MEMORANDUM OF DECISION ON DEFENDANTS' MOTION TO DISMISS

BACKGROUND

This premises liability case involves an alleged slip and fall caused by construction debris that was scattered on the ground in an outdoor common area at the premises of Winthrop Square Apartments in New London, Connecticut.   The plaintiff, the late Lisandra Bonilla, allegedly suffered injuries from her fall and this suit alleges negligence against the owners and possessors of the property, Vesta Winthrop, LLC and Vesta Corporation, and against the contractor performing the construction work, All Purpose Welding, LLC. On March 26, 2013, All Purpose Welding, LLC, filed the present motion to dismiss pursuant to Practice Book § 14–3(a),¹ on the nonjurisdictional ground that the plaintiff has failed to prosecute this action with reasonable diligence.   On April 22, 2013, Vesta Winthrop, LLC, and Vesta Corporation joined in that motion.   The defendants contend that the plaintiff's counsel has not been responsive to communications from them and has not initiated discovery or otherwise demonstrated any intention to move the case along.   In objections filed on April 1, 2013 and April 29, 2013, the plaintiff's counsel counters that there has been good cause for his delays, most notably the challenge posed by locating the plaintiff's family in Puerto Rico in order to substitute an estate representative for the plaintiff.

FACTS

On August 27, 2011, the plaintiff, Lisandra Bonilla, died.   This suit was commenced on February 14, 2012, by service of process on the defendants.   On May 30, 2012, Vesta Winthrop, LLC, and Vesta Corporation filed a suggestion of the plaintiff's death on August 27, 2011, which is uncontested.

DISCUSSION

A motion to dismiss under Practice Book § 14–3(a) requires the court to decide, after considering factors such as the age of the case and whether the plaintiff appears to intend to prosecute it, whether a case has not been prosecuted with reasonable diligence.  East Haven v. Paranto, 2 Conn.App. 449, 455, 479 A.2d 1225 (1984).   In considering the present motion, however, the court's review of the file has raised concerns which implicate the court's subject matter jurisdiction and obviate the court's need to resolve the defendants' motions.²  Specifically, the plaintiff was already deceased when this suit was commenced and could not legally bring this action.   Therefore, for the reasons set forth below, the court must dismiss this action.

“Jurisdiction of the subject matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong ․ A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy.”  (Internal quotation marks omitted.)  Johnson v. Rell, 119 Conn.App. 730, 734–35, 990 A.2d 354 (2010).  “[A] court lacks discretion to consider the merits of a case over which it is without jurisdiction ․ The subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any stage of the proceedings ․” (Internal quotation marks omitted.)  Keller v. Beckenstein, 305 Conn. 523, 531–32, 46 A.3d 102 (2012).  “[O]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented ․ and the court must fully resolve it before proceeding further with the case.”   (Internal quotation marks omitted.)  Esposito v. Specyalski, 268 Conn. 336, 348, 844 A.2d 211 (2004).

This lawsuit was commenced after the plaintiff's death.   A deceased person does not have standing to bring suit and, if such a suit is brought, the court lacks subject matter jurisdiction to adjudicate it.   See Diaz v. PARCC Health Care, Inc., Superior Court, judicial district of Fairfield, Docket No. CV 05 4006901 (January 30, 2006, Rodriguez, J.) (40 Conn. L. Rptr. 648).   “It is elemental that in order to confer jurisdiction on the court the plaintiff must have an actual legal existence, that is he or it must be a person in law or a legal entity with legal capacity to sue.”  (Internal quotation marks omitted.)  Isaac v. Mount Sinai Hospital, 3 Conn.App. 598, 600, 490 A.2d 1024, cert. denied, 196 Conn. 807, 494 A.2d 904 (1985).   “[W]here a plaintiff lacks standing to sue, the court is without subject matter jurisdiction ․ One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy.”  (Internal quotation marks omitted.)  Eder Bros., Inc. v. Wine Merchants of Connecticut, Inc., 275 Conn. 363, 369, 880 A.2d 138 (2005).  “By its very terms, an action at law implies the existence of legal parties;  they may be natural or artificial persons, but they must be entities which the law recognizes as competent ․ [A] dead person is a nonexistent entity and cannot be a party to a suit.   Therefore, proceedings instituted [by or] against an individual who is deceased at the time of the filing of suit are a nullity.   Such proceedings are void ab initio and do not invoke the jurisdiction of the trial court.”  (Citation omitted;  internal quotation marks omitted.)  Noble v. Corkin, 45 Conn.Sup. 330, 332–33, 717 A.2d 301 [21 Conn. L. Rptr. 547] (1998).   In the eyes of the law, a dead person does not “exist,” and thus a case brought by a dead person is a case brought by nobody.   See id., 332.

The exact issue in the present case was previously dealt with in Diaz v. PARCC Health Care, Inc., supra, 40 Conn. L. Rptr. 648, where the plaintiff died approximately one month before her attorney filed an action on her behalf.   “[T]he plaintiff, as a deceased person, cannot be a party to a lawsuit because she is a nonexistent entity and does not have standing.”  Id. As a result, the court determined that it lacked subject matter jurisdiction and dismissed the case.

In this case, Lisandra Bonilla, the sole plaintiff, died almost six months before this suit was commenced:  this case was not brought by a party with legal capacity to sue.   Consequently, the court lacks subject matter jurisdiction to adjudicate the present case and it must be dismissed.

The present action should have been brought by an executor or administrator of the plaintiff's estate.   The plaintiff's counsel has expressed a desire to substitute an estate representative into this case, but, in light of the present circumstances, this cannot be done.   When a plaintiff dies after commencement of a suit, substitution of an estate representative may be accomplished pursuant to General Statutes § 52–599.³  Section 52–599 does not apply, however, when a plaintiff dies before commencement of a suit.   Diaz v. PARCC Health Care, Inc., supra, 40 Conn. L. Rptr. 648;  see also Noble v. Corkin, supra, 45 Conn.Sup. 333.   Under the present circumstances, substituting an executor or administrator of the estate as the plaintiff cannot save the case because “there [is] no cause or right of action to be saved”—the deceased plaintiff had no right of civil action at the time suit was filed.   (Internal quotation marks omitted.)  Noble v. Corkin, supra, 333.   If the plaintiff's estate intends to pursue this matter, it must file a new case within the time limitations imposed by General Statutes § 52–584,⁴ or, if applicable, General Statutes § 52–592.⁵

For the foregoing reasons, the plaintiff's suit is dismissed.

Cole–Chu, J.

FOOTNOTES

FN1. Practice Book § 14–3(a) provides in relevant part:  “If a party shall fail to prosecute an action with reasonable diligence, the judicial authority may, after hearing, on motion by any party to the action pursuant to Section 11–1, or on its own motion, render a judgment dismissing the action with costs ․”.  FN1. Practice Book § 14–3(a) provides in relevant part:  “If a party shall fail to prosecute an action with reasonable diligence, the judicial authority may, after hearing, on motion by any party to the action pursuant to Section 11–1, or on its own motion, render a judgment dismissing the action with costs ․”

FN2. Because the court lacks subject matter jurisdiction to hear this case, it would be inappropriate to adjudicate the issues raised by the defendants' nonjurisdictional motion to dismiss.   See Noble v. Corkin, 45 Conn.Sup. 330, 332, 717 A.2d 301 (1998) (if subject matter jurisdiction is lacking due to the death of a party, it deprives the court of jurisdiction to pronounce a decision on other grounds)..  FN2. Because the court lacks subject matter jurisdiction to hear this case, it would be inappropriate to adjudicate the issues raised by the defendants' nonjurisdictional motion to dismiss.   See Noble v. Corkin, 45 Conn.Sup. 330, 332, 717 A.2d 301 (1998) (if subject matter jurisdiction is lacking due to the death of a party, it deprives the court of jurisdiction to pronounce a decision on other grounds).

FN3. General Statutes § 52–599 provides in relevant part:(a) A cause or right of action shall not be lost or destroyed by the death of any person, but shall survive in favor of or against the executor or administrator of the deceased person.(b) A civil action or proceeding shall not abate by reason of the death of any party thereto, but may be continued by or against the executor or administrator of the decedent.   If a party plaintiff dies, his executor or administrator may enter within six months of the plaintiff's death or at any time prior to the action commencing trial and prosecute the action in the same manner as his testator or intestate might have done if he had lived ․.  FN3. General Statutes § 52–599 provides in relevant part:(a) A cause or right of action shall not be lost or destroyed by the death of any person, but shall survive in favor of or against the executor or administrator of the deceased person.(b) A civil action or proceeding shall not abate by reason of the death of any party thereto, but may be continued by or against the executor or administrator of the decedent.   If a party plaintiff dies, his executor or administrator may enter within six months of the plaintiff's death or at any time prior to the action commencing trial and prosecute the action in the same manner as his testator or intestate might have done if he had lived ․

FN4. General Statutes § 52–584 provides in relevant part:Limitation of action for injury to person or property caused by negligence, misconduct or malpractice.No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct, or by malpractice ․ shall be brought but within two years from the date when the injury is first sustained ․.  FN4. General Statutes § 52–584 provides in relevant part:Limitation of action for injury to person or property caused by negligence, misconduct or malpractice.No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct, or by malpractice ․ shall be brought but within two years from the date when the injury is first sustained ․

FN5. Under certain prescribed circumstances, General Statutes § 52–592, the accidental failure of suit statute, can save a cause of action after the statute of limitations has expired.  Section 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, except as provided in subsection (b) of this section, for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment..  FN5. Under certain prescribed circumstances, General Statutes § 52–592, the accidental failure of suit statute, can save a cause of action after the statute of limitations has expired.  Section 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, except as provided in subsection (b) of this section, for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment.

Cole–Chu, Leeland J., J.