Kristen Liljehult v. Rhonda Johnson et al. (2013)

MEMORANDUM OF DECISION ON MOTION OF DEFENDANT RHONDA JOHNSON, DECEASED, TO DISMISS (# 119)

On August 18, 2011, the plaintiff, Kristen Liljehult, commenced the present action by service of process on the defendants, Rhonda and Carmen Johnson.   Before the court is Rhonda Johnson's April 24, 2013, motion to dismiss on the ground that she is deceased, and therefore this court lacks subject matter jurisdiction.¹  The plaintiff filed an objection and memorandum in support of her objection on June 5, 2013, to which the defendant replied on June 11, 2013.   The plaintiff filed a surreply on June 17, 2013.   The motion to dismiss was argued on June 18, 2013.

At the crux of this dispute is General Statutes § 52–599(b),² a part of Connecticut's “right of survival statute.”   Rhonda Johnson (“defendant”) argues that this court lacks subject matter jurisdiction because the plaintiff has failed to comply with the statute's requirement that a deceased party defendant be substituted with his or her executor or administrator within one year of the time that the plaintiff receives notification of the defendant's death.   The plaintiff concedes that she did not comply with the statute, but argues that the court should exercise its discretion to deny the motion to dismiss and allow her to substitute a representative of the defendant's estate on the ground that there is good cause to allow the substitution.   According to the plaintiff, the court has good cause because, inter alia, the defendant's suggestion of death failed to provide the plaintiff with adequate notice and defense counsel provided inaccurate or misleading information regarding the death of the defendant.

FACTS

In ruling on a motion to dismiss for lack of jurisdiction, the court views the facts in the light most favorable to finding jurisdiction, and takes the facts alleged in the complaint as true.  Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009).   Considering the facts set forth in the present motion and the plaintiff's opposition which are not disputed with these principles in mind, the facts for present purposes are as follows.   The plaintiff sustained personal injuries as a result of an August 27, 2009, collision of two vehicles, one driven by the plaintiff and one owned by Carmen Johnson and operated by Rhonda Johnson.   The plaintiff brought this suit by her complaint dated August 25, 2011.

On April 11, 2012, the defendant executed a verification of her responses to discovery in this case.   In response to a standard interrogatory inquiring as to whether any of the defendants were deceased, both defendants responded “N/A.” Rhonda Johnson died three days later, on April 14, 2012.   On April 20, 2012, the defendants filed and served upon the plaintiff's attorney a suggestion of Rhonda Johnson's death.   The defendant's discovery responses with “N/A” as the answer concerning defendant deaths were not served by defense counsel until April 27, 2012, thirteen days after the defendant's death and seven days after the suggestion of death was filed.   Neither defendant amended her discovery responses to indicate that the defendant had died.

On June 13, 2013, prior to oral argument on the present motion, the plaintiff moved for permission to substitute, for the defendant, a representative of her estate.   The next day, she filed a brief in support of that motion.   On June 25, 2013, the defendant filed an opposing brief.

DISCUSSION

A motion to dismiss 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.  Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013).   The present motion tests whether, on the face of the record, the court lacks jurisdiction.  Dayner v. Archdiocese of Hartford, 301 Conn. 759, 774, 23 A.3d 1192 (2012).   This is the appropriate motion for raising a lack of subject matter jurisdiction, in particular.   See St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003).

“[B]y virtue of § 52–599, Connecticut's right of survival statute, a cause of action can survive if a representative of the decedent's estate is substituted for the decedent.   It is a well established principle, however, that [d]uring the interval ․ between the death and the revival of the action by the appearance of the executor or administrator, the cause has no vitality.   The surviving party and the court alike are powerless to proceed with it.”   (Internal quotation marks omitted.)  Negro v. Metas, 110 Conn.App. 485, 497–98, 955 A.2d 599, cert. denied, 289 Conn. 949, 960 A.2d 1037 (2008).

In Dorsey v. Honeyman, 141 Conn. 397, 400, 107 A.2d 260 (1954), our Supreme Court held that § 52–599 gives the plaintiff an absolute right to have the representative of a deceased defendant cited in within one year after the defendant's death, and thereafter it is within the power of the court to order him cited in if good cause is shown for the delay.   Thus, “the language of § 52–599, and its predecessor, has been construed to mean that the fiduciary may be substituted as a matter of right within the time prescribed by the statute, but the court in its discretion may permit the fiduciary to be substituted after the time described for good cause shown.”  Negro v. Metas, supra, 110 Conn.App. 498.

“Good cause” has been defined as a substantial, legally sufficient ground or reason for failing to perform an act required by law.   See Schoolhouse Corp. v. Wood, 43 Conn.App. 586, 591, 684 A.2d 1191 (1996), cert. denied, 240 Conn. 913, 691 A.2d 1079 (1997), citing Black's Law Dictionary (6th Ed.1990).   The trial court must review the intent and the reasons given by the plaintiff for not moving to substitute a representative in place of a deceased defendant within the one-year period set forth in § 52–599, and to determine if those reasons amount to good cause.   See id.  “Neglect, indifference, disregard of plainly applicable statutory authority and self-created hardship do not constitute good cause to excuse the delay in filing the motion to substitute in the appropriate court.”  Id., 591–92.

In this case, after a thorough briefing of the history of the principle now codified in § 52–599 and the recent application of that statute, the plaintiff fails to provide one crucial necessity for ruling in her favor:  facts showing good cause for not substituting a representative of Rhonda Johnson's estate within a year after written notice of her death.   At oral argument, plaintiff's counsel claimed he had been set up to fail.³  Rhonda Johnson had provided signed discovery responses and, other than the written, served and filed suggestion of death, her attorneys said nothing about her death.   Plaintiff's counsel said that, as far as he could recall, the first notice of Rhonda Johnson's death he got was the motion to dismiss.   However, plaintiff's counsel did not deny that the suggestion of death was served by the defense and was received by his office.   After it was filed, the suggestion of death was also available on the Internet, through the court's filing system.   The court rejects the plaintiff's contention that the mere act of filing a discovery response signed by the deceased defendant after her death is misleading to the point that it constitutes “good cause.”

Section 52–599(b) requires written notice.   A suggestion of death, although not formally recognized by the Practice Book, is the preferred method of compliance with the written notification requirement of § 52–599.   See Jones v. Lawler, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV–99–0174667–S (February 14, 2002, Adams, J.) (31 Conn. L. Rptr. 416, 419 n.2).   Although the court is unaware of any appellate authority expressly holding that a properly served suggestion of death constitutes sufficient written notice to comply with § 52–599, the court finds that to be the case.⁴  Despite the plaintiff's argument to the contrary, the statute merely requires “written notification of the defendant's death.”   The plaintiff's attorney has said that defense counsel did not take the initiative, or extend any courtesy, of providing information about where Rhonda Johnson died, or whether and where her estate was being probated.   Assuming that is true, that does not excuse the plaintiff from taking action within the time required by the statute.   Indeed, after receiving the suggestion of death, the absence of that additional information should have made it urgently clear to plaintiff's counsel that the plaintiff had to gather necessary information quickly enough to request that an estate be opened, if only for purposes of having a substituted defendant in this case.   The court concludes that the plaintiff has failed to show good cause to permit belated substitution of a representative of Rhonda Johnson.

On June 13, 2013, the plaintiff filed a motion to substitute party, but that motion refers to no named representative of the defendant.   If such a motion were sufficient to comply with § 52–599(b), notwithstanding the one-year period for such motions, cases against decedents could proceed indefinitely without an actual fiduciary or other proper representative as a defendant.   That would thwart the purpose of the statute.   In any event, although the motion to substitute is not currently before this court, it is moot, because the court concludes that it no longer has subject matter jurisdiction as to Rhonda Johnson.   See Rocque v. DeMilo & Co., 85 Conn.App. 512, 521, 857 A.2d 976 (2004) (if no claims against particular defendant exist, motion to substitute estate of that defendant is moot).

CONCLUSION

For the foregoing reasons, the motion to dismiss this suit as to Rhonda Johnson is granted.

Cole–Chu, J.

FOOTNOTES

FN1. The court notes the irony of a deceased person seeking relief from the court yet claiming the court has no jurisdiction, but such is our procedure.   See Bellman v. West Hartford, 96 Conn.App. 387, 392, 900 A.2d 82 (2006) (motion to dismiss properly challenges jurisdiction)..  FN1. The court notes the irony of a deceased person seeking relief from the court yet claiming the court has no jurisdiction, but such is our procedure.   See Bellman v. West Hartford, 96 Conn.App. 387, 392, 900 A.2d 82 (2006) (motion to dismiss properly challenges jurisdiction).

FN2. Section 52–599(b) provides in relevant part:  “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 defendant dies, the plaintiff, within one year after receiving written notification of the defendant's death, may apply to the court in which the action is pending for an order to substitute the decedent's executor or administrator in the place of the decedent, and, upon due service and return of the order, the action may proceed.”.  FN2. Section 52–599(b) provides in relevant part:  “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 defendant dies, the plaintiff, within one year after receiving written notification of the defendant's death, may apply to the court in which the action is pending for an order to substitute the decedent's executor or administrator in the place of the decedent, and, upon due service and return of the order, the action may proceed.”

FN3. A common colloquialism for the plaintiff's counsel's claimed situation is “sandbagged,” but the court does not recall plaintiff's counsel using that term..  FN3. A common colloquialism for the plaintiff's counsel's claimed situation is “sandbagged,” but the court does not recall plaintiff's counsel using that term.

FN4. The court does not mean to imply that a suggestion of death is the only way to comply with the statute's written notification requirement.   See Aksomitas v. Aksomitas, Superior Court, judicial district of Hartford, Docket No. FA–08–4034768–S (November 16, 2009, Frazzini, J.) (48 Conn. L. Rptr. 750, 752 n.1)..  FN4. The court does not mean to imply that a suggestion of death is the only way to comply with the statute's written notification requirement.   See Aksomitas v. Aksomitas, Superior Court, judicial district of Hartford, Docket No. FA–08–4034768–S (November 16, 2009, Frazzini, J.) (48 Conn. L. Rptr. 750, 752 n.1).

Cole–Chu, Leeland J., J.